It was hard to remember just when Tuesday slipped over Monday and what filled each hour. We treated all time alike as we worked most of Monday night in our preparation to face Roy Rhodes. The Government had complied with our request for statements Rhodes made to the several investigatory agencies. We read through all the notes and listened to the tape-recorded interrogations conducted by Army counter-intelligence agents.
As each tape recording spun smaller, I realized why Tompkins had only begun to extract from this man the full story of his crime against his country. Rhodes had given the Russians information on national security matters, and the Government simply could not ask him to disclose in open court the secrets he had sold to the Russians: if Rhodes were to tell “all,” his testimony could rock the American diplomatic representation in Moscow and other foreign capitals.
To compound the problem this witness presented, we also learned from the tapes that he had given conflicting testimony on vital points, telling one story to the FBI and another to Army investigators. The jury was entitled to this knowledge of his duplicity, but how were we to demolish Rhodes’s testimony without making public the secret intelligence information?
It was almost three o’clock when I got to bed. I slept until nine, then quickly shaved and showered and read the morning headlines over breakfast of black coffee, ice water and a cigarette: GI SAYS WOMEN AND VODKA LED HIM TO SPY, GI TELLS OF SALE OF DATA TO SOVIET, GI ADMITS HE SPIED FOR RUSSIANS WHILE ON DUTY IN MOSCOW. One paper carried a picture of a smirking Roy Rhodes leaving the courthouse.
Judge Byers began the court day with a brief statement. He denied our motion to strike Rhodes’s direct testimony. Tompkins and I then approached the bench, and, out of hearing of the jury, I explained the conflict in Sergeant Rhodes’s out-of-court testimony. He agreed to my request that there should be a conference in his chambers and excused the jury, saying, “We will take a recess, members of the jury, for thirty minutes. I guess you had better wait in the jury room.”
A special assistant from the Army judge advocate general’s office and an Air Force colonel sat in on our conference. I began by telling Judge Byers that parts of the confessions Rhodes made to the military were still “classified” for security reasons and their disclosure would be against the best national interests of the United States.
“They concern this man’s activities in Moscow,” I continued, “and specifically show that he was informing on our own attempts to obtain intelligence there. Disclosure would publicly show that our own attachés in the Embassy were carrying out intelligence operations in Moscow.”
I went on to say that the prosecution had elected to put Rhodes on the stand. Now I was expected to cross-examine him. The prosecution, I said, had placed me in an outrageous predicament. As court-assigned counsel I was bound to do everything I could for my client; but I was also a United States citizen, still held a commission as a commander in Naval Intelligence, and had worked for three years in the OSS during World War II to help establish a permanent central intelligence system in this country. The last thing I wanted to see happen, I added, would be to have our intelligence apparatus hampered. Yet in my duty as defense counsel for Abel, I was compelled to bring before the jury the contradictory statements of Rhodes. I argued that for this reason, as well as the others I had voiced the day before, the entire testimony of Rhodes should be stricken from the court record.
The judge listened attentively, then agreed that the jury, in deciding whether they would believe anything that Rhodes said in court, should know that he had told more than one story about his activities in Moscow.
“I am also troubled,” I said, “by the fact that this man’s statements, plus the transcriptions, show a shocking account of his life in Moscow. But I honestly believe the jury thinks of him as a fellow who got drunk to celebrate the arrival of his family and wound up in a pickle.
“I respectfully submit that a full reading of these transcriptions show this man was in the black market over there, and that this was primarily a money transaction with him. I believe the picture of this man, as presented to the jury, as a loving husband and father who happened to stray just is absurd, and I think that I am entitled to demolish that story and show he was passing out information for which the Russians paid him well.”
Judge Byers said, “I would like to provide Mr. Donovan with all the ammunition he is entitled to as a trial lawyer, in order to discredit this witness in the eyes of the jury.”
I repeated my contention that since the witness was linked to this specific case against Abel by so thin a thread, the proper solution was that Rhodes’s testimony be stricken from the record.
The judge would not grant my motion. The best I could obtain was a decision (unique in a capital trial, so far as I know) that His Honor would address the jury on the subject.
The jury filed back in, looking a little confused by the recess, which they had used to send out for coffee. When all were seated, Judge Byers faced them and read from his notes.
Judge Byers: Members of the jury, as you probably realize, when we took a recess it was for the purpose of a consultation . . . As a result of that conference, it was brought to light that the witness Rhodes gave certain statements to the Army and to the FBI during the month of June, 1957, and, I think, July and perhaps later.
Those statements were the basis of the consultation. At the end of the discussion, which was quite informal, the United States conceded that with respect to one item referred to in those statements this witness has made conflicting statements.
The subject matter involved was not brought out on his direct testimony because, in the opinion of the Government, it would not have been in the interests of national security for that subject to have been inquired into.
The conflict pertained to his version of his activities in Moscow, and an important incident which there occurred.
Both counsel have agreed that since this concession is before the jury—namely, the concession that the witness has made conflicting statements—the witness has been to this extent discredited. Such is the purpose of cross-examination.
Counsel for both sides have agreed that no useful purpose would be served by pursuing the subject further.
M/Sgt. Roy A. Rhodes, U.S. Army, was wearing the same cheap two-button suit, bright tie and soft shirt. The flickering grin was missing today and the angular face was set and hard.
I walked near the witness stand, looked quickly at Rhodes, and made a half turn.
Donovan: May it please the Court: would the defendant rise? [Abel rose.]
Q. Sergeant Rhodes, have you ever seen this man before?
A. No, sir.
Q. Do you recognize him as anyone you have ever known under any name?
A. No, sir.
Q. Do you know a man named Rudolf Abel?
Q. Do you know a man named Emil Goldfus?
A. No, sir.
Q. Do you know a man named Martin Collins?
A. No, sir.
Q. Do you know a man named Reino Hayhanen, also known as Vic?
A. No, sir.
Q. Do you know a man named Eugene Maki?
A. No, sir.
Q. Do you know a man named Mikhail Svirin?
A. No, sir.
Q. Do you know a man named Vitali G. Pavlov?
A. I don’t think so. No, sir.
Q. Do you know a man named Alekssandr M. Korotkov?
A. No, sir.
Q. Have you ever had any representative of Soviet Russia communicate personally with you in the United States?
A. No, sir, not to my knowledge.
Q. In the United States did you ever transmit to any Russian information concerning the national defense of the United States?
A. No, sir.
Q. Did you in the United States ever receive any such information for any Russian?
A. No, sir.
Donovan: Your Honor, I respectfully renew my motion to strike the man’s entire testimony.
Judge Byers: The same ruling.
Thirteen questions with but one thought and one expected answer. Despite the ruling (a foregone conclusion) our point of the irrelevance of Rhodes’s testimony had been made to the jury and recorded for review by an appellate court.
Q. Now, Sergeant, you testified yesterday concerning information you transmitted to Russian officials while you were stationed in Moscow. Is that correct?
A. Yes, sir.
Q. Did you at the time make any report on these treasonable activities to your superiors, to your superior officers?
A. No, sir.
Q. Did you make any report on these activities to any American official?
A. No, sir.
Q. What was the first time when you admitted these activities to any official of the United States?
A. To the FBI in last of June, I believe, of this year.
When Rhodes’s name had first been introduced the week before, his wife had denied he had been involved with the Russians. The Army transcriptions showed Mrs. Rhodes had known exactly what her husband was doing with his nights out in Moscow, but at her Eatontown, New Jersey, home she told newsmen, “It’s all a big lie. It’s the biggest frame-up I’ve ever seen.” She gave the stock answer to the stock question: she was “sticking by” her innocent husband. I didn’t see her in court.
Q. Now, yesterday, Sergeant, you testified that your first meeting with that Russian girl occurred after you were celebrating the expected arrival of your wife and daughter in Russia; is that correct?
A. That is the way I can recall it, yes, sir.
Q. Now, is it not true that long after your family arrived in Moscow, you attended a party in a hotel in Moscow at which uniformed Russians were present?
A. I did, yes, sir.
Q. Is it not a fact, sir, that subsequently that same evening you found yourself in bed with a girl?
Rhodes (hedging now): I found myself alone with her, yes, sir. I don’t recall myself in bed with her, no, sir.
Donovan (paper in hand): Would it help to refresh your recollection if I read to you a statement signed by you on July 2, 1957, and given to the FBI, which says, in part: “At this party in the hotel room we also ate and drank, and I proceeded to get drunk. I remember that someone in the party had a girl brought in, and I was talking to her. I am very hazy on what took place, but recall at one time in the evening everybody had evidently left the room and I found myself alone on the bed with this girl.”
A. That is true, I believe.
Q. Now, this is after your wife—
A. That’s right.
Q.—and daughter had arrived in Moscow?
A. That’s right.
Judge Byers: Just a moment. Is it correct to say that Mr. Donovan has been reading from a report furnished to him by the United States Attorney?
Tompkins: That is correct, Your Honor. It is a report we furnished Mr. Donovan yesterday pursuant to his motion.
Q. While you were in Moscow attached to the American Embassy, did you use any intoxicating liquors?
A. I did, yes, sir.
Q. What liquor?
A. Whiskey, vodka, almost anything you want to name.
Judge Byers: You mean anything you could get?
Rhodes: Yes, sir.
The testimony had a familiar ring. It was the story of Reino Hayhanen all over again. Even the judge’s interruptions were alike.
Q. In what quantities would you drink these liquors?
A. (bluntly) They weren’t moderate.
Q. (sternly) Isn’t the truth, Sergeant, that while you were in the American Embassy in Moscow—
Judge Byers: Just a minute. You don’t mean that.
Q. While attached to the American Embassy in Moscow, is it not true that for the last two months of your stay in Moscow you were drunk every day?
A. (calmly) I believe that is right, yes, sir.
Q. Now, you testified yesterday, Sergeant, that during the period of time you were selling information to the Russians you received in return between twenty-five hundred and three thousand dollars.
A. The best I can recall it, that’s about what it figured out.
Q. Isn’t it a fact that over the same period you deposited in your personal bank account approximately nineteen thousand dollars?
A. No, sir.
Q. How much did you deposit, to the best of your recollection?
A. That—I—can I explain that?
Q. No. I want the answer to the question. I want to know how much you deposited while you were in Moscow.
A. All right—
Judge Byers: Are you speaking now of the entire period?
Donovan: I was speaking, Your Honor, of the period during which he says that he received only twenty-five hundred to three thousand dollars from the Russians.
Rhodes: That is right. But my wages all went home.
Q. Again, is it not true that over the last year and a half you were in Moscow you deposited around nineteen thousand dollars in your bank account?
A. No, sir. I was in Moscow over two years, and my total wages went home, which would have run around fifteen thousand, maybe more, I don’t know. I never figured it up. Pay and allowance there would have run to eight or nine hundred dollars a month.
Q. Are you denying under oath that you deposited any such amounts of money in your bank account?
A. No. I said it went.
Q. You are not suggesting that all this was your salary as a sergeant?
A. That’s right.
Q. Do you deny making statements to Army interrogation officers in which you not only admitted that the nineteen thousand dollars was approximately right, but attempted to explain it on the ground that you were dealing in a black market in Russian rubles?
A. No.
Q. Don’t you remember making that statement?
A. Certainly, I made that statement.
Q. In October, 1952, for example, didn’t you write a check on your personal account in the amount of eleven hundred dollars to a Dr. Backerhock?
A. I did.
Q. What was it for?
A. I . . . I can’t recall what it was for.
Q. (impatiently) You are a sergeant in the Army. You mean you write so many eleven-hundred-dollar checks that you can’t recall why you made one out to a Russian doctor?
A. I have no idea that it was a Russian doctor. This check came up before.
Q. You just made them out to anyone?
A. As well as I can explain that one, because I have no recollection of the check.
Sergeant Rhodes had been a dutiful barracks-room soldier, by his own lights. His brass would be shined, his shoes polished and his uniform would have a sharp crease. World War II GIs had an expression to throw up to the likes of Roy Rhodes. They’d cynically say, “Man, you found a home in the Army.” But Roy Rhodes had betrayed the uniform he took such good care of, and sold out his Army home.
Q. Now, are you still a master sergeant in the United States Army?
A. I am still a master sergeant in the United States Army.
Q. Are you still drawing regular pay?
A. I am still drawing regular pay.
Q. What is the amount of that pay?
A. It would figure out, pay and allowance, about three hundred and fifty a month.
Q. You are still drawing this regularly?
A. That’s right, yes, sir.
Q. Now, with respect to this treason to which you have confessed—
Judge Byers: I think you ought to change the form of the question to “With respect to the activities which you say you conducted in Moscow.” I don’t think you should brand them. Treason is only possible in time of war.
Donovan: Would it be satisfactory to the Court if I rephrased it to ask him about his betrayal of his own country?
This brought the first objection from the prosecutor.
Tompkins: If Your Honor please, I think just the facts speak for themselves. We don’t have to characterize them.
Judge Byers: I think if you phrase the question so as to make it clear that you refer to the activities that he says he conducted in Moscow and for which he was paid, you will make your point, Mr. Donovan.
Q. With respect to your activities in Moscow with these Russians, and for which you received money from them, have you ever been court-martialed in—
A. I have not.
Q.—in connection with these activities?
A. No, sir.
Q. Have you ever been arrested?
A. No, sir.
Q. Have you ever been indicted?
A. No, sir.
Q. And you are still on duty drawing pay?
A. As far as I know, yes, sir.
By now the true character of Roy A. Rhodes, master sergeant, U.S. Army, was apparent and it was difficult to conceal disgust.
Q. Sergeant, I think you testified that you are a native-born American?
A. Yes, sir.
Q. Were you educated in this country?
A. I was.
Q. Did you ever hear of a man named Benedict Arnold?
A. Yes, sir.
Q. How does he stay in your mind as a figure in American history?
A. Not so good.
Q. I didn’t hear your answer.
A. I said, not so good.
Q. I asked you, how you would think of him?
A. I answered that. I said, not so good.
Q. Why?
A. I—
Q. Isn’t it because he betrayed his country?
A. I think so.
Q. Do you know enough history to know that even Benedict Arnold didn’t do it for money?
A. I know it.
Donovan: Sergeant, Benedict Arnold may have been the greatest traitor in American military history, but it was only until today.
I turned my back on the witness stand and walked away to the defense table. The courtroom was still. Then, the judge broke in.
Judge Byers: Is that a question?
Donovan: It is an attempted statement of fact.
Tompkins asked two questions on redirect.
Q. Sergeant, you are in arrest of quarters, aren’t you?
A. That is right, yes, sir.
Q. One more question. What do you mean by arrest of quarters?
A. I mean I can’t leave the post.
The prosecutor then suggested that my last statement in cross-examination be stricken from the record, saying, “It wasn’t a question. I think Mr. Donovan made the statement—”
Donovan: I didn’t want to make it on the record, Your Honor. I just wanted to make it.
Judge Byers: You had the satisfaction of making it. Now, are you willing that it be stricken from the record?
Donovan: Very well.
M/Sgt. Roy A. Rhodes was excused. In a subsequent colloquy at the bench, Judge Byers could not resist saying tersely to Tompkins and me, “Please notify me if the sergeant is proposed for a commendation.”
The remainder of the day was given over to the story of Abel’s arrest. We had gone through all this in our pretrial hearing with one exception—the FBI surveillance that led them to the Hotel Latham. This testimony became fascinating. The first witness was special agent Neil D. Heiner. It was the night of May 23, 1957, and he was watching Abel’s room on the fifth floor of 252 Fulton Street through binoculars—“Ten-fifties. That means they have a power of ten magnification and the fifty designates the millimeter width across the front of the lens.”
Q. Will you tell the Court and jury where you were?
A. I was in a position where I could observe the windows of studio or suite 505 at 252 Fulton Street. I was on the twelfth floor of the Hotel Touraine.
Q. Will you tell us what you saw, if anything.
A. Well . . . at about ten-forty-five P.M. I was watching the studio and I saw the lights go on—rather one light was turned on in the studio. I could see a male figure moving around in the room. From time to time it would pass in back of this light. There was a light suspended on a cord from the ceiling with a shield around it.
I could see that this man, he was unidentified, was middle-aged and was bald-headed. He had a fringe of gray hair around the edges. He was wearing glasses. And as I said before, he showed himself only momentarily. My view was—my view of the entire room was obstructed, except when he stood in front of the window. The lights remained on, and at about one minute before midnight I saw this man, in back of the light, put on a dark brown or dark gray summer straw hat, and it had a very bright white band. The band stood out. About a minute later, the light went out—the single light went out.
Q. Could you describe his clothing at all?
A. Yes, I could see that he had on a short-sleeved shirt. It hit him about, oh, an inch above the elbow. It seemed to be light-colored blue. He was wearing a tie. It was darker than—darker-colored. I couldn’t distinguish which color. And, as I said before, he was wearing glasses. I couldn’t see his entire face because his head was down. In other words, he wasn’t looking out the window so I could have a full front view of his face.
Q. What did you do after the light went out?
A. I had radio communications with other agent personnel who were on the street in the area surrounding the studio. When the light went out, I alerted the agents in the street . . .
The other agents were opposite 252 Fulton Street in the park plaza, sitting on benches under the trees or moving about in deep shadows. All were waiting. They could not see the windows of the studio but had a clear front view of the doorway.
Agent Joseph C. McDonald was one of those waiting.
Q. From where you were sitting in the park, could you see that front entrance?
A. Yes, sir.
Q. Now, will you tell us what you saw, if anything?
A. Shortly after midnight, it was twelve-two A.M., and at that time a man unknown to me, a white male, left 252 Fulton Street, and he had on a dark summer-type hat with about a two-inch white band, real white, and he had on a light tan-colored coat and dark-colored pants, and he was carrying a coat over his arm.
Q. Following your radio communication were you watching this doorway for any specific purpose?
A. Yes, sir. I was waiting to follow anyone that came out that door. He came out of the door and I followed him. He made a right turn and walked up Fulton Street to Clinton, walked up Clinton Street to Montague, turned the corner of Montague and entered the BMT subway. BMT Borough Hall subway station. [At this station, an elevator carries passengers from the street level to the subway platform.] The man had entered an elevator, and I entered the elevator with him.
Q. Now, at any time up to this present point while you were on the elevator with this unidentified individual, did you get a look at his face?
A. On the elevator, I did, sir.
Q. Would you recognize that individual?
A. Yes, sir.
Q. And is he present in court?
A. Yes, sir.
Q. Would you point him out, please?
A. He is sitting at the end of this table right here.
Maybe Abel recognized the FBI agent as a “tail” and maybe he didn’t, but they rode the elevator to the station level and then both walked to the end of the platform, standing about ten yards apart.
“There were quite a few people up at that end,” agent McDonald said, “so I stood in with the people. And he turned around and walked past me. Then the train came in.”
Abel got in the second last car. The agent took a seat in the end car but he was unable to see the suspect, so he changed his seat at the next stop. They rode to the City Hall station in Manhattan, where Abel caught a Broadway bus which took him to within walking distance of the Hotel Latham.
On June 13, Abel showed up at the Brooklyn studio again and the FBI agents were there to watch him. This time there were agents staked out in the Brooklyn General Post Office, which houses the Federal courthouse in which our trial was being held. Ronald B. Carlson was one of these agents.
Q. Now, about midnight, or shortly before, what did you see?
A. I saw an individual leave that address [252 Fulton Street]. He could be described best by his hat. He was wearing a dark gray hat with a white or light band. He was wearing a light sport coat and he left that address and went east on Fulton Street.
Every one of the agents mentioned Abel’s distinctive hat. I had not thought to buy him a new one. He was still wearing it to court—or one just like it. In fact, the dark hat with the white band showed up clearly in all news photographs of the Colonel, on his way to trial or leaving the courthouse at the end of the day.
The judge interrupted at this point to say to the jurors, “It may help you understand the testimony. When court adjourns today you can look out the windows that face you and you will be able to see the premises at 252 Fulton Street and also the Hotel Touraine.”
Another agent took the stand and testified that he followed Abel (“who was wearing a dark hat with a prominent white band”) into the same BMT subway. This time he took the train all the way to 28th Street, Manhattan, and walked west, and “I observed him enter the Hotel Latham.”
One week later came the knock on the door of Room 839 and a quiet voice calling, “Martin Collins?”
On this day, what was not said was more important than what was said; the big news came outside the courtroom and newspaper headlines told of a story that would not be. I met the press in the corridor during the afternoon and issued the following statement:
“We have reviewed with Mr. Abel all the Government evidence and pointed out to him the advantages and disadvantages of taking the stand as a witness in his own behalf. He is perfectly willing to let the case go to the jury on the Government’s evidence. It is his own decision, made after a careful examination of all the testimony, that it would not be to his advantage to take the stand.
“We shall not call Mr. Abel and we do not plan to call any other witnesses.”
During the morning, the trial had carried slowly forward on necessary but drab details. An FBI agent told how he searched Abel’s rooms after the arrest; Dave Levine identified Abel’s tools and paraphernalia from the storage room they shared and on cross-examination said, “He was generally accepted as an honest man among us.”
FBI laboratory expert Webb took the stand for a third time, to talk of a hollowed-out pencil found in Abel’s hotel wastebasket. Inside the tip of the pencil were microfilms. One of these was a broadcast schedule giving dates, times and radio call letters for short-wave broadcasts. Using this schedule and the listed frequencies, the Government on July 15 and August 4 had conducted a radio monitoring operation. Tompkins introduced an exhibit showing the results of the monitoring and “the receipt of messages in five-digit blocks.”
I objected to all this evidence on the ground that the exhibits were the fruits of an illegal search and seizure and there was no connection between these undeciphered messages and the defendant. In a July message, for instance, the sender used call letters different from those on the alleged schedule.
Donovan: This shows no consistency. This demonstrably shows a complete inconsistency. If you are looking for a man named John, you don’t go around calling for Thomas. That is what happened here.
Judge Byers: It depends on whether John was also known as Thomas. Then you might do it.
Donovan: These have been undeciphered; so far as we know, it might be a commercial from Bulgaria.
Tompkins: I haven’t seen a commercial from Bulgaria in five-digit figures.
The prosecutor than launched into a long explanation to show how the coded radio messages heard by the Government monitor were related to the microfilmed broadcast schedule. While he was talking, Abel wrote a note to Tom Debevoise pointing out technical errors in his explanation.
When Tompkins finished, the judge said this was all something about which he was ignorant and asked, “Is it your position that this exhibit tends to prove anything?”
Tompkins: Your Honor, all it does is corroborate the schedule that was found on the defendant and show that messages were being sent in accordance with that schedule.
Donovan: I respectfully submit, Your Honor, if it shows anything it shows that such messages were not being sent in accordance with the schedule. The fact that they tuned in on the same frequency is no corroboration of anything. Every day, every hour, every minute, an amateur radio operator can pick up any number of messages in code that are being transmitted . . .
Judge Byers: It is for the jury to say whether or not they consider it of any weight as a matter of evidence.
Six of the microfilms hidden in the pencil were letters to Abel from his wife and daughter. The Government chose to read one paragraph of one letter—purporting to show the Colonel had been home in the fall of 1955—and this opened the door to our reading all of them. The prosecution opposed their being read to the jury because “they are personal letters which have nothing whatever to do with the issues charged in the indictment.” Their objection was overruled by Judge Byers.
The letters were warm and told far better than we could that the man “Rudolf Abel” was a devoted husband and father. They were sentimental and typically Russian in their earthiness. All but one of daughter Evelyn’s letters were in English. Abel’s wife, Elya (or Hellen, as she later signed her letters), wrote in Russian. At our request, the FBI provided English translations.
The first paragraph of the following letter from daughter Evelyn was the one the prosecution read to the jury:
Dear Dad,
It’s almost three months since you went away. Although it’s not so much as compared with eternity, still it is a long time and the more so as there is a great quantity of news to tell you.
First of all, I am going to marry. Please don’t be astounded. I am much surprised myself, and still it is a fact to be taken for granted.
My future husband seems to be a good guy. He is thirty-four and a radio engineer. Mother likes him very much. We met at the birthday of our friend who lives in our bungalow. On February 25 we shall celebrate our wedding. I hope you will like him when you come back. I think you will have much to talk about.
News number two: we are to get a new flat of two rooms. It is not what we supposed to get but it is a flat for ourselves and it is much better than what we have now.
News number three: I have found a job, engineer referent in aviation, so that now I shall be somewhat closer to you. The job seems to be a decent one. They promised to pay well, and my future boss seems to be intellectual and polite guy. I did some odd jobs there and received a pretty sum of money.
My future husband and I are both deeply interested in photography, especially in color photography. He has an Olympia car and we both enjoy meddling with it.
We received both your letters and the key from the suitcase, but the latter is still wandering somewhere.
Our aunt, the one we took home with us, still lives here. Our childhood friend writes regularly and sends you his and his family’s best regards and wishes.
All our friends wish you health and happiness and a happy and quick way home.
Well, this is all I have to say.
Yours, Evelyn
(February 20, 1956)
We read to the jury all of the other letters. Some were dated, others were not. This was Evelyn’s shortest letter; it was barely a note:
Dear Papa,
I am very lonesome and await a letter from you. I married. My husband is an engineer in communication, the same as you he likes to fool around with the radio. He likes photography.
Now we are getting ready to make an electronic exposure meter for the automatic determination of exposure while printing. Write what you think of this.
My husband sends a big greeting and the best wishes. He wants very much to meet you as soon as he can. I also very much want that you will come. I await your letter and your arrival. Our maid sends her greetings. I kiss you firmly,
Your Evelyn.
Some of the newsmen said Abel flushed during the reading of the family letters, which apparently had meant so much to him that he could not destroy them. One of the magazine writers who covered the trial wrote, “As the attorneys droned through the letters, Abel’s steel cage of self-discipline almost cracked. His face grew red and his sharp, deep-set eyes filled with tears.”
There were others, however, who believed the letters were in code and refused to accept them as genuine. Years later, the FBI said that after exhaustive examination they were convinced the letters were bona fide and carried no coded or secret instructions.
Debevoise read to the jury the last two letters from Abel’s daughter. He said afterward that he thought one or two of the women jurors had tears in their eyes and he added dryly, “Just as I had in my voice.”
Dear Dad:
I was very glad to receive your letter and know that you have at least received our letter, though only the first one. We got our parcel in May, and thank you very much for it. We liked your presents very much. We planted the hyacinths that have survived and by now three of them have sprouted. You say that you want to have some more particulars about my husband.
I shall try now to give you a better picture of him. He is short, green-eyed, dark-haired and rather handsome. He is rather gay and talkative when the conversation considers cars or football. He seems to be a good specialist (an engineer in communications) though he has no higher education. He is capable though rather lazy. My first task is to make him study. I am afraid that it would be a difficult one.
Well, I must say that he is a nice chap, that he loves me, and loves Mother, though he is not very warm toward his own parents. He has an Opel Olympia and spends most of his spare time repairing it.
You asked me whether I am happy with him. As one of our greatest poets once said, there is no happiness in life but there is peace and free will. As regards my freedom and will, they are not hampered in any respect. But as regards peace, I seem to possess an immense ability to find or invent troubles.
My husband is liable to all sorts of fantastic ideas, such as to build a bar of brick in the pond that is in our forest. Thank the Lord, he has forgotten about it. I am very glad that he likes Mother and the whole of our family. The only thing that troubles me is that I find him boring sometimes.
Now about my in-laws. They are awful. The mother is anxious to persuade me that she loves me dearly, but somehow I don’t believe her. The father likes to make the great man of himself and to poke his nose in other people’s business. I have had a couple of warm conversations with him.
I do wish you were here with us. Everything would be much easier for me then. I am missing you very much. I thought at first that my husband could substitute for you more or less in some respects, but I now see that I was mistaken.
My health is okay. Sometimes when I am overtired I have headaches but it is not very often. I work much and with pleasure. All our friends send you their regards. My husband hopes you will like him when you come home.
With all my love,
Evelyn
P.S. I have started writing poetry in this language. Next time I shall send you a sample.
The last of the daughter’s letters was a birthday greeting to her father who, on July 2, 1956, was then fifty-four years old. The letter also shows she now had serious doubts about her marriage—a marriage which was to fail two years later. In 1958 Evelyn was to write, “I have given the boot to my husband and so far do not feel like marrying again.” But, for now, it was:
Dear Dad,
I wish you many happy returns. Many thanks for the parcel and all you sent us. It all came in very handy. Daddy, dear, I am missing you so much. You cannot imagine how much I need you.
It is about four months since I have married and to me it seems it is eternity. So dull it sometimes is. In general he is a good chap, but he isn’t you, or even like you. I have already got used to the fact that all people must remind me of you somehow but in this case it isn’t so.
I have got a job, and a very interesting one. I work as an engineer referent in aviation. My boss is a very good man, and we like each other. We often talk about all sorts of things. He is a bit like you, though not so broadminded and not a very great erudite, though very clever. Good-bye. Forgive me please for the awful letter. I am in a great hurry as I have to go to work.
With all my love,
Evelyn.
The first letter from Abel’s wife, though undated, was obviously written shortly after they were separated and is mainly about a woman who longs for her husband.
My dear,
See again has begun our endless correspondence. I do not like it so much, it would be better to sit down and talk. From the letter of Ev you know about our luck during your short absence.
After your departure, I certainly was ill. There was hardening of the arteries of the heart, or hypertension crisis. I was in bed a month and a half. Now I go and do a little but my nerves are not fully recovered. I sleep poorly and do not go out on the street. I walk on the balcony.
Sometimes I approach your instrument [Abel’s classical guitar] and look at it and want to again hear you play and I become sad. [When Abel was in prison in Atlanta his wife wrote how she would look at his paintings and recall the past. “I look at these things, and I am always waiting and waiting, and I trust that we must be together again, trust that you should never again want to abandon us.”]
Daughter and I have everything except you. And she after getting married always says there are no such men as her papa and therefore she is not too much in love with her husband. You are the best of all for us. And don’t frown, everyone says this who knows you.
The little daughter is working. She got the job through her niece and her husband. She is very pleased with her work, which pays well. Already she grieves that you are not here. Maybe tomorrow I will receive a letter from you. When I think about this my heart dies. I kiss you firmly and congratulate you. Try to arrange everything so that you do not delay the period of our meeting. Years and age will not wait for us.
Your Elya kisses you. Son and daughter and all your friends congratulate you and send you the best of everything. Now the move to the new apartment will bring trouble and care. I asked for three rooms but didn’t get them. It would be necessary to discuss this matter with you. Such is the news with us. How are you there? How is your stomach? I think much about everything, that even Evunya’s [Evelyn’s] happiness does not make me happy. Take care of yourself. I want to live together with you for ourselves. I kiss you and ask you to take care of yourself.
Elya
Elya Abel’s letters followed a pattern. She was a housewife and a mother and she wrote of her world: her health and her husband’s health, her summer home, the trees and flowers, her daughter, friends and family, the pets. She did not burden her husband, but she spared him no detail either. And no part of the family life was too small or insignificant for Elya Abel to take note of; her letters were tender and full of love. This is her letter of April 6:
I am writing a second letter. Up till now I only heard from you from the trip. I want very much to find out how are you? How is your health?
I am gradually beginning to come to myself. I am able to do some things around the house and am thinking about the summer home. I could go for a rest but I am afraid to move alone, so that I have not yet decided although I passed the medical board. How necessary you would be to me now. And how good it is that you do not feel the need of being with me.
Everything is the same with us. The children meanwhile live in friendship, and move around one after the other, when they are together. Evelyn does not work steady yet, it takes a long time to process, but is doing translations at home and has a pupil.
Spring here will again be late. Up till now, it has been cold, damp and snow. The winter was simply horrible, and I am worried about my flowers. Evunya says the plum trees froze and it’s hard to get to the pears.
Your father-in-law arrived long ago, he is well-established, and they are very pleased. He is now waiting your earliest return and I, although I know it is silly, I am counting off the days of the known period.
Your gift, the dog, feels very well and is fully accustomed to us. A childhood friend visited us: he was here on business for a week and every day when he was free he visited us. We talked a lot, reminisced, and most of all daydreamed. Don’t let us down.
It is not clear yet about the apartment. We are waiting. And in general, our whole life, constant waiting. That’s the way it is, my dear. My servant is leaving. I am seeking a new one, and I’m not especially sorry. Write often as possible. The children, there are two now, send greetings and all the best for you. “Son” is very disturbed, what kind of an impression he will make on you; he might not appeal to you at once. I kiss you firmly. I wish you luck, health, and most of all a speedy return.
Elya
The family made a special day of Abel’s birthday, even though he was away. “There was the traditional pie and tea under the trees on your birthday,” Elya Abel wrote one year. But in another year she made no mention of the celebration and the Colonel wrote to ask how his family had spent July 2. The wife obliged: “You would like to know how we celebrated your birthday. I baked a blackberry pie with cream, as you like. Lydia [Evelyn] brought a bottle of good Riesling and we drank to your health and our reunion. All my thoughts were with you that day.”
The June 21 letter from Elya Abel was her birthday greeting. She could never know that it would become part of the court record at her husband’s trial and would be shared by thousands of American newspaper readers:
My dear,
At last we received your small package. Everything pleased us very much and as usual, whatever you do you do successfully with care and attention.
Thank you, my good one. We were also very glad to have received a letter from you and to learn that everything is fine with you. It is a pity that you have not had letters from us in such a long time. I sent you several. [It took longer for the letters to reach Abel, for obvious reasons. They had to be microfilmed and passed from courier to courier until they reached a “drop” in Prospect Park, a crack in the cement somewhere in the Bronx.]
We congratulate you on your birthday. Remember, on this day we will drink a toast for your well-being and your early promised return.
We are at the summer place. In this raw year, our garden has suffered. On the best apple trees, from which last year you culled a plentiful harvest, only now have the leaves started to appear. The pears, plums also barely coming to life. In this year I do very little in the garden and house. I feel very bad, I have no strength. How sad the hyacinths traveled so long and dried out very much. Nevertheless, I planted them and am waiting to find out if they died or not.
Everyone very much wants to see you soon and to even kiss you a lot. Herman, the husband of Ev, sits beside me and is drying my ink blotches. The television works. Our whole family sits around and watches, but I seldom look at it. I become very tired and my head starts to hurt.
I am now without a house servant, she left for a vacation. Still the same one. Although she does not satisfy me—she is very rude, but you can’t find another.
The dog, Carrie, who was given to you by the husband of my sister is with us. [The Abel were fond of animals. Over the years that Abel was imprisoned, the letters from his family made frequent mention of dogs and cats. One time the wife wrote, “Our house always is full of animals. They make life more pleasant, and besides we continue your tradition.”] She is a wonderful creature with thoughtful eyes. She behaves very well and resembles our Spotty in character. She too awaits her master, and I also wait. It is desirable to have a husband at home. At the present time I feel your absence much more, especially since I have been with you, remember what you promised before your departure. [Abel may have promised his wife he would ask for an assignment in Russia or perhaps a post in overt “legal” intelligence, in an Embassy where he could live with his wife. Elya and Rudolf Abel were separated through a large part of their middle age. “If we told some stranger,” she once wrote, “that a wife and a husband could live apart for so many years and still love each other and wait for their reunion, he would not believe us. It is natural only for novels.”]
I kiss you firmly and all of our friends and relatives also do so. I wish you success and health. Our new chef is wonderful, attentive and tactful so that you can be calm. I kiss you.
Elya
The Colonel’s wife wrote of her television, her servant problem, the summer home in the country and her gardens. This led one of the tabloids to write of her “luxury existence.” The headline read SPY’S WIFE LIVES IT UP IN MOSCOW.
The last letter was dated August 20:
My dear:
How glad I was to learn that you finally received one of my letters. In the congratulations I wrote little, certainly because it was inconvenient and not because I would not write in general, you are making this up.
Once more I thank you for the package. It is a shame the hyacinths traveled long and two of them perished altogether. The rest are planted and already have rooted. Further, leaves are in pairs, firm, and I go to them to talk with you. You know this is a live greeting from you. Next year they will bloom . . .
I just now arrived from a northern resort where I was once before. I went with my people. Evunya couldn’t because she is working, and I was afraid to go alone. Now I feel all right, so that don’t worry about me. Take care of yourself and come soon, we count every month that passes and you remember this. Now we have a guest from the city from where you left. All remember you, especially the niece with the wife of your brother. They grieve that there is no one to play with and to set out solitaire with.
With the reading of the Abel family letters ended, the courtroom fell quiet. There was a moment of stillness, as though a heavy curtain had dropped on a stage. Then Tompkins faced the bench. “Your Honor, at this time the prosecution rests.”
Donovan (rising): May it please the Court, the defense has a variety of motions which it would like to make at this time, and I would respectfully suggest that they be made out of the presence of the jury. Following these motions, the defense will rest.
The jury filed out and then we moved for acquittal. We also moved to have portions of the testimony and the indictment stricken. All motions were denied. Abel sat there impassively, his eyes steady behind his rimless glasses. When the arguments were finished, he handed me four lined sheets entitled “Notes on Case by R. I. Abel.”
Hayhanen, he wrote, had created the picture of a bigamist, thief, liar and drunk and was “in the company of his spiritual brother, Sergeant Rhodes.” He criticized the prosecution for linking him to Rhodes, saying this had been done by the “spoke” (spokes of a wheel) theory of “conspiracy.” Applying this logic, Abel wrote, he undoubtedly could also be tied to the Rosenbergs and Alger Hiss—or anyone believed to have been directed by any espionage “hub” in Moscow.
The evidence showed only that he and Hayhanen were to “locate” Rhodes, and Abel suggested that some other person, or group, might have been called on to contact Rhodes:
“The aims of espionage are broad. In one case it may be directed specifically to military information; in another to nuclear problems; in still others to economic and to technological information, and also to questions of public reactions to political situations. It is reasonable to assume that separate groups are assigned to separate fields because of the variety of qualifications necessary for their fulfillment.”
He ridiculed Hayhanen’s testimony, telling how Abel had described Rhodes as good agent-potential because he was a soldier with relatives in atomic work. He said this was hypothetical “and would apply equally to anybody—J. Edgar Hoover or the Secretary of Defense, for instance, and with even more force.”
Abel stressed throughout his written summary that there was no evidence of any information of military significance, collected or transmitted, that had been put before the Court in this trial. “It exists only in surmise which is not supported and is not evidence.”
I was sure that he had written this thesis to guide me in my summation. “Dealing with the case as a whole,” he wrote, “it seems preferable to adopt ‘objective, common sense’ attitude—no emotional pleas. Regarding H and Rh (he always wrote “H,” never Hayhanen), some emotion seems in order. H has by his own words been exposed as incompetent, a drunkard, liar and thief. Further, has shown complete disregard for his family in USSR. No ideological basis for defection shown, only cowardly conduct of person of no moral fiber. No patriotism, no strength of character—just a craven. Same for Rhodes.
“In advocating ‘common sense’ approach it might be advisable to indicate in some manner that that is the only reasonable attitude for the jury to assume since they are not legally trained.”
The courtroom was crowded and it was a hot day. I was pleased in this case that under the rules I would sum up first. My appeal now would be solely to the jury, so I moved up close before them.
• • •
Donovan: May it please the Court, ladies and gentlemen of the jury.
This trial has been an experience, I know for me and I feel sure for you as well. Like all experiences, they are meaningful when we can look at them with the benefit of hindsight.
You will remember that when this trial commenced, I spoke briefly to you about what was your conscientious duty as a juror. I explained that your duty is to conscientiously determine the facts and find whether or not this man named Abel has been proved guilty by evidence produced in this court, before you, of the specific charges made against him.
I explained to you that this is not a trial of communism, and it is not a trial of Soviet Russia. The issue I have just stated is the sole one before you.
Now, having understood that situation, you and I have been waiting to see what evidence was produced against this man. We have now seen all that evidence; we have seen and heard all the witnesses. We had an opportunity to evaluate them: to see whether or not each one of them was telling the truth; what his motives were on the one hand to tell the truth, or what his motives were on the other hand to try to tell whatever story would be best designed to save his own skin.
It is terribly important in this particular trial that you have a clear concept of the function of the jury in America. We believe that our trial-by-jury system is the best system ever devised for arriving at the truth.
Why is your function so important?
You might say to yourselves, “His Honor, the judge, knows all the law applicable to the case; he has been trained for many years to evaluate evidence. Why, then, shouldn’t cases such as this simply be left to the lawyers and the judges?”
The answer is that from the time of Aristotle many centuries ago, ordinary citizens are not content to leave these questions to the lawyers and judges, with their legalisms and their legal niceties.
In the United States, at the time of the American Revolution, our country was welded together among the intellectuals by a series of papers called “The Federalist,” written by a group of men that included the best legal minds in the nation. But the cause of the American Revolution was best sold to the ordinary people not by “The Federalist,” but by a pamphlet written by a man named Thomas Paine and called “Common Sense.”
All that I am going to ask you to do in this particular case, because of certain legal niceties and so on, is that while you receive your instructions as to the law from the judge, I ask simply that you use common sense in considering this case.
You have the right, and you are the only people that have the right in this courtroom, to come back with a verdict of guilty or not guilty on each specific count. That right, for you to come back with that verdict after hearing the judge, was established for you back in 1735 in this very city in the trial of a man named Peter Zenger. In that trial, a great lawyer named Andrew Hamilton, defending Peter Zenger, won for you the right to come back with a verdict of guilty or not guilty on the entire case, after you consider the law and the evidence. Now, all that I am going to ask you to do is to review what we have listened to for the last couple of weeks, and simply ask you to use common sense in reaching your verdict.
First of all, what was charged? Count One of the indictment, which is the only capital count, charges in summary a conspiracy to transmit national defense information and atomic energy information.
Now, I ask you this question, and I am going to be asking it of you repeatedly as I go through this case: What evidence of national defense information or atomic information has been put before you in this case?
When you and I commenced this case, certainly we expected evidence that this man would be shown to have stolen great military secrets, secrets of atomic energy, and so on. I ask you, looking back over the past couple of weeks, what evidence of such information was ever produced before you?
The only reason why this particular conspiracy is punishable by death, if the Court so decided, is because it is a conspiracy to transmit military information or information affecting the national defense. This is what has been charged here. I am simply asking you to keep in mind what evidence of that has ever been produced in this case.
Now, before I do review this evidence with you, I want briefly to ask you one common-sense question, and that is, would you just briefly compare in your own minds the evidence that you have about this man Abel, what kind of man he is, and compare that evidence with what you know, by now, of his two principal accusers whom you saw testify in this case.
In the first place, let’s assume for the moment—let’s assume—that the man is what the Government says he is. Let’s assume that. It means that such a man was serving his country on an extraordinarily dangerous mission. We in our armed forces only send on such missions the bravest, the most intelligent men that we can find. Every American who took the witness stand in this case, who personally knew the man while he was living here, while put on the stand for another purpose, became a character witness for this defendant. You heard these men, one after the other, testify.
Meanwhile, yesterday afternoon, you had read to you these letters from the man’s family. You could judge those letters. I won’t bother you by repeating them again. Obviously, they painted the picture of a devoted husband, a loving father. In short, an outstanding type of family man such as we have in the United States.
So, on the one hand, assuming that all this is true, you have a very brave patriotic man serving his country on an extraordinarily hazardous military mission and who lived among us in peace during these years. On the other hand, you have the two people that you heard testify as his principal accusers.
Hayhanen, a renegade by any measure. Originally, there had been talk about Hayhanen being a man who, and I quote, “defected to the West.” You might have the picture of some high-minded individual who finally “chose freedom” and so on. You saw what he was. A bum. A renegade. A liar. A thief.
He was succeeded by, so far as my knowledge would go, the only soldier in American history who has ever confessed to selling out his country for money.
These are the two principal witnesses against this man.
Now, let’s turn in more detail to this man who said that his name was Reino Hayhanen. You will remember that in my opening statement I asked you to watch that man carefully, observe him. I pointed out to you that if what the Government says is true, the man was trained to live a life of deception; so he is a trained liar, who was being paid by Russia to live that life. He is a professional liar. And now, as you know, and as he testified, he is being paid by our government at the present time.
The prosecutor will tell you that in order to convict such people it is necessary to use such witnesses. However, I ask you, in evaluating that man’s testimony, constantly keep this question in mind: Is he telling the truth, or is he telling not only lies but lies important enough that they may save his own skin?
From the evidence before you I say that you should conclude that Hayhanen is a liar, a thief, a bigamist and who, while he says he was on an undercover espionage operation—
Judge Byers: I will have to interrupt you, Mr. Donovan. I don’t like to do this. Whether the man you are talking about is a bigamist or not depends upon the laws of Russia concerning the dissolution of marriage, and there is no evidence in the case on that subject.
Donovan: I attempted to ask the man about it, Your Honor, and I was overruled.
Judge Byers: There is no evidence in the case as to whether he is a bigamist, if you please.
Donovan: The man is living, presumably at the present time, with this Finnish lady whom His Honor permitted me to refer to, as being numerically correct, wife number two.
Now, with respect to what this man did while he was here, our cross-examination consisted of what a physician would call a biopsy, which is to simply remove a small piece of tissue to see whether it contains indications of a disease that would affect all related tissues. To do this, we took a segment of his life among us, in Newark, New Jersey, between the dates of August, 1953, and December, 1954. I investigated his life over there and then on the stand I questioned him about it.
Surely we can agree that from the account which was finally forced from the man’s lips—surely you can conclude that if the man was supposed to be over there on an undercover espionage operation, he made every mistake that could possibly be made.
An undercover espionage operation to be successful must be done in such a way that you become faceless in a crowd. You avoid attention. This man did everything possible to attract attention.
His testimony was that he leased that shop for a photographic studio. He stayed there a year, never opened such a studio and, instead, he spread Glass Wax over the windows. You heard him testify that he was living there with this Finnish lady, drinking vodka by the pint, and at least once the police and an ambulance were called because “only two” of the rooms were splattered with blood.
Now, with respect to the Finnish lady, you heard me ask him whether he recalled an incident in the bakery next door wherein he bought a loaf of bread, then threw it on the floor and ordered the woman to pick it up. You heard his answers to that. He couldn’t recall such an incident.
I specifically asked him, “Do you deny that it occurred?”
He never denied it. Never denied it.
I say to you, you have to conclude from that cross-examination of the witness that the incident did occur, and that either the man was lying and trying to be evasive before you on this stand, or else when it happened he was so drunk that he doesn’t remember to this day whether it ever did happen. Those are the only conclusions you could arrive at.
While this kind of a life was going on, you and I are being asked to believe the man was a lieutenant colonel in Russian military intelligence.
At one point, with respect to the Finnish lady, although he admits that he left his wife and son in Russia, he seemed to refer to the Finnish lady as part of his “legend.” When the case began, I thought that he was simply afraid to go back to Russia. By the time he finished his testimony, I think he was more afraid to go back to his wife.
Now let’s assume not only the miserable character of this man; let’s assume the sordid life that he led here. Nevertheless, you are left with the basic question: Assuming all that, is the man’s basic story true?
He was here for some reason. We know that. Furthermore, he used all of these fantastic methods of communicating with someone. At times he said he used these drops and hollowed-out bolts and so on to communicate with the defendant. One minute after he testified to that, he was telling you he met him every week and they used to go for drives for an hour. If he met him every week and went for drives by the hour, what would be the object of communication with him through this melodramatic, boyish device?
Now, except for communicating with Abel, he used all of these devices he testified to, to communicate with a group of nameless, faceless people whom he would only describe as “Soviet officials.” They were never identified by name, rank or any other description.
As you know, the man was led through, and I mean led through, hundreds of pages of testimony concerning his activities. He told what I think could fairly be characterized as a well-rehearsed story. In two places he was asked, “Why did you come to America?” “I came to America to help Mark in espionage.” In another place he is asked, “What kind of information were you trying to get?” And his answer, virtually out of the law book on the statute involved, was that it was for “affecting the national security of the United States.”
Except for those two tiny threads, spoken out of as miserable a witness as you ever would put on the stand, except for those two tiny threads, there is no evidence in the case of information pertaining to the national defense or atomic energy secrets. There is no such evidence in the case. Yet it is on that kind of evidence that you are being asked to send a man possibly to his death. You would only kill a dog on evidence that he had bitten.
Let’s review a few of the things this man Hayhanen says that he did in the furtherance of this conspiracy.
He went out to Colorado to find a man, whom he never met to this day; he went down to Atlantic City to find another man, but he never met up with him; he went up to Quincy, Massachusetts, to locate another man, and to date, to this day, he is not sure that he found the right man; he was told, he says, that he should open a photographic shop as a cover, but he never opened the shop; he was told to learn the Morse code but he never learned the Morse code.
By the time that man got through telling his story—including the fact that he was given money to take to a woman, Mrs. Sobell, but he never met up with her and pocketed the five thousand dollars for himself—all that I could think of was that best-selling book about children Where Did You Go? Out. What Did You Do? Nothing.
If that man was a spy, history will certainly record he is the most bumbling, self-defeating, inefficient spy that any country ever sent on any conceivable mission. It is virtually an incredible story and we are to believe it, that this is a lieutenant colonel in Russian military intelligence, sent here to obtain our highest defense secrets.
That bum wouldn’t have private-first-class stripes in the American Army.
However, rather than dwell on that man’s testimony, which I say to you proved absolutely nothing on this point, I want to recall to your minds what is the most significant evidence that the man did give. He has told the truth—and he has told it within the last six months to the FBI.
You will recall that at the conclusion of his cross-examination, I asked him whether or not he had given this statement to the FBI in late May and in early June of 1957. He said he did. He said he gave it in a hotel room here in New York.
Now, let me read this again to you very carefully, and remember this is the Government’s own document. Let me read to you what the man told the FBI:
“I resided and worked in Finland from July 1949 to October of 1952. There I received my American passport and arrived in New York in October of 1952. I did not engage in espionage activity and did not receive any espionage or secret information from anyone during my stay abroad, neither in Finland nor in the United States of America.”
This is the man’s own statement to the FBI. And it is on this man’s testimony that you are supposed to convict a man of a capital offense.
It is ridiculous. That statement, did you notice, was never cleared away on any redirect examination. To this day, that statement remains in this case as the man’s own testimony. It is a complete exculpation of this defendant, and no explanation of it has ever been offered to you.
Now, what about the rest of the evidence?
Sergeant Rhodes appeared. You all had an opportunity to see the type he was: dissolute, a drunkard, betraying his own country. Words can hardly describe the depths to which that man has fallen.
Remember that Rhodes testified he never met Hayhanen, he never heard of him. He never met this man [pointing] the defendant; he never heard of him. He never heard of any of the conspirators named in the indictment. Meanwhile, he told in detail of his own life in Moscow, of selling us out for money. And how is this related to this defendant? Those events in Moscow occurred two years before Hayhanen says Abel sent him to locate a man named Rhodes. How did these relate to this man? The answer is, they don’t relate in any way.
It is on evidence of that kind that you are being asked to convict this man. This is the kind of evidence that is before you to send this man possibly to his death.
Where is the evidence of information relating to the national defense and of atomic energy? The answer is that if there is any such evidence it has not been produced before you. If they had a case on it, it hasn’t been made before you, and you have to pass on this specific case and on the evidence which has been introduced in this case.
In this case, if you find the man guilty it would be guilt by non-association. This defendant never met any of these people.
It is very important that you realize that you are not serving your country and you are not fighting communism, to convict a man on insufficient evidence. You are only serving your country, and you are only fighting communism, if you bring in a just verdict based upon the individual conscience of each one of you.
I say to you that if after this case is over and you want to live with your neighbors and with yourselves, you must exercise your own consciences to reach a just verdict.
Now, it may seem strange to you that the United States provides this kind of defense for a man like this. In an affidavit that I submitted in an earlier proceeding in this case, in connection with the search and seizure in the Hotel Latham, I said at the end:
“Abel is an alien charged with the capital offense of Soviet espionage. It may seem anomalous that our constitutional guarantees protect such a man. The unthinking may view America’s conscientious adherence to the principles of a free society as altruism so scrupulous that self-destruction must result. Yet our principles are engraved in the history and the law of this land. If the free world is not faithful to its own moral code, there remains no society for which others may hunger.”
I ask you to remember that, as you weigh your verdict; and I ask you to exercise your individual consciences as to whether or not this man was proved by evidence in this court guilty beyond a reasonable doubt of the specific crimes charged. I ask you always as you listen to the prosecutor, as you hear the charge from His Honor the judge, and then as you deliberate this question, to ask yourselves one final question: Where was the information affecting the national defense of the United States?
Ladies and gentlemen of the jury, if you will resolve this case on that higher level, so that you can leave it with a clear conscience, I have no question but that certainly on Counts One and Two in this indictment, you must bring in a verdict of not guilty.
Thank you.
• • •
We at the defense table could never have known what a writer later uncovered, that throughout the trial one juror meticulously noted on a pad black marks when the prosecutor scored a point and red marks when there was created a reasonable doubt. And how could we have guessed that some of them were displeased with Abel’s sketching? “He seemed like a man apart, as though he were in a world of his own,” a juryman said.
• • •
Tompkins: May it please the Court, ladies and gentlemen of the jury. Before I get into my summation I certainly want to thank you for your patience and the courtesy that you have shown to counsel for both sides. There have been some trying days, but you have been more than patient and I am most appreciative.
Now, in my opening I think I made a solemn promise to you that the Government would do everything to afford the defendant a fair trial, and I believe we have conducted ourselves that way; and I further pointed out that it wasn’t the Government’s aim to simply win a case but of far greater importance was that justice be done.
You are going to hear me use the term “undisputed” and “uncontradicted” many times during my summation because I can think of no substantial fact that the Government has presented to you for your consideration that has been or was attempted to be contradicted.
Penalty was brought up briefly before, and you were asked about that prior to your being sworn. Each and every one of you said that you could decide the case on the evidence without consideration of penalty. The penalty is not a matter for the defendant nor for the Government. That is entirely up to His Honor.
I just want to talk very briefly about conspiracy. In my opening I said simply that it was an agreement—a partnership in crime, if you will—and that the accomplishment of one overt act completes it; that it need not be successful nor that the overt act in itself need be a crime.
In other words, we don’t have to stand idly by and permit an individual to commit espionage to get our secrets. We are not powerless in that case. We may intervene. We may prevent the consummation of the crime.
Now I want to talk briefly about Reino Hayhanen, who was referred to before as a trained liar. In my opening I think I told you that you could expect an attack, and you got it. “A trained liar; a professional liar. Trained liar.” The same training as the defendant, but less time in the NKVD.
Hayhanen “a trained liar”; the defendant a brave, patriotic man serving his country on a hazardous mission. And, believe me, we intend to make that type of mission very hazardous. He is a good family man and he is living well. His family is living very well in Moscow with, and you heard the letters from the wife, a summer home and servants.
Now, Reino Hayhanen appeared and testified and was subject to cross-examination—four days on direct and cross. Counsel suggested that you watch his demeanor, and I certainly hope you did. I certainly hope you watched how readily he answered the questions, whether they were personal questions that reflected on him, on his personal habits. He admitted very readily that he drank. He admitted very readily that he took Mrs. Sobell’s five thousand dollars, and nobody condones that.
I don’t recall him admitting, however, that very important item that certainly must have affected his credibility: throwing a loaf of bread on a bakery floor.
Hayhanen testified on direct that the purpose of his coming to the United States was to procure secret information, military or atomic. Now, a statement was read here before, that he had said—and he signed it and it was written by himself, there is no doubt about it—that he had not committed espionage in Finland or in the United States, and it was further represented that that was unchallenged.
After that statement was read, the record shows this:
“Q. Mr. Hayhanen, what were you sent to the United States for?”
Then there is about two or three dollars’ worth of vigorous objection, but finally the witness is permitted to answer:
“A. I was sent to the United States as Mark’s assistant for espionage work.”
Now, we had in Hayhanen, when he arrived here in 1952, a trained, skilled espionage agent. Thirteen years of experience in the use of weapons, surveillance, all of the techniques, microdot training, the use of devices, trained in the English language, trained in the use of radio, containers, false documents.
In 1954, he testified, he met the defendant and subsequently he performed certain assignments for the defendant. He talked about the first one in an endeavor to locate a soldier, Roy Rhodes, in Red Bank. It was stated that Roy Rhodes was an accuser. Roy Rhodes was nothing of the sort. Roy Rhodes testified that he did not know Hayhanen. He testified that he did not know Abel. And I believe that to be true. However, let’s look at it in reverse. Abel knew about Roy Rhodes and so did Hayhanen.
Now, the Government has an obligation to prove the truth of the charge of the grand jury. We are not proud of Roy Rhodes. Nobody could be.
You heard his testimony. He is an admitted espionage agent. We simply presented Roy Rhodes as he was, to corroborate the Quebec message. His testimony, I might say, coincided with items contained in the Quebec message which the defendant had given to Hayhanen—items that Roy Rhodes admitted he had given to Russian officials in Moscow.
The Government brought out on direct examination that Roy Rhodes had furnished the Russian government with information while he was there. The Government brought out that he had been paid for that information, and I think cross-examination only served to emphasize that.
In other words, I think the defense discredited an already discredited witness, if that were possible after hearing his direct testimony. But the important thing about it is, the facts contained in his testimony about the type of information that he furnished the Russians were not contradicted at any time.
What I am saying to you is that Roy Rhodes was presented to tie in an individual, to show that that person was living with the Quebec message, and this fact should not escape. Now, if he wasn’t a weakling who sold out his country and was susceptible to use by this conspiracy by the Soviet government, this conspiracy would not have sought him out. Abel wasn’t seeking decent citizens. He was seeking the Roy Rhodeses—because the decent citizens can be of no help to a Soviet conspiracy, but a compromised army sergeant who has previously furnished information to the Soviets can be a very big help. When you consider that he testified, and it is unchallenged, that he furnished information to the Soviets on Army personnel, on State Department personnel, you can consider the gravity of his offense and at the same time you can consider his potential value to the Soviets back here in the United States.
You give any Soviet agent an opportunity to get the habits, the training and the background and the connections of any individual in the military, whether he be a private or a general, and you have given him a lot to start from, believe me. I can’t think of anything stronger than the seeking out of Quebec in an endeavor to get military information—information relating to our national defense. Quebec had been trained in code work, and he had so advised the Russians. And remember this: In the Quebec message, the Russians thought he had a brother working in an atomic plant.
I would like to talk a little bit about the Prospect Park bolt, because I think it is strong corroboration of the testimony of Reino Hayhanen. You will recall how the FBI went to that Prospect Park drop and found it sealed up, then chipping away the cement and finding the bolt. You heard the FBI agent from the laboratory in Washington testify that when he opened the bolt there was a message in it, a typed message.
And that brings me to one of the most important items of proof in the case, this typewriter. Who placed a typewriter definitely in Abel’s possession? Who was the person who testified that it was Abel’s typewriter? I do not even think the defense would complain about this. Of all people, one of the defendant’s character witnesses. He testified that he got this typewriter—he gave you the serial number—from Abel and he turned it over to the FBI.
And you heard Mr. Webb, special agent Webb, testify to the typewriter examination.
I think the drops were referred to as “silly drops.” Who do you think was using the “silly drops” in Prospect Park for a message? The defendant! You heard Webb testify that the message contained in that Prospect Park bolt had been typed on this typewriter, which belonged to the defendant.
Now, you will recall that a little newsboy, a little seventeen-year-old newsboy, a little kid with red hair and freckles, and he testified to getting a nickel in change, that he dropped it, that it came open.
One of those trick nickels that you can buy most any place, except that the ones that you buy most any place don’t have microfilm in them. And the boy immediately turned it over—after it opened and he saw what was in it—very alertly to a Brooklyn police detective, who turned it over to the FBI. Remember, that was found by Jimmy in June of 1953. The message was dated December, and contained congratulations on a safe arrival. Just remember that Hayhanen arrived here in October, 1952. This nickel had nothing whatsoever to do with Hayhanen, was never in his possession, but I say that it is very strong corroboration of the truth of his story . . .
I just would like to discuss, because Hayhanen has been such an issue, some of the independent corroboration which we promised you—independent corroboration of Hayhanen’s testimony.
I don’t find the substance of his testimony contradicted, disputed or challenged. The cross-examination was directed to the man’s personal habits. He wasn’t questioned on a drop. He wasn’t questioned on a conversation with the defendant. He wasn’t questioned on any of his assignments. And that, to me, is very important.
Now, what about items that Hayhanen didn’t know anything about, could have absolutely no connection, that could inculpate this defendant? Look at them. These are out of the storeroom over at 252 Fulton Street: a bolt, cuff link, hollow cuff link, and Hayhanen never saw this, never knew of its existence. This was in the defendant’s storeroom: tie clasp, hollowed-out tie clasp. Another bolt, hollowed-out battery, not the type used by Boy Scouts. I doubt if that is readily available. And I think it is safe to say, there isn’t a man on this jury who ever saw a tie clasp like that. I am sure that no woman has ever bought one for her husband, not that kind that comes open. These items have been referred to as toys, as were the coins. Toys. I don’t believe anybody would call these toys for amusement. They are not toys for amusement. Ladies and gentlemen, they are tools for destruction, destruction of our country; that is the purpose of this conspiracy. These toys? Tools for destruction, believe me!
Let’s talk a little bit now about the conduct of the defendant. There isn’t anybody that I know who knew him as Rudolf Abel. He was known as Goldfus, known as Mark, and he was known as Martin Collins, and the tenants, not one of his character witnesses, knew him as Rudolf Abel. I think his conduct can best be described as secret, as conduct intended to deceive, conduct showing the cunning of a professional, a highly trained espionage agent. The conduct of a master spy, a real pro. Now, just remember this, this was the man’s chosen career. He knows the rules of this game and so do his family, including his mature daughter. He is entitled to no sympathy.
Now, it is hot and I am sure that this jury in their very wise judgment and with the use of their very good common sense can readily arrive at a result. I can simply say this to you: Never in my experience have I seen the definite stating and overwhelming corroboration that has been presented to you in this case.
I simply say this—this is a serious case. This is a serious offense. This is an offense directed at our very existence and through us at the free world and civilization itself, particularly in light of the times. I say this, and I don’t believe I have ever said anything more heartily or more seriously: I am convinced the Government has proven its case and not only beyond a reasonable doubt as required, but beyond all possible doubt. I am convinced that you people in your wisdom and judgment will be able to evaluate the truth of the statements of the various witnesses that the Government has presented. I am sure that you will be able to evaluate the facts in this case as results of the crime of conspiracy and with the direction, the charge by the judge, you will arrive at a correct result. I can’t stress too much, too strongly, that you don’t have to succeed to be guilty. I think that society, and the Government, is entitled to protect itself when they find people conspiring to commit an offense. We are not helpless. We don’t have to wait for a corpse before we look for a criminal. We can move in as soon as the crime has been established and that is the partnership, the agreement, confederation, plus the commission of one overt act.
Now, again, in closing I just want to say this to you. We are appreciative of your courtesy, for the attention that you have paid to this very important case. I am absolutely convinced, it is my very strong conviction, that after you have deliberated and considered everything, you will find this defendant guilty, guilty as charged by the grand jury, guilty by the overwhelming weight of evidence, by the overwhelming corroboration that the Government has presented to you.
Thank you.
• • •
The Government summation lasted fifty-one minutes. Tompkins, responding to pressure from Washington in their most important pending case, had put great effort and time into his summation. His remarks were complete and forcefully delivered.
The case now became the property of the presiding judge.
Judge Byers: Members of the jury, partly to spare your having to listen to a very hoarse charge this afternoon, and partly to enable the Court to study the record more carefully, the charge will be delivered tomorrow morning at ten-thirty. Good night.
In the Brooklyn park alongside the court, it was still a warm, sunny afternoon and the benches were busy. Over at 252 Fulton, the names Silverman and Levine were gone from the shabby lobby register. The publicity had driven away the guiltless artists. And Abel was in the back of a prison van, bouncing toward the Federal Detention Headquarters in West Street, where he would wait out his eleventh and last night before hearing the verdict.
Meanwhile, a juror sat in a subway and looked across the aisle, catching the headlines on an unknown neighbor’s newspaper. “I think both lawyers did the best they could with what they had to work with,” he would say later of this session to a reporter. “But it’s not like Perry Mason. I can’t remember a word that was said, but it’s only natural, isn’t it? It’s said and then it’s gone and you carry away an impression. Guilt or innocence.”
UNITED STATES OF AMERICA VS. RUDOLF IVANOVICH ABEL, ET AL.
BYERS, D. J.
CRIMINAL.
The small black-and-white bulletin board on the courtroom door told the whole story. It was a criminal case tried before Judge Byers. At no time was it anything other than this, and at no point did the participants lose sight of this fact.
The uniqueness of the trial, the international importance of the Soviet spy-defendant, the urgency of the world situation and the pressure of zealous, self-appointed guardians of United States freedom, exerted no influence on the proceedings behind the heavy oak doors of the courtroom.
“The calm of the courtroom and the absence of passionate behavior were remarkable, when one considers the potential explosiveness of the case,” wrote a French newsman. And a foreign-born reporter for the Christian Science Monitor said, “To one not reared under the Anglo-American system of ‘due process,’ the trial was proof of the maturity of that system and of its capacity to deal on its own terms with representatives of the very system that seeks to destroy it.”
The courtroom of stern, magisterial Mortimer W. Byers was a forum for justice. He set the pace for this trial. All eyes were on him, and the jury was turned to look up at him.
Judge Byers: Members of the jury, the time has now come for you to take over your deliberations in this case. Doubtless, you feel that you know a great deal about it and perhaps you prefer not to have to listen to anything from the Court on the subject. If that is your point of view, it is also mine, but we cannot yield to our preferences. It is my duty to give a charge and it is your duty to listen to it.
You realize that underlying this case there are three provisions of the law concerning which you should be advised, because the indictment contains the charge of three different conspiracies.
The judge’s clerks said he lived in Brooklyn three miles from the court; he walked to the courthouse every morning and walked home at night. He was eighty years old and was the oldest man on the bench in the Eastern District, but he stood upright to deliver his charge to the jury. This was a tradition, all but dead, which went back hundreds of years to the courts of England. It was a point of pride with Judge Byers, just as his notes were. He did not read a prepared statement, he delivered the charge—with only a few handwritten notes before him.
The judge read to the jury from the United States Code, read portions of the indictment and the overt acts, then turned to the interpretation of his readings.
Judge Byers: A conspiracy is said to have its origin in the minds of those who become parties to the conspiracy, to become the conspirators. A conspiracy thus is essentially an agreement, but that doesn’t mean that it is a formal kind of an agreement such as you will find in an ordinary business transaction.
I have never known of a conspiracy to involve a written agreement. Necessarily, it is a secret and clandestine thing. Now, since that is its nature, about the only way that you can prove the existence of a conspiracy is to prove the conduct of those to whom you impute the conspiracy. As you know, we haven’t yet devised any instrument that will enable us to peer into the workings of the human mind.
The only way that we can determine what goes on within the mind is to observe the conduct, and sometimes the word, of the given individual who is under examination. So that in order to ascertain whether a conspiracy exists as the result of a common purpose or an agreement, we examine into the conduct of those who act together and who are thought to act together by reason of the agreement that they have entered into between themselves.
The mere agreement does not impose criminal responsibility, for the reason that people might conspire to violate the law but then they might be discouraged. They might change their minds; they might abandon their original plan. So that the law, in order to punish a conspiracy, requires proof not only of the existence of the conspiracy but the doing of one or more things by one or more of the conspirators to carry the plan or purpose into operation.
I should say in this connection that the doing of one or more things to carry the plan into operation is that branch of the case which is comprehended in the overt acts. It is not necessary that every one of the overt acts be proven. At least one and perhaps more, as alleged, must be proven but not the entire scheme, not the entire list of overt acts need necessarily be proven.
Now, there is another thing that should be explained in connection with this particular kind of criminal offense. The offense is complete upon the demonstration by the required measure of proof of the agreement, the parties to it, and the doing of one or more things to carry the agreement into effect. That constitutes the crime. The conspiracy may fail in its purpose and yet the offense which the law denounces is established once these requirements that I have just referred to have been demonstrated.
To illustrate this point, the judge used a simple example which he said had no reference to the testimony in the case before the jury. He said three men planned to blow up the court building. One buys dynamite, a second goes after a steel drill and a third buys a battery. But the dynamite is wet, the battery doesn’t work properly and the other partner breaks a leg.
Judge Byers: But the original agreement having been shown, and each man having undertaken to do a specific thing to carry the plan into effect with the evidence showing that he has tried each to do his part, the offense under the law is made out. The fact that it comes to nothing has no bearing whatever upon the question of whether the crime has been committed.
The crime was complete when the agreement was made and when one or more things were undertaken to carry the plan into effect. I hope I have made the law reasonably clear on that subject.
Now, we move to the next step, which is the presumption of innocence which attaches to this defendant and to any other defendant in a criminal case. It pertains to him from the outset of the case until the jury shall return with its verdict. In order to overcome that presumption, the burden of proof rests upon the Government to prove guilt beyond a reasonable doubt as to every essential element of the crime as charged in the indictment. What does a reasonable doubt mean?
Well, just as the words indicate. It means a doubt which is present in your minds as the result of the exercise of your reasoning faculties, as you apply those faculties to every element of the testimony in the case. The emphasis is upon your reasoning faculties, and that necessarily excludes your emotions. You know that two of our favorite emotions are sympathy and prejudice. You may not rely upon either of those or any other emotion and call the result the creation of a reasonable doubt.
The emotions, you know—and this is true of every one of us—sometimes fly in the face of our reasoning processes, and that is why it seems necessary to warn you particularly against the exercise of emotion, prejudice, sympathy; and by reason of the nature of this case, I am going to venture to say something which I hope and believe is entirely unnecessary.
Do not for the slightest instant of time as you go over the evidence in this case allow yourselves to dwell upon the reflection of what might happen if the conditions were reversed; namely, if an American citizen unlawfully within the U.S.S.R. were to be charged before a tribunal of that country with the equivalent of what this defendant is charged with in this case.
In the first place, you don’t know what would happen, and therefore, it is an entirely idle speculation. In the second place, no matter what that speculation might lead you to conclude, it would be of no value whatever to you in the performance of your duties. We are concerned, you and the Court, with the enforcement of our standards of law. We are not interested in the standards which prevail in any other parts of the world. We are responsible only for the way in which we discharge our duties as American citizens.
I will observe that while the defendant is a visible person in this courtroom, there is also an invisible presence at this trial: namely, our spirit of fair play, our spirit of administering justice according to our own standards which are in the keeping of the Court, the jury and the counsel.
Turning somewhat to the testimony: In the first place, you are relieved of the ordinary task of a criminal jury in choosing between conflicting versions of a given alleged occurrence. You are confronted with no conflict in testimony whatever.
That does not mean that you must not examine the testimony, even though it be uncontested, with the greatest of care. The contrary is the fact.
Now, with reference to the conspiracy itself: namely, its membership, its purpose, its aims and objects, you have the testimony of Hayhanen. That is the only testimony in the case on that subject. Of course, he is an accomplice by his own recital. He is one of the conspirators. The testimony of an accomplice is entirely admissible in the administration of our system of law, but in weighing what such a person says you are required to apply to it the most careful and exacting scrutiny, considering what personal object or benefit an accomplice may have in giving his testimony at all, and how far you can believe what he says in view of the fact that he is an accomplice.
As to every witness who has testified before you, if you find that he has testified falsely with respect to a material issue in the case, you have the right to disregard his entire testimony because of the false element. Equally, you have the right to accept that which you find to be credible. That is entirely and exclusively a question for the jury to determine for itself.
In examining Hayhanen’s testimony and in deciding whether you will accept it in whole or part, you will naturally turn to the other testimony in the case which has been offered on the theory that it tends to corroborate that which he has stated on the witness stand.
The judge told the jury it had listened to twenty-seven witnesses. Then he named each one and identified the person. Sometimes he even connected the witness to a piece of evidence. His notes were good, his memory sharp.
Judge Byers: I will comment on the witness Rhodes. The only purpose in that connection is this: There was a motion to strike his entire testimony, largely based on Rhodes’s testimony that he never knew either the defendant or Hayhanen. That motion was denied, and the reason for the denial was this:
Rhodes testified concerning his career in Moscow. Hayhanen testified that, at the direction of the defendant, he, Hayhanen, had tried to locate Rhodes and that in that effort he had gone to Colorado—and I think his testimony was that the defendant paid his expenses. Having reached Colorado, he telephoned to what was thought to be the residence of Rhodes and I think that Mrs. Brown, Rhodes’s sister, testified that at some time in the spring of 1955 she received a telephone inquiry from a person who spoke with a foreign accent.
Now, the purpose of retaining that testimony was to enable you to reach a conclusion as to whether in that respect Hayhanen had been corroborated and, perhaps, to enable you to form an opinion as to whether Rhodes struck you as being the kind of person that an unfriendly power would seek out in the effort to employ him as an agent for that power. That is the reason the testimony was received and retained in the record; and I may still say that I think it was a correct ruling.
In denying that motion and, indeed, in deciding all other motions and ruling upon objections, the Court did not intend to convey or express an opinion as to the guilt or innocence of the defendant. Those rulings were rulings upon questions of law, and if the jury thinks it has observed an opinion on the part of the Court I urge you very strongly to disregard it because the question is solely for your determination.
Something has been said about character testimony. In the first place, that is a misnomer. The correct expression is reputation testimony, and the reason that the distinction is called to your attention is this: There is a very evident difference between reputation and character. Reputation is what people think about you; character is what you really are. Now, two or three of the witnesses were asked, somewhat casually, if the defendant’s reputation was good and they said it was. Reputation testimony is regarded as important. In that connection let me say to you that if you believe the testimony, then the burden of proof resting upon the Government may be somewhat added to. It may be made heavier than would be the case if such testimony were not in the record.
You know there are a number of exhibits—I think there is an even one hundred offered by the Government and four or five offered by the defendant. Among those exhibits offered by the defendant are what both sides have argued to you are letters passing between the defendant and a member of his family. You may have been impressed by that argument. I am not saying whether you should have been or not, but I am calling your attention to the fact there is no evidence in this record as to the identity of a person who wrote any one of those letters or the person to whom any letter was addressed. So much of the argument, I think, was purely speculative.
After the trial was long over and just another page in the history of the court, this is what one of the panel of twelve jurors said of the letters: “Perhaps I did believe them because the Government didn’t go after them. On the other hand they had so much evidence maybe they didn’t care about the letters. I tried to put myself in his position. I mean, the father of children and all. I think they had an effect on the jury and if they weren’t real, somebody did a good job with them.”
Judge Byers: Now, your verdict will be unanimous: guilty or not guilty on Count One; guilty or not guilty on Count Two; guilty or not guilty on Count Three. I think I have now covered the subject as required by law.
• • •
The judge excused the alternate jurors with the thanks of the Court. He announced that the jury would now undertake its deliberations, and the court clerk called out, “Everybody keep their seats until the jury retires.”
It was 12:15 P.M.
When the jury had gone, we gave the press what would be Abel’s only comment on the trial. We had been asked repeatedly if he would say whether he had been “given a fair trial.” I was reluctant to touch this subject, fearing we would prejudice any possible appeal. At the Rosenberg espionage trial, defense counsel had made a mistake which plagued him at every step of his appeals, by thanking the trial judge for the “fair” manner in which he had presided.
Requested to comment upon his defense, Abel wrote out a statement at this time, saying, “I would like to take this opportunity of expressing my appreciation of the way in which my court-appointed attorneys conducted my defense. I wish to express my thanks to them for the tremendous amount of work they put into their efforts on my behalf, for the skill and ability they have shown in doing so. R. I. Abel.” He permitted reporters to copy it, in the courtroom.
Then we sat back to wait upon the jury, who now took over the ultimate responsibility. We learned later that the foreman immediately called for a vote, and to put everyone at ease he made it a secret paper ballot. Eleven slips came back marked guilty. One man voted not guilty (on Count One) and so the deliberations began. An hour went by and it was time for lunch. The marshals led them across Fulton Street to Joe’s Restaurant and they had a hot meal in a room of their own, upstairs.
It was 1:15 when they went to lunch and this was our first sign. It told us they would be “out” for some time, that there was no unanimity—at least for now. It was safe for us to eat. We followed them across Fulton Street and into the same restaurant. We ate downstairs talking of the trial, while upstairs the jurors strained not to think of the afternoon ahead of them.
Court officers, meanwhile, took Abel to the detention pen for his lunch. There were no court facilities in the Eastern District to feed the prisoners, so each morning when he was checked out of his Manhattan Federal cell the Colonel was handed a bag of sandwiches with a piece of fruit for dessert. During the noonday recess, he would eat in the court lockup.
At 2:30 P.M., after an hour and five minutes, the jury returned from lunch and resumed its deliberations. The first thing they did was send a note to the judge, asking for three of the exhibits. They wanted to have Hayhanen’s statement to the FBI that he never committed espionage; the “Quebec” message, and the decoded message found in the split nickel.
When we were told of this, the news touched off a round of speculation. Then we sat back to wait some more. Alan Robinson, president of the Yorkshire Insurance Companies, joined me and asked what would happen if the verdict were “not guilty.” I said we must face one problem at a time.
All through the trial Abel had kept busy; his hands and his mind were constantly active. When he wasn’t taking notes, he sketched. He drew Hayhanen, the jury, Judge Byers, the court attendants and his prosecutor. (He misspelled “Tomkins,” leaving out the letter “p.”) But now, with the court all but empty and the action taking place outside our arena, there was little to do, and the time seemed to weigh heavily upon him.
All his life had been filled with waiting—some of it so pointless. He had waited to keep secret meetings, waited to pick up a message at a drop, waited for the right moment to recruit an agent, waited for letters from his family, and waited and feared for the moment when he might be found out. Abel sometimes felt as though everyone he passed on the street was looking at him and knew who he was. He once told me he had enjoyed reading the autobiography of bank robber Willie Sutton, a celebrated fugitive who had suffered nightmares in which hundreds of people pointed at him and screamed, “You’re Willie Sutton.”
Abel explained that any undercover fugitive must constantly fight against the feeling that the whole world is on the verge of guessing his secret. The Colonel, who generally was given to underplaying his role, managed to control his phobia for nine years.
An hour passed, then two. Someone sent out for coffee and the latest editions of the afternoon papers. One of the reporters came up behind me and, pretending to read over my shoulder, whispered, “Jim, you better get ready to run. Maybe you did too good a job.”
Waiting for a jury is like keeping a death watch, and this was the worst watch I ever kept. When the clock over the empty jury box showed 4:30 P.M., our little band grew restless but suddenly hopeful in a professional sense. Could the jury be deadlocked? The thought of a new trial, of having to go through this all over again, was discouraging. What would my partners think?
“Why were you out so long?” a reporter later would ask them.
“Do you think it was long? I don’t think it was so long,” said the juror. “We wanted to be careful, to take our time and give it a lot of thought. We didn’t want any repercussions afterward.
“There were no big arguments. Nobody rolled up his sleeves or anything like that. You know, you get more arguments on some accident cases than on a big one like this. There was plenty of evidence and the FBI were impressive. But I think the biggest single thing was Hayhanen’s testimony.”
A door slammed somewhere and then I heard someone call out, “Here they come.” It was 4:50 P.M., and they had been out three and a half hours, with another hour for their lunch. The courtroom quickly filled up; there was a bewildering swiftness to everything that took place now. It was mechanical, official and efficient.
The clerk, John Scott, was standing. For this moment, he was the central figure. “In the case of the United States of America against Rudolf I. Abel,” he asked the jury, “how do you find the defendant, guilty or not guilty, on Count One?”
“Guilty.”
Three times the clerk called for an answer and three times jury foreman Dublynn pronounced Abel “guilty.”
At my request, the jury then was polled individually, and twelve more times the word “guilty” filled the courtroom. It was like an echo: guilty, guilty, guilty . . .
Abel, through it all, sat perfectly still. His face remained set and his eyes were steady.
I made a motion to set aside the verdict as “against the weight of evidence,” and Judge Byers denied it. He ordered Abel remanded and set November 15 for sentencing. The judge then addressed the jury for the last time:
“The jury is discharged with the thanks of the Court for your good and careful attention that you have given to this case. And while you may not be interested, I would like to say that if I were a member of the jury I would have reached the same verdict.
“Good night and good luck to you all.”
• • •
Outside the court, Tompkins declared to the press that “the trial was conducted in accordance with the highest traditions of American justice.” He said the verdict was warranted in light of the overwhelming evidence, and that with this case the United States had struck “a severe blow at Soviet espionage in this country.”
The final statement of the day came in Washington, where the Army announced that M/Sgt. Roy Adair Rhodes had been confined to the criminal stockade at Fort Belvoir, Virginia. Five days later it charged Rhodes with committing espionage and with “failure to disclose prior association with Soviet agents” in a sworn statement made to military investigators.
The calculating Soviets chose this day—the day before the sentencing—to break their silence on the Abel case. They knew, of course, that their denunciation would be carried in American and other Western newspapers the following day, when Abel was to be sentenced.
The story appeared in Moscow in the Literary Gazette, which is written and edited for writers and others of the Soviet intelligentsia.
The article described the Abel case as “lowbrow crime fiction,” a “hoax concocted by J. Edgar Hoover and the FBI to make the American people forget the dirty side of the Bureau’s business.” It told how the “American authors of the crime fiction” had made Abel, a photographer, “into the brains of a spy ring which quite naturally existed on Moscow gold.”
• • •
While Moscow’s artists’ and writers’ colony was reading the local version of the case in Brooklyn, I had been drafting a letter to Judge Byers, setting forth my views as to why I believed Abel’s life should be spared.
In the three months since I had first entered the case, I had come to know Mortimer Byers as a stern judge, a man with strong convictions (he had once held that an arms embargo by President Franklin D. Roosevelt was unconstitutional), and as a proud patriot by his own standards.
I knew, for instance, that during the depression he had voluntarily turned back 15 per cent of his paycheck after a government order slashing all Federal wages but exempting judges from the 15 per cent salary cut. I also knew that he had sentenced two young World War II draft dodgers to five years in jail and then jolted observers by recommending they serve the time at hard labor. I had once heard him suggest that if aliens who declined to become citizens carried a mark, or a brand, on their hands, the government would have no trouble keeping track of them.
The Eastern District Court had a proclivity for sending difficult and controversial trials to Byers, for it knew he was unflinching and tough-minded. Over his twenty-eight years on the Federal bench he had sentenced hundreds of prisoners; the question in my mind now was “Would this tough old Brooklyn judge try to impose his iron will on the Kremlin and sentence Abel to die?”
I had become convinced Abel’s death would serve no purpose and was actually against the best interest of my country. When I had finished my letter about the sentencing of Abel, I sent it over to Judge Byers’ chambers by messenger. I wanted him to have it and study it a full twenty-four hours in advance of the formal sentencing. I was satisfied then that I had done all in my power to save the Colonel’s life.
At 10:30 A.M. the courtroom was filled and we were all ready, waiting to get on with the sentencing procedure. We lacked only one thing: the prisoner. Abel had not arrived from Detention Headquarters in Manhattan; the attendants and uniformed court officers looked worried. The big room fell perfectly silent as we waited ten minutes, fifteen, then twenty. Finally, just before 11 A.M., Judge Byers strode in and the bailiff called the court into session.
From another door at the front of the court Abel was led in. When he took his seat beside us he whispered, with a sheepish grin on his face, that the prison van had broken down and this was the cause of the delay.
I began the proceedings by reading in open court, and for the record, the letter I had addressed to Judge Byers, which first stated that my plea assumed the correctness of the jury’s verdict under our law:
It is my contention that the interest of justice and the national interests of the United States dictate that the death penalty should not be considered, because:
(1) No evidence was introduced by the Government to show that the defendant actually gathered or transmitted any information pertaining to the national defense;
(2) Normal justification of the death penalty is its possible effect as a deterrent; it is absurd to believe that the execution of this man would deter the Russian military;
(3) The effect of imposing the death penalty upon a foreign national, for a peacetime conspiracy to commit espionage, should be weighed by the government with respect to the activities of our own citizens abroad;
(4) To date the government has not received from the defendant what it would regard as “cooperation”; however, it of course remains possible that in the event of various contingencies this situation would be altered in the future, and accordingly it would appear to be in the national interest to keep the man available for a reasonable period of time;
(5) It is possible that in the foreseeable future an American of equivalent rank will be captured by Soviet Russia or an ally; at such time an exchange of prisoners through diplomatic channels could be considered to be in the best interest of the United States.
[Most of the newspapers made mention of this last point, but several ignored it. Undoubtedly, they felt it could never happen; it was just a defense attorney covering all contingencies.]
With respect to an appropriate term of years, the following facts are submitted because this problem is novel in American jurisprudence:
(1) During the 1920s, when France was the strongest power on the European continent and hence a primary objective of Soviet espionage, the average sentence given by the French courts to Soviet agents convicted of actually acquiring defense information, was three years imprisonment. (Soviet Espionage, Dallin, Yale University Press.)
(2) The sole British statute applicable to a similar case, of peacetime espionage by an alien, is the Official Secrets Act, first passed in 1889 with a maximum penalty of life imprisonment; repealed and re-enacted in 1911 with a maximum penalty of seven years; increased to fourteen years in 1920.
Before writing this letter I sought and obtained the opportunity to discuss the matter in Washington with various interested government departments and agencies, including the Department of Justice. This does not mean that any one of such parties necessarily concurs in the foregoing.
I then added these few concluding extemporaneous remarks in open court:
“The defendant Abel is a man fifty-five years old. He has faithfully served his country. Whether right or wrong, it is his country, and I ask only that the Court consider that we are legally at peace with that country.
“I ask that the judgment of the Court be based on logic, and justice tempered with mercy.”
Judge Byers: Does the defendant wish to be heard in his own behalf?
Abel: No, I have nothing to say, Your Honor.
Judge Byers: Mr. Tompkins, has the Government anything to say?
Tompkins: If Your Honor pleases, the imposition of sentence is, of course, wholly a matter within Your Honor’s discretion. However, it may be of some aid and assistance to the Court in reaching its determination to have the benefit of the Government’s observations and comments.
First, just a word or two about the defendant himself. He is not a novice in the field of espionage. By training and by profession, for a period of over thirty years, he has been an agent for espionage.
During his residence in the United States, he is known to have communicated directly and indirectly with Moscow, and to have received instructions and to have activated agents and built an espionage apparatus.
The extent of Abel’s activities is well-known to the Court from the evidence presented at the trial.
There are, of course, many approaches to sentencing: The deterrent effect which the sentence will have on others, rehabilitation and retribution. The concepts of rehabilitation or retribution would appear to have little application in this case, and I certainly think it would be naïve to assume that a substantial sentence would deter the Soviets from continuing their espionage operations directed at this country and at the free world. But it would certainly serve notice upon the men in the Soviet Union, in the Kremlin, and those who carry out their assignments, that the commission of espionage in the United States is a hazardous undertaking.
The prosecutor then said my references to espionage laws in France in the 1920s and in England in 1911 and 1920 were not valid because present-day espionage is a far more serious crime than it has ever been before.
Tompkins: Espionage in 1957, I think, is completely different. The threat against civilization, the threat against this country and the whole free world, is inherent in this crime. In other words, it is an offense against the whole American people, rather than a few individuals. So the punishment should be commensurate with the magnitude of the offense.
The present dangers which this country faces from the country whose leaders tell us they will bury us, must also be considered. While no shooting war exists, as Mr. Donovan points out, no shooting war exists with the Soviets, we are engaged in a cold war with that country, the outcome of which could well decide who would be victorious in a hot war. In such circumstances, this government must deal drastically with agents of foreign powers who cross our borders by subterfuge for the purpose of seeking out our vital national secrets.
Now, in light of all these factors and considerations, the Government has certainly no hesitation in commending—and indeed, it seems to me, has a duty of requesting—the imposition of a substantial and very strong sentence in this case.
Judge Byers: The question of the sentence in this case presents no particular problem concerning the defendant as an individual. The Court knows next to nothing about his personal life or his true character, nor about the motives that may have caused him to enter this country illegally in 1948 and here conduct himself ever since as an undercover agent of the U.S.S.R. for the purposes described in the testimony of his assistant and accomplice.
Lacking this insight into the man known as Abel, the evidence requires that he be dealt with as one who chose this career with knowledge of its hazards and the price that he would have to pay in the event of detection and conviction of the violation of the laws of the United States, enacted by Congress for the protection of the American people and our way of life.
Thus the problem will be seen to present the single question of how the defendant should be dealt with so that the interests of the United States in the present, and in the foreseeable future, are to be best served, so far as those interests can be reasonably forecast.
Many considerations have been involved in that study. It would not be the part of wisdom to recite them in this record, but suffice it to say that in the measured judgment of this Court the following sentence, based upon the jury’s verdict of guilty as to each count of the indictment, is believed to meet the test which has been stated.
Pursuant to the verdict of guilty as to Count One, the defendant is committed to the custody of the Attorney General of the United States for imprisonment in a Federal institution to be selected by him for the period of thirty years.
Pursuant to the same verdict as to Count Two, the defendant is . . .
The judge recited the legal liturgy, sentencing Abel to thirty, ten and five years and imposing fines of $2,000 and $1,000. The sentences were to run concurrently; the fines were consecutive. This meant his total fine was $3,000 and his prison term was thirty years, less time off for good behavior.
The sentencing had taken just sixteen minutes. Now it was done and Abel was led from the courtroom. I watched him go, thinking that we had succeeded in saving his life but that for a fifty-five-year-old man the thirty-year sentence was equivalent to life imprisonment.
When I reached the prisoner detention cells in the basement, suddenly very tired, Abel was waiting for me. Casually slouched in a big wooden chair, one leg crossed over the other, he was puffing on a cigarette. His suit was no longer new, it badly needed a press, but to look at him now he seemed to have no care in the world.
“That wasn’t bad,” he said finally. “What you said up there was quite well done. But you are correct in your law points and I have only one question. When your appeal succeeds and the indictment is dismissed, what happens to me then?”
My shirt was damp and heavy against my sides with perspiration. I was emotionally drained, and now he had the gall to tell me, “Not bad.” This cool professional’s self-control was too much for me just then.
“Rudolf,” I said, looking him directly in the face, “if all my work is successful, I may have to shoot you myself. Don’t forget, I still am a commander in Naval Intelligence.”
He puffed once, exhaled and then said quietly, “You know, I think you would.”
The tension was broken. He offered me one of his cigarettes and then we got down to business. I told him we had ten days in which to decide whether to appeal the verdict. We agreed that I would visit him two days later and come to a decision then.
He offered his hand and I took it, saying goodbye. For a man about to begin serving thirty years in a foreign prison, Colonel Abel possessed an uncanny calm.
• • •
Jury foreman Dublynn bought a paper on his way home that day, looking for the story of the sentencing by Judge Byers. “I thought,” he later told a journalist, “they were going to make an example of the case and that Abel would be killed. Then I read where his lawyer brought out how he could be used in a trade for an American and I saw there was no sense in killing him.
“I have a brother in the Air Force and I could see the possibility of a trade. I mean, suppose one of our fliers was shot down?”
On this day, three days after the sentencing, I visited the Colonel and found him in good humor, with a complete set of blueprints for the West Street Federal house of detention (his local habitat) tucked under his arm.
“What,” I asked, “do you have in mind? A mass breakout at midnight?”
Rudolf laughed. “Nothing quite so dramatic. I have a few ideas on how the government might better utilize floor space here. The warden likes my ideas, so he gave me these architectural plans, which I’m redrafting to incorporate my ideas. He’ll send them on to the Bureau of Prisons in Washington.”
“If I were Warden Krinsky,” I said, “I would worry that some moonless night, when the guards were looking east, you might go down a newly designed laundry chute and out into the west. Does the warden know you read Willie Sutton’s book?”
“Yes, but he also knows I’ll not make my break until you successfully argue your appeal,” said Abel, smiling.
The appeal, of course, was the reason for my visit. If we were to challenge the District Court’s rulings, we had only ten days in which to file our notice of appeal. Following this, we had forty days to prepare our full petition to the Circuit Court.
There was never any doubt in my mind that we should test the constitutionality of Abel’s search and seizure, in the higher courts. However, we ran one risk when we appealed. If we were successful and a new trial was ordered, Abel could be found guilty a second time and resentenced, by a different judge—perhaps to death.
“I’ll take my chances,” Abel said.
The Colonel meanwhile had returned to his varied routines. He went back to drawing cartoons for the West Street prison’s weekly mimeographed newspaper and turned his analytical mind to the physical problems of the overcrowded building which sits hard by the Hudson River at the foot of West 12th Street, in the shadow of the elevated West Side Highway.
He completed what he called a set of “practical drawings,” which mapped out a relocation of the prison’s industrial laundry and provided more storage space. The warden told him the plans were “very good” and this opinion later was confirmed by the U.S. Bureau of Prisons. But there was no money available for such improvements at the time, so the Soviet Colonel’s plans for the prison were put on file.
As for Rudolf’s efforts to improve the Federal detention building on West Street, this is what a senior official in the Bureau of Prisons once wrote me: “He was genuinely interested and accepted the project as a challenge. . . . He approaches all his duties with interest and a determination to do well whatever he undertakes.” This, of course, had long been Abel’s forte.