Miriam Moskowitz and her attorney, Guy Eddon, an associate at Baker Botts (NYLJ/Rick Kopstein)
The 98-year-old retired math teacher who walked into the Manhattan federal courthouse on Monday says she has never forgotten that she is a convicted felon.
Unjustly so, she insists. She believes that she may be the last living victim of the “hysteria” produced by Sen. Joseph McCarthy’s crusade against communism.
And she is determined to prove—64 years after her conviction for conspiracy to obstruct a grand jury’s investigation of atomic espionage—that she is innocent. Her pro bono attorneys from Baker Botts have reached deep into the lawyer’s toolkit for what they call an “exceptional” petition they hope will persuade Southern District Judge Alvin Hellerstein (See Profile) to vacate her conviction.
Miriam Moskowitz, of Washington Township, N.J. was a secretary to chemical engineer Abraham Brothman, who was suspected of passing documents to the Soviets, when they were arrested in 1950.
Along with her photo, a front-page New York Daily News headline read on July 30, 1950, “REDS SMASH ON IN FLANK ATTACK, Nab Man, Woman in Spy Plot.
“I was made out to be a monster, and I did nothing wrong,” Moskowitz told Law Journal affiliate Am Law Daily. “All I want is to clear my name before it’s too late.”
Robert Maier, a partner at Baker Botts in New York, along with associates Guy Eddon and Joseph Perry are representing Moskowitz pro bono in her long-shot crusade.
“Our goal is to see that justice is done in a pretty unusual case,” said Eddon, an intellectual property attorney.
The arrest of Moskowitz and Brothman came 11 months after the Soviet Union detonated its first atomic bomb. Moskowitz said many Americans were “hoodwinked” into believing that traitors had stolen the ultimate weapons and handed it to our enemies­—only a few years after the Soviets were our admired allies and played the crucial role in defeating the Nazis in World War II.
Moskowitz said the allegations were “nonsensical.” The bomb was so complex that “you couldn’t steal [it] if you wanted to.” She credits Soviet physicists, “among the most respected in the world,” with getting the bomb. “They did it themselves,” she said in an interview with the Law Journal in her lawyers’ Rockefeller Center offices.
In any case, neither Moskowitz nor Brothman were charged with espionage. Brothman was charged with obstruction of justice and conspiracy to obstruct justice because he and his associate, Harry Gold, an acknowledged courier for Soviet spy rings, discussed how to keep their stories straight before the grand jury. Moskowitz was charged with conspiracy for allegedly being present and failing to notify the government about their plans.
Moskowitz denies the accusation; she says that Gold hated her and lied at her trial—changing the story he had told only four months before—to escape punishment for his own activities. She scoffed that the government went after her because “I was a woman. They wanted a Mata Hari.”
Moskowitz did not testify before the grand jury or at trial because she said she was having an affair with Brothman and was afraid that information would come out.
With the paranoia of the McCarthy era seeping into the courtroom, the jury convicted both Moskowitz, then 34, and Brothman of the charges against them. Gold was the only witness against Moskowitz.
Only a few months after Moskowitz’s arrest, the government began its prosecution of Julius and Ethel Rosenberg for espionage, which ended in their executions. Then-Southern District Assistant U.S. Attorney Roy Cohn said in his autobiography that the cases of Moskowitz and Brothman were a “dry run” for the later case—with the same judge, Southern District Judge Irving Kaufman; the same head prosecutor, Irving Saypol, who was assisted by Cohen; and many of the same witnesses.
Moskowitz served two years in the Federal Reformatory for Women in Alderson, W. Va., and paid a $10,000 fine, roughly equivalent to $100,000 today.
“I survived,” Moskowitz said of her prison experience. “I knew it wasn’t going to last forever.”
However, she said in a book written recently that she had to tread carefully because there was an “undertone of hostility” toward her on the part of guards. “I was that insufferable, quintessential outsider, a Jew,” and a disloyal one at that.
However, she said the prison routine became more bearable when the officer in charge of the prison’s music program loaned her a violin.
Meanwhile, she composed detailed letters to relatives about what was happening to her. She thought she would need the information she included to research a book she planned to write.
Away from Brothman, she said she could “think clearly and make a decision.” She realized their relationship was “evil and wrong, and it was what upended my life.”
When she was released, Moskowitz got a job in public relations. But she said that FBI harassment and her own notoriety cut short that career. Falling back on her degree from City College of New York, she became a teacher.
“The entire course of my life has been affected by my conviction,” said Moskowitz, who never married or had children.
For years, she did not talk about her past; “it lay buried.” She put the book project aside because teaching was a demanding job and took up a lot of time. What time was left, she spent on her music.
She took up her book project again when she retired and her deteriorating eyesight made it hard to read musical notes.
The book, which was published as “Phantom Spies, Phantom Justice” in 2010, took 10 years to write. During that time she obtained FBI reports and secret grand jury testimony, disclosing that Gold gave a very different account than in his trial testimony.
A transcript of grand jury testimony in the Brothman-Moskowitz case was unsealed in 2008 by Hellerstein, part of a larger trove of documents sought by National Security Archive of the George Washington University, several organizations of historians and New York Times reporter Sam Roberts.
Moskowitz hoped that “Phantom Spies” would “do something, but “it’s a book, nothing more than a book. It doesn’t get into court. It doesn’t get into the hands of a judge.”
Enter Baker Botts
Eddon met Moskowitz more than 20 years ago in New Jersey, when he played the cello and the viola in a local ensemble. He didn’t know anything about her past until 2010 when he read a blurb about her book in The New Yorker.
Earlier this year, he read about a rare form of legal relief—a writ of error coram nobis—granted by Eastern District Judge I. Leo Glasser (NYLJ, July 7). Eddon thought the device offered hope of vindication for Moskowitz, and Baker Botts agreed to represent her.
Having never filed this type of request, Eddon has logged roughly 75 hours since early July exploring the case law, reading FBI reports and transcripts and searching for original documents stored in Washington, D.C., and the Columbia Law School library.
“[Guy] personally cares about the results of this petition,” said Maier, who has logged nearly 20 hours. “He has a stake in it and he’s trying to right a wrong … all that makes it more compelling.”
A petitioner for coram relief must show 1) that under the circumstances it is necessary to achieve justice; 2) sound reasons exist for failure to seek appropriate relief earlier; and 3) the petitioner continues to suffer legal consequences from her conviction that may be alleviated by the granting of the writ. Foont v. United States, 93 F.3d 76 (2nd Cir. 1996).
On Aug. 11, only a few months after Baker Botts had taken on Moskowitz as a client, her legal team filed a coram petition, branding her conviction as a “profound injustice” and a “fundamental error,” Moskowitz v. United States of America, 14 cv 6389.
“She’s 98 years old,” said Eddson. “We didn’t want to waste any time.”
The filing states that, based on evidence hidden from the defense for more than 60 years, both Brothman and Gold told FBI agents and the grand jury that Moskowitz was never part of a conspiracy to lie to the grand jury.
The petition argues that had the jury known about this previous testimony, “no reasonable jury could have believed Gold’s later testimony against Moskowitz.”
Further, the petition states, “Throughout the trial, in myriad ways that would be unfathomable today, the judge and the prosecutors revealed their political bias and motivation.”
During voir dire, Kaufman asked potential jurors whether any were prejudiced against the House Un-American Activities Committee or supported the Communist Party.
Kaufman allowed the prosecution to read large swaths of Gold’s grand jury into evidence, over defense attorney William Kleinman’s protest that he had been given no opportunity to review it.
Prosecutor Saypol said in his closing statement that the obstruction of justice at issue “was perpetrated to retard an investigation of espionage to conceal the activities of these parties on behalf of the Soviet Union.”
Kaufman thanked the jurors for their verdict against defendants he suggested had attempted “to undermine the very backbone of our country.”
The U.S. Court of Appeals for the Second Circuit reversed Brothman’s conviction on the substantive obstruction charge while upholding the conspiracy convictions of him and Moskowitz. United States v. Brothman, 191 F.2d 70.
“As it stands, Miriam Moskowitz is a convicted felon, while the criminality of the underlying conduct has been strongly challenged” her filing says.
Eddon acknowledged in an interview that obtaining coram relief “always is a tough road to climb.”
A Lexis search of 51 coram decisions within the last two years in federal courts nationwide found only three instances in which petitions had been granted. The Glasser decision is being appealed by the Eastern District U.S. Attorney’s Office.
Eddon said that he has explained the odds to his client frankly, but she remains optimistic.
A ruling in her favor “is inevitable if I get a judge who is sympathetic and has read the trial record and says, ‘I can’t believe this happened. ‘I can’t believe Judge Kaufman allowed this. I can’t believe the prosecutor’” made the prejudicial comments that he did, she said.
Moskowitz’s trip to federal court Monday was her first in more than 64 years.
“I have to confess that I have the same butterflies today that I had the last time,” she said. “That feeling of, ‘What are these people talking about? What are they saying?’ The routine [of the court proceedings] was so prescribed and orderly that it never seemed like it was really happening until we got further into the trial.”
During the brief conference, Hellerstein jokingly referred to a Jewish tradition that holds no one can aspire to more than 120 years of life because that’s how long Moses lived.
However, Hellerstein said several times that he wanted to move quickly, establishing a schedule under which the government’s response is due Oct. 1, Moskowitz’s reply is due Oct. 14 and a hearing will be held Nov. 4.
Southern District Assistant U.S. Attorney Robert Allen told the judge that, “It’s still [too] early” to say how the government will respond to the petition. But he added that the U.S. Attorney’s Office will not need any witness testimony, and no facts are in dispute, so they don’t anticipate a need for discovery.
Sitting with her lawyers, Moskowitz watched the proceedings attentively but had trouble hearing. Hellerstein stopped every few minutes to allow Eddon to lean over and loudly explain what was happening. The judge said a real time transcriptionist would be on hand for the next hearing to allow her to follow on a screen.
Kaufman died in 1992, and Moskowitz watched from across the street as his body was carried into the synagogue for a funeral.
She recounts in her book how, seizing the chance to confront her nemesis, she improvised a lengthy silent curse in which she said that his name “is etched on the tablets of history by the acid of your inhumanity. It has become the vilest of curses, and anathema, an execration for the ages.”
Decades later, Moskowitz said she is not bitter, but “I am still angry.”