Kenneth Simon

A Recollection

Kenneth Simon was an attorney who worked on Alger Hiss’s first appeal. When he wrote this piece in February 2000, he was retired and living in Mamaroneck, New York.

I’m now one of the last two lawyers alive who worked on Alger Hiss’s defense 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 classes (we had no summer vacations, which allowed returning war veterans a chance to begin catching up with people who’d stayed at home).

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 célèbre. My background was zilch – I’d had one course on criminal law, and nothing about appeals. But I liked Harold’s approach – which was to comb through the record 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 important point 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 in Alger’s innocence – this was a tactical matter. The Second Circuit at the time gave short shrift to criminal appeals, influenced, it was always assumed, at least, by the leading members of the court, the famous brothers, Augustus and Learned Hand, who still thought, as earlier generations had, that most criminal cases were best left to the states, and that federal courts existed to contemplate more serious matters, such as interstate commerce violations and abridgments of constitutional rights. Of course, you have to remember that federal jurisdiction over criminal matters only grew very slowly, and that up until the 1920s and Prohibition, very few criminal cases even came their way.

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 the time.

Out of these assumptions arose a point-of-view that dominated the court’s thinking and was commonly called the “Harmless Error Doctrine.”

And this doctrine contained a further assumption: That even when trial judges in criminal cases could be shown to have erred in their rulings from the bench (wrongfully excluding evidence, for example, or improperly overruling a defense argument), most of their errors were “harmless,” meaning that they hadn’t actually helped convince the jury to decide to convict.

So, therefore, just because there had been errors in the trial, the mere presence of these errors, by themselves, did not obligate the court to reverse a jury’s guilty verdict. It could still be presumed to be the correct verdict. By the 1960s, the “Harmless Error Doctrine” had pretty much disappeared, blown away by a new tradition of much more activist courts. And with today’s advances in science – DNA evidence, for instance – 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 attorney, for that matter) can taint a jury’s thinking and infect the verdict they render.

But while the “Harmless Error Doctrine” lasted, lawyers appealing a conviction and looking for reversible errors had only two options: You could attack by sheer number, piling error on error on error until they reached a critical mass. Or you could find an error so gross that there was no way it could be ignored. You went for quantity, or quality – or both.

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. Read more on Felix Inslerman.

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. The process 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 through the State Department, and show who had handled what, they could prove Alger’s innocence by showing conclusively that Alger had never handled any of the papers Chambers claimed to have received from him. The true facts of Alger’s innocence, they thought, would compel the Second Circuit to reverse.

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 mistake 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 when he 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 in retrospect I find it even stranger. I don’t think he ever realized the strength 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 Whittaker Chambers was a liar. Because what you see is that Chambers constantly shifted his story whenever evidence emerged that contradicted any piece of his testimony. He tells a very different story, for instance, in 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 Hiss.

So 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 about the appeal were closer to Bob Benjamin’s than to Harold’s and mine.

So 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 paper trail of State Department documents. It includes Harold’s and my arguments, but I’ve never thought it was great or compelling. In a brief like that, you want a grabber that hits somebody and gets their attention, and you want to get up and soar, even if only with indignation. But that wasn’t Alger’s style.

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 were hordes of photographers and reporters, screaming and yelling at us. Truly a 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 a right-of-way.

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 trailed afterward.

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 trial, and that therefore his case should be sent back to the original court, where he would be given yet another trial. Under our approach, the appeals court 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.