RALEY v. OHIO

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Argument of Thelma C. Furry

Chief Justice Earl Warren: Number 463, Anna H.Morgan, Appellant, versus the State of Ohio.

Mrs. Furry.

Ms Thelma C. Furry: If the Court please.

This matter is before this Court for the second time.

In June of 1957, this Court vacated the conviction in this matter and remanded it to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions.

The Ohio Supreme Court did reconsider and adhered to its original decision.

The first remark I want to make to this Court is that this is the first case in which the Ohio Supreme Court has ruled on the validity and scope of the Ohio Immunity Act relative to testimony before a legislative Committee although there has been an Immunity Act in Ohio since approximately 1872.

I want to also point out to this Court, that this is the first case involving contempt of a state legislative Committee in which an immunity statute has been involved that this Court has considered all other cases that this Court has considered involving immunity statute has involved grand jury.

And we all know the grand jury sessions are held in secret so that the testimony given there is not available to the public or to any other persons or agencies.

You must remember that this year was 1952, this was the year that Mrs.Morgan was called before this Commission.

She was the second unwilling witness called before the Commission in the State of Ohio.

The first and -- and I want to point out to this Court that she appeared without counsel.

Mrs. Morgan was not represented before this Commission with counsel.

Mrs. Morgan was present during the testimony of the first witness, Mr. (Inaudible), who also appeared without counsel.

This is set forth as a matter of record in the record at page 62, the fact that she was present during the testimony in the questioning of Mr. Terrell (ph).

At the conclusion of Mr. Terrell (ph) testimony in questioning, Mr.Renner, counsel for the Commission, made this statement.

At page 11 of -- of our brief, Mr. Renner said, ”Mr. Terrell (ph), you have the right to refuse to answer any question, the answer to which might incriminate -- incriminate you.

Otherwise, you are required under the law to answer the questions that are put to you by this Commission," which is a Commission constituted by the people of Ohio to make a city of Communism and Un-American Activities in Ohio.

That is also in the record of page 62 as part of the record the statement made by this, Mr. Renner.

The Commission commenced questioning this appellant, Mrs.Morgan, without making any preliminary statements as to the scope of its authority, its -- the pertinencies of questions to be asked are any -- anyway identifying its -- its power.

Chief Justice Earl Warren: Was a testimony of this other witness given on the same day?

Ms Thelma C. Furry: On the -- I believe it was the morning session.

Chief Justice Earl Warren: Yes.

She was present at the hearing?

Ms Thelma C. Furry: She was present at the hearing and the record so shows that she was present.

Chief Justice Earl Warren: Yes.

Ms Thelma C. Furry: In -- at page 62 of the record if the Court wants to verify that.

The second question after Mrs.Morgan was sworn, she gave her name.

The second question put to here was, “And where do you reside, Mrs.Morgan?”

On page 12 of our brief, her answer was, “I regret that I cannot answer your question under the Fifth Amendment of the Constitution because to do so would give your Committee an opportunity to incriminate me.”

Now, prior to the time that this witness was called, on March the 31st of 952 -- I'm looking at page 10 of my brief, at the second paragraph, stated.

There were hearing held by this Commission by the way, a secrete session that were not open to the public and which cooperating witnesses testified.

April the 1st, 1952 was the first public hearing, where -- where these -- where Mrs.Morgan appeared as an uncooperating witness.

The records will show that on March the 31st of 1952, when the hearings were held in Columbus, a person by the name of John DeLong testified at length.

He described his relationship with the appellant, Anna Morgan, told where she lived, stated that she was a member of the Communist Party and active in its organizational work.

This had been carried in the news.

This is also in the record at pages 1662.

This testimony of the DeLong had been in the newspapers and Mrs.Morgan was aware of the fact that she -- that he had testified about her, her activities and her address.

Oh, I am corrected by counsel by saying that Mr.DeLong testified at a open hearing, it was not a closed hearing so that is why she was aware of everything that he had to say.

Justice Felix Frankfurter: In other words, you're trying this question regarding the residence, matters that has actually been before the Committee -- Commission indicating or at least to cast some light on what disclosure of residence might be.

Ms Thelma C. Furry: Yes.

I think, that the record will disclose if this DeLong testified and --

Justice Felix Frankfurter: Not in the secret recess of the -- the Committee's mind but what actually had been --

Ms Thelma C. Furry: Oh, yes.

Justice Felix Frankfurter: -- and that's what we correct --

Ms Thelma C. Furry: An open hearing.

This witness had testified about meeting that Mrs.Morgan's home etcetera.

At the beginning of this session of Mrs.Morgan's, she presented a prepared statement to the Commission in which she stated the following.

At page 57 in the record, Mrs. Morgan said this -- about the middle of the page of 57, she said, “This Committee was paid to investigate so-called Un-American and subversive activities, but in all these months, it has fail to state what it considers Un-American or subversive.”

At the bottom of that page, she goes on and she says, “Who am I, you may ask?”

She answers with her statement, “I am just an average American house wife.”

And closes that paragraph by saying, “I now, present my sincere beliefs, and let this Committee and all interested citizens who pay this Committee judge me.”

Then she proceeds with her statement over to page 59 at this time which I want to read her closing paragraph, “Because this Committee conducts its hearings like an inquisition with no rules of evidence that victims are denied the rights which they would have in a dully constituted Court.

Therefore, I must claim the protection of the Fifth Amendment of the constitution of the United States and remain silent before this Committee.”

Justice Felix Frankfurter: That's her statement, indicates why she didn't think she needed a lawyer.

Ms Thelma C. Furry: Perhaps, I think she did quite well for herself.

She continue to just -- to decline to answer the questions of the Commission and when she get about halfway through the questioning, Mr.-- on page 4 or page 13 of our brief, you will see what Mr.-- the Chairman, Mr. Renner said to her.

He said, “Mrs. Morgan, I should like to advice you under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you.”

Mrs. Morgan said, “Yes.”

The Chairman said, “But you are not permitted to refuse to answer question -- answer questions simply for you own convenience, counsel may proceed.”

Then following her refusal to answer each question, counsel proceeded to ask the next question.

Mrs. Morgan was never directed to answer any question.

Mrs. Morgan was never offered any immunity for answers.

Justice Felix Frankfurter: (Voice Overlap)

-- You will -- I don't want to take you off your -- your design of argument but what was said in the previous case.

It would arouse such curiosity, perhaps for my own peace of mind, we can take care of it right now.

Is it true that -- that immunity from prosecution automatically applies in witnesses, which they must disavow so that there really is no legal basis for a claiming a privilege?

Ms Thelma C. Furry: I want to say to the Court, that is what the prosecutors had been arguing all included the Court --

Justice Felix Frankfurter: And cannot -- cannot be used.

Ms Thelma C. Furry: I do not think that is true.

No, Your Honor and our courts in Ohio had never said so prior to this particular case.

Justice Felix Frankfurter: What is the basis for saying it must be in writing?

Is there anything in the statute (Voice Overlap) --

Ms Thelma C. Furry: The statute does say that, Your Honor.

We have --

Justice Felix Frankfurter: Have you printed the statute (Voice Overlap) --

Ms Thelma C. Furry: Yes we have it.

Justice Felix Frankfurter: Where is it?

Ms Thelma C. Furry: In our brief, it's at page 6.

It was then called General Code 60 at the time of this hearing, it's now revised to a different number but that is the precise language, the last paragraph on page 6 of our brief.

The --

Justice Felix Frankfurter: Exactly, as I read it.

And I know how perjurious it is to get meaning out of a statute from a statement and having been great relevance if you haven't tried this.

The statute says nothing about the duty to claim the immunity, does it?

Ms Thelma C. Furry: No.

It does not.

Justice Felix Frankfurter: Except that it doesn't apply to immunity.

Apparently, it doesn't apply to fellow who wants to -- we've got something, entitled to address that he wants to rid himself of and force his way before the Committee is at work.

Ms Thelma C. Furry: That's correct.

Now, our -- calling the Court's attention to the record commencing at the bottom of page 49, that is the record of the actual proceedings before the Ohio Un-American Commission of the proceedings with Mrs.Morgan.

Starting at 49 through page 56, they have the proceedings of questions and answers in their whole interrogation.

Above the middle of page 51, the type of question start out, isn't it a fact type of question which indicated that this Commission was not trying to get information but was merely, asking about matters that they already had and was saying, "Isn't it a fact that this is true?"

doing this in public open sessions where everyone could hear what the answers were.

At this time, I want to give my colleague an opportunity to further develop the arguments in this matter.

Chief Justice Earl Warren: Mrs. Ginger.

Argument of Ann Fagan Ginger

Ms Ann Fagan Ginger: May it please the Court.

I think that the statement by Justice Frankfurter as to whether or not this witness needed an attorney can't be decided very simply and the reasons for not having one can't be assumed.

Justice Felix Frankfurter: Because I'm not -- that was just a -- my remark.

Ms Ann Fagan Ginger: This was in 1952 in Columbus, Ohio --

Justice Felix Frankfurter: That would be one of the claims, is it?

That -- that she was denied counsel?

Ms Ann Fagan Ginger: No.

It is not a claim but it is -- I'm sure that --

Justice Felix Frankfurter: As -- as many to compliment of the --

Ms Ann Fagan Ginger: I understand but the problems of lawyers with a client in these kinds of cases, as you know, are very many.

And the fact that Mrs.Morgan stuck so strictly to the formula of words which she set forth in her statement I think has a significance, and the reason we mentioned in her statement that she referred to the -- her inability to figured out what the Commission was doing is our -- in our opinion, an effort by a layman without counsel to explain the lack of pertinency or here -- why she would find it difficult to decide whether the questions asked of her were pertinent to any matter before the Commission.

The appellant in this case takes the position that this Court had a reason for remanding this case to the Ohio Supreme Court for reconsideration in the light of the Watkins and Sweezy decisions.

The case wasn't remanded in the light of Bart, Emspak and Quinn and we don't deny of course that the problem of direction to answer is extremely important but we also do not think that this case is limited to that issue.

The fact is that this case was argued before the Ohio Supreme Court but --

Justice Felix Frankfurter: Maybe we understood the scope of Quinn and the others better than the scope Watkins and the others.

Ms Ann Fagan Ginger: Well, I don't say we get into that at least at this point of the argument but this case was argued before the Ohio Supreme Court for the second time, the day after the Emspak, Bart and Quin decisions were decided.

And the Court hadn't had enough to read -- read those decisions and ordered reargument.

And on reargument, the Court held that it was not necessary to have a direction to answer where you have an Immunity Act.

Justice Felix Frankfurter: But the Quinn -- the Quinn problem was arguably under the hearings, was it, in the case?

Ms Ann Fagan Ginger: It was argued -- it was argued --

Justice Felix Frankfurter: Originally.

Ms Ann Fagan Ginger: Originally and it was repeated on the hearing.

Justice Felix Frankfurter: Yes.

Ms Ann Fagan Ginger: This Court held in the Sweezy case that the responsibility for the proper conduct of a less -- legislative investigating committee rest on the legislature itself.

And if the lack of any indications that the legislative -- legislature wanted the information which the investigating body attempted to elicit must be treated as the absence of authority.

Now, here, we have a stronger case.

This Commission was established in June of 1951.

It called what are known as friendly witnesses until the spring of 1952, and in April 1st, it called Mr. Terrell (ph) and immediately thereafter, called the appellant as a witness.

These were the first witnesses who declined to answer any questions.

A few months later, it called -- I believe it was a few months later, it called the witnesses who were involved in the last case.

January 1st, 1953, that is nine months after it began asking questions of unfriendly witnesses, the Commission itself recommended its own demise and provided that there should not be a period in which Ohio could not investigate Un-American Activities and therefore proposed a new statue setting up a special Assistant Attorney General who would work on this problem.

And since they've realized that it would take a few months for this legislation to be passed, they recommended that their life be continued for six months.

In other words, here, we have a situation in which the Chairman of the Commission did not push the witnesses to answer questions which they felt might be incriminating, in which the Chairman and other members of the Commission did not direct witnesses to answer their questions in which the Commission itself evidently felt that it should not continue to exist because it not -- did not serve a legislative function and in which the General Assembly abolished the Commission and instead, set up a procedure providing secret hearings for witnesses in this kind of case before a grand jury and it evidently accepted this Court's decision in the Nelson case that this whole area has been preemptd by Congress because it has proceeded in no way since that decision, even under the special Assistant Attorney General.

So here, unlike Sweezy, we have a clear indication that there was an absence of authority in the Commission to attempt to elicit this type of information from the appellant.

This Court also held in the Sweezy case that the authorizing resolution must be studied in order to discover the amount of discretion conferred upon the investigating Committee and its safeguards can be nullified when the Committee is investing with a broad and ill-defined jurisdiction.

There is nothing in this resolution establishing the Un-American Activities Commission of Ohio which can be considered narrow in scope.

The statute is set forth in the appendix to the brief of appellant, and you can see from the wording that it was written with the same broad sweep as that involved -- involved Watkins and Sweezy.

This Commission was to investigate all facts relating to the activities of person groups, the persons groups and organization whose membership includes persons who have as their objective or maybe suspected of having as their objective the overthrow or reform of our constitutional governments by fraud, force, violence or other unlawful means.

All facts concerning persons, groups and organizations known to be or suspected of being dominated by or giving allegiance to a foreign power or whose activities might adversely affect the contribution of this state to the national defense, the safety and security of this State, the functioning of any agency of the State or national government for the industrial potential of this State.

Surely, it would be hard to find a statute written in much broader language.

This appellant as I mentioned, objected to the scope of this inquiry within her ability as a layman and doing it in writing in advance at the hearing by saying that no one could know what Un-American or subversive meant from the work of the Commission up to the point at which she was called as a witness.

In addition, no statement was made at the opening of the hearing concerning the scope or purpose of the Commission or of that particular hearing.

And in fact, the questions asked of this witness were not pertinent to any matter properly before a state legislative investigating committee.

Some of the questions were purely preliminary.

For example, "Where do you reside?

Are you a citizen?

How long have you been a resident of Franklin County and where are you employed?"

He sound like purely preliminary questions.

As to the question of, "what -- where do you reside?"

My colleague has already pointed out that the previous day, a witness had gone into great length about, where the -- where my client resided and meetings of the Communist Party had been held at her home.

In terms of her employment, many of the questions related to an allegation that she had been employed by the Community Party of Franklin County or the State of Ohio.

As for the other questions, these were purely preliminary.

Well, it maybe true that in a court of law as Mr.Justice Frankfurter pointed out, a witness cannot merely shout Fifth Amendment and proceed to not answer questions.

In a legislative investigating committee which is not a court, these questions cannot, we believe, has been -- the answers could not possibly have been of any help to the Ohio General Assembly in framing legislation.

And therefore, they were purely preliminary.

If --

Justice Felix Frankfurter: At the -- towards this ordinance, and their still purely preliminary, then they can't be much in place about answers.

Ms Ann Fagan Ginger: Well, the -- I think before a legislative investigating committee, if they were purely preliminary, then the Chairman who did not direct that they be answered --

Justice Felix Frankfurter: Directed information.

Ms Ann Fagan Ginger: -- and the Committee which did not urge that they were important couldn't have carried very much and certainly, the legislature did not indicate that they were interested in this kind of thing on the contrary.

As we mentioned in our brief, they specifically say, we've had a lot of criticism because we have asked questions in public.

Justice Felix Frankfurter: Of course, if they were -- if the question wasn't read or if there wasn't explicit demand to answer then it doesn't matter whether they're preliminary or (Voice Overlap) --

Ms Ann Fagan Ginger: Well, I think that's true.

Justice Felix Frankfurter: -- thing as subsidiary.

Ms Ann Fagan Ginger: We also maintain that the Commission did not have any legitimate function from the time it was founded.

Justice Felix Frankfurter: But even -- even the legislative commission -- committee -- well, I should say even more of legislative committee than the Court, must get underway.

Ms Ann Fagan Ginger: We maintain that this Committee -- Commission had been underway for some period of time.

In the previous day, had asked the witness where this client -- where this appellant lived and what she had done, and if they were merely confirming information which they already have, if they were acting as a cross-examining body rather than as a body seeking information for a legislative purpose.

Justice Felix Frankfurter: I wish your extent as for a legal instructions were commonly accepted for all purpose.

Ms Ann Fagan Ginger: There were no questions which were asked of this appellant which related to any danger to the State of Ohio from overthrow.

And all the questions which were not preliminary related to matters which were involving political activity which is protected by the First Amendment.

All the questions which were not preliminary related to the field of subversive activity on a national scale, a field which the Federal Government has wisely preempted.

And in your Nelson decision, you point out the problems that would arise if you had separate investigation into subversive activities by each State.

Justice Felix Frankfurter: (Inaudible)

Ms Ann Fagan Ginger: In addition to which all of the questions which were not preliminary, were within one area.

And under the Yates decision, where a witness draws the lines of refusal by declining to answer within an area, the prosecutor cannot multiply contempt by further questions in that area.

This witness was indicted for 37 counts of contempt and all of the counts from six, I think, on related to the single area a Communist Party activity.

This Court held in the Sweezy case that legislative investigative committees can encroach on the constitutional liberties of the individual.

And that unquestionably, there was such an invasion of Sweezy's liberty in the area of political expression.

In the Sweezy case by the Attorney General of New Hampshire, an area in which Government should be extremely reticent to threat.

And the Court said, "We do not now conceive of any circumstances wherein a state interest would justify infringement of rights in these fields."

But you continued on that point to say that you didn't have to reach this question because the New Hampshire Supreme Court had recognized there was nothing to connect the questioning of the petitioner with the fundamental interest of the State in preventing its course of an overthrow.

Now, we maintain the facts here are very similar.

The statute itself establishing the Commission required the Commission to invade the appellant's liberty of political expression.

It required that questions be asked which could not but affect appellant and other citizens of Ohio in their free exercise of their rights under the First Amendment.

And the questions could not have provided the Commission or the legislature with any new facts relating to possible overthrow of the Government of the State of Ohio.

They rather dealt into appellant's pass conduct in order to corroborate information already in the possession of the Commission.

In other words, we maintain that the statute establishing the Commission was unconstitutional as in violation of the First Amendment rights guaranteed to this witness through the Due Process Clause of the Fourteenth Amendment.

Now, we come to the problem which the Ohio Supreme Court faced.

They were not willing to discuss the question of the First Amendment rights either before Watkins and Sweezy were handed down or thereafter, nor would they prepare to discuss the points that this Court had made on the responsibility of the legislature over investigation.

No opinion was written after the argue -- reargument on remand from this Court.

Nor is the Court willing to discuss the problem of the broadly worded statute and that there was no method for determining the pertinency of the question.

None of these things where ever discussed by the Ohio Supreme Court in any written opinion.

They merely affirmed the conviction without opinion.

They therefore rested their whole opinion upon the fact that there is an Immunity Act in the State of Ohio and that the statute does not require a direction to answer.

And that therefore, they were not found by this Court's decision in Emspak, Bart and Quinn which said that in a federal case, there must be a direction to answer.

I think it is significant that this is the first case in which a State seeks to have this Court affirm a conviction for contempt in the absence of any direction to answer.

In the Regan case for example, there was a direction to answer.

The United States statute in the Emspak, Bart and Quinn case says nothing about a direction to answer no more than does the statute in the State of Ohio.

But this Court felt that there must be a clear disposition of the witness' objection as a prerequisite to prosecution for contempt.

While it is true that the State of Ohio is governed by the Supreme Court of the State of Ohio in the interpretation of its statutes and we cannot claim that there is a violation of due process within the meaning of the Ohio Supreme Court or the Ohio constitution by fair which direct to answers since the Ohio Supreme Court says this is not required.

We do claim that there is a denial of the right of the appellant under the Fourteenth Amendment Due Process Clause when you say to her in effect after the fact, "You should have answered because you would -- were clothed with immunity from the time you walk into the hearing room.

She had a right to a clear-cut choice between refusing to answer on the basis of the privilege against self-incrimination and answering and being clothed with immunity from prosecution by the State only in an area where prosecution by the Federal Government was not only possible but probable in that time at the period.

The Court held -- this Court held in Emspak, Bart and Quinn that their giving a direction to answer is a minimal procedural requirement.

And that failure to do so is the defect in laying the foundation for a prosecution.

We feel that the same situation applies here.

It cannot be assumed that the witness would have given the same answer if she had been given a clear-cut choice, it's impossible to know.

The fact that she wrote statement and handed it to the Commission at the beginning of the hearing, does not mean that if, the Chairman of the Commission had said, “Now, you must understand, Mrs. Morgan, that if you do not answer these questions, you will be cited for a contempt and you must understand it if you do answer them, you cannot be prosecuted by the State of Ohio because we're granting you with immunity.

Justice Felix Frankfurter: You're suggesting it should not be opened to reason?

Ms Ann Fagan Ginger: Well, I'm suggesting that there is no reason to believe that she wouldn't have been.

And I think the fact that she stuck so closely to this formula of words in answering each question, indicates that she was without counsel that she had thought the thing out in advance and that she was not capable, she didn't feel that she would be capable of finding a new formulation during the course of the hearing.

I don't think it, that here rigidity in answering indicates a rigidity in her ability to reason but rather a fear of this hearing and of her, the fact she wasn't a lawyer and that she was dealing with lawyers.

Certainly, it is impossible to know what the witness would have done if she had directed to answer since she wasn't directed to answer.

And it can't be said that it wasn't until after the 12th question that in the indictment -- that the Chairman told here she could use the Fifth Amendment.

She have sat in a hearing room while Mr. Terrell (ph) was interrogated.

And Mr. Terrell (ph) had been told by the Chairman that he did not have to answer the question if it might incriminate him.

And certainly, she listened to this I'm sure with considerable interest and was affected by this from the first question forward.

It cannot be held either that the Immunity Act in Ohio is sufficient to erase the privilege.

There can be no contention that a -- an immunity granted by the State of Ohio even if it did clothe her with a complete immunity from prosecution in the State of Ohio from the moment she walk into the room.

And even it is assumed that this immunity took effect without anything being said about its existence and without any mention being made to her that it was being granted to her.

It cannot be claimed if immunity erased the privilege within the language of this Court in the Olman case because we have in this country two sovereignties that act upon each individual at any given moment.

And in this case, the United States had taken an active interest in the prosecution of the person's forced subversive activities.

You can't claim that a -- an immunity granted by the State of Ohio would have had any effect whatever in a prosecution against this witness under federal law.

And therefore, it is untrue to suggest that the Immunity Act had been applied at all to her, erased here privilege against self-incrimination.

Now, this Court has never heard a case in which the double -- double sovereignty question arose in terms of immunity where there was a legislative investigating committee involved.

All of the cases before this Court, I think, from Brown against Walker, to whole list, involved grand jury proceedings.

And there's a fundamental difference between a grand jury and a legislative investigating committee.

In a grand jury, the proceedings are secret and there would be no way for a prosecutor in another jurisdiction to know what is said in the grand jury minutes.

Unless there is illusion between the state and federal prosecuting attorneys which one would not assume.

Therefore, the decisions which this Court has handed down, Jack against Kansas, Brown against Walker, United States against Murdock and the others including Knapp against Schweitzer do not settle the matter here.

The fact is that wherever there has been an actual livelihood or probability of prosecution in the second jurisdiction, this Court, as Justice Holmes said one way or the other has not -- has not found the person guilty of contempt for refusal to answer and that was true in Bowman against Bates, it was construing United States against Saline Bank and then other cases in the lower courts.

The -- you cannot read the fact in these cases, Jack against Kansas and the others and separate them without separating them from the theory profoundrd because in none of those cases was there the kind of threat of prosecution in the second jurisdiction, which existed in this case.

This was April of 1952, there were Smith Act prosecutions going on throughout the United States and there were also state prosecutions going on for the same kind of activity.

Under State of Ohio had at one time, prosecuted a witness under its State Criminal Syndicalism Law.

So that there was such a law on the books and it was known to the prosecutors.

And it cannot be assumed that the witness here before the State Committee was immune from such federal prosecution or that the danger was in any way improbable or they --

Justice Felix Frankfurter: Mrs. Ginger, I understand what you're urging is subsequent prosecution in another jurisdiction, is that right?

Ms Ann Fagan Ginger: That's right.

Justice Felix Frankfurter: Therefore, I should say that the difficulty would arise if such subsequent prosecution were undertaken rather than taking away from the State of Ohio, it's up to that time unquestioned, I mean its power to elicit the testimony exchange for not prosecuting with any (Inaudible)

Ms Ann Fagan Ginger: I don't think there is (Voice Overlap) --

Justice Felix Frankfurter: After that time just forgetting the prosecution in another jurisdiction.

That certainly cannot be denied to or hire.

The difficulty arises as argue of the threat that in another jurisdiction by making this -- by making this compelled disclosure in exchange for non-prosecution in Ohio, you may run into prosecution in the United States.

And so I suggest that -- that the evil is the prosecution in the United States and not in the grant of immunity in Ohio.

Ms Ann Fagan Ginger: Well, I don't think despite the brief by my worthy opponent that the sovereign State of Ohio has ever had the jurisdiction to ask a person questions or to prosecute them for something they may have done against the United States Government.

Justice Felix Frankfurter: But that's a different problem.

Ms Ann Fagan Ginger: I --

Justice Felix Frankfurter: That's a different problem, isn't it?

Ms Ann Fagan Ginger: No, I don't thinks so.

I think that the -- that the decision in the Nelson case which came down after this questioning occurred represented sound thinking on the part of the Supreme Court of Pennsylvania which had considered this matter for sometime and which had considered also the statements by the United States officials, both the President and the Attorney General --

Justice Felix Frankfurter: If your -- this argument means that Ohio can't deal with the matter because Uncle Sam is taking it over.

Ms Ann Fagan Ginger: That's correct, but I would go further and I would say that on any matter in which the federal and state jurisdictions can both act upon an individual, you cannot erase the privilege against self-incrimination unless the person is clothed with immunity from prosecution in both jurisdictions and that any other reading of the Immunity Act or of the constitution would result in the denial of due process to the individual.

Justice Felix Frankfurter: Well, the difficulty isn't that he's denied privilege of self-incrimination but that he's going to be prosecuted again.

And therefore, if your argument is valid, he can't be prosecuted again because that would be a denial of due process.

Ms Ann Fagan Ginger: Yes.

But I think --

Justice Felix Frankfurter: To have him -- to have him prosecuted by Uncle Sam out of testimony extorted by him when he had no means of withholding it.

Ms Ann Fagan Ginger: I think, that's true but I think you would agree that it is a very -- it would take a witness with more that one lawyer to feel at ease in answering a question before a state legislative committee knowing that this testimony must by law be turned over to a federal prosecutor and the -- with no assurance which --

Justice Felix Frankfurter: It says that it must by law be turned over.

Ms Ann Fagan Ginger: The statute requires disclosure --

Justice Felix Frankfurter: Well, that's a matter of -- that's maybe a different ground of attack, that -- that the State lent itself as a latency of the Federal Government.

Ms Ann Fagan Ginger: That's right.

Justice Felix Frankfurter: That's still another job?

Ms Ann Fagan Ginger: All right.

Well, I'm now stating it --

Justice Felix Frankfurter: And we don't want to make it too large out of legal arguments.

Ms Ann Fagan Ginger: This case, it may seem odd to say has been in the courts for seven years.

Well, it may seem simple to settle it on the question of direction to answer and we are not suggesting it shouldn't be settled on that point.

We've argued the case four, five times before the Ohio Supreme Court and we are not prepared to omit any point since that Court has seemed fit to decide it so many times against us.

I think, that --

Justice Felix Frankfurter: My questions presuppose that your argument brought the questioning, and therefore, it's not to be rejected out of out of fairness.

Ms Ann Fagan Ginger: Well, we -- we take many positions on immunity at some of which we believe, you Mr. Justice Frankfurter, might agree with us, some which we assume you may not agree with, but we took --

Justice Felix Frankfurter: (Voice Overlap)

Ms Ann Fagan Ginger: That's correct.

But on the question of double sovereignty, your word is one that we are concerned with along with the other members of the bench because you have written about it so extensively.

And the -- we have several positions on the immunity question.

One is that she was never directed to answer and affords no other rights were at any given a moment.

One of this is not the same as Knapp against Schweitzer because that was a grand jury where the proceedings were secret and here there was a great likelihood of prosecution by the Federal Government.

We also say that the statute required disclosure and liaison between the State to federal officials as to any matter testified to.

And we also say that fundamentally, the immunity granted by one jurisdiction is not sufficient unless it covers in the tread of prosecutions from the second jurisdiction which also could prosecute for the same crime.

The State of Ohio has concerned itself with the question of the -- its sovereignty and seems to be concern that it is in danger of losing its sovereignty if this Court reverses the conviction of appellant on these facts.

And yet, this is the first time that Ohio has had to consider the legislative Immunity Act for the problem of contempt in the face of this Immunity Act.

When Mr. Justice Frankfurter earlier asked what the Immunity Act provided or provide case law at this point, there has never been a prior case in which this issue arose and there has never been a case of contempt of the Ohio legislature or the Ohio legislative investigating committee involved in any field other than corruption in Government.

And I think this speaks well for the sovereign State of Ohio.

But until 1952, they never got into a field of legislative inquiry outside the field of corruption in Government.

It is important of course that in Ohio, the investigating committees which have operated have in the past not attempted to question private individuals of particularly about their political beliefs or actually about anythingelse.

Chief Justice Earl Warren: We'll recess now, Mrs.--

Ms Ann Fagan Ginger: Yes, sir.

Chief Justice Earl Warren: -- Ginger.

Print this transcript Transcript: 

Argument of Earl W. Allison

Chief Justice Earl Warren: -- proceed.

Mr. Earl W. Allison: Mr. Chief Justice Warren, members of the Court.

I have sat in this chamber yesterday afternoon and this afternoon during the presentation of the arguments in the Raley, Stern, and Brown cases which our companion cases to the instant case and also to the arguments presented to this Court in the instant case.

I have listened to the questions propounded of counsel by various members of the Court.

I feel it is my first duty to the State of Ohio and to this Court to clarify certain issues which in my mind at least certainly need clarification.

Before attempting to do that, I would like to explain to this Court my own relationship to the instant case.

The hearing in the instant case was held in Columbus, Ohio in 1952.

Columbus is the county seat of Franklin County, Ohio.

So, that if a contempt occurred, it occurred in Franklin County.

At that time, neither then nor before nor since did I have or have I had any connection with the Ohio Un-American Activities Commission, either as a member or its counsel or any other association.

The record of that hearing was presented to the then prosecuting attorney of Franklin County, and by him to the Franklin County grand jury and an indictment was returned.

That indictment was for one thing and one thing alone, legislative contempt and let me point out this is a first difference between the instant case and the Raley, Stern, and Brown cases which were under the judicial contempt proceedings.

The trial of this case was held by a successor prosecuting attorney to the -- to the prosecuting attorney who had first secured the indictment.

By that time, I was an assistant in that office and in fact, prepared the trial brief in this case.

The appeals were held under still another prosecuting attorney, now, Congressman Samuel L. Devine from the Twelfth District of Ohio.

I also handled those appeals before the Ohio Supreme Court on four occasions.

When Congressman Devine left that office, I was appointed by the common pleas court of our county to succeed him.

In other words, I have inherited a case which I have personally handled for five and one-half years.

Standing here representing the State of Ohio, I am not on my own of the responsibility placed on my shoulders in that capacity, but I want to assure this Court in all sincerity that I have lived with this case for five and a half years and I say under the shadow of my own oath, which I took to uphold and defend both the Constitution of the United States and the Constitution of the State of Ohio that my arguments represent my own personal deep and abiding convictions or I would not be here.

The Morgan case cannot be decided on the facts of any other case.

It cannot be decided on the facts of the Raley, Stern, and Brown cases.

It cannot be decided on the facts of the Sweezy and Watkins cases or the Bart, Emspak, and Quinn cases.

It must be decided on its own facts.

So, for a moment, let's place the Morgan case before this Court.

Let's place it here by itself and divest it of some of these other influences, granted that this was the same Commission under which the Raley, Stern, and Brown cases, the preceding case arose.

Granted, it is the same Ohio statute which is here under consideration, but it is the conduct of this appellant, Anna Morgan that this Court must pass on in the instant case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Earl W. Allison: The same statute creating the Un-American Activities Commission, Mr. Justice, but not the same statute under which the indictment was returned.

Justice Charles E. Whittaker: (Inaudible)

Mr. Earl W. Allison: In my opinion, sir, it is.

She was indicted only for a contempt and because of what I am going to point out in the next two or three minutes, I think the Court will see why I at least believe this is a true contempt case.

Because of certain questions asked yesterday by Mr. Justice Frankfurter, I want to detail a little bit for this Court the conduct of this particular witness.

This is not Raley, Brown, and Stern who came in and answered questions and then, when certain types of questions were read, then and there declined to answer.

This is not the case of Watkins and Sweezy whom Mr. Chief Justice Warren, and the majority of the Court said was not a case of a truculent or contumacious witness who refuses to answer all questions.

This is the very case here which the majority in the Watkins and Sweezy cases said that the Watkins and Sweezy cases were not.

When called before this Commission, this witness in case number 463, Anna Morgan, came armed with a prepared statement.

The Commission opened its testimony as far as she was concerned.She was called to the stand and the first thing that was done was she handed them the statement which appears on pages 57 to 59 of the record.

The Supreme Court of Ohio characterized that statement as highly abusive and betrayal, and I would certainly agree with them 100%.

Anna Morgan did not even wait for a single question to be asked to see what the nature of the questions were going to be, to see whether the questions were pertinent, to see whether the questions would be incriminating.

She did not wait for the first question to be asked, she presented her prepared statement which said in the last paragraph, they are thereof, “I must remain silent before this Committee.”

And when -- after stating her name, that's exactly what she did.

From then on, regardless of what question was asked to her, whether it was a question pertinent or not, I'm not passing on pertinency at this point.

Pertinent or not, whether or not it was a preliminary question or not, whether or not it was or could have been a self-incriminating question, she refused to answer each and every question of the Commission which was only carrying out the -- the intent which she had already announced she would do.

After stating her name, she refused to answer each and every question citing as her reason therefore, the privilege against self-incrimination or the Fifth Amendment.

A reading of the record in the Morgan case will clearly show that a more contumacious witness can hardly be imagined.

I agree with Mr. Justice Frankfurter when he said earlier the fact we knew.

That a witness cannot just pull down the shade and say, “I'm not going to answer any question, whatsoever.”

Now, that is what she did.

Chief Justice Earl Warren: Mr. Allison.

Mr. Earl W. Allison: And that is the basis she used.

Yes, Mr. Chief Justice?

Chief Justice Earl Warren: May I ask -- may I ask this.

It was stated by counsel this morning that she had the benefit of the testimony of a Mr. Raley or was it something like Terrell (ph), who had just testified prior to this and that he had -- had stated that countless meetings were held at her home and -- and things of that kind, the things that would have incriminated her if she had said them herself.

Now, does that have any bearing on it?

That's all I want to -- I want to hear it or approach for a testimony.

Mr. Earl W. Allison: Mrs. Morgan did not leave the Commission hearing.

I do not believe to prepare the statement between the time that Mr. Terrell (ph) testified and the time of her own testimony.

She came prepared with the statement that she was going to remain silent.

She came into the hearing when she first arrived there with that statement and I think that she had already made up her mind and I'm going to come back to that point in just a moment.

She had already made up her mind that she was going to refuse each, every, any, and all questions.

She had charted her own course of conduct before she ever came into that Committee room and I don't think that anything she heard there or anything that was said to her by the Commission or the Chairman or anyone else had the slightest effect on the course of conduct which she had already charted and began to carry out.

Chief Justice Earl Warren: Well, let's -- let's put it this way.

Would the testimony of Mr. Terrell (ph) indicate that the questions that were asked of Mrs. Morgan called for answers that might tend to incriminate?

Mr. Earl W. Allison: If the Court please, I may have at some time in the past read the record of the questions asked of Mr. Terrell (ph).

I do not at this moment recall them and they are not -- I do not believe the part of this record.

I know that there was a previous witness, not the one immediately previous, not Mr. Terrell (ph) --

Chief Justice Earl Warren: Well, may I (Voice Overlap) --

Mr. Earl W. Allison: -- but a Mr. DeLong who had testified about certain things concerning Mrs. Morgan.

That is correct.

Chief Justice Earl Warren: Well, I -- I misstated the name.

It was DeLong.

Now, was there anything in his testimony that would indicate to Mrs. Morgan or anyone else that the asking of these questions and the answering of -- of them by her would tend to incriminate her?

Mr. Earl W. Allison: I would have to say that some of the questions which she was asked may have been self-incriminatory without any other factors being considered at this moment.

In other words, forgetting for the moment any argument on immunity and things like --

Chief Justice Earl Warren: Yes, yes.

That's what I mean.

Mr. Earl W. Allison: Certain questions, I would have to agree.

It would -- could be considered as having been self-incriminatory.

On the other hand, is a question such as this, “Are you a citizen of the United States?”

In and of itself, self-incriminatory.

Under any circumstances, unless you were a person were illegally within this country, can that question be self-incriminatory.

How can a person invoke the privilege against self-incrimination to the question “Are you a citizen of the United States?”

I think that that -- that particular question, Mr. Chief Justice, is a very -- pointed specific example of the course of conduct which this woman was following.

Even to that -- even to that question, her answer was, “I refuse to answer on the grounds of the Fifth Amendment,” to the question, “Are you a citizen of the United States?”

I don't think it would have made the slightest bit of difference what question she would have been asked.

I think the record clearly indicates that she was going to sit there and willfully, deliberately, contumaciously and contemptuously express her scorn for the Committee and refuse to answer each and every question that was propounded by her, whether they were self-incriminating or not.

She used as her ground in each instance, never the ground of pertinency, never the ground of -- of First Amendment, but always in every instance, the ground that she refused to answer because her answer might tend to incriminate her.

Justice Hugo L. Black: Outside of the first two questions about her residence?

Were all the questions asked about her relationship with the Communist Party?

Mr. Earl W. Allison: I think, Mr. Justice Black, that most of the questions asked of her did refer to her relationship with the Communist Party with the exception, and I refer you to the bottom of page 54 and page -- and the top of page 55 of the record in 463, where at the very bottom line.

Question, “Mrs. Morgan, have you ever been employed by the American Zinc Oxide Company?"

Answer, “I refuse to answer under the Fifth Amendment."

Question, “It -- isn't it a fact, Mrs. Morgan, that you were arrested under the name of Catherine O'Rourke for illegal picketing during a strike at the ASL plant which should have been as your plant?"

Those had to do with past employment.

In most of the other instances, I readily concede and very quickly concede that with -- with the exception of the preliminary questions and the question as to her citizenship, most of the other questions did pertain to her alleged communist activities.

Justice John M. Harlan: I suppose the thrust of your argument that I have to say (Inaudible)

Mr. Earl W. Allison: That is one part of the argument, Mr. Justice Harlan, and in that regard, I think it is highly significant.

I would like to read a very short passage from the case of United States versus Josephson in 165 F. 2d 82.

I did not cite this case to the Court because it is an expression of the opinion of this Court, although this Court, the Supreme Court did deny certiorari in this case at 333 U.S. 838 I believe is the page citation.

But I -- I use this because to my way of thinking, this is the most logical explanation of our own situation in the Morgan case which I have come across.

I -- the -- the logic in the common sense reasoning of the Court in the Josephson case commends itself to me and I hope to this Court.

It is obvious -- it is obvious that the unqualified refusing, then and there to testify was tantamount toward a refusal to answer any questions at all relating to the matter being investigated.

After what had transpired as shown above, the propounding of one or more specific questions would have been both futile and time wasting and appellants renewed or repute -- repeated refusal to answer them would have added nothing.

He had made it crystal clear that he was determined not to answer any question concerning the subject matter under investigation.

Any argument to the effect that it was not shown that he refused to reply to any such questions can only be regarded therefore as wholly specious.

The prosecution met then the requirements of Sinclair versus United States supra that it plead and showed that the question pertained to some matter under investigation.

And at page 87, "By refusing to testify at all, he refused to answer any questions that were pertinent as well as those that were not and thus, he was not put to the decision."

He argues, could not have been made namely whether or not any particular question was pertinent.

I think that that passage of the Court of Appeals follows very much in line with the argument of the Supreme Court of Ohio in the majority opinion in this case.

That pertinency here is really not an issue because she was going to refuse to answer any questions whatsoever, whether or not pertinency is shown.

That direction to answer would have been futile because a direction to answer would have only brought forth the exact same reply that she gave time after time.

It is on that position that the Supreme Court of Ohio has hinged its opinion after a consideration of this case on four separate occasions, and I think to my way of thinking at least, I think a reading of this record will clearly show that that is exactly what this witness, this appellant was going to do, announced she was going to do and in fact, did do.

Now, if that is not contempt, then I for one do not know what contempt would be.

Justice John M. Harlan: She's not being prosecuted here, have to enlarge so to speak under general condemnations conduct which specifically rated.

Mr. Earl W. Allison: The specific counts of contempt.

That is correct.

Justice John M. Harlan: However -- however --

Mr. Earl W. Allison: Contempt to the legislative committee.

Justice John M. Harlan: -- generally contumacious she may have been, doesn't quite need the problem we've got here, doesn't it?

Mr. Earl W. Allison: Well --

Justice John M. Harlan: It has some bearing, I don't deny that but --

Mr. Earl W. Allison: I -- I can only say, sir, that her overall contumacious attitude is certainly reflected in her answer to each and every specific question that she in fact --

Justice John M. Harlan: How do you relate what you're arguing to what Judge Taft said in his dissent?

If you do at all.

Mr. Earl W. Allison: Pardon me --

Justice John M. Harlan: I mean Judge Stewart.

I beg your pardon.

Mr. Earl W. Allison: There were three dissents in this case --

Justice John M. Harlan: Stewart, that is --

Mr. Earl W. Allison: -- as the Court may be well aware, and if I may for a moment look here.Judge Stuart's dissent, of course points out the majority argument that because of the immunity factor, the -- the defendant or the appellant here was deprived of her privilege.

And he then goes on and refer specifically to Chairman Renner's statement which I presume as to what your specific question is directed, and I can only say this.

Chairman Renner made that statement after the first 12 questions had already been propounded.

If -- if this appellant were not contumacious in the first 11 questions or first 12 questions, then she was not contumacious at all.

And I therefore say that Chairman Renner stated while it -- I -- I do not apologize for the statement.

I don't try to explain in a way he made it.

He misstated the law as the Supreme Court of Ohio said he misstated the law and I was coming to that just a moment because of Mr. Justice Brennan's question yesterday.

But, his statement came during the course of a conduct which had already been clearly defined by that appellant herself without the slightest bit of misleading by that Commission or by Chairman Renner.

Chief Justice Earl Warren: Was there a count of the indictment on those first 12 questions?

Mr. Earl W. Allison: Yes, sir.

There is a count of the indictment in this particular case on each of the 37 questions which was asked this witness.

Five of those counts were dismissed upon trial on the ground that they were repetitious of other counts and one or two on another ground.

But basically speaking, there is a count in the indictment in this particular case on each of the questions propounded to her because she refused to answer each and every question.

Chief Justice Earl Warren: But Mr. Allison, may I ask you think question?

Assume that she did have an intention when she came there not to answer any questions, what -- if the questions were asked of her that -- that would elicit answers that would tend to incriminate her?

Does she lose her -- her standing to -- to claim the privileges of the Fifth Amendment because she came to the hearing with an attitude?

Mr. Earl W. Allison: Not because she came to the hearing with an attitude, Mr. Chief Justice.

I would of course not say that.

Chief Justice Earl Warren: Well, what was it that's --

Mr. Earl W. Allison: Let me --

Chief Justice Earl Warren: All right, no, pardon.

Mr. Earl W. Allison: Let me say this --

Chief Justice Earl Warren: Surely.

Sure.

Mr. Earl W. Allison: -- if I may.

I feel that this Court in deciding this particular case and the questions presented therein must look at this case as a hope.

Her attitude is a clear indication of what she intended to do.

Her actions, she was not indicted here for contempt because of her attitude, she was indicted for contempt because of her actions.

Chief Justice Earl Warren: Yes.

Mr. Earl W. Allison: Her attitude is a clear sign of what she was doing when she did what she did.

She had already made up her mind she was not going to answer.

Chief Justice Earl Warren: Well, that's attitude.

Mr. Earl W. Allison: That's attitude.

Now --

Chief Justice Earl Warren: Yes.

Mr. Earl W. Allison: But when she did not answer, I then raised this question.

Did she not answer because of the attitude she had previously determined in her own mind or did she not answer because of some of the grounds, which have since been raised during the subsequent appeals of this case like pertinency, direction to answer and so forth?

Chief Justice Earl Warren: Well, therefore --

Mr. Earl W. Allison: Nothing was further from her mind at that time of that hearing as I see the record than the question of pertinency.

Now, we are faced with the question.

“Did she refuse to answer because she had deliberately made up her mind she was going to be contumacious, or did she refuse to answer because the questions were not pertinent?”

I say clearly it is the former.

Chief Justice Earl Warren: Yes.

Well, let's -- let's stay with that Fifth Amendment for a moment and just say -- say this.

Let's suppose that she read the testimony of Mr. John, which had to do with her own continent to rest on cert in -- other's -- other's -- other things and she made up her mind that she couldn't answer these question -- any questions on that subject matter without tending to incriminate her.

And perhaps she did come to the hearing with the thought in mind that she couldn't without danger to herself to answer those questions.

But, if the -- if the questions sought to elicit answers that would incriminate her.

Is she thereby deprived of claiming that privilege?

Mr. Earl W. Allison: Mr. Chief Justice, I will attempt to answer you this way.

Point number one.

Clearly, when the witness came into the hearing room, there was either one of two things, either a privilege against self-incrimination, and I am not arguing the Supreme Court has disposed of the question as to the applicability of the Fifth Amendment, we argued that out.

I'm not going into the applicability of the Fifth Amendment because the Supreme Court of Ohio has said that whatever privilege she had, be it Fifth Amendment or Article 1 Section 10 of the Ohio Constitution, she claimed it.

And I will -- I will agree with that 100%.

She sought to and did invoke a privilege, if in fact a privilege was available to her.

Chief Justice Earl Warren: Yes.

Yes.

Mr. Earl W. Allison: Now, we maintain as was pointed out in the preceding case that when she also appeared before that legislative committee, she was bathed with immunity by the very virtue of the statute of the State of Ohio itself.

And let me point out that the state statute on immunity in Ohio gives to a witness before a legislative committee even more protection, even more protection than the privilege against self-incrimination for this reason.

I'll use an example.

Chief Justice Earl Warren: Well, Mr. Allison, when I asked you the question, I was still speaking in the same context that you started on.

You said, “We will discuss this for awhile, ”shorn of the question of pertinency and immunity and all of those other -- other things.

Mr. Earl W. Allison: I see.

Chief Justice Earl Warren: And in -- I -- I mean shorn of -- of those things which should be --

Mr. Earl W. Allison: In other words, as a bare -- as a bare privilege question.

Chief Justice Earl Warren: A bare privileged question, yes.

Would she be deprived of it?

Mr. Earl W. Allison: Shorn of the immunity factors?

Chief Justice Earl Warren: Yes.

Mr. Earl W. Allison: No, sir.

Chief Justice Earl Warren: All right.

Mr. Earl W. Allison: She would have -- she came -- would have come into that Committee room cloaked in her privilege against self-incrimination whether it be under the United States Constitution or the Ohio Constitution.

Chief Justice Earl Warren: Now, I have your position.

Don't let me interrupt your argument, you go right ahead.

Mr. Earl W. Allison: I -- I -- perhaps, got off on my own interpretation --

Chief Justice Earl Warren: All right.

Mr. Earl W. Allison: -- of what your question was.

Now, there is something which I feel and I feel very definite must be said in this case.

I make no claim to being a learner than scholarly constitutional lawyer.

There are attorneys who devote a lifetime to studying constitutional law.

I do not have the time to devote to that.

But with the legal training and experience which I have, coupled with what I hope at least is a normal amount of common sense and logic.

I think this case presents four constitutional questions, either -- or four constitutional amendments to be considered, either directly or collaterally.

The first is the Fifth Amendment which we have just been discussing.

I'm not going to cite the cases with which the Court is far more familiar than I am.

The -- the series of cases which have laid down the principle that the Fifth Amendment is not available in a state proceeding.

As I have said, the Ohio Supreme Court is disposed of that question, as held that the privilege was invoked if any privilege in fact existent.

Appellant has again here raised the double sovereignty question, and I'm not going to argue that question because this Court again is far more familiar with the arguments in the cases on that subject that I am.

I am merely going to say that in as much as under the Ohio Statute, the -- the immunity statute, this appellant was far more protected than she would have been by the privilege against self-incrimination.

I think we no longer have the question of the Fifth Amendment of the United States Constitution in this case.

The Fifth Amendment does not apply under the long line of decisions of this Court, and the Ohio constitutional provision does apply.

And as decided by the Ohio Court, this witness had a greater immunity than the privilege against self-incrimination which the Ohio constitution would have given her.

I just don't think we any longer have a Fifth Amendment question for this Court to determine.Now, the next amendment which has been raised in this case is the First Amendment for the United States Constitution.

Again, there is a long line of cases which hold that the Fourteenth Amendment is not shorthand for the first date.

I grant there are cases, some of them recently decided, I am fully aware of those which hold that even though the Fourteenth is not shorthand for the first date.

There are certain inherent First Amendment rights incorporated within our concept with due process of law.

And with that holding I would not quarrel, but I say this, “In the very conduct of human affairs, I don't care where it is, when it is, or what it's about.”

Everything that we do everyday of our life in someway touches of what our First Amendment rights.

And I say that if the First Amendment of the United States Constitution is to be interpreted to preclude any punishment or anything which in any way touches upon those First Amendment rights, then I am afraid that we had to better take another look at all of our penal laws, all of our criminal laws.

The very law of assault in Ohio at least, there can be assault by virtue of words, a mere threat.

If we are to say, “You cannot convict me of assault because I have freedom of speech to say I am going to kill you,” then I think we have gone too far.

And in this case, certainly, these questions in the very conduct or the very nature of the course of human affairs touched upon First Amendment rights, freedom of speech, freedom of press, freedom of assembly.

But I say that there is a point, there must be a point at which these things can no longer transcend the rights of some governmental control.

Now, it is my understanding that -- and this is -- as I pointed out in my brief at page 11.

This was pointed out by Mr. Justice Frankfurter in the Schweitzer case, in the Sweezy case, that this Court's review is limited, to a review under the Fourteenth Amendment of the United States Constitution.

At least, that as I say, is my understanding of the law before this Court.

Now, it is the conduct that the hearing of this witness, it is the commission of the crime which he actually committed, a misdemeanor, certainly a contempt.

As the only thing she is indicted for is a contempt.

But what she is indicted for occurred at the hearing, and I think we here become confronted with a serious question.

I ask this question.

As the Fourteenth Amendment concept of due process of law apply to the commission of a crime itself.

Clearly, in the case of any crime, it applies starting with perhaps the arrest, the indictment through the trial and so forth.

A person is guaranteed due process of law.

But here, the appellant is attempting to apply their concept of due process of law to her own commission of the crime.

The crime occurred at the hearing.

That's where the crime occurred.

In no other case which I can conceivably think of is the perpetrator of a crime guaranteed due process of law during the perpetration of his crime.

I think there -- there has been no claim of denial in this case of due process, at any step subsequent to the hearing.

It was her conduct at the hearing for which she was indicted.

It was therefore her conduct that the hearing which was the crime which was committed.

Chief Justice Earl Warren: Would you mean by that that she's not entitled to due process when she's before that Committee?

Mr. Earl W. Allison: No, I -- I say only, Mr. Chief Justice Warren --

Chief Justice Earl Warren: Well, what (Voice Overlap) --

Mr. Earl W. Allison: -- and I think we're here at a -- we're -- we're here at a -- at a question, a question as to how far the protection of the concept of due process of law under the Fourteenth Amendment goes.

Chief Justice Earl Warren: But I know -- but I understood you to say that you knew of no other case where -- where a person was accorded the privileges of due -- due process during the time that the crime was supposed to have been committed.

Mr. Earl W. Allison: During the time the crime was being perpetrated, yes.

Chief Justice Earl Warren: Being perpetrated.

Mr. Earl W. Allison: But, the --

Chief Justice Earl Warren: Which means -- which would mean I take it that during at this Committee hearing where she was a witness, she would not be entitled to due process under your argument.

Mr. Earl W. Allison: I only raised the question, sir, as to whether or not the Due Process Clause does go clear back --

Chief Justice Earl Warren: Oh, I thought you said --

Mr. Earl W. Allison: -- to the hearing.

Chief Justice Earl Warren: I thought you said --

Mr. Earl W. Allison: I said that this question then arises in my mind, a -- a query type of thing.

Chief Justice Earl Warren: Haven't there been a number of cases of contempt that have been reversed because of what happened at court proceedings or hearings?

Mr. Earl W. Allison: I would presume that as transfer.

I would -- I would presume that as true.

Well, I -- I know it's true.

There --

Chief Justice Earl Warren: Well, that's --

Mr. Earl W. Allison: This Court has in fact reversed many -- many statutes.

Chief Justice Earl Warren: (Voice Overlap) Well, I didn't understand what you said.

Mr. Earl W. Allison: Back to the court proceedings.

I think that this case is, however -- I think the appellants in this case are attempting to enlarge the questions before this Court, far beyond the questions which are actually before this Court, if my understanding of the law is correct.

Perhaps, by invoking the Fourteenth Amendment, which to my way of thinking is the only actual constitutional amendment before this Court in this case.

Perhaps by invoking the Fourteenth Amendment, appellant can raise all of these other questions.

That is as I say is a -- a constitutional question which this Court certainly is going to have to decide in the instant case as to whether or not in this particular case under the invocation of the Fourteenth Amendment now, this Court can go back and review all of these various questions which appellant said is -- are before the Court.

I do not say they are not before the Court.

I -- humble opinion, some of them are not.

Some of them have clearly been decided by the State of Ohio, under the Ohio statutes by the highest Court of the State of Ohio and in my understanding of constitutional law, there are some areas in at least in which the decision of the Supreme Court of Ohio will not be reviewed by this Court involving decisions, involving the interpretation of state statutes and I think that in and of itself, knocked out five of six of the questions raised by the appellant in the instant case.

And I would as an example of -- of what I am referring to, the appellant raises the argument ones again which has been decided by the Supreme Court of Ohio that this was in fact the law, a legislative.

The -- the Commission was a legislative committee to which the immunity statute did apply.

Now, I think the question of whether or not this Commission, under the laws in the Constitution of the State of Ohio is such a committee, is a question for the Ohio of course to decide and not a question which comes before this Court.

That type of -- that type of question, I think that the Ohio decision has already knocked out.

Now, perhaps let me say this.

Justice John M. Harlan: Could I ask you a question?

Mr. Earl W. Allison: Yes, Mr. Justice.

Justice John M. Harlan: This hasn't been discussed but like the isolated question, I'll put it to you.

Do you think that it violates the Fourteenth Amendment for Ohio to say that in construing our immunity statute, we will hold a witness to the -- to knowledge of the statute on the general knowledge of the immunity statute on the general principle and ignorance is no excuse, ignorance of law is no excuse?

Do you think that violates the Fourteenth Amendment?

Mr. Earl W. Allison: In my own opinion, sir, it does not.

It is not such a violation of due process of law.

Justice John M. Harlan: My understanding of Judge Stewart's opinion was that had it not been for what he found had been said by the Chairman contrary to what the Ohio law was respecting the right to claim a privilege.

He would have joined in the Court's opinion.

Is that the way you read it?

Mr. Earl W. Allison: I -- I -- well, yes.

Yes, sir.

That's my understanding.

Justice John M. Harlan: And I understood your argument to be when you first started off that on that premise, the fact that this woman had gone there with a predisposition of predetermination not to answer questions was an answer to Judge Stewart's argument that she could have been mislead by what the Chairman said.

Mr. Earl W. Allison: Well, yes.

I -- I do say that, Mr. Justice Harlan.

I say that her -- her clearly expressed attitude of -- of going there and going to be contemptuous is a -- is an answer to what Mr. (Voice Overlap) --

Justice John M. Harlan: Well, is that the only reference to your argument really to the issue here?

And I -- I don't -- I don't mean to suggest it.

It doesn't have a strong relevance.

It does as far as I'm concerned, have strong relevance with -- is -- is there anything to -- anything more to it than that?

Mr. Earl W. Allison: To --

Justice John M. Harlan: What you've talked about, what you opened up with in saying that this woman had come there with a predetermined philosophy that she'd answer no questions (Voice Overlap) --

Mr. Earl W. Allison: Oh, yes.

In other words, her -- her expressed attitude and then the following through of that attitude goes clearly to the point as to whether or not she was mislead --

Justice John M. Harlan: And that's the law.

Mr. Earl W. Allison: -- in anyway by the Commission.

Justice John M. Harlan: That's the only trusted view.

Mr. Earl W. Allison: Yes.

I'm not -- I'm no t going to deny her -- her privilege of self-incrimination or I'm not going to remove her from the immunity bathe or anything else merely because she comes here with a prepared statement and an attitude like this.

But, neither am I going to stand here and admit that in this particular case, this witness was a little red riding hood in all innocence while the Ohio Un-American Activities Commission was a big bad wolf waiting to gobble her up.

Justice John M. Harlan: Well, that's -- that's (Voice Overlap) --

Justice Hugo L. Black: Well, the record seems to show this.

Am I wrong about it that, there had been a witness to have a rule -- had been interrogated asking her, asking the witness about this Mrs. Morgan's activities in the Communist Party and so forth.

Mr. Earl W. Allison: Yes, sir.

There had been interrogation of fire what --

Justice Hugo L. Black: She had been sitting -- she had been sitting and heard it.

Mr. Earl W. Allison: No, sir.

I -- I think that is for some confusion creeps in.

I cannot positively answer your question, but I will attempt to clarify at least this much.

There have been references in this case and in this argument to -- to prior witnesses.

One witness, a Mr. DeLong definitely did testify regarding Mrs. Morgan's activities.

To my knowledge at least, Mrs. Morgan was not sitting there during his testimony which had occurred some month or so previously.

Immediately prior to her appearance, a Mr. Terrell (ph) had testified.

Now, whether or not Mr. Terrell (ph) testified on anything as to Mrs. Morgan's activities, I do not recall because it has been some seven years since I read through that.

Justice Hugo L. Black: Do you think -- you wanted to say -- do you seems to say that he did unless I must read it, maybe I do, and that she was sitting there at the time?

And at that the same time, the Chairman of the committee told this witness he could claim his right except against (Voice Overlap) --

Mr. Earl W. Allison: Yes, she was there while Mr. Terrell (ph) testified, but I don't know whether he testified as to anything involving Mrs. Morgan.

Justice Hugo L. Black: Well, yes.

Further question was asked as supposed to be of him.

"Did Anna Morgan at that time have any official title in the Communist Party?"

I don't believe she has.

Was she serving any particular task if she can be more or less at large."

But she organizes the Communist Party?

Mr. Earl W. Allison: No, Mr. Justice.

I believe that is the witness, DeLong that is -- that -- that we are talking about at that point.

Well, from what page are you reading there now?

Justice Hugo L. Black: Well, right after page 61.

Right after that -- right after question, it said --

Mr. Earl W. Allison: Yes.

Yes.

Justice Hugo L. Black: -- (Voice Overlap) own knowledge whether Mrs. Morgan was present during that hearing or at least you spent during the testimony?

Mr. Earl W. Allison: Well, may I attempt to clarify it, sir?

Justice Hugo L. Black: Yes.

Mr. Earl W. Allison: On page 60, if you will turn to the -- about the middle of page 60, you will find the following question."

And do you recall of your knowledge whether Mr. DeLong mentioned Anna Morgan at anytime during his testimony?"

Now, that was a question propounded to the Court reporter who had taken the testimony of Mr. DeLong.

Then, there are these questions concerning Mrs. Morgan which had in fact been propounded to Mr. DeLong.

Then, at the top of page 62, "You find a date there, April 1st, 1952, is that a correct?"

Answer, "Yes."

Question, “And do you know of your own knowledge whether Mrs. Morgan was present throughout that hearing or at least was she present during the testimony of the witness who preceded her on that day?”

That refers not to Mr. DeLong who was discussed on pages 60 and 61, but to Mr. Terrell (ph) who had immediately preceded her as a witness.

There is a change over there in the -- in the questioning of the Court reporter between the DeLong testimony and the Terrell (ph) testimony.

Justice Hugo L. Black: That stands in your judgment merely for the fact that she was sitting there and heard him tell the witness just before them --

Mr. Earl W. Allison: Yes, sir.

Justice Hugo L. Black: -- that they had the right to --

Mr. Earl W. Allison: Yes, sir.

Justice Hugo L. Black: -- can't refuse to testify.

Mr. Earl W. Allison: Yes, sir.

Justice Hugo L. Black: And when she came on, she vote in a statement, the closing paragraph of which was that she would not -- she claimed the right of self-incrimination --

Mr. Earl W. Allison: Yes, sir.

Justice Hugo L. Black: -- against self-incrimination.

Mr. Earl W. Allison: That is correct, sir.

Justice Hugo L. Black: And she -- then the first question was asked and she kept it up, and kept it up throughout.

Mr. Earl W. Allison: With the exception of answering her name.

Justice Hugo L. Black: Yes.

Mr. Earl W. Allison: I am perhaps, sir -- perhaps this Court in its wisdom and then its much longer experience in both the field of law as well as the judicial field as compared to myself.

Perhaps I placed too much emphasis on the clearly contemptuous, abusive, vitriolic statement --

Justice Hugo L. Black: That wasn't much used.

Mr. Earl W. Allison: -- prepared statement which she came there with.

Justice Hugo L. Black: She wasn't indicted for that.

Mr. Earl W. Allison: She was not indicted for that, but I think it clearly shows her attitude.

Justice William J. Brennan: Your Ohio Supreme Court finding (Inaudible)

Mr. Earl W. Allison: It considered it as a factor in -- sir, in determining her contumacious conduct.

Justice William J. Brennan: Did you find -- is that in the --

Mr. Earl W. Allison: Yes, sir.

Justice William J. Brennan: Where is it?

Mr. Earl W. Allison: If I may look for one moment.

At page 124, Mr. Justice Brennan, in the second full paragraph.

The Supreme Court of Ohio said, “The State advances the theory and so forth,” and then the second sentence of that paragraph.

“In the light of what we have said however concerning the necessity of a direction to answer, it is neither to necessary to consider this premise.”

That is the premise advanced by the State of Ohio, “Nor to give such statement which is highly abusive and vitriolic, dignity of perpetuation in this opinion.

They did not -- they did not go on into the statement itself, but earlier in the record they had referred --

Justice William J. Brennan: Well, isn't that over -- an express which he hold the rest the decision on --

Mr. Earl W. Allison: They read --

Justice William J. Brennan: (Voice Overlap) --

Mr. Earl W. Allison: No, they did not rest their decision on that statement.

No, sir.

Justice William J. Brennan: Indeed, they expressly rejected it.

You gather the State advanced that theory, did it not?

Mr. Earl W. Allison: We advanced the theory there, sir, as we have advanced it here.

Justice William J. Brennan: Yes, and --

Mr. Earl W. Allison: But the statement is a --

Justice William J. Brennan: Yes.

Mr. Earl W. Allison: -- a part of the whole picture that you cannot look.

Justice William J. Brennan: Yes, but your -- but your on Supreme Court refused to rest its judgment in any ways on that theory, did it not?

Mr. Earl W. Allison: I am under the impression, sir, and I -- I will have to -- I will have to first say, “Yes, sir.

It appears to have rejected it.”

I am under the impression that somewhere in the Ohio Supreme Court's opinion, there is another reference to that statement which merely is for the same purpose that I have referred to adhere and that is to show the overall attitude.

I -- I feel sure that in that decision, there is another reference, I seem to recall it.

But I -- I cannot find it at the moment and since I have only about two minutes remaining to me, I will not take the time to look.

I -- I think that there is one thing further that I would like to say to this Court and it is one which, perhaps in these other cases, a question has been raised and not been discussed in the decision, I do not know.

If it has been raised and rejected, then I presume it will once again be rejected.

But I feel very clearly that we have one other amendment of the United States Constitution which I have not discussed, which has some application to the instant case.

I feel very clearly and very strong.

Well, I am not standing here advocating state's rights in any way, shape or form.

I feel that the Tenth Amendment of the United States Constitution cannot be overlooked.

It has been charged in this by the appellants in this case that the State of Ohio has no power to do this, no power to do that, no power to do anything else.

I say that under the Tenth Amendment of the United States Constitution, Ohio did have power to do certain things unless someone can point the way toward an absolute prohibition against that power in the Constitution and laws of the United States.

In other words, the Constitution of the United States' Tenth Amendment reserves to the States those powers not expressly granted to the United States Government or expressly prohibited by the Constitution to the States.

Nowhere have I seen in any of the cases which have been decided, which made me feel that perhaps the question has not been raised, any reference to the Tenth Amendment and as to any possible power of the State of Ohio to inquire into affairs which I respectfully submit were entirely within the province of the State of Ohio.

We did pass.

It has been argued here there was no legislative purpose to the Ohio Un-American Activities Commission.

I submit the State of Ohio did pass legislation as a result of the hearings and inquiries which that Commission held.

Justice John M. Harlan: Could I ask you a question before you sit?

Mr. Earl W. Allison: Yes, Mr. Justice.

Justice John M. Harlan: I've read the majority opinion and I don't want to take time to go through them (Inaudible).

Did the -- did the majority discuss the question of Judge Stewart's -- discussed in his dissent prior to which his --

Mr. Earl W. Allison: you mean as to Chairman Renner's statement?

Justice John M. Harlan: (Voice Overlap) as to whether she's been disallowed (Voice Overlap) --

Mr. Earl W. Allison: Yes, sir.

The majority very clearly discussed it.

Justice John M. Harlan: They did?

Mr. Earl W. Allison: And rejected Judge Stewart's thinking on the question at page -- at page 123 of the record where the majority said it is argued also that the Chairman of the Commission in someway contributed to appellant's misfortune by stating to her, “Mrs. Morgan, I should like to advice you under the Fifth Amendment” and so forth.

And then, the Ohio Supreme Court concluded as I have argued here that that did not mislead her in anyway that it did not influence her in anyway in her course of conduct.

She had already charted that course of conduct.

I believe the instant case, perhaps is a case in which we are more closer or closer to an actual contumacious witness case.

I think the record will bare me out in that regard in any of the cases, any of the decisions which I have read.

Other cases which have been decided, the majority opinions have said they were not the contumacious type of witness.

I submit in the instant case, this was a contumacious witness.

I submit that Ohio had power to punish that contempt if it occurred.

I submit the contempt did occur, and I submit that the punishment which amounted here to a fine of $500 was fully proper and that the decision of the Ohio Supreme Court which has been made under its interpretation of Ohio's Constitution and statutes should be affirmed.

Chief Justice Earl Warren: Mrs. Ginger.

Argument of Ann Fagan Ginger

Ms Ann Fagan Ginger: May it please the Court.

Very -- I think it may help even at this late date to go back over the fact in this case because I don't think they've been presented in chronological order in such a way as to be absolutely clear.

First, I would like to say though as a sort of a joke that if it is true that nothing was further from the mind of the witness during her testimony, then the problem of pertinency, I would say that there was nothing further from the mind of the Chairman and the other members of the Commission than the existence of an Ohio Immunity Act.

The last day of March 1952, hearings were held in Columbus by the Ohio Un-American Activities Commission and one John DeLong testified at length concerning one Anna Morgan.

And he discussed where she lived, what her position in the Communist Party was and the kind of work she had done.

The following day was April 1st, 1952 and on that day, four witnesses where called before the Commission.

The first one was Mr. Terrell (ph), the second one was Mrs. Morgan.

In other words, on March 31st in Columbus, John DeLong was question that was a friendly witness and discussed at length appellant.

The following day, she was the second witness to appear.

First -- first witness, Mr. Terrell (ph), my also representative at that time, not in the hearing but in the trial, it was a companion case with this at one time, was asked a number of questions, all of which she declined to answer on the basis of the Fifth Amendment.

Whether he was asked, whether he knew Anna Morgan, I don't recall.

In any event, during his testimony as we've discussed several times now, he was told that he had a right to refuse to answer any question, the answer to -- which might incriminate you, otherwise you are required to answer at page 11 or page 62 of the record.

Mrs. Morgan was or was not present during the testimony of John DeLong.

The record doesn't indicate that.

Certainly, that was an open hearing and it was reported in the present, she was well aware of it when she came into the hearing, the following day with a prepared statement and she definitely was in the hearing room at the time that Mr. Terrell (ph) was questioned and then she heard Chairman Renner make the statement to Mr. Terrell (ph).

Therefore, while it is true that she came in with a prepared statement, it is also true that she knew that her name had come up in the hearing the previous day and she had heard the prior witness given a certain advice.

I do not see how anyone can know what she would have done if Mr. Terrell (ph) had been given a different kind of advise.

She might or might not have put her statement into the record.

That's I think impossible to say.

Justice John M. Harlan: What do you say your proposition of that on Justice -- Justice Stewart's argument, namely that she was mislead, were concluded by a finding with the -- the majority of the Ohio Court that she was not misled?

Ms Ann Fagan Ginger: Well ,I don t think you can be concluded in a finding that she was not misled in the sense that there was no denial of a federal right to be informed of her status at that time if the Ohio Supreme Court wishes to say that the standards of due process in Ohio will permit a conviction for a contempt in the face of these facts.

This Court couldn't go into that, but I think this Court reading the fact, can conclude that under the Fourteenth Amendment, it is a denial of due process to find someone guilty of contempt for a willful refusal which is the wording of the indictment, a willful refusal to answer the questions in the face of these facts.

Justice John M. Harlan: Good answer.

Ms Ann Fagan Ginger: The witness was called to testify and the first thing he did was to turn in her statement.

Now, her statement says two things which I think are of interest.

One is that, as I mentioned earlier in my argument before, that in all these months, the Commission has failed to state what it considers Un-American or subversive.

That's at page 57 of the record.

Now, while this is not a lawyer's way of saying, “I can't figure out what's pertinent to the matter under inquiry.”

I think it is a layman's way of saying, “I can't figure out what is pertinent to the matter under inquiry.”

She also said in her statement that the -- because this Committee conducts its hearings like an inquisition with no rules of evidence.

It -- its victims are denied the rights which they would have in a duly constituted Court.

Therefore, I must claim the protection of the Fifth Amendment of the Constitution of the United States and remain silent before this Committee.

I think this is a fairly clear statement which if she had -- had a lawyer, she might have made during the course of the hearing.

But without a lawyer, she wrote it down in advance so that she would clearly had made her point.

Justice Felix Frankfurter: But she didn't -- she wasn't denied to having a lawyer was she?

Ms Ann Fagan Ginger: No, you can't go out --

Justice Felix Frankfurter: Wasn't -- she didn't say she was an indigent person who wanted to have a lawyer at the time, did she?

Ms Ann Fagan Ginger: There is no such provision before a legislative committee that you can get a counsel.

Justice Felix Frankfurter: Well, it doesn't prevent a chairman of a legislative committee to say, ”I'll give you the assistance of Mrs. Jones.

To my mind, a generous-minded lawyer will be glad to represent you.”

Ms Ann Fagan Ginger: Well, I would --

Justice Felix Frankfurter: (Voice Overlap) Liberty Union in -- in Ohio.

Ms Ann Fagan Ginger: I might say if I may go outside of the record that this subpoena was served and this client attempted very -- with a great deal of diligence to find counsel in the City of Columbus and wasn't able to do so.

I was at that time a lawyer from Cleveland and came into the case a good deal later.

There were no Cleveland lawyers.

They --

Justice Felix Frankfurter: I have notice of the fact -- I could take judicial notice even bar showed not a considerable interest from being assigned to a trial with a Communist, isn't that true?

Ms Ann Fagan Ginger: But this was a Cleveland Bar and it was a little later after things had changed a little in the State of Ohio.

This is Columbus in April 1st, 1952.

Justice Felix Frankfurter: Well, but we don't know whether it's not -- it's not unreasonable.

It's certainly not sensible to assume if Mrs. Brown appeared as she did because she wanted to appear as she did.

Ms Ann Fagan Ginger: I'm sorry, Your Honor.

I know --

Justice Felix Frankfurter: (Voice Overlap) sensible in some sort.

Ms Ann Fagan Ginger: I think it is in terms of an investigation before this Commission or the Un-American Activities Committee.

I have heard of no instance.

Maybe -- it's certainly in no instance until 1955 or 1956.

If there have been any since then, I'm delighted.

I know of no instance until at least 1955 in which any Bar Association or anyone else offered counsel for a legislative committee, not a Court.

Justice Felix Frankfurter: I said it is not sensible to assume that she wanted to represent her -- represent herself, that's not too sensible.

Ms Ann Fagan Ginger: I believe knowing the client and knowing the other clients who also came in with out counsel that that is sensible as of that year, yes.

Justice Felix Frankfurter: Well, maybe I should address, we don't know -- I mean the record is blank on it.

Ms Ann Fagan Ginger: The record is blank, I know, but did it not --

Justice Felix Frankfurter: This is not a statement of an undivided, unintelligent, non-competent person, was she?

Ms Ann Fagan Ginger: No, this is a statement of a person who had read the newspapers, but had not consulted a counsel because it -- it's clear --

Justice Felix Frankfurter: Well, I don't know if she had or hadn't --

Ms Ann Fagan Ginger: Well, I think it's fairly clear Mr. Justice Frankfurter that if she had consulted counsel, she would have been told certainly to apply, to -- to mention Article 1 Section 10 of the Ohio Constitution.

Justice Felix Frankfurter: She might have had counsel who'd like to challenge this Committee, which is no zone of Ohio Constitution statutes.

Ms Ann Fagan Ginger: That's possible.

I prefer to assume that the members of the Columbus Bar had they given a counsel would have said, “Use Article 1 Section 10 of the Ohio Constitution.”

The fact that she didn't mention that Section, which relates to self-incrimination convinces me as to whether things outside of the record that her failure to have counsel was not a matter of her own choice.

Justice Felix Frankfurter: I think that's -- I -- I am sorry to say, we've had lawyers of this bar pending reverse and he will talk of Fifth Amendment without talking -- without -- without giving a reference to the local state comparable provisions.

Ms Ann Fagan Ginger: That may well be.

I won't get into a discussion of this matter beyond saying that I -- it is significant that both this client and two others who took a similar position appeared without counsel.

I represented all related.

Justice Felix Frankfurter: (Voice Overlap) on this record.

Ms Ann Fagan Ginger: That's correct.

Justice Felix Frankfurter: I may have to ask you something else about the -- I'm still confused as to the Ohio law.

I don't think I asked you whether you agree that -- is it your view that the Ohio statute automatically afford immunity from prosecution --

Ms Ann Fagan Ginger: Well,

Justice Felix Frankfurter: -- before witness who appeared before a legislative committee even though he or she may not claim the privilege of -- against self-crimination.

Ms Ann Fagan Ginger: Unfortunately, I neither wrote the statute nor I can't -- it's my interpretation of it of any value.

This is the first case in which it involved --

Justice Felix Frankfurter: And what is your answer?

Ms Ann Fagan Ginger: -- and the Ohio Supreme Court said this could be done without --

Justice Felix Frankfurter: Automatically?

Ms Ann Fagan Ginger: That's what they said.

Justice Felix Frankfurter: Where did they say that?

Ms Ann Fagan Ginger: In their opinion.

They say, “You don't have to be given a direction to answer and this will automatically clothe with immunity from the time you walk into the room.”

And therefore, there is no reason to give a direction doing it, sir.

I don't know how quickly I can find it (Voice Overlap) --

Justice Felix Frankfurter: They don't say that.

Justice William J. Brennan: 127 --

Justice Felix Frankfurter: But they do not say that.

They say -- they do not say that.

They do not say -- they do no give the answer to the question I put to you and other counsel, namely whether the mere fact that your stepping a legislative committee rule, clothe you with the immunity from prosecution, they do not say that.

Ms Ann Fagan Ginger: Well, if they don't then that's fine because I would agree with them.

I thought that I -- my interpretation --

Justice Felix Frankfurter: (Voice Overlap) read English.

Read it and everything.

But do they said that?

A direction to answer after appellant's refusal upon the ground of self-incrimination was unnecessary since the immunity granted to here included the possibility of justifying.

This question has been before this Court as to whether you've got to make some showing that you want to get something for something, or get something for nothing.

Ms Ann Fagan Ginger: It seems to me clear that it is a -- that you cannot assume that a person has immunity unless you give it to them.

I think you cannot have an operation of an Immunity Act until a witness is asked a question, he refuses to answer on the basis of self-incrimination.

You directed to answer the question and then he is told as to his refusal to answer is not accepted and he is then offered immunity and at that point, he refuses to answer and then he's in contempt.

Justice Felix Frankfurter: That's what I --

Ms Ann Fagan Ginger: That's have been all with my understanding and I found no case other than this one in which this was permitted.

Justice Felix Frankfurter: Well, I agree with you if I may.

Ms Ann Fagan Ginger: Delighted.

Justice Felix Frankfurter: The statement of the Chairman isn't an error because all he said is, you needn't answer.

Did you claim the privilege against self-crimination?

Ms Ann Fagan Ginger: In other words, he were saying, "We were not giving you any immunity."

Justice Felix Frankfurter: Pardon me?

Ms Ann Fagan Ginger: In other words, he were saying, “We are not in this case giving you any immunity.”

Justice Felix Frankfurter: He said you don't need to answer.

Ms Ann Fagan Ginger: Right.

Justice Felix Frankfurter: And it's a general understanding of immunity statute is that he who has a dispensing power may decide whether he discern prosecution possibly to testify.

And therefore, the Chairman cannot be wrong at all, if that's the law of Ohio.

Ms Ann Fagan Ginger: Well, I would agree with you and I think that that --

Justice John M. Harlan: What does the Supreme Court mean on pages 119 when it said, “Does the witness knew or was presumed to know that under the statute, her invocation of the rule of privilege against self-incrimination was a useless act under the law.”

Said, such a rule of privilege had been supplanted by a statute affording her sufficient immunity from prosecution to satisfy the protection against self-incrimination.

A mere refusal to answer on such a basis constituted contempt and so forth?Is that what you're referring to when --

Ms Ann Fagan Ginger: Yes.

Justice John M. Harlan: -- you said it was automatic?

Ms Ann Fagan Ginger: Yes, I -- I can't read it in any other way.

I think --

Justice John M. Harlan: That's the way I read it too.

Ms Ann Fagan Ginger: The problem is that the Chairman of the Commission and the members of the Commission clearly had either never heard of the Immunity Act or they didn't think it applied to this Commission and therefore, they didn't mention it.

We cannot argue here whether this was a commission or a committee, but the fact of matter is that it was a matter in dispute.

I don't think the Commission felt at ease.

Justice John M. Harlan: But the point -- the point is, in answer to Mr. Justice Frankfurter's question, “Aren't you right when you first suggested that this Ohio Supreme Court had construed the statute in this case rightly or wrongly, as providing automatic immunity by walking into the legislative room?"

Ms Ann Fagan Ginger: That would to be true.

I would to turn for a moment to the questions that were asked because I don't want to miss the -- the problem of whether the questions where preliminary or not.

The first question was her name which she gave.

The second question was, "Where do you reside -- reside?"

And to that, she said, and I do not think the language was either vitriolic or highly abusive.

"I regret that I cannot answer your question under the Fifth Amendment of the Constitution because to do so would give your Committee an opportunity to incriminate me."

She was then immediately asked.

“Now, Mrs. Morgan, would you explain to the Commission how revealing your address of which you were served with the subpoena by the Sheriff of Franklin County would tend to incriminate you?”

The first question, “Where do you reside?” became count one in the indictment.

On this, she was convicted and fined.

Chief Justice Earl Warren: What page?

Ms Ann Fagan Ginger: Page 49 of the record.

On page 50 of the record, the first question on that page, “Now, Mrs. Morgan, would you explain to the Commission how revealing your address?”

That became count two in the indictment and that was on trial.

This was -- she was acquitted on that count as not pertinent to the matter under inquiry.

She was then asked, “Are you a citizen of the United States?”

And she said, “I appeal under the Fifth Amendment.”

The -- the counsel for the Commission said, “You say you feel under the Fifth Amendment.”

“I continue to feel under the Fifth Amendment not to answer that question.”

"Does that mean that you refuse to answer?"

Answer, “I refuse to answer under the Fifth Amendment.”

"And by the refusal to answer under the Fifth Amendment, you say to answer would tend to incriminate you."

Answer, “Yes.”

Now, the question has come up whether her refusal to answer, whether she was a citizen of the United States was a frivolous answer or one in which there was no basis for fear of incrimination.

The fact that the matter is that this was a woman who could -- who was aware of the possibility of denaturalization action.

If you wish to call this a prosecution or not, I don't know if that's important.

A denaturalization case may not be considered formally a criminal matter, but there --

Chief Justice Earl Warren: Was she foreign-born?

Ms Ann Fagan Ginger: It's not in the record.

She was native born.

She had married during the period when you lose your citizenship and she had later become a citizen over again through naturalization and she was aware of these facts when she testified.

Nothing of this is in the record however, but she was asked, “Do you -- would the answer to incriminate you?”

And she answered, “Yes, it would.

Yes.”

Then, she was asked what the Fifth Amendment was and she just kept saying, “Fifth Amendment, Fifth Amendment.”

Now, it maybe that the State of Ohio Supreme Court, reading this record, thinks this was a very strange witness.

They asked her, “What is the Fifth Amendment?”

And she merely says, “I am appealing under the Fifth Amendment.”

I do not think it is strange for -- for a client without counsel to be fairly careful of her answers in this kind of a hearing.

It maybe she was intelligent enough to write a statement in a quieter room.

But to think on her feet and give an accurate answer, a careful answer which wouldn't waive any right, I think at that stage of the law, 1952, what a person would know from newspapers, I think it is fairly clear.

This wasn't a rigid person who was denying the possibility of a discussion.

She was merely afraid to get away from a formula which she thought was safe.

The next count in indictment, the question was, “How long have you been a resident of Franklin County, Mrs. Morgan?”

And she said -- she continued to appeal -- appeal under the Fifth Amendment.

For this, she was fined.

And it seems clear to me that this is purely a preliminary question.

It could have had no significance, unless it is somehow connected with the last count in the indictment which I will read when I come to it.

Then, she was asked, “Where are you employed as count five?”

On that count, she was fined.

And you will find throughout the questioning a number of questions later on indicating that she had been a paid Communist Party organizer, count 12, count 14, both indicate these.

So that, her concern over answering, "Where are you employed and her refusal to answer under the privilege makes sense when you read the later questions.

The next count on which she was fined was, “Mrs. Morgan, are you now or have you ever been a member of the Communist Party?”

And the continuing count thereafter all relate to the Communist Party until you get into count 28, I believe.

Now, count seven was -- on count seven, she was acquitted in the common pleas court after trial, as its being identical with count six and 36.

In other words, we argued at the trial court that these questions were repetitious and that they were not pertinent, and two of the questions were thrown out on the ground of no pertinency.

That is the question at the top of page 50 and the question at the bottom of page 55 concerning the Civil Rights Congress.

Both of those counts were thrown out on the ground of no pertinency.

And counts six and 30 -- count seven and 36 were thrown out on the ground of their being repetitious.

Our argument -- our only argument with the trial court was that they should have thrown out all of the counts from seven on, on the ground that they were identical with seven, before that sole reason.

In terms of the answer as to her home, in addition to the problem which I mentioned before about DeLong having testified concerning meetings having been held at her home, the counts in 11 -- 17 and 18, and 19, and 20, and 21, and 24, and 25, and 26, all asked questions connecting her home with Communist Party headquarters or Communist Party meetings.

So, there can be no doubt that there was an honest claim of the privilege in connection with her testimony.

I would like to say in conclusion that while it would be possible for this Court to decide this case and to reverse the conviction of this appellant solely on the ground that the failure to direct to answer and the failure to show a willful refusal to answer in the face of the statement by the Chairman that she need not answer, there are pending now in Ohio 20 similar cases before this same Commission which is now the debunked and it would be of considerable value if this Court, considering this case on -- for the second time on -- acted a remand under Watkins and Sweezy if the Court covered issues beyond the direction to answer and the failure to show a willful refusal to answer.

Justice Felix Frankfurter: Before you sit down, may I ask you since -- or whether the Chairman was a witness at the trial of Mrs. Morgan for contempt?

Ms Ann Fagan Ginger: Yes, yes.

That's in the record.

Justice Felix Frankfurter: Now, did he make the statement at this trial that before -- from the Raley, Stern and Brown case?

Ms Ann Fagan Ginger: No, he made that statement in that case and he did not make that statement here.

He talked about the purposes of the Commission and he did not make a general statement.

Justice Felix Frankfurter: Would he ask about this policy at this trial?

Ms Ann Fagan Ginger: No.

Justice Felix Frankfurter: At this trial, at the trial on the -- judgment or sentence before us, Mrs. Brown was represented by counsel -- Mrs. Morgan was represented by counsel.

Ms Ann Fagan Ginger: That's correct.

Justice Felix Frankfurter: Was the Chairman examined, cross examined --

Ms Ann Fagan Ginger: Yes.

Justice Felix Frankfurter: -- at this trial?

Ms Ann Fagan Ginger: Yes.

Justice Felix Frankfurter: Did the Morgan trial precede or follow the Raley, Stern, Brown cases?

Ms Ann Fagan Ginger: I think it preceded it.

Justice Felix Frankfurter: Would he say it to merely to find out?

Ms Ann Fagan Ginger: Very shortly before it.

There was a delay of a year in -- by the trial court and deciding a demurrer which I filed, which they overruled but there was a year's delay so that -- although the testimony in Morgan was taken earlier and the testimony in the Raley case, the trials was very close to each other.

Print this transcript Transcript: 

Argument of Morse Johnson

Chief Justice Earl Warren: Number 175, Raley, et al., Appellant, versus the State of Ohio.

Mr. Johnson.

Mr. Morse Johnson: May it please the Court.

The basic question presented by this appeal is whether or not the compelled interrogation of the appellants before the Ohio Un-American Activities Commission violated their basic constitutional liberties as established by the Due Process Clause of the Fourteenth Amendment.

The basic simple facts may be briefly stated.

These appellants were subpoenaed as to be witnesses in front of the house on -- front of the Ohio Un-American Activities Commission on October the 20th, 1952 in Cincinnati, Ohio.

They arrived at the hearings and the hearings were held.

The only guidance that they had is to what was under inquiry, what the purpose of the Commission's hearings at that time were, where the mandate itself coupled with a few general statements, which I will refer to later, made by the Chairman of the Commission.

The Chairman of the Commission advised these witnesses that they had their privilege against self-incrimination available to them should the questions as -- seek incriminating -- incriminating information.

Justice William O. Douglas: Speak that again.

Mr. Morse Johnson: The appellants were assured or the witnesses before the Commission, Mr. Justice Douglas, were assured by the Chairman of the Commission admonished and advised that if questions sought incriminating information, these -- these witnesses could assert their privileges or their privilege against self-incrimination.

Justice William O. Douglas: Where is that in the record?

Mr. Morse Johnson: Wait.

I'm sorry to take you -- so long, Your Honor, I didn't -- on record 99, 134 and 157 as to each appellant, Your Honor.

Justice William O. Douglas: At 99.

Mr. Morse Johnson: Record 99 as to appellant Raley, record 134 as to appellant Stern and at record 157 as to appellant Brown.

Justice William O. Douglas: Thank you.

Justice Hugo L. Black: 157?

Mr. Morse Johnson: 157, Your -- Mr. Justice.

In addition, Mr. Justice Douglas, throughout the colloquies or the questioning the -- it's implied in -- in much of the discussion between the witnesses and the Commission members that the privilege against self-incrimination was available.

For instance, questions were asked as to whether or not that did really seek incriminating information or how would it incriminate the witness.

There was no doubt and it can't be argued, as a matter of fact, the Supreme Court of Ohio in its decision in this case stated that the Chairman of the -- of the Commission had obviously in its opinion misstated the law and there is no question here, but that the facts of the case are -- are clear that these witnesses were advised clearly and unequivocally and repeatedly that they had their privileges against self-incrimination.

And it might be further notice that to each of the questions for which these witnesses were indicted and which formed the counts in their indictments, they had asserted the privilege against self-incrimination.

And in all but one instance, that privilege had been automatically accepted.

There was no countermanding order saying that the -- the Commission itself rejected the assertion of the privilege or refused to accept the assertion of the privilege ordered and answered.

In only one of the questions which formed the three indictments was there a specific and direct order by the Commission to answer the question.

The trial was held.

The jury was waived even at the -- at the early -- earliest opportunity on the motions to cross the indictments.

The constitutional issues that are now before this Court were raised by the appellants.

The trial judge found the appellants guilty on all accounts and found in -- in effect in an oral opinion that the questions that formed the counts of the indictments did not seek incriminating information and therefore, the privilege against self-incrimination was not available and therefore, they were guilty of contempt of the Ohio Commission.

The appellants then appealed to the Court of Appeals for the First District of Ohio, which Court of Appeals reaffirmed the position of the trial court in stating that the questions had not sought incriminating information and therefore, the privilege against self-incrimination was not available.

But the Court of Appeals went on to make a further point that under the law, that under which these appellants were indicted, there was a requirement that a direction or order to answer be given the witnesses before the full act of contempt under the law is -- is completed.

And the Court of Appeals for the First District in Ohio found that when -- or -- or it found that such an order had impliedly been given when the question had been asked by a member of the Commission itself as distinguished from counsel for the Commission.

And so it reversed the convictions as to all counts which involved questions asked by the counsel of the Commission and affirmed as to all questions asked by the member of the Commission.

The appeal is then taken to the Supreme Court of Ohio, which, for the first time in the proceedings, held that the Ohio immunity statute applied to these commission hearings.

The Ohio immunity statute set out, of course, in -- in the brief.

And that since the -- since these witnesses were immune from prosecution as to any matter for which they might testify before the Commission, they therefore had no privilege against self-incrimination and therefore their assertions of the privilege against self-incrimination through the questions asked them by the Commission in which formed the counts of the indictment were acts of contempt and were willful defiances and where therefore -- they were therefore guilty and so --

Justice Felix Frankfurter: May I trouble you to restate that, because of the statute -- the bearing of -- of the -- your statute of immunity to a refusal to answer.

Mr. Morse Johnson: Right, Your Honor.

Right, Mr. Justice Frankfurter.

The Supreme Court held that since the Ohio immunity statute as they found then at that -- in this decision was applicable to these proceedings before this Commission.

The witnesses having immunity, therefore, could not assert the privilege of -- their privilege against self-incrimination which is also under the -- also granted under the Ohio Constitution.

Justice Felix Frankfurter: Is your -- is your immunity statute unlike the Louisiana ones?

Mr. Morse Johnson: I'm afraid, Your Honor, I'm not familiar with the immunity statute but the --

Justice Felix Frankfurter: Your -- your immunity statute give immunity from prosecution for the subject matter being inquired --

Mr. Morse Johnson: It does, Your Honor.

Justice Felix Frankfurter: -- and not merely to deny further use of the evidence?

Mr. Morse Johnson: It does, Your Honor.

There is no attack here --

Justice Felix Frankfurter: (Voice Overlap) compensatory immunity statute.

Mr. Morse Johnson: That's correct, Your Honor.

Yes.

Justice William J. Brennan: But once you (Inaudible) the action of the Chairman misleading the witnesses into thinking that they might assert the --

Mr. Morse Johnson: He -- the -- the Supreme Court decision simply said, “Despite the fact that the Chairman of the Commission had obviously misstated the law,” and I quote directly from the opinion, “nevertheless, these witnesses did not have the privilege and therefore, their assertions of the privilege were willful defiances and contempt of the --

Justice Felix Frankfurter: May I ask some more?

If they had the privilege, I thought I understood you had provisions for immunized testimony to make it, is that right?

Mr. Morse Johnson: There is an Ohio immunity statute, if I understand --

Justice Felix Frankfurter: And it wasn't -- it wasn't -- they weren't (Inaudible) because they give you immunity.

Mr. Morse Johnson: No, no, Your Honor.

The immunity statute was never mentioned at the hearings.

The Commission assumed that the immunity statute was not applicable.

Justice William J. Brennan: Indeed that they had to answer except as the privilege against self-incrimination was available as to the particular questions (Voice Overlap) --

Mr. Morse Johnson: That's -- that's correct, Mr. Justice Brennan.

Justice Felix Frankfurter: But didn't -- doesn't -- what is your immunity statute have applied to answer they gave us they've been forced to answer?

Mr. Morse Johnson: Your Honor, the -- the problem is -- is set out really in Justice -- Judge Taft's dissent in the Ohio Supreme Court.

The theory then -- then and Judge Taft dissented from this decision on the grounds that the immunity statute only applied to committee hearings as distinguished from commission hearings, that it had to be a -- a committee of the legislature which is the word -- is the language of the Ohio immunity statute.

And Judge Taft found that the immunity statute did not apply, therefore, he dissented from this.

Justice Felix Frankfurter: It was not a -- wasn't it the legislative body?

Mr. Morse Johnson: It was a legislative commission within the -- within the -- as part of the legislature, that's correct.

Justice Felix Frankfurter: And there is difference in Ohio between a committee and a commission?

Mr. Morse Johnson: There is a long history of differences between commissions and committees as to other matters, Your Honor, too and --

Justice Felix Frankfurter: And at all events, at all events, somebody before, I take it, in Ohio elsewhere, before an immunity statute can operate somebody in authority on the State, I ask you to answer because I now offer you by law -- by force of law, you will have immunity.

That was not done in this case.

Mr. Morse Johnson: That was not done in this case.

Justice Felix Frankfurter: So that's -- so that testimony was not compelled in exchange for an immunity.

Mr. Morse Johnson: That's -- that is --

Justice Felix Frankfurter: This case comes as though there were no immunity statute in Ohio --

Mr. Morse Johnson: Well --

Justice Felix Frankfurter: -- and to this -- as to this transaction.

Mr. Morse Johnson: As to this question.

Yes, you're correct, Your Honor.

And I might just complete the round of these basic facts to state that four judges of the Supreme Court made this finding.

One, as I've pointed out, Mr. -- Judge Taft dissented on this committee commission point found that the immunity statute not being available.

The privilege was available and that evidently, he -- he concluded that the privilege could be asserted to the questions which formed the counts of the indictment and he dissented.

And a second dissent was -- was based on the applicability of the Fifth Amendment to the Constitution and that these witnesses did have, under the circumstances of this case, which I shall detail later, that privilege offered by the Fifth Amendment to the United States Constitution.

The third dissent was by Judge Stewart on the very question that we're now discussing, how could these men be in contempt when they merely accepted the admonition of the Chairman of the Commission and asserted the words of their privilege even though the privilege later was determined to be not applicable at least the body that was supposed to be held in contempt or -- or willfully defied by the -- by the witness?

This appellant had accepted it.

Justice William J. Brennan: Are you raising -- are you raising this question as an independent ground of violation of due process under the Fourteenth Amendment?

Mr. Morse Johnson: I am raising it, Your Honor, as an -- as an independent (Voice Overlap) --

Justice William J. Brennan: Ground.

Mr. Morse Johnson: -- if this -- the operation of the -- of the mandate to the Commission together with the immunity statute could entrap witnesses in these ways that they're unconstitutional at the outset or in the way that the effect (Voice Overlap) --

Justice William J. Brennan: That is violation of due process?

Mr. Morse Johnson: That's correct, Your Honor.

That's correct.

An appeal was docketed from this decision in the -- in this Court and almost simultaneously with the Sweezy and Watkins case.

The cases this Court vacated the judgments of conviction that -- that had been affirmed in the Supreme Court of Ohio and remanded the -- the case to the Supreme Court of Ohio for reconsideration in the light of the Watkins and Sweezy cases.

This reconsideration was had on oral argument in brief and resulted in a very brief per curiam opinion by the Supreme Court of Ohio which it merely stated the conclusion that it adhere to its former judgments and it found no applicability or relevance in the Sweezy and Watkins case.

Again, there were only four judges in the Ohio Supreme Court signing that opinion, Judge Taft again dissented and two judges who had sat on the case did not make their positions known.

Chief Justice Earl Warren: You mean they did not concur or dissent?

Mr. Morse Johnson: They did not concur nor dissent, Your Honor, although they sat and heard the case.

Unknown Speaker: What does it mean (Inaudible)

Mr. Morse Johnson: I don't think it means anything, Your Honor.

I don't think that it gives -- we -- we raise the point on our application for rehearing that we're entitled to have the opinions of all judges who sat on the case but we found no -- no authorities in the -- in the court of Ohio.

Justice William O. Douglas: But that's -- that's not peculiar to this case with judges of the Supreme Court of Ohio to just not vote with some cases that they hear, isn't that true?

Mr. Morse Johnson: Your Honor, I'd be afraid to answer that question not having (Voice Overlap) --

Justice William O. Douglas: I thought I'd -- I thought I'd known of other instances.

Maybe -- maybe I'm confusing it with something else.

Justice William J. Brennan: Don't you have this peculiar practice of -- of -- perhaps I shouldn't say peculiar, practice of (Inaudible) rather than opinions or something in Ohio?

Mr. Morse Johnson: Well, we had noted and -- and you get opinion.

Justice Felix Frankfurter: Syllabus (Voice Overlap) --

Justice William J. Brennan: Syllabus.

Mr. Morse Johnson: Syllabus.

It's the same system as -- as in this -- prevail on this Court.

Justice Felix Frankfurter: No.

No.

Justice William J. Brennan: No.

Mr. Morse Johnson: Oh, you mean the judges -- I don't --

Justice Felix Frankfurter: Does the syllabus determine what the Court had declared?

Mr. Morse Johnson: Oh, exactly, I -- I understand.

I'm lost, Your Honor.

Yes, the syllabus becomes the ruling, correct.

I -- I'm sorry.

Justice William J. Brennan: Well, I don't understand how -- what you mean when you said you thought you were entitled to heavy opinions.

Mr. Morse Johnson: Well, we -- we thought we're entitled to have whether or not the judges who sat on the case felt that the -- that the Sweezy and Watkins case did or did not apply to reverse the convictions of contempt which -- which were being appealed at that time.

Justice William J. Brennan: What you had was what?

Mr. Morse Johnson: Pardon me.

Justice William J. Brennan: What you had was just a short per curiam --

Mr. Morse Johnson: Per curiam signed by only four Judges.

Justice William J. Brennan: Oh.

Mr. Morse Johnson: And seven had sat and one dissented, so two did not make their opinion.

Although I'd -- I'd simply point that as Your Honor, it's really not basic to the -- to the main issues in this case.

Now, these witnesses, when they were appellants, when they were subpoenaed, had only before them the mandate to the Commission which gave the Commission the authority to make the investigation.

Certainly, if the Sweezy and Watkins mandates are indiscriminate and vague, this one is all -- this one is completely and totally indiscriminate and vague.

I simply sight one sentence and I might state at this time that none of the -- not one of these witnesses knew at the time of the hearings what part of the authority or what purpose of the -- the Commission had -- had called them before it for.

The -- the main sentence that I think shows the only inclusive sweeping authority that the Commission had which made it absolutely impossible for any witness no matter how well-advised by counsel to determine whether or not the matter was pertinent to any inquiry that the Commission might be authorized to make was.

The Commission was -- was authorized to investigate all facts concerning persons whose activities might adversely, might adversely affect the functioning of any agency of the State or Federal Government or the industrial potential of the State.

In other words, it would appear and I -- it is submitted that under that kind of authority might adversely affect all facts concerning persons whose activities might adversely affect any inquiry was -- was allowed.

Anything was pertinent and all things being pertinent, it was impossible and utterly impossible for any witness to determine whether or not the Commission had the authority or have been given the authority to ask the questions they were ultimately asked.

There was no way to judge pertinent.

The witness becomes helpless.

I might say that throughout the hearings and certainly at the opening statement of the Chairman of the Commission, there was no further delineation, no further clarification as to why these witnesses before this Commission, for the purposes of this inquiry.

The -- the Chairman of the Commission only open by showing an extreme hostility to the witnesses pointing out that they have practice fraud and deception and said that they feared exposure of un-American activities conducted in secret.

This, Your Honors, was the only delineation, if you please, made by the Commission throughout the hearings and certainly at the outset which the witnesses had to determine whether or not the Commission had the authority to subpoena them before it and whether the Commission had authority to ask the questions it ultimately asked.

I might point out that the very first witness, the appellant Raley before he'd even asserted his privilege against self-incrimination protested.

This is in the record on page 80 and 81, the pertinence or the purpose of the inquiry.

What was the purpose of this questioning?

And the answer was only this was if -- within the scope of our inquiry.

There was no further guidance given to the appellant Raley and -- and the other witnesses were present at the time when he first opened up the question of the pertinent -- of the -- of the inquiry and the pertinence of a particular question.

Since the grant of authority is so broad, it permits and encourages the kind of questioning and the kind of proceedings that the record reflects took place on October the 28th, 1952.

I think that nowhere do we find the attitudes that unfortunately begin to prevail when you allow state legislative committees or any other kind of committee's unlimited latitude to investigate into any area that they might investigate into.

When we take one of the questions that was asked of one of the appellant and that is the fourth question of the fourth count of the indictment for appellant ground, he was asked and indicted and convicted for not answering this question, “Where you active in 1947 in the election in the City of Cincinnati in supporting any candidate or any issue on the ballot in that election?”

That -- that -- the conviction for reducing to answer that question now is appealed from and is before this Court.

Justice Felix Frankfurter: I ought to know but I don't, I'm sorry.

Is your -- Raley is it?

Mr. Morse Johnson: Raley is one of the appellants.

Justice Felix Frankfurter: Yes.

These witnesses, did they stand mute from the beginning?

Mr. Morse Johnson: They, Your Honor, answered --

Justice Felix Frankfurter: (Voice Overlap) all -- all inquiry -- all questioning?

Mr. Morse Johnson: They answered a few questions of -- appellant Raley answered quite a number of questions up until the point they've got to associations and -- and who he knew and the like.

Chief Justice Earl Warren: What kind of questions --

Mr. Morse Johnson: Appellants --

Chief Justice Earl Warren: -- did he answer?

What kind of question did he answer?

Mr. Morse Johnson: Where he'd worked, what he had done, what he'd done in the war, what union -- what union he belong to.

The basic background sort of personal questions up until the point that they involved activities, associations, protest, speeches, passing of leaflets, who he knew and who is associated with.

Justice Felix Frankfurter: He did not challenge the structure and authority of the Commission is -- is entitled, did he, to begin with?

Mr. Morse Johnson: He wanted to make an opening statement, Your Honor --

Justice Felix Frankfurter: Did he make?

Mr. Morse Johnson: -- which -- which he was allowed to make after the hearings were through in which he challenged the whole authority of the Commission to --

Justice Felix Frankfurter: There was -- but before he got to that, there was a question for which the Chief Justice, before the bench (Inaudible) inquire what you answered, he did answer some question.

Mr. Morse Johnson: He did answer some question, sir.

Justice Felix Frankfurter: And what about the other --

Mr. Morse Johnson: Now, appellant Stern, Your Honor, the second question, he refused to answer and it was -- and -- one of the questions in the indictment, I want to get it exactly, “Where do you reside, Mr. Stern, previously?”

And then he answered some more questions, a considerable history as to where he worked in Phoenix, Arizona and so forth and so on.

Then he began to stop at the same point where appellant Raley stop -- start.

I should point out that appellant Stern, we make quite an issue of this in front of both the trial court and the Court of Appeals because at that time, the question was whether or not the question had been incriminating.

And later on in the hearings, appellant Stern has asked the question, “Did Frank Hashmall come and reside with you?”

Now, Frank Hashmall was the best known communist, if Your Honor please, the self-identified member of the Communist Party in the southern part of Ohio and we urged at that time that the reason -- because of the length in the chain theory of -- of the privilege against self-incrimination that he refused to answer.

But he answered many other basic questions along --

Justice Felix Frankfurter: Did Brown find him?

Mr. Morse Johnson: Brown answered up until a point, Your Honor.

Justice Felix Frankfurter: So that as to these -- as to these petitioners, it is not true that they, at the very threshold, shut off all inquiry.

It is not --

Mr. Morse Johnson: It is not true that they --

Justice Felix Frankfurter: All right.

Mr. Morse Johnson: -- shut off all inquiry.

That -- that is correct, Your Honor.

The -- the -- one of the questions asked in the indictment was the question of whether Mr. Stern, appellants Stern, and to what extent he had worked in the progressive party.

And he now stands indicted and convicted for contempt for refusing to answer that question.

Justice William J. Brennan: Incidentally, has any of the questions to which they were indicted, if he will answer was to indict the record, did they (Inaudible) privilege against self-incrimination?

Mr. Morse Johnson: To each of the questions that they were indicted to.

Each of them, there is not one that they did not assert that --

Justice William J. Brennan: Were they all present when the Chairman told them that they were free to assert privilege?

Mr. Morse Johnson: The record does not show that, Your Honor, but each appellant during his inquiry was assured by the Chairman that he had the privilege against self-incrimination.

I've cited that for the record, Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Morse Johnson: Well, Your Honor, he made -- I would suppose 20 to 30 statements in the record in -- in connection with the privilege.

He may at on time have said that.

He -- he -- at other time said, “We will not press for answers if they're incriminating.”

He -- he had at other time said that he is -- he -- he agreed that this question would be incriminating and therefore no answer would be necessary, the question whether another kind of question would be.

There are number of statements which not only directly assert that the witnesses were granted the privilege but also imply it by the -- by the very discussion, the colloquy that it did went on between the witnesses and -- and the Chairman.

Justice William J. Brennan: Well, is this a fair sample that appears in the Supreme Court's opinion at page 548, the Chairman, “Mrs. Morgan, I should like to advise you, under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you.”

Mrs. Morgan, “Yes.”

The Chairman, “But you are not committed to refuse to answer questions simply for your own convenience.

Counsel may proceed.”

Mr. Morse Johnson: I would say that that was a fair statement, Your Honor.

I don't know that -- exactly that explicitly it was made in each of these instances but the Supreme Court of Ohio found and it's -- it's a part of this case that the Chairman of the Commission had obviously misstated the law and had granted these witnesses the privilege.

Justice William J. Brennan: Well, that's just what the Supreme Court is on the sale or the Chairman obviously misstated the law.

Mr. Morse Johnson: That's correct, Your Honor.

Correct.

In addition a --

Justice Charles E. Whittaker: (Inaudible) I'm not quite sure what was (Inaudible)

Mr. Morse Johnson: In only one instance in the question that formed a count from the -- from the counsel indictment.

There were many questions asked.

There's never been any understanding as to why some of the questions didn't form parts of the counts of the indictment.

There were only two in Stern, four in Brown and, I think, 16 or 18 in -- in Raley.

But in none of the questions which -- which became -- not one of the questions which became a count in the indictment.

Was there a clear and certain direction to answer after the privilege have been inserted except for one, excuse me for saying it that way, Your Honor, the very first question to appellant Stern, “Where do you reside, Mr. Stern?”

The only time the Commission ever engaged in what we're now talking about in turn and -- and directly that ordered the -- the witness stands to the question was for that question.

All the rest of the -- all the rest of the questions, the answers, their assertions of the privilege were accepted by the -- by the Commission.

I think that this question of -- of offering the privilege and not asserting -- not -- not insisting on an answer becomes even more relevant than we recognized that the witnesses or the appellants in this case were indicted under what is known as the judicial contempt's statute of the -- of the Ohio Code.

Unlike the appellant in the companion case here who was incited under the legislative contempt's Section, these witnesses were indicted under the judicial contempt section.

That judicial contempt section had been interpreted and held by the courts of Ohio and been -- been commented upon and I have so stated in my reply brief as to require a direction to answer in order for the -- for the contempt to be complete.

So, we have witnesses before us -- we have witnesses before the Commission who were assured and admonished that they could have their privilege against self-incrimination, use the word asserting the privilege against self-incrimination were not countermanded, were not directed to -- to order an answer and under no circumstances could any lawyer have advised a witness at that time.

Under the laws of Ohio -- well, certainly under the contempt law, judicial contempt section, and certainly under any interpretation of what is fair in -- in legislative procedures as far as offering a man the privilege and then having it later rejected by the Supreme Court.

No lawyer could have advised and no witness could have concluded that by asserting, as these witnesses did, their privileges to these questions that they were then to be held in contempt of the -- of the Commission and -- and convicted for the same and sentenced to fines and imprisonment.

I think that I should point out further that the whole nature of these hearings which becomes extremely important not only to these witnesses and why they stand convicted but to the due process demands of the Fourteenth Amendment.

Over 90% of the questions asked to these witnesses were of the “is it not a fact?”

“Is it not a fact that you committed a crime or were arrested in Des Moines, Iowa?

Is it not a fact that you were -- you were again arrested in Des Moines, Iowa?

Is it not a fact that you falsely and fraudulently signed this affidavit?

Is it not a fact that you did this or did that?”

There is no question but that a substantial majority will, over 90% of the questions, sought information which the Commission already assumed it had.

This is most particularly noted and I think the hearings are characterized by this question.

And I think this is what goes to the vice of allowing commissions to have unlimited authority to ask questions in any area of inquiry that they might want to ask questions in.

Appellant Brown, one of the witnesses, was asked the question about his attendant at a meeting and he answered in some way.

I don't know whether he asserted the privilege against self-incrimination but he then stated, “Do you know I was at that meeting?

Have you proved that I was at that meeting?”

The answer of the Commission Chairman was, “The proof will be forthcoming the moment you deny it under oath.”

Now, these --

Justice Hugo L. Black: What page -- what page is that?

Mr. Morse Johnson: Your Honor, that's on page --

Justice Hugo L. Black: (Voice Overlap) --

Mr. Morse Johnson: -- record page 155 towards the bottom.

These, it is submitted, Your Honors, show that the type of investigation that was being conducted here was not an investigation, that it was an inquisition.

It was an attempt to entrap witnesses towards whom some of the members or all the members of the Commission felt a certain hostility and a certain adversity.

It was -- it was an attempt to expose to hostile light witnesses before the Commission.

I see, Your Honor, that I have expended as much time as I would like to at this point and I would like to reserve any further time I might have until after the State concludes.

Chief Justice Earl Warren: You may.

Mr. Morse Johnson: I hate to do it to the State at this time but --

Chief Justice Earl Warren: That's all right.

That's all right.

Justice William J. Brennan: What was the question at 155 you referred us to?

Mr. Morse Johnson: Record 155.

Justice William J. Brennan: What's the question?

Mr. Morse Johnson: Down towards the bottom --

Justice William J. Brennan: The proof will be forthcoming?

Mr. Morse Johnson: Yes.

Do you have proof?

Justice William J. Brennan: (Voice Overlap) --

Mr. Morse Johnson: The proof will be forthcoming from the moment you deny under oath.

Justice William J. Brennan: Yes, I know.

Mr. Morse Johnson: Thank you.

Chief Justice Earl Warren: Very well.

Mr. Hover.

Argument of C. Watson Hover

Mr. C. Watson Hover: Mr. Chief Justice, Members of the Court.

I would like, if I may, to direct my remarks to certain portions of the case for the State reserving for discussion by my associate Mr. Rubin, questions relating to the relationship of these cases to Watkins and Sweezy and also questions relating to the Ohio immunity statute.

Why --

Justice William J. Brennan: Are you going to deal with the Chairman's instructions or will your --

Mr. C. Watson Hover: I would like to deal with that, Mr. --

Justice William J. Brennan: Yes.

Mr. C. Watson Hover: -- Justice (Inaudible) if I may.

I am reading from the record where the -- the trial record this is where the Chairman of the Commission is being crossed-examined by defense counsel.

Chief Justice Earl Warren: What page, Mr. --

Mr. C. Watson Hover: I am reading from pages 39 and 40 of the transcript of the record before this Court.

Defense counsel to the Chairman of the Commission, “You recognized, do you not, the defendants have the right to assert the privilege of the Fifth Amendment in connection with questions which might tend to incriminate them? Do you call -- recall that?”

Answer, “It was the policy of the Commission not to press questions which we felt would be of an incriminating nature.

For instance, whenever a witness was asked a question,” I believe every witness before the Commission was asked the question, “Are you or are you not a member of the Communist Party?

And so forth.

And if the witness refused to answer the question, we did not press it.”

Frequently, I made statements which indicated the policy of the Commission whether it was to ask the witnesses or not, I do not know, possibly less than that.

The statement was, “We will not require you to answer questions which may incriminate yourself but we want it clearly understood that you may not refuse to answer questions on the ground that it would incriminate someone else.”

Justice Hugo L. Black: What page is that?

Mr. C. Watson Hover: I'm reading from page 39 to 40 of --

Justice William J. Brennan: Well, now, this, of course, is not part --

Mr. C. Watson Hover: -- this record.

Justice William J. Brennan: -- of the -- this is not part hearing record.

This is part of the trial record discloses.

Mr. C. Watson Hover: This is the trial -- yes.

Justice William J. Brennan: And this is his recollection of what he did, isn't it?

Mr. C. Watson Hover: That is correct.

I find no other --

Justice William J. Brennan: Which may or -- I haven't examined the actual hearing record but does what he said here as to the question or the answer he gave the witness, is that born out as to -- in the actual hearing record?

Mr. C. Watson Hover: There is no reference to it in the hearing record of which I am immediately aware both from this and from the past proceeding.

There are several references not in relationship to the specific counts for which these defendants were indicted but in the general testimony of those same defendants wherein the Commission very obviously did not press for a reply of questions which, for lack of any other indication, I must assume the Commission felt might conceivably be incriminating by a --a view of the circumstances surrounding the witness, the known circumstances and a view of the possible directness of the question itself.

However, that does not apply to any of the questions which were made counts in these three indictments.

There, there was a number of the counts, 16 in all to begin with, against Mr. Raley which were determined and were reversed by the Court of Appeals on a complete appellate review of the trial proceedings and all that had gone before it where the Court of Appeals dismissed the charges as to those counts in which there had not been an express or an obvious intent on the part of the Committee Chairman or a member of the Committee to receive an answer to the question asked.

Now, several places in the record, that situation develops in this fashion, the witnesses asked the question, he claims the Fifth Amendment and says that he wants to have something to say about it.

The Chairman then says, “Well, how would that tend to -- will you explain how that might tend to incriminate you?”

“I claim the Fifth Amendment.”

“Is there anything in that question which might tend to incriminate you?”

“I claim the Fifth Amendment.”

That is one process.

Another process that is repeated in regard to some of these counts is this.

Chief Justice Earl Warren: But was he then directed to answer that question?

Mr. C. Watson Hover: Well, I -- I would agree with Mr. Johnson and possibly very closely to that.

I say there are two instances in which there is obviously a direction to answer.

Now, again, that direction to answer does not take the -- the formal regular law or routine that this Court has observed is -- is not necessary on the part of the witness claiming.

We suggest the same ritual is not necessary on the part of a chairman or a judicial or legislative officer ordering.

Chief Justice Earl Warren: Where will we find that --

Mr. C. Watson Hover: At several places you will find the --

Chief Justice Earl Warren: -- where will we find that in the order?

Mr. C. Watson Hover: The reference repeated three different times, “Will you answer the question?”

The -- the Chairman.

Now, at -- at no time will this Chairman --

Chief Justice Earl Warren: Yes.

(Voice Overlap) --

Mr. C. Watson Hover: -- in this record say “I order you to answer that question.”

We -- we do not have such a thing.

Justice John M. Harlan: Could you --

Mr. C. Watson Hover: But --

Justice John M. Harlan: -- point up an example of --

Mr. C. Watson Hover: Yes.

Justice John M. Harlan: -- what you are talking?

Mr. C. Watson Hover: In the -- we cite several places of that major in the appellee's brief.

I am reading on page 14 of the appellant's brief which in turn quotes page -- quotes page 144 of the transcript of the record.

Chief Justice Earl Warren: 144.

Mr. C. Watson Hover: “The Chair request that you answer the questions put by counsel.”

The witness, “I will answer your question.

I might add that,” so and so and so.

The Chairman, “Before adding anything will you answer the question?”

The witness, “I will answer the question.”

The Chairman, “After you answer the question you may add anything you wish.”

The witness, “I decline to answer under the Fifth Amendment, I might add.”

Chairman, “You have not answered the question so we will not permit you to answer -- to add anything.

Counsel, will you ask the next question?”

Another example of it --

Chief Justice Earl Warren: That's when you rely on as a direction?

Mr. C. Watson Hover: Well, that is one where we feel there is a -- a very definite intention expressed on the part of the Chairman speaking for the Commission.

Chief Justice Earl Warren: Yes.

Mr. C. Watson Hover: But the Commission does expect an answer and that the witness is possibly expecting to answer until he is pressed three times, “Will you answer the question?”

Then I take the Fifth Amendment.

Now, the Chairman, at another point, I am reading now from the transcript of the record itself, which is before the Court, page 99.

Chairman Renner, “Mr. Raley, the Commission would like to have you give an answer to that question.

I will ask the question be repeated.

Let the stenotypist repeat the question.”

The question then is repeated.

The Chairman adds to it, “We would like you to -- to know whether or not you recall the interview.

You may say yes or no.

Do you recall the interview or don't you recall it?

If you recall it and we ask you about your recollection, you may claim your -- your privilege to claim your rights under the Constitution, but it is our opinion, it is my opinion that you have no constitutional right to refuse to answer the question whether or not you recall an interview”.

Then the witnesses' own counsel, who was at his side, intervenes.

The witness, “Mr. Chairman, if you will forgive the witness for taking his legal advice from me rather than from the Committee.”

Chairman, “You may advise your witness what is right, sir.”

Attorney, “I certainly will.”

Chairman, “I am not aware that you advised him not to give an answer.”

Attorney, “I had not.

I didn't advise him to give any answer.

I pointed out that you were telling him what the law is and with all due respect that is my function.”

The -- they say it is never -- the -- the ritual never in this record with this Chairman and these witnesses.

And I -- I'm speaking of Raley, Stern and Brown only because those are the ones which I have direct and personal familiarity.

I have for seven years.

There is never a direct ritual on the part of the Chairman to these witnesses to answer questions except the -- the one which I specifically read.

Mr. Rubin points out that there is another one which I -- page 132 of the record.

Chairman Renner, “The witness will -- the Chair will request that the witness answer the question.”

The witness, “I have answered the question.”

This is in regard to Mr. Stern again.

Counsel for the Commission, “Mr. Chairman, I ask the witness be ordered and directed to answer the question.”

Chairman, “The witness -- the Chairman directs the witness to answer the question relating to his address,” which incidentally is one of the specific subjects of an indictment count here, “the address of his residence in Cincinnati.”

The witness, “The same answer.”

That -- that --

Justice Hugo L. Black: May I ask you -- may I ask you about the first question that you say he still didn't answer? (Voice Overlap) --

Mr. C. Watson Hover: That's the question that is --

Justice Hugo L. Black: Did that --

Mr. C. Watson Hover: -- on the indictment.

Justice Hugo L. Black: Did that question --

Mr. C. Watson Hover: “Mr. Stern, where do you reside?”

Justice Hugo L. Black: Page 143 and 144, that -- that was the first in which you referred, wasn't it?

What was that -- that --

Mr. C. Watson Hover: No, no, we're -- we're not at the same place, sir, Mr. Justice Black.

Justice Hugo L. Black: No you -- that was the first one I might get as you said it.

Mr. C. Watson Hover: That is --

Justice Hugo L. Black: (Voice Overlap) question I might add and (Inaudible) Committee or acting program.

Will you answer the question?

So in page 44.

What was that question?

Mr. C. Watson Hover: No, I am reading in the record from -- from page 132.

Justice Hugo L. Black: No, I was talking about your -- the first part of the record you read.

Mr. C. Watson Hover: Oh, oh.

Justice Hugo L. Black: Where you gave it is the illustration of this one as I understood, why he told him to answer the question.

I just don't know what question.

The best I could make out he's asking to confess he committed perjury.

Mr. C. Watson Hover: The witness -- the portion I questioned -- I -- I quoted in the appellant's -- appellee's brief from page 144 of the record is half way down.

“The Chair requests that you answer the question put by counsel.”

Justice Hugo L. Black: Before that.

What -- what was the question?

Mr. C. Watson Hover: “Mr. Stern, at the present time, you are required to tell the truth under the penalty of charges of perjury.”

Justice Hugo L. Black: But what was the question that they were insisting to be answered?

Back on page 143 or not?

“I asked you, as a matter of fact, that on May 28th, when you falsely enforced him to sign that affidavit before (Inaudible) you are in fact the member of the Communist Party.”

Is that the question?

Mr. C. Watson Hover: Well, the -- the next question, "Will you deny here and now?”

Justice Hugo L. Black: What?

Deny what?

Mr. C. Watson Hover: That you are a member of the Communist, that you signed a non-communist affidavit at a time you were active in the Communist Party.

Justice Hugo L. Black: Was there anything at all in connection with what he said on 144 that -- Will you answer the question?

Was there anything to any part of the question been referred to trying to get him to say that he had committed perjury?

Mr. C. Watson Hover: The basic question is whether or not he signed a non-communist affidavit at the time he was an active member of the Communist Party.

Justice Hugo L. Black: Is that perjury?

Would that be perjury under the laws of Ohio?

Mr. C. Watson Hover: We have a perjury statute in Ohio.

Justice Hugo L. Black: Would that come under it?

Mr. C. Watson Hover: Grossly provided other elements were present such as what happened to be the truth of two possibly contradictory --

Justice Hugo L. Black: Well --

Mr. C. Watson Hover: -- statements under oath.

It -- it would conceivably be perjury.

I -- I --

Justice Hugo L. Black: But could it -- could it conceivably not be perjury?

Mr. C. Watson Hover: Oh, yes, it could conceivably not be perjury for a hundred reasons.

The oath might have been administered by an officer not having authority to administer oath.

There might be a dozen technical --

Justice Hugo L. Black: Did you ask him --

Mr. C. Watson Hover: -- objections to it.

Justice Hugo L. Black: -- did he ask him anything about such exception?

Mr. C. Watson Hover: Sir?

Justice Hugo L. Black: Did the Committee Chairman ask permission, Chairman asked him of anything about those possible --

Mr. C. Watson Hover: I doubt --

Justice Hugo L. Black: -- hundred exceptions?

Mr. C. Watson Hover: I doubt if the witness Stern would know about those possible hundred exceptions.

Justice Hugo L. Black: Would the Chairman of the Commission?

Mr. C. Watson Hover: A prosecuting attorney would know about the possibility.

Chief Justice Earl Warren: Well, could -- assuming that the Chairman was correct in his facts that this man falsely signed a non-communist affidavit and at the time was an active member of the Communist Party, can you conceive of that not being incriminating if he -- if he answered yes?

Mr. C. Watson Hover: I can see where he would run a risk of incriminating himself definitely.

He was not, however, indicted for that purpose.

He was not indicted for that answer or for that refusal.

He was indicted for a refusal which it has been the view of the State.

He was not justified in refusing on the ground of self-incrimination because there's nothing at that point or about the question (Voice Overlap) --

Justice William J. Brennan: Although the Chairman told him that he was.

Chairman told him that he was and the --

Mr. C. Watson Hover: The -- the --

Justice William J. Brennan: -- Supreme Court finally says, as I read the Supreme Court's opinion, that no, that's not the law and the Chairman was wrong in anyway.

This fellow knew that the Chairman was wrong.

That's the effect what you spoke of (Voice Overlap) --

Mr. C. Watson Hover: I -- I don't so understand it, Mr. Justice Brennan.

I -- the -- the Chairman makes the point that we will not require you to answer questions which it seems may incriminate you.

Chief Justice Earl Warren: And that -- yet this is one question that you say he directed him to sign.

Mr. C. Watson Hover: And for which he was not --

Chief Justice Earl Warren: Put to answer.

Mr. C. Watson Hover: -- indicted, if your -- if you please, Mr. Chief Justice.

Chief Justice Earl Warren: I beg you pardon?

Mr. C. Watson Hover: And for which he was not indicted and does not stand here accused.

Justice Hugo L. Black: That is not relevant.

Chief Justice Earl Warren: Oh, I thought you were telling us of instances where he was indicted and where he have been directed by the Chairman to (Voice Overlap) --

Mr. C. Watson Hover: Oh, I -- I'm telling -- I'm telling of instances in which the Chair did, from time to time, direct answers.

Chief Justice Earl Warren: Yes, and you say that those were thrown out by the Court.

They --

Mr. C. Watson Hover: No, they -- no, just the opposite.

The ones that were thrown out were those in which he -- the witnesses refused to answer questions which were put to him only by Committee's counsel.

Those were the -- those were the counts which were thrown out in the Court of Appeals.

Chief Justice Earl Warren: I see.

Mr. C. Watson Hover: (Inaudible) distinction between Chairman question and lawyer question.

Chief Justice Earl Warren: Oh, yes, all right.

We'll adjourn now.

Print this transcript Transcript: 

Argument of C. Watson Hover

Chief Justice Earl Warren: Number 175, Talmadge Raley, Joseph Stern, Emmett Calvin Brown versus State of Ohio.

Mr. Hover, you may proceed with your argument.

Mr. C. Watson Hover: Mr. Chief Justice, and the Court.

At adjournment yesterday, there was some definite uncertainty and possibly even some confusion even if that were confined solely to counsel, on the suggestion that the witnesses, the defendants in this case, the Talmadge Raley and Brown case.

At some however, other been deceived or entrapped into committing the offenses with which they were subsequently indicted.

That, the -- the basis for that suggestion is in the dissenting opinion of one of the judges of the original consideration of the case in the Ohio Supreme Court.

In that judge's own words, the suggestion, or the basis from which this suggestion is made is as follows.

Justice John M. Harlan: What page?

Mr. C. Watson Hover: I'm reading from page 236 of the record, Mr. Justice Harlan, towards the bottom of the page, the second last paragraph.

“Commission was composed in part of able and experienced lawyers and the hired special counsel and yet, the defendants were informed by the Chairman of the Commission that they had a right to rely on the constitutional privilege against self-incrimination.”

And then skipping over to the very last sentence of the same dissenting opinion.

“Under the situation in the present cases, it seems clear to me that the defendants after being apprised by the Commission that they had a right to rely upon the protection against self-incrimination could not be in contempt with the Commission except as to the few questions which two of them were directed to answer.

I want to make this point, nowhere in this record of the Talmadge-Brown or Stern hearings is there any statement from the chairman of this Commission or from any member of it along the lines stated here as the fact backing that portion of this dissenting opinion.

You will recall that this Court, the Supreme Court of Ohio, when it's hearing this matter, is hearing two cases involving four defendants.

What maybe the record of the hearing of the other defendant not here involved in this proceeding.

That the hearing that took place in regard to another person, another time, another city, another set of circumstances.

The -- the record in this case does not show and I say frankly, I do not know that record.

I do say beyond any doubt and beyond any possibility of being doubted, there is nothing in the record of this case.

Justice John M. Harlan: In which case?

Mr. C. Watson Hover: The Raley, Stern and Brown cases, number 175 on -- on this docket.

To give any strength or effect whatsoever to that suggestion of the dissenting judge in the Ohio Supreme Court.

The only other portion of that opinion, I want to refer to and I am not adopting it as the State's position here, is to point out that even that judge in his dissent, reserves for his own consideration without deciding the possibility that two of the three defendants, Raley, Brown or Stern may in his own language be in contempt except as to the few questions which two of them were directed to answer.

And the record there is clear in regard to these three defendants in case number 175.

Justice John M. Harlan: That story as I understand it, purported to reverse in as the two as to whom he (Inaudible)

Mr. C. Watson Hover: He -- he did not join in the Court's opinion.

He does -- he makes no expression as to whether he would reverse or what he would do with it.

Justice John M. Harlan: Well, although eventually, he dissented across the board, did he not?

Mr. C. Watson Hover: Except in his own words as to possibly questions which two of the defendants were directed to answer.

Now, those -- and I say the -- the majority in the Supreme Court did not rest its opinion on that basis.

The Court of Appeals, hearing this case on appeal at the state level did go thoroughly into each and every circumstance behind each and every count in again the three cases, Raley, Stern and Brown.

Beginning on page 184 of the record, Judge Mathews of that -- that is a tried -- member -- three-member court on a district level.

Judge Mathews wrote a lengthy and I -- I suggest earnestly to this Court and exceedingly well-reasoned and complete opinion covering all phases of this subject.

He picks up these indictment counts one by one.

And he reads out as he proper -- as -- as probably is correct.

He weeded out all of those counts in which there had been an indictment for the refusal to answer a question of the Commissions' counsel.

And in doing so, it was a rather extensive weeding job.

The conviction of Raley was affirmed on seven of 16 counts and reversed on all other accounts.

The conviction of Stern was affirmed as to a first count and reversed as to others.

The conviction of Brown was affirmed as to all four counts for which he had been indicted.

The reasoning of Judge Mathews in the Court of Appeals in affirming those counts which were affirmed by his court, does not go to the extent of ruling that there was a specific positive requirement that the witness received a direct order to answer a question in order to be in contempt.

The Court of Appeals opinion was to the effect that the witness under the circumstances where the Committee Chairman or a member of the Committee is asking the questions that there is a -- an order, an implied order to answer.

Or there is an expectation of receiving an answer inspite of the fact that the refusal in all but three of these various counts.

The -- the refusal to answer was not followed by a specific and direct order of either the Chairman or a committee member to the witness that we expect an answer.

Justice Felix Frankfurter: But it was a ground for the refusal statement.

Mr. C. Watson Hover: The grounds for the refusal were almost without exception to the Fifth Amendment.

Justice Felix Frankfurter: Do you say your --

Mr. C. Watson Hover: At one -- there's one point of refusal in one indictment were the witness merely says, “I don't think its any of your business.”

Justice Felix Frankfurter: And your -- your contention is that where a question is put to witness, and the witness enforced his privilege against self-incrimination which is also -- which is given to him by Ohio law, is it not?

Mr. C. Watson Hover: Well, yes, sir.

Justice Felix Frankfurter: And invokes that privilege and no further direction is given, either by the Chairman or a member of the committee -- the implied request for an answer, carries through a reasonably stated or at least not fully stated ground of objection to the answer, is that right?

Mr. C. Watson Hover: Yes, that -- that is the -- that is the position which was -- which was taken in the opinion of the --

Justice Felix Frankfurter: Is that your position?

Mr. C. Watson Hover: -- Court of Appeals.

Yes.

That the asking of a question --

Justice Felix Frankfurter: Implies that you want an answer.

Mr. C. Watson Hover: Yes, that -- that --

Justice Felix Frankfurter: It also implies that an objection on the legal grounds which is valid save you from answering, is overruled and repetition is made of the implied direction to the answer to the original question.

Mr. C. Watson Hover: That was not --

Justice Felix Frankfurter: That's your position.

Mr. C. Watson Hover: -- that was not done, as a matter of fact, in any of these questions.

Justice Felix Frankfurter: No, but that's your position.

Mr. C. Watson Hover: Yes.

Now, that is further added too by three specific counts in the indictments where there was a -- what certainly must be deemed a direction to answer.

Justice Felix Frankfurter: Before you may go to that, Mr. Hover, may I ask --

Mr. C. Watson Hover: There was never any over ruling of an objection.

I -- I don't want to --

Justice Felix Frankfurter: May I ask of what refusal are to remain under -- what refusals on the basis of which the sentence for contempt a interest remain in case your position -- as to be implied request for an answer, made after a legal objection is taken.

Mr. C. Watson Hover: Yes.

Justice Felix Frankfurter: What remains after that?

Mr. C. Watson Hover: Two counts in the Raley indictment.

I again furnish the numbers here in a -- in a moment if I may.

Justice John M. Harlan: Three and Nine?

Mr. C. Watson Hover: Three and nine is correct as to Raley and one as to Stern, the only count remaining as to Stern.

Justice Felix Frankfurter: And Brown is not --

Mr. C. Watson Hover: Brown at no time, was given a specific and direct order to answer.

That is correct.

Justice Felix Frankfurter: So that none remains?

Mr. C. Watson Hover: If -- if the rule of --

Justice Felix Frankfurter: Tell me.

Assuming your -- your position --

Mr. C. Watson Hover: Assuming my position --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. C. Watson Hover: -- of an implied --

Justice Felix Frankfurter: Yes.

Command.

Mr. C. Watson Hover: -- request is not correct, then none would remain of Brown.

That is the state of this (Voice Overlap) record.

Justice Felix Frankfurter: Mr. Raley is three and nine and Stern one.

It's the only (Voice Overlap).

Mr. C. Watson Hover: Correct.

Justice John M. Harlan: I'd like to ask you a question as for, taking count number three of -- that brings -- or count number one of Brown, page 150 -- (Inaudible).

Mr. C. Watson Hover: Count number one of Brown is what has been your educational background?

Justice John M. Harlan: And he refuses to answer it?

Mr. C. Watson Hover: On the basis that he does not feel it's any of the Court's -- the Commission's business.

Justice John M. Harlan: And you construe to be adhered to or the (Inaudible)

Mr. C. Watson Hover: He did -- he did not mention or even attempt to invoke the Fifth Amendment in regard that specific question.

And that too is pointed out in the opinion of the first reviewing court.

The ground for the refusal was, “I just don't think it is your business.”

It's told by the Chairman of the Commission, would -- would decide the question, and then proceeded to ask, “Do I understand for the record, you are refusing to answer the question because you feel it is not our business?”

To which the defendant responded, “The answer is the same.”

Justice Hugo L. Black: What page is that?

Mr. C. Watson Hover: On -- I -- I'm reading from 193 of the opinion, that will be on 150 of the record, page 150 of the record of the Cincinnati hearings.

Chief Justice Earl Warren: I got --

Mr. C. Watson Hover: That's at the bottom of page 150 in the actual hearing record.

Chief Justice Earl Warren: Well, in this record, Raley, Stern, and Brown versus Ohio?

Mr. C. Watson Hover: Yes.

Chief Justice Earl Warren: 150?

Mr. C. Watson Hover: At the bottom of page 150.

Chief Justice Earl Warren: Oh -- oh, I see.

Well, he did invoke his rights on privileges is under Fifth Amendment, didn't he?

Mr. C. Watson Hover: Well, that then he comes in the next answer and says, “No, I just don't think it is your business.”

“Is there anything about that?

The answer to that question may tend to incriminate you.”

“No, I just don't think it is your business.”

Chief Justice Earl Warren: Well, but he'd already invoked the Fifth Amendment, hadn't he?

Mr. C. Watson Hover: Well, he -- he --

Chief Justice Earl Warren: Did he abandon that?

Mr. C. Watson Hover: He invokes it and then denies that he invoked it apparently.

And still of course rests on a reason sufficient or probably unto himself for refusing to answer.

Justice Hugo L. Black: Your argument is that where a man feigns the benefit of the seven against self-incrimination, feigns it specifically and pointedly.

And the Committee ask -- well, the question -- have continued to ask him questions about it as though he had not raised it.

And if he doesn't repeal unequivocally each time, he'd waive it.

Mr. C. Watson Hover: Not at all.

No, no, Justice Black.

We -- we do not claim that.

Justice Hugo L. Black: But here, he has unequivocally declined to answer about educational background on the grounds which tend to incriminate him.

And then he starts the cross examine him no why he won't (Inaudible)

Mr. C. Watson Hover: Well, one, one question later.

He says, “No, I just don't think it's any -- it is your business.”

That -- that's one question later.

Justice Hugo L. Black: Well, do you think that waived his objection he'd had before?

Mr. C. Watson Hover: Well, I -- I think he is saying there that I don't think there is -- if may paraphrase the question and answer.

It seems to me he has saying, “No I don't think there is anything about some Communist Party school or a particular illegal institution I may have attended that would make me hesitate to reveal where I have been educated.

No, I am not saying that.

I am saying it is none of your business.”

Now, that is the way I at least read that question and answer.

Chief Justice Earl Warren: Well, where do you get the words that say that.

This seems to me to be so clear.

“And what has been your educational background?”

Answer, “I refuse to answer that question, I invoke my rights and privileges under the Fifth Amendment.”

Question, ”Is there some particular illegal situation which you attended or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?”

And he said, “No, I just don't think that's your business,” having claimed the Fifth Amendment.

Mr. C. Watson Hover: Well, I -- I think that still the reason he is not answering that as he said himself is “I don't think it's any of your business.”

Justice Hugo L. Black: Well maybe he was saying that that's a man claimed the privilege, of as a genuine, bonafide claim.

Mr. C. Watson Hover: Yes.

Justice Hugo L. Black: The practice of continuing the cross examine as to why he claims the privilege.

There's not any of that in this.

And that -- what do say about that?

Mr. C. Watson Hover: He asked them additional question.

Justice Hugo L. Black: Well, suppose -- suppose a man does claim the privilege genuinely and honestly and it's it s a good claim.

Do you think it is any of the question as in this to continue to cross examine him?

He tried to make him tell, at least infer that he is guilty of something?

Mr. C. Watson Hover: It -- it --

Justice Hugo L. Black: -- because he claims his constitutional privilege?

Mr. C. Watson Hover: Not at all.

It would seem to me that the examiner has a right and apparently, does some thinking at least, possibly the duty to inquire into the -- the possible reason for invoking the -- the Fifth Amendment privilege with a view to determining whether or not there is some conceivable justification on the part of the witness for invoking.

The -- the chair is asking him, “What's your educational background, is there something about it that would make you hesitate to revealed it?”

He says no, I -- I -- first when the plaintiff regard to question, “I invoke the Fifth Amendment.”

“Then is there something about it that would make you hesitate to reveal it?”

“No, I just don't think it's any of your business.”

Now, that -- that's the -- and there was.

And in fact, the original plaintiff --

Justice Hugo L. Black: Then somewhat on their approach, doesn't it?

Mr. C. Watson Hover: Well, I -- I don't think this --

Justice Hugo L. Black: To the seriousness of the claim.

Mr. C. Watson Hover: Well, I -- I don't think these questions were planed by this -- by the Chairman of this Commission.

The -- the hearing developed and it proceeded from question to question.

I -- I -- at least in -- I don't -- I was not present myself at these hearings.

But in reading this record a number of occasions with in the past seven years, I -- I can't see any fixed pattern of the -- of the questioning.

I can see a fixed intention to get information if possible in various fields but the -- there doesn't seem to be any fixed pattern in the questioning as developed.

Justice Charles E. Whittaker: Whether the -- in what you have been reading about for the last seven years, ensure pattern one way or the other after a man claims his constitutional privilege, to continue to cross examine him as to why he claimed it?

Mr. C. Watson Hover: That is done on occasion in some of these counts, yes.

Where the claim of the privilege has not been accepted by the Chairman or the Commission to the extent of saying, “You -- you claim the privilege?”

We realize the door is completely positively and irrevocably barred against us.

That -- that pattern does not appear, it does not on a -- on a number of this questions whether they form the subject matter of these indictments or not.

The -- the Commission has proceeded for an additional two or three questions.

It never reaches the point and possibly, we don't use cross examination in the same -- in the same frame work, but it -- that to me, this -- this record never reaches the point where I at least would consider it cross examination.

Now, a few more questions, two, three, four, at the most, to elicit why, If there'll be a reason why.

Yes, that -- that exist.

The -- the Commission did not just bluntly stop and say, “Well, you -- you say Fifth Amendment.

That it the magic word, it bars us.”

We could not --

Chief Justice Earl Warren: Well, what could be more cross examining than this.

The question is, “And what has been your educational background?”

Answer, “I refuse to answer that question.

I invoke my rights and privileges under the Fifth Amendment.”

Question, “Is there some particular illegal institution which you attended?

Or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?”

Now, if that isn't cross examination, what would you call it?

Mr. C. Watson Hover: I -- I call it an additional question to -- in an attempt to elicit additional information then.

I -- I can imagine a dozen directions, but -- but the cross examination at least in a rather technical sense of the word would, could and possibly should take it that point.

This is one additional question, and that -- that's all.

Justice John M. Harlan: Before you contrast as the same character of the question on 163, referring as the Brown, (Inaudible) answer the same self-incrimination.

Mr. C. Watson Hover: That one is the -- that's --

Justice John M. Harlan: Do you say that the 150 instead of completing the privilege and simply (Inaudible) or suggestion that would discriminate him about this conviction by jurisdiction practices.

Mr. C. Watson Hover: That is right.

On the -- the 163 -- the -- the questions on 163 form the basis of the second the third counsel against Brown.

Again, there was no direction to answer just a simple direct question, a simple direct, review so that the -- I think we all interpret as being the -- as being invoked of the Fifth Amendment when he says the answer is the same.

There -- there was never any question that -- that it was a -- the Commission assumed that that is what he meant.

Justice Hugo L. Black: Would you have any doubt assuming if the Fifth Amendment applied?

Would you have any doubt to this second question?

Did call for self-incriminating testimony?

Mr. C. Watson Hover: Which second question?

Justice Hugo L. Black: Suddenly -- put that --

Chief Justice Earl Warren: 1150, the last question on the page.

Mr. C. Watson Hover: Oh, were coming back the first count of Brown on -- on page 150.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: Would you have any doubt what that's called or if that's on -- Fifth Amendment is applicable.

And under the Brown case and under numerous cases --

Mr. C. Watson Hover: Why -- why --

Justice Hugo L. Black: -- that wouldn't -- that wouldn't be a trying to get a man to incriminate himself.

Mr. C. Watson Hover: Why -- why yes, I -- I would doubt that Mr. Justice.

Justice Hugo L. Black: You would doubt that he's won?

Mr. C. Watson Hover: Yes.

Yes, sir.

And --

Justice Hugo L. Black: Well, why -- what about asking if he's extended some particular illegal institution, do you think it would --

Mr. C. Watson Hover: He wasn't really then.

Justice Hugo L. Black: -- discriminate a man to admit he had attended an illegal institution?

Mr. C. Watson Hover: He wasn't indicted for that.

Justice Hugo L. Black: I'm not talking about what's he indicted from.

I'm talking about this question.

Mr. C. Watson Hover: May I suggest, the reason he wasn't indicted for it --

Justice Hugo L. Black: I'm -- I'm asking about the question.

Mr. C. Watson Hover: The question, yes.

The second question, yes.

Justice Hugo L. Black: Would you say that the second question, that there's any lawyer who hears that, that would deny that that ask a man to incriminate himself.

Mr. C. Watson Hover: No, and I'm not denying it.

Justice Hugo L. Black: You don't deny it.

Mr. C. Watson Hover: No.

Neither do the Commission, neither did my grand jury.

No.

The -- the second question of that series?

Justice Hugo L. Black: Plainly did.

Mr. C. Watson Hover: Decided, they asked a man for something that might tend to incriminate him.

Justice Hugo L. Black: That was plainly on its face.

Mr. C. Watson Hover: Very certain.

He was not indicted for it.

Justice Hugo L. Black: After he had -- after he had just declined to answer about his educational background on that ground.

Mr. C. Watson Hover: That is right.

That is right.

Justice Felix Frankfurter: It's you're contention isn't it that the Fifth Amendment doesn't apply to state proceedings?

Mr. C. Watson Hover: Oh, no, no.

I -- I find that -- argue -- in thinking of this, argues the Fifth Amendment, possibly Justice Lewis as others.

We have a strictly completely parallel provision --

Justice Felix Frankfurter: All right.

Mr. C. Watson Hover: -- in the Bill of Rights of the Ohio Constitution --

Justice Felix Frankfurter: Therefore.

Mr. C. Watson Hover: -- in Section 10 of Article I.

Justice Felix Frankfurter: Yes.

But he was -- and he was told that he could rest under its protection, didn't he?

Mr. C. Watson Hover: No.

No, no, Mr. Justice Frankfurter.

Justice Felix Frankfurter: And thus, the Chairman told him that they wouldn't ask?

Mr. C. Watson Hover: No.

No.

That -- that's what I tried to get into as soon as we opened this morning, that is not so.

Justice Felix Frankfurter: You mean nowhere did the Chairman say that, “We're not going to ask people to incriminate themselves?”

Mr. C. Watson Hover: He -- nowhere did the Chairman say to Mr. Brown, “We are not going to ask you to incriminate yourself.”

Justice Felix Frankfurter: Well, in --

Mr. C. Watson Hover: No.

Justice Charles E. Whittaker: What about 150 -- direction 157 (Inaudible) “Do you mean to say that this new practice on the grounds that the answer might tend to incriminate your?”

Question, “You have privilege to refuse to answer based on the right granted by the Fifth Amendment of the Federal Constitution.”

Mr. C. Watson Hover: And so he did.

They -- as you put it.

And he then -- then the -- the Chairman asks him, “Is that correct?”

Meaning as I understand it, is that what you want us to understand you are doing here.

Justice Felix Frankfurter: What is --

Chief Justice Earl Warren: Well --

Justice Felix Frankfurter: What I'm -- I beg your pardon.

Chief Justice Earl Warren: No, no, go ahead.

Justice Felix Frankfurter: I'm referring to what Judge -- Justice Stewart quoted on page 237 of the record.

Mr. C. Watson Hover: The quotation on page 237 --

Justice Felix Frankfurter: Yes.

Mr. C. Watson Hover: -- is what I read yesterday in response to Justice --

Justice Felix Frankfurter: Brennan's, yes.

Mr. C. Watson Hover: -- Brennan's question.

Justice Felix Frankfurter: Now, what do you make of that?

Mr. C. Watson Hover: That is the Chairman's testimony at the trial of these defendants.

Where the Chairman himself says, I --

Justice Felix Frankfurter: It was the policy.

Mr. C. Watson Hover: -- you in regard -- it was the policy.

Your -- your recollection there is better than mine.

However, the point I wish to make is that that statement, whether the Chairman's recollection as a witness is good, better and different.

That statement was not made to these defendants.

Justice Felix Frankfurter: But in the fist place, have we got the record of -- the stenographic record?

Mr. C. Watson Hover: Oh, yes it's all here.

Justice Felix Frankfurter: Well, I'm --

Mr. C. Watson Hover: You -- you have the record of the Commission hearings and Cincinnati would have the record -- the record of the contempt to trial.

Justice Felix Frankfurter: And you mean to say, when the Chairman said it was our policy, he didn't know what he was talking about?

Mr. C. Watson Hover: That -- that's exactly what I read yesterday.

Justice Felix Frankfurter: That is what you say.

Mr. C. Watson Hover: Well, yes.

I -- I --

Justice Felix Frankfurter: Is that what you -- I'm trying to find out.

Mr. C. Watson Hover: I don't think there is -- I don't think there is any question about the -- the fact that that was stated directly from Mr. Renner's cross examination in the trial of these defendants.

Justice John M. Harlan: I thought there was something in the record, maybe in connection with it where evidence would bring the suits under these witnesses present in the interrogation of another witness where statements, probably with the kind as reported as this privilege that you made, and that would disperse this.

Is that the next case?

Mr. C. Watson Hover: No.

That is the next case, another time, another place, another city, another circumstance.

Justice Felix Frankfurter: But my question is -- goes to a different --

Mr. C. Watson Hover: Yes, I -- I understand.

Justice Felix Frankfurter: -- point.

Mr. C. Watson Hover: I will --

Justice Felix Frankfurter: Namely, when a Chairman of a Committee says, “This is in our policy and we didn't press questions -- we didn't press witnesses to answer questions, will tend to incriminate him.

Mr. C. Watson Hover: (Voice Overlap) --

Justice Felix Frankfurter: You think that's how you disregard that even to considering what -- all of us have had experience with this kind of thing, no.

That a hearing like this in a continuous thing, witnesses know about it even though they may not be witnesses at the time.

They may have been present when our witnesses were called and they read about it in the newspaper.

And here, the responsible Chairman says “This is our policy”.

And you say we should pay no attention to that.

Is that what it gets down to?

Mr. C. Watson Hover: I say it is not in the case of the State of Ohio versus these defendants.

Justice William J. Brennan: Well now, let's -- let's see if it's not, Mr. Hover.

Isn't this true, nowhere in --

Mr. C. Watson Hover: I have it on page 4.

Justice William J. Brennan: It's nowhere on interrogating any of these three witnesses that the Chairmen ever tell them that they had immunity, did he?

Mr. C. Watson Hover: No he did not.

Justice William J. Brennan: And there were many, many instances.

You pointed some out to us now, I think page 163, in which the witnesses pleaded the privilege, usually by saying same answer applies.

And in none of those cases, at least at 163 and those pages around 163 was the witness ever pressed to answer, was he?

After he impleaded the --

Mr. C. Watson Hover: (Voice Overlap) on the three which I -- which I --

Justice William J. Brennan: Yes.

Mr. C. Watson Hover: -- mention specifically.

Those on --

Justice William J. Brennan: He was not, was he?

Mr. C. Watson Hover: Those only three, he was pressed to the extent of --

Justice William J. Brennan: Yes.

Otherwise they were not pressed.

Mr. C. Watson Hover: Correct.

Justice William J. Brennan: Well now, and the Chairman then said that, as Mr. Justice Stewart quoted it.

That it was not the policy to press it, to allow them the take the -- the privilege, even though they didn't like a statement with -- a direct statement that it was that the policy of the Commission not to press question which we felt would be of incriminating nature.

Can't we take that as supported by the record as to the interrogations of these very witnesses?

Mr. C. Watson Hover: The record itself would, I think be more reliable.

I -- I have it here exactly as the witness stated.

Justice William J. Brennan: No, I -- I'm suggesting you agree with me what record shows.

Mr. C. Watson Hover: Yes, I --

Justice William J. Brennan: It shows that he never told them they had immunity and he never pressed them for an answer when they pleaded the Fifth except in the three instances pointed out.

Mr. C. Watson Hover: (Voice Overlap) I -- that -- that that point in the record is completely clear and that is the way the record is.

However on the -- on the other questions --

Justice Felix Frankfurter: May I -- may I -- in connection, may I -- I suggest first.

The question is, you suggested the failure to direct and repeat, the command as such it is.

We -- we ask a question because that complied with, we want an answer, I follow that.

That's rational enough of these principles.

And then, the witness raises objections.

And then the Chairman or a member of the Committee doesn't say what you answer is quite their objection.

Your interpretation of that episode of that inference or that transaction is, that imply me -- they meant to repeat it because they'd already asked them the question before he raised his objection, isn't that correct?

Mr. C. Watson Hover: No.

Justice Felix Frankfurter: Pardon me?

Mr. C. Watson Hover: My -- my --

Justice Felix Frankfurter: I thought that was the transition (Voice Overlap) --

Mr. C. Watson Hover: -- my position with that point is, there has been a question asked, there has been a refusal to answer.

Justice Felix Frankfurter: Yes.

Mr. C. Watson Hover: These indictments are laid under a statute which makes it an offense to refuse to answer a question about which a witness may be lawfully interrogated.

Justice Felix Frankfurter: But I think you may -- you must take the full context.

Mr. C. Watson Hover: That --

Justice Felix Frankfurter: There was a question asked, there was a refusal intervening question and refusal was objection.

Mr. C. Watson Hover: In a one instance.

In the Brown -- in the first Brown count.

That is --

Justice Felix Frankfurter: There is an objection.

And the question wasn't repeated, it wasn't said -- your objection is overruled because you have no such claim.

I put it to you that it's more rational to interpret the failure to review the question in light of the policy expressed by the Chairman, then they say impliedly -- impliedly overruled the objection simply because you would already ask the question before the objection was made.

Mr. C. Watson Hover: The -- that comes back to the policy of the Chairman, Mr. Justice.

And I -- I --

Justice Felix Frankfurter: Well, but you better you have better source for knowing that the policy of the Commission or any inquiring bodies on the Chairman.

Mr. C. Watson Hover: The -- the testimony --

Justice Felix Frankfurter: I -- I just want to -- I just want to discover out of what material is one to draw a policy except the explicit statement of a Chairman, what the policy was.

Mr. C. Watson Hover: May I -- may I suggest that the policy does not seem to be a necessary prerequisite to the commission of the offense.

Justice Felix Frankfurter: Well, but if the quality --

Mr. C. Watson Hover: The -- this is a statutory offense.

Justice Felix Frankfurter: But if he correctly interpreted the policy, then isn't Justice Stewart right, there was no contempt in refusing to answer if you acted on the policy of the Commission that if you arrange the justification for refusal to answer that is incriminating, the question isn't pressed and therefore refusal to answer isn't contempt.

Mr. C. Watson Hover: Provided these witnesses were not mislead in that respect and they were not --

Justice Felix Frankfurter: But how could -- how could people not be mislead if a Chairman indicates that if you say this will intend to incriminate you, you don't have to answer and the Chairman doesn't press the question in light of such justification to refuse to answer.

Mr. C. Watson Hover: But -- but there is nothing in this record to indicate -- to -- to establish that the Chairman indicated that in regard --

Justice Felix Frankfurter: Except two things.

Except two things.

Mr. C. Watson Hover: -- in regard to these witnesses.

Justice Felix Frankfurter: Except two things.

One is because that calls the general policy, and two, the question was renewed.

Mr. C. Watson Hover: Usually, the question was not renewed.

Justice Felix Frankfurter: I'm talking about the old record is not renewed.

Mr. C. Watson Hover: That's nearly all of them.

Justice Felix Frankfurter: All right, nearly all of them.

And therefore, that thing that finger to renew gets illumination to the expression of the Chairman what the policy was.

Namely to give the claim of the privilege.

Justice William J. Brennan: Well now -- now certainly, this must as to the atmosphere of that hearing.

I think you agreed earlier, wasn't one to suggest that immunity was available, was it?

Mr. C. Watson Hover: There was no suggestion whatsoever, the new --

Justice William J. Brennan: And then there's nothing in the atmosphere of the hearing at all would suggest that was available.

And -- nor was there anything in the atmosphere at that hearing to suggest that the privilege was totally irrelevant, was there?

Mr. C. Watson Hover: No, it did -- they didn't go to that --

Justice William J. Brennan: Now, don't you think the Committee members where in large part responsible for that, for the very reasons that Mr. Justice Frankfurter suggested?

Mr. C. Watson Hover: I think the Committee members just had these refusals and in -- nearly all instances, let them sit.

Then turn them over for prosecution after the Committee had gone through its statutory proceedings to affect that ultimate end.

And these indictments flowed from that.

The indictments where -- do not cover all of the questions.

There -- there was a distinct effort made to avoid indictment.

On the basis of what the Committee had meant to operate.

That is, we will not press where there seems to be some reasonable ground.

And that -- that the -- that the indictments flowed from that exact same thinking.

Now, whether the -- whether the -- the picking and choosing was a 100% accurate is of course open to question under any circumstances, but that was the purpose.

Well, I'm --

Chief Justice Earl Warren: Well, doesn't this -- doesn't this question that we've been talking about at the bottom of page 154 right within this policy that was stated by the Commissioner or the Chairman?

He said, "It was the policy of the Commission not to press questions which we felt would be of an incriminating nature.”

For instance, whenever witness was asked a question I believe that every witness before the Commission was asked a question, “Are you or have ever been a member of the Communist Party?"

And the -- if the witness refuse to answer that question, we did not press it.

Now, take that and -- and compare it with this question that we've been talking about.

"Is there some particular illegal institution which you attended or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?"

Now, isn't that -- isn't that just about as explicit as asking a man if he was a member of the Communist Party?

Mr. C. Watson Hover: Yes.

Chief Justice Earl Warren: And its just as incriminating, isn't it, if he has answered yes.

Mr. C. Watson Hover: And it was a question, if I -- may I add, that was not pressed.

Chief Justice Earl Warren: May not -- was not pressed yes.

And if you take that within -- and placed it in the framework of this policy that the Commission said it had.

Why wasn't -- why, was the man in contempt if he exercised a privilege which the Chairman of the Commission and the Commission itself recognize.

Mr. C. Watson Hover: Well, that -- that is again reading the -- the two series of questions and answers on invoking the privilege.

Chief Justice Earl Warren: Yes.

Mr. C. Watson Hover: Now again, if the second answer is read as "No", I am not invoking a privilege or I am not fearful that there will be any incrimination.

Chief Justice Earl Warren: Yes.

Mr. C. Watson Hover: “I just don't think it's your business.”

Then -- then the -- then the -- at least the possibility of raising a debatable question of incrimination arises which is what the -- what the indictment did for the trial purpose.

Justice Felix Frankfurter: Mr. Hover, may I -- I beg your pardon.

Chief Justice Earl Warren: Go ahead.

No, go ahead.

Justice Felix Frankfurter: May I ask this question?

As I understand you a little while ago to say that the -- the un -- the unrepeated question after the claim was made constitutes the bulk of the question?

Did you say something most -- that they were most of them?

The questions that were asked to which self-incrimination -- for which self-incrimination was invoked and they're not repeated, constituted the major portion of the question in controversy.

Is that right?

Mr. C. Watson Hover: Constituted the major portions of the questions for which indictments were had.

Justice Felix Frankfurter: Yes.

For which indictments were asked, yes.

Mr. C. Watson Hover: Yes.

Justice Felix Frankfurter: Well, on that -- on that -- I thought pursuant authority to press myself (Voice Overlap) --

Mr. C. Watson Hover: Well, not the major portion of the --

Justice Felix Frankfurter: No, no, no.

Reads to me as “No”.

But they -- the major portion of the questions, the -- for refusal of which sentence was imposed, Is that correct?

Mr. C. Watson Hover: Correct.

That is correct.

Justice Felix Frankfurter: What I want to know this.

Assuming that the unrepeated question cannot be sustained, I'm saying assuming as, the -- if the counsel are here for his -- find out what they proposed.

Assuming that those cannot be sustained, leaving only a minority of questions.

Assume the latter can be can be sustained.

I would like to have your view as to the validity of the sampling imposed in wholesale as justifying -- as -- as satisfying legality.

Assuming we sustain you as to those few.

Would you care to say something about that?

Mr. C. Watson Hover: Yes.

That -- that question has already been considered.

Not -- not judicially but isn't --

Justice Felix Frankfurter: Yes.

You don't actually press (Voice Overlap) --

Mr. C. Watson Hover: It's in the large for this reason --

Justice Felix Frankfurter: I hope my questions are irrelevant --

Mr. C. Watson Hover: -- that the first count --

Justice Felix Frankfurter: -- when I asked them.

Mr. C. Watson Hover: Exceedingly so.

The -- the first count of Raley was among those which were dismissed in the Court of Appeals.

That -- that gives rise to your question right -- right there.

The sentence was guilty on all counts.

And then the Court exercised a privilege which is rather standard practice of making sentences run concurrently.

There -- there is no -- nothing in the docket of the record to say, “I find you guilty of the -- the first count, and you do 10 days on that.

And I find you guilty of all the others.

And I-- I'm just going to forget about those.”

That is not this record and not -- not Ohio procedure.

The person is found guilty and sentenced on all counts and the sentence --

Justice Felix Frankfurter: Engrossed as if it were okay.

Mr. C. Watson Hover: Oh, yes.

In this case it was engrossed.

You're indicted for 16 counts, you were found guilty of 16 counts.

You are filing -- fined -- and I think the fine in 10 days, $500 something.

And the sentences aren't -- be run concurrently in the fines paid that way.

So as I say, that -- that question has been in this case for -- for sometime, they're just not, at least up to this point, been occasioned to -- to bring it into the actual proceedings.

It's -- it has been considered not the fact.

Justice Felix Frankfurter: Well, -- well can -- well -- are you then saying that the sentence can stand engrossed, although make a portion of the underlying convictions are undermined?

Mr. C. Watson Hover: Oh, yes.

The -- these are separate indictment counts.

I -- I'm speaking --

Justice John M. Harlan: What was the sentence, 10 -- 10 days?

Mr. C. Watson Hover: 10 days and $500, I -- I believe suggest.

The --

Justice Felix Frankfurter: The separate indict waived for the -- for each question?

Mr. C. Watson Hover: A separate count in one indictment.

The Indictment consists of 16 counts, each count being a specific refusal.

The -- those are the 16 counts which we have -- should impartially meted out already.

Justice Felix Frankfurter: And the sentence is promulgated to count to count and the sentence runs against counts, is it?

Mr. C. Watson Hover: Yes.

With the sentence.

Justice Felix Frankfurter: That's all of them concurrently.

Mr. C. Watson Hover: All of them concurrently.

Justice Felix Frankfurter: So that ultimately knocked out, leave the standing the good sentences for the good counts.

Leave standing the sentences for good counts.

Mr. C. Watson Hover: But still there's just one sentence.

That is one -- one period of time.

Justice Felix Frankfurter: All right.

Mr. C. Watson Hover: Yes sir?

Justice Hugo L. Black: Mr. Hover, I have just read the entire evidence to Mr. Brown, the questions that were asked.

And am I right in thinking this?

They cover -- question and answers cover 15 printed pages.

I didn't figure out the time but I would say that we must claim the Fifth Amendment, 75 to 100 times.

Mr. C. Watson Hover: Now, you -- you are undoubtedly correct.

Justice Hugo L. Black: And the Chairman intervened at the number of times to be sure he was claiming the Fifth Amendment.

That's right, isn't it?

Mr. C. Watson Hover: That is correct.

Justice Hugo L. Black: And the Chairman did not ever indicate to him at any time from the first to the last question to what I can find.

That there was anything wrong with his claiming of the Fifth Amendment or that he was not entitle to claim it.

Mr. C. Watson Hover: The Chairman did not ever claim that he was not entitled to (Voice Overlap).

Justice Hugo L. Black: And all the questions --

Mr. C. Watson Hover: That is so.

Justice Hugo L. Black: -- were asked, he would decline on the Fifth Amendment and they'd just go on to another question, all of them practically about the Communist Party.

Mr. C. Watson Hover: No.

Justice Hugo L. Black: In most of them?

Mr. C. Watson Hover: No.

Justice Hugo L. Black: Well, like number --

Mr. C. Watson Hover: Of the indictment counts, none of them.

Justice Hugo L. Black: I'm not talking about the indictment counts.

Mr. C. Watson Hover: Oh, excuse me, sir.

Excuse me.

Justice Hugo L. Black: I'm talking about now the -- the evidence interrogation --

Mr. C. Watson Hover: That -- the -- I'm carrying the question.

I understand.

Justice Hugo L. Black: -- showed that from the beginning to the end, he relied on the claiming, the privilege under the Fifth Amendment.

No one ever indicated to him by any word, either the Chairman or the question that there was -- that he didn't have a right to claim the Fifth Amendment.

Mr. C. Watson Hover: No one, and that is correct.

No one ever so indicated.

Argument of Carl B. Rubin

Mr. Carl B. Rubin: May It please the Court.

Chief Justice Earl Warren: Mr. Rubin.

Mr. Carl B. Rubin: In the time remaining, I should like to address myself to the question of the Ohio immunity statute.

May I say at the outset that I believe the -- by a mistake, this Court was misinformed as to the applicability of the Ohio statute.

The distinction between committees and commissions in Ohio is not a very precise one.

As a matter of fact, this particular question was considered by the Supreme Court of Ohio and in the first branch of the syllabus, stated very specifically that this was a select committee so as to be with in the terms of the statute.

Now, I should like to point out in this regard that that the Ohio statute on immunity is not like the federal statute where there must be a specific action taken before the immunity is conferred, where the Attorney General must be consulted in the District Court of permission granted.

To the contrary, in Ohio, the provision for immunity before the legislature is a great that you must specifically divest your self up.

You have it until you take action and you must take your action in writing.

Now, this is similar of course to the Ohio law on a jury trial.

A person is entitled as a matter of law to a jury trial, unless they specifically waive their right in writing, so too is it the immunity statute.

There is no question in the record that at no point or that at any point were these witnesses told of the immunity statute.

But the statute does exist, it did exist and it did cover these witnesses as fully and as completely as the State of Ohio could do so.

If these witnesses in fact do not have immunity, it is not because of the action of the legislature of Ohio, it is despite the action of the legislature of Ohio.

And I submit that this is an important consideration particularly in view of the fact.

But getting back to the record, and in connection with the -- the discussion that has gone on as to the misleading by the Chairman of these witnesses.

Might I point out to the Court and I think quite significant, the discussion that was held with counsel for Talmadge Raley.

Bear with me one moment.

Mr. Burger, this is counsel --

Justice Felix Frankfurter: What page?

Mr. Carl B. Rubin: I'm sorry, sir, page 99.

Mr. Burger, “Mr. Chairman, you will forgive the witness for taking his legal advise from me rather than from the Committee.”

The witness, “If I recall.”

Chairman Renner, “You may advise your witness what his rights are under the Constitution.”

Mr. Burger, “I certainly will.”

Mr. Chairman Renner, “I was not aware that you would advise him not to give that answer.”

Mr. Burger, “I had not.

I didn't advise and to give any answer.

I pointed out that you were telling the witness what the law is, and with all due respect, that is my function.

If he wants to know the law, I think it is I he should ask and not you.”

Chief Justice Earl Warren: As to his privilege of course.

Mr. Carl B. Rubin: Yes, sir.

But the -- the point that I --

Chief Justice Earl Warren: Because what they were talking about was with the privilege.

Mr. Carl B. Rubin: Yes, sir.

But this I submit is important in the context of whether or not this Chairman misled this particular witness who came to this Commission hearing with a statement that he read, with the council, with whom he conferred, and who advised him specifically that it was to him, the witness should look for a legal advice not to the Chairman of the Commission.

Justice Felix Frankfurter: Not of the -- I -- I must say -- never been so confused about an immunity situation as I have about this one.

As I understood you a minute ago in stating the law of Ohio which was news to me, except that it has an analogue in -- in the immunity which flows without asking for it, under the Sherman antitrust law among your case in this Court.

But as I understood you, the Ohio law is that a witness appearing before a legislative committee, and this for the purposes of your law was a legislative committee, cannot refuse to answer because automatically, answer is compelled in exchange for an automatically flowing immunity of the statute for a statute giving immunity from prosecution.

Is that what you've said?

Mr. Carl B. Rubin: I'm saying, sir that the --

Justice Felix Frankfurter: Isn't that what you said?

Mr. Carl B. Rubin: Well, I -- I don t know if I phrased it quite that fashion, I'm saying the Ohio immunity statute is automatic.

Justice Felix Frankfurter: Automatic.

Mr. Carl B. Rubin: The --

Justice Felix Frankfurter: And therefore, it has to be disavowed.

Mr. Carl B. Rubin: In writing.

Justice Felix Frankfurter: In writing.

Mr. Carl B. Rubin: Yes, sir.

Justice Felix Frankfurter: And since it is -- correct me on this because I -- on this -- I'm now walking very aware of this.

Does that mean that it is much as the immunity statute flows automatically and has the least specifically disavowed in writing.

A witness inevitably can't claim immunity from testifying because he had immunity from prosecution.

Is that correct?

Mr. Carl B. Rubin: I -- you lost me, sir.

At the very end, he cannot claim immunity from the statute.

Justice Felix Frankfurter: The point of an immunity statute is that it withdraws the right to withhold answers to questions --

Mr. Carl B. Rubin: Yes, sir.

Justice Felix Frankfurter: -- because it may tend to incriminate him.

Mr. Carl B. Rubin: Yes, sir.

Justice Felix Frankfurter: Is that right?

Mr. Carl B. Rubin: That is correct.

Justice Felix Frankfurter: Now in Ohio, there is automatically immunity from prosecution and the only possible rational explanation I can find for that is that thereby, nobody can give -- claim immunity from testifying.

Mr. Carl B. Rubin: Yes, sir.

That is correct.

Justice Felix Frankfurter: Now, is that correct?

Mr. Carl B. Rubin: Yes, sir.

Justice Felix Frankfurter: So then, there is an automatic immunity statute, immunity from prosecution which automatically disables a witness to say, “I won't testify because I may incriminate myself.”

Mr. Carl B. Rubin: That is correct.

Justice Felix Frankfurter: Is that right?

Mr. Carl B. Rubin: That is (Voice Overlap) --

Justice Felix Frankfurter: Now, what I want to know is this.

Is Chairman Renner who presumably was a lawyer, was he?

Mr. Carl B. Rubin: Yes, sir.

Justice Felix Frankfurter: Did he at any time tell this witness, "Your privilege against self-incrimination can't be asserted because the legislature of Ohio has displaced that immunity with the immunity from prosecution.

Mr. Carl B. Rubin: No, sir.

It is not in the record.

Justice Felix Frankfurter: Well then, how can the witness know whether he did or didn't have a right to claim it?

Mr. Carl B. Rubin: This Court held in Sinclair versus the United States that the witness is rightly bound to construe the statute.

This would mean as --

Justice Felix Frankfurter: If this -- this witness should know more law than the Chairman did, is that it?

Mr. Carl B. Rubin: Well, I -- I submit to Your Honor that the witnesses knew very well how to claim their privileges under the immunities --

Justice Felix Frankfurter: But that isn't the question, the question before us is whether he will fully defy the questioning power of this Committee.

And if he was misled, you can't by imposing knowledge of the laws of fiction, as an explanation of understanding.

Mr. Carl B. Rubin: I submit to Your Honor that the -- all was there and that this witness, accompanied by counsel, if you please.

Justice Felix Frankfurter: Did --

Mr. Carl B. Rubin: -- was in --

Justice Felix Frankfurter: You didn't understand.

Apparently, the Ohio law is almost as obscure to some of the Ohio lawyers as it is to me.

Mr. Carl B. Rubin: Perhaps so.

I may need my time --

Chief Justice Earl Warren: May I -- before you sit down, I'd like to ask you just one hypothetical case.

In the -- in the -- having in -- in regard your Ohio law.

Suppose a witness goes before the Committee and he has asked a question which you will clearly incriminate him.

And the -- the Chairman of the Committee says, "Now, Mr. Witness, you're -- you're entitled to claim your privilege of self-incrimination if -- if any of these questions -- answers to these questions would incriminate you.”

And the witness says "Well, Mr. Chairman, I do claim my privilege of self-incrimination.”

And the Chairman says "You're excused."

Could he then be indicted and convicted for contempt to that Committee?

Mr. Carl B. Rubin: I would say not.

Chief Justice Earl Warren: Now why, what is the difference between that case and the case that -- of Brown, Mr. Justice Black having said that there was -- that's practically what happened there.

Mr. Carl B. Rubin: I submit, sir, that there is this difference.

That in hypothetical instance that you gave me, there is no question, no specific question that he refused to answer.

Chief Justice Earl Warren: Oh, yes, he refused to answer.

They ask him -- they ask him a question which would have been incriminating.

Mr. Carl B. Rubin: Yes.

Chief Justice Earl Warren: And he said, “I refuse to answer on the grounds that will tend to incriminate me.”

Mr. Carl B. Rubin: Yes.

Chief Justice Earl Warren: And the -- the Chairman then said, “You're excused.”

Mr. Carl B. Rubin: Well, may I suggest sir that the --

Chief Justice Earl Warren: Yes.

Mr. Carl B. Rubin: -- hypothetical example has this one variation.

There is nothing again in this record that indicates that witness Brown was told by the Commission or by the Chairman that he had a right to assert the privilege against self-incrimination and that nothing further would then be done.

I -- I submit that that is an essential --

Chief Justice Earl Warren: But within -- within the fact that the -- that the Chairman of the Commission said, “You may claim your privilege,” but failed to say, “And if you do, nothing will be done about it.”

Do you think that distinguish it?

Mr. Carl B. Rubin: No, sir.

I am saying this and I -- I think this one bit of background is important.

This Commission appeared in many different cities in Ohio and interrogated some 30 odd witnesses.

Whatever the Commission's or the Chairman's recollection of what he thought he said.

I -- I don't believe that is as important as what he actually said.

I -- I don't believe that if he said something in Akron, Ohio or in Columbus, Ohio, that is not part of this case.

It can be assumed that he granted to these witnesses or -- or misled the witnesses into believing that there would not be prosecution.

Now, I -- I believe that Justice Stewart fell into the trap that Justice Brennan pointed our yesterday.

This is what the Chairman said he said.

But it is only his recollection, some 15 months after the fact.

And I -- I submit that -- that this particular record in this particular case, in the case no such statement by the Commission.

Chief Justice Earl Warren: Can you repudiate the testimony of your -- the Chairman of your Commission?

Mr. Carl B. Rubin: No, sir.

No, sir.

I -- I am saying that -- that whatever his -- his testimony is correct but it has no bearing on these particular cases because the -- it was not stated to these witnesses that this may have been -- that's maybe correct in the Morgan case but it is not correct in these cases.

Chief Justice Earl Warren: All right.

Mr. Carl B. Rubin: Thank you very much, sir.

Chief Justice Earl Warren: Mr. Johnson.

Argument of Morse Johnson

Mr. Morse Johnson: May it please the Court.

I should like to call again the Court's attention.

I regret that there has been so much confusion about exactly what the Chairman said and what the Commission meant, to the record on page 99.

At the middle of the page and this is one of the questions which form the indictment, the -- the -- a count in the indictment.

Where Chairman Renner, contrary to what the State has -- has apparently asserted here clearly has told the witness that he had their -- had privileges under the Constitution.

“We would like to know whether you recall that interview.

You may say yes or no.

Do you recall that interview or don't you recall it?

If you recall it, and we ask you about your recollection, then you are privileged to claim your rights under the Constitution.

But it is our opinion,” and note here, Your Honors how carefully he then circumscribed himself but it's our opinion -- it is my opinion that you have no constitutional right to refuse the -- answer the question of whether or not you recall that interview.

Now, it appears to me following on through from 99 on to a 100 that Chairman Renner at -- at that point having told the witness that he could assert his rights under the Constitution then went on to indicate that he, personally, felt may be that the -- that the witness could not but as it gets over to the -- to the middle of page 100, it -- Chairman Renner seems to indicate that he finally accepts the assertion of the privilege.

Contrast that, if the Your -- if the Court would please, with record at 132.

Chief Justice Earl Warren: Where is that -- what language are you referring to on page 100?

Mr. Morse Johnson: He then asked the witness to check with his counsel, Mr. Chief Justice.

I should like to create and consolidate counsel to determine whether in his opinion, you are required to answer the question whether you recollect having had such an interview.

The witness, I've been -- advised by counsel that the privilege does apply if I desire to use it.

Chairman Renner, “Counsel may proceed.”

Justice Felix Frankfurter: Before we go with your page 132, the -- the interview referred to in -- over a month by Chairman Renner in this record?

Do you --

Mr. Morse Johnson: If -- if the interview -- if you'll pardon me Your Honor, I didn't quite understand you.

Justice Felix Frankfurter: We would like to know whether you recall that interview.

What I want to know is, is that interview transcribed and found in this printed volume?

Mr. Morse Johnson: No, Your Honor, that refers back up to the third paragraph or second question on page 99.

“Let me refer to an article carried in a Cincinnati Post on September 13, 1949, captioned “Schools Trace Communist Propaganda.”

Union agent denies (Inaudible) and refers to an interview with you.

Do you recall that interview?”

And then that question became one of the counts in the indictment which the appellant Raley refused to answer on the ground that it might incriminate him under the -- under the Fifth Amendment and the Ohio Constitution.

The interview itself was never in the record, Your Honor.

Justice Felix Frankfurter: That's an interview given between one of these petitioners and (Voice Overlap) --

Mr. Morse Johnson: Appellant Raley and the newspaper reporter.

Now, we have, as I point out to the Court that -- that colloquy on page 99 and then we have the one question that I would submit is the only -- only one where the -- the witness was at least directed to answer the question.

That's the -- that's the appellant Stern's first count in -- in his indictment on page 132.

He -- he asserts his privilege and Chairman Renner says, “The chair will request that the witness answer the question.”

The witness, “I have answered the question” Mr. Isaacs, “Mr. Chairman, I asked the witness to be ordered and directed to answer the question.”

Chairman Renner, “The Chairman directs the witness to answer the question relating to his address and so forth and so on.”

Justice Felix Frankfurter: Well, now, what do you say to the legality of that question?

Mr. Morse Johnson: I say, Your Honor, that it's quite clear that the witness was at -- and -- and this is the only instance.

It is our position where the -- where the Commission actually ordered and directed an answer that at this -- at this point, appellant Stern was told that the -- that the Commission ordered and directed him to make an answer.

Justice Felix Frankfurter: Yes.

But I want to know whether that question could be put to him.

Mr. Morse Johnson: Whether that question could be put to him?

Your Honor, I -- I mentioned yesterday and I'd like to mention again today for -- for that very purpose.

If -- if the Court would turn to the record at page 141, 142.

In the middle of the page, there's a question starting, “Do you know Frank Hashmall?”

“I claim the privilege.”

“Do you know Sylvia Hashmall?”

“I claim the privilege.”

Question, “As a matter of fact in March of 1950, Frank and Sylvia Hashmall and their family moved in with you, did they not?”

And if -- and they -- they go on to talk about whether or not his residence later on, turning over on page 142 about the fourth question down or the third question down.

“Is it not a fact in March of 1950, Frank and Sylvia Hashmall, Frank Hashmall being the district organizer for the Communist Party and I'll add to it.

Your home became the Communist Party headquarters for this section.”

Now, I think --

Chief Justice Earl Warren: That's the same residence they were asking about on page 132.

Mr. Morse Johnson: It is to be assumed that, Your Honor.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Then why --

Mr. Morse Johnson: Yes.

Justice Felix Frankfurter: -- why should one assume?

What I'm asking is this.

If in a -- in the federal court, this question were asked, “Where do you live?

What is your name?”

And the witness says, “I won't answer.”

“Where did you live?”

“I won't answer because it might tend to incriminate him.”

I think I'm clear in saying that if -- if that question were asked and no other indication but that's the question that might tend to incriminate, he couldn't stand on it furthermore.

Mr. Morse Johnson: If --

Justice Felix Frankfurter: You can't just say, “I won't end to anything because anything might incriminate me.”

Mr. Morse Johnson: If -- it later developed, Your Honor, that the -- the Commission or the -- or the investigating body, whatever it might be, had possession of information that they thought was -- was factual, that this man's home had been or was then -- the headquarters of -- of the Communist Party.

Justice Felix Frankfurter: Might -- was towards the question, the -- the -- a question asking for residence.

“Where do you live?”

Without more, would not justify him in claiming privilege.

I said very calculatingly without more.

Now, at the time that he refused to answer on page 132, there was nothing whatever except he asked “Where do you live?”

The man can't say, I would raise the bar on anything without giving some intimation so that the judge, I'm talking about the court.

There have been such cases.

You can't just say, “ I won't answer anything.”

He must give some indications so that the judge in good conscience can say, “Yes, this might lead to something else.”

Mr. Morse Johnson: Your Honor will note --

Justice Felix Frankfurter: -- (Voice Overlap) 132, all he was asking, “Where do you live?”

Mr. Morse Johnson: You -- Your Honor, well note that following that question, Mr. Stern did reply to many questions and gave -- gave the Commission factual answers as to where he'd worked, where he attended school, what he'd done and --

Justice Felix Frankfurter: I think it's Baltimore.

Mr. Morse Johnson: In -- in Phoenix or --

Justice Felix Frankfurter: (Inaudible) from my point of view to indicate something, if he say, “I can't answer that because it will lead to something else or I would step up -- somehow rather a mitigation.”

You can't just say Fifth Amendment, shout the Fifth Amendment the way generally it's shouted unthinkable, Fifth Amendment.

And shut out all inquiry and --

Mr. Morse Johnson: Well, Your Honor, if I may -- if I may ask you this question.

Suppose the witness was aware of the -- of the alleged information that the Commission had about his home being the -- the headquarters of the Communist Party.

Is it incumbent on the -- on the witness to say “I do not wish to testify as to where I live because I'm fearful that you might ask me further questions about" --

Justice Felix Frankfurter: No, it doesn't have to mean that, he has to give some information, ordinarily merely asking a man where he lives.

Wouldn't give the most imaginative judge a suggestion that he can't say that because a sequence of questions might implicate others if he gives the residence.

It probably doesn't call a fact that you might address because other people live there.

Mr. Morse Johnson: Well, Your Honor, we don't have a question of a judge asking questions, we have a question of the Commission which it had --

Justice Felix Frankfurter: Well --

Mr. Morse Johnson: -- a previously and throughout this hearing, indicated that it had a lot of incriminating or what he considered incriminating information about these witnesses.

Justice Felix Frankfurter: Well, this isn't --

Justice William J. Brennan: Well, may I ask you --

Justice Felix Frankfurter: -- is there anything to hind this denial to anything that preceded whereby the Chairman or any fellow has the responsibility.

We'll, get some things in that this is down a dangerous road.

Mr. Morse Johnson: There is nothing preceding this question.

But there is certainly something subsequent to this question.

Justice William J. Brennan: Well, Mr. Johnson, what about preceding the direction?

About that question that preceded the direction to answer the question?

Mr. Morse Johnson: Well --

Justice William J. Brennan: Chairman put the question, “Is there something about the nature or character of the home in which you live?

That to admit you live there would make you subject to criminal prosecution.”

That question was asked in the privilege pleaded before the direction was given by the Chairman.

Is there anything in that which will suggest the --

Mr. Morse Johnson: Well, I think Your Honor, I -- I agree with Your Honor that I -- I --

Justice Felix Frankfurter: But he merely said, “I won't answer, I won't answer anything.”

Mr. Morse Johnson: Because there's something about the --

Justice Felix Frankfurter: That was pulled down a curtain if they would ask for anything.

Mr. Morse Johnson: Yes, Your Honor.

I -- I would like to -- unless Your Honor would like to investigate further into that area, I -- I should like to point out how important --

Justice Hugo L. Black: Which one -- which one of those two questions made the basis of the counts?

Mr. Morse Johnson: That the -- I'll have to look it up, Your Honor.

“Where do you reside, Mr. Stern?”

That's the very -- “Will you state your name please?”

Answer, “Joseph Stern,” at the very top of page 132.

Question, “Where do you reside, Mr. Stern?”

And then he answered, there's no further -- specific word --

Justice Hugo L. Black: But where did he -- where did the Chairman of the Commission asked him to answer that personal question?

Mr. Morse Johnson: I think it -- I think it could be argued that he was talking about the second question that Mr. Justice Brennan was talking about when he gave a direction to order an answer but I think the implication is that he was still asking where he lives.

Justice Hugo L. Black: That's the one that he requested the answer.

Mr. Morse Johnson: I -- I think that --

Justice Hugo L. Black: It follows immediately after that second question --

Mr. Morse Johnson: That the Court concluded that.

Justice Hugo L. Black: -- something about the nature or characters of the home.

“Which you live, and to admit you live there would make you subject to criminal prosecution,” the same answer.

Chairman Renner, “The chair will request that the witness answer the question.”

Mr. Morse Johnson: Well, Your Honor, I -- I regret that that -- I regret we have to go on further than that because Chairman Renner finally says, “This is prejudicial to my own case.”

The Chairman directs the witness to answer the question relating to his address, the address of his residency in Cincinnati.

Justice Hugo L. Black: It was after he had asked him the question.

Mr. Morse Johnson: That's right, Your Honor.

Justice Hugo L. Black: Was there anything shown to that -- on page 142 whether that was the residence, that was asked about his home.

Mr. Morse Johnson: That's correct, Your Honor.

And it would -- has been our position --

Justice Hugo L. Black: Then they asked him the next one, “As a matter of fact, you reside at 3959 Wilson Avenue in the city?”

Mr. Morse Johnson: 3595 Wilson Avenue in the City of Cincinnati, Ohio.

There's nothing in the record to indicate, Your Honor, that that residence which is -- as specified or identified at page 132 is the residence that they were talking about on page 141 as being the --

Justice Hugo L. Black: Yes.

Mr. Morse Johnson: -- Communist Party headquarters and I have no knowledge about that.

I should like to call the Court --

Justice John M. Harlan: May I ask --

Mr. Morse Johnson: Excuse me.

Justice John M. Harlan: I don't want to interrupt you but you indicated that you thought that was the only question which there was a direction in the case of these people.

I'd like to ask you about count three and count nine of the Raley indictment.

And --

Mr. Morse Johnson: Three is on 91.

Justice John M. Harlan: -- also about count one of the Stern indictment.

Mr. Morse Johnson: Well, this count on of the Stern indictment (Voice Overlap) --

Justice John M. Harlan: That's the one you've dealt with on the request.

I beg your pardon.

Justice Hugo L. Black: I want to ask you one other question which again to (Inaudible), has been.

If this -- did all this determination appear the same day in Cincinnati?

Mr. Morse Johnson: Yes, Your Honor.

In the morning and in the afternoon.

Justice Hugo L. Black: Some of it occurred in the morning.

Mr. Morse Johnson: That's correct.

Justice Hugo L. Black: Raley testified in the morning?

Mr. Morse Johnson: That's correct, Your Honor.

Justice Hugo L. Black: And they were all summoned there for that day.

Mr. Morse Johnson: They were all present.

Justice Hugo L. Black: These three witnesses, they were present.

Mr. Morse Johnson: That's present -- that's present.

You're right, Your Honor.

Justice Hugo L. Black: And if 1:15, adjourn until 2:00.

Mr. Morse Johnson: Yes, Your Honor.

I don't remember the exact hours.

Justice Hugo L. Black: And then they call Stern or Brown and then finished with him and called the others.

So it was all a part of one continuous session that day.

Mr. Morse Johnson: That's correct, Your Honor.

Number three, Mr. Justice Harlan, is now as a matter of fact, “That was the headquarters of Local 766 (Inaudible) at that time, isn't that correct?”

I again assert my privilege.”

Mr. Raley, would you explain to the Commission how you could incriminate yourself like knowledge and the location of the headquarters.”

Mr. -- the witness, “I don't believe, Mr. Chairman, that I have to give the reasons for asserting a privilege.”

Chairman Renner, “I nevertheless request an answer as to the -- as to why you think it would incriminate you, not as to the -- not as to the question for which there had been an indictment.”

And there's a colloquy, and I think that when the witness says, “I think I was correct in view of the line of questions that I have to assert my privileges under the Constitution.”

And Chairman Renner on page 92 answers, “Counsel will proceed,” I don't believe that this Court should hold, that -- that appellant, Raley, was put on notice that he'd been given a specific and direct command that this -- his assertion of the privilege under these circumstances had been rejected by the entire Commission and considered contimation and will -- contumacious and willful defiance of the Commission following that colloquy.

Particularly, Mr. Justice Harlan, given the law of Ohio, and might be, I will follow the reply brief in this -- in this case, these witnesses were indicted under the judicial contempt section.

And the Ohio Supreme Court and its decision state that the -- that amounted to merely a definition as to what shall constitute contempt.

I'm quoting from the record at page 230.

Now, there's no question in the State of Ohio, the cases, for the practice of law, the secondary authorities, that a witness must be directed and ordered and been -- be clearly apprise that the Court overrule whatever objection had been, he had raised or his counsel had raised and he was specifically directed to answer the question.

This is the applicable section under which these counts were indicted.

Justice Felix Frankfurter: Am I to infer from what you've said that you might pattern to our brief that you have not --

Mr. Morse Johnson: I did follow your entire brief, Your Honor --

Justice Felix Frankfurter: Or that you -- have you -- have you briefed this in the -- what you just said?

Mr. Morse Johnson: What I have just said.

Yes, Your Honor.

Justice Felix Frankfurter: Everything.

Mr. Morse Johnson: I did and I sent it on to this Court.

Yes.

Right.

Justice Felix Frankfurter: May I ask this question?

Under your -- under Ohio law, commitment for contempt, certainly for contempt.

Does that require willfulness in the sense as purpose, consciousness of -- of -- (Voice Overlap)?

Mr. Morse Johnson: There is -- there -- the -- there is nothing in the statute, the judicial contempt section, which states that -- there that -- that willfulness --

Justice Felix Frankfurter: No, but --

Mr. Morse Johnson: -- is an -- is an element of the offense.

Justice Felix Frankfurter: -- what about the law above your case laws?

Mr. Morse Johnson: Under case law, there -- I could -- I -- I have no cases where willfulness was -- was required.

But there are cases and full -- and it's written in the books have replayed with citations as to where, to -- in order to complete the offense, there had to be a direction so that the witness knew that the Commission or -- or the Court.

Justice Felix Frankfurter: Usually defying, there must be an awareness of defying the Court's --

Mr. Morse Johnson: That's -- that's right, Your Honor.

Justice Felix Frankfurter: -- or the Committee's direction.

Mr. Morse Johnson: That's correct, Your Honor.

Justice Felix Frankfurter: Is that right?

Mr. Morse Johnson: That's correct, Your Honor.

Mr. Justice Harlan, were you still interested in question number nine?

Justice John M. Harlan: Yes.

I take it, what you've said on page 91, you say that I nevertheless request an answer or refer to as not to the question that was asked but to the basis for -- the claim of this privilege, that's what you're saying?

Mr. Morse Johnson: That's right, Your Honor.

And he later --

Justice John M. Harlan: Which one?

Mr. Morse Johnson: -- states on page 92, "I think I was correct in view of the line of questions which involve the headquarters being -- the headquarters of the Communist Party that I can stand on my privilege.”

Justice John M. Harlan: The only -- the other one I'd like to ask you about is page 99, count nine.

Mr. Morse Johnson: Right, Your Honor.

I -- all that the Chairman has said there is, “It is my -- but it is our opinion,” and then he changes it.

And mind you, Your Honor, we're dealing with witnesses in front of the Commission who were, as this -- this Court has frequently held in the Wilson case and so forth, to render a considerable amount of pressure.

They have to make decisions quickly.

Justice John M. Harlan: The witnesses had lawyers, didn't they, in this case?

Mr. Morse Johnson: This gentleman had a lawyer with whom he could consult.

And did consult.

And having consulted with their lawyer, the Chairman on the next page seems to -- seems to accept counsel.

“I have been advised by counsel that the privilege does apply, if I desire to use it.”

“Counsel may proceed.”

And I don't believe, Your Honor, that this Court could hold that this witness under those circumstances, particularly since he said it's my opinion as distinguished from the Commission's opinion, had overruled his assertion and found at a contumacious invocation.

Justice Hugo L. Black: Did all have met a lawyer?

Mr. Morse Johnson: Appellants Raley and Stern had a lawyer, Mr. Justice Black.

Appellant Brown was without counsel.

I should like to call the Court's attention to what I consider a very important element in this case which -- which is as relevant to, particularly to Mr. -- appellant, Stern's refusal to answer the question, the point where -- where you live, the question as to where he lives.

This Court will note that the mandate to the Commission required or -- or authorized the -- the Commission and this is on page 5 of my brief.

“To maintain a liaison with any agency of the federal state or local governments in devising and promoting means of disclosing those persons in groups who seek to alter or destroy the Government of this State or of the United States by forced filings, intimidations, sabotage or threats of the same.

I think this -- Court's attention should be called to the fact that throughout these hearings, these witnesses, and each of them were asked many questions about men, their associations with men, their friendship with men who were then under indictment under the Smith Act in federal court who had been convicted of -- of a violation of the Smiths Act.

But more importantly, in this particular instance in which Mr. Stern refused to answer the question as to where he lived, Frank Hashmall was later alleged to have been at his residence.

Frank Hashmall subsequent to these hearings was indicted under the Smith Act.

Subsequent to these hearings, Frank Hashmall was indicted under the Smith Act.

And I submit to Your Honors that it -- it was very proper and very correct for -- for appellant, Stern, to be concerned about questions, about with whom he lived and where he lived and who lived with him, particularly given the fact that the -- it seems to be to the Commission's opinion that Mr. Frank Hashmall, who subsequent to these hearings, had -- was indicted under the Smith Act.

I feel that this -- this whole case and all of the issues that the case raises stand or indicate one thing.

Human experience, as I think Mr. Justice Frankfurter pointed out in the Ollman case has a tendency -- there was a tendency in human experience to abuse power.

And I think, Your Honors, that not only is there a tendency to abuse power, I think there's a tendency to abuse power in the same way.

The National Commission on Law Observance and Enforcement summarized the rather inglorious history of the Star Chamber and the High Commission, the ecclesiastical courts.

And pointed out that in those days, those -- those commissions in courts which did not operate like our judiciary does today exactly, were trying to do much the same things and have the same tendencies to do the things that this Commission had tried to do.

To not have a specific charge, because when you have a specific charge, it requires that the questions must be pertinent.

To be authorized to poke around into somebody's life and -- and into their activities in hopes that they might be able to find someway to condemn, to indict, to accuse, to expose an individual whose activities may have created a certain amount of hostility on the -- so far as the Commission.

And I suggest that the whole tenor and attitude and authority of this Commission stem back or generated to the very problems that -- out of this high Commission, out of this Star Chamber, out of the ecclesiastical courts hail specifically, the privilege against self-incrimination.

But the operations of those -- of those courts were much the same as legislative investigating commissions can be if they're not required to -- to take into account pertinence, if there isn't a specific matter under inquiry so that he witness can determine whether or not the -- the Commission has the authority to ask the question.

And therefore I submit to Your Honor that these convictions should not be allowed to -- to stand, they violate the Due Process Clause of the Fourteenth Amendment, and I urge their reverse.

Justice Felix Frankfurter: Just as a matter of curiosity beyond secrets, is this committee or committee commission, commission committee, whatever it is --

Mr. Morse Johnson: Commission.

Justice Felix Frankfurter: -- still alive?

Mr. Morse Johnson: No, it's no longer alive Your Honor.

Chief Justice Earl Warren: Mr. Johnson before you sit down, I -- I would like to express appreciation of the Court to you for your assumption of this burden in this case.

It's an unpopular one, the unpopular clauses that lawyers ordinarily do not seek to -- to undertake.

And the fact that you've been willing to undertake it by assignment of the Court without compensation to yourself with all the burdens that go -- go with it, entitles you to the appreciation of this Court, and I thank you.

Mr. Morse Johnson: I'm deeply honored, Your Honor.

Chief Justice Earl Warren: And gentlemen representing the -- the State of -- of Ohio, we -- we thank you for you very earnest presentation and representation of the interest of your State.