of Hiss's lawyers recalls the man and the case.
now one of the last two lawyers alive who worked on Alger
team and I worked only on the appeal, so I didn't even
meet Alger until
the spring of 1950, several months after his conviction. I
was a year out of Harvard Law School, which means I've already
celebrated my 50th law school
reunion! Ours was the last of Harvard's accelerated post-war
(we had no summer vacations, which allowed returning war veterans
a chance to begin catching up with people who'd stayed at
After a few months at my first job, in New York, it turned
out that that
company had money problems, so I put out feelers and, as a
result, Harold Rosenwald, one of Alger's lawyers, hired me
to be the researcher on the appeal, meaning it was my job
to look through the trial record to find grounds
for reversing the verdict.
Harold was working out of Helen Buttenwieser's office
Helen, a remarkable woman, one of the first women lawyers
in New York (and one of the first to hire women lawyers) provided
space for us (cramped but adequate), logistical support, and
warmth and kindness. Harold, a friend of Alger's from law
school days, I got to be very fond of he was often
hard to understand, since he so frequently dropped his voice
almost to a whisper; and
he could be abrasive and curt. But he was very loyal to Alger,
and saw the
verdict as an immense miscarriage of justice.
The Hiss case was the big story of the year, a huge cause
celebre. My background
was zilch I'd had one course on criminal law, and nothing
But I liked Harold's approach which was to comb through
for specific points of error during the trial, and pile on
enough of them
to cause a higher court to reverse the verdict. That's the
here we were not looking for vindication, as such,
meaning proof of Alger's
innocence. Just reversal. It wasn't that we didn't believe
innocence this was a tactical matter. The
Second Circuit at the time gave short shrift to criminal appeals,
it was always assumed, at least, by the leading members of
the famous brothers, Augustus and Learned Hand, who still
earlier generations had, that most criminal cases were best
left to the states,
and that federal courts existed to contemplate more serious
such as interstate commerce violations and abridgments of
rights. Of course, you have to remember that federal jurisdiction
over criminal matters only grew very slowly, and that up until
1920s and Prohibition, very few criminal cases even came their
What this meant was that the Second Circuit was predisposed
not to want to re-hear a criminal case that had already been
decided. They would probably have assumed that most indicted
criminal defendants were probably guilty; that most juries
that convicted probably convicted justly; and that the rulings
of most judges in these cases were probably right most of
of these assumptions arose a point-of-view that dominated
the court's thinking that was commonly called the "Harmless
And this doctrine contained a further assumption: That even
when trial judges
in criminal cases could be shown to have erred in their rulings
bench (wrongfully excluding evidence, for example, or improperly
a defense argument), most of their errors were "harmless,"
that they hadn't actually helped convince the jury to decide
So, therefore, just because there had been errors in the trial,
the mere presence
of these errors, by themselves, did not obligate the court
a jury's guilty verdict. It could still be presumed to be
verdict. By the 1960s, the "Harmless Error Doctrine" had pretty
disappeared, blown away by a new tradition of much more activist
And with today's advances in science DNA evidence,
the "Harmless Error Doctrine" would be pretty much
of an impossibility.
Also, these days both trial judges and appeals judges are
much more conscious
of the fact that actions in court by a prosecutor (or a defense
for that matter) can taint a jury's thinking and infect the
But while the "Harmless Error Doctrine" lasted, lawyers appealing
and looking for reversible errors had only two options: You
attack by sheer number, piling error on error on error until
a critical mass. Or you could find an error so gross that
no way it could be ignored. You went for quantity, or quality
Harold and I adopted the "both" strategy and compiled a list
of about half a dozen basic and flagrant errors, any one of
which was by itself, we thought, serious enough to reverse
the verdict against Alger. One argument that we advanced was
fairly original for its time and valid enough to have
since become law. It is now illegal (but was then permissible)
for the prosecution to call a witness to the stand for the
sole purpose of having that witness take the Fifth Amendment.
In other words, they knew in advance that the witness would
refuse to testify, claiming constitutional privilege, and
that no evidence would be taken. [The witness was Felix Inslerman,
a man Chambers had said photographed documents for him. For
more on Inslerman, click here.]
It was obvious to us it was just as obvious to the
prosecution, of course
that the only possible purpose for swearing in such
a witness would be
to prejudice a jury. We put this forward as a reversible error.
that convicted Alger had been tainted. He had not received
a fair trial.
On the other hand, Alger and his other appeals lawyer, Robert
M. Benjamin, who had his own practice in midtown (at Parker,
Duryea, Benjamin, Zunino & Malone), and who, like Alger,
had once been a secretary to Oliver Wendell Holmes, were convinced
that if they could only lay out the evidence clearly,
and especially if they could demonstrate the flow of documents
the State Department, and show who had handled what, they
Alger's innocence by showing conclusively that Alger had never
any of the papers Chambers claimed to have received from him.
facts of Alger's innocence, they thought, would compel the
This led to constant fighting between the two groups working
on the appeal,
and strong arguments from Harold who said that it was
not a mistake
to bring up Alger's innocence, but that it would be a serious
to rely on it and use it as the main point.
As I got to know Alger, I liked him a lot. He was kind, he
was very interesting
to talk to, and he was amazingly even-handed and balanced
talked about his case. He came to our house for dinner
we were living
in a basement apartment on Water Avenue in the East Bronx
at the time
and he even took the garbage out. He had an extraordinary
ability to compartmentalize,
meaning that, despite the verdict against him, he could continue
to focus on the work of the appeal without rancor.
He was the most Christian soul I ever met, always turning
the other cheek; always calm. In retrospect, I'd say he was
far too Christ-like for his own good. Alger had no street
smarts and for a man who'd seen so much of the world,
I thought at the time that this was a little strange. And
I find it even stranger. I don't think he ever realized the
of the forces that had been released against him.
When people say to me Was he innocent? I say
that if you follow this case through from beginning to end
(as I have it was my job to read through
the transcripts of both trials), you have to conclude that
Chambers was a liar. Because what you see is that Chambers
shifted his story whenever evidence emerged that contradicted
piece of his testimony. He tells a very different story, for
the second trial than he had in the first trial and
it changes only to fill
in the holes that developed when he told the first trial version.
And then, after the trials, he changed what he said yet again,
in the pages
of his autobiography, "Witness" where this
time he amends his tale so
as to fill in the holes that still existed in his second trial
testimony. On top of that, it's clear from the trial transcripts
that the F.B.I. was working closely with Chambers to shore
up his testimony whenever it began to wobble. So I also tell
people that if you believe that the F.B.I. is pure and noble,
and never cheats and never lies then you're going to
believe that Alger Hiss is guilty.
The thing about Whittaker Chambers is, if you want to believe
him, he has to be always right. For instance, at first he
attacked Donald Hiss as well as
Alger Hiss. But then he backed away from the claim about Donald
if you disbelieve him when he tries to discredit Donald Hiss,
why should you
trust him about Alger Hiss?
What confuses people is that, as we now know, there were spy
rings in Washington
in the 1930s, and Chambers probably was connected to them.
But, reading his testimony, I kept getting the impression
that, whatever he did know, and for whatever reason, he was
adding to the truth. I don't see how you can read the transcript
of both Hiss trials and not have at least a reasonable
doubt about the verdict in the Hiss case.
Quite early on in the appeals process, it became clear to
me that Alger would
himself be working full time on the case, and that his instincts
the appeal were closer to Bob Benjamin's than to Harold's
what emerged in the brief is a hybrid it's basically
Bob's and Alger's brief;
it's abstruse and not dynamic and it details at length the
of State Department documents. It includes Harold's and my
but I've never thought it was great or compelling. In a brief
that, you want a grabber that hits somebody and gets their
you want to get up and soar, even if only with indignation.
But that wasn't
At the oral argument on the appeal, Bob spoke for the defense
effectively, I would say, although he didn't raise
any of Harold's or my points. The government attorney, Clarke
S. Ryan, a youngish guy himself, gave a pretty good oral argument.
We left the courtroom and then came what was for
me one of the big shockers: Standing on the courthouse steps
of photographers and reporters, screaming and yelling at us.
howling mob and you had to get down the steps; there
was no other way to leave. Nowadays, they let you come out
the side doors, and the steps themselves
are rigged so that only the middle part has a bannister and
This was one of Helen's greatest moments. She immediately
grabbed Alger's arm, and started moving forward implacably.
"Keep walking," she told Alger.
The crowd melted away from their path, and the rest of us
Over the years, Alger and I stayed in touch, but I no longer
worked on his case. The appeal was denied on December 7, 1950,
and the following March, after the U.S. Supreme Court refused
to consider the case, Alger went to jail.
Could we have won on appeal? In retrospect, given the temper
of the times and the make-up of the court, very probably not.
But I'm convinced that the approach Harold and I advocated
would have made it easier for the court to reverse Alger's
conviction. Alger and Bob were asking them to do something
altogether remarkable to acquit him and declare him
innocent; to say that a trial should never have taken place.
Whereas Harold and I were asking them to do something well
within their purview
to declare that errors had tainted the process of Alger's
that therefore his case should be sent back to the original
he would be given yet another trial. Under our approach, the
didn't have to taken a position on guilt or innocence at all.
After the Hiss case, I joined the New York firm of Landis,
Taylor & Scoll, which
eventually became Taylor, Ferencz & Simon. Although I
was never again
one of Alger's lawyers, I did become one of his clients, however
in the 1960s and 1970s, after he went into the printing
business, I ordered stationery supplies through his firm.
And he was as much Alger in these dealings as he had been
in our earlier dealings
calm and scrupulous, a wonderful salesman. Meaning
he never once behaved like a salesman, using the prior connection
and our continuing friendship
to push any deals or sales or specials on us.
KENNETH SIMON, February 2000
Simon is now retired and lives in Mamaroneck, New York.
to We Remember Alger