The opinion of the court was delivered by: OWEN
In the year 1950, petitioner Alger Hiss, after a two-month jury trial in this Court, was convicted of two counts of perjury on an indictment by a grand jury containing the following charges:
4. That at the time and place aforesaid, the defendant Alger Hiss, duly appearing as a witness before the said Grand Jurors, and then and there being under oath as aforesaid, and having been duly advised of the nature of the investigation then and there being conducted, testified falsely before said Grand Jurors with respect to the aforesaid material matter as follows:
Q. Mr. Hiss, you have probably been asked this question before, but I'd like to ask the question again. At any time did you, or Mrs. Hiss in your presence, turn any documents of the State Department or of any other Government organization, or copies of any documents of the State Department or any other Government organization, over to Whittaker Chambers?
A. Never. Excepting, I assume, the title certificate to the Ford.
Q. In order to clarify it, would that be the only exception?
JUROR: To nobody else did you turn over any documents, to any other person?
THE WITNESS: And to no other unauthorized person. I certainly could have to other officials.
That the aforesaid testimony of the defendant, as he then and there well knew and believed, was untrue in that the defendant, being then and there employed in the Department of State, in or about the months of February and March, 1938, furnished, delivered and transmitted to one Jay David Whittaker Chambers, who was not then and there a person authorized to receive the same, copies of numerous secret, confidential and restricted documents, writings, notes and other papers the originals of which had theretofore been removed and abstracted from the possession and custody of the Department of State, in violation of Title 18, United States Code, Section 1621.
2. That at the time and place aforesaid the defendant Alger Hiss, duly appearing as a witness before said Grand Jurors, and then and there being under oath as aforesaid, and having been duly advised of the nature of the investigation then and there being conducted, testified falsely before said Grand Jurors with respect to the aforesaid material matter as follows:
Q. Now, Mr. Hiss, Mr. Chambers says that he obtained typewritten copies of official State documents from you.
Q. Did you ever see Mr. Chambers after you entered into the State Department?
A. I do not believe I did. I cannot swear that I did not see him some time, say, in the fall of "36. And I entered the State Department September 1, 1936.
Q. Now, you say possibly in the fall of "36?
A. That would be possible.
Q. Can you say definitely with reference to the winter of "36; I mean, say, December, "36?
A. Yes, I think I can say definitely I did not see him.
Q. Can you say definitely that you did not see him after January 1, 1937?
A. Yes, I think I can definitely say that.
MR. WHEARTY: Understanding, of course, exclusive of House hearings and exclusive of the Grand Jury.
That the aforesaid testimony of the defendant, as he then and there well knew and believed, was untrue in that the defendant did in fact see and converse with the said Mr. Chambers in or about the months of February and March, 1938, in violation of Title 18, United States Code, Section 1621.
Hiss's conviction was affirmed on appeal, United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), cert. denied, 340 U.S. 948, 71 S. Ct. 532, 95 L. Ed. 683 (1951), and he served three years of the five-year sentence imposed. In recent years, utilizing the Freedom of Information Act, 5 U.S.C. § 552, enacted in 1976, Hiss has obtained many thousands of documents from government files. On the basis of approximately one hundred and fifty of these, he now moves for a new trial by writ of error coram nobis asserting various claims of prosecutorial misconduct which allegedly denied him a fair trial.
These claims are: 1) a deprivation of the effective assistance of counsel guaranteed by the Sixth Amendment by reason of improper contacts between the prosecution and an investigator for Hiss; 2) the suppression by the prosecution of three statements by Whittaker Chambers; 3) the suppression of material information about the Woodstock typewriter Hiss offered in evidence on the trial; 4) the knowing use by the prosecution of perjured testimony by two government witnesses; and 5) an improper argument by the prosecutor to the jury in summation.
To support claim 1) above, the law requires not only a) an improper contact but also b) the communication of some valuable information giving rise to c) some realistic possibility of prejudice to Hiss. See pp. 987-988, infra. As to the remainder of the claims the law requires factual support for each claim and a showing that but for the alleged misconduct, Hiss on the trial would probably have raised a reasonable doubt as to his guilt. See pp. 986-987, 994, infra.
A consideration of the extensive history culminating in this case is essential to a proper evaluation of Hiss's present claims, particularly since the jury had this history before it as well.
Whittaker Chambers, while an undergraduate in college in 1924, became a member of the Communist Party. His activities over the years culminated in his becoming involved in espionage for the Soviet Union in the 1930's. This espionage work was conducted by means of an underground "cell" in Washington, D.C., the members of which included certain well-placed United States government officials. At some point, however, disillusionment set in, and in April 1938, Chambers broke with the Party, severed all ties, and went to work using his skills as a writer and publisher, to become by 1948, a senior editor of Time magazine.
Starting in 1939 and continuing into 1946, Chambers, concerned with what he perceived to be the continuing threat of Communism, spoke guardedly to various officials in the United States government about Communist infiltration into the government. Among those to whom he spoke were Assistant Secretary of State Adolph A. Berle, State Department security officer Raymond Murphy, and various FBI agents. In the course of these conversations Chambers stated that Alger Hiss was a Communist. By 1946, the fact that these charges were circulating had come to Hiss's attention, as acknowledged by Hiss himself in his testimony two years later before the House of Representatives' Special Subcommittee of the Committee on Un-American Activities (the "Subcommittee" or "HUAC"):
(CONGRESSMAN RICHARD M.) NIXON. You testified when you were before the committee before that in 1946, Mr. Byrnes had asked you to talk to him concerning certain allegations made by Members of Congress concerning Communist affiliations, and at that time you saw Mr. Tamm of the FBI.
Mr. HISS. I think I talked to Mr. Tamm on the telephone to get the appointment, and I rather think it was Mr. Ladd rather than Mr. Tamm whom I actually saw.... I told him that in the interval between my telephone call and the day when they were able to see me, which was at least 1 day later, I had been thinking of any possible basis for any such charge. I was trying to think of all the associations or the organizations that I might possibly have been connected with.
Hiss also acknowledged that the name "Whittaker Chambers" had come to his attention in 1947. First, Hiss later testified that in that year, 1947, two FBI agents had seen him "and among the list of names of people they asked me if I was acquainted with was the name Whittaker Chambers.... The name stuck in my memory at the moment because it sounded like a distinctive and unusual name, and I said "No.' " Second, as Hiss also later testified, it was reported to him by a friend in January or February of 1948 that "a man named Chambers on Time had called me, or was reported by hearsay to have said I was a Communist." The friend also reported to Hiss that upon checking, he was informed that "Chambers on Time ... was not saying anything of the kind at that time."
It was not, however, until some four or five months later, on August 3, 1948, that Chambers, in testimony before the Subcommittee, first publicly named Alger Hiss as a Communist, confining his remarks to statements that Hiss was a member of
an underground organization of the United States Communist Party .... The purpose of this group at that time was not primarily espionage. Its original purpose was the Communist infiltration of the American Government. But espionage was certainly one of its objectives.
These public charges received instant and widespread notoriety, and Hiss-at that time President of the Carnegie Foundation for Peace, a graduate of the Harvard Law School, former law clerk to United States Supreme Court Justice Oliver Wendell Holmes, former advisor to President Franklin Roosevelt, and former Secretary General of the San Francisco United Nations Conference-requested and received the right to appear before the Subcommittee to dispute the charges. He did appear on August 5, 1948, denied any Communist Party affiliation whatsoever, denied knowing Whittaker Chambers
and could not recognize a recent photograph of him.
I would much rather see the individual. I have looked at all the pictures I was able to get hold of in, I think it was, yesterday's paper which had the pictures. If this is a picture of Mr. Chambers, he is not particularly unusual looking. He looks like a lot of people. I might even mistake him for the chairman of this committee. (Laughter.)
(CONGRESSMAN KARL E.) MUNDT. I hope you are wrong in that.
Mr. HISS. I didn't mean to be facetious but very seriously, I would not want to take oath (sic) that I have never seen that man. I would like to see him and then I think I would be better able to tell whether I had ever seen him.
Hiss did not, however, immediately get his demanded confrontation. There intervened a second session with the Subcommittee on August 16, 1948. Hiss, by this time realizing that his accuser had testified in some detail as to his (Hiss's) personal life and family, described with some tentativeness,
his recollection of a man "-and he may have no relation to this whole nightmare-... named George Crosley," whom Hiss identified as a free-lance writer he had known in 1934 and 1935. Hiss said that "Crosley" and his family had stayed at his home for several days.
Hiss further said that he sublet an apartment to "Crosley" for a number of months with free gas, electricity and phone;
furnished him with a car for two months and took care of it thereafter when "Crosley" was not using it;
and said that he had driven "Crosley" once from Washington to New York in his car.
Hiss repeated his demand to see Chambers and to hear his voice.
The demanded confrontation between Hiss and Chambers finally took place on August 17, 1948, and proceeded thus:
Mr. NIXON. Mr. Hiss, the man standing here is Mr. Whittaker Chambers. I ask you now if you have ever known that man before.
Mr. HISS. May I ask him to speak? Will you ask him to say something?
Mr. NIXON. Yes, Mr. Chambers, will you tell us your name and your business?
Mr. CHAMBERS. My name is Whittaker Chambers. (At this point, Mr. Hiss walked in the direction of Mr. Chambers.)
Mr. HISS. Would you mind opening your mouth?
Mr. CHAMBERS. My name is Whittaker Chambers.
Mr. HISS. I said, would you open your mouth? You know what I am referring to, Mr. Nixon. Will you go on talking?
Mr. CHAMBERS. I am senior editor of Time magazine.
Mr. HISS. May I ask whether his voice, when he testified before, was comparable to this?
Mr. HISS. Or did he talk a little more in a lower key?
(CONGRESSMAN JOHN) McDOWELL. I would say it is about the same now as we have heard.
Mr. HISS. Would you ask him to talk a little more?
Mr. NIXON. Read something, Mr. Chambers. I will let you read from-
Mr. HISS. I think he is George Crosley, but I would like to hear him talk a little longer.... Are you George Crosley?
Mr. CHAMBERS. Not to my knowledge. You are Alger Hiss, I believe.
Mr. HISS. I certainly am.
Mr. CHAMBERS. That was my recollection.
(COMMITTEE INVESTIGATOR) STRIPLING. You were going to read.
Mr. CHAMBERS (reading from Newsweek magazine):
"Tobin for Labor. Since June, Harry S. Truman had been peddling the labor secretaryship left vacant by Lewis B. Schwellenbach's death in hope of gaining the maximum political advantage from the appointment."
Mr. HISS. May I interrupt?
Mr. HISS. The voice sounds a little less resonant than the voice I recall of the man I knew as George Crosley. The teeth look to me as though either they have been improved upon or that there has been considerable dental work done since I knew George Crosley, which was some years ago.
I believe I am not prepared without further checking to take an absolute oath that he ...