For four days Donovan, for the defence, cross-examined Hayhanen, trying to discredit his evidence, but Hayhanen was immovable. He insisted vehemently that everything he had said had happened. In one last effort Donovan sought to discredit Hayhanen himself. Questioning him about his lies to Abel about his work, his lies about the money he received, and his lies to get more. But Hayhanen just admitted quite openly to it all. Unabashed and unashamed.
When Donovan referred to the fact that Hayhanen had a wife in Russia but had married another woman, a church marriage, Hayhanen was riled to the point of complaining to the judge about Donovan’s questions. It seemed that he didn’t care about being accused as a liar, a thief, a coward and a drunkard, but Donovan’s smug hypocrisy about his morals clearly enraged him.
On the last day but one of the trial Donovan made his summation. He had one last card to play. He went back over the trial item by item. Then he paused for a moment before looking at the jury.
“What evidence of national defence information or atomic information has been put before you in this case? When you and I commenced this case, certainly we expected evidence that this man is shown to have stolen great military secrets, secrets of atomic energy and so on …”
Judge Byers interrupted to point out that the charge was only conspiracy to get such information. He turned to Donovan and said, “The charge doesn’t involve a substantial offence. When you undertake to tell the jury what the law is, be accurate in your statements please.”
Donovan turned to a comparison of the characters of Abel and Hayhanen. The dissolute, dishonest drunkard and Abel, the devoted husband, the family man … a very brave patriotic man serving his country. He ended his summation with a warning to the jury.
“You are not serving your country and you are not fighting Communism to convict a man on insufficient evidence.” He paused and went on. “Ladies and gentlemen if you will resolve this case on that higher level so that you can leave it with a clear conscience, I have no question but that certainly on counts one and two in this indictment, you must bring in a verdict of not guilty.”
Then Donovan sat down. His reference to Abel as a family man had had some effect. During the trial letters had been read from his wife and family that had been enlarged from micro-dots found in his studio. They could possibly have been coded messages but they had an authenticity that was convincing. They seemed to be letters from a wife and daughter to an obviously much-loved father. They described the humdrum incidents of domestic life and emphasised how much he was missed. Several observant people had noticed that when the letters were read out there were tears in Abel’s eyes. The only indication of any emotion by the prisoner during the whole of the trial.
Tomkins was aware of the sympathy that the letters might arouse and covered it in his final speech. He reminded the jury of the many items of evidence and then went on to remind them of the significance of conspiracy.
“If we agree—if two persons agree, to assassinate the President, and one of them procures a gun, that would be all you needed to complete the crime of conspiracy, and it does not need to be completed to be a crime.” He paused to emphasise his next words. “In other words, we don’t have to stand idly by and permit an individual to commit espionage, to get our secrets. We are not powerless in that case. We can intervene. We can prevent the consummation of the crime.”
Tomkins then referred to Donovan’s disparaging description of Hayhanen as “bum,” “renegade,” “liar,” and “thief ” and used it to counter the letters from Abel’s family.
“The witness had the same training as the defendant …” He went on to point out the difference in their backgrounds, the hapless Hayhanen left to scavenge as best he could, and then reminded them that it appeared from the letters read out in court that Abel’s family lived very well in Moscow, with a second home in the country, and servants. He went on to say, “The defendant is a professional, a highly trained espionage agent … a master spy, a real pro … Just remember this was the man’s chosen career. He knows the rules of the game and so do his family. He is entitled to no sympathy.”
Tomkins looked down at his papers for a moment as he collected his thoughts for his final comment. He looked at the jury for several seconds before he spoke.
“I simply say this: this is a serious case. This is a serious offence. This is an offence directed at our very existence and through us at the free world and civilisation itself, particularly in the light of the times.” He paused. “And I say this, and I don’t believe I have ever said anything with more sincerity or more seriously: I am convinced that the government has proven its case, not only beyond a reasonable doubt as required, but beyond all possible doubt.”
Tomkins sat down with his face still turned to the jury.
On the Friday morning Judge Byers went over again the difference between conspiracy to commit a substantive crime and the crime itself.
At mid-day the jury and the US marshals in charge of them left for the jury room.
It was almost five o’clock when the jury filed back to their seats in the courtroom. The clerk of the court rose, and the foreman of the jury looked back at him.
“Members of the jury, have you agreed upon a verdict?”
“We have.”
“In the case of the United States of
