STEVENS v. MARKS
Legal provision: Self-Incrimination
Argument of John P. Schofield
Chief Justice Earl Warren: Number 210, James T. Stevens, Petitioner, versus Charles Marks, Justice of the Supreme Court of New York, County of New York.
Unknown Speaker: Mr. Chief Justice, thank you for accommodating the next (Inaudible)
Chief Justice Earl Warren: Yes and with the 290, James T. Stevens, Petitioner, versus John J. McCloskey, Sheriff of New York City.
Mr. Schofield, you may proceed with your argument.
Mr. John P. Schofield: Mr. Chief Justice, may it please the Court.
Petitioner, James T. Stevens, was a lieutenant with the New York City Police Department prior to a summary discharge on July 15th, 1964 asserting his constitutional privilege.
Stevens had been a member of that department for 18 years and only needed two more years for retirement.
On a morning of June 26, Stevens together with other police officers with summons in the police headquarters and at an office of the deputy chief inspector, they were all handed forthwith subpoenas to appear before the New York County grand jury standing there or sitting some three blocks away.
A superior officer was assigned to accompany these men to that grand jury.
When they arrived there at, they were met by an assistant district attorney who told them, he wished their testimony in the grand jury.
However, he told them before they would be permitted to enter that grand jury they must sign a waiver of immunity.
He stated this was a requirement that the state constitution and the city charter required of each of these men if they wished to stay on the police force.
He reminded them that on a day pervious, ten police officers were summarily dismissed for failure to sign up a waiver.
He also told them at that time, they had a constitutional privilege not to incriminate themselves.
However, Stevens saw fit to sign that waiver of immunity on the advice of the Assistant District Attorney without having any private counsel to advise him.
Stevens went into that grand jury --
Justice John M. Harlan: He -- did he ask for a (Inaudible)
Mr. John P. Schofield: No, Stevens didn't but several other police officers had.
But Stevens made no mention of requiring a lawyer or ask him for one at that time outside that grand jury.
However, when Stevens went into the grand jury, the Assistant District Attorney who had him sign that waiver outside, now for the first time told Stevens that he was not there as a witness but perhaps as a potential defendant.
He then had Stevens identify himself and state that he had signed this waiver outside and he understood the conditions.
Stevens gave his name, rank, command, home address and then was told by the Assistant District Attorney that he had a financial questionnaire, and he gave it to him and he told him he would be called at a later date before that grand jury.
Stevens was dismissed from that grand jury and it's our contention, he gave no relevant testimonies such there's no question as to what statements were given there except his name, command, etcetera.
Stevens was -- on July 15th, called back again before the New York County grand jury.
However this time, it was a new grand jury that had been specially impaneled to look into the crimes of bribery and corruption within the police department and the Assistant District Attorney told him in my presence, this time he's represented by a counsel that they required Stevens to sign a new waiver of immunity.
Stevens went into the grand jury and then in there, informed the Assistant District Attorney that he did not wish to sign this new waiver of immunity, as a matter of fact, wished to recall the one that was signed on June 26th.
The Assistant District Attorney admonished Stevens by telling that it was a requirement that he must sign this waiver or he would be summarily dismissed from his employment.
After having told them this, he told them that he had a constitutional right to exert -- assert his privilege and he could at any time invoke this privilege.
Stevens of course stated these -- stood on his constitutional rights.
He was dismissed from that grand jury.
However, one week later, the petitioner Stevens was called back before the New York County grand jury, this time, before the original grand jury where he had signed the limited waiver.
The Assistant District Attorney brought him into the grand jury, asked him questions and each question was responded by Stevens that in fact that he stood on its constitutional rights not to incriminate himself.
Whereupon, after refusing to answer any questions, he was brought up before a New York County Supreme Court judge.
He was commanded by that Supreme Court judge to go down and answer the questions on the grounds that he had been given immunity.
At this point, the Assistant District Attorney stood up and told the judge sitting there that Stevens does not have immunity but it was the people's contention that he had signed a good and valid waiver and they wished him to speak under this waiver.
The Supreme Court judge, Charles Marks, which is Number 210 before this Court, told Stevens to go back and answer the questions when he read them and he specifically asked him the same question at the District Court Attorney asked him in that grand jury and that question is this, whether or not Stevens in the five year -- last five years had accepted any moneys from bookmakers or policy operators to allow them to operate violation of the penal law of the State of New York.
Stevens refused to answer on the grounds that might incriminate him, whereupon, Stevens was summarily found guilty of criminal contempt.
Counsel at that time asked -- say at that time so they can submit written memorandum and for oral argument.
Judge Marks consented, however, on the oral argument which counsel pointed out that Stevens was not represented by counsel that the waiver was not a good and valid waiver since Stevens, as far as we are concerned was coerced into signing that waiver.
And third, the fact that only a month before this Court in a Malloy versus Hogan decision has stated that the Fifth Amendment was now applicable upon the states as Stevens like any other citizen could take the Fifth Amendment.
However, Judge Marks fines Stevens some $250 and sentenced him to 30 days in jail.
He did get counsel time to apply for the Appellate Division which was in summer recess because this happened in July to stay the execution.
Counsel made application for the presiding judge of the Appellate Division for refuse to stay at this sentence until the fall term on -- the Appellate Division would come back on th ebench.
As a result, Stevens went to jail for the first time with criminal contempt served -- and while serving by the way, for the first 30 days, counsel made application in the Federal District Court for writ of habeas corpus.
That court denied the writ based on the fact that Stevens had not exhausted his state remedies.
Therefore, Stevens finished serving his first term of contempt.
Soon after coming out of civil jail and paying the $250 fine, Stevens was again subpoenaed before the New York County grand jury once again with the same grand jury where he had signed his coerced waiver.
Once again --
Justice John M. Harlan: When you talk about a coerced waiver, what do you mean by that?
Mr. John P. Schofield: That --
Justice John M. Harlan: By virtue of (Inaudible) --
Mr. John P. Schofield: By virtue, it was not a --
Justice John M. Harlan: -- dismissal provision?
Mr. John P. Schofield: Not only a dismissal provision which was coerced.
That's exactly right.
The fact that the pressure was on this man that I don't believe was a free and voluntary act of this party that it served 18 years, leaving two years for retirement which faced with a public scandal, had seen what was happening in the newspapers up there to his family, his wife, etcetera.
He felt that he should sign it.
I'm sure that was the pressure.
I'm sure any public official faced with this decision whether to give up the years of service after having done, I think almost five years in military service knowing this to be his only job, he signed it.
I don't think it was a free and voluntary act.
It is our contention that it was coerced.
Of course -- now, he's back before that same grand jury, he is asked by that same Assistant District Attorney the same question whether or not for the last five years, he had received any money from bookmakers or policy operators.
Once again, standing on his constitutional rights, he refused to answer that question.
Once again, he was brought up again before the New York Supreme Court judge.
This time, it was Judge Weiser.
Judge Weiser commanded him to answer.
Judge Weiser then and there found him guilty of criminal contempt and sentenced to begin 30 days in jail, order him in turn -- 30 days in jail, fine of $250 or the alternative to do another 30 days in jail.
Chief Justice Earl Warren: Alternatively or --
Mr. John P. Schofield: Alternatively.
Chief Justice Earl Warren: He didn't give him 30 days.
Mr. John P. Schofield: He gave him 30 days in jail, a fine of $250.
If he failed to pay the 250, he would do another 30 days in jail.
Chief Justice Earl Warren: Oh, that would make 60 instead of --
Mr. John P. Schofield: That would make 60 if he didn't pay the money, that's correct Your Honor.
As a result, before this mandate was now signed by Judge Weiser, counsel under Titles 28 -- U.S. Code 1443, removed the proceedings from the state court into the federal court claiming that Stevens' constitutional rights will be violated by the state court and an application of course was brought by the state to bring the case back into the state and that federal judge then and there from the bench decided that we came too late.
He said, the man is already sentenced, I do not have jurisdiction as a result of which, Stevens case was transferred back from the federal court to the state court.
Stevens started serving his second 30-day sentence.
While in jail for the second time, the Appellate Division came down and denied the application of count -- rather denied, made decision in which they relied on the Regan cases controlling and stated in that decision that they were not entering into the Malloy or the Escobedo case as far as the constitutionality of the questions posed by counsel.
Stevens finished serving his second 30-day term in civil jail, paid his $250 fine and when released, found himself again subpoenaed before the same grand jury now for the third time, met again by that same Assistant District Attorney, again asked the same question, again brought up before the New York Supreme Court judge, commanded again to answer that question.
Once again relying on his rights was then and there sentenced now for the third time, to a civil jail for 30 days, fined $250 or the alternative, another 30 days.
It was pointed out to that Supreme Court justice that as far as counsel was concerned, this has not only became double jeopardy or triple jeopardy.
It was also pointed out that Supreme Court justice that the state court still had an appeal pending in the Court of Appeals, the highest court in the State of New York, and when he stay the execution of his third sentence until we got a reply back or decision back from Albany.
That was denied.
As a result, Stevens went into jail for the third time.
While Stevens was in jail and just before his first 30-day jail sentence run out, a decision did come down from the Court of Appeals once again relying on the Regan case and this time counsel now having exhausted the state remedy made application once again in the Federal District Court, by the way the denial by the Court of Appeals makes is Number 210 now before this Court of certiorari.
Now having exhausted our state remedies, we made application, Federal District Court Southern District, on behalf of Stevens, Judge Weinfeld entertained the application, allow Stevens to come out of civil prison, he is paroled of federal custody without opposition from the District Court Attorney's office.
However, after oral argument, Judge Weinfeld denied our application but did say that it was a -- issued a step in a probable cause and permitted us to go to the Circuit Court of Appeals on an expedited appeal.
We argue the case before the Circuit Court of Appeals, the decision was -- once again was rendered against us and at this time, the Court also relied on the Regan case which this Court passed on 1955.
Of course, this Court now granted certiorari which is now Number 290 before this Court based on the one question, whether or not Article I, Section 6 in 1123, the New York City Charter which requires that public officials to sign a waiver of immunity or to be dismissed from their job from not signing it.
I have the wording a little mixed up but that's -- in that sense what it is.
What happened to Stevens in the lower court -- excuse me, this time, I would like to point out to the court that I have a co-counsel arguing with me this morning.
I am going to show, I hope to this Court the difference between the Regan case and the Stevens case.
My co-counsel will take the constitutional question.
Since all the courts below felt that Regan was controlling, I would like this time to point out similarities and of course the differences not only factually but legally between Stevens and Regan.
Like Regan, Stevens --
Chief Justice Earl Warren: Before you get away from the facts.
Mr. John P. Schofield: Yes Your Honor.
Chief Justice Earl Warren: Do I understand that on each of these occasions where he was committed for contempt that the Assistant District Attorney told him that he was not to receive immunity and that he would be prosecuted on his own testimony and that he had a right under the federal constitution not to testify if he chose to do so?
Mr. John P. Schofield: That is correct Your Honor.
As a matter of fact, the District Attorney -- if we look at the brief on page 290, page 16 -- excuse me, the record, I said that the -- I meant the record at 290, page 16.
The District Attorney made it crystal clear the position of their office.
He stated, “And do you understand further that regardless of what your lawyer may say or what anyone else may say, that it is the contention of the People that this is a valid waiver of immunity and that you do not have immunity?
Do you understand that?”
Justice Tom C. Clark: Is that the page 16 of (Voice Overlap) --
Mr. John P. Schofield: That's page 16 of the record 290 Your Honor.
Justice Tom C. Clark: Oh, 290.
Mr. John P. Schofield: 290.
It's the -- it starts with the second sentence there --
Justice Tom C. Clark: Yes.
Mr. John P. Schofield: -- with the questionnaire.
So the District Attorney made it clear that Stevens do not have immunity.
The District Attorney in answer to your question Your Honor, with reference to the advice he gave him, also made it very clear.
If we look at the record, Number 210 on page 18 --
Justice Potter Stewart: What page?
Mr. John P. Schofield: That's now -- we're in record 218 -- 210, page 13, a little more than halfway down.
This is when Stevens appeared on the -- before the July 15th grand jury, the chief -- Assistant District Attorney stated this to Stevens when he is in the grand jury.
“Well now, you'll appreciate that under the constitution of the State of New York in the city charter as a public officer, if you choose to retain your public office, you are required to waive immunity with respect to the matters that relate to your official conduct or through the performance of your official duties.
Do you understand that?”
Answer, “I realize that sir, yes.”
Question, “Even though you still have your constitutional privilege against self-incrimination?”
“That you can revoke it anytime?”
Chief Justice Earl Warren: Invoke?
Mr. John P. Schofield: Invoke, excuse me.
Chief Justice Earl Warren: Proceed.
Mr. John P. Schofield: But if you invoke that privilege then you are subject to the forfeiture of your position as a public officer.
Stevens of course said, “I realize that”, and when Stevens did then and there that day, refused to sign that waiver, he received a letter terminating his employment from the New York City Police Department and that letter in that sense said that he went before a grand jury and refused to sign a waiver, his office was terminated and his ranked as a lieutenant was vacated.
Justice Abe Fortas: He received that letter before his first contempt conviction?
Mr. John P. Schofield: Yes Your Honor, because it was at this second time before the grand jury on July 15th that he asserted that that was when they want him to sign a new waiver.
So that he had actually been fired on July 15 which the letter he received on the 16th.
So when he was called back a week later on July 22nd to testify under this question of his immunity that he signed on June 26th, he was no longer a member of the police department according to that letter.
Justice John M. Harlan: Is there any state court litigation pending or --
Mr. John P. Schofield: Yes Your Honor.
Justice John M. Harlan: -- was it initiated on the validity of his discharge?
Mr. John P. Schofield: Yes Your Honor, we have an Article 78 pending in New York County on the restoration of Stevens back to the Police Department because of the summary discharge and denial of due process under the select power of decision from this Court.
Justice John M. Harlan: What's the status of that?
Mr. John P. Schofield: That, I may call it some limbo, in as much as the cooperation counsel over the -- attorneys for the City of New York in their answer alleged when -- that's what happened to Stevens after his signing in the waiver.
And we asked to how this taken out from thereafter on the grounds that this happen subsequent to Stevens' dismissal and had no pertinent part in the New York County grand jury -- or rather, New York County Supreme Court decision then and there before that justice.
However, Mr. Justice Hufstedler denied our motion to strike the answer which showed what happened to Stevens subsequent.
As a result, we appeal that up to the Appellate Division and I've -- since this Court did declare certiorari where keeping in a limbo area hoping that this Court resolve that and it will also resolve Stevens' application for restoration back to police department.
However, there has been decisions there for that from the Supreme Court of New York County saying that they amend that -- had been by them that this suit be restored.
They were told to have an involvement hearing before summarily dismissing that the Appellate Division now has made a finding as against the city for dismissing this man summarily.
Justice Abe Fortas: I'm sorry, I don't quite understand that.
Would that indicate that petitioner is entitled to further administrative proceedings --
Mr. John P. Schofield: I would --
Justice Abe Fortas: -- resiliently, I know you don't have (Voice Overlap) --
Mr. John P. Schofield: Yes, I would say so -- yes Your Honor, but Stevens somehow or other has got uniqueness about him where everything seems to apply to everyone else, Stevens has uniqueness of going to jail for three times which never happened to anyone else.
Justice Abe Fortas: Would that --
Mr. John P. Schofield: Stevens --
Justice Abe Fortas: It does sound as if he run into a little hard luck.
Mr. John P. Schofield: At Stevens -- beside that, he is presently under indictment now even while he was in federal custody under this third contempt.
After he came out, a federal jurisdiction took place on a writ of habeas corpus and we argued before the circuit appeals.
They subsequently have in doubt an indictment.
And the first three counts or the first of that indictment alleged the first three things that happened here, answering the same question each time as for basis of first three counts.
Chief Justice Earl Warren: Oh, Mr. Schofield, what if we ask specifically to decide whether this man properly lost his position with the New York Police Department or whether he can be punished for contempt, for refusing to answer or both.
Mr. John P. Schofield: I think you have both, Your Honor, before this Court because --
Chief Justice Earl Warren: Must he answer to --
Mr. John P. Schofield: The question is whether or not the validity of that statute in line with this Court's decision in Malloy has allowed to stand in as much as I say public employees have the same rights as any other citizen and this requirement that we have in our city charter in the state constitution, certainly, is a violation of their constitutional rights that certainly when they're faced there with a waiver, it's not the exercise of their free will that they are signing this waiver.
It's in their position put upon these public officials by the state constitution and by city charter.
And as a result, it is repugnant to United States Constitution.
And I think Stevens is a prime example of what happens to a man that wants to assert this right.
He's found guilty of criminal contempt after he is finally advised by counsel that had no right or it was a contention that counsel had no right to assert that they should receive this waiver.
So I think --
Chief Justice Earl Warren: Are these two questions separable or would the answer to one carry with it an answer to the other?
Mr. John P. Schofield: I think the answer to --
Chief Justice Earl Warren: Either one of them.
Mr. John P. Schofield: Either one -- well, he -- actually, city charter follows the state constitution.
And the answer -- if we knock out them, the answer then would give us an answer to the both the contempt and also the answer to the summarily dismissing of public officials.
Chief Justice Earl Warren: And overtake the other side of the coin.
Mr. John P. Schofield: Right.
Chief Justice Earl Warren: Suppose we were to hold that New York could discharge it if we refuse to testify concerning his conduct as a police officer.
Would that necessarily carry with it the fact that they couldn't punish him for contempt?
Mr. John P. Schofield: Yes, I think it would Your Honor.
Chief Justice Earl Warren: You would?
Mr. John P. Schofield: Yes.
As a matter of fact --
Chief Justice Earl Warren: We wouldn't have to -- we wouldn't have to decide that independently.
Mr. John P. Schofield: Well, I would say and I'm going to leave Mr. Gressman for his oral argument on the constitutional question.
I don't want to infringe on his.
I would say this that New York procedurally within a departmental procedures can setup rules and regulations as to how they wish to conduct of their public officials to be carried on.
But New York City and New York State cannot shave the constitution of the United States and it was stated here in the Court of Claims -- rather in the Court of Claims and cited here by this Court assert the decision that when it was applied to a federal employee who was looking for his retirement and was cutoff in a Steinberg decision, that court -- the Court of Claims said, “Congress can pass laws and Congress can repeal laws but Congress even with the expressed permission of the president of United States cannot shave the constitution.”
And that's -- is an essence what the city charter in Article I, Section 6 of the state constitution is known, they're shaving the constitution.
Now if Your Honor please, I'm going to leave more of that argument to Mr. Gressman but I would like to point out the big differences between Regan and Stevens.
Regan of course was a policeman and like Stevens, he signed the waiver of immunity.
However, unlike Regan, Stevens never got a hearing or never had a trial as to whether or not his waiver was coerced.
Everything that happened to Stevens was summarily found guilty of criminal contempt.
Stevens at the outset raised a constitutional question but Regan never raised it until he came here for certiorari.
Most important though is the question of the immunity statute.
At the time of Regan, we had an absolute immunity statute.
That was not the case in June 26, 1964 when Stevens was called before the grand jury.
There was no absolute immunity statute.
It was a selective type of statute.
More to -- in essence it said, the District Attorney may confer when it's explicit in the record here that it was never his intention to give immunity to Stevens so that Stevens could never receive the full immunity bed that Regan had at that time.
Justice Abe Fortas: Did Stevens base his refusal to reply on the asserted denial of immunity or put it the other way around?
Did Stevens at anytime say that he would answer the questions if he were given immunity?
Mr. John P. Schofield: Alright.
Stevens never answered at that way Your Honor but Stevens at all times answered that he's been on his constitutional rights.
In fact, it was explicit of rights of the Fifth, Sixth and the Fourteenth Amendments of the United States Constitution not to incriminate himself.
Justice Abe Fortas: And he knew --
Mr. John P. Schofield: He never asked the way Your Honor asked that question.
Justice Abe Fortas: And he never had offered -- never said that he'd answer the questions if he were granted immunity.
Mr. John P. Schofield: It was neither attended to him.
We -- outside the grand jury in conversation with the District Attorney, asked him at many times whether he was offering immunity to Stevens.
And he said that it was their contention that they didn't have to and he made it explicit in the record that no matter what his counsel said that Stevens was not going to receive immunity by any immunity statute.
In fact, if there was an immunity statute, it was an anonymous one because it was never even mentioned by the District Attorney at anytime when Stevens appeared either in the court or in the grand jury that if he answered these questions, he would receive immunity.
Justice William J. Brennan: What you're saying Mr. Schofield that the immunity statute in effect at the time of Regan has been revised --
Mr. John P. Schofield: Oh yes Your Honor.
Justice William J. Brennan: -- or amended or substituted?
Mr. John P. Schofield: It was --
Justice William J. Brennan: Can you say it's now -- its (Voice Overlap)--
Mr. John P. Schofield: It's a selective type.
Justice William J. Brennan: What do you mean by that?
Mr. John P. Schofield: The District Attorney may if he so chooses asked that immunity be conferred upon the witness and he can -- then asked the grand jury to confer it and then he -- the grand jury then commands the man to speak which was not the type -- same type of immunity that was present at the time of Regan.
Justice William J. Brennan: What was it at the time?
Mr. John P. Schofield: If the man was called in a bribery proceeding and he was commanded to testify, he automatically received it.
And he had what we call the full immunity bed at that time, it was not like it is now and of course --
Justice William J. Brennan: Well, what constitutional is the --
Mr. John P. Schofield: That he --
Justice William J. Brennan: (Inaudible)
Mr. John P. Schofield: They change the procedures Your Honor in 2447 of the Penal Code.
Justice William J. Brennan: Well, what constitutionally is the difference?
Mr. John P. Schofield: Well, the -- it would be a serious question if counsel were to allow Stevens to answer and have that, as I would call it a Russian roulette game whether or not he has immunity if he answers because it's explicit within the statutes of the Penal Law that there are certain criteria that must be followed, procedural steps --
Justice Byron R. White: But all it really requires is an order -- is a claim of the privilege in order to answer over the privilege.
That's all --
Mr. John P. Schofield: At one time.
Justice Byron R. White: That's all is required.
Mr. John P. Schofield: That was at -- in the time of Regan.
Justice Byron R. White: Isn't that always required?
Mr. John P. Schofield: No.
Now the District Attorney must state that he is giving it to him.
He must go to the grand jury and tell him that they may confer it.
They have the power to confer it.
It's a power that they may or may not confer and that's the way it's in the statute and that's the change in a plea --
Justice Byron R. White: Yes but before this, he didn't even need to claim the privilege, did he?
Mr. John P. Schofield: No, he merely didn't Your Honor.
Justice Byron R. White: But he -- the fundamental thing is that he has to claim the privilege now.
Mr. John P. Schofield: Not -- plus it -- it's whether or not he --
Justice Byron R. White: Well, if this plus having being over there answered?
Mr. John P. Schofield: No.
He -- it must be told whether he has it as far as --
Justice Byron R. White: Where is that provision?
Mr. John P. Schofield: It's in the 20 --
Justice Byron R. White: Where is that provision that the Court, grand jury or the -- or the Court has to tell him, we are granting you immunity?
Mr. John P. Schofield: It's in 2447 Your Honor.
Justice Byron R. White: But where is that in the brief?
Mr. John P. Schofield: And I believe it's been pointed out in great detail by the amicus brief by --
Justice Byron R. White: Alright, where is the provision?
Justice William J. Brennan: (Inaudible) Association?
Justice Byron R. White: Where is the specific conclusion?
Mr. John P. Schofield: On page 7 Your Honor of the amicus brief.
That's the white brief put in by the superior officer's counsel.
Justice Tom C. Clark: Which page are you on, page 15?
Mr. John P. Schofield: No Your Honor, it's the white brief which the superior officer's counsel supported our contention both 210 and 290.
It's a -- by a --
Justice William J. Brennan: I don't have any like that.
Justice William O. Douglas: Apparently, hasn't been distributed?
Justice Byron R. White: How about this, if the white (Inaudible)
Mr. John P. Schofield: I -- Assistant District Attorney pointed out that's also in page 5 of their respondent's brief, the statutes of --
Justice Byron R. White: Something your own (Inaudible) -- that you give on page 7 doesn't indicate anything in order to answer over the objective.
Mr. John P. Schofield: On our brief?
Chief Justice Earl Warren: There is such a brief -- there is such a brief filed here but for some reason that is not been distributed, it was filed on January 17th.
Justice Byron R. White: (Inaudible)
Mr. John P. Schofield: Actually Your Honor, have answered that question, we must look up above in 381.
At 381, the Penal Law states, it may be conferred.
Justice Byron R. White: I know but before it even says how it's conferred and all it takes to confer it as an objection in an order to answer.
Mr. John P. Schofield: If Your Honor please, I was going to leave this to Mr. Gressman, I might but I believe it's been fully answered in the amicus brief.
I'm sorry it hasn't been distributed and I've done over my time with reference to that.
But in the amicus brief, the superior officer's counsel had answered that specifically was not my --
Justice Byron R. White: Well, is Mr. Gressman going to touch this?
Mr. John P. Schofield: Yes, yes he will Your Honor.
I was just pointing out the differences and I believe I have gone into the various differences between Stevens and Regan with reference to the factual and legal difference of course.
The main point at the time of Stevens, he had the advantage of the Malloy decision that would -- may -- now made the Fifth Amendment applicable to the states which Regan did not have at that time.
And with that, I want to turn the (Inaudible) over here to Mr. Gressman going to the constitutionality in question.
Chief Justice Earl Warren: You may.
Mr. John P. Schofield: Thank you.
Argument of Eugene Gressman
Mr. Eugene Gressman: Mr. Chief Justice, and may it please the Court.
In connection with the change in this immunity statute, there is no question to what there has been a significant constitutional change or at least in its impact the -- this Court as stated in the Regan opinion itself, recognize that a change had occurred but that it was not applicable in that case because the operative effects in Regan had occurred before Section 381 of the New York Penal Law had been amended.
And -- but the change is noted in the footnote to the -- in the opinion and it is several times referred to in the opinion that it was critical to the decision in that case that the immunity statute read as it did at the time of the operative effects in Regan.
But a change significantly occurred and we maintain that the change is such as to cause that the Regan case and the rationale to be completely inapplicable because no longer is there absolute immunity given to the witness called before the grand jury that the -- under Section 381 has amended and the new Section 2447, it becomes discretionary with the grand jury whether or not it will confer immunity.
Justice Potter Stewart: Mr. Gressman, if it's given however, it's just as broad is it not, as the statute provided -- as the immunity provided by the statute in the Regan case.
Mr. Eugene Gressman: It is.
It -- I think that's true Your Honor.
Now the New York Court of Appeals in People versus Laino which is cited in all of the briefs I believe, has authoritatively construed this change in the immunity statute.
And is -- did so in this case -- in these words, that the defendant merely by testifying and that is what Regan did or would have done, did not -- does not receive automatic immunity for all time as to any transaction, matter or thing revealed by him as he would have prior to the enactment of Section 2447 of the Penal Law.
Prior to Section 2447 at the time of Regan, of course, in a conspiracy or bribery case, the applicable statute provided for such automatic immunity unless the witness executed that waiver --
Justice Byron R. White: Mr. Gressman, do you claim though that he has that -- well, under the change, he must claim the privilege and then be ordered to answer.
Now that --
Mr. Eugene Gressman: That's right, this (Voice Overlap) -- the District Attorney --
Justice Byron R. White: And then -- and once he's ordered to answer and he answers --
Mr. Eugene Gressman: Then the grand jury confers -- says (Voice Overlap) given immunity.
Justice Byron R. White: Well, that in itself is a conferral of immunity.
Mr. Eugene Gressman: That is not completely clear under the statute but just the --
Justice Byron R. White: Well, can you tell me some case or some provision of the statute which says anything else needs to happen?
Mr. Eugene Gressman: Well, let me go ahead with this brief quotation from the Laino case which goes on to say that briefly summarize the new Section 2447 provides that to obtain complete immunity, a witness including a perspective defendant must one, affirmatively claim his privilege against self-incrimination.
Two, be directed or ordered to answer by competent authority for instance, a grand jury at the request of the prosecutor and three, testify.
Justice Byron R. White: Right.
Mr. Eugene Gressman: Now --
Justice Byron R. White: That's all there is to it and immunity follows from those events.
Mr. Eugene Gressman: No.
The Court goes ahead and says that the -- well, you would have to comply with all those procedural steps Your Honor --
Justice Byron R. White: But what the --
Mr. Eugene Gressman: -- in order to get complete immunity but --
Justice Byron R. White: What (Voice Overlap) occurred in the --
Mr. Eugene Gressman: But --
Justice Byron R. White: Is that --
Mr. Eugene Gressman: But Your Honor, you see, all of that is premised upon the discretion of the grand jury and the prosecutor to go through those procedural steps which are said to be essential to the conferral of immunity.
And under these circumstances which we have detailed at lengthen our brief in which are evident it seems to me, there was no indication that the prosecutor or the grand jury in this case if Stevens had gone ahead and testified would have conferred immunity.
The whole idea was -- the whole atmosphere was, you've waived your immunity and you -- no matter what you or anyone else tells you they told Stevens, you have no immunity --
Justice Byron R. White: But he was asked a question, he claimed the privilege and he was ordered to answer.
Mr. Eugene Gressman: Well, no.
He was not ordered to answer pursuant to Section 2447.
Justice Byron R. White: But he (Voice Overlap) -- he was ordered to answer though.
Mr. Eugene Gressman: You have to invoke -- you have -- the prosecutor has to proceed according to 2447.
He can -- this does not come about automatically.
It has to be done knowingly and it says, unless everyone of these steps is pursued, immunity shall not be conferred on any person except in accordance with the provisions of this Section and there must be this explicit request from the District Attorney to the grand jury to command the grand jury -- or to tell the grand jury --
Justice Byron R. White: There (Voice Overlap) --
Mr. Eugene Gressman: -- to command him to answer.
Justice Byron R. White: -- having the state court said -- held in this case that he really did get immunity?
Mr. Eugene Gressman: No.
The Second Circuit said by -- just by reference to this provisions and incidentally --
Justice Byron R. White: How about the Appellate Division, they relied on Regan and then one fundamental legs of Regan as you say is that he obtained immunity one way or the other.
Mr. Eugene Gressman: Well, I don't believe the -- they expressly --
Justice Byron R. White: And did the Appellate Division decide that in this case?
That's what's the opinion says --
Mr. Eugene Gressman: Well, there -- they don't --
Justice Byron R. White: -- and the Court of Appeals denied their review of it.
Mr. Eugene Gressman: They don't spell out that he -- the fact as I recall --
Justice Byron R. White: And Judge Weinfeld certainly thought Regan was (Voice Overlap) --
Mr. Eugene Gressman: Yes Your Honor and --
Justice Byron R. White: -- cited in this case.
Mr. Eugene Gressman: But we feel that the significance given by this Court in the Regan decision itself to the original version of this and the fact that the New York Court of Appeals says, you no longer get by virtue of the statute an automatic immunity.
You see in Regan and at the Regan's time, it didn't make any difference whether he was commanded to talk or not.
Justice Byron R. White: Yes but (Voice Overlap) the New York courts decided in this case that the events occurred which would have given him immunity since the New York courts thought that Regan was --
Mr. Eugene Gressman: Well --
Justice Byron R. White: -- applied and covered this case.
Mr. Eugene Gressman: It seems to me that it was not the function of the New York court to declare whether immunity has been established or not here because the procedural steps had not yet occurred and this is precisely the reason why this is constitutionally different because it's not up to the courts to say anymore, the New York state courts to say, you have automatic immunity because you are directed to answer or because you claimed your privilege because it have to go through the precise automatic -- the precise discretionary steps that have been outlined in the new Section 4447 and Section 381 says, “In those circumstances, the grand jury then may infer immunity if it so sees that it in its discretion and not as a matter of automatic immunity attaching by virtue of the statutory command.”
Chief Justice Earl Warren: We'll recess now.
Mr. Gressman, you may continue your argument.
Mr. Eugene Gressman: Concluding my references to the change in the immunity statute, I would like to summarize the change in this sentence.
If Regan had gone ahead and testified and the waiver were later bound to be invalid, there's ab -- there was absolutely no question but under 381 as then written, he would have been assured of receiving immunity from prosecution.
In Stevens' case on the contrary, Stevens gone ahead and testified and the waiver were subsequently found to have been in -- and legally induced.
There is no assurance that he would have had immunity at that point.
It would have been depended upon the discretion of the District Attorney and the grand jury as to whether they would have conferred immunity and it is entirely possible that in their discretion and under the circumstances of this case, they would not have bargained an answer in return for conferring immunity at the time of the grand jury proceeding.
Justice John M. Harlan: Doesn't the Appellate Division proceed on the assumption that there wasn't (Inaudible)
Mr. Eugene Gressman: It proceed on that assumption, yes Your Honor, and so did the Second Circuit.
Justice John M. Harlan: (Inaudible) but it does (Inaudible) I suppose what we've been (Inaudible)
Mr. Eugene Gressman: It would in -- only in this sense Your Honor if that were the only decisive difference between this and the Regan case.
Now as we've developed at length in our briefs, there are other distinctions which equally distinguish the Regan case and one is the entrapment which incurred in the facts of this case involved in this petitioner before the grand jury for having --
Justice Potter Stewart: Just before you leave the -- your claim difference in the kind or nature of immunity in this case from that which was conferred in the Regan case.
As I understood, let's put to one side for a moment the statute which applies to public officers.
Let's just take an ordinary witness who was called in there.
Now, in the -- in a grand jury investigation of bribery or whatever it is that this statute covers.
He is asked questions by the grand jury.
Well now, he hasn't any constitutional right to refuse to answer those questions on the ground that they might incriminate him.
And the grand jury might be sat -- or be satisfied with that.
They might not be that interested in his testimony so then he doesn't answer and that's the end of it.
But in order for them to compel him to answer, they have to at that point, tell him and explicitly tell him, do they not, that he say, having conferred upon him immunity from any prosecution, immunity as broad as the constitutional privilege, that's much is clear isn't it?
Mr. Eugene Gressman: That's -- I think is true Your Honor, yes.
That -- but that never occurred here.
Justice Potter Stewart: We're forgetting now about this policeman.
We're just -- but in any event, before he answered it, it would occur.
He would know one way or the other whether he had the immunity.
If he didn't, he wouldn't be required to answer.
And if he did and if the immunity were as broad as the privilege then he would be required to answer.
Mr. Eugene Gressman: I think that must be implicit and necessarily involved in this new statutory scheme, because otherwise, the defendant would be -- as indicated had a complete loss as to whether he should answer or not, “Am I going to get immunity or not.”
Justice Potter Stewart: Right.
And so he could refuse to answer on the ground of self-incrimination until or unless he was given immunity as broad as the privilege.
Mr. Eugene Gressman: Right.
Justice Potter Stewart: And this man made a partial waiver of his immunity which he -- which you say was coerced and which you also say he later withdrew.
But in any event, he did partially waived his immunity but in any event, he could refuse to answer at the outset and then and only then, wouldn't it be true that he would learn whether or not he was being given immunity except insofar as he had a waiver.
Mr. Eugene Gressman: That's the way I understand the whole purpose -- the purport of this statutory scheme (Voice Overlap) --
Justice William J. Brennan: Well, Mr. Gressman --
Justice Potter Stewart: So while it's not automatic as it was in Regan --
Mr. Eugene Gressman: That's right.
Justice Potter Stewart: In any event, once conferred and if conferred, it's just as broad as it was in the -- is it not?
Mr. Eugene Gressman: Just as broad, yes it's complete but it's discretionary.
Justice William J. Brennan: But why does -- why doesn't the grand jury -- if that's it, the grand jury choice is, alright, let them rest on this subject or command him to answer.
Now why doesn't the command to answer, why isn't that the exercise of discretion which carries with it the immunity.
I don't understand that the grand -- why should they form the grand jury has to say.
I command you to answer and I now tell you by answering you have complete immunity.
Why (Inaudible) was permanently (Inaudible)
Mr. Eugene Gressman: There has to be something to that nature but in any event not even that occurred here Your Honor.
Justice William J. Brennan: (Inaudible)
Mr. Eugene Gressman: The form of the grand jury never -- the grand jury itself never commanded him to answer.
He was simply asked a question by the Assistant District Attorney, “I declined to an answer”, and that was the end of it.
Justice Abe Fortas: Are you referring Mr. Gressman to the Laino case?
Mr. Eugene Gressman: Right, in 10 New York 2d.
Justice Abe Fortas: The Court -- Yes, that's the --
Justice William J. Brennan: The order here was from the judge, wasn't it?
Mr. Eugene Gressman: Ultimately, it was to -- from the judge but it was premised on the same theory as in the grand jury room that -- but -- the immunity in this case would have had to come from the grand jury, not from the judge.
Justice Abe Fortas: Well that Laino case seems to have indicate the privilege with considerable liberality, wouldn't -- would you disagree with that characterization?
Mr. Eugene Gressman: Well --
Justice Abe Fortas: How about the Court of Appeals' decision in Laino now.
Mr. Eugene Gressman: That's a -- say the least a rather complicated opinion, it's not entirely clear with all the ramifications of it but in the context of this case, it seems to be where the immunity if any rest upon the statute, 381 is amended in 2447 that they make it clear that unless those provisions are expressly followed and procedurally before the grand jury, no complete immunity can follow.
There is one other thing I would like to leave with you, Your --
Justice Abe Fortas: It seems to me that it's the least arguable that in Laino, the Court of Appeals have indicated the immunity even though the procedure there had not been --
Mr. Eugene Gressman: Well --
Justice Abe Fortas: -- followed.
Mr. Eugene Gressman: Even as the amicus brief that we referred to earlier points out, Laino was subsequently indicted because in -- for the same offense because a complete immunity had not been afforded him.
Justice Abe Fortas: Well, that's -- had gone with the court -- appellate courts yet, has it?
Mr. Eugene Gressman: Well, I think that came up here on certiorari and was denied.
Justice Abe Fortas: The subsequent case?
Mr. Eugene Gressman: Yes.
Yes, that is referred to in some length in that amicus brief.
Chief Justice Earl Warren: Mr. Gressman, I don't want to take much of your time but do I understand that it is your position that before immunity can be granted, there is a discretion resting in both the grand jury and the District Attorney.
Mr. Eugene Gressman: That's the way I read 2447.
Chief Justice Earl Warren: And the --
Mr. Eugene Gressman: Both will cooperate.
Chief Justice Earl Warren: In this -- and in this case assuming that the grand jury did -- was willing to grant him immunity the District Attorney was not because he said, "He gave warning every time that if the man testified, they're going to prosecute him on his own testimony, and is that right?
Mr. Eugene Gressman: That's right Your Honor.
At the very least, you cannot say with assurance as you could -- as you said in Regan that Stevens would have received (Inaudible) complete immunity from the grand jury.
That -- and that assurance was what -- was the predict -- essential predicate of the Regan rationale.
I would also like to leave with you one further thought in distinguishing the Regan case and that is the confusing entrapment to which the Assistant District Attorney put this petitioner, having told him that you've waived immunity.
He constantly says, “And you understand that any time, you can invoke your privilege against self-incrimination under the United States Constitution.”
And when he proceeded to do that, he then found himself entrapped into a contempt citation and a jail sentence.
Now, we maintain that under the similar facts and decision in Raley v. Ohio that this constitutes an unconstitutional entrapment which was not involved in the Regan case.
And is sufficiently different on the whole factual atmosphere of the case -- two cases to distinguish the situation here from that in Regan and to make its reasoning inapplicable.
But to go ahead to the ultimate constitutional question which is before Your Honors, I submit that the combined effect of the state constitution and city charter provisions is to run directly contrary to the principle established by this Court in Malloy v. Hogan as applicable to states to wit the principle that the Fourteenth Amendment forbids the states to resort to imprisonment to compel him to answer questions that might incriminate the individual.
And why is that true in this -- and with respect to these two provisions?
I think the answer to that lies in the corollaries to the basic principle which were recognized in Malloy v. Hogan.
The first of which is that every person has a right to remain silent in the unfettered exercise of his own will which necessarily implies that you have a right to waive your immunity in the unfettered exercise of your own will.
And the second principle in Malloy v. Hogan is that the individual shall suffer no penalty or burden because he freely elects to remain silent.
Now here, I submit that both of those principles were violated.
This petitioner, because practically at the invitation or the advice of the Assistant District Attorney to the effect that he had this privilege against self-incrimination, and because he exercised it, he suffers not only the loss of his employment, contention rights, but he goes to prison for having refused to answer an incriminating question in reliance upon the federal privilege what the prosecutor repeatedly said was available to him.
Moreover, and perhaps even more importantly, the impact of these provisions at the time he invoked the privilege or made the determination as to whether to invoke it or not, completely destroyed his unfettered exercise of his own will.
The choice at that point was no longer whether he should remain silent or whether he should speak.
The question was -- put to him in these terms, either you waive your privilege and speak and incriminate yourself if we're right that there was no complete immunity available to him or you will lose your job, your employment rights and your pension rights, and in addition, you will go to jail for contempt in refusing to answer an incriminating question.
Now, it seems to me obviously that that time of a choice is one that no state can constitutionally impose upon an individual when confronted with an incriminating question.
It's precisely the kind of an unconstitutional choice which this Court referred to in Frost against Railroad Commission as a choice between a rock and a whirlpool.
An option to forego a privilege which may be vital to his livelihood such as public employment or to submit to a requirement which may constitute an intolerable burden to wit waiving an immunity and incriminating himself.
And the fact that this petitioner did sign a waiver of immunity without advice of counsel and did then to the pressure of this choice does not change the situation, one with constitutionally speaking because the coercive impact of this upon the petitioner was nonetheless obvious by virtue of the fact that he took the choice which seemed to him at the moment to be in his best interest.
But it was nonetheless a choice which the state could not have forced upon him constitutionally.
And the result of that choice I repeat is to run back directly to what was outlawed in Malloy v. Hogan that he has been imprisoned as a result of making one of these choices put upon him, imprisoned because he refused to incriminate himself and relied instead upon his privilege against self-incrimination.
Now what justification does the state offer for this illegal choice?
They say various things.
One is that a waiver of the Fifth Amendment is a valid condition of public employment.
And if the state must have freedom to ferret out crime among its employees that policemen are especially obligated to cooperate in investigations into their official conduct.
But the critical question is how can the state's interest if that would be a valid interest, be manifested under the constitution.
Well, I suggest that if that interest is recognizable, it is recognizable solely in terms of the employment relationship and that is not involved in this case whatsoever Your Honor.
In answer to -- with the reference to the Chief Justice's earlier inquiry, I suggest that we do not have to reach the question whether the employment forfeiture and discharge of this petitioner was valid or not.
That is not the questions involved.
These are solely contempt proceedings and if there's an independent proceeding going on as to whether the employment discharge here was valid or not.
But in any event, the question as to whether the states interests in -- and in waiving -- having the employee cooperate is something that can be exhibited only in terms of proper disciplinary proceedings involving possibly discharge and pursuant to due process requirements.
And that is all the courts have ever held that have indicated that policemen or public employees are under an obligation to cooperate and not to plea the Fifth Amendment.
The state's interest is solely in terms of the employment relationship but I suggest that the state cannot exert its interest here in such a way as it has in this case so as to destroy the public employees' privilege against self-incrimination until the result being to put him into imprisonment for having elected to remain silent in the face of an incriminating question.
But the Fifth Amendment put it differently, said that no person shall be compelled to incriminate himself in a criminal proceeding and there is no exception in terms of public employees or policemen, and so that no more than an employee cannot be imprisoned by a state for having asserted the First Amendment of free speech no less should a state would be prohibited from imprisoning an individual and a public employee if you will because it wants him to incriminate himself and that he has relied instead upon his privilege against self-incrimination.
So that anyway you look at it, these provisions get back to the principle which Malloy v. Hogan and prior cases that long since established that the state simply cannot resort to imposing such a choice as these provisions may, a choice upon the individual to compel him to answer questions that might incriminate him and particularly so in the absence of an absolute automatic immunity statute available to him without any discretion whatsoever on the part of the grand jury or the District Attorney.
Unknown Speaker: Mr. Gressman --
Justice William J. Brennan: But if there had been such a statute, would you make the same argument?
Mr. Eugene Gressman: I certainly would Your Honor but I think there are other differences in the Regan case that I've indicated and the whole of constitutional atmosphere that were changed that was brought by Malloy v. Hogan.
We are dealing now unlike Malloy -- and unlike the Regan case we are dealing now with a privilege which is federally protected by the Fourteenth Amendment.
In Regan's day, it was not protected by the United States Constitution and I think that the Court might well have --
Justice John M. Harlan: Was there an assumption to bring in the (Inaudible)
Mr. Eugene Gressman: Well, there was an assumption that was certainly not necessary because the -- it was well established at that time that the privilege did not apply to state proceedings and the Regan case itself has a cf. Adamson v. California at the very beginning of the first paragraph of that opinion and --
Justice John M. Harlan: (Inaudible) spoke of Regan.
Unknown Speaker: From the time pending (Inaudible)
Justice John M. Harlan: (Inaudible)
Mr. Eugene Gressman: But you see, Regan essentially was a due process case and the only question that conceivably have been involved there was whether the proceedings at that time were sufficiently unfair as to constitute a denial of due process in a procedural sense under the Fourteenth Amendment without reference to any federal privilege against self-incrimination.
Justice Byron R. White: But even if it were clear, even if it were clear here would you say it isn't, and therefore because it isn't clear, you don't ask us to overrule Regan.
But even if it were clear that there was immunity here, you would say that this contempt conviction could not be sustained?
Mr. Eugene Gressman: Yes Your Honor that I think there are a variety of reasons for that both constitutional, factual and --
Justice Byron R. White: But let's assume that the Court didn't agree with you on that.
That if there was immunity here, he had to answer, then how do you decide -- where do we look to decide whether there was immunity?
In the state law I guess --
Mr. Eugene Gressman: Yes, the state law.
Now, it may be that --
Justice Byron R. White: I think it's clear enough here that we could just read the state law as contrary to what the implication is in the Appellate Division and in the Federal District Court that this --
Mr. Eugene Gressman: Well --
Justice Byron R. White: -- that the events here did not result in a -- in the grant of immunity?
We just (Voice Overlap) --
Mr. Eugene Gressman: Every -- as Mr. Justice Harlan pointed out the -- both the Appellate Division and the Court of Appeals for the Second Circuit, both made flat statements without really examining into it.
It seems to me that there was --
Justice Byron R. White: Do you think that we should do it on our own here to say -- either say, “Yes, there was an immunity.”
Mr. Eugene Gressman: Well, I think the -- myself that the -- as far precedent is concerned that the New York Court of Appeals' opinion in the Laino case clearly shows as authoritative interpretation I think is -- as we could want that the automatic immunity --
Justice Byron R. White: When was Laino decided?
Mr. Eugene Gressman: Pardon.
Justice Byron R. White: When was Laino decided?
Mr. Eugene Gressman: 1962 I believe.
Justice Byron R. White: Well, this was before the court -- the Federal District Court after the (Inaudible) is that it?
Mr. Eugene Gressman: That's true, yes.
Justice Byron R. White: And the Federal District Court thought -- sought this case, was it governed by Regan which automatically means that there was immunity.
Mr. Eugene Gressman: Well, I can only suggest that there was incomplete analysis of the problem.
There's no reference in any of the opinion.
Justice Byron R. White: But it is a state law question.
Mr. Eugene Gressman: That's right.
There's no -- except that I think it now becomes a federal constitutional importance and significance as to whether or not there is complete immunity available under a state statute.
Justice Byron R. White: No, but it says -- but I agree with that.
I agree with that, its federal protection on the privilege but it's one of the fundamental legs of deciding in the state law question.
Did the state -- it was under the state statute this defendant's granted immunity here or wasn't he?
Mr. Eugene Gressman: But we have also in addition of the various factual considerations here included among which is the writ -- is the statement by the Assistant District Attorney that you do not have immunity.
And we have here a factual situation --
Justice Byron R. White: I know but the District Attorney isn't going to be able to say whether there is or isn't immunity if the statute says upon the happening of certain events, there is immunity and that the District Attorney can talk all day (Voice Overlap) --
Mr. Eugene Gressman: But under the Laino case Your Honor, it is very clear that the District Attorney must and is the critical person who begins to put in the operation --
Justice Byron R. White: Judge Weinfeld (Voice Overlap) --
Mr. Eugene Gressman: -- the --
Justice Byron R. White: Judge Weinfeld knew about Laino and he didn't compare, he agreed with it.
Mr. Eugene Gressman: Well, I dis -- must respectfully disagree with the analysis in that opinion if to -- if it results in the conclusion that there is necessarily automatic immunity here because the New York Court of Appeals, it clearly shown in its Laino opinion that this immunity is not automatic the way it was before the Regan decision and --
Justice Byron R. White: You're saying that at least -- the very least the New York statute, the new form it means is that the prosecutor or the court or the grand jury or somebody has supposed -- has to intend to know that they're granting immunity before the -- before its (Voice Overlap) --
Mr. Eugene Gressman: Precisely Your Honor and they must go through the procedural steps.
There are three or four of them mentioned in the Laino opinions --
Justice Byron R. White: Specific steps that are taken there were pretty well satisfied here it seems to me but --
Mr. Eugene Gressman: No Your Honor.
There was no order from the grand jury to answer.
Justice Byron R. White: Well, it had to be from the grand jury.
Mr. Eugene Gressman: Yes Your Honor, it would here.
Justice Byron R. White: Well 381 says the -- says the court magistrate or grand jury make it for immunity.
Mr. Eugene Gressman: That's the court magistrate or grand jury before whom the proceeding is going on.
And the proceeding here was going on before a grand jury and that becomes the competent authority under 2447 to confer immunity.
Justice Byron R. White: Well, you say this was -- you mean it was improper to bring this man before the judge and have him order to answer?
Mr. Eugene Gressman: Oh no Your Honor.
Justice Byron R. White: Well, it --
Mr. Eugene Gressman: I suppose happens all the time that that -- that's the --
Justice Byron R. White: Well, I think that's the proceeding there?
Mr. Eugene Gressman: But he was merely implementing the power of the grand jury, he thought to compel the answer.
Justice William J. Brennan: Well, Mr. Gressman, apart from this argument, do I correctly understand you to contend that the constitutional and charter provisions, since failure to waive means loss of a job, impose that kind of pressure for waiver that the only possible consequent constitution if there is no waiver and the privilege you derive upon it, no matter what they say about we give you immunity, no matter what they say about that, that that's the kind of pressure which means that at least under the doctrine in Malloy and Hogan, there may not be a criminal prosecution or even a criminal contempt proceeding followed but the maximum effect could be the loss of the job.
Mr. Eugene Gressman: Precisely Your Honor.
Justice William J. Brennan: That is your argument.
Mr. Eugene Gressman: That is precisely the argument that that kind of coercive pressure put upon him even before and he thought he could've been given about immunity.
But to tell him to -- that even before he went in the grand jury room, you've got to sign this waiver or you're going to lose your job.
You've got to testify or you've lost your job.
Now this is a kind of choice that completely destroys the essential freedom that surrounds the Fifth Amendment privilege and what -- whether immunity then follows or not it seems to me, constitutionally speaking is irrelevant in these peculiar circumstances.
Justice Hugo L. Black: On the question of immunity, suppose it's so doubtful that even this Court can't tell whether defendant has been promised immunity, how should be construed.
Mr. Eugene Gressman: That should -- what be construed, Your Honor?
Justice Hugo L. Black: So doubtedly, you argue that he didn't comply with the steps the District Attorney said you don't get it.
On the other hand, somebody says, "Well, technically you have it."
Now what's the duty of the court in determining whether a man can go to jail for contempt who is not been clearly granted immunity?
Mr. Eugene Gressman: Well, it seems to me that this circumstances under so many variety -- and these cases replete with unusual and in tracking sort of the factual situations here that make it unfair to say the least to force this man into prison for having waived the privilege which was -- surrounding which he had no freedom to -- in the first place.
And secondly, he was constantly advised by the Assistant District Attorney that you can invoke this privilege at anytime despite your waiver of immunity and you're not going to get any immunity in any of that.
It was --
Justice Hugo L. Black: I suppose we don't have to assume that he was a lawyer and could decide this --
Mr. Eugene Gressman: No, it should be the --
Justice Hugo L. Black: -- but it should (Inaudible) it's a matter of constitutional law.
Mr. Eugene Gressman: The complete combination of circumstances I think here are more than adequate to completely distinguish the Regan case on factual and legal as well as constitutional grounds.
Chief Justice Earl Warren: Mr. Gressman, because our questioning deprived you with your five minutes that I know you want to reserve, you may have five minutes in rebuttal and Mr. Uviller, you may have extra five minutes if you wish it too.
Argument of H. Richard Uviller
Mr. H. Richard Uviller: Mr. Chief Justice, may it please the Court.
I should like to address myself at the outset to a matter which has obviously troubled the Court during the presentation by the petitioner.
And that is the question of whether he would have received immunity under New York law.
Had he been correct in his contention that his waiver of immunity was invalid?
I'm sure they were all agreed to the outset that if the waiver was indeed a free and valid waiver of immunity then a contempt conviction could lie for compelling him to answer questions pursuant to such a waiver.
The real question is, could he be compelled to answer questions if he was right and his waiver of immunity was in fact --
Justice William J. Brennan: Well, Mr. Uviller --
Mr. H. Richard Uviller: -- invalid.
Justice William J. Brennan: The answer Mr. Gressman just gave me doesn't indicate that what you've said he agrees with that assuming that it was a valid waiver, I thought his whole point was that no matter what kind of immunity they gave him, the course -- and as he phrases it of the loss of job which invokes the waiver in it of itself is sufficiently of course so that at least for the purposes of a criminal prosecution even a criminal contempt that the statute is unconstitutional.
Mr. H. Richard Uviller: As I understand his position Mr. Justice Brennan, it is that the coercion invalidated the waiver and so that the question of whether this -- the New York constitutional provision is unconstitutional really goes to his contention as to the validity of the waiver.
Justice William J. Brennan: Well, perhaps if that that's what he meant, I didn't understand it.
Mr. H. Richard Uviller: As a matter of fact, he has asserted our position from the outset.
At the time that he was before the judge in the Supreme Court where -- ordered him to answer, he asserted that position that the constitutional provision was coercive and the waiver has not been freely given and consequently, he couldn't be compelled to answer pursuant to that waiver.
It was the people's position at that time and it still is the people's position that that waiver was not coerced and it wasn't valid in finding waiver.
But with respect to Regan, the question that we must ask ourselves is what if he was right.
I suppose the waiver was invalid for one reason or another or would he have been completely protected?
I suggest to the Court that on that question, this Court is bound by the decision of the Court of the State of New York.
And moreover, it is not merely implicit in that court's reliance on Regan, it is quite explicit and I quote now from the record in 210 where the memorandum decision of the Appellate Division is reproduced on page 43 where the Court says, “If the waiver were invalid, petitioner would have received immunity from prosecution under Sections 381 and 2447 of the Penal Law.
Justice Byron R. White: What was the date of that decision?
Mr. H. Richard Uviller: That decision was October 30th, 1964 in this case.
Justice Byron R. White: That was after Laino or whatever that --
Mr. H. Richard Uviller: Yes indeed.
Justice Hugo L. Black: What page is that?
Mr. H. Richard Uviller: That was on 210 Mr. Justice Black at 43.
The Circuit Court --
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: I beg pardon?
Justice John M. Harlan: Does 381 says that (Inaudible)
Mr. H. Richard Uviller: 381 as amended, there still be --
Justice John M. Harlan: As amended?
Mr. H. Richard Uviller: Yes.
The previous automatic immunity was under the former Section 381 but there is still a 381 which provides that immunity may be granted in prosecutions for a certain nature of crime pursuant to the provisions of 2447.
2447 is the new statute that provides the procedures.
The Second Circuit Court of Appeals was exactly as explicit on page 61 of 290.
That court said, and I'll have to skip a few words, but it said in effect, “Indeed if Stevens' waiver is defective as we view the relevant provisions of the State Penal Law, immunity from prosecution will automatically follow,” and they cited 2447.
So that there is -- I suggest at this point nothing for this Court to decide as to whether or not he would have received immunity from prosecution pursuant to state law if he had followed the Court's directions and responded.
Now if that is conclusive as we submit it is, then this case is factually indistinguishable from the Regan case.
Now it's true that there has been a major change in the law in New York as there has been the federal law as to the procedures by which immunity is granted prior to the enactment of 2447, anybody witnessed or target called before a grand jury who was asked an incriminating question and answered that question received immunity and that was that.
2447 was intended to be a benefit to the prosecutor.
2447 obviously was to protect the sleepy -- the nodding prosecutor from an inadvertent grant of immunity to a witness who -- to his surprise came out with a self-incriminatory answer.
And it provided that in order to get immunity, the witness must himself alert the prosecutor that he has about to become immunized by asserting his privilege.
At that point, certain procedures have provided by which he can be commanded to answer and if he does, receives immunity.
The federal procedure is precisely the same.
Justice William J. Brennan: You mean, if he -- if the command itself, is there any requirement that you say to the witness and that we're granting him?
Mr. H. Richard Uviller: No there is not.
The -- under the competent authority section of 2447, it is provided that the form in -- on the expressed request of the District Attorney shall order the witness to answer does not say that he shall explain to him that he has received immunity.
It also says that the Court may order a witness who asserts his privilege to answer presumably without the question of the District Attorney in a matter except a proceeding before the grand jury.
So the only real question here is whether or not the Court in this case in ordering, it was acting on behalf of the form and whether or not he was a competent authority.
I suggest there's no real question here in as much as it was decided below that immunity would have been granted.
And furthermore, it's -- I think quite unusual to assume that a District Attorney could under these circumstances ever assert in the future that the man had not been granted immunity because the technical requirements of 2447 were not complied with.
And the law of the case as decided by the Appellate Division is to that effect.
Now, in the Laino --
Chief Justice Earl Warren: Mr. Uviller, is there any discretion in the District Attorney as to whether a man will get immunity for his testimony before the grand jury?
Mr. H. Richard Uviller: Yes Mr. Chief Justice, there is.
As to immunity in the Counselman against Hitchcock sentence, immunity in the Counselman against Hitchcock sentence may be conferred only pursuant to 2447 in New York and that does require the District Attorney to make an election just as it requires the witness to make an election of asserting his privilege.
However, we do have in New York and this is where it gets really unfortunately complicated, another kind of testimonial protection and that is the type of testimony and protection that was involved in the Laino case.
That is not, strictly speaking, immunity in the Counselman against Hitchcock sense.
It is not complete protection against prosecution of such a nature as it will supplant or replace privilege against self-incrimination but it is a form of protection.
And what it is, is simply this and this is decided in the case of People against Steuding in New York cited in our brief by Judge Fuller, written by Judge Fuller.
Judge Fuller says that notwithstanding the provisions of 2447 in New York where a target of an investigation or a potential defendant is called before a grand jury he is there illegally at the start.
He said that a potential defendant derives his rights against self-incrimination directly from Article I, Section 6 of the New York Constitution which provides that he shall not be a witness against himself.
So that if the prosecutor does in violation of his rights call him and swear him as a witness before the grand jury, he acquires a certain type of protection and that protection is that he cannot be indicted by that grand jury.
He cannot be punished for contempt if he fails to answer.
He cannot be punished for forgery if answers falsely because the oath is not validly administered to say and he cannot be prosecuted on the basis of any evidence that may have been uncovered by virtue of his testimony.
However, as occurred -- as was upheld by the appellate courts when Steuding's co-defendant was reindicted by a fresh grand jury he maybe reindicted or indicted by an -- only if a different grand jury acting upon fresh and independent evidence.
In effect, it is the kind of protection which this Court's action in Murphy against The Waterfront by overruling the Kelvin case.
Nonetheless, this is a form of protection which does attach in New York automatically if the potential defendant himself is called as a witness.
That was the basis of the Laino holding and that was the basis of Steuding against Ryan.
Chief Justice Earl Warren: Now, --
Mr. H. Richard Uviller: The --
Chief Justice Earl Warren: -- may I ask you this question then.
Was -- whatever the discretion the District Attorney have in relation to immunity exercised in this case in favor of granting this petitioner immunity.
Mr. H. Richard Uviller: No Mr. Chief Justice, it was not.
The District Attorney took the position that this particular defendant was not entitled to a grant of immunity in exchange for his testimony because he had executed a waiver of that immunity, however, despite the District Attorney's failure to exercise his discretion in that regard, the courts of New York have held that if the defendant had answered the questions albeit on a different theory, he would nonetheless have been immunized.
Chief Justice Earl Warren: He will -- he would have been immunized.
Mr. H. Richard Uviller: Yes Your Honor.
Chief Justice Earl Warren: Now where do we find that?
Mr. H. Richard Uviller: Well, I was trying to pinpoint --
Chief Justice Earl Warren: Can we find that under this new Act --
Mr. H. Richard Uviller: Yes Your Honor.
Chief Justice Earl Warren: -- or was that under the old Act?
Mr. H. Richard Uviller: Well, Mr. Chief Justice, you'll find that in this very case in the decisions below which I read to Your Honor was -- were the decisions in this very case (Voice Overlap) --
Chief Justice Earl Warren: Well, but that's after the fact, isn't it?
Justice Byron R. White: Well, was he -- wasn't the -- didn't the Appellate Division's decision come before his refusing here in one of his case?
Mr. H. Richard Uviller: In the third case.
Justice Byron R. White: Yes.
Mr. H. Richard Uviller: Yes, that's correct.
It's after the fact as to that particular case but not after the fact in a subsequent refusal.
In any event, at the time just before he was held in contempt of the court, there was a colloquy, a discussion before the judge who held them in contempt to court at which time, and this is in the record as well, at which time the District Attorney discussed the applicability of the Regan case which I just come down at that point.
And the District Attorney maintained in the presence of defendant and his counsel to the Court that the Stevens case was indistinguishable from Regan and that the same double protection which was accorded to Regan under the statute which was then applicable would be available to the defendant in this case.
He did not, mind you, abandon his theory that the defendant had waived his immunity.
But he did indicate that if he was wrong in that theory, the defendant would be accorded so that, again, the law of the case is -- from the very outset, the very issues which we are now arguing were known and were before the court and in the defendant's knowledge.
Now I was about to say that the Steuding case and the Laino case have revived the efficacy of this waiver of immunity.
When 2447 was enacted, the slip of paper which is called the waiver of immunity might be thought to have been a -- an anachronistic relic of no further significance because obviously if the only way you get immunity is by asserting your privilege, then presumably the correct way to waive immunity would be to answer the question without asserting the privilege.
And in the point of fact, I'm informed that that is precisely the way potential defendants waive their immunity in federal proceedings.
Nonetheless, we have this slip of paper called a waiver of immunity which before is the people's theory, it is, was binding upon the defendant.
Well the efficacy of that slip of paper becomes apparent when you consider the Steuding case because the Steuding case returns the potential defendant and this petitioner was denominated a potential defendant from the outset.
Returns him to the position he was in, as Regan was, before 2447 not that he receives complete and total immunity but that he does receive very extensive Murphy type of protection if you will.
Consequently, if he did not execute this waiver of immunity, before being sworn, he would have received protection against indictment by that grand jury, a protection against the use of his testimony or his moots in any future proceeding.
Consequently, if that waiver of immunity which he signed was a legally significant and operative act from which legal consequences flow.
In point of fact, there is a law in New York that no potential defendant may be called before a grand jury unless he executes a waiver of immunity.
Consequently, his entry into the floor, the opportunity to express his side to learn the questions which were being asked to see the financial questionnaire which he received in this case and so on was all conditioned upon his execution of that instrument known as a waiver of immunity.
A legally operable act, an act which an adult knowingly undertakes having been fully advised of the consequences is normally binding.
And as a waiver, it is no more, no less finding than in the other legally operable act.
It is not an insignificant promise, a mere undertaking not to assert any privilege but is a significant and operable act.
Now, there has been a much made during oral argument by --
Justice Byron R. White: Excuse me Mr. Uviller, I thought your -- understood you if the waiver is invalid then this defendant shouldn't have been before the grand jury at all?
Mr. H. Richard Uviller: Well, under the Steuding case, this defendant shouldn't have been before the grand jury at all unless he signed a waiver.
In other words, the Steuding decision, it's a short decision Mr. Justice White of -- it's just as baffling as they're short.
It says that 2447 does not apply to potential defendant.
Justice Byron R. White: Well, what if someone actually physically coerces the signing of the waiver of immunity and he was taken before the grand jury and he then refuses to answer and he is held with contempt.
I suppose that -- were then to proved that the waiver was invalid, the contempt is set aside.
Mr. H. Richard Uviller: No, I think not under Regan Mr. Justice White and here's what would happen under that hypothetical.
Justice Byron R. White: Well, yes but he shouldn't have been for the grand jury at all.
Mr. H. Richard Uviller: But Steuding goes on to say that although he shouldn't have been there, if he is there, what he gets is limited protection, not full immunity but close to it.
So that -- while it says, he shouldn't be there --
Justice William J. Brennan: I guess (Voice Overlap) --
Mr. H. Richard Uviller: -- it also provides the effect of calling him.
So within the hypothetical which you posed, he would get two different things at two different times if the waiver were physically coerced (Voice Overlap) --
Justice Byron R. White: Well, they'd have to give him immunity --
Mr. H. Richard Uviller: He would get --
Justice Byron R. White: You have to give him immunity because the information is coming out or --
Mr. H. Richard Uviller: Positively.
He would get Steuding protection from the moment he took the oath.
He would also get complete 2447 immunity from the moment he answer that question under compulsion.
Justice Byron R. White: Yes.
Mr. H. Richard Uviller: So that he's completely protected.
Justice Byron R. White: (Inaudible) they are two different things.
Mr. H. Richard Uviller: Yes, they are somewhat different.
Chief Justice Earl Warren: But Mr. Uviller --
Mr. H. Richard Uviller: What is (Voice Overlap) --
Chief Justice Earl Warren: -- suppose we disagree with you on the validity of the waiver and suppose we hold that he had a right to withdraw his waiver, would he then be entitled to immunity in this case or would be in -- he'd be entitled to exercise his constitutional privilege?
Mr. H. Richard Uviller: Definitely Mr. Chief Justice.
He would be entitled to immunity and he would have received it and if the District Attorney should ever attempt to prosecute him on any of the matters reviewed in that grand jury, he would have a valid defense to such an indictment.
Chief Justice Earl Warren: Well, would you in that case say that -- assuming that the waiver is invalid, would you say that the District Attorney had followed the statute and the grand jury had followed the statute in order to give immunity.
Mr. H. Richard Uviller: I would say that we've followed it substantially that we would be estopped from asserting any technical flaws and that we are bound by the decision below in this case that he had immunity.
Consequently, there is absolutely no question as to Stevens.
Justice Byron R. White: Yes but the Chief Justice saying a -- if the waiver is invalid, he didn't need to answer.
Mr. H. Richard Uviller: Well, he didn't -- oh yes, he did.
He did need to answer the question he was told by the court to answer.
Justice Byron R. White: Alright.
Mr. H. Richard Uviller: He must obey the court's direction to answer because his privilege was being fully replaced by a complete immunity.
Justice Abe Fortas: But what you're saying if I understand it is that this case really didn't turn on the -- whether the waiver is valid or invalid with respect to his duty to answer the questions.
Mr. H. Richard Uviller: We (Voice Overlap) --
Justice Abe Fortas: Or just say that if his signature to the waiver was valid then on your theory, he had immunity and the waiver under your statute is not just a waiver of immunity, it's a waiver of the privilege, is that right?
Mr. H. Richard Uviller: Yes sir.
Justice Abe Fortas: And so he would've had to testify if the waiver was valid in the execution.
On the other hand, if the waiver was not validly executed, if I understand what you're saying, he'd still have to testify because under New York law as construed by the Steuding case, he gets the immunity anyway.
Mr. H. Richard Uviller: Well, not for the Steuding case Mr. Justice Fortas but this very case.
Justice Abe Fortas: (Inaudible)
Mr. H. Richard Uviller: By this very case but of course (Voice Overlap) --
Justice Abe Fortas: Alright, by this very case and sort of post (Inaudible)
Mr. H. Richard Uviller: Yes.
Justice Abe Fortas: Oh, you say -- you say you ought to have had immunity anyway so he had to testify and he didn't testify and therefore his conviction is nothing whatever to do with whether he did or did not execute the waiver of immunity.
Mr. H. Richard Uviller: That is precisely so Mr. Justice Fortas.
And I mean --
Justice Abe Fortas: I'm not saying it so.
Mr. H. Richard Uviller: We have -- no but that is our -- indeed my position.
And as a matter of fact, that has been our position from the outside by asserting as we have throughout the Regan case and by obtaining decisions based on the Regan case throughout.
We were and the courts were in this case, adopting precisely that position and that is that Regan is still operable, it still sound that it is controlling.
This Court did not take certiorari interestingly enough on the question of whether Regan has been modified by Malloy.
It took certiorari on a quite different question.
But we have nonetheless asserted throughout that Regan was offered and I do suggest to the Court that if for one reason or another this Court disagrees with us and believes that Regan has been in some way overruled or has lost its force in effect as a result to either of the change of immunity laws of New York or as a result of Malloy against Hogan.
Then this case should be remanded to the state courts for an opportunity to pass upon the merits of the constitutionality of the New York Constitution where this Court accepted certiorari in the case on the question of whether or not this particular provision of a constitution is parallel to the New York City Charter.
It was unconstitutional.
And that question or low grades was explicitly bypassed by every court below on the grounds that Regan was controlled.
As a result, the case comes to this Court as a case in which the issue, the very issue on which grant was cert -- of certiorari was given, was never decided either in this case or in any other case in the State of New York.
And I suggest that -- for that reason although I propose now to discuss the merits of the question on which cert was granted that certiorari was improperly granted and should be dismissed because I think it is not only as a question not drawn an issue by the decision below but I think that if this Court would be properly reluctant to construe or to rule upon the constitutionality of such an important provision of the state constitution without affording the courts of that state an opportunity to do so first.
Justice Abe Fortas: Before you go to the merits, may I ask you just one more question.
I'm trying to clarify in my own mind the precise issue.
Is there an issue between you and the petitioner's counsel as to the effect of immunity?
Let me put it this way.
Do you understand that petitioner's counsel intend that even if Stevens got a complete immunity, even if he got a complete immunity, he still could not be compelled to testify.
Do you understand that to be their (Voice Overlap)?
Mr. H. Richard Uviller: That's the way it sounded to me Mr. Justice Fortas.
I don't know why he says that because it seems quite clear to me that contempt is a proper means of enforcing a testimony from a reluctant witness who cannot be harmed that way and it has been repeatedly held by this Court and in some quite recent cases that a Counselman against Hitchcock type of immunity does effectively supplant privilege.
Justice Abe Fortas: And you contend that one way or the other somehow, someway there is Counselman against Hitchcock immunity here.
It was --
Mr. H. Richard Uviller: If the waiver is invalid.
Justice William J. Brennan: He says (Voice Overlap) --
Justice Abe Fortas: If the waiver is invalid.
Mr. H. Richard Uviller: Precisely.
Justice William J. Brennan: And that's the --
Justice Abe Fortas: If the waiver is valid, what about that?
Mr. H. Richard Uviller: Well --
Justice Abe Fortas: Is that (Voice Overlap) --
Mr. H. Richard Uviller: -- if the waiver is --
Justice Abe Fortas: -- qualified sort of second class citizen immunity?
Mr. H. Richard Uviller: If the waiver is valid then we come to a second somewhat more difficult question and that is kind of be withdrawn.
Justice Abe Fortas: Right.
Mr. H. Richard Uviller: If it is non-revocable and valid then clearly it would be compelled to answer under the waiver.
He's waived his privilege, he doesn't have them.
Justice Byron R. White: Well Mr. -- if it -- assuming an invalid waiver, assuming that physical coerced or something.
He's before the grand jury and he's ordered to answer and he says, “No, I will not answer.”
If at that point, somehow, a -- you could have had an appellate ruling on his refusal to answer and always assuming the invalidity of the waiver, he would not have had to answer would he?
Mr. H. Richard Uviller: Well, yes.
He would have had (Inaudible) --
Justice Byron R. White: Well, yes but he should have been before the grand jury at all in your state law.
If at that point, you could have had -- had the -- had somebody's -- he'd had an opportunity to say, “Now look, this waiver is invalid, you know it is and I'm not supposed to be before this grand jury at all.
Now you can't make me answer it.”
Mr. H. Richard Uviller: The (Voice Overlap) --
Justice Byron R. White: That's different from saying if he had answered it, he'd get immunity.
Mr. H. Richard Uviller: I -- you put your finger on a very puzzling aspect of the Steuding case Mr. Justice White and all I can say is that the Steuding case has to be read together with the other immunity cases in New York.
And together, they say, that he shouldn't be called but if he is called and immunized, he must answer because no immunity case has ever come up in New York involving anyone except potential defendants.
It's only the potential defendant or the target who is -- who takes his privilege.
It's only the potential defendant who is ever immunized.
Justice Byron R. White: So although he shouldn't be before the grand jury if somebody -- if some judge ordered him to answer nevertheless be put there.
Mr. H. Richard Uviller: Absolutely.
Otherwise, the -- our whole immunity statute which provides --
Justice Byron R. White: So your -- so the idea that he shouldn't be before the grand jury, doesn't mean a whole lot?
Mr. H. Richard Uviller: To me, it means very little with all due respect to the high court of the State of New York.
I -- and for that very reason, I do not understand how at the one hand you can have a legislative program for immunizing potential defendants who assert the privilege and on the other hand, say that they can't poss -- they can't be before the grand jury at all.
I think that really, sensibly speaking all that Steuding holds is that at the time of the oath, the potential defendant receives something that the ordinary witness doesn't receive and that is his Steuding type of protection.
I think that's the only way that it can be read and it says that that is derived from the constitution directly.
Justice Byron R. White: Well, theoretically, under -- you get a writ on that instead of prohibition against the -- at that point, he can run out of the grand jury room and get his (Inaudible)
Mr. H. Richard Uviller: Theoretically under the Steuding case, I should think probably so though I don't know of any instance in which --
Justice Byron R. White: But he never have (Voice Overlap) --
Mr. H. Richard Uviller: -- anyone's that fast, right.
Justice William J. Brennan: What was --
Chief Justice Earl Warren: What is the Steuding type of protection?
Mr. H. Richard Uviller: The Steuding protection is that he cannot be prosecuted for contempt.
He cannot be prosecuted for forgery because the oath was not properly administered to him.
His testimony cannot be used against him in any future prosecution and any evidence that is discovered by virtue of his testimony cannot be used against him in any future proceeding.
The only thing that's left, the only area, the only gap between the Steuding protection and Counselman against Hitchcock protection is that he maybe pre -- indicted in the future by a different grand jury on a wholly fresh and independent evidence, and that in effect did happen in the Steuding case and was upheld.
Chief Justice Earl Warren: Can the fruits of his testimony be used?
Mr. H. Richard Uviller: No sir.
I would say that he is put in the position as though he had never testified at all.
He must be --
Chief Justice Earl Warren: And the court -- has the court said that?
Mr. H. Richard Uviller: I don't know that it was that explicit Your Honor but I don't think it's subject to any other construction.
I think that the -- there is only that -- in fact, the Court did say in the Steuding case itself but one thing we're not passing on here is whether he can be subsequently reindicted by a fresh grand jury on fresh evidence.
And then in the subsequent case, they did pass on that question and said yes.
So, that seems to me the Steuding case gives protection up to that point and complete protection up to that point which is I think the protection which was sanctioned in the Murphy case when you have a cross jurisdictional question.
Now there was a great deal made during the oral argument and in the brief about the petitioner here, of the fact that the District Attorney somehow during these proceedings had consistently and repeatedly told the defendant that he had the privilege still available to him and he uses this as a leaver in order to bring the Raley against Ohio decision to bear upon the case.
In effect, he asserts that we entrap Stevens into the assertion of his privilege and then prosecuted him for it.
I think this is based upon a misconstruction of the record.
And again, I would like to refer to the facts, the procedure that is followed -- the procedure that was followed here.
This defendant signed, physically signed the paper that is called a waiver of immunity before coming into the grand jury.
This is customarily done.
After he got into the grand jury, before he was given the oath and before any mentioned was made at the waiver of immunity, before he acknowledged the signature under oath, he was asked his name and so forth and given instructions by the prosecutor giving advice, very full, very complete.
He was told at the outset that he was a potential defendant and he was told that as a potential defendant, what he said could be used against him.
He was told that as a potential defendant he had the right to assert his privilege against self-incrimination at anytime.
That is the language which he relies upon.
The prosecutor having said, you may assert your privilege at any time.
But mind you, it occurred prior to the administration of the oath during the general instructions as to his rights that were being given to him.
He then was asked, do you see these piece papers?
You know what it is?
You understand what it means?
He was also told by the way about the constitutional provision and said that if you do assert your privilege, don't sign a waiver.
You're subject to forfeiture of your job and was shown the paper, acknowledged the signature, said it was his.
He said he understood what it meant, explained to him again and then he was given the oath.
It is -- the reason for this procedure and the theory behind it is that until he acknowledges that waiver of immunity in the grand jury under oath that it is not an operative document and that the instructions that you may assert the privilege anytime mean that you may refuse to sign the waiver and refuse to acknowledge it, refuse to waive your privilege before this party.
Now it does not mean that having executed the waiver is going to be, you may withdraw that document and rely upon your privilege.
Justice William J. Brennan: Is he told that that's what that statement meant?
Mr. H. Richard Uviller: Well, he wasn't told explicitly but he was told what the waiver of immunity meant and what the waiver of immunity meant was that he waived his immunity and therefore -- and that means he waives his privilege.
The statement that you may assert your privilege --
Justice William J. Brennan: He told that?
Mr. H. Richard Uviller: Yes sir.
Justice William J. Brennan: Then that means he waived his privilege?
Mr. H. Richard Uviller: Yes sir.
Chief Justice Earl Warren: Is that in the record?
Mr. H. Richard Uviller: I -- your -- I dare say it is.
I'd see if I can find the precise page for you Mr. Chief Justice.
Now, I mean to proceed at this point to the merits of the question which is whether or not the provision of the New York State Constitution and the comparable provision of the City Charter which require public officers as a condition of continuing in public office to testify before a grand jury under waiver of immunity to answer questions, bearing upon and only bearing upon their performance of their public office.
It has been argued that this provision provides a penalty upon the assertion of the Fifth Amendment privilege.
It has been argued that the economic consequences to a defendant who does assert his privilege is within the proscription of the language in Malloy against Hogan proscribing a penalty.
The other side of that coin and I think the more proper way of phrasing it is that the economic consequences of failure to waive the privilege constitutes a coercive element which interferes with the exercise of his free will and that free will being necessary to a valid election to speak.
The reason I say that is that a penalty taken in it of itself within the context of the Fifth Amendment undoubtedly means prosecution, the -- if a person is prosecuted on -- for an account of evidence which it gives then the Fifth Amendment is violated.
A penalty does not mean within the context of the Fifth Amendment itself simply an adverse effect.
However, if the word penalty is read together with the sentence in which it appears in Malloy, I think it is clear that all what it means is that there must not be such consequences, such penalizing consequences as would interfere with the exercise of free will.
The issue it seems to me can be phrased and should be phrased in this manner.
Does a public officer have the right to continue in that office free of any regulation which comports with the nature of his job or is he subject to reasonable regulations and expectations which do reasonably relate to the nature of his job notwithstanding the fact that such regulations may in some degree encroach upon his constitutional privileges.
Now, this Court has stated in both Wyman against (Inaudible) and of the (Inaudible) case itself that if a -- that a public officer may be subject to reasonable regulations as long as they are not either discriminatory or arbitrary.
Now, it seems to me that under the established doctrine of those cases and the others which this Court has handled, the only inquiry here is not -- whether or not a regulation, the requirement that he testify encroaches upon Fifth Amendment or for that matter New York state privileges against self-incrimination but rather, whether it is a reasonable regulation consistent with the nature of his duty.
It is our contention and it has been our contention throughout that it is.
We -- it takes no great stretch of the imagination to realize that there are many forms of public employment which are conditioned upon at least partial relinquishment of constitutional rights.
Federal employees may not associate themselves with others in certain types of political activity.
They may not express their political beliefs in certain respects and still be public employees.
Certainly, in the military and I should think for example that a teacher employed by a municipal government who insisted upon conducting religious services in her classroom in the exercise of her freedom of religion might nonetheless be constitutionally discharged from her duty -- from her duties for the assertion of that privilege.
It doesn't seem to me in and of itself either shocking or repugnant that certain forms of public employment have certainly reasonable restrictions upon the exercise of constitutional rights.
A penalty, the threat of loss of a job, it seems to me cannot be taken without regard to the nature of the public employment which is to be forfeited.
A police officer, indeed a public officer of any sort is responsible not only to his superior officers but is responsible to the community at large who are in a very real sense, his employers.
No one I don't think would doubt the authority of the police commissioner of the City of New York to call in a lieutenant albeit a man who has 17 or 18 years on the force and ask him the question which was asked him before the grand jury.
Have you taken bribes in order to protect gamblers?
I'm sure that nobody doubts that if an officer elected to stand on his constitutional privilege had refused to answer that.
The police commissioner could remove him from his office.
Now, whether he is removing him from his office solely on the basis of the assertion of his Fifth Amendment privilege or whether the assertion of that privilege demonstrates a form of unfitness, I think is an academic question.
I think that the power is certainly there.
Now if the police officer chooses to answer the question and thus admit -- answers truthfully and thus admit that he has done certain acts which would subject him to criminal punishment, I don't think that anyone doubts that the superior officer could proceed to the District Attorney's Office or directly to the grand jury and have a criminal action instituted against him and even used that admission against him.
In order words, a superior officer does not have the power to grant immunity in exchange for asking the officer with his privilege against self-incrimination.
Now the real question here it seems to me is whether or not the situation is changed by the fact that the forum changes.
And the police officer rather than being before his superior in the role of employee if you will or at certain is before the grand jury which is a quasi -- independent quasi judicial party.
We submit that the situation is not changed at all.
In the first place, there is a special relationship between the public servant and the grand jury which does not exist between private individuals in the grand jury.
He is not a private citizen who is threatened with criminal punishment appearing before an alien body.
He is in a very real sense, the employee answering to the agents of his employer.
His salary is paid by the community.
He is subject to public scrutiny for the performance of his duty and indeed this relationship is recognized by a statute in the very same constitutional provision which we are here dealing with where it is provided that the grand jury does have special powers to oversee and supervise the conduct of public office.
Consequently, as an employee, it seems to me that he can expect no greater benefit from the incidental fact that the grand jury unlike his superior officer has the power to confer immunity.
Indeed, the power to confer immunity by the grand jury is limited to certain types of crime.
The police officer who is called by a grand jury to answer as to an investigation into burglary or sale of narcotics or something of that sort could not receive immunity from that grand jury under any circumstance.
Just because the grand jury is looking into bribery, just because the investigation happens to concern conspiracy, does he thereby obtain benefits which he would not merely have before his superior officer?
Justice Potter Stewart: Well, if the grand jury were as you suggest looking into narcotics, you say there's no provision for immunity under New York law.
Mr. H. Richard Uviller: I don't think so Mr. --
Justice Potter Stewart: Well, then wouldn't he -- wouldn't the officer have the simple right to assert his privilege against self-incrimination or not answer any question?
Mr. H. Richard Uviller: If what I'm saying is wrong Justice Stewart then he would.
But what I'm saying --
Justice Potter Stewart: Well, then aren't you -- but aren't you saying that much but then you're saying that he could be dismissed.
Mr. H. Richard Uviller: Right, precisely.
Justice Potter Stewart: But he certainly would have that constitutional right before the grand jury.
Mr. H. Richard Uviller: Oh, that's -- there's no doubt that Stevens have that right.
Stevens could've refused to sign his waiver of immunity.
He was told he couldn't refuse to sign the waiver of immunity.
Justice Potter Stewart: Well, except that -- I begin to understand that you apparently have various grades and kinds of immunity in New York but generally speaking, if a person asserts his constitutional privilege against self-incrimination, if then there is conferred upon him immunity as broad as the privilege then he loses his right not to answer, does he not?
Mr. H. Richard Uviller: That's correct.
Justice Potter Stewart: But in a narcotics violation since there is no provision for statutory immunity then his right against self-incrimination remains that (Voice Overlap) --
Mr. H. Richard Uviller: Yes, but the real question here is --
Justice Potter Stewart: -- then the question is to what if anything can the employer do about it?
Mr. H. Richard Uviller: Exactly.
And the important fact, what we are talking about is a law that says what the employer can do about it.
The law says the employer can dismiss him.
It doesn't say that he shall not have the right to assert it whether its narcotics or anything else.
It says what the consequences are and I suggest that particularly within the framework of the facts of this case where it's a police officer involved there can be no doubt that in the essence of his part either to conceal evidence from a grand jury or to attempt to shield the perpetrator even if the perpetrator is he himself.
It is clearly inconsistent with his duties as a police officer.
Now, we can't prosecute him for that, we don't intend, we don't try, we don't want to prosecute him for that, but we do say that the constitution in giving us the right to dismiss him for that is not in anyway act -- an unreasonable restriction.
Consequently on the pure question before the Court, the only question upon which certiorari was granted, the reasonableness of the provision of the constitution of the State of New York, I suggest that it is permanently reasonable.
Now, I --
Justice Byron R. White: But you -- in that -- you equate his -- the -- you equate the privilege of the employer to fire if he refuses to answer before the grand jury to the privilege of the employer to demand a waiver of immunity in advance before he knows what he's going to be asked and --
Mr. H. Richard Uviller: Positively.
Justice Byron R. White: What?
You say they're the same.
Mr. H. Richard Uviller: Yes sir.
In other words, the employer, the personal employer whether it would be a private or public officer asks for the answer with the understanding, I presume, that if he gets an incriminatory answer, there is no way in which he can protect the man from use of that.
Justice Byron R. White: That's right.
Mr. H. Richard Uviller: Not know -- that is the same as the waiver of immunity it seems to me.
In other words, there is -- there's not such a thing as waiver of immunity because there's no immunity that can be given.
There is no waiver of immunity before the superior officer.
But there certainly is no immunity either.
Consequently, when he appears before the grand jury under a waiver of immunity, he is in precisely the same position as he is when he appears in his commanding officer's room without anything because in both instances he may incriminate himself --
Justice Byron R. White: Well, has it (Voice Overlap) --
Mr. H. Richard Uviller: -- if he answers questions.
Justice Byron R. White: -- practice in your courts up there that one waiver covers all grand jury appearances?
Mr. H. Richard Uviller: No sir.
Oh, one with (Inaudible) -- before the same grand jury.
Justice Byron R. White: But it certainly appears in the record here that --
Mr. H. Richard Uviller: Yes.
Justice Byron R. White: -- in the second appearance, he was asked to -- again asked to validate this waiver he had signed before.
Mr. H. Richard Uviller: No, he wasn't.
What happened, Mr. Justice White, as I recall the record is --
Justice Byron R. White: Well, there's this second time, they say, "Are you willing to sign this waiver of immunity?"
He said, "No."
Mr. H. Richard Uviller: Well, the first time was before the June grand jury.
Justice Byron R. White: I understand that.
Mr. H. Richard Uviller: On that occasion he signed it.
Justice Byron R. White: Okay.
Mr. H. Richard Uviller: Then he came before the July grand jury and he not only refused to sign a waiver before that grand jury but announced that he intended to attempt to nullify or attempt to withdraw the waiver (Voice Overlap) --
Justice Byron R. White: Why did they even ask him to sign another waiver?
Mr. H. Richard Uviller: I beg your pardon?
Justice Byron R. White: Why did they even ask him to sign another waiver?
Mr. H. Richard Uviller: That does not appear from the record but I suggest that this was a continuing investigation involving many police officers and under those circumstances, it's not at all uncommon to have more than one grand jury investigating the same incident.
And indeed, sometimes when a second grand jury is called in when it becomes apparent that the investigation there is an enlargement and so if the witnesses are repeated before a second grand jury.
I was about to say that the -- it seems to me that if the waiver itself was not unduly coerced because the requirement of the constitution under which it was signed was a reasonable restraint then it would follow that if it were a legally operative act from which legal consequences flow, it could not be thereafter withdrawn.
I suggest that the ticket of entry which he received by virtue of this waiver of immunity into the precincts of the grand jury was a legal consequence of significance equal to that which an ordinary defendant obtains when he takes an oath in the trial on his own behalf.
Obviously, there is in no way in which a defendant once he takes the stand in his own behalf can “hope” to the questioning which occurs and that it should not be.
He has -- as long as the waiver of his right to remain off the stand without adverse comment --
Justice Byron R. White: What was the basis of Stevens' discharge and when was it?
Mr. H. Richard Uviller: Well, actually, he was discharged by letter the day or the day after he refused to sign the waiver of immunity before the July grand jury.
Justice Byron R. White: Oh, it was after his last -- oh, after his second appearance.
Mr. H. Richard Uviller: Second appearance, that's correct.
Justice Hugo L. Black: Is that the basis of it?
Mr. H. Richard Uviller: And that was presumably the basis of it.
We notified -- we notified the police commissioner's office that he had refused to sign.
Justice Byron R. White: But it was also because the -- he actually at that time refused to answer the question.
Mr. H. Richard Uviller: Well, yes.
He was brought before the grand jury and also refused to answer question.
But in --
Justice Hugo L. Black: He'd already waived it though --
Mr. H. Richard Uviller: I beg your pardon.
Justice Hugo L. Black: He's already waived.
Mr. H. Richard Uviller: Before a different grand jury Mr. Justice (Voice Overlap).
Justice William J. Brennan: I gather it has to be a separate waiver for each grand jury.
Mr. H. Richard Uviller: That's our interpretation of it, yes sir.
Now, I -- in connection with that discharge, I wish to make it --
Justice Abe Fortas: I beg your pardon.
Why is the state interested in this question here?
This is referred to in the record as a partial waiver.
That question is to our limited waiver, is that right?
Mr. H. Richard Uviller: Yes.
Stevens calls it partial, we call it the -- would be the same thing.
Justice Abe Fortas: Which do you mean?
Mr. H. Richard Uviller: We mean that it's only a waiver of immunity as to the question concerning his public employment.
Justice Abe Fortas: Right, so we have that limitation here.
Mr. H. Richard Uviller: Yes sir.
Justice Abe Fortas: The second thing is that this form as I understand it on page 20 of the transcript of record is a waiver by Stevens, this form that he signed whether valid or not, it's a waiver by Stevens of his immunity from the prosecution, right?
Mr. H. Richard Uviller: Well, it's very broad as you noticed.
It is a waiver of any and all benefits he might otherwise receive on account of anything he might testify to and I construe it to be --
Justice Abe Fortas: Concerning the conduct of his office.
Mr. H. Richard Uviller: Concerning the conduct of his office.
That's what we mean by limited.
But I construe it to be a waiver of Steuding protection and a waiver of immunity under 2447, Counselman type of immunity.
Justice Abe Fortas: But it is not a waiver, it does not purport to be anyway a waiver of his rights to refuse to testify.
I'm talking about this form now.
Mr. H. Richard Uviller: No.
You're quite right, it's that --
Justice Abe Fortas: So that the form that Mr. Stevens signed did not purport to be a waiver of his Fifth Amendment privilege against self-incrimination.
It did not purport to be a waiver of any right that he might have not to testify, right?
Mr. H. Richard Uviller: Your Honor, it is in my (Voice Overlap) --
Justice Abe Fortas: And that's what the language says.
Mr. H. Richard Uviller: -- Mr. Justice Fortas, that's correct but I think it should be taken in conjunction with the explanation which was given to him at the time he appeared before the grand jury --
Justice Abe Fortas: But we have a --
Mr. H. Richard Uviller: -- (Voice Overlap) quite clear.
Justice Abe Fortas: I gather that we've got an issue tendered here at least talks about as to the effect of his signing or not signing or validly signing or not validly signing a piece of paper.
When I look at that piece of paper, that piece of paper does not say anything about a waiver of his privilege against answering incriminating questions, do you agree with that?
Mr. H. Richard Uviller: It does not.
Justice Abe Fortas: Alright.
Then we come to your Constitution of New York and that's where I find a provision to the effect that if a public officer refuses to answer a relevant question with two parts, one, if he refuses to sign the waiver, or two, if he refuses to answer a relevant question etcetera before the grand jury, then he is subject to dismissal, right?
Mr. H. Richard Uviller: Right.
Justice Abe Fortas: So that what we have before us now if I correctly understand it is the contempt punishment of Stevens for refusing to answer questions before a grand jury and he refused to answer those questions not because -- and the problem there arises not because of anything in this waiver that he signed.
Mr. H. Richard Uviller: But Mr. Justice Fortas, we don't have any full evidence rule limiting us to the language of the waiver itself.
Justice Abe Fortas: But when a man sign the -- the questions, what he did sign, isn't it?
Mr. H. Richard Uviller: Well, it's what did he sign and what have he acknowledged before the grand jury, in other words, the meaning of this was quite clearly outlined to him by the District Attorney before that waiver became an operative act.
Justice Abe Fortas: So you're saying that despite the language of this or in addition of the language of this, Stevens has to be held on the state's theory to have waived his right of privilege not to answer and not to claim the privilege against self-incrimination.
Mr. H. Richard Uviller: Well, there shouldn't be no doubt about that Mr. Justice Fortas.
I mean, 210, record 210, page 10, question (Voice Overlap) --
Justice Abe Fortas: Well, I'm not talking about that, that is -- I'm not talking about whether he was asked or whether he responded.
I'm talking about whether he signed?
Mr. H. Richard Uviller: Yes, but I would take the language of the waiver itself in conjunction with the explanation.
Unfortunately, that waiver is one sentence.
It runs for a -- practically a full page of the record.
It is obviously drafted by a lawyer in a statutory language and it's for that reason that before we find the defendant by the waiver, we haven't acknowledge orally the import and significance and he was told, do you understand -- it means that if you signed the waiver of immunity which requires you to answer questions concerning the conduct of your public office that what you will say -- what you say will be taken down and recorded and so forth and so on.
So that it's quite clear and this is before that waiver became operative and binding.
At this point, he could still say no and walk out the jury.
Unknown Speaker: You mean, (Inaudible)
Justice John M. Harlan: What (Inaudible)
Chief Justice Earl Warren: Mr. Uviller, at the time of his third contempt proceeding, was he an employee of the City of New York or not?
Mr. H. Richard Uviller: No sir, he was not.
Chief Justice Earl Warren: Then I suppose that that proceeding he would be entitled to the same rights as any other citizen?
Mr. H. Richard Uviller: Yes sir, he would be.
Chief Justice Earl Warren: Now, would any other citizen who is given the information by the District Attorney that was given in this case, would he have been obliged to testify on the grounds that immunity had been accorded to him?
Mr. H. Richard Uviller: He would have been obliged to testify Mr. Chief Justice but he would have been obliged to testify in the grounds that he had waived his immunity.
Chief Justice Earl Warren: No, no, no.
I'm assuming that this waiver was invalid.
Mr. H. Richard Uviller: Oh, that the waiver was invalid.
Chief Justice Earl Warren: Yes.
Assume the waiver is invalid and on this third proceeding, he is not an employee of the city.
You say that he appears then as a -- as any witness would appear before the grand jury.
Mr. H. Richard Uviller: Correct.
Chief Justice Earl Warren: Now, was he at that time sufficiently advised to give him immunity under your statutes?
Mr. H. Richard Uviller: Well Mr. Chief Justice, he certainly would have received immunity.
Chief Justice Earl Warren: No, that isn't the -- that isn't the question.
Mr. H. Richard Uviller: No, he wasn't told that he was receiving immunity, that's correct.
But under our statutes, he receives the immunity whether the District Attorney and the judge is mistaken or not.
He was told that he was not receiving immunity but that did not mean that he wasn't receiving.
Chief Justice Earl Warren: Does the man have to outguess both the District Attorney and the judge in order to protect his rights --
Mr. H. Richard Uviller: Well --
Chief Justice Earl Warren: -- when he has a constitutional right?
Mr. H. Richard Uviller: There is a -- there is some state law Mr. Chief Justice, which does indicate that under the law of New York there must be accurate advice given as to the significance of the command to answer.
And the decision there which is cited in our brief is People against De Feo.
In that case, the -- what have happened was the -- during the early stages when it wasn't quite clear to anyone what 2447 meant.
The foreman of the grand jury said to the defendant, “You answer the questions and if you answer those questions, you will be immunized against the prosecution for conspiracy or bribery.”
The defendant refused to answer questions and was held in contempt.
The contempt was set aside on the ground that that advice was inaccurate that in point of fact he would have been immunized against any crime which he'd given an incriminating answers to.
And because of the fact that the advice was inaccurate, he couldn't have been held in contempt for having continued to refuse to answer.
That's the De Feo case.
Based upon that case, it does seems to me that there is some state law in New York which does require accurate appraisal of the significance of the immunity conferred on the extent of it.
But I do also suggest to this Court that that is not a federal question.
And that if this case should be remanded to the state courts for consideration of the issue which is now before this Court that the Court may, I don't concede the point because there may be arguments on the other side as well.
But the Court may feel that the contempt conviction was invalid in as much as he was not accurately appraise of the significance of the immunity under De Feo.
Now I can report that there is a good deal of confusion in New York as to the significance of De Feo but it does seem to indicate that as a matter of state law, there is some requirement of accurate advice.
I insist that this is not based upon the constitution of the United States.
It's not based upon the Fifth Amendment or the Fourteenth Amendment because whether or not he did received accurate advice and whether immunity attaches whether he receives accurate advice or not or whether a contempt conviction can be sustained whether he receives accurate information or not, it seems to me as a matter of local law.
Chief Justice Earl Warren: Well, didn't he raise -- didn't he give your courts the full opportunity to discuss it and then decided it?
Didn't he raise it in -- from the very beginning?
And isn't he here on conviction after having raised the constitutional question?
Mr. H. Richard Uviller: Well, of course the Appellate Division --
Chief Justice Earl Warren: Is he to blame before the court not -- commenting on that or not writing an opinion?
Mr. H. Richard Uviller: No I don't think he is to blame for it and I don't suggest that this courts of New York or the lower federal courts are forever precluded from reaching the question.
I just suggest that where the lower court relies upon a decision of this Court to the effect that this is not the proper time for litigating the issue that they have not drawn the issue into question.
In other words, what do we -- when we talk about Regan, what we're really concerned with, we're not concerned with whether or not he'll ever have an opportunity to decide whether he had immunity or he didn't have immunity.
We're merely saying what is the proper time for deciding that question and I suggest that there are many interest to be served by continuing with the proceeding under way.
Interlocutory fields are generally forbidden.
When a proceeding is under way such as a grand jury investigation is extremely difficult to hold it and obtain an answer from the appellate courts which could take unfortunately a very long time as to whether he had immunity or he didn't when in the point of fact he hadn't answered in either case.
Chief Justice Earl Warren: In point of fact what?
Mr. H. Richard Uviller: He had to answer in either case whether he had immunity or didn't have immunity.
That is the rationale underlying Regan and I think a very sensible one that applies here too.If he had -- if he -- a prosecution was ever brought against him on account of his answers, that would be the first time where he was threatened with any sort of harm with the result of his testimony and would be early enough for him to litigate the question as to whether he received immunity.
There is no need for him to satisfy his curiosity or to find out whether he's guessing right or guessing wrong as to whether he is receiving immunity because in either of that, he has to obey the order of the court to answer.
And there is a paramount interest it seems to me which overrides his interest in knowing whether he is receiving immunity or not and that interest is to continue with the grand jury investigation or it might be another case of trial which is actually under way at the time.
It would be extremely difficult that every time the person was ordered to answer before he had to go back to that grand jury which is waiting for him a few floors below, he could go through the Appellate Division, the Court of Appeals and the Circuit Courts and back to this Court.
Chief Justice Earl Warren: But your lower court held that whichever way he decide it to, he was in trouble.
It says here on the one -- Judge Marks said on the one hand, if the waiver of immunity is still valid, petitioner no longer has any privilege to refuse to testify.
On the other hand, if he doesn't, he has to testify anyway.
Mr. H. Richard Uviller: Its -- well, isn't that quite right, because if the waiver is valid --
Chief Justice Earl Warren: Although it is (Voice Overlap) --
Mr. H. Richard Uviller: -- if the waiver is valid, he certainly has no more privilege.
He's waived -- if the waiver is invalid, he has to testify because by testifying, he receives immunity.
And if he receives immunity, he cannot be prosecuted in the future and his privilege is lost, the grant of immunity have supplanted it.
Consequently, I think Judge Marks saw the issue precisely the way I am arguing it now even at that early date.
And he was obviously facing that reasoning upon the Regan case which held just that.
Now having relied upon the rationale of that decision by this Court, it seems to me that the question of whether the issues drawn in question here is a very real one.
This isn't the case where the state courts on some whim or on a refusal to face the question had refused to decide the federal question and thereby precluded this Court from deciding it.
This is a case where in good faith and in good conscience, very imminent courts below all felt that they were on safe ground in accepting this Court's rationale as to the timeliness of the challenge to the waiver.
Whether this waiver of immunity is coerced will be litigated if this defendant is prosecuted.
Justice Byron R. White: But did he (Inaudible) tell me whether the waiver is denied (Inaudible)
Mr. H. Richard Uviller: Yes Your Honor.
Justice Byron R. White: Is that under --
Unknown Speaker: 20.
Justice Byron R. White: In 210 at page 20?
Mr. H. Richard Uviller: 210, page 20, yes it does appear there.
Justice William O. Douglas: That's the same grand jury, it was the same waiver.
Mr. H. Richard Uviller: That is the one and only waiver that he signed on --
Justice Byron R. White: Well, is the -- he says -- is the jury appeared before -- the next time with a different grand jury?
Mr. H. Richard Uviller: Well, this waiver he signed before the June grand jury --
Justice Byron R. White: Yes.
Mr. H. Richard Uviller: The grand jury that resulted in his discharge was a different grand jury, the July grand jury.
Justice Byron R. White: Well, he didn't sign a waiver there.
Mr. H. Richard Uviller: That's right and that's why he was discharged.
Justice Byron R. White: Well then how -- he never did sign a waiver of immunity before that grand jury, did he?
Mr. H. Richard Uviller: No he did not sir.
Justice Byron R. White: Well, then why is there any question of waiver in this case at all?
Mr. H. Richard Uviller: Well, he was held in contempt for his failure to answer questions.
Justice Byron R. White: I understand, you said it could be relevant for that attempt but how could the state before the July grand jury rely on his waiver?
Mr. H. Richard Uviller: They didn't, no.
He was discharged for failure to sign it.
Justice Byron R. White: Never did.
Mr. H. Richard Uviller: He was discharged for failure to sign which is not before this Court as Mr. Gressman pointed out.
The question of his discharge in (Voice Overlap) --
Justice Byron R. White: Oh, I understand that but his refusal to answer the first time he was convicted for contempt was his connection with the July grand jury.
Mr. H. Richard Uviller: No, June.
Justice Byron R. White: Oh the June?
Mr. H. Richard Uviller: Yes.
Justice Potter Stewart: He was brought back before the June --
Mr. H. Richard Uviller: That's (Voice Overlap) -- after he refused to sign the waiver before the July grand jury, he was brought back to the June grand jury a second time in July (Voice Overlap) --
Justice Potter Stewart: And is that con -- where is that conviction?
Is that in 210 or 290?
Mr. H. Richard Uviller: That one is 2 -- well, that's -- no.
That's the one conviction in the case.
There's no other conviction.
210, the one that -- I do think 210 and 290 is one as (Voice Overlap) --
Justice Byron R. White: I understand but he was convicted towards retirement, contempt was it?
Mr. H. Richard Uviller: Yes he was.
He was convicted three times of contempt all before the June grand jury.
Justice Byron R. White: And which one of those convictions is here?
Mr. H. Richard Uviller: One and third.
Justice Byron R. White: The first one and the third one?
Mr. H. Richard Uviller: Yes sir.
Justice Byron R. White: And the third one was for a refusal before a different grand jury?
Mr. H. Richard Uviller: No, it's still the same.
Justice Byron R. White: It's still the same with June grand jury.
Mr. H. Richard Uviller: Yes sir.
The only grand jury before which the people ever contended the defendant was compelled to answer was the grand jury before whom he say -- signed the waiver of immunity and that was the only one.
Justice Hugo L. Black: He never has actually been granted (Inaudible)
Mr. H. Richard Uviller: No sir.
He may have been -- well no.
He never would have been granted immunity because in order to obtain immunity, you have to answer.
He never answered and consequently he never got immunity.
But had he answered, he would have been granted immunity unintentionally if his waiver was invalid.
Justice Hugo L. Black: And he had to know that even though they were telling we're not going to grant it to you.
Mr. H. Richard Uviller: Well, it seems to me that he didn't have to know it in as much as if he follow the court's directions, he wouldn't be hurt either way.
Again, we come back to the rationale of the Regan case.
But I do think this proviso as I did to the Chief Justice it is possible that under state law, there may be a requirement that he has to be accurately oppressed.
That is possible.
Justice Hugo L. Black: I never have fully understood either your view point or Mr. Gressman's view point of this sentence in the Laino case.
This, however, the court said is a different thing entirely from a complete immunity.
Reindictment is possible if sufficient evidence, independent of the evidence, links or leads furnished by the prospects of defendant is adduced to support it.
Mr. H. Richard Uviller: Yes sir.
Justice Hugo L. Black: What does that mean?
Mr. H. Richard Uviller: Well, that refers to what I have termed here this afternoon as Steuding type immunity or Murphy against The Waterfront type of immunity.
In other words, it's not Counselman against Hitchcock immunity and it is not complete immunity.
It is not the type of immunity that will replace the privilege against self-incrimination because it does leave the possibility of prosecution on fresh evidence.
What it is, is this sort of limited testimonial protection.
Justice Hugo L. Black: But is that the kind of immunity you say he would obtain if he testify?
Mr. H. Richard Uviller: No sir.
Distinctly no (Voice Overlap).
Justice Hugo L. Black: Do you claim (Voice Overlap) have been more than that.
Mr. H. Richard Uviller: Positively.
And not only do I claim but in so holding, the court below specifically cited 2447 and 2447 is the New York statute by which complete protection against any future indictment or prosecution is provided for.
So when I use the word immunity this afternoon so there's no mistake, I mean complete immunity, Counselman against Hitchcock immunity.
And if I mean anything less like in Laino or in Steuding, I'll try to modify the word by going at either protection or unlimited immunity or a Steuding type of immunity.
So, this -- the Steuding --
Chief Justice Earl Warren: Assuming the Stevens had reason to believe that he would get some kind of immunity if he answered the questions, how would he know whether he was going to get the Counselman type of immunity or the Steuding type of immunity?
And would not that make a difference and would not a man have a right to make a decision depending upon whether he got one or the other?
Mr. H. Richard Uviller: There's a simple answer to that Mr. Chief Justice I think, and that is that he was expressly and explicitly told by the judge prior to being held in contempt for the first time.
Because the judge told him at that time that this case was indistinguishable from the Regan case and he was represented at that time on a very competent counsel who had cited all these cases to the Court and obviously know the meaning of Regan.
And the Regan type of immunity was the complete immunity.
Justice Tom C. Clark: What do you say about Raley here?
Mr. H. Richard Uviller: Well, what I say about Raley Mr. Justice Clark is simply this.
Raley was the most peculiar case and indeed, I would venture to say that the case was sui generis because if you recall in the Raley case, witnesses before the state investigating committee were encouraged virtually to assert their privilege against self-incrimination.
They did it repeatedly.
It was always clarified, the chairman treated them very graciously indeed and there was not one word said to anybody at that time to indicate that this privilege was not available to them.
Then no one would hold that after they deserted the privilege all this time, somebody finds out that there's an automatic immunity provision in the State of Ohio and that they were compelled to answer.
They didn't have the privilege at all and they were all charged with contempt for asserting the privilege.
And well that seems to me is most outrageous sort of case and probably sui generis and this Court seems to me quite sensibly concluding that there was a kind of an entrapment.
Unknown Speaker: (Inaudible)
Chief Justice Earl Warren: One way, we haven't -- we haven't got somewhat the same situation here because repeatedly, the District Attorney said to him, “Now you may waive your -- you may waive your privilege at any -- no.
You may claim your privilege at anytime but I want to tell you, no matter what your lawyer tells you or no matter what anybody tells you, we're going to prosecute you on your own testimony.”
Now, if you testify now, isn't that just about as strong as we had in Raley?
Mr. H. Richard Uviller: No, with all due respect Mr. Chief Justice, I suggest it's exactly the contrary because what is he being told there in effect?
He's being told, you don't have a privilege against self-incrimination.
He's being told by everybody including the Court, “You signed the waiver of immunity.
The waiver of immunity is valid.
The waiver of immunity deprives you of your privilege.
You can't assert your privilege, you have no privilege.”
And he can persist in asserting it and he's held in contempt for that.
There was in the one case that he is told he did have the privilege and punished for asserting it and the other, he is told he didn't and was punished for asserting it.
Chief Justice Earl Warren: But I think --
Mr. H. Richard Uviller: It seems to me its quite (Voice Overlap) --
Chief Justice Earl Warren: -- it depends on how you read that language of the District Attorney.
As I read it, I thought he said, “Now you may claim your privilege at any time but if you testify, we're going to prosecute you on your own testimony which would lead the man to believe that if he claimed this privilege, he wouldn't have to testify.
Mr. H. Richard Uviller: But he was told you may claim your privilege at anytime but if you sign a waiver then you waive your claim of privilege.
Chief Justice Earl Warren: He didn't say that though.
Mr. H. Richard Uviller: But he said you must testify (Voice Overlap) --
Chief Justice Earl Warren: He didn't say that in those --
Mr. H. Richard Uviller: Well --
Chief Justice Earl Warren: -- in those particular -- he might have said it at one time but he didn't say it in all those statements of his.
Mr. H. Richard Uviller: Well, he did say at the time the waiver was signed when he was explaining the waiver Mr. Chief Justice, that he --
Chief Justice Earl Warren: Well, that might be but there were at least three other occasions when he weren't into this effect.
You may claim your privilege --
Mr. H. Richard Uviller: He --
Chief Justice Earl Warren: -- but if you testify, we're going to prosecute you and (Voice Overlap) --
Mr. H. Richard Uviller: Well, that only occurred one other time and that was before a different grand jury where he did claim this -- his privilege.
He wasn't told that he -- he would -- look, that is a correct advice, is it not Mr. Chief Justice?
In other words the (Inaudible) -- the District Attorney it seems to me is obligated to tell the defendant that if you waive your privilege, that means that what you say maybe used against you.
Now we intend -- we don't intend to give you immunity.
We want you to know that you are a potential defendant which means that there's a likelihood that if you say anything incriminating, we will use it against you.
That's only fair it seems to me to the witness.
Chief Justice Earl Warren: It seemed fair to me too but I wouldn't go on and tell him now, you also have the right however to claim your privilege any time you want.
Now what does he get from the claim of privilege under those circumstances?
Mr. H. Richard Uviller: How he -- I -- this -- unfortunately the record is maybe somewhat ambiguous but I think a fair reading of the record Mr. Chief Justice indicates that what he was doing at that time was instructing the witness that he had a right not to sign the waiver at all and to stand on his privilege.
Now it's true he said at any time but if you look at the context in which at anytime occurs before he'd ever executed the waiver, I think that it is clear that what he meant was at anytime up to the time he was sworn.
You may refuse to come in here under a waiver and stand on your privilege.
That's your right which it was.
And in assessing whether he want to do that, I must tell you that if you come in here under a waiver you will be prosecuted.
Now there maybe a slight ambiguity there but I don't think it's substantial and I think that the petitioner understood it full well because on the subsequent occasion he refused to sign his waiver and did stand on his Fifth Amendment right.
He is a police officer.
He has considerable experience.
He is lieutenant who has passed two police examinations to achieve that rank and I think it's fair to think that he took the reasonable explanation of it and did not think.
Particularly, he said, he was told by the court again you see, before he was held in contempt the first time.
The court again said to him, you don't have a privilege.
Now you answer this question.
He could not possibly have thought that he had -- after signing the waiver that he still have the right to assert a privilege at any time.
I think that's really inconsistent with the plain meaning of the record.
Chief Justice Earl Warren: Mr. Gressman.
Rebuttal of Eugene Gressman
Mr. Eugene Gressman: Mr. Chief Justice, I only want to make two brief remarks in connection with the -- these cases.
The first goes to the point Your Honor was just speaking about the applicability of the Raley case.
It seems to me the longer the discussion has ensued in these cases, the more obvious it becomes that we have an almost exact parallel with the Raley situation where the defendant was told expressly on numerous occasions.
On almost every occasion he appeared before the grand jury up to and including the last time on January 11th, 1965.
He again, as repeat -- is repeated to him referring to the original appearance in there that you were told at that time that you could invoke the federal privilege against self-incrimination at anytime.
This was repeated to him on the second occasion when he appeared before the grand jury as well as at the first time.
So that I think that -- then he add to that effect that the immunity possibilities were never discussed or referred to by the Assistant District Attorney.
In the contrary, he was told expressly that it's the position of the people that you do not have immunity and it was stated to him that you can and will be prosecuted on the basis of any incriminating testimony that you will give or may give before this grand jury.
Then we find subsequent to these convictions the flat statement by the Appellate Division and by the Court of Appeals for the Second Circuit that you had absolute immunity under these ambiguous provisions of New York State law.
That is exactly what the Ohio Supreme Court had held in Raley.
After they've gotten through those confusing proceedings without any reference to an immunity statute, subsequently, the convictions are affirmed.
And for the first time that it is stated affirmatively that the Raley defendants had immunity all the time.
Justice John M. Harlan: Wasn't there any step (Inaudible)
Mr. Eugene Gressman: I'd -- there's nothing that -- to that indication in the record Your Honor that I am aware of.
Justice John M. Harlan: Did the court say (Inaudible)
Mr. Eugene Gressman: I think that that's a legal -- illegal analysis could be made to that effect.
Yes, I think that -- but I -- and I don't think the Raley situation was one of legal analysis as it was a fairness in the minds and in the treatment of the witnesses in those cases and so here, I suggest that it's not a question of the legal analysis as it is of the -- what the defendant was fairly led to assume what was available to him.
Justice Byron R. White: Well, didn't the -- at least the Appellate Division decision intervene between his first conviction and his third?
And didn't -- hadn't the Appellate Division then at least as to that later refusal.
Have -- hadn't the Appellate Division said flatly that there are -- as you say flatly that there was immunity and didn't -- didn't he know then he -- at the least, the time of his later refusal --
Mr. Eugene Gressman: Possibly --
Justice Byron R. White: -- that the New York court had said he did have immunity.
Mr. Eugene Gressman: Well, that again -- that when he was -- on the basis of his third conviction in the third contempt that occurred.
Again, it was then repeated to him that he had the right to assert the privilege.
So while that --
Justice Byron R. White: No, but if he had the right to assert it, there's also immunity if he answers them.
Mr. Eugene Gressman: Well, again as a matter of legal anal -- treatment of the problem, yes.
But as a matter of practical matter, that was not certainly indicated to the defendant at the time he was called upon the third time to answer this incriminating question.
But in any event, I think the Assistant District Attorney here, Mr. Uviller has very candidly observed and properly so that the immunity of 2447 does not operate automatically that there is room -- a necessary room here for discretion.
And in answer to the Chief Justice, he conceded that the District Attorney did not exercise a discretion to bring the complete immunity under 2447 into operation.
And I suggest that is the only way that this record can be analyzed and the only way in which this immunity problem can be handled that it was not an automatic immunity and if there'd be any question as to it, certainly I suggest that there should be some form of a remand to the state courts either to determine the extent of any immunity if there was such or under the Murphy decision to have a completely new proceeding before the grand jury in which the rights of this defendant are adequately and properly and fairly explained to him.
And you will note at the very end of Murphy v. Waterfront Commission in remanding the case in that instance, they cite the Raley case where there was this confusion and the unfairness which certainly has been exhibited in this case.