SARNO v. ILLINOIS CRIME COMM'N

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Argument of Frank G. Whalen

Chief Justice Warren E. Burger: We will hear arguments next in number 70-7, Sarno against the Illinois Crime Investigating Commissioner.

Mr. Whalen, you may proceed whenever you are ready?

Mr. Frank G. Whalen: Mr. Chief Justice and may it please this Court.

Two questions are presented here for the Court’s consideration.

First question is considering the implication of the questions, the circumstances, and setting under which they were asked, where the petitioner is justified in pleading the Fifth Amendment under a State Immunity Statute according to the -- to afford transactional immunity.

And the second question, must the State affirmatively demonstrate to respondents when testifying and pursuant to the Illinois Immunity Act, that an immunity is brought in scope as the Fifth Amendment privilege is available and applicable to them.

In 1963, the Illinois legislature created the Illinois Crime Investigating Commission.

The sole purpose of which was to investigate organized crime in the State of Illinois.

In 1968, petitioners, Sarno and McCarty, where ordered to appear and give testimony before this Commission.

They appeared and refused to testify, pleading the Fifth Amendment.

Now, as to the circumstances and the studying that were found at the time they appeared, the first would be that Illinois at this time had a double standard of Immunity Act.

There was the Grand Jury Act, which applied to proceedings before Grand Juries and to -- and before Trial Courts.

Under this the Grand Jury Act, a witness was given immunity from prosecution for any offense shown in whole or in part by such testimony.

Further, this Act, the Grand Jury Act had been interpreted by the Illinois State Supreme Court in People versus Walker, 28 Illinois 2nd 585 and there the Supreme Court in very strong language upheld the constitutionality of that Act.

In fact, the Court there said that the statue eliminates the constitutional privilege against self incrimination.

Now, the State of Illinois Immunity Act which we are concerned here with, provided a witness shall not be prosecuted or an account of any transaction, matter or thing concerning which he gave answer.

The Act further contained this provision.

The Court shall not order any such person to testify or produce evidence if it reasonably appeared to the Court that such testimony or evidence would subject such witness to an indictment, information or prosecution under the laws of another State or of the United States.

This statute had never been interpreted by the State Supreme Court and was first interpreted on this offensive appeal.

This was a public hearing without the privacy in terms of Grand Jury proceeding, and it became obvious to the petitioners that the questions asked were based upon records that had been at a prior time, illegally seized from the home of the petitioner McCarty.

Chief Justice Warren E. Burger: Is this Commission a Legislative Commission, Mr. Whalen?

Mr. Frank G. Whalen: Yes, it is.

Chief Justice Warren E. Burger: It is much like I suppose arisen now, but it is not much like a Congressional Committee conducting an inquiry into this particular subject?

Mr. Frank G. Whalen: I would like commit to --

Justice Potter Stewart: What are duties in the event that does as -- it does has what it is before that do answer questions, what does it do with him?

Mr. Frank G. Whalen: Well, I can only assume Mr. Justice that it is to report as to the various prosecuting agents.

Justice Potter Stewart: Not just to the State Legislature?

Mr. Frank G. Whalen: No and then, I am really not sure of my answer, but it is my understanding that that would be the function.

Justice Potter Stewart: So, it appeared correctly, you are understanding that this agency is a kin to the New Jersey Commission from which we have just heard?

Mr. Frank G. Whalen: Oh, I believe very much so.

Justice Potter Stewart: Rather than just a legislative?

Mr. Frank G. Whalen: Yes sir, yes indeed.

Justice Potter Stewart: (Inaudible)

Mr. Frank G. Whalen: That is my understanding, Sir.

Chief Justice Warren E. Burger: If there is nothing that will prevent, if the committee of the Congress conducted an investigation, it is traditional, is it not, that all those reports are made available to the Attorney General of the United States, if they seem to disclose violations of law?

Mr. Frank G. Whalen: I believe so.

Chief Justice Warren E. Burger: It is routine?

Mr. Frank G. Whalen: Yes sir.

Yes Mr. Chief Justice?

Chief Justice Warren E. Burger: In the first instance does this Commission report back to the legislature, do you know?

Mr. Frank G. Whalen: It is my understanding that it does for the purpose of the legislature enacting further laws.

Chief Justice Warren E. Burger: Is its report made public?

Mr. Frank G. Whalen: Its report is made public, its hearings are public, in every sense of the word public, that is advertised in other words, its -- It is a very public proceeding and under these conditions, to petitioners it became apparent that the questions were based on records that had been illegally seized from the home of the petitioner McCarty on a previous occasion.

These records had been ordered suppressed in the Trial Court and returned to the petitioners.

However, they latter at this time found -- brought it to them.

Further, at this time, Illinois had six statutes of carried immunity provisions and contained the phrase “or subjected to penalty or forfeiture.”

State of Illinois at this time had a malice is the just of the action statute, providing six months imprisonment in the County Jail and had at this time enacted a law making criminal usury a felony.

Further as to the sudden circumstances, the State of Illinois at this had more provision for discovery in criminal cases.

In the same and under these to circumstances then, the petitioners where examine concerning more than 200 transactions.

And, it was apparent that in the event of future prosecutions it would be impossible to ascertain whether or not the prosecution was based upon evidence independently obtained or upon the fruit or the links of the compelled testimony.

The questions that were oppose to the petitioner’s fell into five separate categories.

They have been abstracted in our brief and I would refer to one that question at abstract 42, question 12 and ask, suppose in the petitioners had been asked only this question.

The question, at what places in Cook County have your dues customers met you to make their weekly payments and petitioners gave answers to the question.

Assume then that the State went to these places interviewed all those found there and learned from them that petitioners had committed anyone of the offenses, punishable under the criminal code.

Whether committed against the particular persons that they interviewed or against some persons known to them.

Well, petitioners then would be in a position where they have no asked, they had not been asked to give answer to any act of violence.

Nevertheless, the answer to the question would be the link, necessarily to prosecute them for offense of violence.

They further believed that the Illinois State Legislature when creating this commission did not intent to afford or did not intent for it to afford an immunity as broad in scope as the Fifth Amendment privilege.

The Courts two years after the opinion of the Illinois Supreme Court in People versus Walker in which they upheld the constitutionality of the Grand Jury Act, this Immunity Act was amended, but the pertinent language to which I have referred remain untouched, which indicates to me certainly and to the petitioners that the legislature under this act, the Immunity Act did not intend.

Certainly, they did not afford an immunity as broad, but petitioners believed that was not even intended.

Chief Justice Warren E. Burger: Well, what has the Supreme Court of Illinois held with respect to whether the statute is co-extensive with Fifth Amendment?

Mr. Frank G. Whalen: This -- it was first interpreted upon this instant appeal and there the Supreme Court held that under this statute, the Court did not have power to grant express immunity, but that Murphy Work versus The Waterfront supplied the necessary compliment and held it constitutional.

Now --

Chief Justice Warren E. Burger: Now, how did, co-extensive with the Fifth Amendment?

Mr. Frank G. Whalen: Co-extensive, yes.

Chief Justice Warren E. Burger: Well then, let us pursue a particular case.

You are concern about this client that you represent here.

Suppose he should be prosecuted in the future, assuming hypothetical this Court it will then take same position as the Supreme Court of Illinois and then he was prosecuted for something, and you claim that it was derivative from the questions and answers and not to inquiry.

Would not the Supreme Court of Illinois be bound under its holding to afford him whatever protection the Fifth Amendment would have afforded him?

Mr. Frank G. Whalen: Provided Mr. Chief Justice that he could establish that that evidence was independently obtained.

We -- I do not believe that it was intended nor do I believe that under the language of the statute, this Fifth Amendment privilege was extended and certainly not an immunity as broad as a privilege.

Chief Justice Warren E. Burger: From the States, the Supreme Court of the State of Illinois treating the question has said that it is co-extensive with the Fifth Amendment.

Now, that is clear is not it?

Mr. Frank G. Whalen: Yes.

Chief Justice Warren E. Burger: But, whether they are not being obliged in reviewing any future conviction, would they not be bound to see to it that he got that degree of protection by whatever steps?

Mr. Frank G. Whalen: Illinois has never decided that the burden is upon the prosecution or who upon whom the burden was placed.

I could only answer that there would be no way for the petitioner to bring it to the attention because could not tell.

He could not tell.

Because you see, they are only asked, they are referring to any answer -- 20 question he gave answer, and that leads, leads and leads to others that he did not give answer.

I cannot conceive Mr. Chief Justice how as the Defense Attorney, how the petitioners in a subsequent prosecution could ever determine whether or not this prosecution was based on independently obtained evidence or was the fruit of the links.

And in addition, in Illinois at that time, we do now have by rule of the Supreme Court, not by statute, not by any Act, we do have a limited discovery, but at this time, there was not discovery in the State of Illinois, in criminal cases and, I do know how counsel could of be of assistance to a petitioner faced with the subsequent prosecution and ascertaining that fact.

Justice Byron R. White: Did you present the Supreme Court of Illinois the issue or the claim that this statute was unconstitutional because it did not grant absolute immunity, but only use immunity?

Mr. Frank G. Whalen: I did Mr. Justice White.

Justice Byron R. White: And it decided that the statute granted as much as Murphy required, and that that was enough?

Mr. Frank G. Whalen: We were concerned there with the provision that where the Court -- recently approve the Court.

Justice Byron R. White: I understand that that is a different issue?

Mr. Frank G. Whalen: Yes.

Justice Byron R. White: That is a different issue?

Mr. Frank G. Whalen: Yes.

Justice Byron R. White: And I ask you, did you also present the issue of absolute as against use immunity to the Supreme Court of Illinois?

Mr. Frank G. Whalen: No, it was not raised in that manner Mr. Justice White.

Justice Byron R. White: And the Supreme Court of Illinois did not pass on that?

Mr. Frank G. Whalen: I would say they did not.

Justice Byron R. White: What is the issue doing here?

Mr. Frank G. Whalen: Whether or not the statute affords an immunity, as brought in Fifth precede --

Justice Byron R. White: Yes.

Mr. Frank G. Whalen: It is our contention that under these circumstances, it does not and that it was not intended to.

Chief Justice Warren E. Burger: Would you disagree with the Supreme Court of Illinois then?

Mr. Frank G. Whalen: I certainly do Mr. Chief Justice.

Chief Justice Warren E. Burger: Well, would that and I repeat would that Court not be found in the future case against your particular client which you claim was derivative from this investigation?

Would they not be bound to give them all the protection that the Fifth Amendment gives him as it is construed --

Mr. Frank G. Whalen: Yes, sir, provided --

Chief Justice Warren E. Burger: -- defined in the Murphy among other cases?

Mr. Frank G. Whalen: Provided Mr. Chief Justice that he could establish that this was the fruit or the links and he alleges that under these circumstances, he could not and of course when you rely on Murphy --

Justice Byron R. White: You say, I take it that they must got absolute immunity?

Justice Potter Stewart: Transactional Immunity?

Justice Byron R. White: Transactional Immunity?

Mr. Frank G. Whalen: Yes.

I say that while statute -- while the statute purports to grant transactional immunity it does not.

Justice Potter Stewart: Well, the Illinois Supreme Court did not toll one way or the other on it --

Mr. Frank G. Whalen: It did not, sir

Justice Potter Stewart: -- question as I read their answers and you said that you say constitutionally, you are entitled to transactional immunity of your client?

Mr. Frank G. Whalen: Yes Mr. Justice.

Justice Potter Stewart: And, I would suggest off hand that at least a casual reading of the first part of 203-14 seems to grant your client transactional immunity, does is not? Using the very word, transaction?

Mr. Frank G. Whalen: It does use the word transaction, but it also uses the language to which he gave answer and we do not believe that that affords them Transactional Immunity.

Justice Potter Stewart: To which he gave answer or produced evidence?

Mr. Frank G. Whalen: Yes, because the example that I have given and which is abstracted and the question, where in Cook County do your costumers need you to make your dues payments.

Now, he is not asked for anything, any question, he gives no answer with regarding the crime of violence.

However, if he answers this question and the State Authorities go to these places and interview whoever is there and learn of a crime of violence, he would be absolutely unable -- in other words what we believe is that if this statute be only is designed to represent an exchange for the privilege, it is a poor exchange because the petitioner winds up much the worst for it.

Justice Potter Stewart: Well, the fact is that the Illinois Supreme Court really has not been construed (Voice Overlap)?

Mr. Frank G. Whalen: That is true Mr. Justice.

Justice Potter Stewart: I have the idea that you are also objecting in this case to the second part of the 203-14 that part of it that purports to give some kind of immunity against the released or at least required -- at least directs the commission not to require with a witness to answer with respect to prosecuted, could lead to the danger of prosecution in another jurisdiction, are you objecting to that?

Mr. Frank G. Whalen: I am objecting to that sir.

It not -- it directs the commission, it directs the Court who enters the order.

Justice Potter Stewart: Right, it has actually had the information.

Mr. Frank G. Whalen: Not to -- not to grant immunity if it reasonably appeared to that Court that the answer could involve prosecution in another State or under the law --

Justice Potter Stewart: Right.

Mr. Frank G. Whalen: -- of and we say that a witness confronted with this situation is misled or at least he does not know, they will be doubt in his mind because he cannot tell -- he cannot tell under those circumstances just to extent of the immunity is being granted.

And, which leads to the second question of --

Justice Potter Stewart: Well, He really is not being granted any immunity, is he, in the second part against the prosecution by another sovereign because it is just the direction to the Court and it is --

Mr. Frank G. Whalen: It is a direction to the Court.

Justice Potter Stewart: And the Court tells him to answer, that is it.

And then --

Mr. Frank G. Whalen: Yes, except that the petitioner faced with the statute does not know.

Certainly, he could not be in contempt for refusing to obey a void order and he does not know now under these circumstances, under these questions had been asked, whether or not, it should reasonably appear to the Judge that the answers might involve him with a prosecution in another State or --

Justice Potter Stewart: Or is that already that he contests on that against citation for refuse to answer?

Mr. Frank G. Whalen: Yes Sir.

Justice Potter Stewart: Can he?

Mr. Frank G. Whalen: Yes.

He can do that and he does that at his peril.

Justice Thurgood Marshall: Mr. Whalen, way or way back, you said that these questions came from material that was illegally seized from of the defendant?

Mr. Frank G. Whalen: Yes, Mr. Justice.

Justice Thurgood Marshall: And, if the Government used that information to go to each one of these dues joints, what could you do about it?

Mr. Frank G. Whalen: This of course was a -- at the time of these were seized, this was at the indictment level.

They were suppressed and ordered return in the Trial Court.

Now, had the Government -- the petitioners here would have no way of -- they would assume and believe that the Govern -- that the Local Officials did go to the places.

Justice Thurgood Marshall: But what is the difference?

Mr. Frank G. Whalen: What would be the difference?

Only served at -- if they placed a future prosecution, they would have known and certainly there, the difference is that they were not granted any immunity.

There was not even any question about immunity being granted.

That was a strictly a Fourth Amendment question.

Justice Thurgood Marshall: I still do not understand why they had asked him the question if they already had the information?

Mr. Frank G. Whalen: Perhaps, I do not make myself clear.

Mr. Justice, these records were seized by the City of Chicago Police Department.

Now, this is prior to this commission -- those orders where ordered -- those records were suppressed at trial and ordered to be turned and were returned.

We assume of course that they recall the standard one jurisdiction gave up to the inquiring commission.

That is we cannot prove that, it is only logical conclusion.

In fact, this is never been denied by the State in any of the proceedings.

Chief Justice Warren E. Burger: Let me get clear if I can.

Your view of what the Illinois Supreme Court held, in your brief you say, the Illinois Supreme Court held with the certain omissions, that the immunity referred to in Section 203-14 was co-extensive with the Fifth Amendment?

Mr. Frank G. Whalen: Yes.

Chief Justice Warren E. Burger: That is your position as to what Illinois has held?

Mr. Frank G. Whalen: Yes and Illinois then referred to Murphy versus -- the Illinois Supreme Court referred to Murphy versus Waterfront Commission, but it is our position that that applies only where in the State proceeding, a State witness hears Federal Prosecution and here we are talking about further State Prosecution.

It is not argued by the petitioners here that the Fifth Amendment privilege embraces civil suits or punitive damages, but in conjunction with a analysis with the gist of the statute where they can be imprisoned for six months on a great number of judgments, that is then it becomes penal in nature of penal and character.

What they are simply contending here is that under these circumstances and the setting, the State of Illinois denied them their Federal Privilege.

The Federal Privilege being that they should have received an immunity in exchange for their testimony, they should have received an immunity as broad and scope as the privilege and it is supplanted.

They did not.

Chief Justice Warren E. Burger: How do you really test that in the case like this Mr. Whalen?

That is my -- it is my problem.

Do not you have to test the scope with this immunity by a prosecution for a subsequent crime in light of the Supreme Court -- Illinois Supreme Court’s view of the matter?

Mr. Frank G. Whalen: I would say Mr. Chief Justice that it would be impossible to do so, even at the trail of other subsequent crime.

I know of no matter in which it could be tested.

Chief Justice Warren E. Burger: But first, you have a number of alternatives that he may never be prosecuted in which case, there will be no problem is assuming he went on and answered or if he prosecuted, you could assert that the Supreme Court of Illinois has said that his immunity is freedom from prosecution and was co-extensive with Fifth Amendment protection and that issue would be presented by that case, would it not?

Mr. Frank G. Whalen: Except that the -- he would still be, and I do not know how to answer otherwise, he would still be absolutely unable to ascertain this or to establish this fact.

Chief Justice Warren E. Burger: Or what if hypothetically the burden is on the prosecution to establish that the case rested on information from an independent source?

Would that give you the protection that you need?

Mr. Frank G. Whalen: No, Mr. Chief Justice it would not.

While that burden -- while that burden would be upon the prosecution to show that it was independently obtained, I know of no manner in which the petitioners could controvert it because they have not an immunity as to the subsequent, as to the fruits under this Act.

Justice Potter Stewart: As I understand, your argument is simply this Mr. Whalen if your client is entitled under the Fifth and Fourteenth Amendment and he continued to refuse to answer these questions until or unless the State makes clear to him that he is given transactional immunity, is it not?

Mr. Frank G. Whalen: It could be stated -- formally

Justice Potter Stewart: And it should probably in that right here in this case?

Mr. Frank G. Whalen: Yes Sir.

Justice Potter Stewart: And so far the State has not tolled any (Inaudible)?

Mr. Frank G. Whalen: Yes, sir.

I believe that and I believe that the State must, duty is upon the State to affirmatively demonstrate at the time petitioners wherein that that --

Justice Potter Stewart: Now, if the Supreme Court of Illinois had said in this litigation that this immunity statute extends transactional immunity to your client, the Councilman against Hitchcock Immunity, that is -- you would be satisfied, you could have won your case, and you concede then that your client’s would have the ability to answer, do you not?

Mr. Frank G. Whalen: Certainly Mr. Justice.

However, of course as I said, this was interpreted on this appeal for the first time, that we do not have the benefit of any such holding, a lot of time.

Justice Potter Stewart: The answer is -- the Illinois Supreme Court did not give you an answer in this case?

Mr. Frank G. Whalen: That is right Sir.

Justice Potter Stewart: So you still have an area there --

Mr. Frank G. Whalen: I am still --

Justice Potter Stewart: Got an assurance of transactional immunity and assured your point that the constitution accords you that.

In exchange for the answers to the questions asked by your client, is that your point?

Mr. Frank G. Whalen: That is exactly the point Mr. Justice.

We believe that the -- that any supplants to privilege or bridges the privilege must give.

In that camp, it must give immunity then it is brought with the privilege taken.

That is our.

Justice Potter Stewart: Yes, but for a Court to say the immunity given is as broad as the constitutional protection is double talk, is not it?

Mr. Frank G. Whalen: I believe so.

I believe so Mr. Justice.

Justice Potter Stewart: You got me that to say what the immunity is and you are entitled in answer to your -- the issue you present, it that your point?

Mr. Frank G. Whalen: That is our point.

Point to the point of whether a state must affirmatively demonstrate to the respondents, the respondents would not testify, we have a situation here now where a -- an Immunity Act contains the provision that the Court shall not grant immunity if it reasonably appears that the witness may fear prosecution by another State or the United States, we come to the situation where it somewhat like the situation in Reilly versus Ohio where a witness maybe misled, and we have the language used by this Court in Steven versus Marks in which they said until at such time, the witness has a right to stand on his Fifth Amendment privilege.

Certainly in this instance, it was never demonstrated.

How can the State of Illinois argue that they ever demonstrated to the petitioners that a privilege was available to them, where they engaged in, were part of the very act, it contains the language of complainant.

This is no longer in the Illinois Immunity Act.

This has been amended and has been removed.

However at that time, it was a pertinent part of it.

Justice Potter Stewart: Right, this act before us has now been amended?

Mr. Frank G. Whalen: Yes, Mr. Justice.

Justice Potter Stewart: In what respect?

Mr. Frank G. Whalen: The provision of -- the provision that the Court, if the reason it appeared to the Court that --

Justice Potter Stewart: That part of it?

Mr. Frank G. Whalen: That has been eliminated.

Justice Potter Stewart: Eliminated entirely?

Mr. Frank G. Whalen: No, it has been eliminated.

Yes, sir.

Justice Potter Stewart: And there no substitute to this?

Mr. Frank G. Whalen: No.

I believe they would say that if -- now, it would be department or to the decisions in the later cases.

What we urge the Court to consider is that when a witness appeared before an investigative committee under such Immunity Act, there should be no doubt in the minds of the witness as to what immunity he is getting.

We believe that the State of Illinois has that duty, we believe that State failed.

In throughout their briefs, in all these proceedings and here in this Court, the State argues that they manifested -- the State manifested its intent not to prosecute further.

And, we do not believe that answers supply this.

It is not the intent, the present intent of the State not to prosecute further.

The assurance that a petitioner should receive and what is guaranteed by the Federal Constitution is that the State be unable to prosecute him further.

Thank you.

Chief Justice Warren E. Burger: Very well, thank you Mr. Whalen.

Mr. Flaum?

Argument of Joel M. Flaum

Mr. Joel M. Flaum: Mr. Chief Justice and may I please the Court.

There is no double standard in Illinois.

Illinois is a transaction State.

It has been so for at least to half the century and some of the strongest language contains in the State Court cases.

Justice Potter Stewart: You characterize the Illinois Supreme Court’s opinion in this case as being containing you strong or an ambiguous language with respect to the question of whether or not this statute gives transactional immunity?

Mr. Joel M. Flaum: Frankly Mr. Justice Stewart, it is not as strong at some of the language contained in the cases preceded.

Justice Potter Stewart: It does not even address itself to the question, does it?

Mr. Joel M. Flaum: Well, I would submit it Justice Stewart that it does say that Section speaking of the specific Section involved here grants immunity to defendants from further prosecution.

Justice Potter Stewart: Well, that does not answer the question.

Mr. Joel M. Flaum: No, I appreciate it does not carry that kind of language.

If I might just amplify on it a little bit.

Illinois in cases starting in 1924 right up until 1963 constantly referred to Federal precedent, the Councilman cases, the Barnes (ph) cases.

It spoke in terms of complete substitute protection against all future prosecutions.

Our State is never had a history of a use statute.

Justice Potter Stewart: Of course, that was under a different statute?

Mr. Joel M. Flaum: Yes.

Justice Potter Stewart: And, that was at the time when it was not clear that the Federal Constitution guarantee against compulsory self incrimination without the approval of State because it is prior in the law, against them?

Mr. Joel M. Flaum: Well, Your Honor, in 1953, the Illinois Supreme Court had occasion to consider the identical language in the Cigarette Tax Act, the Immunity Section of it, the identical language.

As has this Court, in Norman and in Brown in 1956 and 1959, the language in the 1953 case from Illinois (Inaudible) in 415 Illinois said and this identical to that holding, in order to hold valid a statute requiring a person to give evidence which might tend to incriminate him, the immunity afforded must brought enough to protect him against all future punishment for any offenses to which the evidence relate.

That is on identical language.

I wish it would found --

Justice Potter Stewart: That was identical language or statutory language?

Mr. Joel M. Flaum: Statutory language, interpreting statutory language.

Justice Potter Stewart: Not the same statute?

Mr. Joel M. Flaum: Not the same statute.

Justice Potter Stewart: Okay, but some of the statute from which the statute borrows the language?

Mr. Joel M. Flaum: Exactly, and I just to reiterate again, this going to stand in the Immunity Act of 1954 which is Court Upheld as granting complete immunity.

Justice Potter Stewart: You are talking about 1953-54, that was prior to law against Hogan (ph) and it was any business with this Court would be, was it, what kind of immunity Illinois gave because Illinois did not have any Federal Constitutional obligation to --

Mr. Joel M. Flaum: No, but we follow --

Justice Potter Stewart: Protect somebody from compulsory self incrimination because that was the regime of Twining against New Jersey, was not it?

Mr. Joel M. Flaum: Right, but we follow Mr. Justice Stewart, all the Federal precedent is involved and while it was not binding prior to 1964, it is found, we -- our language speaks of that as being complete as to the type of immunity grant within (Voice Overlap)

Justice Potter Stewart: (Inaudible) it is not a state constitution law?

Mr. Joel M. Flaum: Yes, we do.

Yes, we do.

It is identical in effect in the United States Constitution.

I am not just to make one mention with regard to the structure of Illinios Crime Investigating Commission.

At the time of its creation and in the time when these questions went on, it was mixed Commission.

It had four from the House, four from the Senate and four private members appointed by the Governor.

It is now totally legislative Commission and reports directly to that body, but that is the question arose as to with -- as to its competition.

Chief Justice Warren E. Burger: But everything it does is open to the news media and therefore to all prosecutors?

Mr. Joel M. Flaum: Yes, it is.

Yes, it is.

Chief Justice Warren E. Burger: That there will be no secret to the reports here?

Mr. Joel M. Flaum: No.

no, there are not.

In fact it as required Mr. Chief Justice, to submit in the annual report to the State Legislature and that is required in the public.

If our argument prevails that we have full transactional immunity, Fifth Amendment was never aimed towards avoiding social appropriance (ph) or the acknowledgment of one’s right.

It just is the guarantee that no criminal process would be brought against him, the State of Illinios shall ensure, we believe.

Justice Byron R. White: Well, I think you argument is based on the Illinois -- is rather compelling except for the fact that the court in this case did sight Murphy against Waterfront and said that the immunity statute, that is all that Murphy against Waterfront requires which is use immunity?

Mr. Joel M. Flaum: Mr. Justice White, I would suggest that upon a reading of the cases prior (Inaudible) Illinois Supreme Court that if a meaningful deviation --

Justice Byron R. White: Yes.

Mr. Joel M. Flaum: -- were to occur?

Justice Byron R. White: It would never occur like this.

Mr. Joel M. Flaum: Never occur like this.

Its language and it is not as expensive.

I would like to be here, but I frankly think any deviation from a history that we have had would not be much more significant.

Speaking specific on that, I want to dwell on it that for and account of, we feel -- there should be no question on it.

If this Court would have forget about how Illinois has interpreted, just changes mind on --

Unknown Speaker: Well, it is time.

It seems to be a (Inaudible)

Mr. Joel M. Flaum: That is our position.

On the affirmative showing, frankly, we feel a complete affirmative showing, maybe a fact from possibility short of Appellant review and every time they grant the immunity is conferred.

However, the references and the petitioner’s brief to Marks and Reilly have no analogy to this case at all.

There is actually no evidence of intentional misleading of any citizen when called before the Commission.

The requirement as we read in Reilly is that the affirmative showing in the State may not mislead the witnesses as to the consequences of his answer or his refusal to answer.

The State cannot be required to meet him a possible substantive argument which later maybe promulgate by the witness is on appeal, and which intents conviction which we feel the case here.

Illinios met that test that we feel in this case.

Unlike Marks for example, petitions were represented at all times by counsel.

After the first refusal, the commission, first reviewed and testified by the petition, the Commission filed verbatim transcripts with the Court requesting an order to grant the immunity.

Both men filed responsive pleading and I might point up to the Court if I may, that at no time really has this Act ever been challenged as being a use plus fruit.

It is just been charged with being a defective transaction.

There was always an acknowledgment by the petitioners below that the state was attempting to confer transactional immunity, only that if had a defective statute in which he was working.

Both men filed responsive pleading then accepted that basic premise.

After the grant of immunity, both men again appeared and refused to testify.

Thirdly, really fourthly, after the second questioning of both parties, counsel for the Commission read the order of immunity, gave an opportunity, a third opportunity, spelled out specifically what the counsel would do if and by, that I mean recommending to the Commission that they go to Court and seek contempt, so that if this is not constitute the affirmative showing.

The willingness to confer transaction immunity is -- has spoken through both the order of the Court which granted the immunity, and the counsel for the Commissions, frankly, I see no collateral remedy that would suffice you order an instant review on appeal and then I will return to that.

We fill that there are -- this in not at all a case where there is any misleading.

They were suggesting in the opinions in Reilly and Marks that the defendant did not even know of the existence of the immunity statute.

That just did not occur here.

This has been a contested with counsel type litigations for several years.

I can only say that there is no evidence on any statute in the State of Illinois where there has been a subsequent prosecution which would lead one to the believe that there has been an attempt to use the use plus fruits approach with any of its immunity statute from our State, and we feel that clearly reading of the Illinios history would indicate, if that is the case.

Justice Potter Stewart: I say, yours is the Picarello case that even though they -- even know it maybe determined in the companion cases today, that the Constitution of the United States does not require of the State of Illinois to grant transactional immunity but nonetheless, you do so?

Mr. Joel M. Flaum: Yes.

The State of Illinois has adapted for that higher standard.

If this Court be stepped to adopt the use plus fruits, Illinois apparently --

Justice Potter Stewart: It may re-consider --

Mr. Joel M. Flaum: May re-consider but it has committed itself to transaction.

If this statute falls it falls within effectiveness in structuring.

It does not fall through the intent that we believe of the legislative.

Chief Justice Warren E. Burger: I think your time is up, Mr. Whalen?

Rebuttal of Frank G. Whalen

Mr. Frank G. Whalen: Thank you Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.