The Final Plea

Judge Jerome Frank

by Arthur Kinoy from Rights on Trial: The Odyssey of a People's Lawyer (Harvard Univ. Press 1983)

Mike Perlin, Frank Donner, and I were working late on a Thursday evening in June in the small rooms of the converted New York apartment that served as our office when the telephone rang. The call was to have an effect upon us from which, in a sense, we never recovered. When I picked up the phone, Emanuel Bloch, the chief counsel for Julius and Ethel Rosenberg, was on the line from Washington. I had never heard anyone quite so distraught and upset as Manny Bloch sounded. He stuttered, then blurted out, "They may vacate Douglas' stay. The execution may go ahead tomorrow night!"

As he talked on, what had happened became clear. All the Rosenbergs' formal appeals had previously been exhausted and their executions had been set when, two days before the scheduled executions, in an act of judicial heroism, Supreme Court Justice William Douglas had granted them a stay of execution until new issues just raised by their lawyers could be briefed and argued in the lower courts. All of us had breathed a sigh of relief when Justice Douglas signed the stay, because a week before that the Supreme Court had adjourned for vacation and would not be back for business until the new term opened in September. All was safe through the summer! Since the trial almost two years before, huge movements of support had developed for the Rosenbergs, demanding a halt to their executions. People had demonstrated in major cities throughout the world, insisting that the barbarism of the executions be stopped. Even the Pope had pleaded for the Rosenbergs' lives. The relief just granted by Justice Douglas seemed to be the answer to the world's demands.

Now this new development that Manny Bloch was explaining to me threatened their lives again. The Chief Justice, Fred Vinson, had convened an emergency session of the entire court, calling them all back from their vacations, to consider overruling the stay of execution granted by Justice Douglas. Stunned, I could think of no other time that such a thing had happened in the history of the Court. Manny went on, in the words I shall never forget, "The Court sits again at noon tomorrow. Looks like they're definitely going to vacate Douglas' stay. Execution tomorrow. Do something. Figure something out. Get back to the Court of Appeals. Do something."


....We stayed up all night, talking, pulling out books, and poring over the appeals papers that were in the office. By three in the morning we came up with an approach, a way to "do something." We even got excited about it. It was a last resort plan of action. When the full Court vacated Justice Douglas' stay the next morning, we would ask for another federal stay of execution by developing a variation on the approach that had captured Douglas' attention a week before. The act under which the Rosenbergs had been sentenced permitted the death penalty only in time of war. But there was no declared war at the time of their alleged acts of espionage. Applying the death penalty at a time when the country was not actually at war might thus be challenged as unconstitutional and without statutory authority.

By five in the morning we had jammed out a set of federal habeas corpus papers which put forth the theory that the courts had no power under the statute to sentence the Rosenbergs to death. Then we started working out a plan of action to obtain a last-minute stay of execution that same day, pending full consideration of the new habeas corpus papers. The only way we could do so was by going back to the trial judge in the case, Irving Kaufman, and starting all over again. There was no hope of getting Kaufman to grant any relief, particularly if the Supreme Court vacated Douglas' stay, for Kaufman's own reputation as a judge depended upon a full vindication of the propriety of the death penalty he himself had mandated. But all we needed to get from Kaufman that morning was the one word "denied" on the petition for a stay of execution, so that we could present an emergency appeal to the Court of Appeals for the Second Circuit....

So now it was up to us. With fear and trepidation, Gruber, Perlin, and I walked down the corridor to the office of the chief judge of the circuit, the highly respected, conservative Judge Swan. To our surprise, we won the first important battle, getting past the bailiff in the outer office and then the secretary, by insisting that we had a critically important paper to present to the chief judge. While we waited for the judge, Perlin put in a call to Washington. The news, as expected, was that at noon the full Supreme Court had vacated Douglas' stay, and the execution was now set for 8:00 that very evening.

After what seemed like an hour of sitting in the reception room, looking at our watches every minute in the knowledge that eight o'clock was the outer limit, we were shown into Judge Swan's office. We quickly told him why we were there, and to our astonishment, he did not throw us out as we had expected. He looked at us and said, "All right, tell me what your theory is. Why should I grant a stay of these executions?" Then with a faint smile, he added, "You've got a mighty heavy burden to carry. After all, the full Supreme Court has vacated Douglas' stay." So Perlin, Gruber, and I sat there and laid out our theory, developing every point. As we talked, Judge Swan picked up our papers. We had mentioned several cases on which we were relying. He called in his clerk and asked for the volumes we had mentioned. He opened them up and leafed through them. And then it happened. He looked up at us and said, "You've got a point there. It makes some sense. I'll tell you what I'll do. I can't grant a stay by myself after the High Court has vacated Douglas' stay. But what I can do is convene a panel of this court this afternoon, two judges of the court and myself to hear your application, and I'll vote for the stay. I'll convene a panel if you can get one other member of our court to agree to sit on the panel and consider granting the stay."

This was beyond our wildest expectations. We blurted out, "Judge Swan, what other members of the court are around? Who can we get to see? Who is in New Haven?" He thought for a moment and then said, "Judge Frank is here, at his home."

We sat stunned for a moment. He was sending us to Jerome Frank, the leading liberal judge on the court; Jerome Frank, the intellectual leader of the New Deal and architect of its most progressive legislation; Jerome Frank, the idol of young progressive law students and leader of the liberals when he taught law at Yale, who had led the fight against the conservatism of the old-guard faculty by championing, long before its actual victory years later, the cause of clinical education in law school-we were going to see Jerome Frank!

As we stood up, half-dazed at this turn of events, and scooped up our papers, one of us turned to Judge Swan and asked, "What's Judge Frank's address?" The judge looked at his watch. It was about two o'clock. He said, "You don't have very much time." Then he picked up his telephone and called for the car assigned to him as chief judge to be brought around and gave instructions that we be taken immediately to Frank's home. Things were moving in a way we had never dreamed of. For the first time since Manny Bloch's phone call, the possibility of stopping the Rosenberg executions became real....

Judge Frank was at his door to meet us. Swan evidently had alerted him that we were coming. He welcomed us in a friendly way, escorted us into his living room, and as we sat down in comfortable easy chairs and nervously opened our briefcases to take out our papers, he smiled at us and looked for ways to put us at our ease.

 

The first thing he told us was that Judge Swan had called to say that an open' telephone line had been established between the clerk's office in New Haven and Sing Sing, the New York state prison where the Rosenbergs were being held because the federal authorities were borrowing its electric chair for that evening. We looked hastily at our watches. It was about 2:30 in the afternoon. As Judge Frank saw us glance at the time, he said, "All right. Present your case."

 

We argued as we had never argued in our lives. We put forward all the arguments. When we tried to cut short any point, worrying about the time, Judge Frank would interrupt, saying, "No, develop that point. Lay it all out." Afterward he would say, "Fine. Develop the next point." And we did.

 

At last we were finished. We had been talking and arguing for more than an hour. We looked up at him, and he looked at us and was quiet for a moment. Then he said something that I shall never forget. He said to us in soft, slow words, "If I were as young as you are, I would be sitting where you are now and saying and arguing what you are arguing. You are right to do so. But when you are as old as I am, you will understand why I"-and he paused, and repeated-"why I cannot do what you ask. I cannot do it."
 

We sat there stunned. This was Jerome Frank the liberal, Jerome Frank the progressive....We left without saying more than a formal goodbye to Judge Frank. Time was pressing furiously upon us, and we had only a few hours left to find another judge of the circuit. Everything in Judge Frank's words and tone made it abundantly clear that he could not be moved from his position. He said nothing to us and would not look at us as we left. His back was turned; he just stood there in the door, motionless....
 

Jerome Frank might, in a profound sense, have changed the course of American history that afternoon. He could not do it. He was a prisoner of the system he served. As a liberal, as a progressive, he had risen to a position of leadership in society. He would jeopardize the usefulness of those labels and, accordingly, the position they afforded him if he participated in the act of courage that Judge Swan, the conservative, was prepared to take. The labels themselves, Frank's "liberal" past, imprisoned him kept him from the course he would have taken if he were "as young as" we were. When we were "as old as" he was, he was telling us, we would understand that to preserve our position in society, we must compromise with those in control....

 

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