Did the Rosenberg Prosecutors Suborn Perjury?

The just-disclosed grand jury testimony of David Greenglass, the government's star witness in the 1951 espionage trial of Julius and Ethel Rosenberg, raises new questions about whether the prosecutors suborned perjury. The Rosenbergs were convicted and executed. The proof against Julius Rosenberg was strong. But the proof against his wife Ethel was weak; her guilt hinged mainly on the testimony of Greenglass, her brother.

Greenglass's grand jury testimony was released by Federal District Judge Alvin K. Hellerstein following a lawsuit by archivists, historians, and journalists to unearth additional material about one of the most famous and controversial criminal trials in U.S. history. Greenglass died last year, which under the terms of the suit allowed his testimony to be made public.

Absent from Greenglass's grand jury testimony, which he gave seven months before the trial, is any testimony, direct or indirect, that incriminates his sister Ethel. Indeed, Greenglass testified that he "never spoke to [Ethel] about this at all" - referring to Julius Rosenberg's delivery of atomic secrets to Russian agents. However, at the trial, Greenglass, for the first time, testified that Ethel typed her husband's handwritten notes for delivery to the Russians. And in its summation, the prosecution used her typing to argue, metaphorically, that Ethel "struck the keys, blow by blow, against her own country in the interests of the Soviets."

However, decades later, Greenglass admitted to lying at the trial and falsely accusing his sister Ethel in order to protect his wife Ruth. In his 2001 book, "The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair," Greenglass says that he was pressured by the prosecutors to commit perjury and did so to save his wife from prosecution. He suggests that his wife rather than Ethel had typed the notes. To be sure, Greenglass's grand jury testimony does not directly contradict his trial testimony - it simply omits critical facts about which he testified at the trial and which formed the basis for Ethel's conviction and execution. But the fact that his testimony differed so dramatically from the grand jury to the trial supports his claim that the prosecutors suborned perjury.

There is no question that had Ethel's lawyers been aware of Greenglass's grand jury testimony, they could have used it quite effectively to impeach Greenglass's credibility. By confronting him with his grand jury testimony, in which he essentially absolves Ethel of any involvement in the espionage plot, and makes no mention of her typing incriminating notes, Ethel's lawyers would have been able to suggest that his new testimony earned him a favorable deal and apparently saved his own wife from being charged. What happened that caused Greenglass to now accuse his sister?

The federal prosecutors - Irving Saypol, Roy Cohn, and Myles Lane - are not around to answer. And the most an observer can do is speculate on how it came to be that Greenglass pleaded guilty for a reduced sentence, changed his story for the trial to incriminate Ethel, which resulted in his wife Ruth not being charged at all. Did Greenglass's new account at trial result from his own new memory of the events, or was he coached and pressured by the prosecutors to change his story to accuse Ethel, against whom there was virtually no other proof?

Did the prosecution have an obligation to disclose to the defense Greenglass's grand jury testimony? Today, the rules of evidence absolutely require prosecutors to disclose to the defense all prior statements of a witness which the defense may use to attack that witness's credibility. Indeed, cross-examination of any witness by confronting that witness with his or her prior inconsistent statements, including significant omissions - as Greenglass's grand jury testimony certainly was - is probably the most common technique used to undermine a witness' credibility. The theory is that a witness who says one thing today, and something different tomorrow, is less trustworthy than a witness who tells consistent stories. Whether this theory is well-founded or not is debatable. But certainly the ability of a lawyer to confront a witness with his or her prior inconsistent accounts of an event may assist the jury to evaluate the witness's truthfulness and accuracy.

But in 1951 a prosecutor was not required to disclose to the defense prior statements of a witness, and certainly not required to disclose secret grand jury testimony. However, at the time, there was one major exception: prosecutors then, as now, are constitutionally and ethically required to play fair, and not to strike "foul blows." Prosecutors then, as now, were cautioned that to allow a key witness to give perjured testimony without disclosing the fact violates due process. Prosecutors then, as now, were cautioned by the Canons of Professional Ethics that it is the primary duty of the prosecutor "to see that justice is done," and that "the suppression of facts capable of establishing the innocence of the accused is highly reprehensible."

If Greenglass's grand jury testimony is the truth, and if his later acknowledgement that he lied at the trial is also true, then Ethel Rosenberg was not proved to have had any part in the espionage plot and was wrongfully convicted and executed. Unquestionably, the prosecution as a matter of fairness and justice had a duty to disclose his grand jury testimony to the defense. Now, 65 years later, we have this additional information to evaluate Greenglass's credibility. But the government had this information all the time. We'll probably never know exactly what the prosecutors did in engineering the convictions and executions of Julius and Ethel Rosenberg, but it is more than troubling to believe that Cold War hysteria drove them to design a prosecution that may have resulted in the conviction and execution of an innocent person.