of Julius and Ethel Rosenberg in 1953 have gotten a fresh look in
the past two years. An association of historians and journalists
have unearthed the long-secret grand jury transcripts from the Rosenberg
case after years of litigation. Their findings have been released
by trickles on a website
and in a few short news
articles in America's daily papers.
Americans probably don't know much about the Rosenberg case. Perhaps
all they know is that it was a case of a man and wife accused of
spying or leaking some of America's atomic secrets to the Soviet
Union during the Cold War. Most who know that much are probably
aware that there has been controversy surrounding the case for decades.
Since the 1950s, opinions about the Rosenberg executions have tracked
closely with peoples' political views. Those on the Left have long
thought the Rosenberg prosecution represented bare-knuckled McCarthyesque
hysteria, while those on the right have
generally viewed the Rosenberg case to have been a soundly proven
case of espionage.
grand jury revelations provide fodder for both positions. On
the one hand, they shatter all doubts about whether Julius Rosenberg
was a Communist spy.
He was. His own sons, Michael and Robert Meeropol, who have long
been champions of their parents' exonerations, have partially recanted
and resigned themselves to the reality that at least their father
really was a committed Communist spy in common cause with the Soviet
Union. It is now undeniable that Julius Rosenberg and Martin Sobell
forwarded certain military information to the Soviets (although
not the atomic secrets that allowed Russia to produce atomic bombs
— those secrets were transmitted by high-ranking
U.S. government officials, including the
Assistant Secretary of the Treasury). On the other hand, the transcripts
reveal that Ethel Rosenberg was almost
certainly innocent of the crimes she was
executed for committing. It appears that Ethel's conviction was
the result of perjured testimony by two government witnesses — her
brother- and sister-in-law, David and Ruth Greenglass — who both
testified at trial that Ethel Rosenberg had typed up notes regarding
U.S. military systems provided by David Greenglass from the U.S.
National Laboratory at Las Alamos. In her recently unearthed 1950
grand jury testimony, Ruth Greenglass admitted it was she (Greenglass)
— and not Ethel Rosenberg — who transcribed the notes, and in handwritten
versions of events described in the 1950 grand jury hearings (which
were secret) and the 1951 trial proceedings cannot be reconciled.
Ruth Greenglass changed her story between the grand jury hearings
and the trial so as to falsely implicate Ethel Rosenberg. We know
from several accounts that lawyers for the Justice Department coerced,
threatened and coached the witnesses for days before the Rosenberg
trial. The government's star witness, Harry Gold, had been prepped
hundred hours of coaching by prosecutors
and FBI agents. The Feds apparently charged Ethel solely to coerce
Julius into confessing — which he refused to do. Prosecutors then
fabricated the story that Ethel had typed up some atomic secrets
from notes provided by David Greenglass in order to bolster their
otherwise shoddy case against her. The prosecutor said in closing
arguments that Ethel "sat at that typewriter and struck the
keys, blow by blow, against her country" — the words that are
most remembered from the trial.
the discussion of the transcripts has been their astounding revelations
regarding the grand jury process itself. How could it take 50 years
to reveal these government lies? How could the government conceal
for half a century evidence that material testimony in one of the
most closely watched trials of the twentieth century was perjured?
The grand jury revelations highlight the fact that the grand jury
process in the United States — especially at the federal level —
has been hijacked by the government.
the recent release of the Rosenberg grand jury transcripts is a
major break from contemporary practice. It is highly unusual for
federal courts to order federal grand jury transcripts to be made
public — especially after cases are closed. Federal courts have
even punished a reporter for airing the names of witnesses who testified
decades earlier in Jim Garrison’s grand
jury investigation of President Kennedy’s assassination.
jury is an ancient common law institution whose original purpose
was to protect people from the prosecutorial power of the government.
Under the Fifth Amendment, the Constitution's Framers intended that
no criminal charges could ever be initiated by the government alone.
A citizen panel of 23 people (more or less) was supposed to act
as an obstacle to prosecutors and ensure that any prosecution be
preapproved by common people. Yet today most commentators agree
that the government can get any grand jury to "indict
a ham sandwich." Federal "indictment
rates" greater than 99 percent have been reported in some years.
In 2001, federal grand juries declined to indict in only 21 cases
numbers suggest that, whatever the reason, the federal grand jury
now exercises very little power as a shield between the government
and its citizens."
The story of
how this once-proud institution fell under the control of the very
prosecutors it was supposed to control is a long and tragic one.
During the nineteenth century, all three branches of government
joined together to silence and deaden the institution. Over time,
it became common for government prosecutors to be present in grand
jury hearings (a practice strictly forbidden at the time of the
Founding), and eventually prosecutors became managers of the proceedings.
In 1946, all three branches approved the Federal Rules of Criminal
Procedure, which purported to codify for the first time the common
law rules that govern criminal procedure at the federal level. The
rules pertaining to grand jury practice, however, were deliberately
altered to evade the plain language of the Fifth Amendment ("No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury").
is an independent statement of a grand jury not necessarily approved
by a prosecutor. For centuries before the enactment of the Federal
Rules of Criminal Procedure, grand juries would issue presentments
exposing government misconduct or accusing people of crimes known
to the grand jurors themselves. Occasionally, grand juries issued
presentments that openly proclaimed a person's innocence in defiance
of the government's allegations. The government rule-makers in 1946
deliberately and calculatingly eliminated the possibility of a federal
grand juries issuing non-government-approved statements or conclusions
of any kind. Since 1946, any publicized presentments by federal
grand jurors have been prohibited as violations of grand jury "secrecy"
rules. Indeed, grand jurors that release statements of any kind
are now subject to possible five-year prison sentences.
By the time
of the Rosenberg case, the grand jury process had been transformed
into a rubber stamp for the government. Federal prosecutors now
dispense all evidence, witnesses and testimony to grand jurors,
who then retire to a deliberation room to vote on whether to issue
indictments. Because the grand jurors are only given the government's
version of events and are generally unable to investigate matters
on their own (like grand juries did from the Founding period through
the end of the nineteenth century), they almost always vote according
to the Justice Department's wishes. In rare instances when grand
juries refuse to indict, federal prosecutors simply present their
same claims to a second (or third, fourth or fifth) grand jury until
an indictment is issued. In such cases, prosecutors have been known
to lie to the later grand juries by falsely
telling them that the first grand jury wanted
to indict but ran out of time, etc. There is never any punishment
meted out for such lies.
And there is
more. The Federal Rules strip grand jurors of their rightful control
over the recordings of grand jury testimony, notes, and "any
transcript prepared from those notes." Rule 6(e) places all
grand jury transcripts in the hands of the U.S. Attorneys Office,
giving an awesome power to the government never known under the
common law. Even federal judges don't have easy access to the transcripts.
In recent decades, prosecutors have perfected the practices of granting
immunity to selected witnesses, denying it to others, concealing
inconvenient testimony or evidence from the public and generally
leveraging facts and accusations into an overwhelming advantage
over targeted defendants. Defense attorneys, not even aware of what
is said in the transcripts, are usually unable to challenge them.
the U.S. Supreme Court has assured that this machine of tyranny
can virtually never be challenged. In two
cases since the 1970s, the Court has held
that grand jury improprieties are never appealable after conviction
and can only be challenged in the most unusual circumstances via
interlocutory appeal (an extremely rare and disfavored pretrial
device). Of course, defense lawyers are systematically deprived
of the means to make such challenges because the prosecutors keep
all evidence of the improprieties in their own hands, and courts
of appeals almost never grant hearings for interlocutory appeals
in criminal cases even if by miracle some evidence of grand jury
It is noteworthy
that the very grand jury secrecy that now prevents grand jurors
from revealing prosecutorial misconduct — the same secrecy that
kept the Ruth Greenglass perjury in the Rosenberg case concealed
from the public for 50 years — now operates as a mockery of the
original intent behind grand jury privacy. Under the common law,
grand jury secrecy was a protection for grand jurors from intimidation
by the government. It is said to have first arisen in England in
1681 when the King demanded that a grand jury indict his rivals
— the Earl of Shaftesbury and Steven Colledge — for treason. The
grand jury won the right to hold its proceedings in secret — away
from the watchful eyes of the Crown prosecutor. For two and a half
centuries afterward, grand juries had the right to operate in secret
— but to waive secrecy and issue public presentments when they concluded
their investigations. Today, however, the Federal Rules place the
prosecutor directly within the grand jury room and expose any grand
jurors who expose governmental improprieties to possible five-year
If the Justice
Department's libraries of grand jury transcripts were ever thrown
open to public scrutiny, they would speak of prosecutorial misconduct
on a massive scale. We know this because those few cases such as
the Rosenberg case in which grand jury proceedings have been unsealed
have revealed a level of misconduct and abuse by prosecutors that
can only be described as systematic and pervasive. One
federal judge recently wrote that in twenty-three
years of occasionally examining grand jury transcripts to resolve
pretrial motions, he had never once seen a case where prosecutors
gave grand juries accurate legal instructions.
For all its
infamy and notoriety, the Rosenberg case is fairly typical of the
systematic injustice that federal criminal law has degenerated into.
As with so many other federal cases, the most guilty and loathsome
characters (e.g., Ruth and David Greenglass) went unpunished or
were given light sentences, while minor players — Julius and Ethel
Rosenberg — were prosecuted to the max. The government's most fearsome
prosecutions were and are reserved for those who refused to ally
themselves with the state. David Greenglass, who was caught red-handed
and quickly became a government witness to save his own skin, watched
as his own lies sent his innocent sister to the electric chair.
And, of course, the federal prosecutors who suborned perjury in
the same case were lauded as great heroes. One of them became a
justice on the New York Supreme Court.
Roots, J.D., Ph.D. [send him
mail] is an assistant professor of Sociology and Criminal Justice
at the New York Institute of Technology.