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  • Gad Guterman

It is useful to begin with some immutable facts: Julius and Ethel Rosenberg died on the electric chair at Sing Sing Prison on Friday, 19 June 1953, and were pronounced dead at 8∶06 and 8∶17 p.m., respectively. Nearly seventeen years later, on 23 April 1970, Donald Freed's Inquest opened at the Music Box Theatre in New York City. The play about the Rosenberg case ran for eight previews and twenty-eight performances, closing just twenty-three days after its premiere. In its first minutes, Inquest alerted the audience that “every word you will hear or see on this stage is a documented quotation or reconstruction from events.” Freed asserts that he used only primary sources, no matter how “bizarre or poisoned” the words might have seemed, to construct his script. He employed these sources in three distinct ways and, accordingly, called for a divided stage to present the play. In Stage A, the players enacted portions of the 1951–3 court transcripts, whereas Stage B served as a plastic space, where flashback scenes of the characters' out-of-trial lives, pieced from letters, tapes, memos, and other available archival sources, interrupted the legal proceedings. Finally, relying on a large, partitioned screen situated upstage and on voice-over recordings, Freed assembled photographs, newspaper headlines, visual evidence submitted in the courtroom, and quotations from public figures to comment on the Rosenberg saga. The playwright thus toyed with time and place, offering the central story of the trial in a nonlinear manner. He bombarded the audience with projections and sounds to reinforce the reality on which the play was based and, at the same time, to evoke a nightmarish, multimedia world.

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1. Neville, John F., The Press, the Rosenbergs, and the Cold War (Westport, CT: Praeger, 1995), 133.

2. League of American Theatres and Producers, Inquest, Internet Broadway Database, (accessed December 4, 2004).

3. Freed, Donald, Inquest (New York: Samuel French, 1969), 67, emphasis in original. Unless otherwise noted, references to the play will come from this publication of the script, which was the one used for the Broadway production.

4. Freed, Donald, “The Case and the Myth: The United States of America v. Julius and Ethel Rosenberg,” in Voicings: Ten Plays from the Documentary Theater, ed. Favorini, Attilio, (Hopewell, NJ: Ecco Press, 1995), 199203, at 201.

5. Schneir, Walter and Schneir, Miriam, Invitation to an Inquest (1965; reprint, New York: Delta, 1968); Wexley, John, The Judgment of Julius and Ethel Rosenberg (New York: Cameron & Kahn, 1955).

6. Introduction to “The Documentary Theatre,” World Theatre 17.5–6, ed. René Hainaux (1968), 375.

7. Attilio Favorini, “After the Fact: Theater and the Documentary Impulse,” in Voicings, xi–xxxix.

8. Weiss, Peter, “Fourteen Propositions for a Documentary Theatre,” World Theatre 17.5–6 (1968): 375–89, at 375.

9. Isaac, Dan, “Theatre of Fact,” TDR 15.3 (Summer 1971): 109–35, at 109.

10. Garner, Bryan A., ed., Black's Law Dictionary, 2d pocket ed. (St. Paul: West Group, 2001), s.v. “Jury.” See also Osborn, Albert S., The Mind of the Juror as Judge of the Facts, or The Layman's View of the Law (Albany: Boyd Printing Co., 1937), xi. Although most juries consist of twelve members, there are exceptions and much debate about the number.

11. Osborn, 8.

12. Isaac, 122.

13. Benjamin, Walter, “Theses on the Philosophy of History,” Illuminations, ed. Arendt, Hannah, trans. Zohn, Harry (New York: Schocken Books, 1968), 253–64, at 256.

14. Gewirtz, Paul, “Narrative and Rhetoric in the Law,” in Law's Stories: Narrative and Rhetoric in the Law, ed. Brooks, Peter and Gewirtz, Paul (New Haven: Yale University Press, 1996), 213, at 5.

15. Robert A. Ferguson, “Untold Stories in the Law,” in Brooks and Gewirtz, 84–98, at 97.

16. Lawrence, Jerome and Lee, Robert E., Inherit the Wind (New York: Ballantine Books, 1955), authors' note; Wexley, John, They Shall Not Die (New York: Alfred A. Knopf, 1934), back page.

17. Benjamin, 257.

18. Posner, Richard, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), 77.

19. Ball, Milner S., “All the Law's a Stage,” Cardozo Studies in Law and Literature 11.2 (Winter 1999): 215–21, at 217.

20. Mattox v. United States, 156 U.S. 237, 242–3 (1895).

21. Quintilian's Institutio oratoria (VI, 1.30–1), quoted by Enders, Jody in The Medieval Theater of Cruelty: Rhetoric, Memory, Violence (Ithaca: Cornell University Press, 1999), 186; Cicero's De oratore (II, 354) quoted in Enders's Rhetoric and the Origins of Medieval Drama (Ithaca: Cornell University Press, 1992), 45.

22. Taylor, Diana, The Archive and the Repertoire: Performing Cultural Memory in the Americas (Durham: Duke University Press, 2003), 16. On the shift from an oral to a literary culture, see, for example, Levine, Lawrence W., Highbrow/Lowbrow: The Emergence of Cultural Hierarchy in America (Cambridge: Harvard University Press, 1988). Levine writes: “Literacy encroached upon the pervasive oral culture that had created in nineteenth-century America an audience more comfortable with listening than reading… . Thus the generations of people accustomed to hearing and reciting things out loud … were being depleted as America entered a new century” (48).

23. Auslander, Philip, Liveness: Performance in a Mediatized Culture (London: Routledge, 1999), 128–9.

24. According to Taylor, 19–20, the “archive” is made up of supposedly enduring materials, like court transcripts and documents, whereas the “repertoire” consists of embodied practices and knowledge, of performances. On the importance of embodied experiences as acts of transfer, see esp. 173; on witnessing as an act of transfer, see esp. 211.

25. Hanks, Eva H., Herz, Michael E., and Nemerson, Steven S., Elements of Law (Cincinnati: Anderson, 1994), 22 n. 38.

26. Jody Enders traces “the art of memory” in Medieval Theater of Cruelty, exploring the connections among the human body, the absent body, memory, and performance. She explains that “[t]he presence of memory … depends on the absence of things past and on the resurrected presence of the dead who may be brought back to life so that they might speak again” (75). See especially chap. 2, “The Memory of Pain,” 63–82. Similarly, Joseph Roach offers that performers' bodies are “always offered up on the altar of surrogacy,” that through this sacrifice, the dead can return to the world of the living. Live performance, in essence, can generate life. Cities of the Dead: Circum-Atlantic Performance (New York: Columbia University Press, 1996), 40. As Bert O. States summarizes, “theater ingests the world of objects and signs only to bring images to life,” and because the actor's body is always a real body, it “takes us into a world within the world itself … [enabling] us to recognize the human ‘from the inside.’” Great Reckonings in Little Rooms: On the Phenomenology of Theater (Berkeley: University of California Press, 1985), 37, 46–7.

27. Rokem, Freddie, Performing History: Theatrical Representations of the Past in Contemporary Theatre (Iowa City: University of Iowa Press, 2000), 13. Rokem warrants that documentary drama does not quite fit his notion of “performing history,” as a theatre of fact categorically does not accent “the time-lag between the ‘real’ events and their theatrical reenactment” (7). Like others attempting to demarcate the differences between historical and documentary drama or theatre, Rokem focuses on the tension between found and invented fact to label the genres. Still, because Rokem does not specifically consider the role of the actor as a categorizing factor, his ideas about the acting of history remain useful for discussing the actor's contribution to the theatre of fact.

28. Artaud conceives of the flesh as a charged conduit, a powerful component of “the incomprehensible magnetism of man.” The flesh possesses “the secret pathways of the mind,” and, through it, we can reach “the definitive understanding of Life.” “There is a mind in the flesh,” he writes, “but a mind quick as lightning.” Antonin Artaud, “Situation of the Flesh,” in Antonin Artaud: Selected Writings, ed. Susan Sontag, trans. Helen Weaver (Berkeley: University of California Press, 1976), 110, 111.

29. Kubiak, Anthony, Stages of Terror: Terrorism, Ideology, and Coercion as Theatre History (Bloomington: Indiana University Press, 1991), 130, emphasis in original.

30. Favorini, xviii.

31. Piscator, Erwin, “Objective Acting,” in Actors on Acting, ed. Cole, Toby and Chinoy, Helen Krich (New York: Three Rivers Press, 1949), 301–7, at 302.

32. Weiss, 383.

33. Berrigan, Daniel, “From Underground, Father Berrigan Speaks to Actors,” New York Times, 31 January 1971, D1. Quoted in Isaac, 131.

34. On the restrictions faced by jurors in regards to taking notes and asking questions, see Jonakait, Randolph N., The American Jury System (New Haven: Yale University Press, 2003), 192–7.

35. For Barba's ideas about performance, see his and Savarese's, NicolaA Dictionary of Theatre Anthropology: The Secret Art of the Performer (New York: Routledge, 1991), esp. 822.

36. Winner, Lucy, “Democratic Acts: Theatre of Public Trials,” Theatre Topics 15.2 (September 2005): 149–69, at 159.

37. Stanislavski, Constantin, An Actor Prepares, trans. Hapgood, Elizabeth Reynolds (New York: Routledge, 1948), 271–80.

38. Ball, Milner S., “The Play's the Thing: An Unscientific Reflection on Courts under the Rubric of Theater,” Stanford Law Review 28.1 (November 1975): 81115, at 101.

39. Osborn, 1.

40. Neville, 35.

41. Roach, 36.

42. Enders, Medieval Theater of Cruelty, 73, emphases in original.

43. Rokem, 98.

44. Kerr, Walter, “Inquest: Kerr Votes Against It,” New York Times, 3 May 1970, 99. All the quotations from the review appear on this same page, so for the sake of simplicity, I will not provide further references.

45. Antonin Artaud, The Theater and Its Double, trans. Mary Caroline Richards (New York: Grove Press, 1958), 83. It should be noted, too, that Erwin Piscator's Total Theatre involved “bombarding the emotions with an arsenal of theater technology to achieve maximal audience manipulation.” This included mixing film sequences, political cartoons, photographic projections, music, and other media into the theatrical presentation to create “an alternative to the capitalist newspaper accounts of the same events.” See Favorini, xix.

46. Artaud, 26.

47. “Two Released Temporarily in Grenade Case,” Washington Post, 18 February 1970, A17; “Daughter of Aide in Canada on Bail,” New York Times, 4 October 1969, 35. Judge Irving Kaufman, the same man who had condemned the Rosenbergs to the electric chair, urged FBI Associate Director William Sullivan to open an investigation into Freed's play. Years later, thanks to the Freedom of Information Act, the playwright was able to obtain copies of some of the memos, letters, and documents that circulated among FBI agents, J. Edgar Hoover, and Judge Kaufman. One of them ominously insisted, “recommendation: This matter will be followed closely” (Richard Stayton, “Meet Donald Freed,” in Plays by Donald Freed, [New York: Broadway Play Publishing, 1990], vii–xiv, at ix).

48. In a mass-mailed letter dated 20 April 1970, Morton and Helen Sobell, on behalf of the Committee, acknowledged Freed's contributions to the ongoing debate about the trial and for reviving memories at a time when it might “be possible to approach the case with greater objectivity.” Inquest Clippings File, Lincoln Center Collection, New York Public Library.

49. One need only look at some of Chicago Seven Abbie Hoffman's words to understand the generational conflict inherent in the political one. Of using the television to grab the attention of U.S. citizens, for instance, he said: “We reached them as they sat having dinner. And the father would say ‘Fuck those damn hippies. Beat ‘em up cop. Go get ‘em’. And the kids would look at their fathers and say ‘I think I've had enough to eat, I'm going up to bed’. Or some of them went to Chicago.” Quoted in his obituary by Nigel Fountain, Guardian (London), 14 April 1989.

50. Jonakait, 56.

51. Kubiak, 157.

52. Artaud, 79; Kushner, Tony, Angels in America: Perestroika (New York: Theatre Communications Group, 1992), 114.

53. The major scene with the reporters is in on 10–11 in the Samuel French publication (see n. 3).

54. Schneir and Schneir, 50.

55. See, for example, Munslow, Alun, The Routledge Companion to Historical Studies (London: Routledge, 2000); and Scott, Joan W., “Women's History,” in New Perspectives on Historical Writing, 2d ed., ed. Burke, Peter, 4370 (University Park: Pennsylvania State University Press, 2001). de Certeau's, MichelThe Writing of History (New York: Columbia University Press, 1975) and White's, HaydenMetahistory (Baltimore: Johns Hopkins University Press, 1973), both of which equate writing history to writing fiction, did not appear until the mid-1970s.

56. Although arguments are often made against a voir dire process that relies predominantly on basic biographical and demographic criteria, trial lawyers necessarily must take such information into consideration. The result, as Valerie P. Hans and Alayna Jehle mockingly explain, is that attorneys do indeed depend on “demographic characteristics and stereotypes only slightly less preposterous than the avoidance of bald men and people with green socks.” Hans and Jehle, “Avoid Bald men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection,” Chicago–Kent Law Review 78.3 (2003): 1179–1201, at 1179. Although an attorney will obviously search to fill his or her jury with individuals who fit particular conditions, oftentimes readily available information like gender, age, profession, and place of residence serve as the tools with which lawyers (and now jury consultants) make decisions. The courts themselves endeavor to facilitate the process. New York State, for example, proudly explains that its new juror questionnaire “provides lawyers with a … comprehensive biographical sketch of potential jurors” to facilitate a more effective voir dire. New York State Jury Pool News (Spring 2005), 6, (accessed 11 September 2006). Biographical information, in short, is seen as an important element to building juries.

57. John Corry, “Walter Kerr, a Dominant Critic during Broadway's Full Flower, Is Dead at 83,” New York Times, D22, 10 October 1996. The few biographical facts included in this essay all come from this obituary.

58. All biographical information regarding the critics comes from a variety of newspaper and magazine articles: Gottfried, Martin, “A Gentleman of the Press,” New York Post, 11 September 1976, 18; Peter Kihss, obituary for Watts, New York Times, 3 January 1981; Martin Weil, obituary for Gill, Washington Post, 30 December 1997, B6; Mel Gussow, obituary for Kroll, New York Times, 9 June 2000, C23; Kenneth Jones, obituary for Glover, Playbill Official Web Site, (accessed 5 December 2004).

59. “Your spying has already caused … the Communist aggression in Korea, with the resultant casualties exceeding 50,000. By immeasurably increasing the chances of atomic war, you may have condemned to death tens of millions of innocent people all over the world,” charges the Judge; Inquest, 68–9, ellipsis in the original.

60. Kroll complains that “this kind of [theatre of fact] can be used to turn any historical crux instantly on its head, to transform heroes into villains, villains into martyrs, doers of deeds into victims of fortuitous circumstance” (“Retrying the Rosenbergs,” Newsweek, 4 May 1970, 89). Gill writes, “Mr. Freed's play … raises questions of ethics that make me uneasy and that I have yet to find a satisfactory answer to… . Mr. Freed is practicing on Judge Kaufman precisely the sort of character assassination that, for polemical reasons, he shows being practiced on the Rosenbergs” (“The Theatre,” New Yorker, 2 May 1970, 83–5). Glover charges that Freed's use of actual transcripts is “as prejudiced as the epidemic bias he attributes to [the Rosenbergs'] investigators, jury and appellate jurists” (Associated Press Theater Review, 24 April 1970, typescript in Inquest Clippings File, Lincoln Center Collection, New York Public Library). Finally, Watts dismisses the “propaganda play” for “protest[ing] too much” (“The Matter of the Rosenbergs,” New York Post, 9 May 1970, 16). Again, for simplicity's sake, further references to the reviews will not be noted.

61. Novick, Julius, “Between Came Tears,” Village Voice, 30 April 1970, 47.

62. “Nathan Award Is Won by Julius Novick,” New York Times, 18 January 1983, C12.

63. Kliewer, Warren, “A Conversation of Critics,” Back Stage, 18 August 1989, 22.

64. Barnes, Clive, “Effective Drama Made of Rosenberg Case,” New York Times, 24 April 1970, 37.

65. Stayton, ix.

66. Simon, John, “Spring Cleaning,” New York, 18 May 1970, 64.

67. Isherwood, Charles, “Variety Legit Critic Markland Taylor Dies,” Variety, 14 July 2003, 54.

68. Markland Taylor, “Inquest,” Entertainment World, 1 May 1970, in Inquest clippings file, Lincoln Center Collection, New York Public Library.

69. David Goldman, review of Inquest, WCBS Newsradio 88, typescript in Inquest clippings file, Lincoln Center Collection, New York Public Library.

70. Clipping from New York Morning Telegraph, 6 January 1969, in “Goldman, David” Clippings File, Lincoln Center Collection, New York Public Library.

71. As Freed himself reports, in United States v. Morton Sobell (1962) U.S. Attorney Vincent Broderick, responding to a question from Justice Thurgood Marshall, confessed that “[i]f Ethel Rosenberg were still alive—the bench would have to reverse her conviction.” See letter from National Rosenberg–Sobell Committee and Freed's Inquest in Favorini, 191.

72. Pat Garling, “Play House Will Restage Famed Trial,” Cleveland Plain Dealer, 14 March 1969, pd2.

73. Peter Bellamy, “Rosenberg Drama in Brecht Mold,” Cleveland Plain Dealer, 15 March 1969, 6E.

74. Letter from Leon Katz, Carnegie–Mellon University, 30 March 1970, in Inquest Clippings File, Lincoln Center Collection, New York Public Library.

75. Calta, Louis, “Rosenberg Trial Drama Due in April,” New York Times, 29 January 1970, 30.

76. Freed and his producers, in fact, felt that rewriting the play was imperative for its transfer. They understood that what worked in Cleveland, where they believed “the political temperature is considerably lower than in New York,” required a fairer treatment of the onstage prosecution team to succeed on Broadway. Berg, Beatrice, “Inquest: Its Author Speaks for It,” New York Times, 3 May 1970, 3, 9.

77. Donald Freed, Inquest typescript, submitted 6 November 1970, Lincoln Center Collection, New York Public Library, 1-6, 1-8, 1-22, 1-44, 2-6, 2-34, 2-54; In the Voicings anthology, see 146, 151, 152, 154, 158, 166, 172, 176, 185, 195, 196.

78. Freed, Inquest (Samuel French), 78.

79. Freed, Inquest typescript, 2-57; and Freed, Inquest, in Voicings, 197.

80. Jonakait, 278.

81. Jonakait, 273.

82. In addition to the work of Wexley and the Schneirs, see, for example, Segal, Edith, Give Us Your Hand! Poems and Songs for Ethel and Julius Rosenberg in the Death House at Sing Sing (New York: People's Artists, 1953); Decaux, Alain, Les Rosenbergs ne doivent pas mourir (Paris: Librairie Academique Perrin, 1969); Doctorow, E. L., The Book of Daniel (New York: Plume, 1971); and Coover, Robert, The Public Burning (New York: Viking Press, 1977). Ethel Rosenberg and Roy Cohn, who helped to prosecute the Rosenbergs, have famously become characters in Tony Kushner's Angels in America, and Cohn is also the subject of other theatre pieces like We Got a Date and Roy Cohn/Jack Smith (Bottoms, Stephen J., “Re-staging Roy: Citizen Cohn and the Search for Xanadu,” Theatre Journal 48 [1996]: 157–84).

83. Jardine, Alice, “Flash Back, Flash Forward: The Fifties, the Nineties, and the Transformed Politics of Remote Control,” in Secret Agents: The Rosenberg Case, McCarthyism, and Fifties America, ed. Garber, Marjorie and Walkowitz, Rebecca L. (New York: Routledge, 1995), 107–23.

84. Weiss, 387.

85. Benjamin, 257.

86. Calta, Louis, “Critics Deplore ‘Theater of Fact,’New York Times, 4 January 1972, 28.

87. Kushner, Tony, Angels in America: Millennium Approaches (New York: Theatre Communications Group, 1992), 112.

This essay began as a project for David Savran's historiography course at the Graduate Center and was presented at ATHE's 2005 Theatre History Debut Panel. I would like to thank Jody Enders, Martin Puchner, and the anonymous Theatre Survey readers for their valuable feedback. I am also indebted to Ritchie Abraham, Alan Florendo, and Ruti Smithline for their legal expertise, and to the faculty at CUNY's Graduate Center, especially Jean Graham-Jones for her encouragement and support.

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