The 1976 release to Alger Hiss of approximately 40,000 pages of documents under the Freedom of Information Act, allowed the defense to see for the first time what the FBI and the prosecution had known about the Hiss case typewriter before the trials; what they learned during the trials; and what they later discovered after the trials. Much of this material should by rights have been immediately made available to Hiss, since it strengthened his case. On the basis of this and other instances of prosecutorial misconduct, Hiss returned to court in 1978, asking that his guilty verdict be set aside under a writ of error "coram nobis." Here's what Hiss's 1978 coram nobis brief had to say about what the government had learned about that crucial piece of evidence - the Woodstock typewriter.

Summary

Central to the presentation of the government case was the Woodstock Typewriter, Exhibit UUU, bearing serial number 230,099. Although the typewriter was offered as a defense exhibit, it was promptly adopted by the prosecution as the machine which had been owned by the Hiss family and which had typed both the Baltimore Documents and the Hiss Standards (letters acknowledged to have been typed by the Hisses in the 1930s), and the court and jury were so advised. The court on both trial and appellate levels accepted the trypewriter as the source of the documents.

When, on the motion for a new trial, the authenticity of the typewriter was challenged by the defense, the government reversed its strategy and argued that the authenticity of the typewriter was irrelevant, characterizing the argument of the defense as "frivolous" and "a patchwork of assumptions." But in the closing stages of the litigation, in its brief in opposition to Hiss's petition for certiorari to the Supreme Court, once again the government argued that Exhibit UUU was the machine that the Hisses had obtained from the Fansler/Martin partnership and which had typed the Hiss Standards and the Baltimore Documents, although the FBI had long since concluded this could not be.

The files revealed by the FOIA suit make it clear that the prosecution had in its files evidence that Exhibit UUU could not have been the Hiss typewriter. This evidence was concealed from the petitioner not only during the trial when petitioner believed Exhibit UUU to be authentic. During the motion for a new trial when petitioner challenged the authenticity of Exhibit UUU, Myles Lane deliberately misled the court and defense to make sure that only incomplete information, consistent with the prosecution's case, was revealed.

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On December 4, 1948, Hiss was interviewed by the FBI. He stated that from 1936 to "sometime after 1938" he and his wife had a typewriter in their home - "possibly an Underwood ". He did not use the machine but Priscilla did use it sometimes and samples of Priscilla's typewriting might be in existence. He further stated that before he got the typewriter "it was the property of Mr. Thomas Fansler, Mrs. Hiss's father, who was in the insurance business in Philadelphia." Three days later Priscilla told the FBI that:

Sometime in 1932 or 1933, as far as I can recall, my father, Mr. Thomas L. Fansler . . . had in his possession a typewriter which he gave to me. I do not recall whether I had this typewriter while I was residing in New York City. I do not recall the make of this typewriter. I do not recall now, how I disposed of it.

During the next few days Hiss and his wife made a search for documents which might have been typed on the machine they had owned. The documents they located were turned over to the FBI. In addition, Hiss ' counsel retained Horace Schmahl, who, on or about December 6th and 8, 1948, interviewed Mr. Harry L. Martin, the surviving partner of the Fansler/Martin firm. Martin told Schmahl that the Fansler/Martin partnership had owned a single typewriter, that it was a Woodstock, and that it had been purchased from Thomas Grady, a salesman for the Woodstock Company in Philadelphia, in 1928. When Fansler retired, he took the typewriter with him, stating that he intended to give it to Mrs. Hiss. Martin gave Schmahl some leads as to possibilities of securing specimens of the typing on the machine but the leads produced nothing.

The Milwaukee headquarters of Northwestern Life Insurance Co. advised the FBI that on December 9th, Schmahl had called their office, in a further effort to locate specimens of the typing from the machine in the Fansler/Martin office. The Woodstock Typewriter Co. office in Chicago also advised the FBI that Schmahl had called, in an effort to trace the sale of the machine by Grady to Fransler/Martin. Northwestern Life Insurance Co. said it had turned over to the FBI all of the material it had; the Woodstock people refused to give him any information at all. Schmahl was unable to locate Grady.

Beginning in December, 1948, Hiss's counsel also sought the machine which had been in Hiss's home. At the trial the government introduced Ex. 1 through 47 of the Baltimore Documents, identified by Chambers as documents he received from Hiss. Similarly received in evidence, without objection, were documents known as the Hiss Standards. Three of these were letters admittedly typed by Priscilla Hiss on the machine in her home. The fourth was a letter signed by Daisy Fansler (Priscilla's sister). Ramos C. Feehan, an FBI agent, testified that as a result of his examination of the documents, he:

reached the conclusion that the same machine was used to type Baltimore Exhibits 5 through 9 and 11 through 47 that was used to type the four known Standards which were submitted to [him] for comparison with the questioned documents.

There was no cross-examination of Feehan on this conclusion at either trial.

The only other testimony relevant to the typewriter presented by the government was by Mr. John S. McCool, an FBI agent, who demonstrated to the jury that the machine was operable, and by George Norman Roulhac [who testified about seeing what he said might have been a Woodstock typewriter in the home of Hiss's maid, Claudie Catlett].

For the defense Priscilla Hiss testified that at some time between June 1931 and January 1933 she had acquired the Woodstock office typewriter which had belonged to her father, Thomas Fansler, when he retired from the insurance business "early in the thirties". Priscilla used the typewriter for some household correspondence. She further testified that when the Hisses moved from their home on 30th Street in Washington to a house on Volta Place at the end of 1937, she disposed of the typewriter by giving it to the children of their housekeeper, Claudie (or Clidi) Catlett. This testimony was confirmed by the Catlett children. Perry (Pat) Catlett said he gave the machine to his sister, Burnetta. Burnetta testified that after she was married, she left the typewriter in the attic of a Dr. Easter. After Dr. Easter's death, Vernon Marlow, a neighbor, took the machine.

Although there was no expert testimony at the trial that Ex. UUU had produced either the Baltimore Documents or the Hiss Standards, the government, in effect, adopted Ex. UUU as one of its exhibits and forcefully asserted its relevance. In closing, Murphy told the jury that the Baltimore Documents "were typed on that machine (indicating). Our man said it was." In fact, "our man" had said no such thing. Feehan 's testimony had been silent as to what machine had typed the Hiss Standards and the Baltimore Documents. The court followed in Murphy 's footsteps in its charge saying:

Another exhibit was the Woodstock typewriter that was or had been the property of Mr. and Mrs. Hiss. It is the contention of the government that this is the typewriter upon which Baltimore Exhibits 5-47 (with the exception of Exhibit 10) were typed. This is not contested by the defense but the defense claims that this typewriter was given away when the Hisses moved to the Volta Place house at the end of December, 1937.

The same line of argument, including the same misstatement as to the state of the record, was offered in the Government's Brief to the Court of Appeals:

From these specimens [the Hiss Standards], both the government's experts, and those experts who testified for the defense, concluded that the Baltimore Papers, with the exception of Baltimore 10, were typed on the Woodstock typewriter, given Mrs. Hiss by her father.

In its Opposition to the Petition for Certiorari, the government once again claimed that it had "established at the trial" that the Baltimore Documents "were typed on a certain Woodstock typewriter, which was in the possession of petitioner and his wife at least as late as December 29, 1937."

Hiss knew that the Baltimore Documents had not been typed in his home. After his appeals had failed, while he was in custody, his counsel, for the first time, began to question the authenticity of the typewriter which Hiss had presented to the court as his own. The affidavit of Chester T. Lane, who represented Hiss at the motion for a new trial, sets forth the genesis of the idea that Ex. UUU was not, in fact, the Fansler/Martin machine [Harry L. Martin had been Thomas Fansler's business partner]. He noted that "both the government and the defense had made earnest efforts to trace the machine." The defense had located a machine which it believed was the one which had been owned by Hiss, and the United States "appeared to take the same view." "Yet," he said, "no government witness had ever said that UUU was the machine used for either the Baltimore Documents or the Hiss Standards.... it seemed peculiar," said Lane, "that the government's case had been silent on the matter ... could it be that the government also was suspicious of the machine's authenticity?"

Now, for the first time, defense counsel became aware that there was significance to the serial number on the typewriter - 230,099. It was recalled that Martin had told defense investigator Horace Schmahl, in December, 1948, that the typewriter in the Fansler/Martin office was a Woodstock, that it had been purchased early in 1928, and given to Priscilla when Fansler retired. Inquiry of the successors to the Woodstock Typewriter Co. made it clear that a machine bearing serial number 230,099 was not manufactured before July, 1929. If Martin was correct, it was impossible that 230,099 was the machine which was given by Fansler to Priscilla and which was the machine in the Hiss household until it was disposed of in 1937 or early 1938.

It therefore became critical to establish the date on which the Hiss typewriter came into the Fansler/Martin office. This proved to be difficult. The witnesses who had the available information were uncooperative in speaking to the defense. Martin refused to talk to Lane at all. Schmahl refused to sign an affidavit verifying his earlier report as to his interview with Martin although the affidavit he was asked to sign was in full accord with the truth. Grady was dead.

Chester Lane then attempted a separate line of inquiry to try to establish the date of acquisition of the Fansler/Martin machine. He sought from Northwestern Mutual Life Insurance Co. some of the Fansler/Martin letters which might have been sent to it (which had been, unknown to the defense, examined by Feehan prior to the first trial). As they had before the trial, the insurance company refused to give Lane the letters, but later agreed to release to Donald Doud, a documents examiner retained by the defense, some of the letters or photostats of letters, written by the partnership between 1927 and 1930. Doud sent in his opinion to Chester Lane in November, 1951, to the effect that the Fansler/Martin letters dated up to June 29, 1929 were written on a different and earlier model Woodstock than those beginning with July 8, 1929. This would tend to indicate, said Doud, "that the Fansler/Martin office acquired a second Woodstock machine between the period of June 29, 1929 and July 8, 1929." This suggestion was, of course, contrary to Martin's statements, but even if true, the "second Woodstock machine" could not have been 230,099.

Joseph Schmitt, formerly in charge of the Woodstock factory and custodian of the Woodstock records, told both Lane and the FBI that machine number 230,099 was not manufactured until late July or August, 1929. Hence, Exhibit UUU could not have been the machine that typed the letter of July 8, 1929. With its elimination, it would follow that none of the Fansler/Martin correspondence was typed on 230,099, and there is no reason at all to believe it was the machine which was given by Fansler to Priscilla.

More than this Chester Lane could not do, as he ruefully remarked "as I had no legal right to a subpoena I could do nothing."

Having had their suspicions raised as to the authenticity of 230,099, and confident that the testimony of the government witness was wrong, the Hiss attorneys sought to find an explanation of Feehan's testimony and suggested that someone could have built a typewriter which could mimic the machine which had typed the Baltimore Documents. If such a machine could be built, argued Chester Lane, perhaps it was and perhaps it was used to forge the Baltimore Documents and to mimic the Hiss Standards. Lane did not claim that he had produced "useable evidence to establish his theory" but pointed to the "extraordinary handicaps which surround any such investigation on behalf of a private citizen" and urged "that justice cannot be done unless the case is reopened for further proof according to law."

The government responded to the motion for a new trial primarily by urging that the argument that Ex. UUU could not be the Hiss machine was irrelevant because Ex. UUU was not produced by the defense until after Feehan's testimony at the first trial, and that the opinion of Feehan was not based on any specimens taken from Ex. UUU, but solely on the basis of a comparison of the Hiss Standards with the Baltimore Documents. Therefore, United States Attorney Myles Lane argued, "... no identity with Ex. UUU was attempted or needed. " Forgotten was Murphy's closing argument, with its heavy emphasis on "identity with Ex. UUU."

Further in his argument, Myles Lane said:

Hence, even assuming for the purpose of argument that the trial Exhibit was a fabricated machine and not the Hiss machine, the soundness and completeness of the government's evidence is not affected one iota.

This was not only a reversal of the position taken by Murphy and the court at the trial, and by the government on appeal; as we shall see, the argument also covers up material hidden in the FBI files. In the very closing act of the motion for a new trial, in its brief in opposition to Hiss's petition for certiorari, the government reversed its position once again. The government noted that at the trial "both the defense and the government accepted the typewriter in evidence as the one which also produced the Baltimore Documents."

The disclosure of the FBI and Department of Justice files in the 1970s uncovered many hitherto concealed aspects of the case and confirms Hiss's suspicion, first raised after the conviction, that Exhibit UUU was not the machine he and his wife received from Mr. Fansler, and which remained in the Hiss household until December, 1937 or January, 1938. It now appears that evidence in the FBI and Justice Department files established that Ex. UUU could not have been the machine owned by the Fansler/Martin partnership and that this evidence was improperly concealed from Hiss. In adopting Exhibit UUU as a government exhibit, Murphy vouched for its authenticity although he had strong reason to doubt that it was the Fansler/Martin-Hiss machine. In asserting the irrelevancy of the typewriter at the time of the motion for a new trial, Myles Lane was misleading the court in order to cover up the government's failure to disclose to the defense the evidence in its files on the typewriter.

Within 48 hours after Hiss told the FBI, on December 4, 1948, that his typewriter had originally been owned by Thomas Fansler, FBI Director Hoover instructed the Philadelphia agents of the FBI to obtain specimens of typewriting from any machine owned by Thomas Fansler. On December 6, 1948, FBI agent Kirkland interviewed Martin who stated that when the partnership office was opened in 1927, a new Woodstock typewriter was purchased by the partnership from Thomas Grady, that this typewriter was the only one in the office during the life of the partnership, and that Fansler took the typewriter and a roll-top desk with him when he retired (CN Ex. 40).

On December 10th, the FBI located and interviewed Thomas Grady in Milwaukee. Grady stated that he recalled selling a Woodstock typewriter to Fansler/Martin in 1927. Further, he recalled making the sale shortly after the Fansler/Martin partnership was created, which, he thought, might have been earlier in 1927. In all of his subsequent interviews, he repeated this statement. It could not have been later, he said, because he resigned as a salesman for Woodstock on December 3, 1927.

The FBI also communicated with officers of the Woodstock Typewriter Co. regarding serial numbers of Woodstock machines manufactured between 1925 and 1930. They were advised that the approximate serial numbers were assigned to typewriters as follows:

"In view of the fact that Thomas Grady . . . resigned on December 3, 1927 it would appear, therefore, that the serial number of the typewriter sold to Fansler/ Martin would be less than 177,000."

On December 30th the FBI laboratory sent a report to the Washington field office, as follows:

The standard in the Laboratory's files which matches most closely the typewriting appearing on Q6 through Q69 reflects that the Woodstock Typewriter Company made such type in 1929. Information has been received that the Woodstock Company assigned approximate serial numbers to their typewriters in 1929 from 204,000 up to 240,000, in 1930 240,000 up to 276,000 and assigned the number 276,000 at the beginning of 1931. Inasmuch as the information that has been received gives approximate serial numbers, the proper consideration should be given to obtaining specimens from machines having serial numbers lower than 204,000.

On January 3, 1949, Philadelphia sent another telex to the Bureau regarding the pertinent serial range for the typewriter search:

Interviews with John Gallagher, the last manager for Woodstock Phila Agency and who was employed at agency as a repair man during period of sale of instant Woodstock to Fansler/Martin, have reflected that machines did not remain in Phila Agency for long periods before sale. Subsequent interviews this district tend to support this statement. This office is of opinion that pertinent period concerning typewriter sold to Fansler-Martin lies between January 1, 1926 and January 31, 1927, or serials 145,000 to 177,000. Bureau requested to establish serial number limits for all offices interested in this investigation.

This analysis was repeated by Kirkland in his report dated January 11, 1949. He concluded, as he had two weeks earlier, that the search could be confined to a serial number range between 159,300 and 177,000. Director Hoover responded to Philadelphia 's request on January 14th, by instructing all field offices involved in the typewriter investigation that:

Search for Woodstock should be limited to machines manufactured between January 1, 1926 and January 1, 1929, that is, machines - having serial numbers from 145,000 - 204,500.

The FBI apparently learned that the defense had discovered a typewriter when agents interviewed Clidi Catlett on May 13th. Within a day they had traced the machine to Ira Lockey who showed them a receipt he had received from McLean dated April 16th, referring to a Woodstock machine bearing serial number 230,099.

This discovery caused consternation in the field. The serial number of the machine was well outside the range established by Hoover as a result of the FBI's intensive investigations over the preceding four months and thus was inconsistent with the information received as to the Fansler/Martin machine from Martin, Grady and other witnesses interviewed in the preceeding December and January. On May 14th, the Washington field office advised the Director and other field offices that the defendant had obtained a machine bearing number 230,099 which it alleged was the Hiss Woodstock. The field was directed to "conduct all possible investigation to determine history of this typewriter since its manufacture including sale, resale, and repair."

The immediate response of Thomas J. Donegan, Special Assistant to the Attorney General, was to remind FBI agents to keep their typewriter investigations secret. Just two days after the FBI discovered that the defense had found 230,099, the New York field office informed Hoover and other field offices that Donegan had requested:

...that all persons being interviewed re Woodstock typewriter phase of this investigation should be informed that they should regard such interviews as strictly confidential as are any other interviews conducted by the Bureau. Do not however advise persons interviewed that they should not inform Hiss or his attorneys that they were contacted by FBI as it would be embarrassing at trial if it developed that such instructions were given by Bureau.

The Philadelphia field office, on whose shoulders the burden of the field investigation had fallen, was quick to advise the Director:

"It is desired to point out, in the event this has not previously been considered, that the definite possibility exists this typewriter (230,099) is not the one received by Priscilla Hiss from her father Thomas Fansler. The investigation to date has established that the Fansler-Martin partnership purchased a Woodstock typewriter in nineteen twenty seven."

To sum up:

From the very moment defense produced the typewriter which later became Exhibit UUU, the prosecution was aware of the possibility that it was not the machine which had passed from the Fansler/Martin partnership into the hands of Hiss. The FBI had the contrary testimony of Martin, Grady and others; the serial number of the defense's machine was far higher than that of the machine the FBI had been seeking; and some of the FBI field force had warned the Director that the machine the defendant had produced might not be the genuine Fansler/Martin machine.

The government not only failed to disclose its doubts to the defense and to call attention to the contrary evidence in its files; it went much further and made the questionable machine a part of its case. Murphy embraced it passionately in his closing, the court accepted the government theory and the Appellate Courts agreed. If there were any questions raised as to why the government had never sought to prove that Exhibit UUU was the machine which had produced the Hiss Standards and the Baltimore Documents, those questions were never articulated anywhere on this record as it has been compiled so far.

With the motion for a new trial, there was a substantial change in the posture of the parties. Now, for the first time, Hiss challenged the authenticity of Exhibit UUU. At this point certainly the government should have admitted the existence of its evidence, now rapidly accumulating, that Exhibit UUU was not the authentic Hiss typewriter. To the original evidence available at the trial, there was added the results of the extensive research done by a host of FBI agents into the manufacturing procedures of the Woodstock Typewriter Co. The evidence collected by them was so substantial, that Director Hoover was forced to the conclusion that .... there was no evidence at all that any of the Fansler/Martin correspondence had been typed by UUU. And, to make the matter worse, Feehan had come to the conclusion between the two trials that Exhibit UUU had typed the Hiss Standards while all of the evidence available to the FBI after 1951 indicated that this was impossible.

But the government disclosed nothing and concealed everything. It facilely changed its argument and urged upon the court that the typewriter was irrelevant. Forgotten now was Murphy's reference to the typewriter in his closing remarks to the jury; forgotten was the position taken by the government throughout the appeals from the trial. Instead, Myles Lane urged that Feehan's testimony had been presented independently of the typewriter and that the authenticity of the typewriter was of no significance.

This change in position, however, came too late. The jury had already decided the case and decided it on the theory offered by the government - a theory which the government reverted to once again on the appeal from the motion for a new trial.