The only other witness against L, namely, MAX FIRST: An t'y in reliance upon their convict ELITCHER, likewise attended high sc l and then college that there w ot enough evidence to justify a convi with SOBELL up to 1938. He testified that in 1939 he tion, counsel for SOBELL did not permit him to take and SOBELL had a conversation in regard to the Communist stand; that was a mistake, as it now appears; Party, and that ultimately he joined a cell of the Com- munist Party in Washington at SOBELL'S suggestion, and SECOND: The presiding magistrate showed his convi attended meetings of that cell for two or three months tion as to the defendant's guilt from the start; he d after May, 1939, and until 1941; that he continued to onstrated that before the jury; at over a hundred pla be a member of the Communist Party until 1948, one group in the record appears the evidence of his aid to of the party being known as the Navy Branch. He testi- government and its witnesses and his obvious hostili fied nothing further about membership in the Communist to the defendants and their counsel; Party, but said that he met SOBELL again in 1947 at the Reeves Instrument Plant in New York where SOBELL asked THIRD: The government introduced evidence to sl him if he knew of students who could be approached con- that SOBELL and his family had escaped to Mexico cerning espionage and obtaining classified material. stayed in a number of places under variations of name "SOBELL": since he did not take the stand, SOB The witness further testified that during the week gave no explanation of his flight, and that undoubte preceding Labor Day in 1944. he had a conversation with prejudiced him before the jury: worse than that, SOBELL, and that SOBELL was angry when he heard that jury was not given any evidence as to the manner ROSENBERG had mentioned his name; that SOBELL was em- which he had been kidnapped by the Mexican police, wi ployed in the General Electric Plant in Schenectady in out process, and had been turned over to the F.B.I. 1946, and then inquired of the witness whether there was the border; although the government must have kn any written material available as to his work; that that it was false, it introduced a card made by an Im SOBELL suggested or "implied" that the witness was to gration Inspector at the time SOBELL was forcibly see ROSENBERG about espionage business in 1946; that in turned to the United States, which card read "Depor 1947, when he met SOBELL at the Sugar Bowl Restaurant, from Mexico": since he did not take the stand, SOB he asked the witness whether his wife knew about the es- was not able to give the jury the facts to show tha' pionage business, and also asked the witness whether he had been kidnnpped from Mexico rather than being dep would let SOBELL know of any engineering students who ted; were "progressive"; that in June, 1948, he told SOBELL that he was leaving the Bureau of Ordnance, and that FOURTH: The government was allowed to introduce SOBELL asked him to do nothing about that until he had dence as to the activities of the Communists in the seen SOBELL and ROSENBERG, subsequently to which SOBELL nited States upon the theory that such activities w arranged a meeting between the witness and ROSENBERG; show the motives of these defendants as Communists; that at that meeting SOBELL and ROSENBERG both tried to that door was opened, the cause of the defendants, persuade him to stay at the Bureau of Ordnance because cluding SOBELL, was sunk; the first witness on the C ROSENBERG needed someone to work at that Bureau for es- munist issue was HARRY GOLD, a self-confessed spy, s pionage purposes. but that the witness adhered to his ing a thirty-year sentence, who would some day be ape determination to leave Washington. ing for parole. he had a Roman holiday on the witn stand, relating alleged activities of the Communi The witness finally testified that in July or August, with which the defendants were in no wise connected: 1948, when he was driving from Washington to SOBELL'S a matter of fact, he never even knew either SOBELL home in New York, he was followed by two cars and that the ROSENBERGS; that this created an atmosphere an when he told SOBELL this the latter was angry; that prejudice against the defendants which they could SOOBELL, asked him to go with him to deliver a 35 millime- possibly overcome is undeniable; upon the issue of C ter film can to ROSENBERG and that they drove to the mmunism another witness was our old friend, the ubiquit neighborhood of the Journal American Building, where ELIZABETH BENTLEY, who was allowed to testify at SOBELL got outof the car; that when SOBELL returned he length about her own Communist activities, though told him that ROSENBERG was not concerned about ELITCH- knew none of the defendants and never even mentio ER'S having been followed, and that he also admitted S0BELL's name. that he had once talked to ELIZABETH BENTLEY, but said that she had not recognized his voice; the last time Well, you ask me -- and your friends ask you -- the witness talked to SOBELL, was in June, 1950. this case was so patently full of holes, why did not Circuit Court of Appeals reverse a conviction based The foregoing testimony was the only evidence against that evidenced? Even lawyers ask me that. The answ SOBELL; it served as the basis for the thirty year sen- simple. In the Federal Judicial system, unlike tence; it was not corroborated by another witness; it practice in most of the state courts, the Circuit C came only from the lips of ELITCHER who readily admitted of Appeals, that is the court of review, "is not all that he knew that he had committed perjury in 1947 in to consider the credibility of witnesses or reliabi applying for a government position, in executing a loy- of testimony. Particularly in the Federal Judicial alty oath and in concealing the fact that he was then a tem, that is the jury's province"; Mr. Justice Fra Communist; when he was interrogated about the instant opinion in behalf of the Circuit Court of Appe case by the F.B.I. in 1950, they told him that they knew (p. 1648). he was a Communist, and he was then fearful that he would be prosecuted by the United States government for Why that rule has become so well established in perjury. Federal Court is hard to say. History has not in quently shown juries to have been dead wrong. Bu In view of the weakness of the evidence against SOBELL, the Federal judicial system, the verdict of a jury, you naturally ask yourself why he was found guilty, ever induced by fear, or hysteria or prejudice, if There are several answers to that: proved by the very trial judge who probably impe that verdict, can never be set aside on the ground it was based on false or unreliable testimony.