PITTSBURGH PLATE GLASS CO. v. U.S.
Legal provision: Federal Rules of Criminal Procedure (or relevant rules of a circuit court)
Argument of Leland Hazard
Chief Justice Earl Warren: Number 489, Pittsburgh Plate Glass Company, Petitioner, versus United States of America.
Mr. Hazard, you may proceed.
Mr. Leland Hazard: Mr. Chief Justice and may it please the Court.
This is an antitrust case in which the petitioner, Pittsburgh Plate Glass Company, and six other defendants and two individuals were convicted of a price-fixing conspiracy.
The conviction was sustained in the Court of Appeals for the Fourth Circuit and petition for writ of certiorari was limited to the -- granted and limited to the question whether a grand jury testimony may be a prior statement within the meaning of Jencks versus United States.
I'll state just enough of the facts to eliminate that issue.
A trade association known as the Mirror Manufacturers Association of which Pittsburgh Plate Glass Company, if I may, I'll refer to that company as PPG hereafter, PPG was not a member of the trade association.
It held its 1954 annual meeting at Asheville, North Carolina.
A representative of PPG, W. A. Gordon, a manager of Plate Glass Sales, the only defendant -- individual defendant who was acquitted in the case, was present at this association meeting for the purpose of cultivating customers for polished plate glass.
Mirrors are made, as I am sure the Court knows, by the silvering of one side of a certain quality of plate glass.
Now, another name, Jonas, a name which will loom -- does loom large in the issue before us.
The Government's principal witness, Jonas was the President of one of the larger mirror manufactures, not indicted in the case.
Jonas was not present at Asheville.
There was concern there among the mirror manufactures present in Asheville about a shortage of plate glass, a shortage which was occurring particularly at the time when the market, which had been quite bad for mirrors, was looking up.
And, there was discussion at Asheville among some of the mirror manufactures about an increase in price.
Some of them made a telephone call and a joint call to Jonas who was not there and reported to him the discussion about the price of -- of plate glass mirrors.
Jonas expressed disbelief.
There had been a price war.
It was not the best feeling, apparently, in some quarters.
And, Jonas said he'd liked to talk to Gordon.
And Gordon was requested to -- to call Jonas by some of those who had first called Jonas, and Gordon did.
The only testimony we have on what was said in that telephone conversation between Gordon and Jonas is the testimony of Jonas.
He said, first, that he -- Jonas was not much in favor of raising my prices at that time, but he asked Gordon if there was anything to this discussion and Gordon said he had heard, in some of the rooms, some conversation about price.
We must look again to the uncorroborated testimony of Jonas as to this portion of the record.
Jonas said in his testimony that Gordon might have said, just like anybody would say, “You ought to be getting more for the product than we were getting for it.”
Now, Jonas testified that the alleged conspiracy could not have been effectuated without Jonas' participation.
And, he, himself, confessed -- conspirator claimed for himself indispensability.
The Asheville meeting ended at the end of the third day and, on the next day following, there was a meeting at a place called the “Bluffs,” an inn on Blue Ridge Parkway.
And, those present at this meeting were Messer, one of the defendants, Buchan, representing one of the corporate defendants, Stroupe, representing one of the corporate defendants, and Jonas who had not been present at Asheville but did go to the meeting at the Bluffs.
No one representing PPG was present at the meeting at the Bluffs.
Jonas was the only witness who testified that an agreement was reached at the Bluffs.
Other witnesses testified that the meeting was held but it was Jonas, and only Jonas, who testified that an agreement was reached there to increase the price to 78% off list.
This meeting at the Bluffs occurred on a Thursday.
And, on Friday, six companies announced a price change to 78 off list.
On the next day, one company followed, and then, on the following Monday, PPG announced from its High Point Warehouse, which had not been represented at Asheville, a price change to that same figure.
Jonas testified that he called Gordon in Pittsburgh on Friday, the day following the meeting at the Bluffs, and, not reaching Gordon, that he gave to Prichard, an associate of Gordon's, the message of the Bluffs meeting.
Jonas testified that, again, on the following Monday, he called Prichard and asked Prichard if had given Gordon the message that Jonas had given to Prichard of the meeting about the Bluffs, and Jonas testified that Prichard said that he had.
This was categorically denied by Prichard.
He took the stand and testified that, although Jonas frequently called PPG, PPG was Jonas' supplier of plate glass, about shipments of glass, that Jonas had never reported to Prichard or spoken to Prichard about the meeting at the Bluffs or about the alleged conspiracy.
I -- these are the facts.
I come now to the question whether a record of grand jury testimony, having been kept, the transcript of that testimony constitutes a prior statement of the trial witness, subject to the standards of Jencks.
The Government makes a candid concession which, I think, justifies the notice of the Court.
It appears at page 30 of the brief and, while the Court is turning to that, I need mention only that Jencks holds that there's no need for a prior showing of conflict, that it's sufficient if the prior statement relates to the testimony of the witness, that only the defendant may inspect, that is, that inspection by the defendant through his counsel was the only adequate inspection, that inspection in camera is disapproved, and that executive privilege in that case, in the Jencks case, was no bar to the inspection.
Now, the Government says, on page 30, at the bottom of the page, opposite of Numeral 1, “there is no need to deny that many of the considerations which led this Court in Jencks to order production of the informer's statements also tend to support petitioner's claim that they are entitled to equally free access to a witness prior grand jury testimony, but there is here present an important countervailing consideration which was absent in Jencks, the long-established policy that maintains the secrecy of the grand jury proceeding in the federal courts, citing United States against Procter and Gamble.”
Well, I need only mention that, in Procter and Gamble, no witness had taken the stand.
I -- I do need to mention that it was in that decision in which this Court, not reaching the point that we have before us, noted that use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility, and the like, that these would be cases of particularized need where the secrecy of the grand jury proceeding is lifted discretely and limitedly.
The Government relies on hailing, may I say, after the concession, almost exclusively, on one of the foundations for the policy of grand jury secrecy mentioned in Procter and Gamble and else where, that is, the policy to encourage by the rule of secrecy free disclosures by persons who have information with respect to the commission of -- commission of crimes.
The Government argues that the grand jury witnesses might not testify fully if they did not have the assurance of secrecy.
Now, may it please the Court, no grand jury witness ever had such an assurance or could have.
The witness knows that the Government may call him at the trial and, using the grand jury transcript, make him testify to that which he testified to at the grand jury.
The witness knows that his trial testimony will not be limited to what he may wish to testify to there, regardless of what he said before the grand jury.
And, if the Government could give such an assurance, perjury would be encouraged.
If the trial testimony is consistent with the grand jury testimony, then disclosure occurs.
The secrecy has been destroyed by the act of the Government in calling the witness and, if the trial testimony is not consistent with the grand jury testimony, then that is precisely the particularize need which entitles the defense to the examination of that record by counsel.
If the Government wishes to assure witnesses that there grand jury testimony will never be disclosed, the Government has a method for that.
It is the Government which decides whether or not to keep the record.
No law requires the taking of a transcript of a grand jury proceeding.
But, the Government, having once elected to take that record, must then make it available in a particularized need case for use on cross-examination.
If the Government wishes to protect that witness under the rule of secrecy, then it need only refrain from taking the record.
Justice John M. Harlan: Does your position go so far as to say that, in every case where the Government has a grand jury proceeding and calls a witness to testify, that the defendants in an antitrust case should be entitled to grand jury minutes?
Mr. Leland Hazard: If the --
Justice John M. Harlan: And, it would, I suppose, wouldn't it?
Mr. Leland Hazard: If the witness testifies at the trial, that his testimony there covered the same subject matter --
Justice John M. Harlan: Yes.
Mr. Leland Hazard: As -- at the grand jury, then my --
Justice John M. Harlan: In other words, you read the statute and read -- certainly, the statute is not as --
Mr. Leland Hazard: I read Jencks --
Justice John M. Harlan: As doing away with the traditional rule of secrecy in the grand jury minutes to this extent.
Mr. Leland Hazard: I think that the statute does not purport to bear on the case we have here, but I read Jencks to mean that when the Government has called a witness and record shows he testified that he had testified on the same subject matter at the trial.
Justice Felix Frankfurter: Is there anything said in Jencks about grand jury minutes?
Mr. Leland Hazard: No.
Justice Felix Frankfurter: In this reference?
Mr. Leland Hazard: No, sir, no.
Justice Felix Frankfurter: Then, why do you think --
Mr. Leland Hazard: No, I think not.
Justice Felix Frankfurter: -- Jencks is dealing with grand jury.
Mr. Leland Hazard: No, sir, I think not.
Justice Felix Frankfurter: Then, why do you -- then, why do read Jencks as dealing with grand jury?
Mr. Leland Hazard: Because Jencks establishes standards which have ends of justice standards mentioned in both --
Justice Felix Frankfurter: Yes, but I am always in the federal court that stood on different basis, from the beginning of time down to date --
Mr. Leland Hazard: I think --
Justice Felix Frankfurter: It's on this day.
Mr. Leland Hazard: I think that is what is before this Court.
Justice Felix Frankfurter: Well, I understand that.
I -- that's why I came down here today.
I was maybe leaving room for your argument.
Mr. Leland Hazard: I have -- I have examined the reasons for grand jury secrecy enunciated by this Court in several cases, as late as Procter and Gamble, and I submit, Mr. Justice Frankfurter, that those foundations well stated out there do not include this case.
Justice Felix Frankfurter: Take Socony.
You couldn't do with reference to any other refreshment what was sanctioned by this Court in Socony, but --
Mr. Leland Hazard: Well, that was the case which was --
Justice Felix Frankfurter: You couldn't --
Mr. Leland Hazard: -- confined --
Justice Felix Frankfurter: You couldn't, could you?
Mr. Leland Hazard: Entirely to refreshments.
Justice Felix Frankfurter: I know, but you couldn't do that --
Mr. Leland Hazard: And --
Justice Felix Frankfurter: As to non-grand jury refreshments, could you?
Mr. Leland Hazard: And this Court held in that case that it had to -- the refreshment had to do with menutia.
Justice Felix Frankfurter: I know, but you couldn't -- in that, you couldn't do, you couldn't refresh, the hundreds of refreshments that were made in that case through any other aid except grand jury without showing it to the other side, could you?
Mr. Leland Hazard: I think that's right.
If the Court please, may I reserve the remainder of my time?
Chief Justice Earl Warren: You may, you may.
Justice John M. Harlan: Could I ask you just one question?
Mr. Leland Hazard: Yes, you could.
Justice John M. Harlan: As I understand it, Mr. Hazard.
You don't stand on the statute, is that right?
Mr. Leland Hazard: That's right.
Justice John M. Harlan: You stand on Jencks?
Mr. Leland Hazard: That's right.
I think we would have been here, regardless of Jencks, on the same fundamental of what is a fair trial.
Chief Justice Earl Warren: Mr. Elman.
Argument of Philip Elman
Mr. Philip Elman: Mr. Chief Justice and may it please the Court.
If I may answer Mr. Justice Harlan's question, the reason why the petitioners do not stand on the Jencks statute is clear from the terms of the statute, as well as the legislative history.
The statute refers to statements made to an agent of the Government.
It's perfectly clear that all the legislators made the courts recognize that a grand jury is not an agent of the Government and, for that reason, the petitioners argue that the statute is irrelevant.
We do not believe the statute is irrelevant, but we do not rely on it as the source for our position.
If I may begin by stating what we believe to be the issue presented for decision by the Court, the only issue that's presented by the record in this case, the only issue that was tendered to Judge Paul who tried the case, the only issue which he decided, the only issue that was considered and decided by the Court of Appeals is this.
Whether, in a criminal case, after a witness for the Government has concluded his direct examination, and it appears that that witness has testified before the grand jury on the same general subject matter, whether, for that reason, and for that reason alone, the defendant is entitled as a matter of right, and not as a matter addressed to the discretion of the trial court but as a matter of law and as a matter of right, to delivery of the grand jury transcript of that witness' testimony directly to the defendant without any prior inspection or examination of any kind by the judge.
And, wether he's entitled to all of the testimony given by that witness, rather than to any particular selected portions indicated by the defendant.
That was the motion that was made by the defense counsel in this case.
It appears in the record, pages 263 and 264.
Mr. Jonas was an important witness for the Government.
He was characterized by the Court of Appeals as the principal witness for the prosecution, but it is not fair to say that he was the only important or principal witness for the Government.
The Government case here was presented on a basis of testimony given by officials, employees of the defendant corporations.
And, their testimony, as I hope I shall have an opportunity to demonstrate, corroborated in every important particular in Mr. Jonas' testimony, but Mr. Jonas was, as I say, an important, if not perhaps the most important, of the Government witnesses.
He had given testimony in expressed terms as to the formation of a price-fixing conspiracy and as to the existence of an agreement.
The other witnesses, while they had presented testimony as to the meetings, as to the discussions, as to the price, as to the participation of the defendants, as to the issuance of identical letters by them to their customers as to the prices, they had not used the word “agreement”.
And, Mr. Jonas had and, for that reason, as I say, he was an -- he was a very -- he was a key witness.
And, on -- on page 263, after he had concluded the direct examination he was asked by -- on cross-examination, whether he had appeared before the grand jury and given testimony on the same general subject matter, he said, “Yes, three times.”
Top of page 264, Mr. Humrickhouse, who was trial counsel for Pittsburgh Plate Glass, “Now, Your Honor, I move for the formal production of the grand jury transcript for this witness' testimony.”
“The motion is denied.”
That is on Mr. Jonas.
Justice Felix Frankfurter: Was that motion --
Mr. Philip Elman: Now --
Justice Felix Frankfurter: -- was that motion renewed later in any qualified form?
Mr. Philip Elman: It was not.
Now, the basis for that motion, the groundwork for it had been laid a few minutes earlier in a colloquy between court and counsel that begins at the bottom of page 258 of the record.
There was a discussion as to the extent to which the defendant should receive certain government papers.
And Mr. Humrickhouse, at the bottom of page 258, said, “Your Honor, we would like to call Mr. Jonas in the absence of the jury and ask him two or three questions going into the question of whether or not he testified before the grand jury.”
The Court, “What do you want to ask him?”
“I want to ask him did he testify before the grand jury in Roanoke in December of 1956 and January -- February or March of 1957, how many times did he testify before the grand jury, and so on.”
And, the Court, this is -- this is in the middle of page 259, Judge Paul says “I thought -- exactly what I thought you were going to do, move for the production of the grand jury minutes, and you are not going to get them.”
Mr. Humrickhouse, “We want to make the record.”
And, the Court goes on and -- and says that if they could get Mr. Jonas' testimony here, “You can -- I'm reading now from the bottom of the page, “You can do that for each witness and get a complete transcript of the testimony before the grand jury, and that is not permissible.”
Now, the starting point in this case is a proposition upon which the petitioners and the Government are in complete accord.
There is not disagreement that the matter here is governed here by Rule 6 (e) of the Federal Rules of Criminal Procedure promulgated by this Court in 1946, after submission to Congress.
It is also common ground between us that, prior to June 3, 1957, when this Court delivered the decision in the Jencks case, it is absolutely clear that no court had ever decided or even seriously suggested that a motion of this sort for automatic delivery to the defense of the grand jury testimony given by a government witness should be granted simply on the ground that the witness had testified before the grand jury on the same subject matter.
And, for that reason, that there might possibly be some prior inconsistencies which could be used for purposes of impeachment.
Prior to the Jencks decision, it was the law, as clear as any proposition has ever been the law, that the principle of secrecy of grand jury proceedings in this regard was go -- was controlling and that the defendant could not lift that secrecy for that purpose.
And, the argument which is made here today is that the Jencks decision changed that and we -- the Government's position, in response, can be summarized very briefly.
We think that the Jencks decision does not deal with grand jury testimony.
We think that when Congress, shortly after the Jencks decision, dealt with this problem, it -- evidence to recognition on both sides, both the proponents of a broad disclosure rule and the proponents of a narrow disclosure rule, were united in their view that the Jencks case had -- did not deal with grand jury transcripts.
Those who opposed the legislation or argue that there was no reason for it because Jencks didn't deal with grand jury transcripts and that the fears as to the abuse and the lengths to which the decision might be applied were grounders.
Those who argued for the legislation in Congress pointed to the Rosenberg case which, incidentally, was the case immediately be -- argued before this one.
The Rosenburg decision in the Third Circuit, in -- late in June of 1957, within a few weeks after this Court's decision in Jencks, the Third Circuit, in a short per curiam, had held that grand jury minutes, as well as the statements of the witness Meyer and Dirks in the preceding case should have been turned over to the defense.
And, that was pointed to as a horrible example of lower court misconstruction of the Jencks case which ne -- which called congressional delimitation of the scope of Jencks.
So that, it's clear from the legislative history that Congress understood that the Jencks decision did not extend to the production of grand jury minutes.
It's perfectly clear that that was the reason why no -- nothing was included in the statute to deal with it and, if the petitioners are right in their contention that they are entitled to this automatic delivery without judicial inspection, without any sort of screening by the judge in the elimination of irrelevant matter, the elimination of matter referring to innocent third persons, matter containing questions asked by the grand jurors, and so on, they just get it all intact, you will have the anomalous result.
The grand jury minutes which have always been regarded is entitled to the highest degree of protection from disclosure will be in -- will have less protection than statements made to the F.B.I.
Justice William O. Douglas: Mr. Elman, these grand -- the transcript of the grand jury proceedings is available to the lawyers for the Government, isn't it?
Mr. Philip Elman: Yes, sir, certainly, and it's available to the Government because Rule 6 (e), in its first sentence, specifically said that they shall be used by Government.
This Court, in the rule, has affirmatively provided that the -- that this -- that the attorneys for the Government, for the use in the performance of their duties, shall have the right to use the grand jury minutes.
Now, that is an exception to the rule of secrecy explicitly provided by the Court in its rules and the reason, of course, is --
Justice William O. Douglas: Wouldn't the Act be the same by the Court and Congress?
Mr. Philip Elman: By the Court and the Congress.
And -- and while -- while I'm on that point, Mr. Justice, let me say that I think that the fact that we are dealing here with a rule is, to our minds, of great importance.
This Court, yesterday, in the Isthmian case, was also dealing with a rule.
That happened to be an admiralty rule.
And, the -- it would had -- it was argued to the Court there that the rule was archaic, that it was inflexible, that perhaps it should be changed.
And, the Court recognized that, perhaps, that might be so, but the Court said -- the Court rejected that argument.
It said if the rule is to be changed, it ought to be changed either by legislation or by an amendment to the rule, and the change should not be made in the decisional process.
And the -- and the Court pointed out that if the change were made in the context of an amendment to the rule, it would be opportunity for hearings, for receiving data, and perhaps, more important than anything else, for receiving the recommendations of the judicial conference.
There are arguments that are being made here as if there was -- this were a de novo proposition that if we should reexamine for the first time the question whether secrecy of the grand jury is or is not a good thing, whether it hurts --
Justice Potter Stewart: There's a question of -- your opposing counsel makes a point that the secrecy of the grand jury about which we've read a great deal and many people had read a great deal, may just me a kind of chivalrous anyway, that it doesn't amount to much.
He says, “First of all, you've been protected entirely simply by not having a transcript made.”
And, that's completely within the control of the Government, isn't that correct?
Secondly, he says “if you do go to trial after a grand jury indictment, since the transcript, if the transcript is available to the Government, then anything that happened in the grand jury will or may be made public.
First of all, if the witness testifies, as he did, before the grand jury, then the beans are spilled.
If he testifies in some other way, then the grand jury transcript can be used to impeach him, and then, the beans are spilled.”
Now, what do you say to that argument?
Mr. Philip Elman: Well, my first response --
Justice Potter Stewart: That may -- that may be two or three.
Mr. Philip Elman: My first response, Mr. Justice Stewart, is that these aren't new arguments.
These arguments have been made before.
They were -- they've been made by eminent scholars.
Professor Wigmore is, perhaps, the most eminent proponent of that view.
If Professor Wigmore is right, then this Court's decision in the Socony-Vacuum case is wrong.
If he is right, then this Court's decision in the Johnson case is wrong.
If he is right, the decision in Procter and Gamble case is wrong because, in every one of these cases, the grand jury's function had terminated.
If the secrecy of the grand jury proceedings is a temporary provisional thing, as Professor Wigmore argues, then there was certainly no reason for it to be continued.
But, if I may go, it isn't --
Justice Potter Stewart: I understand --
Mr. Philip Elman: Excuse me.
Justice Potter Stewart: I understand that you realize that.
Do you concede that those arguments do have some validity as an objection to the trial court's decision?
Mr. Philip Elman: My -- my argument on that point is this.
I -- I am very conscious of the fact that this problem is not a new one.
It's a problem that has existed, certainly, ever since the institution of the grand jury, which goes back to before the Norman Conquest.
I'm very conscious of the fact that this Court has addressed itself many times to the broad proposition of the secrecy of the grand jury proceedings and whether, as a matter of policy and logic, it's desirable to continue it.
And, the Court has always rejected any attempt to violate the principle.
In the -- in the Johnson case, there's reference made to the indispensible secrecy of the grand jury.
In Mr. Justice Black's opinion, in the Costello case, he refers to the grand jury as part of our federal constitutional system.
It's a -- it was put -- it's explicitly referred to in the Fifth Amendment as a -- as the initial step in a criminal prosecution, and it's there not only for the benefit of the Government, but it's there for the benefit of the accused because our history is full of instances where the independence of the grand jury has been an obstacle, a barrier against unfounded prosecution.
Now, I'm conscious of the fact that our greatest judges, judges with the most intimate experience with this problem, such as Judge Augustus Hand, the Judge Learned Hand, whenever they've talked about the grand jury, they've expressed horror at the thought that -- one might be able to inspect grand jury minutes freely.
Now, it's against that background of centuries of history that we consider these contentions that are being made.
Now, if -- as a matter of abstract theory, if we were sitting in a room where no one had ever heard of the grand jury and someone said “let's establish this and organize an institution called the grand jury,” what about the matter of secrecy?
I -- I agree that there are weighty arguments to be made on both sides of the proposition, but those arguments have been -- had been weighed.
They have been resolved, and Rule 6 (e) has resolved them.
And, Rule 6 (e) didn't me -- introduce anything new.
As I say, it's -- this is old law.
And, certainly, it's surprising to us to find that, in 1959, it's argued -- this point is being argued to Your Honors as if it were a new one and that the Jencks case, somehow, had wiped the slate entirely clean and that we start form scratch.
Justice Felix Frankfurter: Mr. --
Mr. Philip Elman: Now --
Justice Felix Frankfurter: -- Elman, I am one member of the Court.
I hope you don't rest merely on the fact that these are not new arguments.
They might be --
Mr. Philip Elman: Well --
Justice Felix Frankfurter: Good even though old.
Mr. Philip Elman: I -- I hasten to embrace your suggestion.
Of course, there -- of course, the history has -- is relevant here not simply as a matter of history because it show -- but it's relevant here to show that these arguments which -- have been weighed and they've been rejected.
And, the reason they have been rejected is that it's been considered essential to the functioning of a grand jury as an institution that it be able to operate without the -- without publicity, that the jurors, as well as the witnesses, be free from any possible restraints or intimidation or inhibitions.
We know that anti -- in the antitrust cases, particularly, as Mr. Justice Douglas pointed out last year in the Procter and Gamble case, the witness is before the grand jury may be employees of the defendants, they may be customers, they may be suppliers, they may be other people to whom it's important to maintain good friendly economic relations.
Justice William J. Brennan: That doesn't quite apply where the Government needs the witness.
We know now who the witness is and the question --
Mr. Philip Elman: Well --
Justice William J. Brennan: -- here is whether that witness', and only that witness', testimony before the grand jury (Inaudible)
Mr. Philip Elman: Well, the suggestion is that, once the witness testifies at the trial, his identity has been disclosed.
So, it's all out in the public and either he has -- either his testimony is the same as it was before the grand jury, in which case, there's nothing new, or else, it's different, in which case, he must have testified falsely one place or the other.
Now, that, I say with all respect to Professor Wigmore --
Justice William J. Brennan: You mean, falsely --
Mr. Philip Elman: -- is false -- I mean --
Justice William J. Brennan: -- you mean, not necessarily consciously precariously but --
Mr. Philip Elman: Well, that there may be, let's use a neutral word like “discrepancies” or “inconsistencies.”
Now, that, I say with -- with all respect to the proponents of the view, creates a false dichotomy.
It assumes -- it assumes a -- a notion.
It assumes that the grand jury proceedings are something different from what they actually are.
Now, the -- the basic characteristic of a grand jury proceeding is that it is not -- it's not a proceeding in which a judge presides.
It's a proceeding -- proceeding which is informal in nature.
It's a -- there are laymen, 23 jurors, drawn from the community.
It's an informal proceeding.
It's not -- it's not an adjudicatory proceeding.
It doesn't deal with the question of guilt or innocence.
It's an inquisitorial investigative body.
And -- and it's -- and those who appeared before grand juries, those who are familiar with grand juries -- jury operations have always remarked on the importance of preserving the informal, free, and easy atmosphere of the grand jury in which witnesses are not bound by the technical rules of evidence.
They may speculate.
They may -- they may testify as to hearsay.
They may test -- they may present rumors, anything that will give the grand jury leads in its investigation, so that, you can't compare the testimony of the witness at the trial --
Justice William J. Brennan: Well, this is a different argument and, if I may say so, I think a much better one than any notion of the identity of the witnesses has to be this one, that there is a difference in the type of testimony.
Mr. Philip Elman: Oh, there --
Justice William J. Brennan: That makes a little more sense to me than the other.
Mr. Philip Elman: Well, I don't think that I'll be able to present every argument that can be made in support of secrecy within the time available, but I do think that all of these arguments that had been made against secrecy have been considered by the courts.
Justice Felix Frankfurter: May I suggest that unless --
Mr. Philip Elman: And have been rejected.
Justice Felix Frankfurter: May I suggest that, unless you were a practitioner in New York over a good many years and had seen the two systems in the operation, grand jury minutes allowed in the state courts are not allowed in the federal courts, you couldn't present one of the most important arguments relevant to this subject matter.
That's why all the New York judges and the federal courts feel as strongly as they do about that matter.
Mr. Philip Elman: Of course another difference is that, in the federal judicial system, the grand jury is expressly provided for by the Bill of Rights.
It's part of our constitutional system for trying criminal cases.
That's not true in the states.
In many states, grand juries have either been abolished or is trial by information.
In some States, I believe, California is one of them, it's -- there is a statute that says that the defendant may get the grand jury transcript simply by paying for it.
In New York -- in New York, there's the -- New York adopted the arguments which were rejected by this Court in the Costello case.
In New York, defendant may challenge an indictment on the ground that there wasn't enough evidence before the grand jury to justify the indictment.
So, in New York, in order to permit a defendant to make that kind of an argument, they are very liberal in giving him access to the grand jury minutes.
And, I think that, to some extent, explains the liberality of the Second Circuit rule as to the inspection of grand jury minutes.
I think there's been an influence of the state practice in this respect.
Now, I would just like to point out, in that regard, that the Fourth Circuit in its opinion here, opinion by Chief Judge Sobeloff, did not deal with this problem in terms of absolutes.
Judge Sobeloff did not say that the defendant never gets an opportunity to inspect the grand jury minutes.
The -- the Court recognized that we're dealing here with two very important interests.
Interests that are of concern to both sides, to the Government, as well as to the accused.
The interest of a defendant in having a fair trial, the interest of a defendant in having fair opportunity for cross-examination, that's of concern to the Government, too, as well as the accused.
And, the interest of the -- and, the interest in preserving the integrity, the independence, the efficiency of the grand jury, well, that's not merely of concern to the Government.
That's of vital concern to defendants, to the accused, to have that kind of an institution and, because it's a question of balancing two principles, two interests, accommodating each as much as possible to the other, that Judge Swan in the Alper case, the leading case in the Second Circuit and Judge Sobeloff here said it's dangerous to lay down any fixed rules.
That, ultimately, it's -- it comes down to a matter of a sound judicial discretion that a trial judge is always under a duty to examine the grand jury minutes if he has any reason at all to suspect that the witness may be unreliable, that he may be untrustworthy, that he may be giving testimony which is at variance with what he testified elsewhere.
The trial judge is always under that obligation and he cannot escape it.
He -- the trial judge always has, in the courtroom, the prosecutor who has those grand mi -- who has seen the grand jury minutes.
And, if the Court so desires, it can call upon the prosecutor --
Justice William J. Brennan: Well, may I ask you, Mr. Elman --
Mr. Philip Elman: For assistance in that regard.
Justice William J. Brennan: I gather, this is a suggestion that there may be circumstances in which it would be appropriate to turn over the grand jury testimony of a witness to the defense for purposes --
Mr. Philip Elman: Certainly.
Justice William J. Brennan: -- of cross-examination.
Mr. Philip Elman: Certainly.
Justice William J. Brennan: I'm just interest -- how would you go about it?
Now, here, your suggestion is, I gather, that the motion was just shotgun, “give us the whole -- all of his testimony,” is that it?
Mr. Philip Elman: Well, as the court below characterizes, there's a motion for automatic delivery --
Justice William J. Brennan: Yes.
Mr. Philip Elman: -- on demand.
Justice William J. Brennan: Well, just to -- what form of motion should have been made?
Mr. Philip Elman: Well, the argument here is that Jonas' testimony as to the telephone calls of this man Prichard in Pittsburgh were crucial.
They link PPG to the conspiracy.
In our brief, we argue that was not a crucial part.
Justice William J. Brennan: Yes, but on that --
Mr. Philip Elman: And, the judge --
Justice William J. Brennan: Premise --
Mr. Philip Elman: -- the judge -- Judge Paul agreed with us on it, but passing that.
Assuming it was a crucial part -- portion of Jonas' testimony, we think it's significant in here that he wasn't cross-examined by the defense as to that.
There was no cross-examination whatsoever.
If there had been cross-examination, conceivably, Jonas might have been caught in some inconsistencies.
Going beyond that, supposed they have asked Jonas whether he had testified before the grand jury as to these telephone calls.
Suppose Jonas had said “well, I don't remember,” and they pursued that a little further and they found out that he was really very vague as to what his recollection had been six months earlier, or suppose they asked him if he -- his testimony before the grand jury as to this thing was exactly the same and he said “well, no.
Frankly, I don't think so.
I've -- I've checked my records lately and I find that I did make these calls but when I was before the grand jury, I testified otherwise.”
Now, if you had any basis at all, anything at all, you --
Justice William J. Brennan: Then you would expect defense counsel to pinpoint --
Mr. Philip Elman: Go to the Judge.
Justice William J. Brennan: To that particular portion of his grand jury testimony.
Mr. Philip Elman: Exactly what the Court was talking about last year in Procter and Gamble.
If there's a -- that there's a particularized need.
In Procter and Gambler, the Court said “we'll breach the secrecy if there's compelling necessity, but you have to make a showing.
You just can't say this man testified before the grand jury, that's enough.”
Now -- excuse me, my time is up.
Chief Justice Earl Warren: No.
You may finish that statement.
Mr. Philip Elman: Well --
Chief Justice Earl Warren: Briefly.
Mr. Philip Elman: We -- we believe that there -- if there are any circumstances which would afford any basis at all for an argument to the judge, “Please exercise your discretion.
Take a look at this grand jury minutes.
If you find anything at all that we can use as a basis for cross-examination of this witness, we think we ought to have them.”
I think that -- that's the way they go about it.
Now, the judge doesn't have to wait for that.
I think the judge, if he looks at this witness and he has a feeling that this man just isn't telling a very convincing story, or suppose Jonas's testimony was contradicted by another witness that the judge believed, the judge might say, “Well, I think, in my exercise of my responsibility here to preside over the trial and to protect the rights of the defendant, I think I ought to look at the in -- the grand jury minutes.”
Now, I think if this Court declares that it's his duty, he will do so.
Justice Felix Frankfurter: Before you sit down, Mr. Elman, just to reach the brief, our tune is whether the Government refers to the Douds, the case where the Second Circuit, which feels very strongly on this subject, reversed for failure to disclose the grand jury minutes in the Remington case.
Mr. Philip Elman: Yes, sir.
Justice Felix Frankfurter: Because, there, that was a charge of perjury and, there, the Court -- Judge Swan, I believe.
I don't remember.
Mr. Philip Elman: Yes.
That was Judge Swan.
Justice Felix Frankfurter: I think Judge Swan?
Mr. Philip Elman: Yes, it was.
Justice Felix Frankfurter: He said that perjury is something else began, that it is so vital where truth-telling or confidence that's in his present testimony may be derived from the fact that he told it previously makes it necessary to allow the grand jury minutes to be seen because they're not --
Mr. Philip Elman: Yes.
Justice Felix Frankfurter: They are not wounded in the Second Circuit about that.
That's in --
Mr. Philip Elman: Yes.
Justice Felix Frankfurter: They really couldn't --
Mr. Philip Elman: That's not only the Remington --
Justice Felix Frankfurter: Say they do open that.
Mr. Philip Elman: Not only the Remington case in the Second Circuit, but the Rose case in the Third Circuit.
May -- may I, excuse me, Mr. Chief Justice.
Chief Justice Earl Warren: Yes, yes you may.
Mr. Philip Elman: In the Herzog case in the Ninth Circuit, all hold that where it appears that the defendant has told a different story, not necessarily an inconsistent one but a different story, then the defendant does have the right to get the grand jury proceedings.
Justice Tom C. Clark: Is that case referred to in your brief, the Rose?
Mr. Philip Elman: The -- the Rose case is --
Justice Tom C. Clark: Yes.
Mr. Philip Elman: -- referred to, the Remington case is, the Herzog case is 226 F.2d 561.
I believe it's the --
Justice Felix Frankfurter: Do you mind repeating it?
Mr. Philip Elman: 226 F.2d 561, that's a Ninth Circuit case, and that is not the only instance in which the defendant may get the grand --
Justice Felix Frankfurter: Those are all the cases of reversals for failure to make accessible the grand jury minutes.
Mr. Philip Elman: No, I don't believe they are all reversals.
Justice Felix Frankfurter: The Rose case was.
Mr. Philip Elman: They were --
Justice Felix Frankfurter: The Rose --
Mr. Philip Elman: The Rose case was, but that the Herzog case was an affirmance but the Court of Appeals indicated that that was a proper --
Justice Felix Frankfurter: They had allowed it in that --
Mr. Philip Elman: Situation for --
Justice Felix Frankfurter: The trial court allowed it there.
Mr. Philip Elman: Yes and, of course, the defendant -- then, it may get the grand jury transcript where he's challenging the regularity of the proceeding --
Justice Felix Frankfurter: Yes.
Mr. Philip Elman: Before the grand jury.
If he says an unauthorized person was present, for example, there, he may get it --
Justice Felix Frankfurter: But, in the Johnson case, he indicated that he can't get the grand jury minutes just in order to invalidate or subvert the legality of the grand jury.
That was the Johnson case.
Mr. Philip Elman: That's right, but that turned on the nature of the matters --
Justice Felix Frankfurter: That he amended it.
Mr. Philip Elman: -- before the grand jury.
Thank you very much.
Chief Justice Earl Warren: Mr. Hazard.
Rebuttal of Leland Hazard
Mr. Leland Hazard: May it please the Court.
I should disclaim for the petitioner any intent to wipe the slate clean.
The foundations of the phrase says the grand jury secrecy are multiple and there is no intent here to shatter those foundations, for example, to prevent the escape of those who are about to be indicted with no attack on that foundation.
I'm -- I'm extracting these from Procter and Gamble, recently enunciated by this Court, and the only witness for it.
To ensure the utmost freedom to the grand jury in its deliberation, that is, you can't have cameras, and the newspapers, reporters in television in the grand jury room or anything else.
There is no attack on that foundation.
Justice Potter Stewart: Your point is that, in this context, secrecy has disappeared anyway, isn't it?
Mr. Leland Hazard: That is my point.
Justice Potter Stewart: Is it?
Mr. Leland Hazard: It's -- excuse me, Mr. Justice Stewart.
Justice Potter Stewart: I don't mean to interrupt, but I just want to be sure I understood you.
Mr. Leland Hazard: To prevent subornation of perjury or tampering with the witness who may testify before the grand jury and, later, appear at the trial.
There's no attack on that foundation.
To encourage free disclosures, I have discussed that.
It's only by osmosis that this case might be drawn into that, number 4.
And, the fifth reason, and the last one, enunciated by this Court in Procter and Gamble, to protect an innocent accused who is exonerated from disclosure of the fact that he was under.
In fact, there's no attack on that -- on that foundation.
Procter and Gamble was a case, a civil case first, it was the case in which the defense, knowing that a grand jury transcript was going to be used in preparing a bill in a civil case, sought to get the same material.
And, this Court held that it was a blanket approach and didn't allow it.
But, this is a particularized approach in this case.
This is pinpoint.
Here is a self-confessed conspirator, not indicted himself, his company not indicted, who testified that he was indispensable to the conspiracy.
That it couldn't have been effectuated without him.
And, he put the words in Gordon's mouth and he put the words in Prichard's mouth.
Now, it said here that he was not the only principal witness, but I heard no other name fall from the lips of my brother, nor --
Chief Justice Earl Warren: Mr. Hazard --
Mr. Leland Hazard: -- did I hear --
Chief Justice Earl Warren: Mr. Hazard, is your claim here any less general that in Procter and Gamble merely because you ask for the transcript of one witness where all you ask was, “Were you a witness?”
And he said “yes,” “then, we want the transcript.”
Mr. Leland Hazard: This --
Chief Justice Earl Warren: Now, if you could just as well do that for every witness and the sum of those requests would be exactly the same as in Procter and Gamble --
Mr. Leland Hazard: We do not --
Chief Justice Earl Warren: Wouldn't it?
Mr. Leland Hazard: We do not ask that, Mr. Chief Justice.
Only if the witness takes the stand and only --
Chief Justice Earl Warren: That's right.
Mr. Leland Hazard: If he testifies on the stand that he testified on the same subject matter before the grand jury.
Chief Justice Earl Warren: Yes, but you asked him no other questions, except, “Did you testify?”
Mr. Leland Hazard: Not “did you testify?”
“Did you testify on the same --
Chief Justice Earl Warren: Yes.
Mr. Leland Hazard: -- subject matter?”
Chief Justice Earl Warren: Yes, that's right.
Mr. Leland Hazard: And here, he testified that he did on that same subject matter, the price conspiracy.
Chief Justice Earl Warren: Is that right?
Mr. Leland Hazard: And it is for that reason.
Now, I submit, if the Court please, that although there is evidence -- laudable evidence of candor here, what the Government is really after is an advantage which, in a fair trial, it cannot have.
The Government wants the privilege of using that grand jury transcript to keep this witness on the stand in a -- in a channel which the Government takes.
And having used that transcript for that purpose, it then asks that this Court approve its refusal to withhold it from the defense.
Justice Charles E. Whittaker: Mr. --
Mr. Leland Hazard: That's what this case is about.
Justice Charles E. Whittaker: Mr. Hazard, may I ask you how you square your argument with Rule 6 of Criminal Rules?
Are you really saying that the judge, in denying the request which you say you have a right to make, I -- I think I understand you to say, as a matter of law, abuses his discretion when he refuses it?
Mr. Leland Hazard: I say that either he does not have the discretion under Rule 6 or he abuses it.
I don't care which it is.
Rule 6 gives a permission.
It does not contain a prohibition.
And, I say that the permission given in that rule was not validly exercised here by withholding the -- the transcript.
Justice Charles E. Whittaker: Well, is not the -- do you not consider the words “may be -- may -- that is a delivery may be made only when so directed by the Court as -- this first starts out saying “disclosure of matters occurring before the grand jury other than its deliberations,” etcetera, “may be made then only when so directed by the Court.”
You then say that gives the Court a discretion to do it?
Mr. Leland Hazard: I -- I -- well, otherwise, the jury or attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the -- by the Court.
This, I say, gives the Court a discretion.
There is one point, Mr. Justice Whittaker, that I -- I want to make clear in this connection.
That is, that there is a difference between production and use.
Our position is that once the witness has been put on the stand, once he has testified to the same subject matter as he testified to before the grand jury, then counsel for the defense must have access to the transcript.
Otherwise, the defendant is denied the right of counsel, unless his counsel can examine.
Now, having examined that it's entirely conceivable that the Government may bring many matters to the attention of the trial judge, the judge -- trial judge himself may, on his own motion, consider many matters which will be withheld but only after counsel for the accused has had the acces and has made the examination or the right to make the examination.
I would invite the attention of the Court, in closing, to what I believe the Government is after here.
It simply wishes to keep the grand jury testimony as its exclusive tactical weapon, for its own use, to trial.
Now, in a democracy, we allow the grand jury, a great body of inquisitorial powers, and this is necessary in the interest of discovering the evidences of crime.
But, to extend the inquisition into the courtroom by the devise of withholding that transcript from the defense which has been used for the prosecution, that goes too far.
That's our case.
Argument of H. Graham Morison
Chief Justice Earl Warren: Number 491, Galax Mirror Company, Incorporated, et al., Petitioners, versus United States of America.
Mr. Morison, you may proceed.
Mr. H. Graham Morison: Mr. Chief Justice and may it please the Court.
I represent the individual Defendant in this case, John Messer, Sr. and two corporations, the Mt. Airy Mirror Company, and the Galax Mirror Company of which Mr. Messer is a Corporate Officer.
The issues here are the same as in the case of Pittsburgh, which was heard at the end of the session yesterday.
Mr. Chief Justice, on yesterday, you asked counsel for Pittsburgh if the defendants contended that they would be entitled to grand jury testimony of all witnesses, and we'd like to clear that up so far as these defendants are concerned.
The answer, of course, is no.
In this case, however, as I will demonstrate, the facts were that there was one key witness.
He is so characterized by the Government, Jonas, and this man Jonas decimated the defendants by his testimony, one witness.
Justice William J. Brennan: Can you refer us in the record where it is, where the press con for his testimony was made on behalf of your client at the trial?
Mr. H. Graham Morison: Yes, Mr. Justice Brennan.
I might point out that there were 10 defendants in this case and, as a working rule of court and with the Court in Chambers, it was understood that an objection by any counsel for defense would be applicable to each of the others unless counsel should accept and show -- so notify the Court.
Now, as to whether Mr. Chief Justice, under other circumstances, it would --
Justice William J. Brennan: Well, excuse me.
Mr. H. Graham Morison: Yes?
Justice William J. Brennan: -- would mean that the request which was referred to yesterday is the same in question --
Mr. H. Graham Morison: Yes.
Justice William J. Brennan: On behalf of your client?
Mr. H. Graham Morison: Yes, sir, it is.
Justice William J. Brennan: Thank you.
Mr. H. Graham Morison: It is.
It was made on behalf of all defendants.
Mr. Chief Justice, as I was saying, of course, whether under other circumstances, in another fact situation, in another case, it would be appropriate for the trial jury -- trial judge to make a grand jury testimony made available to any number of witnesses would be 10 -- would depend, we believe, upon the particular facts in each situation.
But, as I pointed out here, 10 defendants requested the grand jury testimony only of Jonas, although there were numerous other Government witnesses who testified before the grand jury and who testified at trial, and no request was made for their testimony.
Justice Felix Frankfurter: Were those witnesses, the other nine witnesses for the Government, witnesses to matters of -- technical matters not dealing with the merits of the controversy?
Mr. H. Graham Morison: No, sir.
There -- there were certainly two witnesses for the Government.
Mr. Buchan and Mr. Stroupe, who testified as to the critical issues of fact of what occurred at this meeting at The Bluffs where the Government contends, there was an agreement.
But, I'd like to --
Chief Justice Earl Warren: Mr. Morison --
Mr. H. Graham Morison: Yes, sir.
Chief Justice Earl Warren: Pardon me.
Finish your answer.
Mr. H. Graham Morison: That's all right sir.
Chief Justice Earl Warren: I was just going to ask then if you contend here that your client was entitled to this statement -- this testimony as a matter of right or that the judge abused his discretion in this situation and not giving it to him.
Mr. H. Graham Morison: Mr. Chief Justice, we do not contend here that the standards that we seek -- think are appropriate, in any weight of this, the trial judge's discretion.
That is not contended.
We do not believe it involves any change of Rule 6 (e).
We do not believe that it involves the overruling of any case decided by this Court on this issue.
And, I'd like to develop that, if I could, Mr. Chief Justice.
Chief Justice Earl Warren: Yes, in your own time.
Mr. H. Graham Morison: Now, it is our contention, if it please the Court, that you cannot understand the sinuous of fundamentals in this case unless you look at the facts as it pertains to my client.
John Messer, a man of advanced years, a man of very positive and determinative personality who had been a vigorous price competitor, who completely controlled the price policies of his company, went to the Asheville meeting which was with the Mirror Manufacturer's Association and, quite in character, as we reveal from the testimony of others, I'll tell you later why John Messer didn't testify.
He announced to two members of the industry, "I, in view of the critical shortage of plate glass and the increased demand for mirrors, I'm going to raise my price."
He didn't say, "I want to raise it."
But, "I'm going to raise it."
And, quite understandably, from this man, that set off quite a discussion among the members of the industry at that meeting.
Subsequently, a man named Kenneth Hearn called Jonas who was not present at the Asheville meeting and told him what Messer had said.
And, we get the first evidence advice of bias of the witness Jonas on his reply.
The testimony is when he heard that on the telephone he said, "I wouldn't believe John Messer on anything."
The second evidence of bias is the witness is -- comes from the witness Buchan who said, "Jonas was bitter towards Messer because of the price war."
But the most dramatic evidence of this witness' bias against my man Messer occurred at the critical meeting at The Bluffs where Jonas precipitated a fight, a verbal duel with Messer that was so intense, one witness said, "I thought they were going to come to blows."
And, the second witness, that, "I thought Messer was going to have a stroke."
Now, what is the testimony?
Keep in mind this meeting.
There were only four people that are important that attended that meeting.
One was John Messer, the other was Grady Stroupe of Stroupe Mirror, the third was Ralph Buchan of Carolina Mirror, and the fourth was Messer.
Now, two of the witnesses, Buchan and Stroupe, are in agreement on what occurred.
Here's what they said, in essence.
They said, first, that when the meeting opened, Messer restated what he'd said at Ashville to one and all, "I'm going to raise my price to 78, an increase of about 10%."
At that point, Jonas jumped on it and, in effect, doubted his veracity.
And, this terrible, as they described it in the record, hassle between the two men occurred.
Then, after that had subsided, there was a discussion of the price situation.
And next, finally, when Messer, still thoroughly mad, he said, "All right, you're going to all have to get out a letter on the same day," and what happened then?
Both Buchan and Stroupe said as follows.
Stroupe said, "I didn't come here for that purpose and I won't do it."
Buchan said, "I am not authorized to make any sort of an arrangement.
I'm here only as an observer."
He was a subordinate of Carolina.
He was sent there by Ed Gardner, the President of the company.
And, they both agree that, in -- at that posture of the events at The Bluff, Messer said, "You can all go to hell.
I'm going to 78 and the rest of you can do what you want."
Now, the testimony is that Buchan reported that last and significant fact to his superior, Gardner.
And, Gardner had to deal with that and evaluate it as to what he would do.
It's significant that neither Buchan nor Stroupe testified that there was an agreement, but Jonas did.
Now, I want to talk about John Messer again.
You've got to understand that -- I believe the Court have got to understand this man.
John Messer was a man of advanced years, I have stated he was a very positive and assertive man, a tough, vigorous price competitor.
He was examined extensively by Dr. David C. Wilson of the University of Virginia Hospital, a specialist of neurology and psychiatry.
Dr. Wilson testified that Messer had advanced arteriosclerosis, hardening of the arteries in -- particularly in the brain, that he'd suffered several minor strokes, and that he'd suffered, as is usual in the -- such cases, a profound loss of memory, and that his recollection of the events -- critical events in this case at Ashville and at The Bluffs were vague and unreliable.
Now, obviously, he was not put on the stand, and I don't think I take liberties with the record, if I suggest to this Court, that he was of no help to his counsel in giving us the elemental facts of what occurred in Ashville and at The Bluffs.
That had to come from his competitors, including this man, Jonas.
Now, certainly, I think it is abundantly clear, this man Jonas, described by the Government as a principal and key witness, he was.
His bias towards Messer, I have just described, stands out in the record.
This man Jonas, I said, decimated our man.
He glibly supplied every missing detail from the meeting at The Bluffs necessary to support the Government's case against Messer.
Now, let me tell you how he did that.
He -- Jonas testified Messer didn't say, "I'm going to raise my price."
He said, "I want to raise it."
When Jonas testified that when he got the assurance of the others that he agreed that he had raised his price, he said, "We just agreed that 78 was about fair and we went along," that they let Messer dictate, sending out a letter.
And, he significantly did not remember that, at the end of the meeting, this peppery language of Messer saying, "You can all go to hell.
I'm going to 78 and the rest of you do what you want to."
He didn't remember that.
Now, Buchan testified that he recalled no arrangements made at that meeting at The Bluffs for calling other participants, the other mirror companies not represented, but Jonas did.
He tied it all together.
Now, I want to talk about -- I'm talking again about the critical effect of Jonas, this one man, this one witness, on the defense, and to show you the posture in which we find Jonas.
Neither Jonas, his company, the Lenoir Mirror Company, nor another mirror company, a co-defendant not named as a defendant, the Slane Company which owned the big interest in his company, were indicted.
Suspect one, second in our dilemma of defense when we sought to interview Jonas, Government counsel instructed him not to talk to Defense counsel.
And, third, the record shows Jonas testified not once, as most of the others did, but three times before the grand jury and was interviewed extensively by Government counsel, each and every time.
Now, keep in mind, there were no signed statements that Jonas had given to the Government.
The Jencks statute discovery that was exceeded to us were notes and memorandums of Government counsel preparing for trial to examine Jonas.
We knew that the only way in which you could attack the credibility of this key witness who would lie in that grand jury testimony.
And, it's not enough to say you could have cross-examined.
Every trial lawyer knows that when you get a sense and instinct, don't do it if you don't have the foundation and let him, before the jury, say, "I've told the truth before the grand jury and I've told it here."
And, at that point, 10 defendants, each for different reasons, sought from the trial judge the testimony of Jonas who stated that his testimony before the grand jury covered the same batter as he testified to at the trial.
And, the Court -- the District Court summarily denied it because he said, "You've got to make a showing of prior inconsistency before I'll even listen to it."
Now, here was Jonas, the critical witness.
Certainly, in the phrase of this Court, it was one of particularized need that we were faced with."
And, the only policy against exceeding to the disclosure we sought is the traditional one of secrecy.
Now, we believe, if it please the Court, that the philosophy expressed in Jencks and in the Andolscheck case in the Second Circuit by Judge Hand is the correct philosophy that should have been applicable under these facts.
We interpret that philosophy to be that fullest access to documents and material reasonably necessary for defense be given in a case of this kind.
We believe that it is an -- a philosophy of evenhanded justice and a fair play in a criminal case.
But we point out that if the public interest requires that such a strict rule of secrecy of -- be cloaked around the grand jury, then we say that the Government should not be permitted to use a witness who made such damaging inroads upon our defense and then to deny us the means of impeaching that witness.
Justice Felix Frankfurter: May I ask you whether -- at what stage was this request for the grand jury minutes?
That is, at what stage of the cross-examination was it?
Mr. H. Graham Morison: After the witness Jonas had testified in chief for the Government, Mr. Justice.
Justice Felix Frankfurter: Right after that?
Mr. H. Graham Morison: Yes, sir.
Justice Felix Frankfurter: Before any cross-examination?
Mr. H. Graham Morison: Yes, sir.
Justice Felix Frankfurter: So that, there was -- if I were to read the direct and cross, I would not find that, on the cross, he's already been hemming and hawing and shown to a visitation of some resolving.
Generally showed himself to be a shifty and not fully reliable witness.
That is not his case, is it?
Mr. H. Graham Morison: That is not his case.
This was a --
Justice Felix Frankfurter: This is merely on the basis of his opening -- at the opening inquiry by you or by your counsel associate."
Did you testify in the grand jury?"
"Was it referring to the same subject matter?"
"I ask for the grand jury minutes."
That's the record, is it not?
Mr. H. Graham Morison: That is correct.
After he had testified in chief and, mind you, if you read the record, the character of this witness Jonas, he's a skillful and intelligent man.
Justice Felix Frankfurter: But did he show on the cross that he was a -- or that the experienced trial judge, such as Judge Paul is, in the Court of Appeal that this is not a truth-telling witness?
On the basis of the direct, could you say that if you read it in the court prints?
Mr. H. Graham Morison: Well, now, Mr. Justice Frankfurter, you put me in a role that I can't assume.
I can tell you I was trial counsel there.
My heckles were out three feet.
Justice Felix Frankfurter: I know.
Mr. H. Graham Morison: I just knew this was a suspect.
Now, how he struck judge --
Justice Felix Frankfurter: I want to know whether the judge would have had his suspicion as a very experienced judge.
Judge Paul, like all experienced judges, has the notes, different kinds of notes from opposing counsel, but --
Mr. H. Graham Morison: That --
Justice Felix Frankfurter: But he has their notes.
Mr. H. Graham Morison: Mr. Justice Frankfurter, if you concede, there are two kinds of notices.
I'll agree with you.
Now, he didn't, apparently.
Justice Felix Frankfurter: These two kinds.
Mr. H. Graham Morison: Because in -- although we don't think that, in the rule that he -- that Judge Paul applied here, that he exercised any discretion.
I will develop that later.
He applied, mechanically, a rule which even the Government concedes --
Justice Felix Frankfurter: Did it say --
Mr. H. Graham Morison: Is improper.
Justice Felix Frankfurter: Did it say so?
Mr. H. Graham Morison: I'd like to read that to you, Your Honor.
Justice Felix Frankfurter: But it was -- did he say it was mechanical?
Mr. H. Graham Morison: No, he didn't say it was mechanical.
Those are my words.
Justice Felix Frankfurter: Yes.
Mr. H. Graham Morison: In the context of the record.
Now, here's the way -- this is on page 259 of the record.
Mr. Homer Carlson was speaking for all defendants, all 10."
Then, I want to move for the production of the grand jury minutes."
The Court "Exactly what I thought you were and you're not going to get them."
Mr. Homer Carlson "We want to make the record."
The Court "Unless you can show me -- can show some sound basis that contradicts between what happened in the grand jury room and his testimony before the grand jury, and his testimony in this trial, I'm not going to require the production of the grand jury records.
It would be easy for an attorney to get access to the records of the grand jury by just such a motion as you're making here."
Justice Felix Frankfurter: I'm suggesting that that does not preclude that if Judge Paul had been in -- as he sat there and listened, as a careful trial judge does, perhaps he even get to call and even takes notes, doesn't he?
Did he ask?
Mr. H. Graham Morison: I can't answer that, sir.
I don't know.
Justice Felix Frankfurter: Anyhow, listening with the experienced old facts and nerves, if he had come to the conclusion this is a very shifty witness, non-constant, he wouldn't have found contradiction or suspicion for the basis of contradiction in that very effect.
Mr. H. Graham Morison: But, Mr. Justice Frankfurter, I point out that if he were pursuing a much better standard, as the one you suggest, sensing that there was truly in this witness something shifty and unreliable, he didn't apply that.
He didn't say.
Justice Felix Frankfurter: How do you know he didn't?
Mr. H. Graham Morison: Well, all I know is what the record said and the impact on us, "unless you can show," which we couldn't.
Justice Felix Frankfurter: No, but non-constant --
Mr. H. Graham Morison: "Unless you show a contradiction between what he said before the grand jury and before this trial, I will not let you."
Justice Felix Frankfurter: It's just as easy, indeed, easier for me to incur from that, that he thought, so far as he was a judge of a witness' truth-telling capacity, this was a -- this is a truth-telling witness.
That's the impression he made on him and, that being my impression of the trial judge, unless you give me some good ground for disturbing that clear impression, I won't ask for the grand jury minutes based -- that the request was merely on the fact that he's been a witness before the grand jury.
Mr. H. Graham Morison: Well, may I -- Mr. Justice Frankfurter, the -- in reply to that, I think the most important thing I have just tried to patiently spell out, the damaging effect of this witness on us, the incidence which led us --
Justice Felix Frankfurter: Yes, I understand, but --
Mr. H. Graham Morison: -- to his suspension which were --
Justice Felix Frankfurter: But damaging testimony may be truthful.
Mr. H. Graham Morison: That's right, Your Honor.
But here's a man who had testified not once but three times.
That's suspicious to a trial lawyer.
Second, here is a witness who had expressed his bias against the Defendant Messer, extreme bias, and he testified to it at trial on direct.
Justice Felix Frankfurter: That's what cross-examination is for.
Mr. H. Graham Morison: That's --
Justice Felix Frankfurter: To bring up those points and to make the jury alert to the fact that a fellow who has an extreme bias is likely to color his testimony.
Mr. H. Graham Morison: Yes, sir.
Well, if I may go on, Mr. Chief Justice, I hope I've tried to answer Mr. Justice Frankfurter.
Now, we believe, if it please the Court, that what is presented here is what is the appropriate standard that should be applied in situations of this kind, of -- where, here, a key Government witness covers the same matter at -- in his grand jury testimony as he covered at trial, and it's crucial to the defense, and it's relevant.
We believe that that testimony should be made available to the defense for purposes of impeachment.
Now, Mr. Justice Whittaker, on yesterday, you asked counsel for Pittsburgh if it's the defendant's view that trial judge retained any discretion in dealing with requests like those made here.
Well, our answer is, of course, we do believe that he has discretion and that it must be exercised at all times of course.
But, I affirm -- our view, again, that we believe, here, that the trial judge in denying access based upon the standard which the Government concedes is wrong of requiring prior inconsistencies was not exercising his discretion.
He was mechanically -- applying a standard.
Justice John M. Harlan: Is not your basic contention here that Jencks has made an incursion into the traditional rule regarding the secrecy of grand jury minutes?
Isn't that the basic position of your argument?
Mr. H. Graham Morison: Mr. Justice Harlan, I wouldn't put it in that -- in that term.
In the first place, Jencks didn't have anything to do with grand juries.
The second thing, of course, in Procter and Gamble, this Court reserved that point.
But, we believe this, that the philosophy of fair play, the philosophy of equal-handed justice that was annunciated in the Jencks case is something that no judge can ignore, whether it applies to the Government document situation or grand jury.
The defendant is in the same impossible situation that he's in.
Now, we don't say that Jencks controls this case.Of course it doesn't.
Justice John M. Harlan: Do you think you would have been up here if Jencks hadn't come down?
Mr. H. Graham Morison: Yes, sir.
As I -- I told the Court, my heckles were up and they were up two-feet long.
If that be called discretion, it was not an exercised discretion that yields the fair play that I think the federal judicial system and administration of criminal law intends.
Justice John M. Harlan: In other words, your argument is, this is a pure question of whether the trial judge abused his discretion.
Mr. H. Graham Morison: I do not, sir.
I -- we do not believe that this is a review of discretion.
We believe that --
Justice John M. Harlan: What is --
Mr. H. Graham Morison: -- what the Court --
Justice John M. Harlan: What is it?
Mr. H. Graham Morison: -- has before it here is what is the appropriate standard?
Now, Mr. Justice Harlan, there are many standards in effect in the Circuits, and the first -- the first standard which the Government concedes is wrong is the one exercised by the trial judge here.
The second is the very limited in camera inspection which is announced by the court below in this case.
The third is the more liberal intermediate inspection granted where the Court is required to review the entire transcript of grand jury and trial testimony as annunciated in Spangelet.
And, the last, of course, is the Third Circuit's rule which more conforms to the Jencks procedure.
Mr. Chief Justice, I'd like to reserve, if I may, the rest of my time.
Chief Justice Earl Warren: Yes, you may.
Argument of Philip Elman
Mr. Philip Elman: Mr. Chief Justice.
Chief Justice Earl Warren: Mr. Elman.
Mr. Philip Elman: May it please the Court.
I think that if there are two points that standout very clearly from this record, they are these.
First, that though Jonas was an important witness for the Government, the Government had a case without him, that the Government's case, based upon the testimony of employees of defendant corporations was enough to go to the jury entirely without Jonas, that the testimony of these witnesses, hostile to the Government, substantially corroborated Jonas' testimony on every point.
Second, the second observation as to the facts in the record which I think should be made here is that the arguments as to the need for just Jonas' testimony that he was a key witness, he devastated the defense, that he hadn't been indicted himself, that he was suspect.
All these arguments which are really addressed to the discretion of the Court in determining whether or not inspection or production should be made, those arguments were not made in the trial court.
That issue was not tendered to Judge Paul.
It was not argued to Judge Paul that there was something special about Jonas that required that his grand jury testimony be presented.
Now, let me document these general assertions that I've made.
First, as to Jonas' testimony being substantially corroborated, my first reference shall be to the Court of Appeals opinion.
The record at page 854, Judge Sobeloff, dealing with the argument that the trial court should have given an instruction as to Jonas' testimony being received with caution in view of the fact that he was an accomplice or conspirator, in the middle of the page, record 854, Judge Sobeloff says, "Moreover, Jonas' testimony was, in many respects, corroborated by other witnesses."
That statement does not go as far as some of the statements made by Judge Paul who heard the testimony and presided over this case.
I should like to refer, first, to page 414 of the record.
There, in the colloquy between the Court and defense counsel, defense counsel asked Judge Paul to give this instruction to the jury that the uncorroborated statement of a -- of a -- of a conspirator isn't enough.
The Court, this is about a-third of the page down, "There are uncorroborated statements by every witness in here as to certain things.
There is certainly corroboration for involving all these parties in this conspiracy without the testimony of Mr. Jonas."
I asked the Court, too, to turn to page 422 at the bottom of the page, which is a continuation of the same colloquy.
Here, they're referring to the testimony of Jonas as an accomplice and they wanted special instruction as to that.
At the bottom of the page, Judge Paul says, "In this case, the testimony of Mr. Jonas is not only not uncorroborated, but it is strongly corroborated by the officials, or at least the employees of the defendant companies themselves.
Further than that, there is no denial whatever of Mr. Justice as to Jonas' testimony so far as I can recollect."
Then, over in the next page, there's a discussion of as to -- between Pittsburgh's counsel as to these -- the inconsistency as -- between Jonas' testimony as to these telephone calls to Mr. Prichard in Pittsburgh.
And, the Court says, "That's the only instance I can recollect in which his testimony was denied," and he thinks that's completely out of the case because Mr. Gordon who is the individual official of Pittsburgh who was tried here, Judge Paul has directed his acquittal.
Judge Paul thought that inconsistency was out of the case.
Now, that's page 422, if I may impose on the Court still further, page 471, these are the actual instructions to the jury given by Judge Paul and he's referring to Jonas' testimony there.
And at the bottom of the page 471, he says, "I am --," you see, it's referring to the attacks that were made on Jonas' testimony during the closing arguments.
He says, "I am frank to say, I did not see anything in Mr. Jonas' testimony that was any worse or as bad as what Mr. Messer's own counsel said about him in the opening statement when he said that he had the reputation of being a price-cutter and a double-crosser."
And, I think it is not improper to say that Mr. Jonas' testimony is in no way denied in any substantial particular.
I'm not vouching for his testimony nor am I a part as to Mr. Jonas.
He says the attack on him was about justification of the evidence.
In the second paragraph there, he says his testimony was corroborated by Mr. Stroupe.
Now, Mr. Stroupe was the -- was the President of the Stroupe Mirror Company, one of the defendants here.
And, he says, "I think you're entitled to consider that fact."
And he points out the strains that Mr. Hearn, who was one of the active participants in this conspiracy, was not called here.
Now, that's Judge Paul's version of the facts.
That's Judge -- that's the Court of Appeals' version of the facts as to Jonas' testimony.
And then, we have the question of whether this motion for the production of the grand jury testimony, which was made to Judge Paul, it was addressed to his discretion, whether it made the arguments that Mr. Morrison has made here this morning, and the answer to that appears very clearly in the record, 263 and 264, the motion is for the production of Mr. Jonas' testimony.
There are no reasons given for it on the ground that Jonas is crucial but his testimony is suspect, and so on.
Mr. Morison has referred Your Honors to the colloquy on page 259.
Well, at the bottom of the page there, Mr. Homer Carlson, speaking for all the defense counsels says, "We want a transcript of his testimony before the grand jury regarding the subjects to which he, Jonas, has testified on direct examination."
The Court "Exactly, and you can do that for each witness and you get a complete transcript of the testimony before the grand jury, and that is not permissible."
Now, what was the response for that?
Was the response, "Well, Jonas is unique and he's a crucial witness?
No." The answer -- their response to that, on the next page was, "Well, we're relying on the Jencks case.
We're relying on the Rosenberg case.And once a witness has testified, once the grand jury has returned its indictment, the secrecy reason fades into a mist."
That's on the bottom of page 260 of the record.
Now, that's the issue that was presented to the District Court and it is argued here that that was -- it was reversible error on the basis of that showing for Judge Paul to deny the motions.
Justice John M. Harlan: Was there any request that the judge himself should look at the grand jury minutes?
No, sir, there was not and Judge Sobeloff, in his opinion below, points that out.
On page 855, he says, this is the opinion of the Court of Appeals, "The defendants at no time requested the judge to make a preliminary inspection of the transcript to ascertain whether there was inconsistency.
On the contrary, they insist that they and not the trial judge are to determine the existence well-known of inconsistency."
They rely on Rosenberg and Jencks.
That's the issue here.
Justice William O. Douglas: Would that have made a difference if they had?
Mr. Philip Elman: Sir -- I believe, sir, if they had -- if they had made the arguments that they are making here.
Conceivably, although I -- from my reading of this record, I doubt it very much, conceivably, had they said to Judge Paul, "We think that there's -- the circumstances here are such in view of the fact that Jonas wasn't indicted," and so on, "that we think that we have made enough of a showing to justify you, to -- in exercising a discretion, to inspect yourself."
I think that would have raised a different issue.
Now, I think --
Justice Potter Stewart: So, we don't have --
Mr. Philip Elman: In all fairness --
Justice Potter Stewart: We don't have here, in any form, the grand jury testimony, do we, Mr. Elman?
Mr. Philip Elman: You do not have it and I have not seen it.
I don't know what's in it.
Justice Potter Stewart: I thought that was correct.
Justice William O. Douglas: But, I --
Mr. Philip Elman: Now --
Justice William O. Douglas: -- think that, in the Second Circuit, they retreat a motion for inspection as a request for the judge to look -- to see if there is any inconsistency, is that right?
Mr. Philip Elman: The Second -- there is a conflict between the Second Circuit and --
Justice William O. Douglas: The Ninth.
Mr. Philip Elman: -- the Fourth Circuit and the Ninth Circuit --
Justice William O. Douglas: Yes.
Mr. Philip Elman: -- in this regard.
It's -- that the point of conflict is not presented by this case because there was no request to inspect by the judge but, in the Second Circuit, as I understand it, and as the Government believes the practice to be on a basis of -- particularly of Judge Frank's -- General Frank's opinion in the H.J.K. Theatre's case, upon the mere allegation of a possible inconsistency by defense, it's the duty of the trial judge to read the minutes of the grand jury.
Now, there is some -- there has been, I think, a slight --
Justice William O. Douglas: In camera.
Mr. Philip Elman: In camera.
I think one can't be too dogmatic about the Second Circuit practice now because there have been subsequent opinions, particularly, the Spangelet opinion in 258 F. 2d in which Judge Hincks refers to the burden of the trial judge and refers to the necessity of the defense to particularize what portions of the grand jury minutes that they want the judge to read.
Judge Sobeloff in this case and the Ninth Circuit in the Herzog case was concerned about making the -- putting an -- the burden of -- on the trial judge who has got a lot of other things to do, of scanning the grand jury minutes, particularly, when they, as an antitrust case, they may cover volumes.
And, Judge Sobeloff, here, while he didn't dissent from the proposition that the trial judge should inspect the grand jury minutes, whenever there was -- there were any circumstances at all that he felt justified that was very careful not to impose any mandatory duty on the trial judges, not to make --
Justice Felix Frankfurter: Did the Second Circuit required an allegation of inconsistency, not to establish it but merely an assertion by counsel?
Mr. Philip Elman: In the H.J.K. Theatre's opinion --
Justice Felix Frankfurter: I just turned to that.
Mr. Philip Elman: -- you'll find a sentence in Judge Frank's opinion that says, "That where the -- where inconsistency is alleged or shown."
Justice Felix Frankfurter: I can't imagine --
Mr. Philip Elman: And, reading it literally, it sounds as if the mere allegation --
Justice John M. Harlan: Unless the practice has changed, in theory at least.
I was trying the cases there, you just couldn't go in and say, "Judge, I'd like to have you look at the grand jury minutes to see if there is some inconsistencies."
You have to make some kind of a persuasive showing that would move the judge to undertake that job.
I don't think Judge Frankfurter is being difficult in that.
Mr. Philip Elman: Well --
Justice Felix Frankfurter: What was the panel in that case?
Do you happen to remember?
Mr. Philip Elman: I am --
Justice Felix Frankfurter: Because I'm very confident I could think of at least three Circuit Judges --
Mr. Philip Elman: Yes.
Justice Felix Frankfurter: -- who would not deem that as a basis, mere assertion by counsel, in that circuit, who would not deem that as a ground for even reading the minutes there.
Mr. Philip Elman: I must confess that my knowledge of the Second Circuit practice is based solely on the opinions of the Court of Appeals, and I do not have any personal firsthand knowledge of the District Court practice.
The -- there is an opinion, a very extensive opinion, by Judge Palmieri in the Consolidated Laundries case which is referred to in the briefs.
It's 159 F. Supp. which takes a view which I think is in accord with Mr. Justice Harlan's statement of the practice.
It suggests that there is an exercise of discretion by the district judges and that it is not automatic, but I -- as I say, I cannot enlighten the Court beyond that.
Now, on --
Chief Justice Earl Warren: Mr. Elman, at the time that this request was made, had the other witnesses testified those that the counsel said -- showed animosity on the part of Jonas toward his client, or did Mr. -- was Mr. Jonas an early --
Mr. Philip Elman: No, Mr. Jonas --
Chief Justice Earl Warren: -- witness to --
Mr. Philip Elman: Mr. Jonas was the last Government witness --
Chief Justice Earl Warren: Last Government --
Mr. Philip Elman: And the other witnesses had referred to this animosity between Messer and Jonas.
Now, Mr. Justice Frankfurter inquired as to whether there was any appearance on Mr. Jonas' cross-examination that he was an unreliable shifting witness and so on.
Well, the record thereto is quite clear.
After Mr. Jonas completed his direct -- direct testimony, the defense asked not only for the grand jury minutes, but they also asked for the records of the Lenoir Corporation, of which Mr. Jonas was present, and they also asked for the notes, the working notes of the Government counsel -- Government trial counsel, and that request was granted by Judge Paul on the basis of the argument that these papers would give them a basis for impeachment of Jonas' testimony.
And those records were all turned over, those notes were given over to the defense, and after they had examined them, they came back and in effect said, "Judge Paul, we do not wish to cross-examine Jonas."
The subs -- the cross-examination of Jonas was almost negligible.
He was not cross-examined by defense counsel on any of the really important points which they say here were decisive in the case.
Now, let me --
Justice Charles E. Whittaker: Well, what --
Mr. Philip Elman: May I -- may I refer --
Justice Charles E. Whittaker: To make it worth the note in the trial?
Mr. Philip Elman: Mr. Karp, who was Government's trial counsel, had interviewed Jonas prior to the trial, and he had made some notes on the basis of such interviews and those notes were turned over to the Court.
The -- Judge Paul looked at them.
He said, "I don't" -- he said to the defense, "I don't think you're entitled and I don't think they come under the Jencks statute.
They look to me like summaries and I -- they -- and they bear out everything that Jonas testified, but I have no objection to your looking at them," and they were turned over.
Justice John M. Harlan: Does that appear in the record?
Mr. Philip Elman: Yes.
Justice John M. Harlan: If you can without -- I'm interrupting you, Mr. Hazard.
Argument of Leland Hazard
Mr. Leland Hazard: Page for reference is page 251.
Rebuttal of Philip Elman
Mr. Philip Elman: 251, thank you very much.
Now, on this -- if I may -- if I might give you a record reference for what I said just a moment ago about their not cross-examining Jonas after this effort to discredit him.
This -- that appears in the record at page 296 and 297.
Can -- this is a colloquy between court and counsel, and Judge Paul refers, this is at the bottom of the page 296, "You gentlemen, yesterday, Mr. Gilmore made a great furor and he want to examine all these records of Mr. Jonas to discredit him to affect his credibility.
He wanted the statements given to counsel for the Government and they were furnished to you.
You went in there and spent an hour at this morning examining Mr. Jonas' records, and then, you come in and say, "We have nothing to ask him".
That is exactly the same way you want to get hold of these grand jury minutes.
You have no reason to think that there is any contradiction in there.
You just want to get hold of grand jury minutes and that's not permissible."
And then, as the saying "a repetition of what appears earlier."
In other words, this case and this record, we respectfully submit, do not present the question which has been argued here this morning that there was in this case a particularized showing as to a particular portion of a particular witness' testimony of a sort that made it an abusive discretion for the trial judge to refuse to inspect the minutes.
That was not what they asked for.
That is not the showing they made.
What they asked for here was an automatic delivery of the entire transcript with Jonas' testimony and the Court of Appeals, we say, was absolutely correct in holding that no defendant either before or after Jencks was entitled to that.
Now, the argument was made this morning that this does not mean any wholesale disclosure of the grand jury testimony.
Well, the -- the only basis for the inspection of disclosure here was he testified before the -- had testified before the grand jury, and we see no answer to the Chief Justice's observation yesterday that you can make the same showing as to every witness at the trial who has testified before the grand jury.
And, presumably when the grand jury indicts, it does so on the basis of incriminating testimony and the witnesses, or at least many of them who appeared before the grand jury, are bound to be called to testify at the trial.
And, if every witness who has testified before the grand jury and who testifies at the trial has his grand jury testimony turned over to the defense, we think you have the same kind of wholesale disclosure, the same kind of wholesale breach of secrecy that this Court last term, in the Procter and Gamble case, rejected.
Justice Hugo L. Black: What kind of showing do you think it would be necessary to make in order to get the use of testimony that had been given before the grand jury on the same subject?
Mr. Philip Elman: Well, we think -- we think, in the first place, it's always -- it's always open to the defense to cross-examine the witness as to whether he testified before the grand jury and what his testimony was.
It's -- the defense in cross-examination can attempt to breakdown his story in every way it can.
It -- the defense can present other witnesses who contradict the particular witness' testimony.
We think that once that is done at the trial, they will have a foundation of some sort upon which to invoke the judicial discretion of the judge.
We don't think it can -- you can lay down an absolute rule that the defendant always gets it simply on the showing that the witness has testified.
We don't think you can lay down an absolute rule and the Court of Appeals didn't lay down an absolute rule that the defendant never gets it.
And, every judge that has considered this problem, except for the judges in the Third Circuit who we think acted in almost a mechanical response to the Jencks decision, every judge who said, in the last analysis, "You've got to -- you've make -- you have to balance these rights of the defendant and of the grand jury and exercise a discretion," and it's a reviewable discretion.
It's a -- and it's a discretion which we think is no different from the discretion which in other respects, a trial judge has to exercise to protect the right of the defendant, the constitutional right of the defendant to a fair trial.
Now, there's been some reference to this being the Government's choice.
The Government choose -- chose to call this witness and the Government by doing that is waived secrecy.
Well, one thing is clear.
It is that the secrecy of the grand jury isn't the Government privilege.
We're not dealing here with executive privilege.
We're not dealing here with papers that belong to the executive branch of the Government.
We're dealing here with what is really a judicial privilege.
The grand jury is an arm of the Court and the reasons for secrecy aren't to -- help the Government or to help or to protect the witnesses before the grand jury.
The reasons for secrecy are, as this Court has said several times, that it is indispensable to the grand jury as an institution which is -- which is recognized in the Bill of Rights and the Fifth Amendment as the method, the sole method, for initiating serious criminal charges.
You've got to preserve the independence of the grand jury.
You've got to preserve the integrity of the grand jury.
You've got to protect the grand jury sometimes from the State, the prosecution, and all that, all these reasons are for the grand jury's protection and for the protection of the community and not for the Government.
Now, Rule 6 (e) recognizes that very specifically.
I could give you a simple example of that.
I have not read the grand jury transcript in this case for the simple reason that Rule 6 (e) says it may be read by Government attorneys only for use in the performance of their duties.
I didn't think it was necessary to -- in the performance of my duties as counsel for the Government in this case in this Court to read the grand -- to read the grand jury minutes.
But, suppose I had done so and suppose I had considered that it wasn't fair to my associates on the other side that I should have had the benefit of that reading and that they had not.
Suppose I thought that it was in the interest of justice that they read those grand jury minutes and suppose I had secured the approval of the Attorney General to have them see those grand jury minutes.
Could I have done so?
The answer is I clearly could not because Rule 6 (e) says in the second sentence that a -- an attorney may disclose matters occurring before the grand jury only when so directed by the Court preliminarily to or in connection with a judicial proceeding.
I would have had to secure an order of this Court and the permission of this Court to have counsel on the other side see these grand jury minutes.
It couldn't have a clear illustration of the fact that this isn't -- these grand jury minutes don't belong to the Department of Justice.
The rule permits the Government to make a record of the transcript of the grand jury proceedings and permits attorneys to use them in connection with their duties.
Well, there's a very good reason why Rule 6 (e) does that.
It's helpful not only to the Government, but it's helpful to the grand jury that there'd be a record of the proceedings, particularly, in an antitrust case such as this one where you have an industry-wide investigation and the grand jury sits over a period of months hearing scores of witnesses.
It would be wasteful.
It would be uneconomical.
It would be a very foolish way of doing business not to have some record of the testimony.
It would be very important not only to determine whom to indict, but whom not to indict, to know what the testimony was.
Leads given by the testimony have to be explored.
The use of the making of a record and the use of that record is -- has been deemed by the Court and the rule.
And, the rule as I -- the Court knows, was submitted by Congress as the force of statute.
It was deemed appropriate and right that the Government should be able to use that procedure.
Now, are we to say that, because that procedure is followed and the Government does make a record that somehow the Government's action prejudices the right of the grand jury as secrecy?
Justice Felix Frankfurter: Is it for the Government to waive that interest?
Justice Felix Frankfurter: Did I understand you --
Justice Hugo L. Black: To say that one way to make a particular showing would be to ask the witness what he had testified to before the grand jury?
Mr. Philip Elman: I think there's no doubt that you can, Mr. Justice.
Justice Hugo L. Black: That you can?
Mr. Philip Elman: You can.
This -- the --
Justice Hugo L. Black: You can ask him a number of questions that you get by this --
Mr. Philip Elman: There's no --
Justice Hugo L. Black: You cannot?
Mr. Philip Elman: You can ask the witness because the rule imposes no obligation of secrecy on the witness.
You can ask him what he testified to.
Justice Hugo L. Black: And you can ask him a number of questions, "Did you testify this and did you testify that?"
Mr. Philip Elman: That's right and he may say, "I did testify before the grand jury and what I testified to there is different from what I'm testifying today," and the reason --
Justice Hugo L. Black: If he said it was the same.
Mr. Philip Elman: Suppose he said it was the same.
Well, the --
Justice Hugo L. Black: Suppose he answered about 20 questions the same, and then, they said, "We'd like to see the testimony."
Mr. Philip Elman: I think you --
Justice Hugo L. Black: That be agreed on?
Mr. Philip Elman: I think there, again, you have to leave it to the trial judge who is on the spot.
He can see the witness.
He may think that this witness is lying, or he may be troubled by it, or the inconsistencies that are alleged may relate to a specific narrow part of the grand jury minutes.
So, that isn't -- it's a very simple matter for the judge to say, "You prosecute now.
You let me take a look at those minutes.
I just -- I want to see what he said before the grand jury."
Now, I -- we recognize that protection of the rights of the defendant in this particular regard must be left to the good sense, the wisdom of the trial judge, but if -- but that is the only way, you can -- we think, that you can balance these two rights, both of them of importance to the accused.
It's just as important to the accused, to the citizens, that there'd be an independent grand jury which can have testimony before it which is uninhibited and unrestrained by publicity.
And, as the Court said last term in Procter and Gamble, the grand jury, as a public institution serving the community, might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.
So that, it's no answer to say that once the witness has testified, once the grand jury has concluded its deliberations, then all the reasons for secrecy disappear.
That were an answer -- that would have been an answer long before the Jencks case and there's nothing new about the Jencks case that deals with this proposition.
What -- what Your Honors are being asked now is to make a drastic far-reaching departure from established law and we think that if the Court is to consider that, it should have the benefit of the experience, and it should have the benefit of the views of those who are familiar with the grand jury as a functioning institution.
Chief Justice Earl Warren: You may finish your statement.
Mr. Philip Elman: With -- as the Court said, in the Isthmian case, it should be able to act on the basis of information and not speculation.
And, if the matter were dealt with in -- through the rule making process, the Court could then call upon experienced trial judges -- experienced federal trial judges who are -- who have first-hand experience with the trial jury and who can tell Your Honors whether it would not -- would or would not impair the efficiency of the grand jury to lift the secrecy of its proceedings in this regard.
You could -- you could call upon those who were experienced with the state court and who could tell Your Honors whether or not the decline of the grand jury in the states is or is not attributable to the fact that there has been a breach of secrecy to a large extent in state procedure.
Thank you very much.
Chief Justice Earl Warren: Mr. Morison, you may conclude.
Rebuttal of H. Graham Morison
Mr. H. Graham Morison: Thank you, Mr. Chief Justice.
I first want to come back, Mr. Chief Justice, to the first point I addressed to you.
It's raised again by Government counsel.
The implication seems to be raised by my Brother that there is something inherent in the facts in this case that would entitle us to ask for every witness' grand jury testimony, and we have denied that that's true.
Now, a discussion ensued yesterday with Pittsburgh counsel about the ruling in Socony-Vacuum.
And, I want to compare that case with this to show you that we think that if the trial judge does exercise and must exercise his discretion that has got to value the impact of the witness on the defense in every case, and that when he finds, as in this case, that it was damaging, then, justice would require that access be given.
Now, in Socony-Vacuum, what was the situation?
There, the Government's witnesses were employees of the defendants.
When the Government put them on the stand, they were less than -- they needed to be prodded along and the Government used the grand jury transcript to refresh their recollection.
At that moment, counsel for defense jumped and said, "Now, we want Your Honor to read all of these witnesses' grand jury -- all of the grand jury testimony into the record," and the judge properly said, "No.
These are friendly witnesses.
You undoubtedly have talked with these witnesses and they've told you what the questions were before the grand jury and what their answers were."
Again, we think in Socony-Vacuum that the Court properly exercised that discretion.
Now, the Government note that we -- as they often do, that we didn't cross-examine extensively.
I adverted to that earlier by saying this is a trial lawyer's judgment in the forum as to what you should do.
We exercised it one way.
Now, this Court will recall that, in the Palermo case argued here yesterday, the Government said they can't have access to documents because you had extensive cross-examination.
Now, all I am saying, Your Honors, is this.
My Brother Elman, like myself, is an advocate.
He seeks to aid the prosecution and what he has said is to restrict this in order that the prosecution may be aided.
Now, this business about who raised the privilege, well, the Government raised the privilege in this case of course.
Their voice could hardly be heard, however, because of the judge's ruling which was so quick.
Now, coming to the second phase of the question, what is the trial judge's discretion?
And, I want to say it again that we believe the proper standard says that the trial judge of course retains under 6 (e) his discretion in every phase of the case and that when a request comes, he must of necessity, in the proper exercise of his discretion, evaluate the impact of the Government's witness upon the defense.
And, if he finds, as here, that he was extremely damaging, then we believe that he should give access to those grand jury minutes for the purpose -- the most essential purpose in criminal jurisprudence, to attack the credibility of the witness.
Now, I would like to point out again Mr. Elman has been very helpful in almost a seminar way in suggesting that this is a difficult problem of the public interest of weighing and balancing.
We concede that it is, but we don't think that advances the situation to simply say that there must be some inherent change in 6 (e) that calls for Congress and great convening of jurors to decide it.
We believe that this is something that this Court has had to decide over and over, and over again.
What are the proper standards in fair play in justice that must be applied as a guide to the Courts to see that justice is done?
Now, I'd like Mr. Chief Justice to note the impact of the court below's standards, if I may.
Chief Justice Earl Warren: You may.
Mr. H. Graham Morison: Just briefly, sir.
Chief Justice Earl Warren: But just for a second.
Mr. H. Graham Morison: We'd like to point out, Your Honor, that the court below, noting that the judge had applied this improper standard of prior inconsistency, they nevertheless sustained him on the basis that we had not specifically requested in camera inspection.
But, whether that was an error or not, certainly the prejudice of this defendant should not be permitted to continue.
And, I challenge this thing that the dogs might sleep at night.
I have never seen the grand jury testimony.
The trial judge has never seen it.
The Court of Appeals in the Fourth Circuit has never seen it.
And this Court has never seen it.
And, I submit Your Honors, let us suppose, as suppose we must, that in three days of grand jury testimony, there is exculpatory material helpful in clarifying the search for truth for this defendant Messer who could not speak for himself.
That's the problem.
Now, the Fourth Circuit in dealing with that has rejected the Third Circuit's rule in the -- in Rosenberg.
It has adopted a rule and the Government seeks this Court to support a rule which modifies the more intermediate Second Circuit rule, as in Spangelet, in these respects.
First, the trial judge is not required to make any inspection.
Second, if he does make an inspection, it must be limited to particular points, sharply in issue.
And third, even if the judge does find an inconsistency, he is not required to reveal it if he believes it to be inconsequential.
And we believe, Mr. Chief Justice, that that means that there will never be inspection.
Thank you, sir.