   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.



