the implosion conspiracy

2216003For some reason I’ve been really interested in Julius and Ethel Rosenberg for quite a long time, and I’ve been wanting to read a book about their trial. But unlike a lot of subjects, I was finding it hard to find the definitive work on this topic. So one day when I emailed the rabbinical school list about something unrelated, I also asked if anyone had recommendations. One of my classmates responded extremely enthusiastically with an endorsement of Louis Nizer’s The Implosion Conspiracy, which he read decades ago and still remembered vividly. It must be out of print now, because I was only able to find a copy on Amazon Marketplace (but for $0.78!).

To be honest, the book wasn’t exactly what I was looking for. However, it was a great read, and I definitely recommend it to the fellow Rosenberg-obsessed. Nizer was a lawyer, and he approaches his subject via an in-depth look at the trial itself. His perspective is that the truth can be found in the record.

He writes (somewhat pompously), “My objective was to know every inch of the thousands of pages of the records, as if I were going to write the briefs; and every word and authority in the briefs, as if I were going to argue the appeals; and every word of the many judicial opinions, as if I were going to write a critique for a law review; and every book I could find for or against the verdict, as if I were going to review each one for the Sunday Times; and every newspaper reference I could find, as if I were an editor preparing an editorial; and every person I could find who touched their lives or deaths, as if I were a reporter on a Pulitzer-Prize mission.” Indeed, his account, published in 1973, is incredibly thorough.

Nizer acknowledges in his introduction the “strong feelings” that the case engendered. In 1951, the Rosenbergs were convicted of passing information about the atomic bomb, being built under the auspices of the Manhattan Project in Los Alamos, N.M., to the Soviet Union. Just after the war, there was a certain amount of camaraderie (pun intended) in the United States with the Russians, who had been just about pulverized in their defeat of the Nazis on the eastern front. But by the time the Rosenberg case went to trial, the cold war had started, and communists (which the couple indisputably was) were viewed with considerable suspicion. Sen. Joe McCarthy would begin his infamous hearings just two years later, right about the time the Rosenbergs were executed for their espionage. Add to this opposition to the death penalty; horror at the fact that the chief government witnesses were Ethel’s brother and sister-in-law, whose damning testimony allowed them to escape more serious prosecution; and the possible role of anti-Semitism, fairly common in the mid-20th century — and one might think that the case would have hinged on some less quantifiable factors than Nizer claims. During sentencing, the judge himself made the following extreme statement:

I believe your conduct in putting into the hands of the Russians the A-Bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country.

Pres. Eisenhower cited a similar concern when he denied clemency a few months before their execution.

But this account provides almost none of that context or how it might have influenced the outcome. However, I now feel as though I lived through the trial and the appeals. In fact, I probably now know more than what most of the public did at the time, given how much of the testimony was embargoed because of national security concerns. In one of the few moments of levity in the book, the judge asks the public to leave, only allowing press to stay, because of the evidence about the atomic bomb about to be presented; I think today the press would be just about the last group allowed to hear such privileged testimony.

the rosenbergs in a rare embrace, but one so characteristic of their deep love for each other

the rosenbergs in a rare embrace, but one so characteristic of their deep love for each other

I finished the book over two Shabbatot, during one of which I was sick, so I just stayed in bed all day reading. Even though I knew the outcome, I cried at the end. The Rosenbergs were executed just over two years after their conviction, lightening speed when compared to today’s process. Through a practical deus ex machina, the legal team was able to get a stay of execution ordered by one U.S. Supreme Court judge, William Douglas, on the day after the Court’s summer recess. It initially seemed that the Rosenbergs would gain months of their lives while the appeal based on the stay made its way through the lower courts. However, exhilaration turned into shock and despair when, in a completely unprecedented move, the Court was called back for a special session and vacated the stay. The Rosenbergs were executed by electric chair a day later — on Shabbat, despite the pleas of their lawyer for respect for their Jewish heritage. Even more horrifying, Ethel had to be electrocuted three times after it was discovered she was still alive after the first course.

Since I’ve practically read the trial transcript, I’ll weigh in on the verdict. From the book’s account of the trial, it certainly seemed like Julius Rosenberg was involved in espionage activities. However, the government’s case was pretty weak, based on circumstantial evidence and verbal testimony (and absolutely no physical ties). As a juror, I think I would have had trouble concluding that the government had made its case beyond a reasonable doubt. Indeed, based on evidence released decades after the trial, it is clear that he was indeed a spy for the Soviet Union, but it is not at all clear whether what he passed on helped the Russians in their quest for the bomb, or whether he even passed on anything at all about the bomb.

Ethel’s involvement was always dubious, and the government had even less of case against her. In the years since the trial, her role has pretty much been completely debunked (her brother having admitted in 2001 that he gave false testimony about her involvement). She almost certainly knew of her husband’s activities but did not participate in them in any substantive way.

Ages 10 and 7 when their parents died, the Rosenberg sons were adopted by their foster family, the Meerepols. The father Abel was a poet and song-writer who wrote under the pseudonym Lewis Allen; his most well-known work was the anti-lynching poem “Strange Fruit,” made famous by Billie Holiday.

The affair would ultimately claim another life. Upon hearing the Supreme Court’s decision to vacate Justice Douglas’s stay, the Rosenbergs’ lawyer, Emmanuel Bloch, called the warden at Sing Sing: “Please tell Julie and Ethel I did the best I could for them. Tell them I will take care of the children. Tell them I love them. Tell them . . . ” and then collapsed into a chair sobbing. He died of a heart attack, at the age of 52, six months later.

anatomy of injustice

Raymond Bonner’s Anatomy of Injustice reads like a true-crime thriller, and I would say I enjoyed if I hadn’t spent the entire book alternating between anger and horror. A New York Times reporter, Bonner wrote the book from his journalism research, which started in Texas after then-Governor George Bush — who had presided over more executions than any other governor in history — stated on Meet the Press, “I’m confident that every person that has been put to death in Texas on my watch has been guilty of the crime charged and has full access to the courts. I’m confident.”

Since Governor George Ryan of Illinois had just two weeks before suspended the death penalty in his state because of eleventh-hour exonerations of several condemned prisoners, Bonner and a colleague were first sent to Texas, and then later other states, to investigate Bush’s claim and the state of the death penalty in America today. Anatomy examines just one of the many cases they looked into: that of Edward Lee Gilmore, a young black man of limited intelligence convicted of murder in South Carolina in a seven-day trial.

I’ll be the first to admit that I am not impartial on this issue. I think capital punishment is just the most egregious evidence that our criminal justice system is broken (second only to the atrocities of mass incarceration, prison-industrial complex, and drug war, among others). One of my dream jobs would be to work against the death penalty as a rabbi.

So it wasn’t going to take much to convince me of the miscarriage of justice. Tragically, it took 30 years to convince those who could actually do something for Elmore. He had three trials before he was sentenced to death for the last time, and it took almost 20 years to locate a potentially exonerating piece of evidence that the state thought was lost. The book ends before Elmore’s saga does: Last month, Elmore left a courthouse in Greenwood as a free man for the first time since 1982.

Bonner chose the case as emblematic of the many death penalty cases that occur in the 36 states in our country that allow the punishment. He notes, “Elmore’s story raises nearly all of the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, ‘snitch’ testimony, DNA testing, a claim of innocence.”

It’s because so many death penalty cases have at least one of these issues that Elmore’s story is sadly familiar, so I won’t go into the details of his story. Bonner is able to make the case for Elmore’s innocence, overwhelming in the narrative and affirmed by his later release, even more compelling by being able to pretty reliably point to the real perpetrator, a neighbor with whom the victim was suspected of having an affair and who died years before Bonner started covering the case. He “discovered” the body and pointed the original investigators to Elmore, and they never even considered the former a suspect.

edward lee elmore, a few years before his arrest for murder

Several things struck me as I read. Abysmally represented at his original trials, Elmore benefited immensely from later (competent, not to mention tenacious and passionate) counsel from the South Carolina Death Penalty Resource Center. This is typical of many of these cases: The best representation is available on appeal. A huge part of Elmore’s experience was the direct result of the complete incompetence of his original lawyers. There are many dedicated lawyers and law students today working on the cases of death row inmates, so why aren’t more of them clamoring to be the original lawyers on these cases? Indeed, the book makes clear that one of the enormous hurdles that Elmore had to overcome during all the years of appeals was that, despite massive evidence of defense ineptitude, no one wanted to imply that previous lawyers, juries, and judges had made a mistake (especially not multiple times), or perhaps more perniciously, were racist or classist (which of course they were). It seems to me that the priority of death penalty opponents should be ensuring that those accused of crimes eligible for capital punishment get the best representation at their initial trials.

Secondly, Bonner devotes a good number of pages discussing the differing roles of prosecutor and defense attorney. The book opens with two epigrams on the subject from Supreme Court cases. Justice Byron White:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of a crime. . . . But the defense counsel has no such comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.

In other words, defense lawyers’ primary responsibility is to their clients, guilty or not; prosecutors’ primary responsibility is to the truth. Bonner argues that this prescription for prosecutors has gotten lost — and in the vacuum has risen a culture that values winning above all. Today, prosecutors of death penalty cases are generally more interested in convictions, in assigning blame for (what are often heinous) crimes, in assuaging public outrage and fear, in securing “justice” for the families of victims. Perhaps some of these are admirable, or at least understandable. But ultimately, Bonner argues, prosecutors are derelict in their duties when they lose sight of the fact that they are instead (or at least also) supposed to strive to protect the innocent.

What I know about the practice of law could fit into a coffee cup (just as everything I know about law school I learned from Legally Blonde, as I am fond of telling my amused law student interns), so please excuse my ignorance when I say that I simply didn’t know this legal principle. In popular culture, particularly in sympathetic portrayals of wrongly convicted criminals, prosecutors are routinely portrayed as cravenly careerist and eager to convict. While that may be an at least a somewhat accurate portrayal of reality, it’s not what the law proscribes. And Bonner’s book is an object lesson of why not.