KUGLER v. HELFANT

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Argument of David S. Baime

Chief Justice Warren E. Burger: We'll hear arguments next in 74-80, Kugler against Helfant consolidated with 74-277 Helfant against Kugler.

Mr. Baime you may proceed whenever you are ready.

Mr. David S. Baime: Mr. Chief Justice and may it please the Court.

This case comes before this Court on a petition and cross petition for certiorari, to review a judgment rendered by the Court of Appeals for the Third Circuit sitting en banc.

That judgment reversed an order entered by the United States District Court, dismissing respondent's complain pursuant to Rule 12 (b) (6) and denying his application for preliminary injunctive relief.

At issue here is the propriety of Federal intervention in an ongoing state criminal prosecution.

More specifically the question to be resolved, is whether the New Jersey Supreme Court's conference with the respondent, which allegedly had the affect of coercing to testify before the state grand jury, constituted such extraordinary circumstances as to compel Federal intervention in the resulting, disrupting of legitimate state criminal processes.

For the purpose of this argument, the material facts are not in dispute and are essentially a matter of public record.

Respondent, a member of the New Jersey Bar and a former municipal court judge alleged in a verified complaint filed under the Civil Rights Act, that he had been subpoenaed to appear before the State grand jury on October 18, 1972.

Pursuant to that subpoena, respondent appeared and was then advised that he was a target of the grand jury's investigation.

Armed with that information and being fully apprised of his Fifth and Sixth Amendment rights, the respondent refused to enter the grand jury room.

He was then brought before a Superior Court judge, who following argument in open court ordered him to appear in the grand jury room and to assert his Fifth Amendment privilege if that was his desire.

The respondent then entered the grand jury room and refused to testify.

This matter then came to the attention of the Supreme Court of New Jersey.

In the interim however it had become apparent that the grand jury's inquiry concerned other matters in which the respondent was allegedly involved.

He was therefore re-subpoenaed to appear before the grand jury on November 8, 1972.

The Supreme Court of New Jersey having scheduled oral arguments on that date, requested the presence of Judge Helfant and Judge Moore who was also implicated in the criminal scheme at his private conference room.

The object of that conference was to determine whether removal or disciplinary proceedings were to be commenced against either or both judges.

Both judge Moore --

Justice Potter Stewart: Municipal judges?

Mr. David S. Baime: Yes Your Honor, I should say however that the grand jury's investigation involved as well an Atlantic County Court Judge.

Justice Potter Stewart: These Municipal Judges were down -- were in Atlantic county?

Mr. David S. Baime: Yes.

Justice Potter Stewart: And in New Jersey, a municipal judge can be a part-time judge, can he not --

Mr. David S. Baime: Yes.

Justice Potter Stewart: -- and practice laws so long as he doesn't practice in criminal courts?

Mr. David S. Baime: He may not practice in criminal courts or have anything to do with the penal law that includes disorderly person's violation etcetera.

Justice William H. Rehnquist: The grand jury was setting interim, wasn't it?

Mr. David S. Baime: I am sorry?

Justice William H. Rehnquist: Was the grand jury setting interim?

Mr. David S. Baime: Yes it was, yes it was.

The grand jury was located on the same floor as the conference room of the Supreme Court.

Now both judge Moore --

Justice Potter Stewart: And does the subpoena power or the grand jury sitting interim can extend over to the Atlantic County?

Mr. David S. Baime: Oh yes,

This was the State grand jury which has state wide jurisdiction.

Both Judge Moore who had previously waived this Fifth Amendment privilege and testified freely before the grand jury, and Judge Hoffman who as I have noted had refused, appeared as requested.

Both judges agreed not to sit pending resolution of the grand jury's investigation.

Respondent's complaint alleged that the affect of this conference on him was to harass him to before the State grand jury.

All parties agree that his testimony was wholly exculpatory.

Nevertheless the grand jury returned an indictment, charging him with substantive offenses and with four counts of false swearing.

Based upon these allegations, respondent sought an injunction in the United States District Court, adjoining prosecution of the state charges.

Following an evidentiary hearing, the District Court dismissed respondent's complaint pursuant to Rule 12 (b) (6) and denied his application for a preliminary injunction.

Specifically, the Court concluded that the complaint was barren of anything which would indicate bad faith or harassment on the part of New Jersey's prosecutorial authorities.

So too, the District Court was unwilling to presume that the entire state judicial system would be innocuously infected by virtue of the Supreme Court's involvement in the aftereffects of the case.

A three-judge panel of the Court of Appeals subsequently reversed.

Following re-argument, the Court of Appeals in an en banc decision ordered an evidentiary hearing to determine whether respondents were not to testify had been overborne and further ordered findings of facts and conclusions in the form of a declaratory judgment.

We submit that the Court of Appeals en banc decision calling for a declaratory relief ignored time-honored principles of federalism and comity as annunciated by this Court in Younger against Harris and Samuels against Mackell.

We recognize of course at the outset, that for the purpose of this argument, all reasonable and legitimate inferences must be assumed in favor of the respondent.

Justice William J. Brennan: Mr. Baime may I ask?

(Inaudible) of the respondents and cross-respondents, Chief Justice Weintraub is no longer Chief Justice?

Mr. David S. Baime: That's true.

Justice William J. Brennan: Associate Justice Nathan L Jacobs, he is retired?

Mr. David S. Baime: Yes, sir.

Justice William J. Brennan: Associate Justice Haydn Proctor, he is retired?

Mr. David S. Baime: It's true.

Justice William J. Brennan: Associate Justice Frederick W. Hall, has he retired?

Mr. David S. Baime: He has retired.

He has two decisions which will be issued in about eight days, but he no longer will be sitting in cases in the Supreme Court.

Justice William J. Brennan: And the others are Justice Worall F. Mountain and Justice Mark A. Sullivan, they are still in that --

Mr. David S. Baime: They presently serve in their official capacities in the state of New Jersey.

Justice William J. Brennan: Well, do those changes bear on the issue?

Mr. David S. Baime: As we note in our brief, and I think it's made clear by the decision in Spomer against Littleton, the case with respect to seven or perhaps six, the named defendants truly is moot.

These individuals were sued not in their official capacities but by virtue of a conclusory allegation of personal vindictiveness on their part and it's noted in Spomer against Littleton, those allegations must die along with the resignation of those public officials.

Therefore, only two defendants presently serve in New Jersey.

And of course according to the allegations in the complaint, only one of the two in any way actively participated in this conference.

We submit in our brief that under these circumstances --

Justice William J. Brennan: Well, you understand that Judge Helfant's whole case turns on that conference in the Supreme Court conference room?

Mr. David S. Baime: Yes.

I shouldn't say this whole case, because we also argue that the coercion issue is wholly irrelevant to the validity of the state court indictments.

By that I mean, a finding of coercion would no way vitiate the false swearing charges.

Justice William J. Brennan: You suggested earlier that the allegations of bad-faith and harassment were against the prosecutorial officials?

Mr. David S. Baime: That is the way we understand the respondent's complaint.

Justice William J. Brennan: Well, that's more of than just harassment and consequence of this meeting with the Supreme Court, is it?

Mr. David S. Baime: Yes, but I should point out that in New Jersey, not only has the composition of the Supreme Court change but we have a new Attorney General as well.

Former Attorney General Kugler since resigned and so has Deputy Attorney General Hayden.

I might point out at this point that the purpose of an injunction and indeed declaratory relief as well is to prevent a future violation of the law not to rectify a wrong already done.

We submit that under the facts that presently exist, respondent's complaint simply does not satisfy the great and immediate harm requirement annunciated by this Court in Younger against Harris.

When viewed within the factual context as it presently exists, it's quite clear that respondent's allegations amount to nothing more than a mere academic exercise and are conceivable.

Plainly there was nothing anomalous in the Supreme Court's conference with Judge Helfant.

As we point out in our brief, it is incumbent upon the Supreme Court of New Jersey to initiate disciplinary and removable proceedings.

And as the Court of Appeals for the Third Circuit has itself acknowledged in (Inaudible) that significant constitutional obligation cannot ordinarily await the conclusion of related criminal charges pending against a judge or lawyer, rather that constitutional obligation of the Supreme Court is to ensure both the appearance and facts of judicial integrity.

Now --

Justice William J. Brennan: (Inaudible) Sitting Justices, Justices Mountain and Sullivan, they could be replaced by Superior Court judges as a matter of --

Mr. David S. Baime: Yes, Your Honor, we have pointed that in our -- out in our brief as well.

I might point further that the Court of Appeals' opinion is premised upon the conclusion that those judges or justices who might in some way be unable to remain impartial by virtue of their official involvement in this case under New Jersey law must recuse themselves.

Justice William J. Brennan: Conferences of this kind is that -- are they unusual?

Mr. David S. Baime: No they are not unusual.

They occur on the average of -- this is in the record Your Honor, it's from reviewing the files of the Supreme Court but they --

Justice William J. Brennan: (Inaudible) New Jersey Supreme Court, we had such conference?

Mr. David S. Baime: I believe Chief Justice Vanderbilt was chief justice at that time and that's true.

So this is not an unusual practice.

The obligation of the Supreme Court to initiate disciplinary proceedings certainly cannot be handled in a manner -- in conjectural way.

Rather the Supreme Court should make some initial finding that at least proceedings are warranted.

As I have noted in the brief, here the respondent's agreement not to sit pending resolution of the grand jury charges, obviated the need to determine whether removal or suspension proceedings were to be commenced.

For that reason, there is no order to show cause in this case, nor there was ever hearing with respect to the suspension or removal.

Justice Lewis F. Powell: Mr. Baime, when did the alleged false swearing occur?

Mr. David S. Baime: The false swearing occurred in the grand jury room and it was --

Justice Lewis F. Powell: The first grand jury hearing?

Mr. David S. Baime: I am sorry, I don't understand --

Justice Lewis F. Powell: There were two grand jury hearings, weren't they?

Mr. David S. Baime: Yes and the first grand jury hearing in October 18, 1972, the respondent refused to testify.

At the second hearing, he testified with respect to three unrelated transactions after being apprised on each occasion that he was the target of the grand jury's inquiry and advised further as to scope what that investigation was.

On the second occasion, he testified in the manner which we submit constitutes false swearing which is similar to perjury.

Justice Lewis F. Powell: That was at the second hearing --

Mr. David S. Baime: Yes and with regard to that we would point out that the coercion issue is again wholly irreverent to the criminal proceedings pending against the respondent.

Simply stated, there is no reason to assume even giving the fact that there is wholesale contamination in the state judiciary that any member of that judicial system will ever be confronted with the issue of having to determine whether the Supreme Court in fact, coerced this respondent.

The reason I think is quite obvious.

With respect to the false swearing charges, it's clear that the Fifth Amendment privilege does not deal a witness who was compelled to testify with the license to commit perjury with impunity.

Rather this Court has repeatedly construed the Fifth Amendment is implying only to evidence of past criminal transgressions, beginning with such cases as Glickstien against United States, and going through Dennis against United States, Bryson against United States and only recently, United States against Knox, this Court has made it abundantly clear that a witness, even compelled to testify may not take the law in his own hands and violate his oath with impunity and that's what we alleged that this witness did.

Therefore, the fact that -- or the question of coercion is wholly irrelevant.

Even assuming coercion to false swearing charges will not be vitiated, the same principles apply with equal force when considering the efficacy of that part of the indictment charging the respondent with substantive crimes.

I should point out that those crimes are conspiracy to obstruct justice, obstruction of justice in compounding a felony.

This Court has often upheld the principle that reception before a grand jury of even unconstitutionally obtained evidence, does not serve to vitiate substantive charges.

Rather, the remedy under those circumstances is to suppress the use in fruits of that testimony so that the testimony may not be used at the defendant's criminal trial.

Again, I submit that U.S. -- United States against Blue is directly dispositive of the issue there, specifically the injunction with rather the indictment with regard to the substantive counts is insulated from attack upon the ground that respondent's grand jury testimony was unconstitutionally obtained.

And therefore, it's quite clear that an injunction which would be tantamount to dismissal of these charges would be most inappropriate.

Rather the only fear that respondent has is that at some future point based on a hypothetical series of events which would in all likelihood will never occur, the state for some reason which I cannot fathom will utilize his grand jury testimony against him.

And we've pointed out that his grand jury testimony being wholly exculpatory would not serve as a declaration against penal interest under New Jersey's evidentiary law, nor would it serve as an admission against interest.

And I refer also to the fact that we made a binding stipulation before the Court of Appeals for the Third Circuit that we do not intend to introduce the respondent's grand jury testimony against him, other than of course, with respect to the crime of false swearing.

Again, I pointed out in my brief that concession or that stipulation is not gendered by an overwhelming feeling of actualism and the point I am making again is that the respondent's grand jury testimony in this case was wholly exculpatory.

Therefore, the prospect that there will be constitutional injury in this case, is based on pure speculation.

It's wholly conjectural and certainly under these circumstances, the respondents complaint does not satisfy the great and immediate harm requirement set forth in Younger against Harris.

Justice William H. Rehnquist: Mr. Baime, you earlier referred that the Third Circuit as having provided for a declaratory judgment but they also preliminarily enjoined the prosecution of the state proceedings pending that determination, didn't they?

Mr. David S. Baime: That's true.

I would point out further that here the declaratory judgment would certainly be as abrasive as an injunction for the reasons pointed out in Steffel against Thompson, Samuels against Mackell and the Mr. Justice Brennan's conquering or I should say separate opinion in Perez against Ledesma.

Firstly, there is a question under Section 2102, whether an injunction could be issued to enforce declaratory judgment.

I know your own views on that issue, but of course, there is some disagreement.

Secondly, a declaratory judgment might well have some res judicata effect, some binding effect upon the state courts.

Thirdly, assuming that the declaratory judgment would not be binding on the state courts that solely means that a declaratory judgment here would encourage duplication of legal proceedings.

Justice William H. Rehnquist: But why do we need to wrestle with the refinements of the declaratory judgment aspect of it.

I think since the Third Circuit actually directed the issue as an injunction?

Mr. David S. Baime: That's true.

I don't think we have to.

I just -- I do think that the judges, lawyers and prosecutors are guided not only by the letter of laws enunciated by this Court in the Court of Appeals but the spirit as well.

And again we have submitted that the Younger's introduction in based on something more than a technical rule.

It's based on hundreds of years of federalism and comity and those principles have been reaffirmed time and time again by this Court only recently.

This Court had a case, I believe this last week to come down with the Huffman against Pursue decision which again eludes to the fact that we simply cannot assume that members of a state judicial system will fail or refuse to obey the law they are bound to enforce.

That is the presumption upon which respondent's complaint rests and we submit that it's wholly conjectural and incorrect.

In conclusion, I would point out that the issue here is not whether a citizen is to be denied access to the Federal Courts for disposition of his constitutional claims.

We have maintained throughout these proceedings that Habeas Corpus and Certiorari proceedings provide a litigant with proper remedies for significant constitutional violations.

Those remedies do not call for massive disruption and dislocation of legitimate state criminal processes.

At issue here rather is the state sovereign power or right to try and accuse without delay, we contend that a balancing of competing values, in this case, clearly calls for the application of the abstention doctrine.

We therefore, accordingly urge the reversal of the Court of Appeals' opinion.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Baime.

Mr. Perskie.

Argument of Marvin D. Perskie

Mr. Marvin D. Perskie: Mr. Chief Justice, and may it please the Court.

I think initially, I should point out the procedural context in which this case comes before the Court.

In the Federal District Court, the New Jersey Supreme Court, and the Attorney General and the Deputy Attorney General, labeled as the defendants were successful in making a motion under Federal Rule 12 (b) (6) and obtained a dismissal of the complaint, for failure to state a cause for which relief could be granted and also at the same time, were able to block the application for preliminary restrain.

At this juncture the procedure, the plaintiff is entitled, the plaintiff Judge Helfant is entitled to have all the facts that he has established regarded as true, together with the reasonable inferences that flow there from.

Now, the defendants in this case have not answered the complaint, they have not filed an affidavit.

They have not introduced one iota of testimony before the Federal Court and their defense in this case is essentially ingenious argument, which is not based on the record and dealing with the record, we contend that the facts that have been established in that record meet the requisites of equity intervention in a pending state criminal proceeding that there is irreparable damage that is great and immediate, that this case falls within the extraordinary circumstances doctrine of Younger v. Harris, the unusual circumstances doctrine of Steffel v. Thompson; the extremely rare case referred to by Chief Justice Burger in his concurring opinion in Allee v. Medrano and that it meets the bad faith and harassment requirements so that right across the board, the plaintiff is entitled to injunctive relief in this pending state criminal proceeding.

Now the facts, as I heard them from my opponent, are not the facts that are -- the complete facts that are in the record.

Initially to start with, while the plaintiff was called before the state grand jury, he not only refused to go before the state grand jury, but he had a hearing before a Trial Court, which ordered him to appear before the state grand jury.

He then attempted to appeal and over the telephone, actually appealed this decision to the Appellate Division, which is the immediate appeals tribunal in the State of New Jersey.

He was unsuccessful in that joint telephone call with the Attorney General, and he attempted to contact the Supreme Court, and he was unable to do so, and he finally had to go before the grand jury.

In other words, he did everything humanly possible to resort to his Fifth Amendment privilege and to keep from testifying.

Justice Thurgood Marshall: As I understand that they told him that he could go before the grand jury and plead the Fifth Amendment?

Mr. Marvin D. Perskie: He did and went before the grand jury.

Justice Thurgood Marshall: Is all of this, he just objected to going into the door?

Mr. Marvin D. Perskie: He objected to testifying before the grand jury.

Justice Thurgood Marshall: For going in the room?

Mr. Marvin D. Perskie: Yes Sir.

Justice Thurgood Marshall: And you went all the way up to Supreme Court, to find out whether he had to go in the room or not?

Mr. Marvin D. Perskie: Yes, and he found that he had to go in the room Mr. Justice and at --

Chief Justice Warren E. Burger: But he could, once he got there, have refused to say a single word, could he not, except to claim the Fifth Amendment?

Mr. Marvin D. Perskie: Yes, and that's exactly what he did Mr. Chief Justice.

He resorted completely to his privilege on that occasion.

And he was again subpoena to reappear before this grand jury, and there is in the record, a letter from one of his counsel to co-counsel indicating that his intention was still to resort to the Fifth Amendment.

Now, we must watch the time context here because I think this is important.

On the late afternoon, about 3:30 of November the 6, in our court system that closes at 4 o'clock at the afternoon, he received a call from the Administrative Director of the Courts.

The next day and I think the Court can take judicial notice and I think it's in the brief, it was an election day that all the official activities in the State of New Jersey were closed down.

So at 3:30, on November the 6, he was told to appear before the Supreme Court in private session.

He says why, why are you calling me and no answer was given.

He was just told to be there.

The call was not made to counsel, the call was made directly to the plaintiff in this case.

He then appeared at 10 minutes of 10 before the Supreme Court and now, after a great deal of exchanging of briefs, the state has finally admitted that not only did the Supreme Court questioned the plaintiff, but it had before it the raw grand jury testimony, the actual testimony of an incomplete criminal investigation.

They had obtained that from the Attorney General in violation of their own rules, which calls for the secrecy of grand jury proceedings.

Justice Potter Stewart: When you say he appeared before the court, the fact is he appeared before the members of the court in a private room?

Mr. Marvin D. Perskie: That's correct Your Honor, in their private chamber and there is one other thing that I should state at this time, and I have heard it where the Attorney General was arguing this case with me.

Seated in that private chamber at that time were two judges of the Appellate Division, which again points up the power and the integratability of the New Jersey court system.

There was a Judge Conford who was a member of the appellate division who was actually temporarily assigned to the Supreme Court and Justice Sullivan who had not yet been elevated to the Supreme Court, who was also a member of the appellate division, and they were filling in for other justices who were either have resigned or were absent.

So that there were two judges of the Intermediate Appeals Court, sitting in that room when the plaintiff entered the room.

Justice Potter Stewart: They were filling in not specifically for the purposes of this interview, but were generally there filing in just --

Mr. Marvin D. Perskie: Yes, sir, they were there in connection with their regular duties.

Justice Potter Stewart: The members of the Court for the Court's regular duties?

Mr. Marvin D. Perskie: Yes sir,yes sure.

And I apologize for that not being in the briefs with all the briefing we did that should have been in there.

Justice Potter Stewart: So how many judges or temporary judges of the Supreme Court were in the room when --?

Mr. Marvin D. Perskie: There were one short, there were six.

I believe there was one that was missing, Judge Proctor was not actually in at that time.

Justice Potter Stewart: About 10 o'clock in the morning on the --

Mr. Marvin D. Perskie: He got there about 10 minutes of 10, his meeting before the Grand Jury was at 10 o'clock and when he said to the Administrative Director who called him, I have to be before the State Grand Jury at 10 o'clock, he said we know all about it.

So for this statutory, for this constitutional mandated inquiry that my opponent speaks of, they allow themselves 10 minutes, 10 minutes of time, and they have the raw grand jury testimony before them.

Justice Harry A. Blackmun: I'm still confused, as I think Justice Stewart was.

What day was this, was this election day, or the day 5?

Mr. Marvin D. Perskie: Now, this was the day 5, this was Wednesday.

He appeared before the state Grand Jury and nothing was done on election day which was a Tuesday, he appeared before them at 10 minutes of 10 on Wednesday.

And then the questioning started, and the questioning was not directed to whether you intend to resign, whether you're fit to hold your job as a Judge, and he did not offer his resignation at this meeting, that was done at some subsequent time.

The questioning was to his philosophy on the Fifth Amendment, whether he believed the Judge should resort to the Fifth Amendment.

Justice William H. Rehnquist: Was it that strike it was an unreasonable inquiry under these circumstances on the part of the Justices of the Supreme Court of New Jersey?

Mr. Marvin D. Perskie: It certainly does Your Honor.

Particularly 10 minutes before the time he has to go onto a Grand Jury where he is already resorted to the Fifth Amendment.

Justice William H. Rehnquist: You say that a Chief Justice of the Supreme Court of New Jersey charged with disciplinary and administrative response goes for entire court system, can't ask a judge who has claimed the Fifth Amendment whether he thinks it's consisted with his judicial role?

Mr. Marvin D. Perskie: There is a time and place for that inquiry to be made and it's certainly in my opinion it's not 10 minutes before you're about to go before a Grand Jury, where you're accompanied by a counsel, and where there are rules, and there is a due process established for the disciplining of courts, which calls for notice, which calls for a hearing, which calls for representation by counsel.

And to get a man who's about to go before a State Grand Jury who knows, and this is another important fact that, who knows the makeup of the Grand Jury and the fact that three convicts have been brought by the Attorney General before that Grand Jury, but promises of leniency, who have testified against him, who is aware of his testimony, and with all of this on his back, to be called 10 minutes before he has to enter into that pit by the Supreme Court without the presence of counsel, without any notice of why he's being there, it was not the time and place to do it.

Now there is a time and place to do it and the Supreme Court certainly has the power where the -- one of the points of our brief is that we have an integrated --

Justice Thurgood Marshall: (Voice Overlap) what you said.

You said he knew what the witnesses had testified to before the Grand Jury?

Mr. Marvin D. Perskie: He knew what three of them had, they were convicts --

Justice Thurgood Marshall: I thought you said a minute ago that the Supreme Court shouldn't have known what went on in the Grand Jury?

Mr. Marvin D. Perskie: They should not have, they should not have.

Justice Thurgood Marshall: Then why should he know if the Supreme Court shouldn't know?

Mr. Marvin D. Perskie: Well, he was told by a representative of New Jersey State police, that's what appears that he shouldn't have been told, but he was and that's part of the --

Justice Thurgood Marshall: But it's evident that the Grand Jury minutes of New Jersey aren't so secret?[Laughter]

Mr. Marvin D. Perskie: Well, that--

Justice Thurgood Marshall: People just walk in around told him that?

Mr. Marvin D. Perskie: That's one of the points we're making here, that there was a complete collapse of due process that the Attorney General should have never turned those Grand Jury minutes over to the Chief Justice, and what's more, he should have never told his detectives what was going on in that Grand Jury.

Justice Thurgood Marshall: He shouldn't have told?

Mr. Marvin D. Perskie: No, the Attorney General who was conducting the investigation Mr. Justice, was obliviously the source of the leak.

Justice Thurgood Marshall: (Inaudible)

Mr. Marvin D. Perskie: Pardon?

Justice Thurgood Marshall: (Inaudible)

Mr. Marvin D. Perskie: He certainly shouldn't, he certainly shouldn't.

Chief Justice Warren E. Burger: Did I misunderstand that you?

I thought I heard you say that his attorney would be with him before the Grand Jury.

Is that true in --?

Mr. Marvin D. Perskie: In New Jersey you're not allowed to bring your attorney into a Grand Jury, you can have him standing outside and you can consult with him.

Chief Justice Warren E. Burger: The general, the traditional pattern?

Mr. Marvin D. Perskie: Yes.

But there was no Attorney with him before the Supreme Court, the attorneys were not invited.

Chief Justice Warren E. Burger: But, when you suggested that he did not know why he was being called to conference with the members of the Supreme Court, does your pleading allege or your pleadings allege that he did not know?

Mr. Marvin D. Perskie: Absolutely, absolutely, it's in the verified complaint.

Chief Justice Warren E. Burger: Is that a credible allegation?

Mr. Marvin D. Perskie: Well, he asked --

Chief Justice Warren E. Burger: As a judge that he did not know what he was being called there for?

Mr. Marvin D. Perskie: Well, in view of what happened I think it's a very credible situation because they did not do what you would think they would do.

Say look, for the benefit of the court system, step aside while this is going on, but that isn't what they did.

They just tried to frighten him out of -- resorting to the Fifth Amendment.

In fact the very last word when he left the chambers, Mr. Justice Weintraub; what do you intend to do today?

And he said I am going to testify and when he got outside the Grand Jury chambers, he was met by his counsel and his counsel said, you must resort to the Fifth Amendment.

He says, I can't do it, "It's my ticket” which was his right to practice law, he was so frightened, he thought he was going to be disbarred if he didn't resort to the -- if he resort to the Fifth Amendment, and there is another very important factor here.

There was a co-defendant Samuel Moore who has since died, he was called before the Supreme Court at the same time, and if you recall his affidavit he had appeared before the Grand Jury twice.

They made him wait four hours each time, and after each session, they asked him whether he could deliver Helfant, whether he can give any information on Helfant.

He said you want me to lie and they said no, just tell the truth.

Well, he was called before the Supreme Court, and he was asked to bring the criminal complaint which is a gravamen of the substantive charge against him.

He was charged with unlawfully compounding a felony, obtaining the dismissal of a criminal complaint.

That complaint was spread on the table before the members of the Supreme Court and they discussed the genuineness of the plaintiff's signature on that complaint and that is one of the central questions in the criminal charge against whether he in effect signed the dismissal of that complaint and he was asked, they discussed is this his signature?

And the Chief Justice turned to Mr. Moore and asked him if he called the State Trooper who have been releasing this information an obscenity, and he said that he hadn't.

He was also asked as to the reliability of certain law firms.

So this just was not a -- this was a hodge-podge affair, it wasn't a real inquiry into the merits.

Chief Justice Warren E. Burger: These facts are covered in affidavits, are they?

Mr. Marvin D. Perskie: Yes sir, that's the affidavit of Samuel Moore that is in the appendix and I might say that the only affidavits in this case are ours, and every fact that I have alluded to is in the appendix and is supported by affidavit.

Justice Byron R. White: Is your fundamental claim that he was coerced in testifying and waving as Fifth Amendment?

Mr. Marvin D. Perskie: Yes, Mr. Justice.

Justice Byron R. White: He said that in his affidavit, “I cannot say that the Supreme Court in anyway directed me to testify, nor did they in anyway indicate to me what the consequences would be if I continue to stand by the Fifth Amendment.”

Mr. Marvin D. Perskie: Yes, but there the very next sentence --

Justice Byron R. White: Now, where did the question come from?

Mr. Marvin D. Perskie: Well, if you follow that through the very next sentence is “but I was under the impression that if I didn't, something would be done to me,” that's a --

Justice Byron R. White: Well, that was under his impression –- that was his impression?

Mr. Marvin D. Perskie: Yes, well the fact, let's look at the facts.

He did everything in his power to avoid testifying, he resorted to the Fifth Amendment, his lawyer said and so testified and so wrote and it's in the record, he was going to use the Fifth Amendment again, he went there determined to use the Fifth Amendment.

This is the record, and when he came out of that Supreme Court Chamber, that determination has resolved, have been shattered.

And when his lawyer tried to get through him -- he says, I can get through him, I just couldn't reach him.

He was beyond reach, he was almost to be shattered.

Justice Byron R. White: Well, another question is coercion -- is coerced testimony a defense to a false swearing count?

Mr. Marvin D. Perskie: This again, I certainly think it is, and using the cases that were cited by my opponent, United States versus Knox.

Justice Byron R. White: Is it in New Jersey?

Mr. Marvin D. Perskie: In New Jersey, that question is not completely resolved.

Justice Byron R. White: Well, it is in the Federal system.

Is it?

Mr. Marvin D. Perskie: I believe it is, because in the case of United States versus Knox, there was a language that duress is a traditional defense to our Criminal Act.

And in every case cited by my opponents where he attempts to distinguish false swearing from the substantive charges, there had been a conviction of perjury or there had been testimony given in a proceeding which was invalid and illegal.

It's our contention that this proceeding was tainted, and that there is a defense of the duress and that defense would have to be raised in the State Court as a defense for the criminal charge.

Now, if the remedy is tainted if the remedy is perverted and this is the whole meaning of Justice because if the extraordinary circumstances doctrine means anything, it means an intact State remedy where you can vindicate a constitutional right.

Now if that remedy is tainted Mr. Justice, it's just as tainted for the perjury charge or the false swearing charge as it is for the substantive offense.

Justice Byron R. White: (Inaudible)

Mr. Marvin D. Perskie: Because traditionally and I cite the case United States versus McCord, and there are other cases that where there was a prosecutorial misconduct, the remedy was not to go through the trial, but a dismissal of the indictment and where there is a judicial misconduct and after all the standard of conduct of a Supreme Court is the highest possible standard.

Justice Byron R. White: (Inaudible)

Mr. Marvin D. Perskie: Well, the New Jersey system is an integrated system, there is absolute power --

Justice Byron R. White: (Inaudible)

Mr. Marvin D. Perskie: No, but the rise of appeal would go through the Supreme Court.

There were judges of the appellate division to whom he would have an appeal of right, who have already sat on this matter that were in this conference, the two judges that we referred to, one of them is still -- Judge Conford is still on the appellate division.

Chief Justice Warren E. Burger: Are there not other judges that could be substituted if he took that route?

Mr. Marvin D. Perskie: We could, you know, we could go over a full resurrection or re-manufacture of the court system in the State of New Jersey.

Chief Justice Warren E. Burger: Well, I would like an answer to that question?

Mr. Marvin D. Perskie: The answer I don't think -- I think is no, because I liken it to the conflict of interest cases.

Chief Justice Warren E. Burger: You mean that no other judge would be available to sit in place by special designation?

Mr. Marvin D. Perskie: There would be many judges who would be able to be replaced by the Chief Justice to sit but whether the -- that in anyway changes his remedy or the autocracy of his remedy, I don't think it would and I say because of this.

If there is a Municipal Council, or Zoning Board of Adjustment where there is one man that has a conflict of interest, that taints the action of that entire board, and I say that as long as there are any judges or even if all the judges have gone, the impact and influence of what the Supreme Court did will trickle down on all the trial courts.

Chief Justice Warren E. Burger: You are saying then they can't ever try him in the State of New Jersey?

Mr. Marvin D. Perskie: Absolutely Sir, I don't think it is humanly possible for this man to get a fair trail in the State of New Jersey.

Now, if he were converted into a modern day (Inaudible) and went from one end of the state to the other to look for a court, that would give him a fair trial, with a computer, it is possible that he could find one.

But (Inaudible), the venue of this case is laid in Mercer County.

The judge will be selected or can be selected by the Assignment Judge of Mercer County who in turn is selected by the Chief Justice.

The plaintiff will have absolutely no way of determining who sits in his case.

Justice William J. Brennan: (Inaudible) by the new Chief Justice (Inaudible).

Mr. Marvin D. Perskie: Yes, the Chief Justice has gone, but the influence lingers.

Justice William J. Brennan: Well, apparently by everyone who participated in that conference except Justice Sullivan who is gone.

Mr. Marvin D. Perskie: No, Justice Sullivan is still there, Justice Mountain is still there, Judge Conford is still sitting on the appellate division.

Justice William J. Brennan: All of them under New Jersey system can be replaced by other judges?

Mr. Marvin D. Perskie: They can be replaced, but I don't think due process contemplates that if you search the four corners of a state, you can finally find somebody that can hear it.

I think that the system is essentially tainted and perverted and that there will be no adequate remedy.

Justice Thurgood Marshall: Suppose the Court of New Jersey changes you still couldn't try him?

Mr. Marvin D. Perskie: No Sir, because I think that what happen --

Justice Thurgood Marshall: Now, what theory do you possibly have there on?

Mr. Marvin D. Perskie: Because, again the influence lingers, the personnel may change but this is an action done by the Court and you are asking a trial judge --

Justice Thurgood Marshall: Did you say it was done by the Court, I thought it was done in a private room?

Mr. Marvin D. Perskie: It was done by the Court in a private room.

Justice Thurgood Marshall: Well, is there any record of it?

Mr. Marvin D. Perskie: There is no record of it.

Justice Thurgood Marshall: Well, then it is not called action.

It's done by individual people.

Mr. Marvin D. Perskie: It is done by --

Justice Thurgood Marshall: And those individual people have gone, but the memory lingers on?

Mr. Marvin D. Perskie: That's correct, that's correct Your Honor.

Justice Thurgood Marshall: And the memory (Inaudible)

Mr. Marvin D. Perskie: Well, I am not concerned with them with all due candor.

I am concerned with this plaintiff, and I might say this, we have had a bite of the apple.

We have made application for leave to appeal for the appellate division on these very facts, it has been rejected.

We have made application for a leave to appeal and for a petition for certiorari to the Supreme Court of the State of New Jersey to allow a review of this action, and its been rejected.

And its been rejected over the signature of Chief Justice Weintraub who is a man that we say is responsible for this meeting, that was participated in by all members of the Supreme Court.

So to the extent possible, we have tried to exhaust our administrative remedies.

We went all the way up to the Supreme Court, and they wouldn't even continuance an inquiry into this matter.

Now, I say this that I certainly feel that we should be allowed to build a full record before the Federal District Court to determine whether this is an extraordinary situation, where there is autocracy of remedy, where there is a irreparable harm, because to say that a new court can be -- the harm has been done.

The harm has been done, he has been deprived, has been coerced out of a constitutional right with certain consequences.

Now to say now you can give me a free trial after you broken his back, you taken away a substantial constitutional right, now we are going to give him a fair trial after we crippled him, I don't think that gives a man a fair trial.

Once you've turn your lethal weapons on him and to say we are going to treat you afterwards is not an answer to a deprivation of the constitutional right.

It has already occurred, it's happened and I don't think it can be undone and certainly cannot be undone in the State of New Jersey.

I feel also that the Circuit Court which remanded to case solely to have a declaratory judgment on the issue of coercion is too limited in approach.

Justice William H. Rehnquist: Well, they didn't -- they meanwhile have joined the prosecution by the state?

Mr. Marvin D. Perskie: Yes.

But what they are in effect saying is to the Federal District Court you give a declaratory judgment on the issue of coercion after you had determined whether or not there is coercion, then the Supreme Court would be relieved of that embarrassment and we can then send this case back to the New Jersey court system to complete the criminal proceedings and I don't think a piecemeal approach and there are other issues in this case besides coercion.

There is issues of bad faith, there is issues of whether or not this is an extraordinary case, an extremely rare case.

There is issues of -- and I don't think the exception we're concerned with if this Court please is an extremely narrow one.

We don't have to be concerned about the predential aspect of it.

Our research has failed to disclose that anything like this has ever happened before and certainly if this Court acts with vigor and acts the way we respectfully requested, that will never happened again and that the rights of litigants in state criminal courts will beyond approach not only by errant prosecutors, not only by overzealous law enforcement officers lead by Supreme Court Judges who can also err.

And I might say this that if I seemed too brash, I would like to say that my father was a member of this Court and my brother was a member of the court system at the State of New Jersey and it has been reluctantly and slowly I have come to the conclusions I have come to.

I was brought up to respect and revere the court system at the state of New Jersey.

In this instance I've had to allow my better judgment to overcome my emotion and I have been involved in this case and I know by the feel that this man will not and will ever get a fair trial at the state of New Jersey.

I am the one who has made this actions before the trial court before the Appellate division, before the Supreme Court.

We've attempted to exhaust the remedies there and I think that this is a traditional case and that there can be no distinguishment between the false swearing and the substantive charges, because we are right back again to the remedy.

And just as -- for instance, one of the false swearing charges is whether or not he is signed the dismissal.

Now the Supreme Court has already examined that complaint.

They've had a rump session, they've had evidential hearing as to whether not his signature was genuine.

Chief Justice Warren E. Burger: Isn't it pretty clear that body of man is not ever going to hear any appeal on this -- I don't know on your client, through the New Jersey State system isn't that clear that there would be substitute judges?

Mr. Marvin D. Perskie: I don't know.

There hadn't been substitute judges in the application which was made for temporary leave to appeal.

Chief Justice Warren E. Burger: Does the system provides for that part?

Mr. Marvin D. Perskie: It provides for it, but it did not occur up to now as I say we have made two appeals.

Chief Justice Warren E. Burger: You have taken a number of steps that have retarded the state proceedings, have you not quite successfully?

Mr. Marvin D. Perskie: Well, the all the retardation of the criminal proceeding has been caused by the state since we have gotten the first effective order on our behalf in the Circuit Court of the Appeals.

All of our petition for recall or mandate for certiorari were initiated by the state of New Jersey.

If they had allowed the evidential hearing to go through that was originally scheduled over a year ago, this matter would not be resolved, but they are the ones who have taken the appeal.

It depends on whose ox is being gored.

When we were loosing, they appealed; when they are loosing, we are appealing.

This is the nature of the beast, but what is important is that there be a vindication of a substantial constitutional right in the state court and up to now we have not been able to vindicate that right, we have not even been able to get a hearing, not even an inquiry.

The courts have even refused to give us an inquiry.

If this is not extraordinary circumstances as these Circuit Court of Appeals has stated, it's hard to conceive where there would be an extraordinary situation, one extremely rare case.

This is it, and because it involves the coalecingly working together of two of the highest branches of government, the Supreme Court of a state and the Attorney General's office to deprive and to coerce and duress illegally, take away from a man a valid constitutional right.

This has never happened anywhere else, and I say again if we are successful here, I am sure will never happen anywhere again, but it has happened and to say that we can replace everybody in the court system like replacing all the blood in your body.

Once you have a disease, just putting a new blood doesn't cure the disease when the harm is already done.

I thank you.

Chief Justice Warren E. Burger: Mr. Baime.

Do you have any thing further?

Rebuttal of David S. Baime

Mr. David S. Baime: I would like to answer at least one question that was propounded.

In the state of New Jersey, the state of Supreme Court in State against Falco specifically is held that the coercion defense is not available with respect to a charge of false swearing.

Specifically, I refer the court to State against Falco which is cited at page 53 and 56 my brief.

Secondly, I would just like to reaffirm the principle that what respondent seeks here is immunity.

He can vindicate his rights, if there was a constitutional violation by an action for damages under the Civil Rights Act.

There are other remedies available as well as it was pointed out in a O'Shea against Littleton, specifically there are even criminal penalties which apply where there has been gross misconduct of a judge or a prosecutor.

Rather the respondent here is seeking an injunction which looks to the future and again we submit that the prospect of harm occurring or even assuming the truth of the allegations in the complaint in the inferences which we feel cannot be drawn, there is no likelihood of recurrence or repeat of this type of situation in the future.

Again, we submit that respondent's allegations as set forth in the complaint are nothing more than a mere academic exercise, the conceivable and the state should be permitted to try the case, and respondent's remedy assuming conviction is based on certiorari to this Court or habeas corpus.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.