PICCIRILLO v. NEW YORK
Legal provision: Writ Improvidently Granted
Argument of Malvine Nathanson
Chief Justice Warren E. Burger: We’ll hear arguments next in number 97 Piccirillo against the State of New York.
Miss Nathanson, you may proceed whenever you’re ready.
Ms Malvine Nathanson: Thank you Mr. Chief Justice and may it please the Court.
This case presents question of the application of the Fifth Amendment to a witness before grand jury proceeding.
The petitioner contends that the bribery conviction, which is presently being appealed, was obtained in violation of his privilege against self-incrimination and further in violation of his right to counsel, under the Federal Constitution.
In about March of 1964, the petitioner with another person, were arrested for an assault for which crime they were subsequently convicted.
On the same day that they were arraigned for this assault charge, they allegedly offered a bribe to the arresting police officer to induce the officer to dispose of the weapons in the case and to change his testimony to reveal the names of other witnesses and so on.
This bribe offer was fully reported to the District Attorney in March of 1964.
They obtained a mini-phone, tape recording of conversation between the petitioner and the police officer, and all of these was in the hands of the District Attorney in March of 1964.
In March of 1965, one year later, while the petitioner was serving his sentence, under this assault conviction, for which he had pleaded guilty, he was called before grand jury, which was reportedly investigating the assault that had been committed by the petitioner and the conspiracies arising therefrom.
His co-defendant in the assault case was called first, pleaded the Fifth Amendment, was granted immunity and testified.
The petitioner never had a chance to plead the Fifth but was immediately offered immunity -- was voted immunity.
Immediately prior to his actual testimony, he requested to see his lawyer and he was assured by the District Attorney conducting the investigation that he had nothing to worry about.
He was being fully protected, he didn’t need a lawyer at all, and so he testified.
Four days later, the District Attorney had the police officer to whom the bribe was offered come in and testified before the grand jury.
And several months later, the petitioner who had been told that he was being fully protected was indicted for bribery.
The bribery conviction is the case that is presently on appeal.
And during the course of the petitioner’s grand jury testimony, which is -- I stated was given under a grant of immunity.
He was asked to testify about the particular facts surrounding the assault itself.
What weapons were used, where the assault took place, they were interested in who would hired him.
The petitioner could only give a name and a vague description.
As I said, he was asked about the weapons that were used.
He was asked where the assault took place and so on.
There was, I may point out, no eyewitness to this assault, so the only direct evidence of the assault itself would have to come either from the victim of the assault or the petitioner and his co-defendant.
The police officer was also asked about the assault and was particularly asked about what petitioner had told him about the facts of the assault.
And the police officer’s version of what the petitioner told him jived very, very closely with what the petitioner had testified to.
As it turns out, the petitioner had described all of these events to the police officer during the course of making the bribe offer, for which the petitioner was indicted.
Now, it is our position that first that the grand jury actually relied or probably relied upon the petitioner’s testimony, when they decided to indict him for bribery.
It is secondly our position that the petitioner should have been protected from indictment for bribery, because under the Constitution, as you can see he had been compelled to testify to matters relevant to the bribery.
He had to be given protection for such a prosecution and it is further our position that the petitioner was deprived of his right to consult with his attorney before he testified and as a result the indictment that was obtained must be dismissed.
We submit that the grand jury, in fact, actually relied upon the petitioner’s testimony.
He used the petitioner’s testimony as a basis for indicting in several respects.
First of all, the petitioner’s testimony supplied the grand jury with a motive for the bribe offer to which the officer would later testify.
And although, as we have stated in our brief, motive may not be a necessary element of the crime of bribery, it’s certainly easier to get a conviction and we submit easier to get an indictment if the prosecuting agency is aware of the existence of a motive.
And so, the petitioner’s admission that he had committed the assault and that he committed the assault with the weapons that the police officer later said he was suppose to dispose of it in some way.
But we think was crucial in this case and may very -- there was a strong likelihood that the decision whether or not to indict was in fact based upon the grand jury’s knowledge that there was a strong motive for bribery in this case.
It is further out position that the fact that the petitioner’s testimony jives so closely with the police officer’s version of what the petitioner had told him made the police officer more credible to the grand jury.
They didn’t have to believe the police officer.
He hadn’t seen the assault and so that all that he could testify to really was what the petitioner told him.
And it wasn’t necessary that they believe the police officer, and we think that the fact that the petitioner’s testimony supported the police officer’s testimony in so many respects, they also have led to the grand jury decision that in fact, the petitioner was guilty of bribery and should be indicted therefore.
In addition, there’s always a possibility that the grand jury saw the petitioner, made an evaluation of his character, of his demeanor, of his honesty, of his forthrightness, and in view of their evaluation of his character determined that he had committed the bribery and therefore should be indicted for.
Unknown Speaker: How do you escape that?
How do you escape the grand jury’s if they do engage in the exercise of the evaluating of the man by looking at him, how --
Ms Malvine Nathanson: No, it's our position that a person who has been forced to appear before the grand jury and forced to give up his privilege against self-incrimination, should not be indicted by that same grand jury.
Particularly, not in the case like this, where the subject matter of his testimony and the subject matter of the indictment are so close.
Unknown Speaker: What if he appears and claims the privilege?
Ms Malvine Nathanson: Well, I -- this certainly is a problem and it may very well be that a grand jury will take a claim of privileges being some sort of an admission of guilt.
The several cases which we relied upon which established that -- which stated that the grand jury may be affected by the considerations I have mentioned, point this out as well.
This is a chance that a man must take if he wishes to assert his privilege.
But we do not believe that once he has been -- his privilege has been taken away from him, and he has been told that he would be protected and the grand jury should be entitled to rely upon these factors.
Unknown Speaker: Ms. Nathanson, of course, you would not be here had he been indicted by another grand jury?
Ms Malvine Nathanson: On point one, I would not be here.
Certainly, however, the remainder of my argument would be equally valid.
But I certainly agree if it a different grand jury than the problem I raised in the first point of my brief would not exist.
But in fact, he was indicted by this very same grand jury.
Justice Thurgood Marshall: How long period of time was it?
Ms Malvine Nathanson: Between -- I’m sorry, between what?
Justice Thurgood Marshall: Between the time when he first went there, well I mean --
Ms Malvine Nathanson: In the indictment?
Justice Thurgood Marshall: Right.
Ms Malvine Nathanson: Well, he appeared in March of 1965 and he was indicted in July of 1965, as a formal matter.
Justice Thurgood Marshall: Of course, the same people were there in both times?
Ms Malvine Nathanson: Your Honor, there is no way, there is certainly no way of defense counsel to be aware of the names who appeared in the grand jury.
There is however, the statutory framework in New York would require that there at least be seven people there at the same time.
Justice Thurgood Marshall: Well, that’s what I've said, couldn’t have been seven people at one instance?
Ms Malvine Nathanson: No, no, I didn’t make myself clear.
The grand jury system provides that there are 23 people, 16 to 23 people on the grand jury.
But 16 are necessary for a quorum.
So, there must be 16 of 23 present on each occasion.
In addition, there can be no indictment, except by the concurrence of 12 of those minimum 16.
And if we work out the numbers, at least seven people must be identical in any two sittings of the grand jury.
There would be no way of having it be a completely different group of people.
Justice Thurgood Marshall: Seven is a majority of 12.
Ms Malvine Nathanson: Seven is a majority of 12, which is what we required to indict.
Justice Thurgood Marshall: No, I mean the grand jury.
No, I say the grand jury was 23.
Ms Malvine Nathanson: 23 maximum, 16 for a quorum and 12 to indict.
Justice Thurgood Marshall: Well, you know that the -- you have two days in a row that you have all 23 of the day that is known.
Ms Malvine Nathanson: We just don’t know what happened in this occasion.
This information is not available, but there certainly were many people, who heard both the testimony.
That testimony was four days apart over a weekend, the police officer and the petitioner.
Justice William H. Rehnquist: Mr. Nathanson, is your position at the immunity granting grand jury is unable to indict the witness for anything, at all?
Ms Malvine Nathanson: No, Your Honor, but where the witness’ testimony has some relevance, so that their evaluation of this witness would directly bear upon the subsequent indictment, then they can't.
Justice William H. Rehnquist: (Inaudible) in drawing the line?
Ms Malvine Nathanson: Well, so far as this case is concerned Your Honor, what I’m saying is that that one of the factors, which not only in this case was the defendant in fact, the petitioner in fact testify to the same matter that the patrol man later testified too, and that form the subject matter of the indictment.
But in addition, the grand jury may have evaluated his demeanor and so on.
This is not – I am not saying this would be a sufficient ground for dismissal of an indictment.
But I believe it is another factor in the context to this case, which should be considered.
Justice William H. Rehnquist: Now, one last question.
If this case were being decided today by the New York Court of Appeals, do you think it would be decided the same way?
Do you --
Ms Malvine Nathanson: The result would be the same.
The New York Court of Appeals, about seven months after their decision in this case, overruled this case and so far it has set down certain general legal principles.
However, they stated that they had taken another look at the record.
What they said was this is not to say we have decided Piccirillo incorrectly, because in fact, in Piccirillo, the legal testimonies that we’re setting down now would not absolve them of this conviction.
There is certainly no question that this Court of Appeals has in fact considered Piccirillo in light of its subsequent decision in People again -- the matter of Menna, which I assume that you are alluding to, and has reaffirmed its decision in Piccirillo as to the result.
They have again found that Mr. Piccirillo’s rights under the Fifth Amendment were not violated.
Now, it is our position that the subsequent decision by the Court of Appeals, which purports to adopt what we say, is a federal constitutional rule.
Really, there's no more than pay lip service to that federal constitutional rule, I think this is demonstrated by the way they apply that rule in this case.
The spirit with which they apply, the federal constitutional rule does not give its full effect, to the effect that we believe it should have with regard to the second point of my brief.
This is of the transactional immunity rule that we assert is required under the Fifth Amendment that is that a witness who is compelled to give up his privilege against self-incrimination must be guaranteed that he will be immune from prosecution by the compelling jurisdiction, as to any transaction relevant to his testimony.
This is commonly known as the transactional immunity rule.
It is our position that this the rule that was first enunciated in the first occasion in this Court to deal with the question of immunity and the abrogation of the Fifth Amendment privilege in Counselman v. Hitchcock.
It has been constantly reiterated, in numerous decisions of this Court and we believe is a very sound rule.
The rationale for the rule, I think is quite simple.
The Fifth Amendment states very explicitly, “no person shall be compelled to incriminate himself.”
There's no ifs, and, buts, no qualifications.
Only if the incriminatory aspect of his testimony can be removed, if in fact as he testifies, he is not subject to any criminal prosecution that could be based on his testimony.
Only then can you say that the Fifth Amendment no longer applies and he may be forced to testify.
And we submit that this can only done by granting him immunity as to any crime, which could be related to his testimony and which could be proved through his testimony worthily leads.
I do not believe that the exclusionary rule with the District Attorney contends this as a sufficient rule, under the Constitution, is in fact a sufficient rule.
Chief Justice Warren E. Burger: Suppose after the events, after these two things, the assault and bribery --
Ms Malvine Nathanson: Yes.
Chief Justice Warren E. Burger: -- and after he testified for the grand jury the first time.
Then, he decided to telephone the policeman’s wife, threatened her over the telephone that he’d do something to the children, if he got into any difficulties.
Do you think that would be part of the same transaction?
Ms Malvine Nathanson: Oh!
No, no, immunity would only protect somebody up to the point of its testimony.
Chief Justice Warren E. Burger: But do you think the transactional immunity here covers both assault on one man and the effort to bribe another?
Ms Malvine Nathanson: Yes, I do.
Chief Justice Warren E. Burger: But then why isn’t the -- why isn’t the effort to intimidate the policeman after the bribery?
Ms Malvine Nathanson: Well, I'm sorry I misunderstood your question and I thought you --
Chief Justice Warren E. Burger: Yes.
I’m talking about his efforts subsequently to intimidate the same policeman.
Ms Malvine Nathanson: Subsequent to the bribe, and not subsequent to his testimony.
That’s what I misunderstood, I'm sorry.
Chief Justice Warren E. Burger: But then either way.
Ms Malvine Nathanson: Well, certainly not subsequent to his testimony, because his immunity at the time of his testimony would only cover what had happened before.
Chief Justice Warren E. Burger: Let's take before his testimony then.
He has now tried to intimidate the policeman by threatening his children through his wife, that if the policeman doesn’t be quiet -- remain quiet, his -- something is going to happen.
I that part of this transactions?
Ms Malvine Nathanson: On the basis of your question and without having a chance to sit down and analyze the facts, yes.
I think that would be covered by the transaction immunity.
Chief Justice Warren E. Burger: Well then if he carried out his threats, let's pick at another step.
Carried out his threat and kidnapped the children.
Are you going to carry the transactional immunity without [Voice Overlap] item?
Ms Malvine Nathanson: Well actually, in New York, I believe that kidnapping is not covered by immunity, and nobody would have power to grant him immunity in an investigation of that sort.
Chief Justice Warren E. Burger: Well then, let's just say he beat the children up then on their way home from school, instead of kidnapping.
Are you going to stretch this transaction to cover that?
Ms Malvine Nathanson: -- without a chance to actually analyze the testimony, because I think it all depends on exactly what he testified to and is it substantially related to the crime for which he is being prosecuted.
And to be perfectly honest, I would have to sit down, read his testimony, take a look at the facts of the crime and determine whether or not this is substantial relation and this is hypothetical, because I haven’t previously considered.
But this would be the test, and if after analysis it would be determined that the testimony that he gave was substantially related to the beating up of the children.
Then, it certainly would be covered.
Chief Justice Warren E. Burger: Pretty substantially related, isn’t it?
Ms Malvine Nathanson: Well, it’s --
Chief Justice Warren E. Burger: It’s the same objective and the same motivation as the bribery.
Ms Malvine Nathanson: That’s right.
Chief Justice Warren E. Burger: He’s doing it for the same purpose; the bribery didn’t work, so he tries another one.
Ms Malvine Nathanson: But the test is not -- is not whether there might be a similar motivation between the two crimes or anything like that.
The test is his testimony itself, what he said in the grand jury are the words that he uttered substantially related to the subsequent crime.
And in fact, they are substantially related.
Then under this court’s holding in Heike he would be covered, under a transaction immunity standard.
I would hesitate at this moment to make that evaluation of a hypothetical that I, you know, had not had chance to evaluate.
It is our position certainly in this case that there's no question that there was a substantial relationship between the testimony before the grand jury, and the bribery prosecution that was subsequently commenced.
For the same reasons that we feel that the testimony could in fact have been relied upon by the grand jury in indicting, that kind of create the same kind of relevancy.
The testimony established the motive for the bribe offer.
It was in fact about the same tire irons that had been used during the assault and that were the subject matter of a bribe offer.
So, we feel there's no question, but if there was a substantial relationship and that under the transaction immunity test, which we contend as a Federal Constitutional test and as it has been explained by this Court in Heike and applied in other cases, the bribery indictment must be found to have been covered by the transaction immunity to which this petitioner was entitled.
It is finally our contention that the petitioner’s right to counsel was very seriously abrogated in this case.
As I mentioned before, prior to his giving any testimony, he asked if he could speak to his lawyer.
And he was told by the -- or whether he stated that he would like to speak to his lawyer first.
And he was by told by the District Attorney, who is in-charge of the case, that this would not be necessary.
In effect, what Mr. Piccirillo told him after he asked for his lawyer, he said, “under these circumstances you are not a defendant, you are a witness,” this is at page 7 of my brief, “you have been given immunity that means you cannot be prosecuted.
Your rights are fully protected and there’s no reason for your conferring with your attorney.”
Now, of course they pointed that the man was indicted by the same grand jury several months later.
And I think there is at least a very serious question whether some of his rights were being affected during his grand jury proceeding.
And perhaps the advice of counsel might have been helpful to him.
At the very least, counsel might have clarified for him what this immunity.
They were talking about was about as the question Mr. Blackmun -- Mr. Justice Blackmun points out there is somewhat of a problem, where has been in New York State as to what the immunity standard should be to compare this case with the subsequently decided case of matter of Menna.
The advice given by the District Attorney himself, his definition of what the immunity would be, kind of veers between a testimonial standard and a transactional immunity standard.
We also submit that a counsel could have been important perhaps even in negotiating, an additional amount of immunity for his client, which is certainly a perfectly appropriate role of counsel, if counsel can accomplish this sort of thing.
Counsel could at least have made clear to petitioner, what was being covered and what was not being covered.
Now, all the parties in this proceeding knew about the bribery.
The DA had had information about this bribery, at least a year before, when it has first occurred.
He had mini-phone, he had the testimony of the police officer, the statements of the police officer.
The lawyer for the petitioner knew about the bribe offer and obviously petitioner knew about the bribe offer.
Certainly, the parties involved could have clarified whether or not the District Attorney thought that this bribe offer was being covered by this offer of immunity.
And, if in fact, it was not being covered, petitioner may just not want to have given up his privilege, he may have rather subject himself to a contempt for execution, which I submit it's just perfect right to do.
Even with the grant of immunity there is no reason why a man can't elect to go to jail for contempt, rather than perhaps get into worst trouble by being indicted for substantive crime.
And so, we think that there are a lot of things that counsel could have done during these proceedings to advise the petitioner, to assist him, to discuss the matter with the District Attorney and to have been able the petitioner to make a considered reason, well-informed decision as to exactly what he wanted to do when called before the grand jury.
And the District Attorney’s cavalier dismissal of his request to talk to his lawyer with the assurance that he had nothing to worry about and he was being fully protected.
This points up the need that this petitioner had for a lawyer to advise him.
And so, it's our position that for these three reasons, the fact that his testimony, his compelled testimony, in fact, was used in obtaining the indictment.
The fact that he should have been given an immunity that would cover the bribery prosecution under the transaction immunity standard, the fact that he was deprived his right to counsel, all require that the conviction of this case be reversed.
If it please the Court, I would like to reserve whatever remaining time I have for rebuttal.
Chief Justice Warren E. Burger: Very well Ms. Nathanson.
Argument of Stanley M. Meyer
Mr. Stanley M. Meyer: If the Court please, Chief Justice, I’d like to just mention two things before I actually get into the discussion of the law.
First, in answer to Mr. Justice Marshall’s question, I think it's safe to assume that the grand jury that voted the indictment in this case was the same jury that did here, the defendant testified.
I believe this was an extended grand jury, normally in Kings County the jury sits to periods of 30 or 60 days.
But I believe this jury sat for an extended period, something like a year or so.
Justice Thurgood Marshall: Well, the problem with that is they have one grand jury, exactly the same time.
Mr. Stanley M. Meyer: I believe that it was the jury with the same people that heard him testified.
Justice Thurgood Marshall: Sure, that was one grand jury at the same time.
Mr. Stanley M. Meyer: Yes, that’s true.
Justice Thurgood Marshall: Would it be in better shape if this case was represented to one or the other one?
Mr. Stanley M. Meyer: Your Honor, there's no doubt about that.
And looking at it from the standpoint of hindsight, tactically speaking, that would have been a better procedure, however the question here is whether the procedure violated the constitutional requirements.
And with your Honor’s permission I would prefer to wait and discuss that point after the first one.
And second, I think it's important to place the facts of what happened here in their proper perspective.
And what I'm going to discuss now is in the record, it was mentioned on sentence and so you can see for yourselves that these are not things that have not been in this case.
This case led to a scandal and basically in New York County, involving (Inaudible), involving the New York Housing Authority.
Now, apparently the victim in this case, a person by the name of Jack Graham was employed by the Housing Authority.
And apparently, there was something about him revealing some of the things that had been going on and he had been apparently talking to police or the District Attorney.
And the petitioner here and co-defendant, who was no longer alive, were hired to beat this fellow up.
And they met him one night in the parking lot of his home, they assaulted him, they hit him with tire irons.
This occurred in March of 1964.
Now, the very next day, when he was being arraigned in the criminal court, the bribe offer was made to the patrolman.
The patrolman advised us about it, we advised him to meet the petitioner at a different time.
He did and we had mini-phone equipment.
Eventually, the petitioner pleaded guilty, he was convicted of assault and he was sentenced to the term of imprisonment.
Now, approximately a year later, while he was serving their sentence, he was called to the grand jury.
He had not been arrested or in any way, there had been no proceedings instituted regarding the bribery conviction.
Now, when the grand jury called him in, they weren’t interested in prosecuting this man for bribery at all.
They were interested in finding out, who paid him to commit the assault and to get into the background of this whole thing.
They wanted names, they wanted to know when the meeting took place and so forth and this is how this case arose.
And so in March 1965, the witness was called back and was given immunity.
Now, New York has a use plus transactional immunity statute.
The statutes are reprinted in both petitioner’s and respondent’s briefs.
And that statute protects a witness from the use of his testimony, plus fruits or leads and the statute also gives him transactional immunity, regarding any manner or thing, concerning which he testifies.
Now, that’s clear.
The Court of Appeals in this case decided if analyzing Counselman versus Hitchcock, the Murphy case, and all of the relevant decisions.
That the only thing that Constitution required was, that a witness be given use plus-fruits immunity and that the transactional portion of the New York statute was not mandated by the Federal Constitution.
Then the court concluded that the New York statute was passed, because of the dicta in Counselman and that it really was the intention of the legislature to give the witness no more than the Constitution would require if to give any witness.
And so, the court held that the New York statute only prevented the use of his testimony plus-fruits or leads.
Then seven months later, the court overruled this case, but only to the extent of its interpretation of the second portion of the New York statute.
In other words, it said, “We were right.
We still believe that the Constitution only requires a use plus-fruits immunity.”
However, the New York statute is clear and there really has never been any doubt.
And we must interpret the statute according to its plain language.
And so we hold that the New York statute does give transactional immunity, although it's not required by the Federal Constitution.
Justice William H. Rehnquist: What do you think prompted the New York court to change its mind that there wasn’t very much of a change in its personnel, was there?
Mr. Stanley M. Meyer: No, I don’t believe there was any change, it's very interesting, I believe Judge Keating who wrote the majority of opinion had left the court though.
When we argued this case in the New York Court of Appeals, we really didn’t even argue this point.
And so, we were quite surprise when the court decided that the New York Statue, as a matter of state law, was not an immunity statute.
Apparently, they just felt that they had misinterpreted the statute.
I think it's clear from reading Gold versus Menna and nothing more.
Unknown Speaker: I understand when you argued Piccirillo’s case, this point was not argued --
Mr. Stanley M. Meyer: That’s right, because we all assumed that New York statute granted transaction immunity, as a matter of state law.
Now, I think that’s very important, and it's important for this reason, if transaction immunity or first let me say this, then he was brought into the grand jury in 1965 and questioned about the events leading up to the assault and there’s a lot of testimony.
He was asked many, many questions, but as a matter of introduction, of course, the testimony started of by the prosecutor saying to him, “Now, you’ve been indicted -- you’ve been convicted of assault and you’re serving a sentence for it and isn’t it true that has all occurred on such, and such a date where you hit this man with a tire iron.”
And the word “tire iron” was mentioned.
Now, it was argued that by use of tire iron, that the defendant got immunity from prosecution for the bribery, because when he made the bribe offer to the officer, he said, he offered him money, in exchange for changing his testimony and losing the tire iron.
And so, the argument was made that because the phrase or the two-words “tire iron” was used in the grand jury, that this meant that the defendant testified to a thing or matter as set forth in the New York statute.
Now, if transactional immunity is required by -- incidentally, the court below, all the way down the line held, as matter of fact that this was not a thing testified to and that the testimony he gave had no relation, as matter of fact, to the testimony which supported the indictment.
Now, this is important because if transaction immunity is required by the Federal Constitution, then the decision of the Court of Appeals that this was or wasn’t a thing as specified in the New York State statute is a matter of federal importance and it is to be decided by uniform standard.
On the other hand, if the only thing that the Constitution requires is a use plus fruits immunity, then when New York decided whether this crime as bribery was one of the things testified too in the grand jury becomes strictly a matter of a state interpretation of its own statute and there was no federal constitutional question involved.
And so it is necessary to decide whether transactional immunity is required by the Federal Constitution.
Now, the petitioner relies a great deal on the case of Counselman versus Hitchcock.
Now, it's our position that Counselman is not the law anymore that it has been overruled or that if it hasn’t, it should be.
And that the consequences of our holding in Counselman are much greater and dangerous today than they we're in the days when it was decided.
We also take the position at the Murphy versus the Waterfront Commission case and Malloy versus Hogan have closed this question.
And that this Court has made it clear that the Constitution only requires a witness to be put in the same position as if he had pleaded his privilege or as if he had never testified.
In other words, he is to get only that protection that the Constitution gives him.
And to protect the use by any Government of the testimony he gives and the leads obtained from or the fruits of that testimony would do that.
To give him transactional protection is to give him a benefit not required by the Constitution and it's a benefit which each and every state should have the right to decide for themselves.
That is whether they want to give it to them or not.
Now, this is really the key issue in this case and I think that there really is not much doubt about the law in this area.
Now, this Court in Murphy said that we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating on the federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.
We conclude moreover, that in order to implement this constitutional rule and accommodate the interest of the state and federal governments in investigating and prosecuting crime, the federal government must be prohibited for making any such use of compelled testimony and its fruits.
This exclusionary rule while permitting the states to secure information necessary for effective law enforcement leaves the witness and the federal government in substantially the same position as if the witness had claimed this privilege in the absence of a state granted immunity.
And in footnote 18, in that decision made it clear as far as the rationale was concerned that this Court was only saying that use plus fruits was required.
And the footnote indicates that once a defendant has been granted immunity and compelled to testify in a state proceeding, and then he was later indicted in the federal jurisdiction that it would be up to the federal government to show that the source of the evidence used against in was untainted and did not in any way stem from the evidence he gave before state grand jury which indicated that each government would be free to prosecute or obtain indictments against the witness provided that were totally completely independent.
And this, I submit would be the same situation that a witness would find himself in if he never were a witness, if he were never compelled to testify.
You're sort of saying to a witness tell us things; give us information which we intend to use against other people sort of off the record.
We're not going to use it against you, use it in any way to obtain evidence against you.
But on the other hand, if something comes up clearly from an independent source, we do not want to be prohibited from doing what we normally could do.
Now, the statement in Counselman which caused all the problem was a dicta in that decision.
Now, that case declared a federal statute unconstitutional because in that case as a matter of fact, that statute only gave use immunity and did not protect Mr. Counselman from the federal government’s using the fruits of his testimony or obtaining leads from his testimony.
And for that reason and that reason alone, the statute was unconstitutional.
The statement which has been discussed very often came later on in the opinion and was not necessary to its decision.
Now, this was pointed out in the Murphy case, in this case, in the Court of Appeals opinion and in the Supreme Court of State of New Jersey’s opinion in the Zicarelli case which I submit as highly persuasive.
Also, I would like to point out that the effect of the decision in Counselman was not very great because you had the two sovereignties doctrine.
And it really made no difference what the court said in that case because the Fifth Amendment could not be pleaded in the state prosecution and vice versa -- the opposite was true.
However, since this Court’s decision in Malloy versus Hogan applying the Fifth Amendment to the states has come down a holding such as petitioner suggests Counselman requires would have disastrous effects on law enforcement throughout the United States.
And I suggest that if the basis for Counselman and the conditions under which it was decided no longer exist, then Counselman should be reevaluated.
Now, many courts have considered this problem and have taken the position and this court has overruled Counselman even though it didn’t specifically say so in the Murphy decision.
For instance, in New Jersey, in the Zicarelli case, the Supreme Court said we, and incidentally, New Jersey enacted a statute which only gave use plus fruits immunity, this statute was enacted after Murphy was decided.
And so the legislature took the position that this Court had overruled Counselman and the state was now free to take away the transactional portion of the protection that had previously afforded witnesses.
And so it passed the new statute.
And the statute was tested and it went to the Supreme Court in the State of New Jersey.
I understand the case is here on a sort of application at this time.
And the court said, “We heretofore deemed the Constitution to require immunity against use of testimony rather than immunity from prosecution.”
And recently all legislatures in adopting the model State Immunity Act substituted an immunity from use for an immunity from prosecution which I've just referred to.
There is a difference in that Murphy dealt with a federal state setting, whereas we are here dealing with the claim that our statute does not protect the witness from prosecution under state law.
But the question involved is the same.
In other words, what immunity of the Fifth Amendment requires in exchange for a compulsion to answer.
The values involved are the same.
We see no sensible basis for different answer.
Gardner versus Broderick treated the issue as one and the same siding both Counselman and Murphy.
Murphy held and Gardner repeated that the Fifth Amendment requires protection only from the use of the compelled testimony and the leads it furnishes and that protection of our statute expressly provides.
So we have New Jersey taking that field.
You have New York of course taking that view in this case and in the many cases.
The U.S. Court of Appeals for the Second Circuit, Judge Friendly writing for the majority in the Uniformed Sanitation case.
It took the same view and the District Court in the southern district in two cases falls at the (Inaudible).
Also, California in interpreting Murphy agreed that complete immunity such as what's discussed in Counselman was not required by the Constitution and that answers could be compelled as long there was immunity from federal and state use of the testimony and its fruits.
I also point out that Maine has taken the same view and Kansas in dicta has also agreed.
Now, the appellants cites -- the petitioners cites statutes in a very impressive compilation at the end of our brief four or in the appendix of all of the 50 States in which it is clear that most of the States have adopted transactional immunity statutes.
And apparently, this is done to argue that if the States felt it was necessary to give that type of protection, then it would’ve be persuasive.
And this court order be persuaded that that it too should take the same position.
I would like to point out as I point out in my brief that prior to Counselman, the situation was just the opposite.
Most every state had only a use plus fruits statue.
But because of the dicta in the Counselman, it was thought that transactional immunity was now required as a federal proposition and all of the States amended their statues.
And so since the state statutes were only changed because of Counselman, it seems to me that to argue that these statutes are themselves persuasive is truly putting the cart before the horse.
Also, the practical effects of the contrary rule or as the -- or of a rule as petitioner argues is quite, quite important.
Now, Mr. Justice White pointed out in Murphy in his concurring opinion that if this court adopts a transactional rule, it will in effect be abrogating the immunity statutes in every single state because a state cannot give federal transaction immunities beyond it's power but since because of Malloy, a witness can now plead his federal privilege in a state proceeding he can successfully forward an attempt of any state to give him immunity and secure his answers.
And the Court -- and Mr. Justice White said, “The invalid -- that this would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility in our federal system.”
Of course the converse should be looked at also.
If it could be said, and I don’t urge it that a state did have the power to grant federal transactional immunity in a state proceeding, and that if the state in granting immunity -- transactional immunity bound the federal government, then the effect is even worse because if that were true, a state of course without consultation with the federal government and without the government’s knowledge could sterilize the federal government from ever proceeding against an individual.
And the example of course comes to mind at the situation where the Government may have a case prepared against a particular individual, the case may be either in the grand jury or be ready to go to a grand jury when all of a sudden it's discovered that this witness in a state prosecution which may not have been very important admitted in ans -- responsive answers to relevant questions that he had committed various federal crimes which were then under investigation in the federal jurisdiction.
So that for all practical purposes, the witness would’ve -- would gain a federal immunity and would prevent the federal government from taking any sort of action.
Now, the other argument is made that we used the testimony of this witness against him on the bribery case and that the grand jury heard him testify and that the -- he furnished the background and the motive for their action.
Now, the record I think dispels that argument.
First, it is conceded that motive on the New York law is not an element of the crime but the Court of Appeals decided as did the original Supreme Court in New York that the testimony of Patrolman Sewell was complete in and off itself that any testimony given by this witness was insubstantial and played no part in the subsequent indictment.
Now, of course the only thing that this witness said was that he had used the tire iron.
But that was repeated by Sewell in the grand jury who testified that when the bribe offer was made to him, the witness admitted the assault admitted using a tire iron and admitted many things and this is in the appendix.
So, that the testimony of this witness was totally unnecessary to support the indictment which was obtained.
I think that merely using the same grand jury does not in and of itself violate anyone’s rights.
Now, let me point out that it is common practice for instance in the Southern District of New York to present a case against a man have all the evidence completed and then subpoena him to testify before the grand jury.
When he testifies pleads the privilege of self-incrimination and then leaves the grand jury room, it's very common for that grand jury who had just heard him plea that privilege to indict him.
Incidentally, such a procedure would be illegal in New York.
And this type of situation has been upheld many, many times.
I think it's far more questionable than what happened here.
Because here, truly, the grand jury and the district attorney did not call this man in order to have him say anything that would be used against him in a bribery case.
They weren’t interested in bribery.
They would have forgone for all times any bribery prosecution.
They were only interested in learning about the background of the assault and getting into this area involving so to speak bigger and better things.
And I think that this must be kept in mind and I just would say one word about this business of counsel.
Now, it's true.
This is what happened.
He was explained the meaning of immunity and he went outside presumably his attorney was with him in the court and then the grand jury came back and granted him immunity.
It was explained to him again and the witness said, “Well, okay.
I'm going to answer the questions but can I just talk to my lawyer for a second?”
And the prosecutor said, “Well, no, you don’t really have to because you have immunity.”
Now the Court of Appeals --
Justice Thurgood Marshall: What did he mean by that statement?
Mr. Stanley M. Meyer: Your Honor, I have no idea. Of course, it would’ve been much better to let the man go outside.
It wouldn’t have changed anything because presumably --
Justice Thurgood Marshall: Couldn’t he assume that as of that moment, he was immune from any prosecution of any kind prior to that moment?
Mr. Stanley M. Meyer: Well,--
Justice Thurgood Marshall: Couldn’t he -- couldn’t he have thought that’s what he meant?
Mr. Stanley M. Meyer: Well, Your Honor, he was unaware that there was any type of bribery proceeding pending so he couldn’t have talk about that.
Justice Thurgood Marshall: Well, he didn’t say partial immunity, limited immunity or absolute immunity.
Mr. Stanley M. Meyer: Well, that’s true.
We can see that.
Justice Thurgood Marshall: He just said immunity.
Mr. Stanley M. Meyer: We offered him complete immunity, transactional immunity but transactional immunity is a matter of state law and we contend that this was not a transactional --
Justice Thurgood Marshall: Did he know what transactional immunity was?
Mr. Stanley M. Meyer: It was explained to him and he had an attorney --
Justice Thurgood Marshall: Explained by whom?
Mr. Stanley M. Meyer: By the prosecutor in the grand jury and he had a lawyer presumably outside who he consulted with.
Justice Thurgood Marshall: Did he want to go back and make that final check with his lawyer for something?
Mr. Stanley M. Meyer: Well, an answer to that [Voice Overlap], the Court of Appeals considered that problem.
And let me just read you their answer, In Gold versus Menna when they reconsidered this situation, they said, “Since Piccirillo’s answers did not form the basis of the present indictment, his claim that his constitutional right to counsel was violated because he was not permitted to confer with his attorneys without merit because his answered weren’t used.
No prejudice did or could result for the attorney could have done nothing more for Piccirillo than to assure that he was given the immunity which in fact he did receive.”
So he got it anyway.
Piccirillo situation is to be distinguished from that of a witness who denied permission to confer with his counsel, refuses to answer and is held in contempt.
Such a witness might properly claim that had he been given an opportunity to obtain advice from his lawyer, he would undoubtedly have testified and thereby been spared a prosecution on a contempt charge.
Chief Justice Warren E. Burger: Thank you Mr. Meyer.
Rebuttal of Malvine Nathanson
Ms Malvine Nathanson: On this question of the effect of the rule that we state as constitutional required upon criminal prosecutions throughout this entire country, first, I believe the District Attorney has misinterpreted what we state as constitutionally required.
The Counselman rule as we have discussed in our brief, refers to the requirement that the compelling jurisdiction -- compelling jurisdiction grant transactional immunity to the witness.
The Murphy situation of course was a case where the compelling jurisdiction and the using jurisdiction, or potentially using jurisdiction, were two different places.
It is not the situation on this case but that distinction is very important.
We have not --
Chief Justice Warren E. Burger: How is it important to the use factor?
Would you spell that out?
Ms Malvine Nathanson: Well, we have not proposed that a jurisdiction other than the one which has compelled the testimony be bound by the transactional immunity rule.
So we have not proposed this parade of horrors that the district attorney refers to when some small state prosecution willing to lay the witness from large important federal prosecution.
This is not what we are saying at all.
It is our position that the jurisdiction which makes the decision whether or not to compel the testimony and presumably evaluates so far as the down jurisdiction is concerned how important the testimony is or how important the prosecution against that witness would be.
That jurisdiction which makes that definite decision to grant immunity should be bound by that decision.
Unknown Speaker: And must grant constitutionally?
Ms Malvine Nathanson: And must grant --
Unknown Speaker: Transactional immunity --
Ms Malvine Nathanson: That’s correct.
Unknown Speaker: -- for many prosecutions by that jurisdiction.
Ms Malvine Nathanson: By that jurisdiction but the jurisdiction which is not participated in this decision would not be bound to that extent as to that jurisdiction of the Murphy rule which says a protection use --
Unknown Speaker: Use and fruits?
Ms Malvine Nathanson: Use and fruits.
Unknown Speaker: Right.
Ms Malvine Nathanson: Would be the proper rule to apply.
Chief Justice Warren E. Burger: Why does it need to go beyond use?
Actually assigned to the Counselman on the other --
Ms Malvine Nathanson: I think it's very--
Chief Justice Warren E. Burger: What's your rationale for it?
Ms Malvine Nathanson: It is our position that a -- well, a man who has in fact been forced to testify can never be placed in exact same spot as though he had never testified and this is a fact that has occurred and there's no way of pretending that it never happened.
But to get him as close as possible to that point in time when he was not compelled to testify which meant that the only thing you can do is give him full protection.
For this reason, if he’s only given protection against the use of his testimony or his fruits, first of all, this involves a very, very difficult factual evidentiary kind of a hearing.
Even assuming that the burden would be on the prosecuting agency as it was mentioned, it would be in Murphy, it still is a difficult factual question because it almost involves the -- an exploration into the thought process of the prosecuting agency.
Now, we are assuming that this is the same agency which has compelled the jurisdiction so we can further assume that they have -- that they are aware of the compelled testimony.
Now, you’d have to go into their minds and find out whether that testimony set off any trains of thought, gave them any ideas, gave them any hunches that they acted upon.
These are very, very difficult things to trace and I don’t believe that you can ever have assurance that there would be full protection.
Chief Justice Warren E. Burger: All those factors are still there when you have the federal statement situation --
Ms Malvine Nathanson: Well--
Chief Justice Warren E. Burger: -- on the fruits problem?
What you're arguing against is the fruit problem.
Ms Malvine Nathanson: This is true except for the fact that you're dealing with two different jurisdictions and the likelihood.
Well, for example in this case, there is very little chance that the District Attorney of Kings County was not aware of the petitioner’s testimony.
But if there were federal prosecution, it would not be as likely that the federal authorities would know what he had said.
And so you wouldn’t have this difficult problem of determining how the other state may have -- how his investigation or procedure may have been somehow determined by what he heard because it's not so clear that he was up for the compelled testimony.
Certainly, within a jurisdiction, this is a much, much greater problem and we can see that because of certain practical considerations involved in our federal system, it may be that the rule would have to be different between the two jurisdictions although it's not easy to formulate the rationale.
Apart from just saying that without some kind of differing standards, the problems that the district attorney has presented might in fact come into being.
We do live in a federal system and as Murphy recognized, we have to make accommodations between federal and state interests and we submit that this is the best way of doing it within the framework of the Constitution.
It's interesting that in Murphy, they stated that the witness who is being protected from the use of his testimony was being placed in substantially the same position, substantially, as though he had not testified which is something different from what Counselman said which is that he must be in exactly the same position as though he had not testified.
I think this is a recognition that this isn't really completely what the Constitution would require but because it's not the compelling jurisdiction and because of our federal system, this would be a proper rule under the Constitution.
If I could just make one more comment.
I would like to point out that these questions do not appear in this case.
And again to stress that we are dealing with the compelling jurisdiction being the very same one that has embarked upon the prosecution and so under the transactional immunity test as we have as we believe it is evident from the decisions of this Court and the Constitution, the indictment in this case must necessarily be dismissed.
Chief Justice Warren E. Burger: Thank you Ms. Nathanson.
Thank you Mr. Meyer.
The case is submitted.