The Book of Daniel by E. L. Doctorow
“You mean they’d beat the rap?”
“Well no, not necessarily. I mean it would have been a different trial in the way it was handled. It would be tougher to convict them. The federal conspiracy laws being what they were the indictment would still be the same. That hasn’t changed. It is still the way to find someone guilty who you cannot prove did anything.”
“You were at Susan’s?” my mother says.
“Yeah.”
“I washed her hair today. I bought her a lovely robe but it’s too big. I’ll have to get the smaller size.”
“When it began I’m pretty sure the FBI didn’t know what they had or where it would lead them. They knew they had to bring in something. In those days, this was years before the sputnik thing, it was customary to downgrade the Russians’ science. People who know something about these things didn’t make that mistake. But at the level of Time magazine the joke was how they copied everything and claimed it for their own. Well, of course the corollary of that is that it’s our bomb they have and that means we were betrayed. After the war our whole foreign policy depended on our having the bomb and the Soviets not having it. It was a terrible miscalculation. It militarized the world. And when they got it the only alternative to admitting our bankruptcy of leadership and national vision was to find conspiracies. It was one or the other.”
“Sometimes I used to think about the odds against it.”
“What?”
“That it would be laid on us. A particular family in a country of millions of families.”
“Well, if you’re the Bureau you have on hand a resource of files, especially of known left-wing activists. That is what you go to first, your own files. It’s like at the local police level, a crime of a certain kind is committed, say of sexual deviation, so you question your known deviates. And when he’s brought in he knows he’s vulnerable. He’ll take pains to establish his innocence, or to distinguish himself from who is guilty. But say he is apprehended when no crime is known to have been committed, well then the distinctions he makes reveal to the police the sense he has of his own vulnerability. And they go to work on that. They go to work on it with the sense of being justified in their original decision to question him.”
“You mean Mindish?”
“They questioned him for weeks before they arrested him. And after they arrested him they kept questioning him. And he became their case.”
“Robert, I wish we wouldn’t talk about this.”
“He became their case because he named your parents.”
“Well, first Paul was arrested.”
“Yes.”
“And then not for a few weeks, Rochelle.” “Yes.”
“Well, what, did he have second thoughts about my mother?”
“Well, more probably they arrested her as a means of persuading your father to talk. He was not proving as cooperative as Mindish. This was their procedure, this was investigative procedure. And even after her arrest, if your parents had named other people they could have become prosecution witnesses like Mindish. But they didn’t do that. Therefore they became the defendants of the case. The government tried to take it as far as they could. That was their interest. But it stopped with Paul and Rochelle. Even after their trial and sentence, the government let them know that if they confessed the sentences would not be carried out. That indicates to me they didn’t know right to the end if they had the mastermind criminals they’d gotten a death sentence for. The idea of a confession was not to make your parents penitent, or to exonerate American justice. It was to make them name other people. So you see the death sentence itself was used as an investigative procedure.”
“What is this family’s continuing desire for punishment?” my mother says. “I can’t understand it.” She lays down her knife and fork.
“Lise, the boy asked me a question.”
“Does he have to be told these things? He doesn’t know?”
“I’m establishing for him the reasons Jake defended as he did.”
“You are going to tell him now, with the Isaacsons a dozen years in their graves, how you would have conducted the defense. That is hardly comforting.”
“Hey, Mom, did I ask for comfort? Did I say I needed comfort?”
“Lise, you’ll forgive me: I never felt it was a good idea to talk to Susan about the case.”
This remark brings us together. The air is clearing. Redness is in our cheeks. Around the kitchen table for one rush of an instant it is possible this son and his parents are having dinner together.
“So Mindish was their case. And Ascher chose to defend by discrediting Mindish. That was his defense. It seemed at the time the only possible defense to make. God knows I probably couldn’t have come up with anything better. The pressure was enormous. So he worked on Mindish’s self-interest. You see the theory for admitting accomplice testimony that is uncorroborated is that conspiracy is by its nature secretive and that only the parties to it can know it occurred. But in practice this means the accomplice’s guilt is modified to the degree that he can convict the defendant. Mindish confessed and was severed from the trial; he wouldn’t know what he was going to get until your mother and father were sentenced. For the same offense, they received the death penalty and he got ten years. Ascher developed the motivation. The jealousy theme—you remember that. Then the revelation that Mindish had never been properly naturalized and that his citizenship was in doubt. There was a question anyway but it seemed enough to show that Mindish might conceivably feel threatened by deportation, and therefore testify to anything the government wanted him to say. Ascher worked out an alternate scenario to show Mindish as guiltier than he himself confessed to being. His fear of deportation, his malevolence, his thwarted lechery. You remember that statement in the summary. You can just see him point his finger. Here is your spy. He and he alone is responsible.”
“Right.”
“Well, you see terrible error in that argument. It admits there was a crime.”
“What?”
“By arguing this way Ascher grants the government the one premise he shouldn’t have. That any crime was committed at all.”
“But Mindish confessed!”
“Yes. And Ascher’s one chance was to discredit the confession. I’ve thought about it a lot. It’s not what you’d call ordinary procedure. But everything was loaded against them and something extraordinary was required. There was a very slim chance—for all the massive righteousness and fear of the time, and the relentless federal machinery—there was still a way to bring in the other verdict. And that was to prove the Isaacsons innocent by proving Mindish innocent,”
Technology is the making of metaphors from the natural world. Flight is the metaphor of air, wheels are the metaphor of water, food is the metaphor of earth. The metaphor of fire is electricity.
“I know, I know. It goes against the grain. But the more Ascher attacked Selig Mindish the more he led to the governmerit’s strength. After all it finally boils down to which testimony the jury is going to believe. If the defense tacitly joins the prosecution in assuming a crime of espionage was indeed committed, where shall the distinction be made as to who was and who was not involved? Do you believe the prosecution witness who confesses or the defendant who denies? You see, in this light even testimony developed by the defense, Mindish’s questionable citizenship, operates for the prosecution. If he is not a citizen, he is a foreigner, with foreign loyalties. His own testimony tends to be supported. You see my point? Ascher was asking an American jury to believe that a man would be evil enough to put the finger on his innocent friends of fifteen years, practically a father to them by his own characterization. Closer than family, as he also described the relationship. They were closer than family. It is easier to believe in an offense against the state.”
“But why would Mindish confess if he was innocent? What would his motivation be for that?”
“Well, it’s hard now through everything that’s been written to remember some of the facts a
om om om omm omm omm om om ommmmmm
ohm ohmm ohm ohm ohm ohhmm ohm ohmmmmm what is it that you can’t see but you can feel
what is it that you can’t taste and can’t smell and can’t touch but can feel
ohm ohm ohm ohm ohm
what is it that you can’t feel but you look as if you do
ohm
what is it that can’t move unless you put something in its way
What is it that moves through others, comes from the sky and is invisible, can only be detected after it’s gone—not God, not the Lone Ranger.
ohm ohm ohm ohm
What makes you smell when you touch it, blacken when you feel it, die when you taste it.
ohm
What is it that lightens the life of man and comforts his winters and sings that he is the master of the universe; until he sits in it.
ohm
Interesting find is a review of the trial record by law students at Univ Virginia pub in their review in Apr 54, or two months or so before the end. Adviser of these students none other than asst professor Lewin. The law students find no less than seventeen abuses of due process as grounds for retrial. The assumption is that the original trial was exceptionally and not structurally inadequate. Yet we may ask how after a judicial process of three years, involving the highest levels of American jurisprudence, if these students were able to find these errors of due process, no one in the judiciary was capable of this minimal perception. Or to phrase the issue differently, if justice cannot be made to operate under the worst possible conditions of social hysteria, what does it matter how it operates at other times?
Robert Lewin is still at work on a way to reverse the verdict. I am beginning to be intolerant of reformers. Ascher depending on the appellate courts. I am beginning to be nauseated by men of good will. We are dealing here with a failure to make connections. The failure to make connections is complicity. Reform is complicity.
It is complicity in the system to be appalled with the moral structure of the system.
I have before me on this table the six books written about my parents’ trial. Two support the verdict and the sentence, two support the verdict but not the sentence, which they find harsh, and two deny the justice either of the sentence or the verdict. All possible opinions are expressed, from Sidney P. Margolis famous Hearst philosopher (SPIES ON TRIAL) to Max Krieger liberal bleeder (THE ISAACSON TRAGEDY). Here is a statement from each. “For all the hysteria drummed up by the commies, their fellow travelers, and their dupes, the Isaacsons received a fair trial…. Who but the very ideologues committed to overthrowing our democratic way of life can dare claim in view of the defendants’ use of every legal dodge available under due process, that justice was not done?”—Margolis. “History records with shame the persecution and infamous putting to death in the United States of America of two American citizens, husband and wife, the father and mother of two young children, who were guilty of not so much as jaywalking, for their proudly held left wing views.”—Krieger. There is no substantial difference in these positions. To say nothing of their prose.
I am prepared to accept the idea that to the extent Ascher bought the premises of the cold war he made mistakes. I am prepared to accept too the idea that Dr. Selig Mindish was innocent. It is an idea they themselves were not prepared to entertain. I hated Mindish long before there was any trial. I hated his smell, his smirk. I hated his accent, and the merry death in his oyster eyes. Nevertheless I am prepared to accept the idea that he too was innocent. But only because he would have suffered more at the time. But only because he has suffered more since.
Innocence is complicity.
After the sentence was passed there was a big party. At the party, drinking champagne, was Judge Barnet Hirsch, defense attorney Jacob Ascher, Robert Lewin the son of Ascher’s former law partner, the writers Margolis and Krieger (who got drunk and sang the Internationale), the Jewish prosecuting attorney Howard “Red” Feuerman, the President of B’nai B’rith, Thomas Flemming known as Talking Tom because he testified for the government at no less than four different spy trials, Boris Brill the famous anti-Communist expert, Mindish, and my parents. A late arrival who came to pay his respects was V. Molotov.
The Judge called Ascher to the bench. He conferred with Ascher, standing up from his chair and propping himself on his forearms. From his black robe his two hands extended like the claws of a bird from its black feathers, and gripped the edge of his desk. He was leaning into Ascher’s ear, like a great bird pecking at the old lawyer’s cheek. Ascher nodded vigorously. Then he shook his head and turned, looking up, to dispute what had just been told him.
The bench was of light varnished oak, like the chairs and the spectator benches. It was school furniture. A round-faced school clock with large black hands ticked on the wall, A flag grey with dirt stood in its stand in the corner of the courtroom. There was a picture of the President behind the bench, and a New York State flag in the other corner.
The courtroom was almost empty. A cop stood under one window with his arms folded. He was unarmed and wore no hat. He yawned. A woman with thick legs and low-heeled shoes who was dressed in the same blue color as the policeman’s uniform sat directly behind the couple. There were for this momentous occasion no reporters present. The few people in the spectators’ section were there on their own business with the Judge. They were nervous and sharp with one another. They whispered urgently and told each other to be quiet.
Ascher came back from the bench and addressed his two clients: “Stand up, please, come up here with me. The Judge wants to ask you some questions. Come, come, he won’t hurt you.”
Daniel and his sister Susan stood up and slid along the pew and came out into the aisle. Susan held his hand tightly.
“Come. Quickly, this is a busy place.”
They stood in front of the bench looking up at the bird on his perch in his black feathers and white crest. “Is this Daniel?”
He nodded. “And this is Susan?”
She stared at him making no sign of having heard.
“Isn’t that who you are? Susan Isaacson, don’t I have that right?”
“You must answer the Judge,” Ascher said.
Susan swallowed. He could see her swallowing. He shook her hand, attached to him as if glued, shook it till she nodded.
“Very good. Now I want to ask you children a question, and I want each of you to answer. It is a very simple question, it is an easier question than any you have to answer in school. All right?”
“All right,” Daniel said.
“My question is this: Do you like living at the Shelter? Don’t look at Mr. Ascher. You will have to answer this question for yourself.”
The boy was terrified. He didn’t know what to say. The little girl continued to stare up at the Judge. She was not capable of making a sound.
“Well, surely you can tell if you like a place or not. Are you well treated there? Are you happy there? Or would you rather be somewhere else.”
“Somewhere else,” Daniel said. “We want to go home.”
Ascher was shak
Suddenly, he disappeared.
“We’ll go into the chambers,” Ascher said, holding us before him and shuffling us forward to a door.
We were in an office that had a soft grey carpet and a big desk and black leather chairs and a black leather sofa. There were books in bookcases that had glass doors. We sat on the big leather couch, Ascher sat in one of the chairs facing us, and the Judge sat in another. The Judge had taken off his black robe and he looked smaller. He had a white tuft of hair that stuck out of each side of his pink head. He wore a light tweed suit with a vest that was too tight so that it pulled away from its buttons and made elliptical gaps that showed the white of his shirt. He was a tiny man, and when he crossed one leg over the other, he helped it with his hand, lifting his leg under the knee and pulling it over his other knee.
“Ah, here we are,” he said.
A grey-haired lady had come through another door and approached us with two bottles of soda in her hands. Eyeglasses hung from a chain around her neck. She handed the bottles to us and then put some change in the Judge’s hand. Then she left the room. The Judge had to unfold his legs again to get the change into his pocket.
It was Coca-Cola. My father had once told me that it rotted the teeth. That if you put a tooth in a glass of Coca-Cola it would rot away. At home we never drank it.
“Now this is better, isn’t it? Where we’re all talking together like this instead of out there? Now has Mr. Ascher told you my name?”
“Judge Greenblatt,” Ascher mumbled.
“That’s right, Judge Greenblatt,” the Judge said as if we had said his name. “And I am appointed by the State to be the Judge of the Children’s Court to see to it that children in difficult straits for one reason or another have the best possible chance. You know that.”