MANHATTAN (CN) - A 98-year-old woman this week asked a federal judge to vacate her McCarthy-era conviction on an atomic espionage charge, claiming recently released documents show the government knew the testimony against her was false.
Miriam Moskowitz, a New Jersey native of Hungarian decent, says her 1950 felony conviction was a miscarriage of justice that cast a shadow over the rest of her life.
Moskowitz concedes in her Petition for Writ of Error coram nobis
that it is far too late for the court to rectify most of the harms she endured as a result of her conviction, but there is still time to correct "this historical wrong."
"The profound injustice of Ms. Moskowitz's felony conviction represents exactly the type of 'fundamental error' that only the writ of error coram nobis
can redress, and is a prime example of the 'extraordinary cases presenting circumstances compelling its use to achieve justice,'" Moskowitz's attorney say, citing United States v. Denedo
, 556 U.S. 911 (2009).
The 16-page petition includes 56 pages of exhibits, which include court and grand jury transcripts and at least once document formerly stamped Secret.
As recounted in the court documents, Moskowitz's misfortune was to accept a secretarial job from Abraham Brothman who, unbeknownst to her, was passing information to a number of Soviet spy rings.
In 1947, Brothman and his associate, Harry Gold, a laboratory chemist, were questioned by the FBI about their alleged activities, and Gold - a courier for Soviet spy rings during the Manhattan Project, turned government informant.
Among those he eventually fingered were Julius and Ethel Rosenberg, who were tried, convicted and executed in part on the basis of his testimony.
Under interrogation about his activities with Brothman, Gold repeatedly told the FBI that Moskowitz was unaware of efforts to straighten out the stories before the grand jury. However, after the government threatened him with the death penalty, Gold changed his story and testified against her, Moskowitz says.
Based on Gold's testimony, both Brothman and his Moskowitz were convicted of obstruction of justice and served terms in prison.
"Over the past sixty-four years, the fundamental error of Ms. Moskowitz's criminal conviction has become even more apparent and inescapable," her attorneys say in the petition.
"First, it has come to light that the government withheld critical and exculpatory evidence for nearly sixty years. Second, the jury was undeniably affected by the prevailing sentiments of the McCarthy era, making it impossible during that time for Ms. Moskowitz to have received an objectively fair trial. Third, her former boss and employer, Abraham Brothman, saw his conviction for obstruction of justice reversed by the Second Circuit on the ground that venue did not lie in the Southern District of New York. United States v. Brothman
, 191 F.2d 70 (2d Cir. 1951). Despite the fact that the substantive count against her codefendant was reversed by the appellate court, Ms. Moskowitz served two years' imprisonment, paid a $10,000 fine, and continues to live under the cloud of her unjust felony conviction."
Moskowitz says she did not learn of critical evidence that was withheld from her defense team until grand jury minutes and FBI reports from the case were made public in 2008.
Those documents reveal "fundamental conflicts between Harry Gold's statements heard by the grand jury and the testimony he gave at Ms. Moskowitz's trial," according to the petition.
According to the grand jury minutes, Gold repeatedly confesses to fabricating testimony that Moskowitz was present when he relayed to Brothman the fictitious story that he told the FBI agents, and that she agreed to be part of the conspiracy.
"I lied desperately," Gold is reported to have said, explaining that in reality, he waited until Moskowitz left to get coffee or run other errands.
Moskowitz's attorneys say that if Gold had stuck to that story, it might have undermined other prosecutions.
"Harry Gold, the Government's key witness, changed his testimony at the trial just four months later, inculpating Ms. Moskowitz in Gold's conspiracy with Abraham Brothman to lie. ... None of his prior statements or testimony was available to the defense. ... Without that recanted testimony, Ms. Moskowitz could never have been convicted," according to the petition.
Moskowitz's ability to defend herself at the time was also compromised by the fact that in 1951 she was having an affair with Brothman, a married man.
Although subpoenaed to appear before a federal grand jury investigating atomic espionage, "she declined to testify out of concern that the affair would be brought to light," according to the court documents.
"Even had she been willing to cooperate, Ms. Moskowitz had no relevant testimony to offer because, as described above, both Gold's statements that were read to the grand jury and the FBI's own reports show that Ms. Moskowitz knew nothing of Brothman and Gold's plan to straighten out their story before the grand jury," her attorneys say.
Moskowitz claims that as a result of her conviction and the stigma of being associated with espionage, she never married or had children, and that FBI agents "repeatedly harassed" her at her workplace, "which resulted in her termination."
"For decades thereafter, Ms. Moskowitz felt the need to keep a low profile in both professional and social settings so as not to draw attention to herself," the petition states.
"The $10,000 fine Ms. Moskowitz paid in 1950, equivalent to nearly $100,000 today, together with lost job opportunities have caused Ms. Moskowitz economic hardship her entire life," the petition states. "While the Court cannot undo more than sixty years of economic adversity, vacating the conviction and fine will help alleviate some of that distress particularly since, having never married, Ms. Moskowitz has always had to support herself."
Moskowitz wants her conviction vacated.
She is represented by Robert Maier and Joseph Perry with Baker Botts.
Harry Gold was sentenced in 1951 to 30 years imprisonment, but was paroled in May 1965, after serving just under half of his sentence. He died in Philadelphia in 1972.