ESPIONAGE: The Last Appeal

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It was Monday, the last day of judgment before the U.S. Supreme Court recessed for summer vacation. It was also, or so it seemed, the last hope before the bar of justice for Julius and Ethel Rosenberg. For the sixth time, the mousy little engineer and his wife, waiting in Sing Sing's death house, had petitioned the highest tribunal, this time for a stay of execution and review of their trial. For the sixth time, a majority of the nine Justices rejected a Rosenberg appeal.

Across town at the White House gate, hundreds of picketers marched with pro-Rosenberg placards; opposing demonstrators carried signs that read "Kill the Dirty Spies." A stream of mail from every quarter of the globe flowed to the President's desk. The Red campaign to "save the Rosenbergs" may have inspired the pleas, but many of them came from non-Communist clergymen and scientists, from liberals and humanitarians, from those who thought it bad politics to let the Communists have "martyrs" for their propaganda. At the focus of pressure, Dwight Eisenhower did not flinch.

Then, as the clock ticked on toward 11 p.m. Thursday, the hour of death for the spies, Supreme Court Justice William Douglas acted alone. Unexpectedly, the court having recessed for the summer, he granted the stay of execution that the full court had denied. That touched off, within the next 24 hours, one of the most dramatic and novel episodes in all the august annals of the U.S. Supreme Court.

Two "Interlopers." On Tuesday morning, while most of his fellow Justices were packing their vacation bags, Douglas had listened in his chambers to two sets of lawyers: the Rosenbergs' regular counsel, and a couple of earnest, frenetic newcomers to the case, Fyke Farmer of Nashville and Daniel Marshall of Los Angeles.

The newcomers won Douglas' ear. They were an interesting pair. Farmer, 51, a well-to-do corporation lawyer, an Episcopalian and a Yaleman, gave up his legal practice about five years ago, devoted himself to the cause of world government, is suing the U.S. Government for recovery of two-thirds of his income tax because the two-thirds are used for war purposes. Marshall, 50, a Roman Catholic and equally a crusader, mostly for liberal causes (against restrictive racial covenants in real-estate deals, for Negroes in the Los Angeles Bar Association, etc.), is described by his wife as a "lifelong Franklin Roosevelt Democrat."

Both Farmer and Marshall got interested in the Rosenbergs through correspondence with a professional soapbox orator and left-wing pamphleteer, Irwin Edelman of Los Angeles. Technically hired as counsel by Edelman who claimed legal status as "next friend" of the Rosenbergs, the two lawyers developed a special argument. Its gist: the Rosenbergs were wrongly sentenced under the Espionage Act of 1917, which allows the judge to fix the death penalty; they should have been sentenced under the Atomic Energy Act of 1946, which provides the death penalty for atomic espionage only when a jury so recommends.