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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Failure in Bid to Erase McCarthy-Era Conviction

MANHATTAN (CN) - At the ripe young age of 92, Miriam Moskowitz discovered that unsealed evidence called her McCarthy-era conviction in an atomic espionage case into question, but she would not get the legal or financial support to sue for her vindication for another six years.

By then, Moskowitz's wait became just one of the heartbreaking technicalities that dashed her hope to clear her name in the eyes of the court, a federal judge ruled on Thursday.

More than 60 years ago, Moskowitz entered a Foley Square courthouse to defend herself against allegations of impeding the probe into Julius and Ethel Rosenberg, who were executed for revealing secrets to the Soviet Union.

The case against the Rosenbergs continues to be controversial as declassified Soviet cables cast doubt on whether Ethel ever acted as a spy, but confirmed her husband's espionage.

Moskowitz's case became a footnote to this history after she accepted a secretarial job from Abraham Brothman, whose associate Harry Gold accused her of trying to throw prosecutors off their scent.

Gold alleged that Moskowitz urged him to "stick to [his] story" rather than admit any inconsistency to prosecutors.

Based on his uncorroborated testimony, Moskowitz spent two years in prison and faced a $10,000 fine.

In 2008, Gold's grand jury testimony was unsealed. And it contained evidence that could have undermined the credibility of his story, Moskowitz's lawyers say.

The unsealed grand jury portions revealed, among other things, that Gold only spoke to Moskowitz about certain topics when Moskowitz left to get burgers and coffee, indicating that she was not in on any conspiracy.

Her lawyers at Baker Botts LLP told her this year that the evidence could give her reason to file for a "writ of forum nobus," a rare legal maneuver that makes expunging a conviction no easy feat.

U.S. District Judge Alvin Hellerstein explained during his bench ruling that this "extraordinary remedy" can only be granted when errors are of such a "fundamental character that render a proceeding itself irregular and invalid."

"'Fundamental,' 'irregular' and 'invalid,'" he emphasized. "Those are the criteria."

But standards for an "irregular" trial during the time of the Red Scare were far lower than what they are today.

Hellerstein noted that prosecutors at the time had no duty to share exculpatory evidence, which became the law of the land only after the landmark case Brady v. Maryland in 1963.

"I grant you, if I were a cross-examiner, I would use [the unsealed grand jury] information," the judge acknowledged.

Moskowitz's lawyer, Robert Maier, argued that Gold's credibility was fundamental to the case.

"The entirety of the evidence here, Your Honor, was Harry Gold," Maier said.

While denying that the government got it wrong in 1950, Assistant U.S. Attorney Robert Wood Allen argued that Moskowitz would not have reached the high standard even if it had.

Hellerstein agreed, finding that the government lived up to its disclosure obligations in place at the time. He also said that the new evidence did not fundamentally alter the record, and Moskowitz had waited too long to file her petition.

He said will release a written opinion at a later date.

After lawyers escorted her out of the courtroom, Moskowitz told reporters: "Too bad. My 98-year-old life goes on."

She commented that her case "reflects not so much on me, but on the prejudice of the McCarthy era."

The woman added that she would not file an appeal.

Editor's Note: Hellerstein put his bench ruling into words with on Dec. 9 with a 10-page opinion.

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