UNITED STATES v. WILSON

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Argument of Gerald P. Norton

Chief Justice Warren E. Burger: We'll hear arguments next in United States against Wilson and Bryan.

Mr. Norton, you may proceed whenever you're ready.

Mr. Gerald P. Norton: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Second Circuit to review the judgment of that Court, reversing the convictions of respondents Wilson and Bryan for criminal contempt of Court in the United States District Court for the Southern District of New York.

Each was provisionally sentenced to serve six months in prison.

The question presented is whether a trial witness who refuses to obey a court order to testify may be held in criminal contempt pursuant to the summary procedures of Rule 42 (a) of the Federal Rules of Criminal Procedure rather than the notice and hearing requirements of Rule 42 (b).

Our primary submission is that the District Courts have the authority and the discretion to use summary contempt proceedings in those circumstances.

We also contend that in any event, in the particular facts of this case, summary contempt procedures were properly used.

The respondents Wilson and Bryan both refused to obey the orders of the District Court that they testify at the trial of one Robert Anderson on charges involving two bank robberies: one of them, the Nanuet Bank and, the other, the Empire Bank.

Prior to the trial, Bryan had been indicted for robbery and assault with dangerous weapon concerning the Nanuet robbery.

Wilson had been similarly indicted concerning the Empire robbery.

Bryan had plead guilty to the assault charge and Wilson to the robbery charges against him and in both cases, the other charges were dismissed.

Now shortly before the Anderson trial was to begin, Bryan had been sentenced by Judge Cooper pursuant to 18 U.S. Code 4208 (b) which provides for a study of the defendants and re-sentencing after a period of three months but which requires initially that the maximum sentence be imposed, in this case, 25 years.

Before the trial began, Judge Lasker, who was assigned the Anderson case, had been told that it would probably take about two-and-a half days.

In the course of the trial, eventually, Bryan was called as a government witness to testify concerning the Nanuet robbery and Wilson was called to testify concerning the Empire robbery.

At this time, both were incarcerated, Bryan on his sentence on the assault conviction, Wilson awaiting sentence on his robbery conviction.

There is a common pattern of events concerning both contempts.

First, all proceedings occurred in open court with the jury absent.

Each one was asked questions by the prosecutor concerning Anderson and the respective robberies beginning with did they know Anderson.

They refused to answer any questions.

The District Court granted them immunity pursuant to 18 U.S. Code 6003 and explained the consequences of that grant of immunity.

He said that he would hold them in contempt if they refused to answer.

Each again, refused.

The district judge directed them to answer and said he would hold them in contempt if they refused.

They again refused and he held them in contempt.

Now, the court had already received arguments for-- from the attorneys for Wilson and Bryan as to their grounds for refusing to testify.

At this time, the court heard additional argument concerning the sentencing of both Wilson and Bryan, what alternatives the court could consider and what their motivations and the reasoning might have been.

Wilson's attorney specifically acknowledged that his motivation was to save a friend.

The Court then gave Wilson and Bryan each the opportunity to be heard, and each declined to speak.

Judge Lasker then sentenced each of them to six months at this time, as he put it, but he made it clear that this was a provisional sentence subject to revision and that he would consider an application for reduction.

He made it consecutive to the sentences they were or would be serving for their other convictions in order to give the sentence reality and said, otherwise, there would be no point to it.

And, he specifically noted in sentencing Bryan, who was the first of the two to be sentenced, that a purpose of the sentence was to persuade Bryan to change his mind and to testify, and he said he would reduce the sentence to nothing if he did.

Later the same day, both sides rested the case against Anderson.

There are certain facts, before I go into the consequences of their refusals that are peculiar to each of the respondents and I'll note them briefly, although we don't believe that they are material to the central question presented.

Though he had notice of the government's intention to call Bryan as a witness, Bryan's original attorney had been unable to attend the Anderson trial.

He did submit a document setting forth some arguments as to why he thought Bryan should not be required to testify.

At the court's request, Wilson's attorney who was in court prepared to address a similar problem concerning Wilson agreed to represent Bryan.

Now, in the course of the proceedings against Bryan, it had been argued that one reason they declined to testify was a fear that it might affect their sentencing.

In Bryan's case, his eventual re-sentencing by Judge Cooper.

Now, this is a baseless fear in this case because, in pleading guilty and in discussing the case with the probation officer in connection with the pre-sentence investigation, they had already been required to make and did make admissions concerning their involvement, although, in the course of that, Wilson declined to identify his accomplice.

In any event, in order to avoid any basis for such a claim of possible effect on sentencing in Wilson' case, Judge Lasker decided that he would try to sentence him then, before he testified.

The court heard the probation officer report on what he would have included in his pre-sentence investigation report which included an admission of Wilson's involvement in the robbery, and also heard a presentation by Wilson's attorney as to Wilson's background, his family problems, and the substance of a report by a doctor in which the doctor referred to Wilson as having an adolescent loyalty to defendant Anderson.

Now, in making this effort to sentence to Wilson the judge stressed that he thought that a delay in Anderson's trial and others scheduled to follow it was undesirable and he noted particularly the fact that Anderson was in jail.

Finally, however, Judge Lasker concluded that he would be -- he'd rather defer the sentencing of Wilson who was after all facing a potential sentence of 20 years on a very serious charge and, at a later time, he sentenced him to treatment under the Youth Corrections Act.

Neither Wilson nor Bryan took advantage of the opportunity to reconsider their refusal and to testify, although it was admittedly a limited opportunity of several hours that day before the Government rested its case.

As a direct result of their disobedience of the court orders that they testify, the administration of justice was seriously obstructed in this case.

Acknowledging that the government's case against Anderson concerning the Nanuet robbery had been substantially weakened by Bryan's refusal to testify, Judge Lasker granted Anderson's motion for judgment of acquittal at the end of the government's case.

That case was irrevocably lost.

As to the Nanu -- as to the Empire robbery, Judge Lasker noted that while Wilson's testimony was not as perhaps essential in the sense that it was prima facie case sufficient to send the case to the jury, it was not cumulative either.

So, the case went to the jury.

The jury disagreed and, as a result of the hung jury, there had to be a second trial with consequent cost and judicial and other resources.

At that second trial, as it turned out, Anderson was convicted concerning the Empire robbery, but one can safely assume that if Wilson had testified at the first trial, we might never have had a second trial.

On appeals by Wilson and Bryan, the Court of Appeals reversed.

It held, first, that neither one of them had any legal basis for refusing to testify once they had been granted immunity.

The Court noted in passing that if they had been simply concerned about the effect of their testimony on sentencing there were other and better remedies to deal with that problem, such as sealing the transcript or asking that they'd be sentenced by a different judge.

Their remedy of refusing to obey the court's order to testify, the Court of Appeals said was wholly improper approach to that problem.

The ground for the reversal of the convictions was that the Court of Appeals concluded that the use of summary procedure of Rule 42 (a) is improper in a case of an orderly refusal of a witness to comply with the court order that they testify even if the witness is represented by counsel and even if the witness has an opportunity to be heard.

The court felt hat this result was compelled by its decision in an earlier case, the Marra case, in which it had said that if it were looking at the question on a clean slate, it would uphold the use of summary procedure in those circumstances, but it felt disabled to do so by what it thought was the teaching of this Court's decision in Harris against the United States, to which I'll return shortly.

As we note in our brief at page 23, other Courts of Appeals have sustained convictions pursuant to Rule 42 (a) in similar circumstances and have disagreed, in effect, with the Second Circuit's analysis in this case.

Now, criminal contempt comprehends a spectrum of offenses in varied types and degrees of seriousness.

It's therefore important to focus precisely on the question here.

This case presents no claim of abuse of the summary contempt to power by a judge embroiled in a heated controversy with a witness or a party or an attorney, nor is there any claim of a right to a jury trial with the sentence in this case, the maximum sentence here being six months, nor do we have here a staged recreation in the presence of the court of a contempt that was actually or originally committed elsewhere.

The question here is simply whether a so-called respectful refusal of a witness to obey a court's order to testify or to give evidence at trial can be punished summarily as a criminal contempt.

Well --

Justice Harry A. Blackmun: Mr. Norton, was there any formal objection to use of a summary procedure?

Mr. Gerald P. Norton: There was not, Mr. Justice Blackmun.

Before the Court had granted immunity to the witnesses, there was a passing comment by Wilson's attorney to the fact that she wanted more time to consider or research the privilege questions which they were then discussing, but that issue evaporated from the case once the Court granted the witnesses' immunity and there was no objection raised to the summary procedure as to either witness.

Now, the question this Court has not previously directly resolved the question in this case, although it did in dictum in the Yates case, approved the procedure that was followed by Judge Lasker here.

Now, 18 U.S. Code 401 authorizes federal courts to punish by imprisonment various contempts, one of which is disobedience of its lawful orders.

It's not disputed here that the refusals of Wilson and Bryan to obey Judge Lasker's order that they testify constitutes criminal contempt punishable under 401.

Incidentally, I should note that although the District Court docket entries recite conviction under 18-402, it's clear that the Court intended and the parties here have understood that it was a conviction under 18-401 and Section 402 is, by its terms, plainly inapplicable.

Now, that a refusal to testify may be punishable under these circumstances, under -- as criminal contempt is more than clear from this Court's decision in Harris and other cases.

It's also clear that disobedience of a Court order to testify is a serious type of contempt.

This Court said in the Shillitani case that the power of a Court to compel a witness to testify is essential to the administration of justice.

In Calandra it noted that every citizen owes his government the basic obligation to testify when so ordered.

Now, the reason that the public has a right to every man's evidence, as the Court said in the Nixon case, is that the integrity of the judicial system depends upon full disclosure so that innocent persons do not suffer, nor the guilty escape.

It's important to note in this regard that the principle we contend for here is inherently neutral in operation.

It does not necessarily favor the prosecution, although in this case it might.

The same question would arise if a defense witness refused to testify when ordered to do so by the Court.

In such circumstances, the consequence of recalcitrant might not be limited to the extended incarceration of a defendant but rather, it could result in the conviction of an innocent person.

Now, the central issue here is whether the summary procedures of Rule 42 (a) of the Federal Rules of Criminal Procedure were properly used in this case.

The case is squarely within the terms of Rule 42 (a), in that, Judge Lasker saw and heard the contemptuous conduct and it occurred in the actual presence of the Court.

Moreover, summary disposition of -- in this case is consistent with the purpose of Rule 42 in distinguishing between those contempts which should be subject to the notice and hearing requirements of Rule 42 (b) and those covered by 42 (a) where summary disposition is appropriate.

The use of the summary contempt power is justified in part by the fact that contemptuous conduct often disrupts ongoing proceedings.

There is therefore a need for a swift adjudication of whether the conduct is justified and lawful and whether it should be punished so as to end the disruption.

The need for dispatch is perhaps or is especially great with the recalcitrant witness, the trial witness in a criminal case, particularly a jury trial, whether it's a prosecution witness or a defense witness.

A defendant has a right to a speedy trial.

The Court's prosecutors have obligations to proceed promptly.

The defendant may well be incarcerated so that any delay in the trial for a cite excursion on the contempt proceedings or, as in this case, for a retrial because of a hung jury puts a penalty on the defendant.

If the defendant is ultimately acquitted, there is no way to recoup that lost liberty.

Also, where a jury trial is involved, a suspension of the proceedings to comply with the notice and hearing requirements of 42 (b) creates additional difficulties and expense.

Now, where the contempt consists of the refusal in the Court's presence to obey in order to give evidence at trial, there is no real need for a formal hearing required by 42 (b).

The primary purpose of which is to gain facts and to resolve factual disputes.

The essential facts are known to the judge.

In many such cases, as here, the reasons for the contempt will also be known by the circumstances leading up to the original refusal to give evidence and the order to testify.

If there are relevant facts which are not known to the judge or other matters that might bear on whether the defendant should -- or the witness should be held in contempt or the question of sentencing, they can be brought to the Court's attention afterwards.

As the Court noted in Groppi, and again in Taylor against Hayes, Courts commonly modify contempt judgments on the basis of subsequent presentations or developments.

In this case, Wilson and Bryan had more than Rule 42 (a) would entitle them to.

They had opportunities to explain their position before they were ordered to testify and before and after they were held in contempt.

They had counsel to advice and assist them and they had the substance of a hearing.

Moreover, since conviction, neither one has made any effort to make any presentation to the District Court of any matter that might have warned them whether they should be held in contempt or whether the provisional six-month sentence was appropriate.

They have not sought any kind of reconsideration or additional hearing or tendered any matters of any kind beyond offering speculations as to what might have happened had there been a fuller hearing than they in fact had.

Indeed, in cases that are indisputably subject to the summary contempt power, there is likely to be a greater basis for speculating that, a hearing might have been useful in such cases.

There has been no prior opportunity as here, to make some explanation of why you're doing what you're doing and in many of those cases, the conduct where the witness or defendant throws a chair or some power is abusive to the Court, there is a greater reason for thinking that there is some background causative factor that deserves some further exploration, yet summary contempt is properly upheld.

And if the mere speculative possibility of some kind of extenuating circumstances were to be accepted as sufficient reason to -- not to use summary contempt, there might never be a case where a Court could safely exercise a power that all concede it has.

Now, the summary imposition of the contempt in this case is consistent with the propositions that the Court should, in the contempt area, use the least power adequate to the needs of the occasion and should resort to criminal contempt only if civil contempt would not be efficacious.

As Judge Lasker knew, civil contempt in this case could be effective only for a brief period.

There were only a matter of hours remaining in the trial.

One could reasonably assume that Wilson and Bryan would be willing to spend those hours to save a friend.

Chief Justice Warren E. Burger: Were they then incarcerated or --

Mr. Gerald P. Norton: Well, they were and that's my next observation that first, in any trial, there's not likely to be a long period of potential coercive confinement, but in this case, in addition, they were both incarcerated already so that any additional incarceration pursuant or of confinement of civil contempt would have been superfluous, which Judge --

Chief Justice Warren E. Burger: There was then just a confinement in a different place.

Mr. Gerald P. Norton: That's true.

As Judge Lasker recognized in making the contempt sentences run consecutive to their sentences on their convictions, this he could not do with civil contempt.

Now, in a case where civil contempt might be appropriate because there's a sufficiently long period of confinement, a grand jury witness would be a good example and the witness is already incarcerated, you might have a different situation because in some such cases, at least if it was a prisoner serving an adult sentence imposed by the same Court, it might be possible for the District Court to suspend the execution of that ongoing sentence for the period of the confinement on civil contempt.

This is a novel approach, recently sustained by the D.C. Circuit in the Liddy case and by the Seventh Circuit in Anglin case.

However, this was not an option that was a feasible one in this case because there were only a couple of hours left in the last day of the trial.

On the other hand, the deferral of contempt proceedings required by 42 (b) is not entirely satisfactory here either.

That approach tends to forgo the opportunity to coerce compliance during the period when it might be meaningful.

It's almost totally punitive.

Now, Judge Lasker recognized here that summary imposition of criminal contempt had a possibility of coercing these people to change their minds and testify.

They had to face the likelihood, not only that if they had not been in jail they would have to serve some time, but if they didn't purge their contempt they would have to serve whatever full sentence was imposed.

Let me turn now to the question whether the District Court's approach in this case was foreclosed by this Court's decision in Harris.

The question presented in Harris was whether a grand jury witness who disobeyed a court order to testify was properly held in criminal contempt pursuant to the summary procedures of 42 (a) where the original refusal occurred in the grand jury room, out of the presence of the Court, and it was recreated in the presence of the Court.

Now, also unlike this case, the witness had unsuccessfully requested an adjournment opportunity to present witnesses.

In a 5-4 decision reversing its earlier decision in the Brown case, this Court held that, although the refusal constituted criminal contempt, it should have been proceeded against under the notice and hearing requirements of Rule 42 (b) since the real contempt was not in the presence of the Court.

In dicta relied upon by respondents in the Court of Appeals, the majority indicated that Rule 42 (a) was reserved for exceptional cases involving misbehavior of various sorts.

Even so, the Court indicated that it was not holding 42 (a) inapplicable to a case like this because it's expressly assumed that 42 (a) may at times apply to testimonial episodes.

And we've addressed in our brief the historical argument as to whether summary contempt power can ever be applied to disobedience of Court orders as distinguished from misbehavior, and I will not address that further here.

Note simply that a witness' refusal to obey a Court order to testify or to give evidence is likely to create, as here, a far greater obstruction of Court proceedings than many of the mis -- types of misbehavior for which summary contempt power is unquestioned.

Now, the contempt in Harris involved a grand jury witness and here we have witnesses at a trial.

There's far a greater need for speedy action at a trial because a grand jury can last 18 months and more and civil contempt may be summarily imposed.

Justice William H. Rehnquist: Mr. Norton, don't you think the Court that decided Harris would probably decide this case against you?

Mr. Gerald P. Norton: I would not think so.

It's not necessarily compelled by Harris.

We don't have here the problem of kind of staging the contempt in the presence of the Court in order to come within the terms of Rule 42 (a).

Justice Potter Stewart: On the other hand, the Court that decided Brown, a fortiori would decide this case in your favor?

Mr. Gerald P. Norton: No question.

Chief Justice Warren E. Burger: Well, the difference in Harris was that you don't have 12 jurors and witnesses and the whole mechanism of a Court standing by waiting.

As you point out, a grand jury --

Mr. Gerald P. Norton: Well, that's one, that's --

Chief Justice Warren E. Burger: -- a grand jury could take the matter up to 30 days or 60 days later.

Mr. Gerald P. Norton: That's right.

Chief Justice Warren E. Burger: But a petite jury would be difficult to hold -- petite jury trial would be difficult to hold in time.

Mr. Gerald P. Norton: That's right, and most trials it'd only take a few days.

The statistics for 1974 in the Administrative Office of the U.S. Court show that 84% of all cases take 3 days or less and even 73% of criminal jury trials take 3 days or less and, indeed, more than 50% of all trials take 1 day or less so that summary -- that interruption or delay of proceedings to comply with Rule 42 (b) would have no coercive possibilities.

In short, we don't that Harris compelled the reversal of the convictions in this case and that, if it is regarded as barring those convictions, it should be limited or overruled if necessary.

I'd like to reserve the balance of my time.

Chief Justice Warren E. Burger: Very well.

Ms. Ginsberg.

Argument of Sheila Ginsberg

Ms Sheila Ginsberg: Mr. Chief Justice, may it please the Court.

In this case, without valid justification therefore, the Government asks this Court to approve a criminal conviction in six months sentence without -- imposed without an opportunity to defend against that imposition.

There are a few facts surrounding the contempt in this case that I would like to emphasize.

First, that the contempt or -- forgive me, the refusal to testify at all times was orderly and respectful.

The witness was called to testify before the same judge, this is respondent Wilson, was called to testify before the same judge who was to eventually sentence him on the underlying bank robbery charge.

Chief Justice Warren E. Burger: Well, on the question of it's being respectful or disrespectful or otherwise, what difference does that make in terms of holding up a trial of a jury case where you have 12 or possibly 14 jurors with alternates standing by and witnesses standing by, approaching the end?

Ms Sheila Ginsberg: Well, Your Honor, I believe the distinction is that the purpose of summary power is not just to move the trial along, but to preserve the authority and the dignity of the Court.

Chief Justice Warren E. Burger: And how do you distinguish the two?

Do you think the two are not linked together?

Ms Sheila Ginsberg: Well, there may be some link but, I might add, that that precipitous summary action may well do more to infringe upon the authority and dignity of the Court than the short adjournment of perhaps 24 hours so that a hearing can be held to allow the accused, condemned, or an opportunity to defend.

I mean, in answer to what I perceive to be Your Honor's concerns during the assistance argument, trials are frequently adjourned for short periods of time without the calamity befalling the system that the Government now suggests.

Adjournments are granted in criminal trials for much less consequential reasons the point is that, in fact, adjudications of criminal contempt are not exempt from procedural due process and in this case, there was no reason, no valid reason for not affording respondent Wilson the opportunity to defend against the charge.

Now, when the respondent refused to testify, he did so on the grounds that even the grant of immunity would not protect him from use of his testimony against him at the time of sentence.

I would like to point out at this juncture that there were other dama -- there were other -- there was other liability within the context of his testimony because had he testified, he would've been subject to cross-examination by defense counsel and it wasn't -- he was just not subject to liability as to the facts of this crime but there were other areas perhaps, and I don't suggest that they definitely exist here but there's a possibility that he would be subjected to greater liability by the cross-examination of defense counsel.

Chief Justice Warren E. Burger: What kind of liability are you referring to, I'm not quite clear?

Ms Sheila Ginsberg: Well, on cross-examination, for example, if defense counsel were to ask Mr. Wilson to impeach his credibility about the commission of other crimes.

Chief Justice Warren E. Burger: Well, how would that injure him?

He could only impeach him with convictions that were a record as a matter of public record, isn't that so?

Ms Sheila Ginsberg: Well, that is so, but whether or not they were known to the probation department is -- without Mr. Wilson's testimony is another -- now, the question that I have to hasten to add that I don't suggest that there were those other crimes committed here, but there is that possibility.

Justice Harry A. Blackmun: Mrs. Ginsberg, I asked government counsel as to whether there was an objection made to the summary procedure here, was there -- do you feel there was sufficient objection made?

Ms Sheila Ginsberg: Yes, Your Honor.

I feel there was, and the Second Circuit specifically held that there was.

Counsel not only objected to, or requested rather, a continuance to enable time to research the legal issue.

She specifically, and I believe it's at page 5 of the appendix, specifically objected to the hasty determination of this issue which subjected respondent Wilson to heavy criminal penalties.

Justice Harry A. Blackmun: Let me ask you another question, now that I have you interrupted.

Are you here -- are you bottoming your position in the case on due process on a constitutional ground or on the supervisory power of this Court?

Ms Sheila Ginsberg: Well, Your Honor, I argue of course that that -- there is a due process right to a hearing and I would also rely on the supervisory powers of the Court to preclude from the ambit of Rule 42 (a), an orderly respectful refusal to testify.

Justice Harry A. Blackmun: Now, this is a federal case --

Yes.

Justice Harry A. Blackmun: -- and the next one might be a state case and our supervisory power might not exist in a state case.

So, hence, I was wondering whether you were reaching for constitutional grounds.

Ms Sheila Ginsberg: Well, as I said, I've --

Justice Byron R. White: Don't you think Harris is just a construction of a rule?

Ms Sheila Ginsberg: Well --

Justice Byron R. White: That's all you need, isn't it?

Ms Sheila Ginsberg: Yes, that's all that I need.

Yes, sir.[Attempt to Laughter]

Justice Harry A. Blackmun: But it isn't at all what the next case needs coming up from a state's side?

Ms Sheila Ginsberg: No, that's true.

That is true.

Justice Harry A. Blackmun: I'm just looking ahead to our further agony.[Attempt to Laughter]

Ms Sheila Ginsberg: In any case, Judge Lasker, recognizing the viability of the respondent's claims, attempted to sentence him before requiring his testimony.

However, after hearing the probation officer and defense counsel, the judge concluded that he did not have sufficient information, information particularly of a psychiatric nature, to adequately sentence the respondent on the bank robbery.

He then determined that respondent's Fifth Amendment rights did not extend to protect him from use of his testimony on -- at the time of sentence for the bank robbery and he ordered respondents to testify.

When he refused, he immediately held them in contempt and sentenced him to six months in prison.

We contend clearly that this was error.

The adjudication of criminal contempt is not exempt from due process considerations of notice and a hearing.

In Harris, this Court specifically held that Rule 42 (b) and the notice and hearing provision therein provided the general or the normal procedure for dealing with contempts in the federal regime.

Harris went on to say that this would give the accused condemner an opportunity to present the legal defenses to the charge of contempt and, also, to present facts in mitigation of the charge or the penalty.

Now, in this case, had counsel been given that opportunity, there was much that she could've done by way of defense for Wilson.

In the first instance, as I just noted, there was some indication in the record of psychiatric problems.

Now, the Government tries to dismiss this as of little consequence, but the fact remains that Judge Lasker was convinced that there was some need for psychiatric treatment and he specifically indicated his intent to incorporate that psychiatric treatment within the sentence for the bank robbery.

Clearly, psychiatric problems are relevant to determining Wilson's responsibility for refusing to testify and if not that far, they certainly arose until mitigation of the sentence.

Moreover, there was a new --

Justice William H. Rehnquist: Ms. Ginsberg, did this contempt require mens rea?

Ms Sheila Ginsberg: I believe it does, Your Honor.

Justice William H. Rehnquist: Do you have authority for that proposition?

Ms Sheila Ginsberg: I believe there is a per curium on decision of this Court.

The name of the case however, escapes me.

I can submit it at a later date.

Justice Potter Stewart: Well, there is a per curium involving a contempt in a federal court and maybe the case you're thinking about, long polysyllabic name, in which the -- there was a lot of very gross conspicuous misconduct by one of the defendants in the case.

Then it was suggested that he may -- might have been insane, might not have been competent and this Court remanded to canvas that issue which would suggest that it does -- that the contempt does require mens rea because for only the objective conduct, then I suppose an insane person could've been equally guilty of contempt but if it requires a -- but if only a competent person could be found in contempt which was the implicit holding in that case, then I would suppose it would -- the answer would be it requires mens rea.

Chief Justice Warren E. Burger: Aren't these all matters that the Court could take into account at a subsequent point?

Ms Sheila Ginsberg: No, Your Honor.

I don't think that they are.

I don't think that a --

Chief Justice Warren E. Burger: Aren't you aware that a vast majority of contempt citations, penalties are reduced after their original imposition?

Ms Sheila Ginsberg: Well, that may well be, Your Honor, but I think that, as a general principle of law and as it applies in this case, a Rule 35 motion is insufficient to compensate for the deficiencies of this procedure.

Firstly, a Rule 35 motion does not go to the imposition of the criminal conviction and secondly, I think that what that procedure countenance is, is the imposition of a final sentence based on inadequate information.

It places the respondent in a position of coming into Court and convincing the judge that his initial decision was incorrect.

Chief Justice Warren E. Burger: Well, I could understand your position about his possible mental condition if he had engaged in disruptive conduct as in the case that Mr. Justice Stewart referred to.

Here, he was casting his refusal on strictly legal grounds, was he not and there was no disruption of the courtroom?

Ms Sheila Ginsberg: Oh!

There clearly was no disruption of the courtroom, but the --

Chief Justice Warren E. Burger: No misconduct of any kind.

Ms Sheila Ginsberg: None.

No misbehavior.

Chief Justice Warren E. Burger: Except the refusal in itself.

Ms Sheila Ginsberg: But, clearly, there are levels of or brands of incompetence which go the witness' inability to comprehend the obligation to testify.

It would seem -- and, in fact, the per curium that I was thinking of, if my memory serves me correctly, deals with a refusal to testify or a testimony before a grand jury at any case.

It would seem to me that there are certain varieties of incompetence that would certainly go to that.

There were other facts here which clearly counsel could've presented at a hearing had she been given the opportunity.

First of all, there was a confusion as to the extent of Wilson's Fifth Amendment privilege, how far it would protect him.

Judge Lasker and the prosecutor were both labeling under -- laboring under the misconception that his Fifth Amendment privilege did not extend to the sentence.

Judge Lasker believed that there was no way to protect Wilson from the sentencing -- from having a sentencing judge use his testimony and, in fact, he didn't have the right to protect the sentencing judge from doing that.

The Second Circuit, in fact, in its opinion set forth the procedure whereby Wilson could've been protected and had counsel been given the opportunity she requested of a continuance, it's entirely possible that she would've come up with this procedure and thereby obviated the whole need for the hearing.

Justice Potter Stewart: Could that procedure -- is that a statutory procedure or one worked out on the Second Circuit?

Ms Sheila Ginsberg: I believe it was worked out in the Second Circuit, but not just on this appeal.

They rely, in their opinion, on United States against Goldberg which was the case the prosecutor handed up to the judge during this hearing, but everything was done with such haste and with all due respect to Judge Lasker, in such a cursory fashion that it was never thought -- the procedure was never thought through and nobody ever realized or at least articulated at the hearing that that Wilson could be protected by testifying, having the record sealed and then having his sentence transferred to another judge.

Justice Potter Stewart: And that protection is not against self-incrimination, but against reprisals in the penitentiary and so on, isn't it?

Ms Sheila Ginsberg: No, Your Honor.

It's a Fifth Amendment protection.

Justice Potter Stewart: Well, I'm talking about the protection procedure that's been worked out?

Ms Sheila Ginsberg: Well, no.

It's to ensure protection or to ensure that the sentencing judge does not use a substance of the testimony to increase the underlying sentence in this case for the bank robbery.

Chief Justice Warren E. Burger: To be sure you're going to get a neutral judgment in the sentencing --

Ms Sheila Ginsberg: Exactly.

Chief Justice Warren E. Burger: -- isn't that your -- the theory of it?

Ms Sheila Ginsberg: Exactly so.

Justice Potter Stewart: And the sealed testimony also serves the same function, does it?

Ms Sheila Ginsberg: Yes.

Justice Potter Stewart: The sealing of the testimony?

Ms Sheila Ginsberg: Exactly.

I would like to quickly get to the Government's justification for the summary proceedings.

They claim that, despite -- well, despite the language of Harris which makes it very clear that summary proceedings under Rule 42 (a) are only to be used in exceptional circumstances and Harris defined those exceptional circumstances as acts of -- in Court acts of misbehavior which threatened the judge or obstruct the proceeding or the courtroom, disrupt the courtroom.

The Government argues that the justification in this case was to compel testimony.

Now, first of all, I must point out that due the record is so -- if it is clear about anything, it is clear about the fact that Judge Lasker did not intend to coerce Mr. Wilson's testimony by sentencing him for criminal contempt.

The judge --

Chief Justice Warren E. Burger: Well, he was punishing him for his contumacious refusal to answer, wasn't he?

Ms Sheila Ginsberg: That's correct, but it was not intended to coerce the testimony, this punishment.

The judge stayed the sentence pending appeal and he told, specifically told Mr. Wilson that there was no need for him to concern himself about the sentence at this time.

Chief Justice Warren E. Burger: Well, isn't part of it the deterrence of that kind of conduct with respect to other witnesses in other cases?

Ms Sheila Ginsberg: Well, if in fact that is one of the purposes, it doesn't seem as though that purpose would be thwarted by notice of 24 hours and a short hearing.

I'd also like to say that the use of criminal contempt to coerce testimony is violative of the whole concept of criminal contempt.

Criminal contempt, as Your Honor points out, is to punish not to coerce.

It's a civil contempt sanction.

Chief Justice Warren E. Burger: There, your taking issue with Rule 42 (a), are you?

Ms Sheila Ginsberg: No, sir.

No, I'm not.

I'm just saying that criminal contempt should not -- was not intended as -- to have as its primary purpose coercion, but punishment.

Chief Justice Warren E. Burger: Thank you.

Mr. Martin.

Argument of John S. Martin, Jr.

Mr. John S. Martin, Jr.: Mr. Chief Justice and may it please the Court.

I think that the is suposed in this case is one that is fundamental to our system of justice.

That is, what rights, procedural rights do we give a citizen of this country before we sentence him to serve six months in jail?

I think that the issue is muddied somewhat by the procedural context in which this case arises.

And I think it drives to some of the questions that Justice Blackmun raised as to whether this is a due process requirement or rather a requirement of Rule 42.

It seems to me that the petition -- the respondents here were afforded a hearing, that was not a Rule 42 (a) hearing, but at the same time they were not given a 42 (b) hearing.

And I would suggest, very respectfully that in determining whether or not summary contempt -- the summary contempt power may be used in the case of a witness who respectfully refuses to testify.

We have to look at the summary contempt power as that is contemplated in ex parte Terry.

Summary contempt power authorizes the district judge or the trial judge to impose a sentence of imprisonment without affording the respondent the right to counsel or the right to say anything in his own defense.

And it seems to me that the consistent teaching of this Court is that that type of deviation from what we normally consider the due process rights of a criminal defendant can only justified by the most extraordinary need to protect the dignity of the Court.

And it seems to me that in this case that great need to protect the dignity of the Court is not present to justify a departure from the more traditional procedures which due process encompasses.

It seems to me, we have a case where these two men, for different reasons perhaps and in different circumstances, refused to testify.

I think one of the compelling facts concerning the client I represent, Mr. Bryan, in this procedure, is that he was forced to go forward in the absence of his own counsel.

Counsel was simply assigned to him on that morning.

That may not seem like a terribly significant fact, but it seems to me, my experience in representing assigned counsel -- representing assigned defendant is that the -- it takes some time for a lawyer assigned by the Court to develop a rapport with his client.

The rapport that comes naturally if a man has sought you out to be his counsel does not exist when you are suddenly thrust upon the defendant and it seems to me that fact here takes away the ability of the counsel to on the spur of the moment really meaningfully advice the client of his rights.

And it seems to me, the issue here is whether or not these respondents should have had the right to counsel before being sentenced to the maximum sentence possible in these circumstances, a sentence of more than six months could not have been imposed.

Chief Justice Warren E. Burger: Well, one of the consequences of this conduct was quite serious, was it not, in terms of the results of one of the trials?

Mr. John S. Martin, Jr.: It certainly was, Mr. Chief Justice, and I'm suggesting is not that the punishment was not proper and, indeed, I think an argument could be made by the Government at some future time that in a situation like this, it might be appropriate to impanel a jury so that a more severe sentence could be imposed, but that has to do with the punishment fitting the crime.

What I'm suggesting, Mr. Chief Justice, is that before that much of a penalty, the maximum penalty available is imposed that we have to afford a respondent in a contempt proceeding certain minimal due process guarantees.

A meaningful right to counsel and I suggest that the appointment of counsel that day was not a meaningful right to counsel as far as my client was concerned.

I don't think this Court, if I had not shown up this morning, would have assigned another lawyer to appear and argue this afternoon.

I think you would say that the lawyer has to have a right to prepare to meaningfully represent his client.

Chief Justice Warren E. Burger: More likely, the alternative is that we would have had your case submitted on briefs.

Mr. John S. Martin, Jr.: Also a possibility, obviously, Your Honor.

But, I do think that in the situation here, that is a for less severe effect on my client in putting him in jail for six months.

Justice Harry A. Blackmun: How much notice would've been sufficient do you think in this case, 24 hours?

Mr. John S. Martin, Jr.: I would think that, certainly a 24-hour period might have been reasonable.

I think that you have here a situation, also, I disagree with the Government that this procedure is the most effective way as they suggest, is the most effective way to get the -- a testimony that you want.

It seems to me, once the sentence is imposed -- well, that's where I've got to serve and I deal with it.

A witness who is confronted with a situation where he is told that, “I am sentencing you, I'm ordering the marshal to take you into custody and hold you in civil contempt.

I'm going to set this matter down for a hearing I have to determine if you should be held in criminal contempt and a sentence to be imposed will be fixed at that time.”

And a witness in that situation is more likely to come back the following day and say, “I've thought about it and I will testify” than one who has had the final sentence imposed on him.

So that, I don't think that the remedy that the government suggest is the most effective way to bring about the testimony that they seek to compel here, but it seems to me that the consistent teaching of this Court has been that summary contempt power is reserved for the very extreme case, and it is our submission here that this is not that extreme a case.

The -- there was no disrespect -- manifest for the Court that it called for the Court to vindicate its authority right then without waiting for a moment so that people would know that the Court's authority exists.

This is not the situation such as existed in Terry where there was a violent outburst in the courtroom and the Court there said, “Fine.”

There, the dignity of the Court is affronted and it must be able to control the procedures in its own courtroom, and that was I think the rationale set forth in Cooke versus United States lays out those distinctions quite clearly.

Justice Potter Stewart: The difficulty is Mr. Martin for me at least, one difficulty, that we're dealing here really with the specific language of the Federal Rules of Criminal Procedure, are we not, unless, you're suggesting that there's something constitutionally deficient about the language of 42 (a)?

Mr. John S. Martin, Jr.: I am.

I am suggesting, Mr. Justice Stewart, that it is constitutionally deficient.

It is a violation of due process to use summary contempt power in the situation before the Court.

Justice Potter Stewart: I see.

You --

Mr. John S. Martin, Jr.: What I'm suggesting is merely --

Justice Potter Stewart: Does this mean that you do concede that the language of 42 (a) would permit summary contempt power in these circumstances of this case?

Mr. John S. Martin, Jr.: I do, and this is really what I was addressing myself to at the outset.

The fact that, really, you have -- the procedure used here was not 42 (a), but it was not 42 (b).

It was something in the middle and I think it was something in the middle because the district judge recognized that there were certain minimal due process rights that should attach before you send a man to jail for six months.

Chief Justice Warren E. Burger: Well, the judge was well-aware, was he not?

The trial was virtually coming to a close very shortly?

Mr. John S. Martin, Jr.: I think that that is true.

This was clearly going to be a very short trial and he was aware of that but as Ms. Ginsberg pointed out, there's nothing in the Court's action.

Indeed, the Court's action totally contradicts the fact that he was seeking, by his order, to compel testimony right then and there because he stayed the effectiveness.

He said, “Listen, I will consider this again after the Appellate Courts have passed on it.”

So there's no element here of using this criminal contempt power to force right then and there the witness to change his mind about the testimony.

Chief Justice Warren E. Burger: Well, your submission requires you, I take it, to either say that 42 (a) is constitutionally flawed or else this is not a 42 (a) case?

Mr. John S. Martin, Jr.: Well, I think it requires the Court to say that 42 (a) is constitutionally flawed in the circumstances of this case.

I think Terry indicates that, obviously, there are situations where you can impose contempt without giving the respondent any right to reply.

But I think what the Court has consistently held, from the time Terry was decided to date is that to justify that radical departure from due process, you need very strong and compelling reasons showing that the demoralization of the Court's authority would occur.

And, I think what I'm really submitting is that our system is just -- of justice is not so fragile that it would collapse.

If the --

Chief Justice Warren E. Burger: Well, I go back to the --

Mr. John S. Martin, Jr.: People like --

Chief Justice Warren E. Burger: I go back to the consequences on the other trial.

They were rather --

Mr. John S. Martin, Jr.: I think it is true that it disrupts the trial.

It has consequences, but those consequences followed even though criminal contempt was imposed here.

Chief Justice Warren E. Burger: I'm speaking also of the suggestion of the Solicitor General that there was a serious miscarriage of justice by the directed acquittal.

It was directed really --

Mr. John S. Martin, Jr.: That's right.

They dismissed the three counts involving the bank robbery in which my client was involved, and I don't mean to denigrate the seriousness of that and, as I said before, I might, if I were back in the Solicitor General's Office, be prepared to argue that you can impanel a jury and impose a substantial sentence more than was imposed here.

All I'm suggesting, Mr. Chief Justice, is that when you impose a sentence as much as six months on an individual that you have to afford him some basic due process rights, a right to some notice and an opportunity to present, as the Court said in Cooke, evidence in either exculpation or mitigation.

Chief Justice Warren E. Burger: What was the sentence imposed on the one defendant who was found guilty in the -- was it a new trial, separate?

Mr. John S. Martin, Jr.: In the Anderson?

Chief Justice Warren E. Burger: Yeah.

Mr. John S. Martin, Jr.: Ultimate sentence, I must say, I just don't know, Mr. Chief Justice.

Chief Justice Warren E. Burger: To the bank robbery so it can be assumed --

Mr. John S. Martin, Jr.: Oh!

It's a serious --

Chief Justice Warren E. Burger: It can be assumed that it's a very substantial sentence.

Mr. John S. Martin, Jr.: My client was sentenced to 10 years for the bank robbery.

It's a substantial crime and, as I say, I don't denigrate the seriousness of what was done here.

I'm just simply suggesting that, given the substantial sentence, six months is a substantial sentence.

I mean, I have seen men cry where they've been sentenced to three months in jail.

Chief Justice Warren E. Burger: For conduct that leads to the acquittal of a man guilty, apparently, of a 10-year offense?

Mr. John S. Martin, Jr.: No, sir.

I'm not saying it is out of order with the magnitude of the disruption, but all I'm saying is that before you impose a sentence of that magnitude you should give certain minimal due process rights to allow the respondent to have an opportunity to present to the Court any factors in mitigation or in exculpation.

Having -- give -- have that right, I'm not saying it would've been inappropriate to sentence him to six months.

Chief Justice Warren E. Burger: Your alternative argument was that it should -- they should give him, or perhaps it was your colleague's argument, give him time to think it over until the next day and he might change his mind.

Mr. John S. Martin, Jr.: Well, I think that that --

Chief Justice Warren E. Burger: But, does that mean that every time a court is confronted with a recalcitrant witness you stop all the proceedings and give him 24 hours to think it over and see if he's going to answer questions?

Mr. John S. Martin, Jr.: Well, I think in most instances, that probably is not going to be necessary.

I was -- Mr. Norton's statistics certainly are not in conformity with my experience in the Southern District of New York where I practice primarily.

It seems to me that in most cases, you're going to be able to proceed with other witnesses or other aspects of the trial, but adjournments of 24 hours are not unusual.

If we have a wit -- a juror with the flu, we adjourn cases for 24 hours.

So that, I don't -- certainly, it's a disruption, but six months --

Justice Byron R. White: Well, what did he need a lawyer for?

Mr. John S. Martin, Jr.: What did he need a lawyer for?

I think he needed a lawyer, one, to advice him of the serious nature of the charges, to determine, to present to the Court, particularly in mitigation here, Mr. Justice White, factors concerning -- defending himself but also factors that is to, perhaps even, to introduce evidence to show that the refusal to testify was not one that was simply based on a too great a loyalty to a friend, but a real belief that the constitutional grant of immunity was not co-extensive with the privilege.

It seems to me, if a man refuses to answer because he really believes that the District Court's rule is in error, that that is a relevant factor to be considered in imposing sentence.

It seems to me, a man who just feels that the Court is wrong as to his constitutional rights and he wants to protect them doesn't deserve the maximum sentence possible.

Justice Potter Stewart: Your point is that the constitutional privilege against compulsory self-incrimination has got subtleties and nuisances that a person can't decide upon by himself but needs a lawyer to help him decide, is that it?

Mr. John S. Martin, Jr.: That's correct, and also that whether not to go forward and testify is a decision in those circumstances where -- this is a point I was trying to make before that the witness has to have some faith in the lawyer.

And I think that's one of the things that bothers me here is that my client was asked to make all these decisions and go forward with a brand new lawyer assigned to him that morning.

Thank you.

Chief Justice Warren E. Burger: Thank you.

You have about five minutes left if you have anything further.

Rebuttal of Gerald P. Norton

Mr. Gerald P. Norton: Thank you.

The suggestion that there was no intention here to give Mr. Bryan and Mr. Wilson an opportunity to purge their contempt I think is rebutted by the statement of Judge Lasker at page 32 (a) -- 32 of the appendix where he specifically referred to imposing a sentence for a period of time subject to elimination or reduction of it to nothing should Mr. Bryan cared to testify and answer the questions.

That was plainly his intention, everyone understood it.

They chose not to do so.

As for the possibility --

Justice Potter Stewart: Where were you reading from and what is your point?

Mr. Gerald P. Norton: Page 32.

Justice Potter Stewart: Yes, of the appendix.

Mr. Gerald P. Norton: Of the appendix, the middle of it, the middle of the page.

Justice Potter Stewart: Beginning, “My suggestion is that I impose a sentence…”?

Mr. Gerald P. Norton: Yes.

And other points he said he was making this provisional sentence in both cases subject to reduction or reconsideration.

Now, the suggestion that Mr. Wilson's refusal was based on some legal issue as to the effectiveness of the immunity to protect him, I think, is also rebutted by the fact that when counsel said to consider the motivation for what Mr. Wilson has done, Judge Lasker said “to save a friend,” counsel “yes.”

It is very clear what was happening here.

This was not someone standing on some legal principle to preserve the issue for appeal.

This was someone who simply didn't want to talk to save a friend.

That's all there was to it.

Justice Thurgood Marshall: It wasn't really on what immunity he was getting, was it?

Mr. Gerald P. Norton: It was.

Judge Lasker explained that, explained that the consequences of the immunity were the -- what he said could not be used against him and that he had to answer question put to him.

Justice Thurgood Marshall: And did he say that it couldn't be used by the sentencing judge?

Mr. Gerald P. Norton: I don't believe he specifically said that, but --

Justice Thurgood Marshall: Well, no, but there was something that was left out that this man didn't understand, am I right?

Mr. Gerald P. Norton: In this case, Your Honor, both Wilson and Bryan --

Justice Thurgood Marshall: Are you?

Mr. Gerald P. Norton: -- had admitted their complicity in the offense.

There's never been any suggestion what would've happened --

Justice Thurgood Marshall: I'm not talking about --

Mr. Gerald P. Norton: Here if they testified.

It could've been used as --

Justice Thurgood Marshall: I'm talking about the grant of immunity.

Could he possibly understand it without getting advice or thinking it over?

Mr. Gerald P. Norton: Mr. Wilson --

Justice Thurgood Marshall: It wasn't in there?

Mr. Gerald P. Norton: Mr. Wilson had his attorney present.

Justice Thurgood Marshall: Afforded an attorney.

Mr. Gerald P. Norton: Mr. Bryan was represented by Mr. Wilson's attorney.

Justice Thurgood Marshall: Yes.

Wait a minute.

He had a -- he had somebody else's lawyer.

Mr. Gerald P. Norton: Well--

Justice Thurgood Marshall: Yeah.

That's what he had.

Mr. Gerald P. Norton: That's right.

Justice Thurgood Marshall: He had somebody else's lawyer.

Mr. Gerald P. Norton: Someone else who's client had the identical problem and was prepared to address it that day.

Justice Thurgood Marshall: And witnessed the fact that they're so identical that one of them said that that lawyer couldn't represent him in this Court.

That's how identical they are.

Until this day, they're not identical.

Mr. Gerald P. Norton: Well, I can't speak to the (Voice Overlap) --

Justice Thurgood Marshall: Well, it's what the record shows in this Court.

Mr. Gerald P. Norton: Well, they have different factual situations and they prefer to make different arguments.

Justice Thurgood Marshall: That's right.

So they're not identical.

Mr. Gerald P. Norton: Well, they were identical in as far as the question of whether they could be held in contempt when they refused to obey a Court order, they were in the identical situation.

Justice Thurgood Marshall: I am not -- were they in identical situation as to the immunity?

Did the fact that one and his lawyer understood immunity mean that the other one understood the full parameters of the immunity?

Mr. Gerald P. Norton: If Mr. Bryan's refusal to testify was based on some misapprehension as to the scope of the immunity, then that is a fact that could've been presented to Judge Lasker at any time in the 20 months or so since these convictions (Voice Overlap) --

Justice Thurgood Marshall: Well, I will assume that anybody convicted for murder can bring habeas corpus 50 years later.

Mr. Gerald P. Norton: Well, contempt --

Justice Thurgood Marshall: But that doesn't make the original conviction legal?

Mr. Gerald P. Norton: Contempt is an unusual creature in that regard and as --

Justice Thurgood Marshall: It is.

Mr. Gerald P. Norton: -- the Chief Justice indicated, criminal contempts are frequently revised after further presentations.

On the question of notice, counsel seemed to assume that one day would be sufficient.

Now, whether that's so or not is an open question.

Some Courts of Appeals have said that five-day's notice is required where notice is necessary.

A five-day interruption of the trial would be something very different indeed, in that it would be longer than the trial itself took.

The question of whether a sentence under 42 (a) is -- has any coercive effect I think it's clear that summary exercise of the contempt power is inherently coercive.

That is why the Courts permitted to exercise it.

It is to invest immediately some conduct which obstructs or casts in a bad light the administration of justice.

If the only purpose were punishment, 42 (b) would be sufficient.

It is the need to deal immediately that justifies the summary dispositions.

And finally, on the mens rea question, I note simply that, first, 401 does not require that the action be willful as 402 does and that, in this case, the defendant had entered his guilty plea with no suggestion that he was not competent to stand trial.

The difficulties in sentencing a youthful offender on a 20-year maximum burglary count are very different indeed from determining whether he has legitimately refused to answer a question.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Thank you.

The case is submitted.

Mr. Martin, you appeared by appointment of the Court and on behalf of the Court, I want to thank you for your assistance to us and of course, your assistance to your client.

Thank you.