Book Review : New Light on Rosenberg Case

Fatal Error: The Miscarriage of Justice That Sealed the Rosenbergs’ Fate, by Joseph H. Sharlitt (Charles Scribner’s Sons: $24.95, 274 pages)

The Rosenberg case, to paraphrase James Joyce’s epigram on history, is a nightmare from which I am struggling to awaken.

On June 19, 1953, Julius and Ethel Rosenberg were executed in the electric chair at Sing Sing prison for the crime of conspiracy under the Espionage Act of 1917. To this day, I am haunted by the poignant images of their last days--the Rosenbergs, side by side, but separated by the wire mesh of a prison van; and their young sons, soon to be orphaned, being led away from the prison gate by their parents’ weeping attorney.

And, to this day, we are still haunted by the same questions that pervaded the Rosenberg case from the outset: Were they guilty? And even if so, were they fairly tried and duly executed under the law? According Joseph Sharlitt’s “Fatal Error,” the latest addition to the substantial literature of the Rosenberg case, the answer to the second question is a passionate and anguished “No.”

Like Louis Nizer, whose “The Implosion Conspiracy” was a leading work on the Rosenberg case for many years, Sharlitt is an attorney who has studied the legal record in great depth and with a sophisticated eye. But, unlike Nizer, Sharlitt gained access to new and shocking information about the inner workings of the Supreme Court in the Rosenberg case; and, unlike Nizer, he concludes that justice was not done.

‘Disregarded the Law’

After studying the final appeals of the Rosenbergs in the United States Supreme Court, Sharlitt is convinced--and he convinced me--that the high court condemned Julius and Ethel Rosenberg to death in the face of compelling reasons to overturn the conviction or at least to stay the execution.

“The Supreme Court rushed the Rosenbergs to the electric chair in violation of their rights before that Court,” Sharlitt insists. “The Supreme Court disregarded the law, its own traditions, and violated the rules that govern the conduct of the justices, in its dash to kill this couple.”

At the heart of the book is a fairly abstruse legal argument that was raised at the 11th hour by a couple of freebooting lawyers who intervened on behalf of the Rosenbergs.

Essentially, they argued that the Rosenbergs had been tried and convicted under the wrong law--the Espionage Act of 1917, which empowered the trial judge alone to sentence the Rosenbergs to death, instead of the Atomic Energy Act of 1946, which would have required a jury recommendation for the imposition of the death penalty. If the 1946 act applied to the alleged conduct of the Rosenbergs, Sharlitt concludes, “the Rosenbergs were executed illegally.”

Angry, Elegant Treatment

I am deeply impressed by Sharlitt’s ability to write plainly and persuasively about some of the most obscure twists and turns of the law--”Fatal Error” is a tough, blunt, angry book that never condescends to the lay reader, and never sacrifices the elegance or subtlety of the law for sake of a cheap rhetorical point.

(Sharlitt is a seasoned international trial lawyer, and I imagine that he’s a master when it comes to the closing argument before the jury.)

But the real drama in “Fatal Error” is Sharlitt’s intimate account of the day-by-day, hour-by-hour struggle of the self-appointed defense lawyers to bring their new arguments before the justices of the Supreme Court in the last week before the execution of the Rosenbergs--and the heartbreaking antics of the Supreme Court justices and other federal judges in their equally frantic efforts to toss away a judicial hot potato.

Sharlitt’s vivid portrait of the volunteer champions of the Rosenbergs, Fyke Farmer of Nashville and Daniel Marshall of Los Angeles, is a healthy reminder that at least some lawyers are motivated by the purest idealism and a rough-and-ready sense of justice.

And their skirmishes with the Rosenbergs’ own lawyers--who, at first, shared the opinion of the federal judiciary that Farmer and Marshall were “interlopers” and “intruders”--only heightens the tragic irony of the case.

Sharlitt also reveals how the mean-spirited politics of the high court--and not the sober consideration of legal issues--sent the Rosenbergs to the electric chair.

William O. Douglas, defying a gentleman’s agreement among his fellow justices to take no further action on the Rosenberg case, unilaterally issued a stay of execution to permit a fuller consideration of the new issues. The other justices were hastily recalled from their summer recess in order to overrule Douglas, and thus to punish him.

“It is a damning comment on the High Court’s conduct during that week,” storms Sharlitt, “that a legal point that had never before been raised, that should have spared the lives of the defendants, that was wholly correct even though scores of judges and lawyers had missed it entirely, was summarily brushed aside by the Supreme Court of the United States because of personal pique of judge against judge.”

Focus on ‘Technicalities’

“Fatal Error” is not concerned with the ultimate question of the guilt or innocence of the Rosenbergs. Rather, Sharlitt focuses narrowly on the procedures by which the Rosenbergs were tried, convicted and executed, and he concludes that these proceedings were tainted by legal and ethical improprieties--”a major miscarriage of justice.”

In that sense, “Fatal Error” deals with what Dirty Harry might call “technicalities”--and Sharlitt concedes that his book is “the brief that the Rosenbergs were never allowed to write.”

But these are technicalities that go to the very heart of our system of justice, and Sharlitt’s advocacy is simply brilliant. He has a genius for making the law--and the Rosenberg case itself--come alive in novel and surprising ways. And, even to the casual reader of the Rosenberg canon, “Fatal Error” became indispensable on the first day of publication.