De Toledano,









M. Wesley




INT: Right, starting from the phone call, could you just describe to me the final appeal of the Rosenbergs and what the judge said to you.

AK: Then we had as young lawyers, the most upsetting experience of olives. We were sitting in our office, the middle of June, we got a telephone call from Washington, and it was Manny Block who was calling us, who was the lawyer for Julius and Ethel Rosenberg and we had helped him a little bit during the course of the trial, just doing a little bit of research for him, but we weren't involved in the case. And he gets on the telephone and he says, the most terrible thing has happened, the execution date was set for mid June and we got a wonderful stay of the execution from Justice Douglas. And we said on the phone, so everyhing's fine, the court's not in session now, so everything is perfect for the whole summer, till they come back. And he said, you don't know what happened. The Chief Justice did something that the court has never done before. He called all of the members of the court from their vacation, to have an emergency meeting in which they vacated throughout Justice Douglas's stay and ordered the execution to go ahead in two days from now. And then Manny said to us, as lawyers, you've got to do something, we need your help. So what we had to do was spend all night thinking about what was the way in which we could get another stay of the execution. And we looked at the papers of the case and realised suddenly that this was incredible, because they had been sentenced to death under a statute which said, '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. So that this statute could not be applied to them. And it was illegal and unconstitutional to order the execution. So we said, great, we can work out a write of habeas corpus and we will go immediately tomorrow to the judge, who was the sitting judge, down below, the one who had ordered the execution and he would deny the writ so we could go on appeal to the Court of Appeals in Connecticut. So, Mike Pearlman and I, he was my partner, we then take a car and we rush up to Newhaven and we got our friends, Bob Lewis, who was a young lawyer working with us then, and we went down to New York City, to where the judge who had ordered the execution was sitting, and we were up in Newhaven and we get a telephone call from Bob and he says, all right, go ahead. He's denied the writ. We rush into the office of the then Chief Judge, Judge Swann, of the Court of Appeals, sitting there in Connecticut, in Hertford, and we tell him that... we show him our papers and then we had the wildest experience, because we expected he would just deny it. He kept asking us questions about it and then he sent his clerk out to get the copy of the statute and he looks at us and he says, 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 we've got to get at least one other to agree with me that we have to stay the execution. And we said, oh this is terrific. And we said, who should we go to to ask? And he said, well, the only one who's really here is Jerome Frank and that was like a miracle to us. Jerome Frank was the most liberal judge ever appointed to the federal bench and he had been working very closely in the new deal period with Franklin Roosevelt and everybody admired him as a progressive judge. So we said, great, we're in it, we've got it. How are we going to get to his house? We don't know the directions. What does Chief Judge Swann say? 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 talked to him on the phone and he's there in his living room waiting for us. We walk in... first time we were ever in the house of a judge and he asks well...

INT: So could you tell me the story, starting from the point when you arrived at Jerome Frank's house on the final appeal and he said to you.

AK: And then we walked into Judge Jerome Frank's living room, and there he was 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 whole approach for the writ of habeas corpus and we'd seen Judge Swann and then he kept asking us questions about our whole analysis and what cases it was based on. And I felt like I was back in my class at law school where the professor was going... And we kept talking for over an hour with him and he kept asking questions and I could see he was nodding his head and I felt, well, we're getting somewhere. And then we finish it and it's about three in the afternoon and the executions had been set for six o'clock in the evening, right. The penitentiary that they were in. And we knew that Judge Swann had set up emergency telephone lines to the penitentiary, in the event that another judge would be willing to say, I'll be with you on this emergency appeal. And we finished the argument and then Judge Frank looked at us and he says something that we have never, never forgotten. He said, if I were as young as you are, I would be sitting there saying the same things you're saying, arguing the same points you're arguing, making the same argument 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 stands up, turns his back to us, walks away and we're devastated. And we were finished. And we could not, at that moment, understand. What did he mean? He was as young as we are? If he was as young as we are, he would agree with us? But now, something is going on that he can't do it. And we go out, we're devastated. We get in the car. There was a Connecticut lawyer who was with us, who we'd worked with very closely, Sam Gruber, and we're driving back to New York and we hear on the radio in the car that Ethel and Julius have been executed and we're saying, what has happened? And then we began to sense something which in later years we understood so clearly. And that was that Jerome Frank, as the leading liberal judge, was terrorised himself and frightened by the atmosphere of fear in the country, that if he as a liberal would do something to save Julius and Ethel Rosenberg's life, he would be charged as a Commie. And that liberals would be attacked, but then I realised something else. Deep inside of me, I thought of, since I always recognised I was a little Jewish boy from Brooklyn and Jerome Frank was Jewish, that that was moving Jerome Frank also, the fear that because Julius and Ethel were Jewish, that it was a Jewish...


INT: OK, so just starting from when you heard the news from Frank, from Judge Frank, can you just tell me what happened afterwards.

AK: Well, we were absolutely devastated by this, because we had thought we were going to get a second judge who would agree with Judge Swann, two out of the three of them would be able to stop up the execution and we felt absolutely defeated and lost. And we got into our car and we're driving away. And then, when our radio was on, we hear the news that Julius and Ethel have been executed and we're totally devastated. And then, we suddenly began to talk out, what had really happened? And here, what had happened was the most liberal judge had refused to go along with Judge Swann, who was a conservative, because he was frightened to death, because of the atmosphere of fear in the country that if he as a liberal would vote to save these convicted atomic spies, then he would be attacked as a Commie and all liberals would be attacked, once again, as aiding the Commies. And then I realised there was another aspect too, that he, like me, was Jewish and Julius and Ethel were Jewish and inside of himself was the fear that if he, a Jewish judge, saved two Jewish atomic spies, saved their lives, tthe Jewish people would all be attacked as Commies and agents and aiders of the spies. So we were just devastated then and we realised that's what was going on inside of Jerome Frank at the time. And I said to Mike Pearlman, what do we want to be lawyers for, this impossible, devastating. And Sam Gruber, who was a little older than us, said something that we have never forgotten, he said, you've got to continue to fight for fundamental freedoms, for the fundamental constitutional rights of the people of this country, even when you lose. And that was the lesson we learned as a result of this experience.