   Thp r,~'  ~t~'~r witness against(     -I, namely, MAX            FIRST:  Ai(     t'y in re!i.~uiu  `icon their c(~nvir
ELITC!(ER, likewise attended hi~J'i s~,    :ind then college      that there w~~ ~)t enogh evidence to justify a cun~
with SOBELL iip to 19.38.  He testified that in 1939 he           tion, counsei far SO~~~L did n()t permit him to take
and SO[3ELL had a conversation in regard to the Communist        stard;  that was a mistake. as it now appears;
Party, and that ultimately he joined a cell of the Corn-
.~unist Party in Washington at SoBEl~'S suggestion, and            SECOND:  The presiding magistrate showed his conv.
attended meetings of that cell for t~) 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 pl.i
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 hostile
fied nothing further about membership in the Communist           to the defendants and their counsel;
Party, but said that he bet SOBELL again in 1947 at the
Reeves Instrument Plant in New York where SOBELL asked             ThJIRD:  The government introduced evi~1ence to ~)
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,  -Op
  The witness further testified that during the week             gave no explanation of his fliglit, and that undoubt~
preceding Labor Day in 1944. he had a conversation with          prejudiced him bcfore 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 t'irned over to the F.B.I.
1946, and then inquired of the witness whether there was         the border  al though the government m:st have kp
any written material available as to his work;   that            that it w..is false, it introduced a card made by an Ir
SOBELL suggested or "implied' that the witness was to            gration Inspector at the time ~OI3ELL was forcibly
see ROSENBERG about espionage business in 1946;  that in         turned to the United States, which card read "Depor
1947, when he met SOBEl,L at the Sugar  Bowl Restaurant,         from Mexico"   since he did not take the stand, 59'
he asked the witness whether his wife knew about the es-         was not ahle 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 de;'
would let SOBELL know of any engineering students who            ted;
were `progressive";  that in June, 1948, he told SOPEL
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
been 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 hecause           cluding SO~iL, was sunk,  the-first witness on the t'
ROSENBERG needed someone to work at that Bureau for es-          munist issue was HARRY tOLD, 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 witp.
                                                                 stand, relating alleged activities of the Communi
  The witness finally testified that in July or August,          with wi~ich the defendants were in io 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 a.
when he told SOBELL this the latter was angry;   that            prejudice against the defendants which they could
SOmEii, asked him to go with him to deliver a 35 millime-        p(ssibly overcome is undeniable;  upon the issue of c
ter film can to Rn.SENBhRG .`~nd t.hat t1~ey drove to t!)e       mtjnism .`~i'~ Ii" r wi t:i".'.:.' w:ts (~i~r `)1(! ."ri en-I, the ubi~ui
neighborhood of the Journal American Building, where             E[lZAPETII [~~TLKY,  Wi" w'.t",' .`jllowed to testify at
SOBELL gotoutof the car;  that when SOnELL returned he           length at~ut her iiwn Communist activities, thou~~
told him that ROSENBERG i'as not concerned about ELITCH-         knew none of the def~n'Iants and never even menti
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 SOBElt, was in June, 1950.                 t'iis case was so patently full of holes, why did not
                                                                 Circuit Court of Appeals reverse a conviction hased
  The foregoing testimony was the only evidence against          that evidenced  Even lakers 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 ELITC!!ER who readily a&imitted       of Appeals, that is the court of review, "is not all
that he knew that he had committed perjury in 10.47 in           to consider the credibility of witnesses or reliabi
applying for a government position, in executing a loy-          of testimony.  Particulirly in the Federal Judicial
alty oath and in concealing the fact that he was then a          tei'i, that is the jury's province";  Mr. Ji~stice ~r.
Communist;  when he was interrogated about the instant           opinion in behalf of the Circuit Court of Appu:
case by the F.&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.  l?istory has not in
                                                                 quently shown juries to have been dead wrong,  Bi
  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, i
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,
