As everyone now knows, after World War II, the Communist party was not just very weak. It was practically non-existent and there was no real threat of Russian agents. There never had been. But the big corporations used the Communist scare to emasculate the trade unions, which were the real obstacles in their drive to entrench their position as unaccountable private tyrannies. And whipping up the Communist scare was the perfect disguise for this corporate strategy. Julius and Ethel Rosenberg, executed in 1953 for conspiracy to commit espionage, had no chance at all. They were up against a social policy geared to the continual transfer of wealth and power to those who already had it, and they just got caught in those gears. And those gears made mincemeat of them.
In the time of the Rosenbergs, (roughly the late 1940s to the late 1950s) the Communist scare peaked. It was fueled by fear of the Soviet Union, which was wrongly perceived to be steadily- and intentionally – moving towards world domination, much as the United States is now perceived. It was at the climax of nationwide distrust and angry fear (“your country is sick with fear… you are afraid of the shadow of your own bomb,” wrote a critic) that the Rosenberg’s trial and execution took place.
It didn’t surprise me that when he was very young, the brilliant, radically progressive, once-in-a-lifetime lawyer Arthur Kinoy was involved with the last-minute effort to win a stay of execution for the Rosenbergs. What did surprise me was the reason he gave at the very end of his interview with the Columbia University Oral History Collection for why one of the most liberal members of the American judiciary, Jerome Frank, told them he would not help Kinoy and his colleagues, thus dooming the Rosenbergs and letting the execution take place within hours.
Here is the climactic last part of the interview:
Arthur Kinoy: So we spent all night thinking how we could get another stay of the execution. And we looked at the papers of the case and suddenly we realized something incredible. The Rosenbergs had been sentenced to death under a statute that said the death sentence was only permissible in time of war. And we looked at the dates when they were charged with being spies, and there was no war going on then. Therefore, this execution was illegal and unconstitutional. So we said great. And the next day we went with a writ of habeas corpus to the judge who had ordered the execution. We knew he would deny it and then once he denied, we could go on appeal to the Court of Appeals in Connecticut. So Mike Pearlman and I rush up to Hartford, Connecticut, and while we were there we got a phone call from a lawyer in New York who was working with us. He said,”All right, go ahead with the appeal. The judge here has denied the writ of habeas corpus and the stay of execution.”
So we rushed to the office of Chief Judge Swann of the Connecticut Court of Appeals. And then we had the wildest experience. It was wild because we expected that he would instantly deny it too. But he didn’t. He kept asking us questions. Then he sent his clerk out to get a copy of the statute. And he looked at us and he said, “You’re right, you’ve got a real point. But the only way we could overcome the Supreme Court is if we can get two other judges of the Court of Appeals to agree to sit with me in an emergency hearing. And at that emergency hearing we’ve got to get at least one other judge to agree with me that we have to stay the execution.” And we said, “This is terrific. Whom should we go to ask?” And Judge Swann said, “Well, the only one who’s in town now is Jerome Frank.” And that was like a miracle to us, because Jerome Frank was the most liberal judge ever appointed to the federal bench, and everybody admired him as a progressive judge. Great, we thought, we’re in, we’ve got it! But how are we going to get to his house? We don’t know how to get to his house.
Then Judge Swann said something that blew our minds. He said, “You go in my limousine. I will have you driven there.”
So we’re driven to Jerome Frank’s house, and Judge Swann had already talked to him on the phone and Judge Jerome Frank was there in his living room waiting for us. And we sat down and he said, “Well tell me, what are you here for?” And we start to lay out to him our reasons for using the writ of habeas corpus. And he kept asking us questions about our analysis and what cases it was based on. And I felt like I was back in law school. And we kept talking for over an hour with him and I could see he was nodding his head and I felt we were really getting somewhere. And then we finish and it’s about three in the afternoon. The executions had been set for six o’clock in the evening. We knew that Judge Swann had set up emergency telephone lines to the prison the Rosenbergs were in, in the event that another judge would be willing to say, “Yes, I will be with you on this emergency appeal.”
And we finished the argument. And then Judge Frank looked at us and he said something I have never, never forgotten. He said, “If I were as young as you are, I would be sitting there saying the same things you are saying, making the same argument as you that these planned executions are invalid. But when you are as old as I am, you will understand why I cannot do it.”
And he stood up, turned his back to us and walked away. And we were finished. But we could not, at that terrible moment, understand. What did he mean, if he were as young as we were? He was as young as we, once. Did he mean if he were as young now as we are, he would agree with us? But that now, because he is not as young as we are, something is going on and he won’t do it? It made no sense. And so we left and we were devastated. We got in the car and on the drive back to New York, we heard that Ethel and Julius Rosenberg had been executed.
And then we began to sense something that in later years we came to understand very clearly. And that was that Jerome Frank, as the leading liberal judge of the Court of Appeals, was terrified himself, and frightened by the atmosphere of fear in the country. And he was afraid that if he, as a liberal, did something to save Julius and Ethel Rosenberg’s lives, then he himself would be accused of being a Communist.
And then I realized something else. Judge Jerome Frank was Jewish, and Ethel and Julius Rosenberg were Jewish. And inside of himself was Jerome Frank’s fear that if he, a Jewish judge, saved two convicted atomic spies, the Jewish people would all be attacked as communists and agents and abettors of spies. And that was what was going on inside of Jerome Frank that late afternoon day, and that is why the Rosenbergs were forsaken.
Treason doth never prosper. What’s the reason? Why, when it prospers, none dare call it treason.”
— Sir John Harrington