davidaulloa/AmericanStories huggingface dataset:
Evening star., 1953-06-20
Lawyers Cannot
Waive Their Error

4Hlru. am aware also OF
the argument that MIR. Justice
Douglas should not have con-
sidered and that we should not
now consider the point here
involved because the Rosen-
bergs' lawyer had not origin
ally raised it on appeal. I
cannot believe, however, that
If the sentence of a citizen to
death is plainly illegal this
court would allow that citizen
to be executed on the ground
that his lawyers had waived"
plain error. An illegal execu-
tion is not less illegal because
a technical ground of waiver"
is assigned to justify it. Com
pare Bowen v. Johnston, 306
U. S. 10. 26.
Fourth, the inadequate oral
arguments before this court
have left me with the firm
conviction that the applica-
bility of the penal provisions
of the Atomic Energy Act of
1916 to this case presents a
substantial and serious ques-
ton. This I think is fully
demonstrated by the opinion
written by Mr.. Justice Doug
las when he granted the stay
order, a copy of which is at
tached by him as an appendix
to his opinion, with which
opinion I agree. 1t is my
view based on the limited
arguments We have heard
that after passage of the
Atomic Energy Act of 1946 it
was unlawful for a judge to
impose the death penalty for
unlawful transmittal of atomic
secrets unless such a penalty
was recommended by the jury
trying the case. I think this
question should be decided only
after time has been afforded
counsel for the Government
and for the defendants to
make more informed argu-
ments than we have yet heard
and after this court has had
an opportunity to give more
deliberation that it has given
up to this date. This I think
would be more nearly in har-
mony with the best judicial
traditions.
I may add that I voted to
grant certiorari originally in
this case. That petition for
certiorari challenged the fair
ness of the trial. It also chal-
lenged the right of the Gov
ernment to try these defend
ants except under the limited
rules prescribed by the Con-
stitution defining the offense
OF treason. These I then be-
lieved to be important ques-
tions. In motion for re-hear-
ing the arguments as to the
unfairness of the trial were ex-
panded and I again voted for
review. I have long thought
that the practice of many of
the States to require an auto
matte review by the highest
court of the. State in cases
which involve the death penal
ty was a good practice.
I should add my regret that
the rush and pressure of this
case has deprived me of any
Evening star., 1953-06-20
Texts Of Supreme Court Ruling and Justices Opinions

sion that there were substan-
tial grounds to believe the
death sentences of these two
people were imposed by the
District judge in violation of
law. I agree with MFR. Justice
Douglas. The Government
contends, however, that the
death sentences were properly
imposed under the Espionage
Act of 1917, so U. S. C. 80,
which gives a District judge
unconditional power TO impose
, the death penalty for violation
of that act. But the Atomic
Energy Act, AZ U. S. c. 1910,
passed in 1916. appears to have
taken the death sentencing
power from District judges in
cases of atomic energy espio-
mage, except where juries
recommend the death sentence
and where there are allegations
and proof that atomic energy
information has been unlaw-
fully transmitted with intent
to injure the United States.
The indictment here charged
a conspiracy alleged to have
continued from June 6, 1914,
to June 16, 1850. Thus the
alleged conspiracy covered one
period of conduct where the
1917 act plainly governed and
another period of conduct
after the Atomic Energy Act
went into effect. The Rosen-
bergs were charged with con-
spiracy to disclose atomic sec
rets as we'll as other kinds
of secrets. Under these cir
cumstances it would more
nearly fit into the general
canons of construction to hold
that a District court could
impose sentence only under
the less harsh statute.
I am not unaware of the
Governments argument that
this court can and should give
full effect to both these
statutes, one of which deprives
the District Court of uncondi-
tional power to impose the
death sentence and one which
grants such unconditional
power. This would be a
strange argument in any case,
but it is still stranger in a case
which involves matters Of life
and death. The stay of Mr..
Justice Douglas is based en-
tirely on his desire to have this
matter passed upon in due
course and after proper delib-
Grafton in a habeas corpus
proceeding brought in District
Court and followed through to
this court. That is at it should
be. Judicial haste is peculiar
ly out of place where the death
penalty has been imposed for
conduct part of which took
place at a time when the Con-
gress appears to have barred
the imposition of that death
penalty by District judges act
ing without a jury's recon-
l11endation. And it seems
manifest to me that this court
has not had time or opportu-
nifty for sufficient study to give
an informed decision on this
important Question
Evening star., 1953-06-20
Counsel EIbowed
Out of Own Case

The Rosenbergs throughout
have had able and jealous
counsel Of their own choice.
These attorneys originally
thought this point had no,
merit and perhaps also that
it would obscure the better
points on which they were en-
deavoring to procure a hearing
here. OF course, after a justice
of this court had granted Edel-
man standing to raise the
question and indicated that he
is impressed by its Substan-
tiality, counsel adopted the
argument and it became neces-
sary for us to review it. They
also shared their time and the
counsel table with the Edel-
man lawyers thus admitted as
attorneys-at-large to their
case. The lawyers who have
ably and courageously fought
the Rosenbergs' battle through
out then listened at this bar
to the newly imported counsel
make an argument which
plainly implied lack of under
standing or zeal on the part
of the retained counsel. They
simply had been elbowed out
of the control of their case.
Every lawyer familiar with
the working of our criminal
courts and the habits of our
bar will agree that this prece-
dent presents a threat to ord
erly and responsible repreSen-
tation of accused persons and
the right of themselves and
their counsel to control their
own cases. The lower court
refused to accept Edelman's
intrusion but by the order in
question must accept him as
having standing to take part
in, or to take over, the Rosen-
berg's case. That such disord-
erly intervention is more like
ly to prejudice than to help
the representation of accused
persons in highly publicized
cases is self-evident. We dis
countenance this practice.
Vacating this stay is not to
be construed as indorsing the
wisdom or appropriateness to
this case of a death sentence.
That sentence, however, is
permitted by law and, as was
previously pointed out, is
therefore not within this
courts power of revision. 344
U, S. 889,
Evening star., 1953-06-20
Black Dissent.
Justice Blacks dissent to

Justice Blacks dissent to
Supreme Courts action:
1t is argued that the court is
not asked to "act with unseem-
ly haste to avoid postponement
Of a scheduled execution"
I do not agree. I do not be-
lieve that Government counsel
or this court has had time or
an adequate opportunity to
investigate and decide the very
serious question raised in ask
ing this court to vacate the
stay granted by Mr.. Justice
Douglas.
The oral arguments have
been wholly unsatisfactory due
entirely to the lack of time for
preparation by counsel for the
Government and counsel for
the defendents.
Certainly the time has been
too short for me to give this
question the study it deserves.
The following are some of
the reasons why I think the
Court should not at this time
upset the considered rulings of
Mr.. Justice Douglas.
First, the Government ar
CUES that this court has power
to set aside the stay granted
by Mr.. Justice Douglas. I
think this is doubtful. I have
found no statute or rule of
court which permits the full
court to set aside a mere tenn
porary stay entered by JUS
tice in obedience to his stat
utory obligations. Moreover,
it is a commonplace for judges
to grant stays in vacation.
This is a healthy and neces-
sary court custom. There have
been prior instances where va
cation stays of individual
justices have been set aside
by the full court before the
next regular term, but no
such cases have been pointed
out in the Solicitor Generals
argument and I have been able
to find none. So far as I can
tell, the courts action here is
unprecented.
Evening star., 1953-06-20

District and vicinity-Fair to-
night, lowest around 70. Tomor-
row, fair, hot and more humid.
Maryland and Virginia-Fair
and rather warm tonight, low
est 66-72. Tomorrow, partly
cloudy, hot and humid, with
chance of scattered thunder
showers in the mountains by
Evening star., 1953-06-20
Jockson's S Opinion

Tert of an opinion By Justice
Jackson in denying the stay of
execution:
This stay was granted upon
such legal grounds that this
court cannot allow it to stand
as the basis upon which lower
courts must conduct further
long-drawn proceedings.
The sole ground stated was
that the sentence may be gov
erned by the Atomic Energy
Act of August /, 1916, instead
Of by the earlier Espionage
Act. The crime here involved
was commenced June 6, 1914.
This was more than two years
before the Atomic Energy Act
was passed. All over acts re-
lating to atomic energy on
which the Government relies
took place as early as January,
1945. -.
The Constitution, Art. I, Sec.
9, prohibits passage of any ex
post facto act. If Congress
had tried in 1946 to make
transactions of 1914 and 1945
offenSeS. we would have been
obliged to set such an act
aside. To open the door to
retroactive criminal statutes
would rightly be regarded as
most serious blow to one of
the civil liberties protected by
our Constitution. Yet the sole
ground of this stay is that the
Atomic Energy Act may have
retrospective application to
conSpiracies in which the only
overt acts were committed be-
fore that statute was enacted.
We join in the opinion by
Mr.. Justice Clark and agree
that the Atomic Energy Act
does not, by text or intention,
supersede the earlier Espio-
mage Act. 1t does not purport
to repeal the earlier act, nor
afford any grounds for SPELL
ing out a repeal by implication.
Each act is complete in itself
and each has its own reason
for existence and field of
operation. Certainly prosecu-
ton. conviction and sentence
under the law in existence at
the time of the overt acts are
not improper. 1t is obvious
that an attempt to prosecute
under the later act would in
all probability fail.
This stay is not and could
not be based upon any doubt
that a legal conviction was
had under the Espionage Act.
Application here for review of
the Court of Appeals decision
affirming the conviction was
refused, 344 U. S. 838, and
rehearmg later denied, 344
u. S. 889.
Evening star., 1953-06-20
Reds Massing $1,000
Fresh Troops Along
East Central Front
BY the Associated Press

SEOUL, June 20.-The Reds
today massed some 10000 fresh
troops along the East Central
Korean front-scene the past
week Of the greatest Communist
offensive in two years.
The United States 9th Army
reported the Red buildup as
the Air Force announced allied
air power suffered its heaviest
losses Of the war last week, help
ing to stall the great Commun-
ist drive.
Two new. Red divisions were
reported moving into the Puk-
han River lines, the sector where
perhap 10000 Communits pushed
South Korean troops back as
much as two miles Sunday and
Monday.
Fighting was light, however.
19 WarplaneS Lost.
Nineteen planes - including
Sabre jets-went down behind
Communist lines, the Air Force
announced. Fourteen we're lost
to anti-aircraft guns and five to
unexplained causes.
None was lost in dogfights, in
which Sabre jets shot down 19
Red MIG jets.
Day and night, United Ma
tions' warplaneS in record waves
dumped bombs and jellied gaso-
line on Communist troops to play
a major role in stemming the
greatest Red drive since 1851
a drive which dented South Ko-
rean lines up to 2 miles.
South Koreans Shelled.
Nine Sabre jets were shot
down by Red guns, and three
more failed to return. Previous
high Sabre toll for a week was
four for the period ending
April 10.
One Mustang and three Thun-
derjet fighter -bombers and one
twin-jet Australian Meteor fight
er-bomber also were lost to
ground fire. The loss of Star
fire night fighter and one Thun-
deriet also was unexplained.
The Communist push has slack
ened to platoon and company
sized assaults, while the Reds
apparently probe for weak spots
in South Korean lines on the
east-central front.
Evening star., 1953-06-20

opportunity to do more than
hastily sketch my view Of
these important question
raised. I have not been al
lowed to give the time and
study to this opinion that is
generally devoted to decision
and opinions in important
cases.
It is not amiss to point out
that this court has never re-
viewed this record and has
never affirmed the fairness of
the trial below. Without an
aff1rmance of the trial by the
highest court of the land there
may always be questions as to
whether these executions were
legally and rightfully carried
out. I would still grant certi-
orari and let this court ap-
prove or disapprove the fair
ness of these trials"
Footnote:
The Government cites %
u. S. C. 2106 and % U. s. C.
1851 as statutory authority
for the courts action in dis
solving the stay granted by Mr..
Justice Douglas. Neither stat
ute authorizes the courts ac-
ton. Section 2106 provides:
THE Supreme Court or any
other court of appellate jurisr
diction may affirm, modify,
vacate, set aside or reverse any
judgment, decree or order of a
court lawfully brought before
it for review, and may remand
the cause and direct the entry
of such appropriate judgment,
decree, or order, or require
such further proceedings to be
had as may be just under the
circumstances"
But the plain words Of this
section exclude the case here.
Those words say this court
may affirm, etc.. any "judg-
ment. decree or order of a
court but no court order is
before us. Nor can the Govern
ment take comfort in section
1861. 1t says only that the
Supreme Court and all courts
established by act of Con-
gress may issue all writs neces-
sary or appropriate in aid of
their respective Jurisdictions
and agreeable to the usageS
and principles of law" The
statute says nothing about dis
solution of a stay order.
Evening star., 1953-06-20
Clark S Opinion

Justice ClGrk'S Opinion in
denying the stay OF execution:
I agree with and join the
opinion Of the court. but wish
to record these additional
views. Seven times now have
the defendants been before
this court. In addition. the
chief justice, as we'll as in
dividual justices, have consid-
cred applications by the de-
PENDANTS. The Court of
Appeals and the District Court
have likewise given careful
consideration to even more
numerous applications that has
this court. .t ..'~~ .'
The defendants were SEN
fenced to death on April S,
1851. Beginning with our re-
fusal to review the conviction
and sentence in october, 1852,
each of the justices have given
the most painstaking consid-
Grafton to the case. In fact,
all during the past term of this
court one or another facet of
this litigation occupied the at
tention of the court. At a Spe-
cial term on June IS, 1858. we
denied for the sixth time the
defendants plea. The next
day an application was filed
contending that the penalty
provisions of the Atomic En-
ergy Act governed this prose-
cution; and that since the jury
did not find that the defend
ants committed the charged
acts with intent to injure the
United States nor recommend
the imposition of the death
penalty the court had no power
to impose the sentence of
death. After a hearing Mr..
Justice Douglas, finding that
the contention had merit,
granted a stay of execution.
The court convened in special
term to review that determi-
nation. CT. Elk parte quirin,
BIT u. S. l (1942).
Evening star., 1953-06-20

Read Supreme Court order.
on fine points of procedure or
a party'S technical standing to
claim relief. Nor did Mr.. JUS
tice Douglas lack the power
and. in view of his firm belief
that the legal issues rendered
him were substantial, he even
had the duty to grant a tenn
porary stay. But for me the
short answer to the contention
that the Atomic Energy Act
of 1916 may invalidate defen-
dants' death sentence is that
the Atomic Energy Act cannot
here apply. 1t is true that Sec.
10 CB) (2) and 90 of that
act authorizes capital punish
ment only upon recommended
ton of jury and a finding
that the offense was commit
ted with intent to injure the
United States. (Notably, by
that statute the death penalty
may be imposed for peacetime
offenses as well, thus exceeding
in harshness the penalties pro-
vided by the espionage act.)
This prosecu ion. however,
charged a wartime violation
of the Espionage Act of 1917
under which these elements
are not prerequisite to a sem
tence of death. Where Con-
gress by more than one statute
proscribes a private course of
conduct, the government may
choose to invoke either appli-
cable law: "At least where
different proof is required for
each oftenSe. a single act or
transaction may violate more
than one criminal statute"
United States v. Beacon Brass
Co., 344 U. S. 43, As G952) f.;
see also United States v. No
week, 273 U. S. 2O2. 2O6
Q92D; Gavieres v. United
States, 220 U. S. 338 1911),.
Nor can the partial overlap of
two statutes work a pro tanto
repeater of the earlier act. Ibid.
1T S a cardinal principle of
construction that repeals by
implication are not favored.
When there are two acts upon
the same subject, the rule is
to give effect to both if pos
sible . The intention of the
legislature to repeal must be
clear and manifest It is
not sufficient z. 3. to establish
that subsequent laws cover
some or even all of the cases
provided for by (the prior
acO; for they may be merely
affirmative, or cumulative, or
auxiliary There must be a
positive repugnancy between
the provisions of the new law,
and those of the old. " United
States v. Borden Co., 3O8 u. S.
1873, 1913 1880. Otherwise the
Government when charging a
conspiracy to transmit both
atomic and non-atomic secrets
would have to split it's pros
ecution into two alleged
crimes. Section 10 (B) (6) of
the Atomic Energy Act itself,
moreover. expressly provides
that Sec. 10 shall not exclude
the applicable provisions of
any other laws ;" an un-
mistakable reference to the
1917 Espionage Act. Therefore
this section of the Atomic En-
ergy Act. instead of repeating
the penalty provisions of the
Espionage Act, in fact pre-
serves them in undiminished
force. Thus there is no war;
rant for superimposing the
penalty provisions of the later
act upon the earlier law.
Evening star., 1953-06-20
Overt Acts Committed
Before Act Was Effective

In any event. the Govern
ment could not have invoked
the Atomic Energy Act against
these defendants. The crux of
the charge alleged overt acts
committed in 1914 and 1945,
years before that act went into
effect. While some overt acts
did in fact take place as late
as 1850, they related princi-
Evening star., 1953-06-20
Methodists at Luurel
To Dedicate Building

DR.. Philip C. Edwards, super
intendent of the Washington
East District. Baltimore Meth
odist Annual Conference. will
speak at the dedication of the
new educational building of the
First Methodist Church, Laurel,
Md, tomorrow.
The 100000 structure will be
consecrated at 3 pm. with the
Rev. Stanley j. Mcfarland. pas
tor, and several former pastors
taking part in the ceremony.
Evening star., 1953-06-20

late afternoon.
Wind-Gentle, mostly south to
southwest tonight, increasing to
1920 miles per hour tomorrow.
River Report.
(From u s EnGineers)
Potomac River cloudy at Harpers
Ferry and clear at Great Falls; Shen-
andoah cloudy at Harpers Ferry.
Humidity.
tReauinRs washington National Airport)
Yesterday Pct To-day Pet.
Noon -- SO Midnight -- 80
4 pm. ----.-- 62 8 am. ------ So
& pm. - 81
Evening star., 1953-06-20
Douglas Dissent

JuSttce Douglas assent to
courts action:
Wnen the motion for a stay
was before me, was deeply
troubled by the legal question
rendered. After IL hours of
research and study I conclud-
ed, as my opinion indicated,
that the question was a sub
Stantial question never pre-
sented to this court and never
decided by any court. So I
issued the stay.
Now I have had the benefit
of an additional argument and
additional study and ref1ec-
ton. Now I know that am
right on the law.
The Solicitor General says
in oral argument that the Gov
ernment would have been
/, laughed out of court IL the
indictment in this case had
been laid under the Atomic
Energy Act of 1916. / agree.
For a part of the crime alleged
and proved antedate that act.
And obviously no criminal
statute can have retroactive
application. But the Solicitor
General misses the legal point
on which my stay was ordered.
1t was this-whether or not
the death penalty can be i'm
posed without a recommended
tion of the jury for a crime
involving the disclosure of
atomic secrets where a part
of that crime takes place
after the effective date of the
Atomic Energy Act.
The crime of the Rosenbergs
was a conspiracy that started
prior to the Atomic Energy
Act and continued almost four
years after the effective date
Of that sact. The overt acts
alleged were acts which took
place prior to the effective date
OF the new act. But this is
irrelevant for two reasons.
First, acts in pursuance of the
conspiracy were proved which
took place after the new act
became the law. Second, un-
der Singer v. United States,
323 U. S. 338, no overt acts
were necessary; the crime was
complete when the conspiracy
was proved. And that con-
spiracy, as defined in the in
dictment itself, endured almost
four years after the Atomic
Energy Act became effective.
The crime, therefore, took
place in substantial part after
the new act became effective.
after Congress had written
new penalties for conspiracies
to disclose atomic secrets. One
OF the new requirements is
that the death penalty for
that kind of espionage can be
imposed only if the jury rec
ommendS it. And here there
was, no such recommendation.
To be sure, this espionage in
cluded more than atomic Sc
crets. But there can be no
doubt that the death penalty
was imposed because of the
Rosenbergs' disclosure of
atomic secrets. The trial judge,
in sentencing the RoSenbergs
to death, emphasized that the
heinouS character of their
crime was trafficking in atomic
secrets.
Judge Emphasized
Atomic Energy Aspects
He said:
scr hal;a,,A Y,~,,. zA-L~k T.
Evening star., 1953-06-20
The Weather Here and Over the Nation

Record Temperatures This Year.
Highest, %, on June 9.
Lowest. ~. on March 2.
High and Low Of Last - Hours.
High. s5. at 3:2O pm.
Low. 81. at 5:55 am
Evening star., 1953-06-20

but were refused. They also
inform us that they have IL
more points to present here
after. although the authorized
counsel do not appear to have
approved such issues.
Evening star., 1953-06-20
Comparison Made
OF 2 Lows Involved

Second. the stay Of Mr.. JUS
tice Douglas in this case was
based pm his studied conclu-
Evening star., 1953-06-20
Congress in Brief

House and Senate:
In recess until Monday.
No major committee meetings
Evening star., 1953-06-20
Atomic Energy Act
Cannot Here Apply

Human lives are at stake;
we need not turn this decision
Evening star., 1953-06-20

Precipitation.
Monthly precipitation in inches in the
capital (current month to date):
Evening star., 1953-06-20

The Sun and Moon