Cases by Issue - Immunity from Prosecution

United States v. Balsys - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

United States v. Balsys

Media File:

97-873_19980420-argument.mp3

Related Transcript:

1997_97_873_argument.xml

Transcript:

Argument of Michael R. Dreeben

Chief Justice Rehnquist: We'll hear argument now in Number 97-873, United States v. Balsys.

Mr. Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

The question in this case is whether the Fifth Amendment privilege against compelled self-incrimination may be invoked based on a fear of foreign prosecution.

For three main reasons, we submit that it may not.

First, the prohibition against compelling a person to be a witness against himself applies only in a criminal case.

By that phrase, the Framers meant a Federal criminal case.

The Self-Incrimination Clause is one of a series of rights set forth in the Fifth and Sixth Amendments that are naturally read to govern criminal trials in this country, not foreign criminal cases.

Second, history teaches--

Unknown Speaker: Mr. Dreeben, in the Arndstein case the Court extended the privilege outside of the scope of a criminal trial, didn't it?

Mr. Dreeben: --That is correct, Mr. Chief Justice, in this respect.

The privilege may be claimed by a witness in any proceeding, regardless of whether the proceeding is civil, criminal, or administrative, so long as what the witness ultimately fears is incrimination in a criminal case.

The proper referent to determine whether the Self-Incrimination Clause may be invoked therefor is not the type of proceeding in which it is claimed in this country, but rather the type of proceeding in which the witness actually fears incrimination, and that point is borne out by the history of the clause.

Unknown Speaker: Mr. Dreeben, before you proceed further, would you tell me why 18 U.S.C. 1001 isn't in this picture?

It did involve a false statement to the United States, so why is it seemed to be conceded that there is no criminal case in the United States?

Mr. Dreeben: There could be, Justice Ginsburg, if these statements had been made within a period prosecutable under the statute of limitations, but the original statements that respondent made to gain entry to the United States were in 1963, and the general 5-year statute of limitations has long since run on any prosecution for false statements based on that event and, as a result, the witness is not in a position to claim a fear of domestic incrimination based on any contradiction with his prior statements and I think it's conceded in this case that the only claim of self-incrimination is based on what a foreign power might do if it had custody over respondent and instituted a case.

There is no claim in this case that there is a domestic fear of prosecution by either the State or the Federal Government based on the statements that he has made.

Now, the history of the Self-Incrimination Clause in this country points strongly to the conclusion that the words, any criminal case, in the Fifth Amendment refer only to a Federal criminal case.

In the era before this Court extended the--

Unknown Speaker: Wait.

You just told us that that refers to the case in which he is asked to testify, not the case in which he would presumably incriminate himself, right?

Mr. Dreeben: --I'm not sure, Justice Scalia, whether I was clear before, so let me try to make it clear.

Unknown Speaker: All right.

Mr. Dreeben: The case in which the incrimination must take place--

Unknown Speaker: Right.

Mr. Dreeben: --must be a criminal case, by which the Fifth Amendment in our view means a Federal criminal case.

The privilege can be claimed by a witness in any proceeding in which he is asked to give compelled testimony, not based on his concerns about what might happen to him in that proceeding, but based on concerns about what might happen to him in a criminal case down the road.

Unknown Speaker: I understand, but I don't understand how you read the phrase, in any criminal case.

No person shall be compelled in any criminal case to be a witness against himself.

Where is the compulsion?

Is the compulsion in the case in which I am summoned--

Mr. Dreeben: Yes.

Unknown Speaker: --to testify?

Mr. Dreeben: Yes.

The compulsion can be in the case in which you are compelled to give testimony under oath, as in this case, in our view, by a... backed by the contempt powers of the court if you decline to give testimony, so the compulsion can occur in any proceeding.

Unknown Speaker: All right.

Mr. Dreeben: But you need also to have incrimination.

The two interlinked requirements of the clause are compulsion and incrimination, and the question here is whether the incrimination can be in a case not brought in this country by the Federal Government or a State, but by a foreign Government.

That is the question before the Court in this case.

Unknown Speaker: And that's the implication in the latter part, to be a witness against himself, and a witness where is what we're debating.

Mr. Dreeben: That is exactly right.

The question is whether it can be triggered based on prosecution abroad.

Now, if you look at the text of the Fifth and the Sixth Amendments together, which is the logical way to read them because they contain the essential criminal procedure proscriptions that are applicable in trials in this country, the Fifth Amendment seems almost inevitably to be limited to criminal cases brought by the Federal Government.

There can be no dispute that the original intent of the Framers of the Bill of Rights was to impose limitations only on the Federal Government, not on the States, and this Court consistently held, in the era before the Fourteenth Amendment was ratified and thereby made certain constitutional protections applicable to the States, that none of the provisions in the original Bill of Rights govern State proceedings and, as a result, State witnesses could not claim the protection of the Fifth Amendment.

In that regime, in other words, State witnesses who feared incrimination by a State could not say that they feared incrimination in any criminal case, because State prosecutions were not deemed subsumed within the Fifth Amendment, and there are several textual references that make sense only if read that way.

The Sixth Amendment refers to all criminal prosecutions, yet it is quite clear that by that reference the Framers did not intend to refer to State criminal prosecutions, and far less sensible would it be to think that they were referring to foreign criminal prosecutions.

The only criminal prosecutions that were originally subsumed by the Sixth Amendment were domestic criminal prosecutions.

Unknown Speaker: But that goes to where the compulsion is, not to where the incrimination is, doesn't it?

Mr. Dreeben: No, Justice Scalia.

I think what it goes to is by what did the Framers mean the words, any criminal case, to refer to?

Originally they only meant them to refer to a Federal criminal case and, as a result, this Court held that if a Federal witness was compelled to testify, he said, look, I don't have any concern that I'm going to be incriminated in a Federal criminal case, but I am worried that in the State of Maryland I might be incriminated.

This Court held that is not a basis for declining to give testimony, because the criminal case in which you fear incrimination is not a Federal criminal case.

Unknown Speaker: That was before the Murphy decision.

Mr. Dreeben: That is correct, Justice Ginsburg.

Unknown Speaker: And why shouldn't it be that the concern is controlling the conduct of the Federal actor, whether a Federal agent, a police officer... if the amendment is directed against the compulsion, the action that is prohibited is compelling the testimony, why should it matter where the criminal case is instead of who is doing the compelling?

Mr. Dreeben: Well, Justice Ginsburg, it always has mattered where the criminal case is, and once this Court held in Malloy v. Hogan that the Fifth Amendment applied equally to the States and to the Federal Government, this Court in the Murphy decision changed the former Federal rule and held that the Fifth Amendment may now be claimed whether the prosecution that is feared would occur in a State or in the Federal Government.

The theory behind that is that any jurisdiction that is bound by the Fifth Amendment should not be able to receive testimony that was compelled by another jurisdiction, also bound by the Fifth Amendment, and use it to convict someone.

So under the Murphy decision two jurisdictions, each bound by the Fifth Amendment, cannot evade that constitutional guarantee by having one compel the testimony and the other one use it, but that is a value that primarily relates to the way we try criminal cases in this country.

Like the presumption of innocence and the requirement of proof beyond a reasonable doubt, the Fifth Amendment fits into a mosaic of rights that express the view that it is the Government that must prove the defendant's guilt without the assistance of compelling the defendant to incriminate himself out of his own mouth and thereby confess himself into a Federal or a State prison.

Unknown Speaker: Is there anything in our cases which would allow the respondent to make the argument that there is an additional protection in the Fifth Amendment Self-Incrimination Clause that it is simply degrading or destructive of the dignity of the person to be required to answer and to confess a crime?

Mr. Dreeben: I think that that is one of the components that this Court has identified as a value underlying the Fifth Amendment, but it again relates primarily to a value about how we prosecute individuals in this country.

It says nothing about whether another country might choose to adopt a different criminal law system.

Unknown Speaker: Well, but I'm not so sure, and do you get that out of Malloy or Murphy?

Where do you get this interest in individual dignity or autonomy?

Mr. Dreeben: Well, to the extent that one identifies an interest in individual dignity or autonomy, it does not extend so far as to say the Government cannot exert compulsion.

By granting immunity--

Unknown Speaker: Of course, because you can have immunity.

Mr. Dreeben: --That's correct.

The Government has always had the countervailing ability to grant immunity and then to compel an individual to say anything about himself that he knows honestly, no matter how offensive it is to him personally, no matter whether it would subject him to personal humiliation or jeopardy of life.

So long as it's not used against him, those words--

Unknown Speaker: Which leads me to think that there is no freestanding interest in just individual dignity, that it's... the only question is whether or not it can be used by the Government which is going to prosecute him.

Mr. Dreeben: --I think that that is exactly right, Justice Kennedy.

It is not a freestanding interest.

It's an interest that it is integrally interlinked with the potential for incrimination, and--

Unknown Speaker: Mr. Dreeben, can the Federal Government compel testimony that would incriminate someone in a State proceeding by giving him immunity from the State prosecution?

Mr. Dreeben: --Yes.

It's settled that the Federal Government has the authority under the Supremacy Clause to declare that testimony that is compelled will not be used against an individual in a State proceeding.

Unknown Speaker: In a State proceeding as well.

What case--

--What case settles that?

Mr. Dreeben: That I think is settled by the Kastigar decision, by the Murphy decision, by Brown v. Walker, and by Adams v. Maryland.

I believe we cited all of these cases in our brief that specifically address the Federal Government's power to do that.

Unknown Speaker: Mr. Dreeben, is it possible that the Federal Government, for example in this case the OSI, might want to cooperate with a foreign nation to see the individual prosecuted elsewhere and have a motive to--

Mr. Dreeben: Certainly--

Unknown Speaker: --secure the testimony to help the foreign prosecution?

Mr. Dreeben: --Well, I think in a case like this the Justice Department has dual interests.

There is a Federal law that provides for the deportation of an individual who lied to get into this country and who assisted the Nazis in persecuting Jews during World War II, and that is a distinct Federal interest that is being enforced by OSI.

It is also true that OSI regards it as a proper component of its mission to see to it that information that may be relevant to a foreign Government's consideration of prosecution is provided.

Unknown Speaker: Well, should that make any difference in our concerns about this case, if it's that kind of a situation?

Mr. Dreeben: I don't think it should make any difference whatsoever, Justice O'Connor, because the underlying question here is not whether it would be fair in a United States prosecution to use this information.

The question is whether the United States Constitution has something to say about the way foreign Governments conduct their prosecutions.

There is no country that I'm aware of that has a Fifth Amendment right, or a mirror image of the Fifth Amendment right that looks just like ours.

Unknown Speaker: Do foreign countries scratch our backs, too?

I mean, do we get people to testify before the courts of foreign countries that don't have Fifth Amendment protections, knowing that what they say can be used in a Federal criminal prosecution?

Mr. Dreeben: We don't, Justice Scalia.

My understanding is that we provide sufficient information to the foreign Government and ask them to provide information to a witness when we are seeking testimony from overseas about applicable privileges.

Now, the traditional rule about how the privileges are supposed to be applied when countries cooperate in securing testimony is that the foreign country will take the testimony subject to any claim of privilege, and then the privilege is adjudicated in the home country where the privilege actually derives from, but it is not--

Unknown Speaker: After the testimony is already taken.

Mr. Dreeben: --Right, but it is not the--

Unknown Speaker: After the cat is out of the bag.

Mr. Dreeben: --That is true, Justice Ginsburg.

It's not the policy of the United States Government to seek to... that that happen in every case and, as a result, I'm not aware of instances where we did have a foreign Government act as our agent, compelling testimony that would be prohibited if the United States were acting alone.

Obviously, that raises a somewhat separate question from the question here, which is whether the United States may use an agent or an intermediary to accomplish something that it cannot accomplish acting directly, but that is an entirely separate question from whether a witness in this country in a domestic U.S. proceeding may claim the Fifth Amendment based not on a fear of prosecution here, but by a fear of what might happen to him if he is... finds himself in a foreign country and the testimony ends up there.

Unknown Speaker: I take it, then, to your argument it makes no difference whether the foreign country is a country that has a comparable privilege, perhaps, or strata, or whether it's a country that's typical of a civil law system that would not?

Mr. Dreeben: It does make no difference, Justice Ginsburg, because again, I think that the fundamental concern of the Fifth Amendment and as applied to the States through the Fourteenth Amendment is how we conduct our criminal prosecutions here.

Unknown Speaker: Why is that?

That is, if... I'm thinking only of the Fourteenth.

I agree with you that, let's say hypothetically the Fifth is Federal.

They're talking about a Federal trial, but the Fourteenth uses the word liberty, and it protects a person's liberties.

So if there's a person in Ohio who would be deprived of a liberty by having his testimony taken and used in an Ohio proceeding, it would deprive that person of a liberty, so he must have a liberty not to have his testimony forced from him for Ohio.

Why is it different from Lithuania?

Mr. Dreeben: It's--

Unknown Speaker: I mean, the Fourteenth Amendment doesn't talk about what Ohio can do.

The Fourteenth Amendment talks about the liberty that a person enjoys.

Mr. Dreeben: --It's different because Ohio, unlike Lithuania, is bound by the Fifth Amendment privilege against compelled--

Unknown Speaker: Where does it say that in the Constitution?

I thought all that it says in the Constitution is that you cannot deprive a person of a liberty.

It says no State shall deprive a person of a liberty.

We're talking about a liberty.

What's the liberty?

Mr. Dreeben: --The liberty, I think, in your hypothetical is ultimately freedom from incarceration.

The question is whether Ohio may use the information that Illinois has extracted for purposes of prosecution, and this Court in the Murphy decision attempted to make sense out of our Federal system in which all jurisdictions are bound by the Fifth Amendment by saying that two jurisdictions who are equally bound by the Fifth Amendment cannot team up--

Unknown Speaker: Mr. Dreeben, may I just interrupt?

It isn't technically and strictly correct to say that the State is bound by the Fifth Amendment.

Mr. Dreeben: --No.

Unknown Speaker: It's bound by the Fourteenth Amendment--

Mr. Dreeben: That's correct.

Unknown Speaker: --which has a liberty protection which is somewhat comparable, or is comparable to the Fifth.

Mr. Dreeben: Well, I think--

Unknown Speaker: But strictly speaking the State is not bound by the Fifth Amendment.

Mr. Dreeben: --That is correct, strictly speaking it's not, but the Court in Malloy v. Hogan said, we are going to apply the Fifth Amendment to the States just as we apply it to the Federal Government.

Unknown Speaker: And when we say just as we apply it to the Federal Government, there is no case, with reference to the Fourth Amendment search rules, the Fifth Amendment self-incrimination or double jeopardy rules, or the jury trial rules in which the State protection is any greater or any less than is granted to... under the Federal... than is applicable to the Federal Government, is that not correct?

Mr. Dreeben: Once the Court has made the decision to extend the right in question to the States through the Fourteenth Amendment, that's correct.

Unknown Speaker: They are coterminous in each case.

Mr. Dreeben: They're coextensive, and the fundamental premise of the Murphy decision is that we do have cooperative federalism in this country when it comes to law enforcement, and it makes very little sense to say that once the States are no longer free to compel testimony under the Federal Constitution, that they may then operate together and achieve results that they couldn't achieve--

Unknown Speaker: Can I ask you about that, because I was just testing out the linguistic argument, that's why I was... Justice Stevens made the point linguistically, but I have a practical question, which is why... how specifically would extension of the protection that you oppose interfere with Government law enforcement efforts?

In particular, I'm thinking that it must be perhaps a fairly unusual case where, say, as here, the statute of limitations has run, 5 years, so there's no risk of domestic protection.

I'm guessing that in most cases anybody who can assert a Fifth Amendment privilege in respect to a foreign country probably could here, too, so I'm interested in... I'm raising that so you'll respond to the real practicality, how would extension really interfere with law enforcement efforts?

Mr. Dreeben: --The extension of the privilege to foreign prosecutions would seriously interfere with domestic investigations, because we cannot grant immunity from a fear of foreign prosecutions.

Unknown Speaker: Why don't you just say to the person you wouldn't deport him?

Mr. Dreeben: That has not been considered by most courts an adequate answer to concerns about the Fifth Amendment.

The Fifth Amendment is not... does not stand as a guarantee that depends on whether later events bear it out.

Unknown Speaker: But doesn't there have to be a realistic threat of prosecution, and if you say you're not going to deport him, then there's no realistic threat.

Mr. Dreeben: No, there may well be a realistic threat of prosecution because a foreign country may issue an extradition order to us, so we then have the discretion to say, well, we're not going to comply with the terms of our extradition treaty, but we then have to answer to the world community for our decision not to do that.

In a case in which, for example, an act of terrorism occurs abroad that involves citizens of foreign States, we may apprehend some of them, bring them to this country, learn that they fear domestic prosecution, and issue an immunity order which would ordinarily require them to testify, but they may say no, I'm sorry, I'm not going to testify because I still fear prosecution abroad.

Unknown Speaker: Well, isn't there considerable administrative difficulty in applying the rule sought by the respondent here?

Courts in this country are going to have to analyze whether the fear is realistic or not and really familiarize themselves with a number of different kinds of foreign law.

Mr. Dreeben: There are a number of practical implementation questions, Chief Justice Rehnquist, as you raise.

In the jurisdictions where a claim like this could be raised, courts will have to go through, as they did in this case, several bodies of foreign law and try to make appraisal of the realistic ability of a foreign government to prosecute, and that stands quite a bit in contrast to the domestic regime in which, once the privilege is raised, it stands as an absolute, except that the Government has immunity power, and the immunity power has always been viewed as essentially coextensive with the reach of the Fifth Amendment.

Unknown Speaker: Outside of a witness who is a defendant in a criminal trial, you have to show that there is a likelihood of incrimination in the answer.

You can't just say, I plead the Fifth Amendment, period, and automatically get off.

Mr. Dreeben: That is certainly true, but the way that the test is applied in the lower courts is not terribly demanding.

Normally, if a witness can identify a body of law under which he contends it's conceivable that he might be incriminated, he's not required to go much further than that.

Courts don't typically take in camera testimony to determine whether the answers would really be incriminating, and they don't typically ask whether the State or Government prosecution that is feared is really likely to happen.

It's generally enough simply to assert that there is testimony that would incriminate the individual and to identify a law under which that might happen, and the Government's next step is ordinarily immunity if it wants the testimony.

But immunity orders aren't going to work in this context, because we rarely are going to be able to guarantee that the immunity order will actually be coextensive with the scope of the privilege and prevent the use of the testimony overseas and, as a result, we may well be in situations where we're investigating serious terrorist activity, or interstate... international drug trafficking, money laundering, white collar crime, and we are helpless to attain our prosecutorial objectives because an immunity order simply doesn't work.

Unknown Speaker: Suppose that in this case or a similar case there were three grounds for deportation, each of them fairly substantial, so that you're going... you know you're going to be able to deport this man anyway.

If ground number 1 were lying on the application, could the Government say, we don't really need your testimony because we're going to be able to deport you anyway, but we want it in order to help Lithuania, or Israel, or some other foreign country?

Would that be a legitimate basis for the Government to compel the testimony?

Mr. Dreeben: As long as the Government has a law that it's seeking to enforce in that circumstance, I don't see any reason why the Fifth Amendment question would change.

Now, it is conceivable that if the Court were to hold that the United States were somehow completely in control of a foreign prosecution so that some foreign Government's prosecution were really nothing but a sham, a cover under which the United States were really the prosecuting entity, then the analysis might be different.

This Court had suggested that there might be an exemption to the traditional dual sovereignty rule under the Double Jeopardy Clause, which allows the States and the Federal Government each to prosecute.

If in a particular case a defendant could show that in reality the State prosecution was simply a cover for the Federal Government to take over and do it as a tool, the--

Unknown Speaker: Well, the hypothetical I put is a little different.

It's not that the foreign prosecution is a cover, but that the United States is very eager to assist the foreign prosecution.

That makes no difference in your view?

Mr. Dreeben: --I... no, that makes no difference, because the ultimate constitutional question is whether the criminal case in which incrimination is feared is a criminal case within the meaning of the Fifth Amendment.

Our essential position is that no foreign criminal case fits within the language of the Fifth Amendment, construed in light of its history and its policies and, as a result, it simply doesn't matter that the witness may say, I fear incrimination overseas because the United States may cooperate with a foreign government.

Now, again, the role of immunity statutes here, in our view, is key, because there has never been a time in this country in which a claim of the Fifth Amendment privilege could not be met by the Government seeking to get the testimony through granting immunity, but if this rule proposed by the respondent and accepted by the Second Circuit were adopted, it would mean that the United States would no longer be able to obtain needed testimony and it would put a witness who feared foreign prosecution in a better position than a witness who fears domestic prosecution.

Unknown Speaker: Of course, the Constitution would have had the same meaning, I suppose, if the Congress had never passed any immunity statutes.

Mr. Dreeben: The Constitution would have, and it would have meant that immunity statutes would be permissible if a legislature wished to pass them.

The historical fact is that, as the Fifth Amendment right developed in the common law in England, simultaneously it was recognized that testimony could be compelled if immunity was granted and, in the colonies in this country which adopted precursors of the Fifth Amendment privilege, immunity statutes were also enacted.

Now, the Federal Government didn't get into the business of enacting immunity statutes until about 1857, but I think that's largely explicable by the very small role of the Federal Government in prosecuting criminal cases in the early years of this Nation.

Unknown Speaker: Yes, but the Second Circuit's suggestion was that the Congress could pass statutes in the extradition and deportation area that are analogous to the immunity statutes in the domestic area.

It could thereby do just what the immunity statutes have done.

Mr. Dreeben: No.

Unknown Speaker: Why not?

Mr. Dreeben: It would do far more--

Unknown Speaker: Yes.

Mr. Dreeben: --Justice Breyer, because an immunity statute in this country grants the witness freedom from having his words used against him or the fruits of those words used against him.

It doesn't foreclose a prosecution altogether.

This Court in the Kastigar decision overruled the view that transactional immunity is required.

Unknown Speaker: No, no, but I mean, why couldn't Congress... what's wrong with the Second Circuit's suggestion?

Mr. Dreeben: Because the Second Circuit's suggestion in effect would grant transactional immunity.

Not only would the witness be free from having his words used against him, he would be free from any prosecution altogether, because if the theory of the immunity statute that the Second Circuit posited is correct, that witness can never be sent to the foreign country where he might be prosecuted, and that grants the witness something far more than he would have in the United States, puts him in a much better position than a similarly situated U.S. witness would be, and thwarts the foreign country's interest in prosecuting if it could do it without the defendant's words at all.

It is also anomalous because the Second Circuit's holding would grant a witness greater protection than he might have in the country to which he ultimately goes if he faces prosecution.

That country might not recognize a Fifth Amendment privilege in the same way or to the same extent as this country, and thus we have the anomaly that here the witness says, I don't want my words to be used against me because I fear prosecution in a foreign country, and then when he gets there that foreign country says, we'd now like your testimony.

There's no basis for using the Fifth Amendment to internationalize U.S. self-incrimination rules when foreign countries themselves may treat the same issues quite differently.

I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Dreeben.

Mr. Berzins, we'll hear from you.

Argument of Ivars Berzins

Mr. Berzins: Mr. Chief Justice, may it please the Court:

What the Government advocates defeats the policies and purposes of the privilege, as this Court has repeatedly said in all the cases that followed Murphy.

The Government wants to extract from my client testimony that is designed to impose criminal penalties on him.

They are trying to get him to testify without any grant of immunity, under naked compulsion, to extract out of him, out of his mouth the testimony that will inflict criminal penalties on him.

Unknown Speaker: Mr. Berzins, could the United States constitutionally compel your client to do something which would be criminal under the law of another country?

If it wanted to, could the United States pass a statute that says, if you do not do this you are committing a crime in the United States and will be put in jail, even though, under the law of another country, if he did what the Federal statute says, he would be subject to criminal punishment?

Mr. Berzins: Yes, Your Honor, the United States could pass such a law.

Unknown Speaker: Well, this is much less than that, it seems to me.

Here, what the United States would be compelling would not automatically subject him to criminal punishment somewhere else.

It would just allow in evidence somewhere else that might subject him to criminal punishment.

It seems to me that the greater includes the lesser.

It's a very strange system in which we say we can compel you to do something that will enable a foreign country to send you to jail, but we cannot compel you to say something which might be used as part of a criminal prosecution in a foreign country that might send you to jail.

Mr. Berzins: That is quite so, Your Honor, but I invite you to consider the cruel trilemma that faces the claimant to the privilege.

It is the cruel trilemma that I submit to you the Constitution prohibits.

Unknown Speaker: Well, Mr. Berzins, you know, we're bound under stare decisis by the holding of the Murphy case.

We're not bound to just accept every sentence in the opinion.

Mr. Berzins: Your Honor, Mr. Chief Justice, I submit to you that the Self-Incrimination Clause prohibits compulsion, and that the Framers had in mind precisely the compulsion that is about to be visited upon my client.

Unknown Speaker: No.

Well--

--It prohibits compulsion which incriminates.

That's the other half, and I think the Government... you have to agree, don't you... maybe you don't.

Don't you agree that the Government is correct that you're asking, really, for a superprivilege, because the Government is powerless to grant immunity in this case, and we know of... I know of no other case where the Federal Government is powerless to give an immunity when we have simply a State or a Federal prosecution under the Kastigar rule.

Mr. Berzins: Your Honor, I submit that the Government is not powerless to help itself if it really wants my client's testimony.

They certainly have the means of getting... either not deporting him or getting pardons or immunity from the States to which the Government wants to--

Unknown Speaker: Well, but a U.S. citizen can't ask for immunity in a civil action, which is the immunity you're suggesting that the Government must give your client.

Mr. Berzins: --Your Honor, my client is not asking for immunity.

My client is merely asking that he not be compelled to, out of his own mouth to admit to criminal... to admit to acts that will inflict criminal penalties upon him.

Unknown Speaker: You recognize, don't you, that if he does successfully plead self-incrimination, that could be used.

His refusal to answer could be used against him in the deportation proceeding, so his risk of deportation is enhanced if he refuses to testify, is that not so?

Mr. Berzins: Yes, Your Honor, that is quite so.

An inference can be drawn from his mere exercise of the privilege.

The cases have so held.

Unknown Speaker: I wanted... your client is now 85 years old, is that... is that right?

Mr. Berzins: He's very old, Your Honor.

My math fails me right now.

Unknown Speaker: But he's still with us.

Mr. Berzins: Yes, Your Honor.

The Government claims that it has no effective way to grant immunity.

I'd like to address that, if I may.

It seems to me that the Government has the means to address foreign governments and it has the means to enter into treaties and other arrangements that might be coextensive with the privilege, and also I submit to you that the compulsion is precisely what the Framers wanted to preclude by the very plain language of the amendment.

And the crux of this case, I submit to you, is on page 13 of the Government's reply brief where, in footnote 4, I believe, they very plainly admit... and I certainly thank them for this admission... that they do not have sufficient evidence to charge my client with anything, that they have to compel him to incriminate himself, that they have to compel him to confess before they can proceed.

Well, it seems to me that this is exactly what the Framers wanted to preclude.

Unknown Speaker: Well, they're not proceeding in a criminal action against him and apparently there's no prospect of that in the United States, isn't that correct?

Mr. Berzins: Your Honor, the cruel trilemma--

Unknown Speaker: Well, before we get back to the cruel trilemma, I mean, what's the answer to my question?

The... as I understand it they want to use this in a civil proceeding and so far as I can tell from anything you have said there is no prospect of a domestic criminal proceeding.

Are those two points correct?

Mr. Berzins: --Yes, Your Honor.

There is no prospect of a criminal proceeding in the United States, but I submit to you that it makes no difference where the criminal proceeding takes place.

The compulsion doesn't become any different whether the compulsion takes place in California and the criminal trial takes place in Calcutta.

Unknown Speaker: Well, you say it makes--

Mr. Berzins: It makes no difference to the claimant.

Unknown Speaker: --You say it makes no difference.

I don't have Kastigar in front of me, but my recollection is that Kastigar explained Murphy as being the result of the decision in Malloy, so that the theory, if I understand the Kastigar explanation, was in effect that we will recognize the privilege in order, in effect, to guarantee enforcement of Fifth Amendment rights in any jurisdiction in which Fifth Amendment rights apply.

Originally they just applied with respect to Federal prosecutions.

After Malloy they apply with respect to State prosecutions.

But the theory, as I understand it, after Kastigar remains that the enforcement was geared to preserving the right in a jurisdiction in which the Fifth Amendment applied and, if that's the case, then it seems to me we would have to modify the theory of the Fifth Amendment in order to recognize your position.

Am I wrong in my reading of Kastigar and in inferring the theory behind it that I just stated?

Mr. Berzins: No, Your Honor.

The theory in Kastigar, though, should be read in the context of Kastigar, where there was no claim of a foreign criminal prosecution raised.

It dealt with the State prosecution.

Unknown Speaker: Well, that's right.

I'm talking about Kastigar's explanation of Murphy in light of Malloy.

Do you think that was an incorrect explanation, an incorrect reconciliation of our cases, where we had gone from a regime in which the, a State... use in a State prosecution didn't count, to a regime after Malloy in which use in a State prosecution did count, and Kastigar explained it.

Do you think that the explanation was correct?

Mr. Berzins: Yes, Your Honor, I do in the context in which it was given, but I submit to you that Murphy can stand independent of the application of the Fifth Amendment through the Fourteenth Amendment to the States.

Unknown Speaker: But if it does, I guess, we've got to read criminal case in a very different way from the way we have read it before.

It's got to go... a criminal case has gone from Federal criminal case to State criminal case and on your theory it's got to go a step further, or we would have to adopt a compulsion theory, but that seems out of the question, because we routinely compel testimony if, in fact, the immunity can be granted.

So it seems to me we've got to come up with a brand-new theory of what a criminal case is, and we're going to have to reject the prior explanation in order for the case to come out your way.

Mr. Berzins: Your Honor, I submit that the case could come out as I advocate it if the Court adopts the view that the personal liberties component as explained in Murphy is a very important one, and that it cannot be brushed aside merely because the infliction of criminal penalties will take place elsewhere.

The fear is here.

The Article III compelling court is here.

The claimant is here.

All of this takes place in the United States.

It is just a coincidence that the criminal penalties will be inflicted elsewhere.

Unknown Speaker: Mr. Berzins, if the testimony were taken under seal would you have any... would you still object?

Mr. Berzins: Your Honor, I would, and I would object for the reasons stated by the district court in this case as well as in the Gecas case and, as I recall, the reasons were the sealing order really cannot be made coextensive with the privilege.

That has been recognized as a very difficult prospect in light of all the newspaper articles we read about grand jury leaks, et cetera.

And even more concern to me is what would happen if there is a sealing order, my client gets deported overseas, and then the leaks come out overseas.

Obviously there is no way that that situation can be remedied.

It's too late.

Unknown Speaker: But once your client is overseas... I don't know what the Lithuanian legal system is, but most systems have at best a muted self-incrimination guarantee compared to ours, so once he's over there the likelihood is that his testimony could be compelled, is that not so?

Mr. Berzins: Yes, Your Honor, but I submit we ought not be concerned with what the procedural systems are that might compel it.

I submit to you that we should be concerned with the compulsion here, not with what happens to the compulsion overseas.

We cannot help the compulsion that may occur in some other country.

The Fifth Amendment does not, I submit, protect against other compulsions and other disabilities and other harms, only against infliction of criminal penalties, and that, I submit, is what ought to be guarded against, and I submit that is a liberty interest that should be recognized as a very important one.

As I submit, the Murphy court in its explanation highlighted it very prominently, and on that basis I ask you to recognize it when the obvious fear of infliction of criminal penalties is real.

Mr. Chief Justice raised the question about administrative difficulties.

Thus far I do not believe administrative difficulties have been encountered in these cases, because the burden has always been upon the claimant to establish precisely what it is that he fears and what are the realistic chances of him winding up before a criminal court where the criminal penalties will be inflicted.

Unknown Speaker: Was this tried as an issue of fact in the district court, Mr. Berzins?

Mr. Berzins: Mr. Chief Justice, that was extensively handled in the district court, and it was... in each case it is a claimant's burden and it's a heavy one under the Flanigan case in the Second Circuit.

It's a whole litany of things that the claimant has to prove before he can have any chance of having the privilege recognized.

Unknown Speaker: Well, if there is a whole litany of things, it seems to me that that would make for administrative difficulties.

Mr. Berzins: But I submit to you that the difficulty is upon the claimant, not upon the courts.

Unknown Speaker: Well, but the fact that it may be a hard row for the claimant to hoe doesn't mean that that fact shouldn't be taken into consideration, because it's also going to be something that the district court probably has to spend a fair amount of time on.

Mr. Berzins: Admittedly, the district court may have to spend some time on it, but it's up to the claimant to bring to the district court every last piece of evidence on which he relies and which will establish his claim as being a legitimate claim as distinguished from a fanciful or contrived claim, and that burden is upon the claimant, and once the claimant establishes it, I submit the privilege ought to be permitted to be invoked, because the alternative is the cruel trilemma to which I must again return and urge you to recognize it from the standpoint of the claimant.

It makes no difference to him where he will spend his time in jail.

If the jail is overseas, or if the gallows are overseas, it's a criminal penalty from his point of view, and from his point of view the liberty interest is definitely infringed upon.

Unknown Speaker: Well, if it makes no difference I suppose he can just refuse to answer, and then he can spend his time in jail here.

Mr. Berzins: Well, Your Honor, I think you hit the nail on the head.

[Laughter]

But that does not minimize the constitutional claim that we're advocating.

We're advocating that this Court recognize the individual liberties component as it was so eloquently explained in Murphy, and I submit to you that individual liberties component, if it is recognized, as being a very important component of the privilege.

Unknown Speaker: Well, calling it an individual liberty doesn't make it any... doesn't change the wording of the Fifth Amendment, which is a privilege against self-incrimination, and I think... you know, worldwide, as Justice Ginsburg has suggested, that is not a universal... universally valued as highly as it is in this country.

So to call it individual liberty I think is perhaps an overstatement.

It's something that is in our Constitution.

It's a guarantee that we enforce in our courts, but to call it a liberty doesn't change what the Constitution says.

Mr. Berzins: Yes, Mr. Chief Justice, that is so, but this Court has in a long line of cases since Murphy reiterated this liberty aspect and used very, very strong language in saying that the liberty aspect of the privilege is important.

It's not--

Unknown Speaker: Of course, it's a liberty that he has while he's in this country.

If as Justice Kennedy suggested, a case in which the Government has two grounds for deportation, one that doesn't incriminate him and one that does, and say he's silent about the one that does but he gets deported on the other ground and he gets sent to Lithuania, and if Lithuania doesn't recognize this liberty, he would there be forced to testify against himself, wouldn't he?

Mr. Berzins: --That may very well come to pass, Your Honor, but nevertheless, while he is here, and while he is subject to an Article III court, that Article III court ought not compel him to convict himself out of his own mouth, not here in this country.

What happens in Lithuania, we can't control, but we can control--

Unknown Speaker: Well, he hasn't convicted himself out of his own mouth in our courts because he hasn't violated any United States criminal statute.

He has given testimony that may be useful abroad in a country that does not provide that particular liberty protection that we provide.

Mr. Berzins: --That is quite so, but the incrimination, the testimony coming out of the claimant's own mouth, that I submit violates the privilege, because he's being compelled here without a grant of immunity.

Every case where immunity has been granted, and the claimant has been forced to testify, the fear of the criminal penalties has been eliminated.

But if the fear of the criminal penalties is not eliminated, I submit that the violation is there regardless of where the infliction takes place.

It is the--

Unknown Speaker: You do acknowledge that it is kind of a superprivilege that he would have because of the absence of the immunity, the absence of the United States' ability to give... to immunize the testimony?

Mr. Berzins: --Your Honor, characterizing it as a superprivilege, I don't want to join in that characterization.

I would prefer to characterize it as giving full application to the privilege, not super.

It's really not super.

He is not... he is not... the claimant is not being given anything that he shouldn't have, because if his fear is legitimate, if the criminal penalties are there, I really don't see that it is superprotection.

I think it is the protection that the Framers had in mind.

Unknown Speaker: The Government is saying that, imagine ordinary drug dealers who somehow get into this country and if, in fact, it's a drug dealer from New York who's in Ohio, and Ohio wants to compel the testimony, Ohio can simply give use immunity, or... and it's possible that... and that person can't be prosecuted for what flows from that particular testimony.

But suppose the person, instead of coming from New York to Ohio, comes from some foreign country to Ohio, and now the Government is saying, well, we don't know what to do.

I mean, we'll never be able to get this testimony.

There's no way to deal with the foreign country.

The best we could ever do is not deport him, and if we don't deport him, that means he can never be prosecuted there for anything, though he might have been the worst murderer in this other country that anybody's ever seen.

Now, what's your response?

Is there a response to that claim of the Government?

Mr. Berzins: Your Honor, my response is that obviously there will be cases where the Government will not be able to either grant immunity or get the foreign government to cooperate in granting a pardon, or issuing its own immunity, or whatever.

There obviously will be cases, but I submit to you that those cases will be far and few, and they really ought not be what turns this issue.

Unknown Speaker: Why will they be few and far between, given, let's say, current international criminal behaviors which, you know, are all over the place?

Why won't it come up every day of the week?

Mr. Berzins: Well, Your Honor, I am... I am really prefacing my answer based on the past.

I have not seen that in the past it has arisen that often.

Maybe in the future it will, but in the past, these claimants who have made claim to the privilege under similar circumstances, the majority of them have lost.

Unknown Speaker: All right.

So in your view the Government can compel your client's testimony provided it says what?

A) We won't deport him.

B) We will deport him but not to this particular country.

C) We will get a promise from the foreign country that they won't use the testimony.

D) We'll get a promise from the foreign country that they will pardon him.

All right.

Any of those four would be sufficient, in your view?

Mr. Berzins: It seems to me that they would be if they are coextensive with what we would consider equivalent to immunity that can be granted here.

Unknown Speaker: Mm-hmm.

So then in your view there is no obstacle of a practical nature for the Government to getting any of those four things, or is there?

What are the natures of the obstacles?

Mr. Berzins: Your Honor, the obstacles will be practical and diplomatic, but I have a lot of faith in our Government.

They can do miracles, and if they have to they will accomplish them here also.

Unknown Speaker: I don't think you're going to rely on it being a miracle, because that would weaken your case considerably.

[Laughter]

Mr. Berzins: Is there anything else that I can be of assistance to this Court with?

Unknown Speaker: Apparently not, Mr. Berzins.

Thank you.

Mr. Berzins: Thank you.

Unknown Speaker: Mr. Dreeben, you have 2 minutes remaining.

Rebuttal of Michael R. Dreeben

Mr. Dreeben: Unless the Court has any questions, the Government waives rebuttal.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Doe - Oral Argument

Thu, 30 Aug 2012 22:15:00 +0000

Case:

United States v. Doe

Media File:

82-786_19831207-argument

Related Transcript:

82-786_19831207-argument

Transcript:

ORAL ARGUMENT OF SAMUEL A. ALITO, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments first this morning in United States against John Doe.

Mr. Alito, you may proceed whenever you are ready.

Samuel A Alito: Mr. Chief Justice, and may it please the Court, this case concerns the application of the Fifth Amendment privilege against compelled self-incrimination when a subpoena is issued for the standard business records of a sole proprietorship.

A federal grand jury in Newark, New Jersey, was investigating corruption in the awarding of county and municipal contracts.

The grand jury issued five subpoenas for the records, the standard business records of sole proprietorships operated by respondent.

These documents included records such as general ledgers, bank statements, telephone toll records, vouchers, invoices, in other words, wholly business records, and the sort of records kept by virtually every business, no matter what its size or form of organization.

When respondent argued that the act of producing these records would tend to incriminate him, the government offered in exchange for receiving the records not to use the act of production against him in any way in any subsequent criminal case.

Unidentified Justice: Mr. Alito, did the government ever explain to the court that it would give the statutory kind of use immunity?

Samuel A Alito: The government never made an offer of statutory immunity for a number of--

Unidentified Justice: Why not?

Samuel A Alito: --For at least two principal reasons, Justice O'Connor.

First of all, both of the lower courts in this case rejected the very concept of act of production immunity.

The district court held that even if such immunity were given and the evidence could not be used in any way against respondent in a criminal trial, he would nevertheless inevitably be incriminated in the eyes of the grand jury.

Unidentified Justice: Well, as I read the record, the government was just never clear at all that it would give statutory use immunity, and I wondered whether your position is that that's the appropriate way to proceed, if it is covered, if the act of production is covered at all.

Samuel A Alito: Well, Justice O'Connor, our position is that the non-statutory constructive act of production immunity that was offered in this case is sufficient, but we also believe that statutory immunity would be available for the act of production and would also be sufficient in this area, and if the Court were to make clear in deciding this case that such statutory immunity would obviate any Fifth Amendment objection, then I think we would have no serious objection to such a holding.

Unidentified Justice: Mr. Alito, is one of your submissions that production wouldn't incriminate at all in this case?

Samuel A Alito: We believe that here, as in Fisher, the act of producing the documents would not amount to testimonial self-incrimination.

Unidentified Justice: Is that one of your submissions here?

Samuel A Alito: That is one of our submissions, but, Justice White, we are not interested and never have been interested in the act of production, and therefore we are quite happy to give respondent immunity from any use--

Unidentified Justice: What do you mean, you weren't interested in the act of production?

Samuel A Alito: --We have no interest in using the act of production in evidence or any evidence--

Unidentified Justice: But you are interested in the materials.

Samuel A Alito: --We are interested in the materials, and we are interested in the issue of act of production only if it helps us get the materials.

Unidentified Justice: Well, both courts below thought the act of production would incriminate in this case.

Samuel A Alito: Well, we respectfully disagree with them, but I think--

Unidentified Justice: Well, we have to decide that issue here, don't we, whether it would incriminate or not?

We can't decide that you must offer statutory immunity unless it is incriminating.

Samuel A Alito: --I don't believe it's necessary to reach that issue.

Unidentified Justice: Why?

Doesn't the statute require that there be some threat of self-incrimination before the government can grant immunity or some claim made?

Samuel A Alito: Well, there certainly was a claim, and a colorable claim.

I don't believe--

Unidentified Justice: Here is the United States saying that the predicate for immunity is not present in this case, namely, incrimination, unless you are going to withdraw that.

Samuel A Alito: --We don't withdraw that submission, and if the Court wishes to reach that before reaching the issue of immunity--

Unidentified Justice: Wishes.

I would suppose we would have to.

Samuel A Alito: --Well, I don't believe that when statutory immunity, for example, is offered, it is necessary to fully adjudicate the legitimacy of the Fifth Amendment claim before immunity can be conferred, and I would suppose--

Unidentified Justice: Do you think the United States is free in the District Court to say, well, we are quite sure that there is no incrimination in this case, but even if there isn't, we will offer statutory immunity?

Samuel A Alito: --When there is a Fifth Amendment claim, I believe that is essentially what happens.

Unidentified Justice: Well, I guess the government could say, we are not sure whether there is a Fifth Amendment protection here, but if there is, we offer the immunity under the statute.

Samuel A Alito: That is my--

Unidentified Justice: That is fine, but that isn't your submission here.

You are sure there is no incrimination.

That is your submission.

Samuel A Alito: --That is our submission.

I think that because the lower courts found the colorable claim, the immunity issue could be reached first, but we have absolutely no objection to the Court reaching the issue of self-incrimination by means of the act of production first, because we firmly believe that that is not self-incriminating, for the same reasons, as in Fisher.

We think that the existence, possession, existence and possession of standard business records is not testimonial, and does not pose a real and substantial danger of self-incrimination in the case of sole proprietorships just as that is true in the case of corporations and partnerships.

Unidentified Justice: You would concede that it could be in some cases, would you not?

Samuel A Alito: Certainly, in special circumstances it could, but it is up to the claimant of the privilege to make it appear to the judge that those circumstances are present.

Unidentified Justice: Well, he did.

He did.

Both courts agreed with him.

Samuel A Alito: Well, he did, but we would submit that that was incorrect.

Unidentified Justice: I am a little puzzled by one thing.

Three times now you have, perhaps without emphasis, but at least I detected an emphasis, you have referred to the act of production.

Now, are you distinguishing between the act of producing and then the content of what is produced?

Samuel A Alito: Yes, we draw a very clear distinction between that--

Unidentified Justice: Of course, the only thing he is interested in protecting is the content of what is produced.

The act of producing doesn't... couldn't possibly incriminate him.

Samuel A Alito: --That is our submission, and I think it is crystal clear in these cases that the practical concern of the witnesses is solely the contents of the documents.

Unidentified Justice: But you concede that in some cases where, for instance, merely identifying the person who had the records and was able to produce them might cast suspicion on that person which hadn't existed before, that it is at least abstractly possible that the act of production might incriminate.

Samuel A Alito: It is abstractly possible, but I think when you are talking about standard business records, the kind of records that every company has, that it will seldom be the case that the act of production will amount to testimonial self-incrimination.

Unidentified Justice: Well, what of his uncertainty about who owns the company?

Yes.

Maybe you don't... The subpoenas themselves are not in the record.

At least I haven't seen them, I don't think.

Are they?

Samuel A Alito: The subpoenas are in the appendix to the petition.

Unidentified Justice: And do they identify the name of the person and the names of the companies?

Samuel A Alito: They do in their original form.

They are redacted in the petition.

Unidentified Justice: Suppose the government knows there is a silent partner involved in some shady enterprise but doesn't know who it is.

They know it may be one of ten people, and they know that the silent partner is reputed to have the records, so they simply issue subpoenas for the records to each of the ten suspects.

Samuel A Alito: I think this is possible in certain cases, but there is no question in this case about who owns these companies.

When this case was first argued in District Court, respondent came in and said, these are my companies, and they are sole proprietorships, and the government and the District Court accepted that for purposes of argument.

So there is no issue here about who owns the companies and who is in control of the records.

Unidentified Justice: But if he produces them, if he produces them and you want to use them at trial, would you have to further authenticate them?

Samuel A Alito: Yes, if--

Unidentified Justice: Why would you?

He produced them.

And isn't the inference that they are his records, and were prepared under his authority?

Samuel A Alito: --Well, I believe they could easily be authenticated by numerous other means.

Unidentified Justice: That is not my question.

Would you have to offer further authentication?

Samuel A Alito: We would have to authenticate them in some way at trial.

Unidentified Justice: Well, would it be enough to say he produced them in response to our subpoena?

Samuel A Alito: It would be sufficient to authenticate them.

It would not--

Unidentified Justice: Exactly.

It would.

Samuel A Alito: --It would not necessarily be sufficient for their admission as an exception to the hearsay rule.

Unidentified Justice: Well, that is another question.

Typically, that would be stipulated to, if it has been produced under a subpoena.

You don't go through a long formality about authentication, do you?

Samuel A Alito: No, I don't believe you do.

I think that is just our point.

Authentication is not a substantial barrier under modern law to the admission of standard business records, and it is essentially a fiction to argue that the unprivileged contents of these records should be blocked, that the grand jury's access to these unprivileged contents should be blocked based upon this largely academic argument that the act of production would amount to tacit authentication, and would result in self-incrimination of the sole proprietorship.

Unidentified Justice: Well, if it is largely academic, why don't you just tender him immunity for any use of the act of production?

Samuel A Alito: Well, that's what we attempted to do, Justice Stevens.

Unidentified Justice: Well, you didn't attempt to do it.

You made no tender in a formal way.

You didn't ask for statutory--

Samuel A Alito: We did not ask for statutory--

Unidentified Justice: --What in the record supports what you are telling me, that you actually made a clear... The district judge, as I read it, was trying to figure out what the government was willing to do and never got a clear, unambiguous statement.

Samuel A Alito: --The district judge felt that our immunity offer was insufficient because he believed that incrimination in the eyes of the grand jury was sufficient to invoke the Fifth Amendment privilege.

We disagree with that, and for that reason, he disagreed with the entire concept.

Unidentified Justice: But you never offered immunity from that particular exposure.

You thought it was unnecessary.

You may be right, but... If your position is that this is all academic, it seems to me you can solve the problem by giving him statutory immunity.

Samuel A Alito: If the Court were to make it clear that we could do that on remand, we would be entirely satisfied.

We believe that non-statutory immunity here is appropriate because of the special circumstances of act of production, but if the court were to make it clear that statutory immunity would obviate respondent's Fifth Amendment claims, that would be wholly satisfactory to us.

Unidentified Justice: But why wouldn't it?

I mean, in a direct Fifth Amendment case, doesn't that solve the problem?

Samuel A Alito: I think it--

Unidentified Justice: I just don't understand the position at all, I confess.

Do you think the District Court... As I understand your submission, even if you had formally offered statutory immunity, the District Court would not have required the records to be produced because the immunity wouldn't effectively replace the privilege.

Is that right?

Samuel A Alito: --That was certainly the logic of his position.

Unidentified Justice: It was the logic, except that he didn't have to rule on that against the... in the face of an offer of statutory immunity.

Samuel A Alito: Well, we did not offer statutory immunity.

Unidentified Justice: That's right.

Samuel A Alito: We did not offer it in large measure because it was unclear that either of the courts below would have construed an offer of statutory immunity as limited to the act of production, because both courts felt that there were serious problems with the concept of act of production immunity.

Unidentified Justice: Wouldn't it have been easier to have offered it and had it refused?

Samuel A Alito: In retrospect, Justice Marshall, it might have been.

It might have been easier.

We didn't--

Unidentified Justice: Well, you want us to retrospect you back and give you another bite.

On this question of the act, you say that simply because these are ordinary business records, the act of production doesn't involve anything?

Samuel A Alito: --I think that's correct, Justice Marshall.

Unidentified Justice: Well, do you know of any IRS cases that were decided solely on regular business records?

I mean, how many millions, do you think?

Samuel A Alito: I am not sure I understand the question.

Unidentified Justice: Many IRS cases are decided solely on payrolls, for example.

Samuel A Alito: That's true.

Unidentified Justice: So the act of production does incriminate you, doesn't it?

Samuel A Alito: Well, perhaps I am not making--

Unidentified Justice: I mean of producing ordinary records.

Samuel A Alito: --The act of producing certain documents in certain situations may well be incriminating.

Our position is I think essentially what you said in concurrence in Fisher.

You said that the existence of corporate records is not in doubt, and therefore conceding the existence and possession of those records is not testimonial, and the same must be true of partnership records in light of Bellis, and we would argue the same would be true of the standard business records of a sole proprietorship.

There simply is not a rational basis for drawing a distinction between these forms of business units on this ground.

If it is a foregone conclusion that corporations have general ledgers, for example, it is equally a foregone conclusion, I would submit, that a sole proprietorship has such document, and the logic of that position means that in the case of a subpoena for standard business records, regardless of the form of company involved, this... the act of production would not amount to testimonial immunity... it would not amount to testimonial self-incrimination.

Unidentified Justice: Well, it wouldn't be necessary to prove that it had some general ledgers, but it would be necessary to show that these were the particular general ledgers that this company had.

Quite a difference, it seems to me.

Samuel A Alito: But in honoring the subpoena, the witness is not vouching for the accuracy of the contents of the documents.

He is simply saying, I have these documents--

Unidentified Justice: Well, he is saying, these are the documents described in the subpoena, and then up until now they have been in my custody.

That is what he is saying.

So you are not going to argue about that after the documents are produced.

Samuel A Alito: --If there is some question about whether he has possession of the documents, then I suppose the act of production would be incriminating, but in the case of standard business records, where it is a foregone conclusion that the company has those records, I don't think it amounts to testimonial self-incrimination.

But in any event, that was not the point that I intended to press here this morning.

The point that we want to make clear is... that we would like the Court to address is that a person in respondent's position has no basis for asserting a Fifth Amendment claim based on the act of production when act of production immunity is tendered.

Now, if that argument is self-evident, that--

Unidentified Justice: I take it you hope that this is the only trouble we are going to have with your submission.

Samuel A Alito: --I certainly hope so.

Unidentified Justice: Well, you don't need the Supreme Court of the United States to tell you that.

Samuel A Alito: Well, many of the lower courts have had difficulty with that problem.

In this case, the Court of Appeals held that the contents of these documents were privileged.

Unidentified Justice: That is the major issue here, I take it.

And that is really what you want reversed, isn't it?

Samuel A Alito: That is the principal thing that we want reversed.

Unidentified Justice: I guess we should let you argue that.

Samuel A Alito: All right.

0 [Generallaughter.]

On the question of the contents, whether the contents of the records are privileged, we are really asking the Court to do nothing more than follow its reasoning and its holding in Fisher.

The Fifth Amendment, the Court has held, applies only when a witness is compelled to make a testimonial communication that is incriminating.

As the Court made clear in Fisher, when a document is voluntarily prepared before a subpoena is issued, obviously, no one compels the production of the document.

A subpoena that is later issued for the document may compel the witness to turn over the document, but it does not compel the witness to restate or reaffirm the contents of the document, and therefore the contents of the document as distinct from the act of production do not constitute compelled testimony, and they fall outside the privilege.

Now, I would quickly add that there are undoubtedly certain highly personal documents... a diary is perhaps the best example... that may well be protected by other provisions of law, the Fourth Amendment or the First Amendment, but not by the Fifth Amendment privilege against self-incrimination, which applies only when a witness is compelled to make a testimonial communication that is incriminating.

The Court of Appeals and respondent attempted to distinguish Fisher on two grounds, authorship and ownership of the papers, and we think neither of these distinctions make sense either under Fisher's reasoning or under a protection of privacy rationale taken from Boyd.

Under Fisher, of course, what matters is whether the documents were voluntarily created, not who created them and not who owned them.

Fisher expressly rejected the idea of authorship as a distinguishing factor, and the idea of ownership as a sufficient basis for claiming the privilege had earlier been rejected in Couch, where the Court wrote,

"To tie the privilege against self-incrimination to a concept of ownership would be to draw a meaningless line. "

"It would make the privilege turn on fine distinctions of property law. "

Even under a protection of privacy rationale taken from Boyd, these ideas of authorship and ownership don't make sense.

A person may well have a far greater privacy interest in a document he did not write than in one he did write.

A letter written by a relative or close friend may be far more private to the witness than a cancelled check that he himself wrote to pay last month's gas bill.

Unidentified Justice: Would there be anything left of Boyd for a diary or private letter?

Samuel A Alito: We believe that certain highly private documents might well be protected by other provisions of law, but not by the Fifth Amendment, and insofar as Boyd stands for the proposition that private papers voluntarily created are protected by the Fifth Amendment, there would be nothing left of that... of that rule, which, as we tried to argue in our brief was never the rule of Boyd in the first place.

The same thing that is true for authorship is true for ownership.

One does not necessarily have a greater privacy interest in something that one owns than in something else.

A diary belonging to a relative or close friend may be far more private than a document of a relatively trivial nature belonging to the witness himself.

And even if the Fifth Amendment privilege did protect private papers, as Justice Brennan argued in his concurrence in Fisher, it is abundantly clear that most of the documents in this case are not private papers.

They are papers of a wholly business, non-personal nature, and they are not papers that respondent kept private.

They are papers that were exposed to other persons at various times.

Unidentified Justice: May I ask you a question about... I must confess, I had some difficulty following part of the government's brief.

I just don't read the Court of Appeals as having held, as I think you seem to assume, that these business records are protected themselves.

There were no testimonial act in the producing of them.

Do you think that they held that all of these documents are protected by the privilege?

Samuel A Alito: I think they did, Justice Stevens.

If you--

Unidentified Justice: Where in the opinion do you find that?

As I understood them, they were rejecting the argument that a private sole proprietor is totally outside the Fifth Amendment just as a representative of a corporation or partnership is, and that's all they held.

Samuel A Alito: --On 14A of the Appendix, Gould, which is one of their prior cases, then stands for the proposition that an individual's business papers cannot be subpoenaed by a grand jury.

Unidentified Justice: I am sorry, 14A?

Samuel A Alito: Fourteen A of the Appendix, the last sentence of the first partial paragraph at the top of the page.

The Appendix of the petition.

Unidentified Justice: They are describing what they think Gould--

Samuel A Alito: Gould is one of their prior cases.

Gould stands for the proposition that an individual's business papers as well as his personal records cannot be subpoenaed by a grand jury, and there is a footnote in which they discuss--

Unidentified Justice: --But that is in the section of the opinion in which they are addressing the question whether the act of production is a testimonial act.

That is in Part B of the opinion.

Samuel A Alito: --I don't think that's true, Justice Stevens.

Unidentified Justice: You don't think it's in Part B of the opinion?

Samuel A Alito: They are continuing to discuss their holding in the Johansen case, which held that the contents of an office diary were protected by the privilege, and they extend that--

Unidentified Justice: Well, there they are talking about whether the act of producing those papers is protected, I respectfully submit.

Samuel A Alito: --Well, if they held that the contents are privileged, we would argue that they are wrong.

Unidentified Justice: Yes, if they held that, they would obviously be wrong.

Samuel A Alito: If they did not hold that, then I think it was certainly not clear to us--

Unidentified Justice: If they didn't hold it, there isn't anything we need to decide.

That is all I am suggesting.

Samuel A Alito: --Well, I think that it is unclear, and certainly respondent believes that they held that the contents are privileged, so--

Unidentified Justice: If I were respondent, I would be so arguing, of course.

Samuel A Alito: --In any event, our position is then that the contents are not privileged, and the only issue remaining is whether our offer of act of production immunity was sufficient.

We believe that non-statutory act of production immunity here was adequate, and I believe that our position finds support in Murphy versus Waterfront Commission, which held that testimony given under a state grant of immunity may not be used in any other jurisdiction, including in federal court.

This means in effect that state courts are empowered to give non-statutory federal use immunity.

No federal statute confers upon them the authority to do that, and their state statute, I would think, could give such authority.

They compelled the witness over objection to testify, and his testimony thereafter is automatically immunized.

We think it would be appropriate for the federal courts to do this in the limited area of act of production immunity.

On the government's motion, the courts would order witnesses to produce documents over objection if the act of production would be incriminating, and the act of production thereafter would be immunized.

This would be essentially what takes place now, when state courts grant immunity under their own statutes or procedures.

Unidentified Justice: Why wouldn't the government feel it had to follow the statutory procedure?

I guess that's what I don't understand.

Samuel A Alito: We don't have serious objections to following the statutory procedure, but we don't think it is necessary.

We think the non-statutory procedure is more convenient since subpoenas for documents are an everyday occurrence, unlike requests for testimonial immunity.

Unidentified Justice: Will you refresh my recollection, Mr. Alito, on the source and nature of non-statutory immunity?

Is it just the right of every assistant U.S. Attorney to tell the judge that is trying the case that the government won't use this person's testimony if he is ordered to testify over the claim of privilege?

Samuel A Alito: I think that the executive has the authority to seek the admission of relevant evidence.

I don't think there is anything in the immunity statute that rules out non-statutory act of production immunity.

Unidentified Justice: Why did you ever need a statute?

Samuel A Alito: I think--

Unidentified Justice: The reason was, I suppose, that the courts kept excluding the evidence, absent a grant of immunity.

Samuel A Alito: --I think there were two reasons for the long string of statutes for immunity for actual testimony.

One was that when these first started to be enacted beginning, I think, in 1863, most of the questions that have now been answered about immunity were still unanswered, about the scope of immunity, the circumstances in which a witness was required to claim the Fifth Amendment privilege, and so forth, and so the statutes were an attempt to address those questions, and of course it took a long time to sort out the answers.

The other reason is that in the case of immunity for testimony, at least the procedures that have almost invariably been built into the statute worked to protect the government, because of the serious taint problems that can arise when immunity is given for testimony.

The statutes require--

Unidentified Justice: It certainly leaves the witness in some quandary, doesn't it?

Samuel A Alito: --I don't see--

Unidentified Justice: If he doesn't have to be offered immunity, and he just has to guess whether his testimony could be used against him in a criminal case?

Samuel A Alito: --I don't think he is in any more uncertainty than he is when a state court orders him to testify under a state immunity.

Unidentified Justice: So the government really wouldn't object if a judge just said, don't worry, Mr. Witness, I guarantee you that any of these... any of your testimony or none of these papers can be used against you in a criminal--

Samuel A Alito: We would have serious objection in that case, because--

Unidentified Justice: --I would think you would.

I would think you would.

Samuel A Alito: --it was not done upon our motion.

Unidentified Justice: I would think you would want to be in control on immunity issues.

Samuel A Alito: We are equally in control whether we request non-statutory immunity or statutory immunity.

Unidentified Justice: You say a judge can't do it on his own without the government requesting it.

Samuel A Alito: No, this is not a case like Goldsbury versus Convoy last term, where immunity... where the court was asked to give immunity without the government's participation.

We asked for it here.

There is no question of--

Unidentified Justice: Well, would that estop him from changing--

--So if a judge says, I am not going to pay any attention to you, Mr. Attorney General, until you... if you come up here and offer statutory immunity, that is another question.

That may be all right.

But--

Samuel A Alito: --Well, District Court judges generally do not require the Attorney General to appear in person to--

Unidentified Justice: --No, I know that, but I can call the U.S. Attorney the Attorney General if I want to.

Samuel A Alito: --No, but my point, Justice White, was that this is purely a matter of internal management in the Justice Department.

In any event--

Unidentified Justice: There is quite a difference between granting the immunity and accepting a U.S. Attorney's prediction that this testimony would not be admissible.

Samuel A Alito: --I would submit it is not a prediction if the judge orders the witness to testify over a Fifth Amendment objection, and I think it is settled, and I think you said it more clearly than anyone else in Manness versus Meyers, that the testimony thereafter may not be used.

In fact the term "functional immunity" was taken from your concurring opinion in Manness versus Meyers.

Unidentified Justice: Yes.

Samuel A Alito: We felt that under Third Circuit precedent especially statutory immunity was not necessary here, but as I said, and can't make too clear, we think the important question is the principle of act of production immunity, and if the Court were to make it clear that that is sufficient in a case like this, that would be wholly satisfactory.

I would like to reserve the rest of my time.

Chief Justice Warren E. Burger: Mr. Philips.

ORAL ARGUMENT OF RICHARD T. PHILIPS, ESQ., ON BEHALF OF THE RESPONDENT

Richard T. Philips: Mr. Chief Justice, and may it please the Court, I would submit that this case boils down to an impermissible attempt by the government to use investigative techniques that are not constitutionally sanctioned.

What the government has done in this case is rather than go out and do the footwork necessary to conduct an investigation, to secure the documents necessary in the course of that investigation, they have served on the target of the investigation a grand jury subpoena requiring him to produce his personal financial records as well as the financial records of several sole proprietorships which the government intends to use against him at a later date in a criminal trial.

I suggest to the Court that this is impermissible, and the Court should not sanction this type of investigative technique.

These five subpoenas served upon my client were immediately objected to in the District Court by a motion to quash.

In the District Court, the government made several major concessions.

First, they stipulated that my client was a target of the grand jury investigation, and second, they stipulated that the documents that they sought would or may incriminate my client.

The District Court quashed the subpoenas, using the rationale of this Court's decision in Fisher, finding that the subpoenas compelled a testimonial communication--

Unidentified Justice: Mr. Philips, do you have at your fingertips the citation in the record before us to the stipulation of the government as to the incriminating nature?

0....

If you don't have it, I didn't mean to interrupt your argument to that extent.

Richard T. Philips: --It is at Page 21 of the Joint Appendix, Your Honor.

Unidentified Justice: Thank you.

Richard T. Philips: The court asked the government,

"Do you also concede that the documents which you seek will or may incriminate my client? "

The Assistant United States Attorney answered, "Yes, Your Honor".

So the stipulations that the government made in the District Court, Number One, that my client was a target of the investigation, and Number Two, that the documents sought would or may incriminate him, I suggest to the Court are extremely important.

The District Court quashed the grand jury subpoenas using this Court's rationale in the United States versus Fisher, finding that the subpoenas compelled a testimonial communication that was in fact incriminating.

There was little discussion about compulsion, and little discussion about the incriminating nature of the testimonial communications, since the--

Unidentified Justice: Was the ruling of the District Court, Mr. Philips, based on the notion that the act of production would incriminate as opposed to the contents of the documents?

Richard T. Philips: --That is correct, Your Honor.

That was the ruling of the District Court.

When the case got to the Third Circuit, I believe the Third Circuit expanded and discussed the protection of papers rationale as set forth in this Court's opinions from Boyd to the present.

Unidentified Justice: I don't take it the government denies that the contents of the documents would incriminate.

It is just not compulsory.

Richard T. Philips: No, I don't believe the government denies that the contents would incriminate.

Unidentified Justice: Exactly.

So the stipulation, I would... if you just ask, will these papers incriminate, I would think you would say yes, which is exactly what the government says.

Richard T. Philips: Yes, I believe that's correct.

Unidentified Justice: So you still have the question, though, would it be compulsory self-incrimination, and the government's argument is that when you produce papers pursuant to subpoena that have already long before the subpoena issued been compiled, the subpoena doesn't compel you to record what you record in those papers because you recorded it beforehand.

Richard T. Philips: I understand that, but the subpoena does compel you to produce those records, and I don't understand how the government can separate the contents of the records from the act of production.

If we discuss the immunity that the government offers as to the act of production--

Unidentified Justice: Let's go back just a minute to the act of production, because I understood the earlier discussion between Mr. Alito and members of the bench to focus on the idea of the act of production as being a separate incriminating act quite apart from the contents of the papers.

The mere fact that you had these records, whatever the records may have said, might tend to incriminate you.

Now, I gather from what you just said that you look upon the act of production as being able to relate back to the contents of the papers in some way.

Do you?

Richard T. Philips: --Yes, I do, Your Honor.

I don't see how you could separate the contents of the papers where the government says the contents are incriminatory.

Unidentified Justice: Under Fisher, that is just not compulsory self-incrimination.

Maybe it is self-incrimination, but it is not compulsory, because the papers were compiled long ago.

Richard T. Philips: But it is not the compulsory self-incrimination.

It is the compulsion to produce those records which we object to.

It is the self-incrimination that the government stipulates is contained within the contents of the documents.

Unidentified Justice: Mr. Philips, what if you were given statutory immunity, your client was, that nothing could be... no adverse inference of criminal conduct could be drawn from the act of producing these documents?

Richard T. Philips: If statutory immunity were offered in this case, if it were conferred, I believe we would be at a different stage.

First, I would argue... First, I would have no legal objection to the conference of immunity.

The District Court would grant the immunity as requested by the government.

The only objection that possibly could be made is, is the immunity that is being offered under the statute coextensive with my client's Fifth Amendment privilege.

Unidentified Justice: Well, supposing it clearly covered everything relating to the production, but did not cover the government's ability to use what was found within the documents.

In other words, it would allow them to treat them as though they found them out in the park somewhere.

Richard T. Philips: Then I would argue that that is not coextensive with my client's privilege.

Unidentified Justice: And my question is, why not?

Richard T. Philips: It is not coextensive with the privilege because I cannot separate the contents of the documents from the act of production.

If the government is seeking to immunize the act of production in a case like this where the existence of the documents has not in any way been demonstrated by the government, the immunity must also extend to the fact that those documents are in existence, and if it extends to the fact that those documents are in existence, it must necessarily extend to the contents of the documents.

I don't understand how the government can separate them.

If the documents are in existence, and if the government has no... if the documents are in existence, the government has no indication that they are in existence, then the immunity must extend to the existence of the documents, which necessarily has to cover the contents.

So therefore--

Unidentified Justice: Isn't it true that the Fifth Amendment only protects compelled testimony concerning the existence of the documents?

There is nothing in the Fifth Amendment about existence of evidence that is protected.

Richard T. Philips: --I believe the Fifth Amendment protects compelled production of incriminatory documents, and where the existence of the document is unknown to the government, to immunize only the act of production without immunizing the fact that the documents are in existence is not coextensive with my client's Fifth Amendment privilege.

You must immunize also the contents.

The use and derivative use of the act of production must cover the contents of the documents in order for the immunity to be coextensive with the privilege.

Unidentified Justice: That certainly isn't what Fisher was based on.

I just don't see how you can make that argument.

I don't either.

Richard T. Philips: That is my understanding as to the testimonial nature of the act of production as discussed in Fisher.

In Fisher, the Court found that the act of production was non-testimonial, because there the documents were... it was a foregone conclusion that the documents were in existence.

Here there has never been any conclusion or indication that these documents are in existence.

In fact, the Third Circuit found that this is an attempt by the government to link up my client with these proprietorships, and that the government has no indication and has come forward with no evidence that these documents are in existence.

Unidentified Justice: But that shifts over again to the act of production type of self-incrimination compelled that we were talking about during the government's case.

Why don't you go back to Justice Stevens' example of what if the government agreed in this case that all connection between the production and location of these documents and your client would be immunized, but nonetheless the government would be free to use the contents of the documents against your client.

Richard T. Philips: Only if they agreed that the existence of the documents, the very existence of the documents would be immunized would I then say that the immunity that they are offering is coextensive with--

Unidentified Justice: Well, why would your client say that the very existence of the documents would tend to incriminate him?

Richard T. Philips: --Because of the government's own stipulation that the contents tend to incriminate him.

I cannot separate the contents from existence.

Unidentified Justice: That is just contrary to Fisher, in my view, your position.

Richard T. Philips: In any event, the point is that the government never did use the statutory immunity which they had the right to in the District Court, and I suggest to this Court that the reason they did not use that statute was because they themselves were unsure of what was to be immunized.

My argument today, briefly outlined, is that first of all, my client is entitled to the privilege on the protection of papers rationale based on this Court's cases from Boyd through Fisher and including Andresen.

If not under the privacy rationale and the protection of papers rationale of those cases, then the compelled production of these documents in this case would amount to a compelled testimonial communication which is incriminatory as the Third Circuit and District Court found, and that based on that, his Fifth Amendment privilege would be valid.

The government rests their argument completely on Fisher.

They pick and choose language from Fisher and disregard the context that that language is used.

The government ignores the factual background of Fisher that there, the documents that were being sought were being sought from attorneys, they were not the taxpayers' records.

There was no compulsion upon the taxpayer in that case, and in fact the records were not his, but they were the work papers of the accountant.

In numerous cases, this Court has recognized that the privilege belongs to the individual.

In Wilson, the Court held that a corporation had no privilege, but the Court carefully distinguished the situation where an individual was involved.

In White and Bellis, I suggest the same distinction between a separate entity and an individual was made.

In each of those cases, the Court was very careful to distinguish that the rights of an individual not to be compelled to produce incriminating private papers.

I suggest to the Court in those cases the Court was faced with a policy decision of whether there was an overriding governmental interest that the government had to seek access during the course of its investigations to the records of a collective entity.

The Court found that there was because of the scope of the economic activity of a corporation or a labor union or a partnership.

Here, the Court is faced with a somewhat similar policy question, but here, there is no overriding concern or governmental interest to seek the records of a sole proprietor.

There is no mass abandonment of a... or there would be no mass abandonment of the corporate form of doing business or the partnership form of doing business to become a sole proprietor.

There is no large scope of activity of sole proprietors that... The government makes a distinction between business and personal records.

I submit to the Court that that distinction is invalid, that the only distinction that this Court has that finds support in the cases of this Court is the distinction between an individual and a representative of a collective entity.

There can foresee endless litigation over particular documents whether they are business or whether they are personal.

In summary, I would urge this Court to affirm the decision of the Third Circuit.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Alito?

You have three minutes remaining.

ORAL ARGUMENT OF SAMUEL A. ALITO, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Samuel A Alito: I have just two very brief points.

The first is to emphasize that in this case we are not asking enforcement of the subpoenas.

The subpoenas were quashed below, and if the Court were to vacate that decision or otherwise make clear that we would be free on remand to grant statutory immunity, our interests would be substantially served.

And the second point is just a point of clarification.

We are not pressing the argument of non-statutory immunity in the case of immunity for testimony, but only in the very limited area of act of production immunity, where we think that the argument about the incriminating nature of the act of production is essentially academic, and where there are no serious taint problems.

Unidentified Justice: May I... I am puzzled.

You are not asking for enforcement of the subpoenas?

Samuel A Alito: No, the order below... the District Court quashed the subpoenas.

The Court of Appeals affirmed--

Unidentified Justice: And you say... Well, then why isn't the case moot?

Samuel A Alito: --The case is not moot because what we are... we are not asking for anyone to be held in contempt.

I suppose that is what I am attempting to say.

Unidentified Justice: Are you asking for enforcement of the subpoenas?

Samuel A Alito: We are asking for the judgment to be vacated below, and the judgment below merely quashed the subpoenas.

It didn't enforce them.

Unidentified Justice: Well, if you vacate a judgment but refuse to enforce the subpoena, presumably you have to write something about why you are vacating the judgment, and when you write that, ought the Court to discuss whether the subpoena should have been enforced or not?

Samuel A Alito: Yes, and what I am saying is that if it is made clear that on remand a grant of statutory immunity would obviate Fifth Amendment objections, that would satisfy our position, although we continue to maintain that in the limited area of act of production immunity, this non-statutory functional immunity would be sufficient.

Unidentified Justice: It sounds to me like you are asking for an advisory opinion.

What order do you ask us to direct the District Court to enter?

Samuel A Alito: To enter an order vacating the quashing of the subpoenas.

Unidentified Justice: And therefore enforcing the subpoenas?

Samuel A Alito: Well, my understanding is that those would not be equivalent.

There would still be other procedures that would have to be followed before the subpoenas were enforced.

Unidentified Justice: What you really want is for us to say, you made a mistake, you are not asking for immunity, and we will vacate and send it back so you can do what you should have done before.

Samuel A Alito: Well, we are making alternative arguments, Justice Marshall.

We believe--

Unidentified Justice: Are you making that one?

Samuel A Alito: --We believe that our offer of non-statutory immunity was satisfactory, but if that... if the Court disagrees and makes clear that an offer of statutory immunity would have sufficed, that would be... that would serve our interests.

Unidentified Justice: Well, how did this case get into the District Court?

You issued some subpoenas, and there was a motion to quash, wasn't there?

Samuel A Alito: That's correct.

Unidentified Justice: What if there hadn't been a motion to quash?

Samuel A Alito: The witness would have been ordered to comply, I presume, and if he had refused to comply, he might have been held in contempt, but that never occurred.

Unidentified Justice: I know, but did the... What would the government have to do to secure compliance?

Samuel A Alito: Well, in--

Unidentified Justice: Suppose there had been no motion to quash, he just didn't... he just didn't produce.

Samuel A Alito: --We would have gone to the District Court and asked for an order of enforcement.

Unidentified Justice: That he be ordered to produce.

Now, do you still have to do that?

Samuel A Alito: Yes.

Unidentified Justice: Mr. Alito, are you telling us that the government will grant... wishes to grant statutory immunity as to the contents of these documents?

Samuel A Alito: No, absolutely not.

Unidentified Justice: So we still have to address that issue, I take it.

Samuel A Alito: That's correct.

Absolutely not.

We don't... We do not intend to grant immunity as to--

Unidentified Justice: That is the principal issue, you think, here?

Samuel A Alito: --That is one of the principal issues, yes.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

Pillsbury Co. v. Conboy - Oral Argument

Wed, 18 Feb 2009 07:11:10 +0000

Case:

Pillsbury Co. v. Conboy

Media File:

81-825_19821006-argument.mp3

Related Transcript:

81-825_19821006-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF FRANCIS J. McCONNELL, ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in the Pillsbury Company against Conboy.

Mr. McConnell, you may proceed whenever you are ready.

Mr. McConnell: Mr. Chief Justice, may it please the Court, this case involves the scope of protection under the immunity statute.

As Your Honors well know, that statute provides that no use or derivative use may be made of compelled testimony.

The issue presented by the petition is whether Mr. Conboy's deposition testimony, which repeats verbatim or closely tracks his immunized grand jury testimony, can be used against him in a subsequent criminal prosecution.

This case arises out of the corrugated antitrust litigation.

In 1978, indictments were brought against a number of major paper companies, alleging a price-fixing conspiracy in violation of the anti-trust laws in the corrugated container industry.

Mr. Conboy is a former employee of the Weyerhaeuser Company, one of the defendants in that action, and the petitioners in this case are purchasers of corrugated containers who opted out of the class action.

Now following the indictments in 1978 there were a series of class and civil actions filed in various district courts throughout the land.

Those actions were consolidated in the Southern District of Texas before Judge Singleton.

In the course of discovery in the class litigation the District Judge, on motion and the necessary showing of compelling and particularized need, released certain grand jury transcripts, including that of Mr. Conboy.

Later, in May of 1981, Petitioners, pursuant to subpoena, in Chicago took the deposition or attempted to take the deposition of Mr. Conboy.

We had his grand jury transcript.

Mr. Conboy had a copy of the transcript.

His lawyer had a copy of the transcript.

And the examination took the following format.

He had testified before the grand Jury under immunity that he had exchanged prices with Dick Herman of Alton Boxboard.

The first questions: Mr. Conboy, with whom it Alton Boxboard did you exchange prices?

He evoked the Fifth Amendment.

Next question: Is it not a fact that you exchanged prices with Dick Herman of Alton Boxboard?

Again, the witness invoked the Fifth Amendment.

Third question: Did you not so testify in January of 1978?

Again the witness--

Unidentified Justice: You used the phrase "so testified".

What's the frame of reference there?

Mr. McConnell: --The reference back to the prior question, that you had fixed prices or you exchanged prizes with Dick Herman.

Unidentified Justice: Well, are we to understand that the examiner was... had the transcript of the grand jury testimony in front of him?

Mr. McConnell: Yes.

I was the examiner.

I had the transcript.

I'm reading verbatim questions--

Unidentified Justice: It's perhaps of some importance whether it was directly from that transcript or whether it was from some other information, is it not?

Mr. McConnell: --Excuse me, Your Honor.

I thought I mentioned that we all had copies of the grand jury transcript.

Unidentified Justice: But having copies two weeks before and having copies right in front of you at the time is perhaps... perhaps... different, but you say the examination was conducted with the transcript in the hands of the examiner.

Mr. McConnell: In my hands Your Honor.

Unidentified Justice: But you were asking him... you may have been reading the questions from the grand jury transcript, which I take it you were.

Mr. McConnell: Yes.

Unidentified Justice: But you were asking him for his recollection at the time you were examining him.

Mr. McConnell: Yes, of course.

Unidentified Justice: Did he have a copy of the transcript?

Mr. McConnell: He had a copy of the transcript; his lawyer had a copy of the transcript.

Unidentified Justice: But you weren't asking him whether that was his recollection then.

You were asking him now, then, what his recollection was about the price-fixing.

Mr. McConnell: That would be the first question.

Yes.

The first question: With whom at Alton Boxboard did you have price conversations?

Unidentified Justice: Suppose you hadn't had the transcript at all and had never had it and you asked him this question and he took the Fifth Amendment?

Mr. McConnell: That's a more difficult question.

Unidentified Justice: Well, more difficult.

It isn't difficult at all, is it?

He would be entitled to take it if there was a realistic threat of criminal prosecution.

Mr. McConnell: Not according to the Eighth Circuit in the Borden case.

The Eighth Circuit says let's take your situation, Mr. Justice White.

In the Borden case... not Starkey... Starkey is Eighth Circuit also, but Borden follows Starkey also in the Eighth Circuit... there were two witnesses.

The examiner did not have a copy of the grand jury transcript.

He asked a series of questions which presumably were areas that were covered in the grand jury testimony.

The witness took the Fifth to those series of questions.

A motion to compel was made.

The Court then reviewed the grand jury transcript in camera and he said these questions are within the confines of the prior immunized grand jury testimony.

These questions are not.

Answer the questions that are within the confines.

You don't have to answer the questions that are outside.

Unidentified Justice: So it really didn't make any difference that you were reading from the transcript?

Mr. McConnell: Well, if you go as far as the Borden case, it doesn't make any difference, but if you limit yourself to Fleischacker and the panel decision below, it is important that you have the transcript.

Unidentified Justice: Now along that same line, let me see if I can get clearly what you're saying.

If you had never seen the transcript in your life but were simply aware that he had been before a grand jury at some time, would you have asked these questions?

Well, if you were suing for price-fixing you would.

Mr. McConnell: Your Honor--

Unidentified Justice: That's what you'd be probing for, wouldn't you?

Mr. McConnell: --Exactly.

Unidentified Justice: Even if you didn't know that he'd ever been before a grand jury.

Mr. McConnell: Exactly.

We know that the grand jury investigation involved price-fixing in the corrugated box industry.

We know that this man was a key employee dealing with other corrugated box manufacturers involving major accounts.

The probabilities were that he had exchanged prices.

So yes, I think I would have asked many of the same questions.

But that doesn't answer the problem yet because I did... in your hypothetical I didn't have a copy of the transcript and--

Unidentified Justice: To go beyond that, in the hypothetical the questions would not have been derived from immunized testimony.

Mr. McConnell: --Well, certainly not my questions.

But--

Unidentified Justice: If you didn't know what the immunized testimony was, how could you have been using it?

Here you know what it was.

Mr. McConnell: --Here I know what it was and clearly, to the extent I asked question verbatim or closely tracking, it's derived.

In the other case, I'm presuming what was asked, but I don't know that and it's not directly derived from the transcript.

But when the witness refuses to answer on Fifth Amendment grounds and then the Court reviews in camera the transcript and says these are areas which were examined on before the grand jury and you must answer these questions, then it seems to me that that is a compelled repetition of immunized grand jury testimony.

Unidentified Justice: But it's in a civil action.

Mr. McConnell: It is in a civil action.

Unidentified Justice: And since the grant of protection of the immunity statute is limited to a criminal action, why does the immunity statute have anything to do with a civil action?

Mr. McConnell: The Fifth Amendment and the co-extensive use immunity protection protects you against use of that testimony only in a criminal actions, but you can invoke the Fifth Amendment in any action... civil or criminal.

Unidentified Justice: Certainly.

But conceding that, why does the use of the immunity statute play any part in your argument with respect to testimony adduced in a civil case?

Mr. McConnell: Because the respondent's position is that a prosecutor may get hold of this deposition where he has repeated his same immunized grand Jury testimony and use that as a wholly independent source.

Unidentified Justice: In a later criminal case.

Mr. McConnell: In a later criminal case.

Unidentified Justice: It is Just as though there never had been any grand jury testimony or anything else and that you have him on the witness stand in a civil case and you ask him a question that may incriminate him in some future criminal case, so he can take the Fifth Amendment.

Mr. McConnell: That's right, if he doesn't have immunity.

Unidentified Justice: Yes.

If you try to use it in a criminal case, that's the time to stop it.

Mr. McConnell: No, I don't think so, Your Honor.

Unidentified Justice: Well, if an objection was made, could it be used in a subsequent criminal case?

Mr. McConnell: No, absolutely not.

Unidentified Justice: So that's--

Mr. McConnell: The question is could this Court make the determination prospectively that that evidence would be tainted, and we say clearly it could and we also rely on the dicta in Patrick in the Seventh Circuit.

Unidentified Justice: --Well, suppose there is no subsequent criminal prosecution?

Mr. McConnell: I'm sorry.

I missed your question.

Unidentified Justice: If there is no subsequent criminal prosecution, it couldn't be used.

Mr. McConnell: If there's no subsequent criminal prosecution, it can't be used.

Unidentified Justice: But how does the harm come ahead of the criminal prosecution?

Mr. McConnell: Because the question is whether the witness can be compelled to testify over his Fifth Amendment assertion and the Court said... the Court said you can be compelled because you have compete protection because no use can be made of this civil deposition testimony.

Where you confine the examination to the four corners of the grand jury immunized testimony, where you repeat verbatim or you closely track, you are protected.

And we can make that determination today.

Unidentified Justice: Following up on Justice Rehnquist's point about the civil action, the interesting thing about the way this arises is that if this man were to answer the questions, he is now arguing that they are not protected.

But then if he were later indicted he would then take the exact opposite position and argue they were protected, I would assume.

That's right.

Mr. McConnell: I would think so.

Unidentified Justice: So his interests change in the different Proceedings.

Well, the whole problem could be solved by Just not giving out grand jury testimony, I would think.

Mr. McConnell: Well--

Unidentified Justice: You know, to plaintiffs.

Mr. McConnell: --Well, we wouldn't have the transcript if the transcript hadn't been released, that's true.

Unidentified Justice: Well, and all you're doing is waking it available to civil plaintiffs really.

Mr. McConnell: I don't think that's true.

Unidentified Justice: As a discovery tool.

Mr. McConnell: Justice Rehnquist, we are not suggesting that the test announced by this Court in Douglas Oil be in any way relaxed.

The Plaintiff still has the burden or the party seeking release of grand jury transcripts still has the burden of meeting the compelling and particularized need test, and that's a balancing test, balancing the need for disclosure against the continuing need for secrecy.

We are not suggesting that that test be relaxed in any way.

That test was meant here... the transcripts were released, and now the question is what use we can make of those transcripts.

Yes, sir,--

Unidentified Justice: Well, all you... I suppose the only showing you made is that you wanted some testimony.

You wanted some basis... you said you brought a civil suit and this would be useful in the civil suit.

Mr. McConnell: --Well, I don't think it's that simple.

What happened--

Unidentified Justice: What else could you say?

Mr. McConnell: --Well, the showing that was made before Judge Singleton... and this goes back to January of 1980... was that there had been a massive invocation of the Fifth Amendment and that meaningful discovery had been blocked by reason of the Fifth Amendment assertions in this litigation, and the judge issued a memorandum order.

Unidentified Justice: Well, if we affirm, then you'd never be able to get the grand jury minutes then again on that basis because it wouldn't do you any good to have them.

You could still take the Fifth Amendment.

Mr. McConnell: If you affirm, whether we have the grand jury minutes or not is not going to do us any good because we can't compel his testimony.

Unidentified Justice: Exactly.

Mr. McConnell: That's why I want you to reverse.

Unidentified Justice: Exactly.

But if we affirmed, you wouldn't be able to get any more grand jury minutes by saying everybody's taking the Fifth Amendment.

I thought that's what you had responded to in response to my questions, that even if you had never known about this, didn't have a copy of the transcript, the questions you would put to this witness would likely be parallel to those presented to a grand jury, but he would still have the protection of the Fifth Amendment, wouldn't he?

Mr. McConnell: He would have the protection of the Fifth Amendment in that situation.

But what the Borden court said was that if he invokes the Fifth Amendment to the question or series of questions and the Court, on in camera inspection of the grand jury transcript not released to the parties, determines that these questions were in fact touched upon in the grand jury examination, that he then can be compelled to answer over his Fifth Amendment objection.

And they say in that situation he is protected.

Unidentified Justice: I suppose we can also have the situation where the testimony is originally elicited at a grand jury investigation and use immunity is granted by the government to the witness and then the witness testifies within the use immunity at the criminal trial and you still have the question of trying to use it in the civil case.

Now there it's not a question of getting the grand jury testimony at all, but don't you have the same problem?

Mr. McConnell: Yes.

Unidentified Justice: And did that happen here?

Mr. McConnell: No.

Unidentified Justice: Mr. McConnell, in any of these cases that you referred to has the government taken a position on the issue?

It is interesting.

They don't file any kind of an amicus brief.

Mr. McConnell: No, they have not.

Unidentified Justice: Could the government come in in the civil proceeding and grant use immunity again, although the government's not involved?

Mr. McConnell: Well, they could, but they have not, and they have declined to.

There is no companion civil suit by the government here.

In the Folding Carton Litigation which preceded the Corrugated Litigation, the government did do that.

They had a companion civil suit and they did grant immunity in connection with the discovery depositions in the class actions which were consolidated with the government's civil action.

There was no--

Unidentified Justice: As I understand it, the government makes the practice under this use immunity statute of going in every time the witness appears any place and getting another use immunity grant, isn't that right?

Mr. McConnell: --Well, that's one of the arguments of the respondent, that the fact that the government granted separate immunity both in the interview statement and later when the witness appeared before the grand jury and in the case of witnesses who appeared in the criminal trial, again they granted it.

And I think there's two very... first of all, obviously I don't know what was in the mind of the government, but I think there are two very practical answers or reasons for that having been done.

One, defense counsel, out of an abundance of caution, demanded and said if you want testimony from my witness you are going to have to grant him immunity.

Secondly, if the government wanted to go beyond the confines of the earlier examination, then they would want the witness immunized again.

Unidentified Justice: Well, Mr. McConnell, I gather what you want us to say is the use immunity which he received in connection with the grand jury testimony carries over to this deposition in the civil case.

Mr. McConnell: Yes, provided--

Unidentified Justice: But is there anything at all in the legislative history to suggest that Congress intended that statute to apply to civil as well as criminal cases or appearances before the grand jury?

Mr. McConnell: --I think the legislative history indicates... and this Court's decision in Kastigar indicates... that that statute was to be construed as broadly, as sweepingly as possible.

Indeed, this Court in Kastigar said it provides a sweeping protection against any use or derivative use of compelled testimony.

Unidentified Justice: So you read "sweeping" as carrying all through subsequent civil proceedings and such?

Mr. McConnell: So long as the subsequent civil proceedings are confined to the four corners of the--

Unidentified Justice: Of the transcript.

Well, that would just read out the word in any criminal case from the use statute.

Mr. McConnell: --No.

What we're saying is--

Unidentified Justice: Well, the position you've just taken would weed out that language, wouldn't it?

Mr. McConnell: --I don't think so, Mr. Justice Rehnquist.

What I'm saying is if we produce a carbon copy of the grand jury testimony on civil deposition, can the government use that civil deposition in a subsequent criminal proceeding against the witness.

And that's what we say the statute prohibits.

It would be the derived or derivative use of the original immunized testimony in a down-the-pipe subsequent criminal proceeding.

Unidentified Justice: That conforms with the language of the statute, but I thought you were trying to apply it here to--

Mr. McConnell: No, no.

All we're saying is that the testimony is protected against use against Conboy in a subsequent criminal proceeding.

Unidentified Justice: --Because he has no danger of incriminating himself in some criminal case because this testimony in the civil case won't be admissible.

Mr. McConnell: Exactly.

That's it.

Unidentified Justice: That's what you're saying.

Mr. McConnell: That's what I'm saying.

If I didn't say it before, that's for sure what I'm saying now.

Unidentified Justice: What happens if the criminal case judge seals the testimony, the deposition, and refuses to release it?

Then what position do you take?

Mr. McConnell: Well, I don't know how--

Unidentified Justice: You don't know how a judge can seal testimony?

Mr. McConnell: --Well, yes, I do not know people get... I mean, a lot of times seals don't do any good.

But assuming that it is sealed sealed, and nobody gets access to it, then it seems to me in that situation the prosecutor in a subsequent criminal proceeding against Mr. Conboy would have a chance of showing that his evidence was obtained from a wholly independent source.

If he neither saw the grand jury testimony nor saw or had access to the deposition testimony which repeated--

Unidentified Justice: Well, how could he get access to sealed testimony?

Mr. McConnell: --I don't think he can.

Unidentified Justice: Well, then he wouldn't have it.

Mr. McConnell: That's it.

And what I'm saying--

Unidentified Justice: Therefore, he couldn't use it.

Mr. McConnell: --That's right, and maybe--

Unidentified Justice: Your point is he might get it from an independent source, in which event he could use it.

Mr. McConnell: --In that situation he might be able to get it from an independent source and he could establish his Kastigar burden.

Unidentified Justice: He could use this testimony from the grand jury in a subsequent criminal prosecution in spite of the statute.

Is that your position?

Mr. McConnell: No.

No way.

Unidentified Justice: Well, that's the way you are.

Mr. McConnell: I don't believe so, Justice Marshall.

The statute and this Court's holding in Kastigar say that a prosecutor in a subsequent criminal prosecution against Mr. Conboy, one, cannot use the immunized testimony itself, nor can they base their case on any evidence or fruits derived from that immunized testimony, nor... to carry it a step further... can they base their prosecution on the deposition which just repeated that testimony.

Unidentified Justice: My only trouble with you is when you say you can't use the fruit does not say the fruit can't grow.

Mr. McConnell: Well, I think this Court's decision--

Unidentified Justice: Or the fruit can't exist.

All the statute says is it can't be used.

Mr. McConnell: --Exactly, Your Honor.

It is not transactional immunity.

Mr. Conboy always remains theoretically subject to prosecution, assuming that the prosecutor can show that his evidence came from a wholly independent, legitimate source... not from this deposition and not from the grand jury testimony.

All right.

Unidentified Justice: Mr. McConnell, I think what concerns me most about this... about your position... is that probably the use immunity statute that was passed by Congress was passed by Congress in an effort to help the government lawyers... the prosecutors... to avoid having them lose other means of going after somebody in a criminal case just because of an overbrick of the transactional immunity that has been used.

Mr. McConnell: I agree with that.

Unidentified Justice: And I doubt if Congress was thinking of benefitting civil litigants when it passed that statute.

Now the danger of letting you use it, it seems to me, is that in the process of using it, although the government prosecutors are not involved, somehow that use immunity will get widened, although the government wouldn't like that because the witness is in a bad position.

The witness presumably has to be cross-examined and maybe it gets wider and wider and wider, and all of a sudden the government is losing the benefit of some testimony that it didn't want to lose.

Now how do you respond to that?

Mr. McConnell: Well, the answer to that, I think, is that so long as the deposition examination is confined to the four corners of the grand jury immunized examinations, there is no expansion.

Unidentified Justice: Okay, but how do you do that within the framework of giving cross examination?

Otherwise, presumably the evidence can't come in anyway.

Mr. McConnell: I understand.

There is nothing which prevents the defendants in this situation from cross examining as to details of the direct examination.

We are assuming here that the scope of the direct examination is confined and limited to the scope of the immunized examination.

In turn, there is no reason why defendants cannot conduct meaningful cross examination within the confines of the direct examination.

They can ask details... who, where, when, how many times.

They can ask exculpatory testimony.

Well, now, you said you had this price-fixing conversation with Dick Herman where you agreed that you would both raise your prices.

But isn't it a fact that you cut your prices?

You said you were both going to honor each other's prices.

Isn't it a fact that both of you cut each other's prices?

That's cross examination.

That's meaningful cross examination, but that's clearly within the scope and confines of the direct examination and does not expand the immunity grant, which--

Unidentified Justice: No, but I suppose, Mr. McConnell, that in such a cross examination question it would be possible that the cross examiner would bring out information that could not reasonably have been derived from the confines of the original testimony and, therefore, that broadened examination might go beyond the scope of the use immunity.

Mr. McConnell: --Well, if the examination goes beyond the confines and the answer is potentially incriminating--

Unidentified Justice: Then he would have to claim the Fifth.

Mr. McConnell: --Then he would have to claim the Fifth.

Unidentified Justice: So he's really faced with a choice in the case of every single question that deviates even a little bit from the transcript as to... he'll need a lawyer standing right there beside him to decide whether he should claim the Fifth or not.

Mr. McConnell: I don't think it's that difficult, but we've gotten rulings from the Court in this case before and there's no reason that we couldn't get rulings again, and, as a matter of fact, in this very case, Fleischacker is Second Circuit.

After the Fleischacker case came down, the opinion came down, we went back and we took Fleischacker's deposition and I used the same procedure or format that I attempted to use with Mr. Conboy... asked him questions verbatim from the grand jury testimony.

On cross examination, Mr. Fleischacker asserted the Fifth Amendment.

No attempt was made to compel answers over his Fifth Amendment assertion, and in a motion in limine in this litigation the defendants moved to strike the Fleischacker deposition on the ground that they'd been denied meaningful cross examination.

Judge Singleton ruled in pretrial order PTO-69... pre-trial order 69, which we have supplemented the record with... he ruled that the defendants were entitled to cross examine as to details, that the appropriate procedure was a motion to compel, and had they done that they could have had meaningful cross examination.

On the other hand, if the cross examination clearly goes beyond the scope of the direct and the immunized and is collateral to, that is not a denial of meaningful cross examination, and that is not grounds for striking his direct examination and we cite the Court to Cardilla... U.S. versus Cardilla... on that point.

Unidentified Justice: In the posture of this case or this type of case, isn't your examination of someone who has appeared before the grand jury generally a cross examination... really, although you are the first to question, it's really an adverse witness.

Mr. McConnell: It is.

He is a price-fixer, and I am trying to get him to admit it, yes.

I would like to reserve my remaining time.

Unidentified Justice: Well, Mr. Coffield.

ORAL ARGUMENT OF MICHAEL W. COFFIELD, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Coffield: Mr. Chief Justice, may it please the Court, although I am here today on behalf of John Conboy, in fact I think, Your Honors, that really Mr. Conboy is a representative almost in a class sense of many, many deponents and witnesses before not only this antitrust grand jury that started back in 1976 and resulted in one criminal case, one civil class action case, and this opt-out case, but he is representative of witnesses throughout the country in multi-defendant and large investigate cases, and I have represented many of them and, as Mr. McConnell has himself, these depositions have taken all sizes, all forms and all shapes.

The panel majority, it seems to me, says, as it does precisely at the conclusion of its opinion, the thing that Mr. McConnell throughout his briefs and his argument I would, with all due respect submit, has never answered, and that is the Court says there are just too many uncertainties.

If Kastigar reads the use immunity statute and supports it as a constitutional statute, and as we have applied Kastigar and defense counsel for all these witnesses who are individual counsel for these witnesses, represent to them that what Kastigar means, as this Court has said, is that yes.

While we think that the Fifth Amendment and the use immunity must be of the same scope and we should read it broadly, the fact is that it is use immunity and it is not transactional.

And, therefore, the source, if it is a separate source, if it is an independent source, may well be the source of new information, testimony that would be incriminating.

And if you look at it on the scope, at one end of the spectrum you have Mr. Conboy's concern that if one has to wait to the application of an exclusionary rule down the line, as this Court has frequently said, that is not the same as the Fifth Amendment to simply apply an exclusionary rule.

If one has to look down the line to the judgment of the discretion of a prosecutor... will he or will he not, in the State of Ohio, for example, decide because of an unlimited statute of limitations he is going to have his own antitrust investigation, his own possible indictment of Mr. Conboy and others, because Mr. Conboy did business down there, or will some judge that's not any longer Judge Singleton but some other District Judge, in reading the spectrum of questions that go beyond the actual immunized testimony, say I will cut it here.

I think at this point he may have waived or at this point it may be beyond the derivative use concept.

So that our submission really is very clear and very simple, and that is that for Mr. Conboy to be certain of the scope of his Fifth Amendment rights and for a reaffirmation of Kastigar, which we think the panel majority clearly did, and that in conjunction with the way the government does this every time, that each testimonial situation... be it civil or criminal, be it interview, grand jury, criminal trial, civil deposition or civil trial or next grand jury... Mr. Conboy and all of those witnesses that he represents are entitled to claim their Fifth Amendment right because the source not of the questions, as we point out in our brief and the panel majority indicated, not of the questions... the source is not the questions.

The source is the answers and, therefore, for certainty and in the ability of the witness to know the scope of his Fifth Amendment and to keep the scope of the Fifth Amendment and the statute the same, as the Court has indicated it must be, each time he testifies, he is entitled to claim it because each testimonial situation might be a new use.

Now you take the one end of the spectrum.

What Mr. McConnell wants to do is to say I bring out the transcript and I give it to you, Mr. Conboy... as he did on the day of his deposition... and this is now the grand jury transcript and I have got it and you have got it, and now I am going to read to you.

Did you say this; did you say that?

And to make that one relatively simple, he could say in one question if I were to read you all of the questions and all of the answers in your grand jury transcript, would your answers today be the same to those questions, and Mr. Conboy could theoretically say yes, Mr. McConnell, despite the fact that Judge Singleton in this new pretrial order 69 has said I am not going to allow in grand jury transcript to be read into this trial except for cross examination of actual witnesses.

But all of a sudden Mr. McConnell is going to have us transfer what is impermissible under the Federal Rules of Evidence and Judge Singleton has already said I'm not going to let that in, by Mr. Conboy answering the question yes, it all of a sudden becomes now more verifiable, somehow a better class of testimony, and he is going to let it in.

Now the tough question for me at that point is, and Justice Marshall suggested this, can anyone seriously claim that Mr. Conboy's one answer "yes" might somehow be... subject him to criminal prosecution later on.

And I would submit to Your Honors that given the fact that criminal prosecution is still possible and there's been no real argument in this case that it is still theoretically possible--

Unidentified Justice: The issue really isn't whether another criminal prosecution is possible.

Let's assume it is.

Mr. Coffield: --Right.

Unidentified Justice: The question is whether the answer "yes" in your example would fall within the statutory language of being information directly or indirectly derived from such testimony.

Isn't that the issue?

Mr. Coffield: That's right.

Unidentified Justice: Your submission is that the question that your opponent asked of him was derived from it, but the answer was not even indirectly derived from the grand jury transcript... the information contained in the transcript.

Mr. Coffield: I would say, Your Honor, that clearly... and I'm trying to give myself the hardest case, clearly... that it is difficult for me to argue that is isn't indirectly, but there are a number of differences.

Unidentified Justice: Why is it hard to do that?

They are asking him for his present recollection.

Mr. Coffield: That's right.

That's my point.

Unidentified Justice: You are not asking him for what your recollection was then.

You are saying what is it now, and that certainly isn't derived from his grand jury testimony.

Mr. Coffield: And that's not.

Exactly, Justice White.

What I am saying is--

Unidentified Justice: Well, but let's not leave that quite so fast.

Is it not true that it's indirectly derived from the other testimony, even though it isn't what he testified to before?

You found out about it indirectly by knowing what he testified to before.

Mr. Coffield: --No, I submit not.

Unidentified Justice: And if you were defending him in a criminal case you would not be willing to argue that that testimony was the fruit of the grand jury testimony?

Mr. Coffield: Ah, well, as you pointed out before, that's the conundrum and the Catch-22, if you will, that Mr. Conboy's going to be put in unless this Court affirms, because Mr. Conboy in fact, yes, will have to say that he is entitled to his Fifth Amendment right because it's a new source... a new answer, a present recollection of something that happened four years ago... and then, if he is compelled and he does say yes and some prosecutor down the line says but I have an independent source... it's a new yes and it's today's yes... and I'm going to bring an indictment, I'm going to have to turn around, and so does Mr. Conboy, and say well, now, since it is in fact going to be held either to be excluded under the exclusionary rules or it's going to be held to be indirect, I now am going to take your position.

Unidentified Justice: So it's a fruit of the poison tree.

Mr. Coffield: Exactly.

Unidentified Justice: Supposing you had a coerced confession case where Mr. Conroy had been hauled in by the police and subjected to brutality and he gave a transcript that confessed to a crime.

Then later on he was asked again did you so confess... the same questions you've got here... and he's say well, my present recollection is such and such.

And you say the present recollection has not been indirectly derived from the earlier testimony?

You say that's not a fruit of the earlier confession?

Mr. Coffield: It is not, because--

Unidentified Justice: Because it's his present recollection rather than what he testified.

Mr. Coffield: --It is not only present recollection but the problem with it is that in addition to it being present recollection, the moment you add anything else to my spectrum or to the level of questions--

Unidentified Justice: It is not an indirect fruit.

Mr. Coffield: --You are in an area where who knows where you are going to stop.

And without meaning this disrespectfully, from the point of view of Mr. Conboy, we don't care how Your Honors decide this, because if you tell us on the one... what we want is certainty.

So if you tell me on the one hand, all right, Kastigar means every time you are entitled to use, at that point Mr. Conboy and every other witness will do it the way we do it with the government every time, and Mr. McConnell is going to have to look to his own presentation of his case, however he may find it.

On the other hand, if Your Honors say well, we'll go all the way... and effectively I would submit that goes back to Justice Marshall's dissent in Kastigar, which was effectively to say once you give up the transactional concept you found yourself in this hornet's nest... go all the way and say everything that relates to the corrugated container industry from the years X to Y is going to be seen, and this Court will so say, as derivatively and indirectly related to the questions of this testimony, as far as I am concerned that's fine too, because then we'll sit down and go for five days.

Unidentified Justice: But you pose two possible decisions of this Court, but those two aren't the only ones.

You could get a decision somewhere in the middle, which I suppose wouldn't please you so much.

Mr. Coffield: Well, I submit, Your Honor, that if Your Honors come down somewhere in the middle it is fraught with uncertainty and it is fraught with constitutional concern, and the reason it is is because what you would effectively be doing, it seems to me, if you come down anywhere in the middle, is going against cases like Manusk, against cases like Murphy v. Waterfront... against the cases which have said the exclusionary rule remedy is not the same as the constitutional privilege and the statutory immunity that's related to it.

The exclusionary rule remedy is to clean it up... de facto immunity... some judge later saying well, all right, Mr. Conboy went this far and now I've got to look at it--

Unidentified Justice: Well, what if you just had a rule.

It might not make a lot of sense, but at least it might be clear that as long as you are reading a question from the grand jury testimony and he gives the same answer and the judge is following it, that there is... that he must answer that question, because there's immunity.

But if you stray a word from the grand jury testimony, then you can take the Fifth.

Mr. Coffield: --Well, I would pick up on Your Honor's statement of that.

I think that--

Unidentified Justice: That's the equivalent of your hardest case.

Mr. Coffield: --That's my hardest case, but it seems to me the problem with that hardest case is that while the courts have made it clear that the immunity does not protect you from perjury, there is a question with respect to whether or not your present recollection on these case-by-case questions is the same.

Unidentified Justice: Well, you might be perjuring yourself again because you'd answer--

Mr. Coffield: That's right, and he is entitled, I would submit, Your Honor, he is entitled not to perjure himself again and to take the Fifth Amendment with respect to that.

Unidentified Justice: --Well, I didn't know immunity protected you against perjury.

Mr. Coffield: It doesn't.

The case is where you in fact by giving an answer, a new answer, would be indicating that a past answer was perhaps perjury, that you are protected against doing, as you are from making any statement that would in any way incriminate you.

So while... if you perjure yourself within... once you've been given immunity, you are not protected from prosecution.

Unidentified Justice: You say the second testimony the guy has a right to claim the privilege against self-incrimination if the answer would tend to indicate that he perjured himself in an early... the first time.

Mr. Coffield: That's correct.

Unidentified Justice: Or if he said I refuse... I will not answer to the same jury.

If he said, I'm taking the Fifth Amendment because I refuse to answer, I will not answer that question the same as I did at the grand jury?

Mr. Coffield: Well I think if he even says that much then you may have a court that comes down and says, well, you waived at least the concept that your answer would be the same, and now we're going to say that you've waived to the extent that now you have to answer.

My point in all of these examples, Your Honor, is that... and this is something that the class Plaintiffs can't do in any form in which they've tried this.

Mr. McConnell told Your Honors what happened with Mr. Fleischacker, and there was the one where the Second Circuit said, oh, it's okay, go ahead.

Well, he did, and what happened?

The moment he got past the actual questions and actual answers, Mr. Fleischacker's counsel, as the Maness case indicates, being conservative and concerned with the Constitution, stands up and says: That's it.

No more.

He is now taking his Fifth Amendment.

At which point all of the cross-examination and all of the things that would make the testimony viable, usable, and in the context of the Defendants in those civil cases--

Unidentified Justice: You don't represent them.

Mr. Coffield: --I don't represent them.

But the point is that from the standpoint of the witness, it's cut off.

And as Judge Singleton recognizes himself in his new order, he is going to cut off and not admit anything that is grand jury testimony on its own.

And so I would submit that, whether Mr. Fleischacker's deposition or Mr. Conboy's, if he answers yes doesn't get more credibility, more viability as valid testimony by the mere answer yes than it did... and I would submit--

Unidentified Justice: Mr. Coffield, the only interest you have in representing a number of these people is protecting your client from criminal prosecution, really.

That's your ultimate goal.

Mr. Coffield: --That's correct.

Unidentified Justice: But is it not true... and you did indicate it depends on the proceeding, and I of course recognize you've got to fight each battle as it arises.

But is it not true that generally the class of persons you represent would benefit from a holding that gives broad interpretation to the words "indirect use", because then they would have broad protection against subsequent criminal prosecution?

Mr. Coffield: Well, as I indicated earlier, Justice Stevens, I think either way would benefit them.

Unidentified Justice: As long as you know where you stand.

If we were to say, for example, that we apply the same test we do in the fruits of an illegal search or seizure, the fruits of an illegal confession, the same broad scope of protection applies to this immunity statute, that would be very beneficial to your client, wouldn't it?

Mr. Coffield: Well, it would be beneficial--

Unidentified Justice: In the sense of avoiding future prosecution.

Mr. Coffield: --Yes, but it would not be as beneficial as the affirmance of the panel below, because once I leave here today and Mr. McConnell and I go back in the trenches, we are out there in a world of prosecutors all over the place making discretionary--

Unidentified Justice: Well, let me ask you, let me give you this hypothetical.

Supposing the Ohio Attorney General that you're concerned about gets his hands on this transcript and he calls the witness in and wants to use the information in the transcript, but not ask him any questions about it.

You then I think would be taking the position that he is using information that was indirectly derived from a grand jury transcript, wouldn't you?

Mr. Coffield: --You bet I would, and that by a Court's ruling that does not affirm this panel below is the Catch-22 that Mr. Conboy's put in.

He's got to then be on both sides of this question, depending on who's doing the asking.

Unidentified Justice: Let me put the question to you that I put to your friend.

Mr. McConnell has no transcript.

No transcript was issued in a jurisdiction, in a circuit where it is not allowed.

Mr. Coffield: Yes.

Unidentified Justice: But if he's an experienced lawyer, as he is, he's going to ask.

He's going to be able to surmise what the testimony was.

Mr. Coffield: He's going to come pretty close, sure.

Unidentified Justice: Now, then he puts the questions to the witness which very closely track the testimony he gave before the grand jury.

And what does your witness do?

Mr. Coffield: Well, he does the same thing.

He takes the Fifth Amendment.

The irony of that is that if you take Mr. McConnell's argument that it doesn't depend on, as I think must be implied in what he's saying, it doesn't depend on what comes out of Mr. Conboy's mouth, then you have the reverse situation.

Even if Mr. McConnell just fortuitously asks the same questions in the same order, even though he never had a copy of the transcript, in fact under his theory it might also be derivative use, it might also be protected.

But I think that would be a ludicrous result, because in the cases like Kuehn, in the cases like Brown, the lower... the Court of Appeals who have looked at it clearly have indicated that a new source, a new statement, is a new entitlement to claiming the privilege, because that otherwise might be used and the use would then subject him.

So that in fact what would happen is that Mr. Conboy would continue to claim his Fifth Amendment right, and the mere fact that he happened to have the transcript in front of him, or Mr. Conboy happened to have the transcript in front of him, shouldn't make a difference.

And we submit that because it is current recollection, because it is in fact within the very statements made by Kastigar, it's the effort to say that the scope of the immunity is the same as the scope of the Fifth Amendment privilege and that in any circumstance in which there might be an extension of that the use is not use by civil attorneys, it is the use by the prosecuting attorneys of the information gained from the immunized testimony.

And so the--

Unidentified Justice: That just is a contradiction in terms, because at the point that the privilege is claimed in the civil deposition there isn't yet any use by any future criminal prosecutors.

Mr. Coffield: --Well, we don't know that, Your Honor.

Unidentified Justice: Well, you certainly don't know one way or the other.

Mr. Coffield: We don't know one way or the other.

But the fact of the matter is that, now that the grand jury transcript is out... and that of course is the subject of all kinds of other appeals and other issues, the secrecy of the grand jury... once the grand jury transcript is out, there may be people and there may be prosecutors who look at that transcript.

And now they are looking at an immunized transcript and there is no use they can make of that because so far there's been no extension of it.

Unidentified Justice: What safeguards are put on these grand jury transcripts?

It seems to me that's the root of the problem here.

Mr. Coffield: I would submit, at least in the experience I've had before Judge Singleton... and I think Mr. McConnell would agree with this... that the court there and the court in other cases I've been involved in try very hard, both through security in offices and checkout systems and what have you, to make sure that only the parties, be it the counsel or in certain cases counsel and an expert witness or counsel and one representative of the client... that there is very limited access.

And I think the courts have in fact been fairly careful about it.

The whole question of whether or not there is an effect on Mr. Conboy, Your Honors will recall Mr. Conboy was joining an appeal made to this Court for certiorari that was denied because we did take the position that had our transcript not been turned over we wouldn't even be here.

And we thought it was improper at the time.

We objected at the time, and it came up through the Fifth Circuit on that issue and then cert was denied.

But certainly this goes to your question, Mr. Chief Justice, that the fact of the turning over of these transcripts... Mr. McConnell says he doesn't make much use of them.

I would submit that there's a great deal of use of them made other than the need, as he claims, to get them in somehow into the courtroom in the trial.

But with respect to the interest of Mr. Conboy and all these other witnesses, the principal use that is made of them are these series of depositions, which we submit are going to extend and subject him to substantial risk.

And it is not just frivolous and it is not just a mere possibility.

It is a situation where any movement down that road, any answers that go beyond that immunized transcript, even the affirmation, put Mr. Conboy at risk or put the courts in the position of trying now to flesh out the breadth and scope of the use immunity statute and the Fifth Amendment by exclusionary rules, which this Court has said is not the proper way to handle it, or analyses by other judges and other prosecutors of what is indirect.

And I would submit that that whole series of questions leaves Mr. Conboy, who is the one that started out here with this constitutional right, in tremendous uncertainty.

And counsel like myself cannot say to Mr. Conboy, well, yes, as the Supreme Court said, Kastigar says the use immunity statute and your constitutional rights are the same.

His question to me is: Well, Mr. Coffield, that sounds good, but what happens if the prosecutor decides that he's going to file an indictment and he's got a grand jury that'll do it for him?

And what happens if Judge Singleton isn't on that bench and Judge Smith is, and Judge Smith thinks that now I've waived it?

Or Judge Jones thinks that in fact, yes, he's going to apply an exclusionary rule when the prosecutor comes--

Unidentified Justice: You're not expecting us to give an opinion that will allow antitrust lawyers to give a definitive opinion on anything?

Mr. Coffield: --Yes.

Unidentified Justice: Are you?

[Laughter]

Mr. Coffield: With all due respect, I think you can.

And the reason I think you can, Your Honor, is because of the exact thrust of your dissent in Kastigar itself.

Unidentified Justice: Why, that proves it.

It was a dissent.

Mr. Coffield: Well, that's right.

But now is the chance, Your Honors, because if this Court reaffirms Kastigar... and Your Honor, with all due respect, can see that if Kastigar is affirmed, and the Government's been living by it and we've been living by it as defense counsel or witness counsel, that each testimonial situation is entitled to separate protection.

If we get that separate protection, we'll testify until Mr. McConnell is all through.

The Government, it's clear in all the cases, the Government is the one that has the discretion to come in there and decide.

And if the Government wanted to get beyond that criminal trial and made a determination it was in the public interest to have Mr. Conboy testify, I believe we'd find the Government in there saying, okay, I'll go down to Judge Singleton and I'll give him a petition.

And I am sure Judge Singleton would sign that order as fast as the ink would dry, and we'd be down there--

Unidentified Justice: Well, is there statutory authority for the Government to give immunity to a witness to testify in a private case?

Mr. Coffield: --I think there is.

The application's been made in a number of cases.

It's made administratively here in town all the time.

It's done--

Unidentified Justice: Has that been the subject of litigation?

Mr. Coffield: --I think it will be, but I don't know that it has been.

Unidentified Justice: Well, there may be a lot of applications.

Have they been granted?

Mr. Coffield: I don't know of any case that we've studied where, in our research, where the Government, when asked, his gone ahead and done it.

Now, the other areas--

Unidentified Justice: They've been asked, yes.

Mr. Coffield: --The other area, of course, is when--

Unidentified Justice: It'd be a change in policy.

The Division didn't use to just hand out stuff to private litigants, did it?

Mr. Coffield: --I'm sorry, Your Honor?

Unidentified Justice: Did the Antitrust Division just hand out information to private litigants as a result of their investigation?

I mean, I think this would be a change in policy, wouldn't it?

Mr. Coffield: No, the Government, with respect to the release of grand jury information and so forth, I think the Government has, with all due respect to the Government, been on both sides of that fence.

I mean, sometimes they see it's of some benefit, they've got private treble damage claims; and sometimes they have other fish to fry and so they don't want to do it.

So it seems to me they change.

One of the areas, though, that is suggested by the Court's questions is... and this is going to come up as a constitutional question... if Mr. Conboy were a defendant in the criminal case down the road, and now Mr. Conboy says, and I want Joe Gluntz, who you've not given immunity to, to be given immunity, because under Brady he's got all kinds of exculpatory information, and the Government says, no, I'm not going to give him immunity.

So far the court has said that's still a Government discretionary policy.

But from the standpoint of witnesses, it is not wholly unlike the problem with respect to defendants, that we have to look to the Government, and if they're not here I submit Mr. McConnell's got to live with that as much as I do.

Unidentified Justice: I get a feeling in this colloquy and the one that preceded it that we sometimes meet ourselves coming back.

Let me put a relatively simple hypothetical to you.

Mr. Coffield: Okay.

Unidentified Justice: Your witness is on the stand.

Make it this witness, Mr. Conboy.

Mr. McConnell asks him a question which is by coincidence, not by use of any transcript, the same kind of questions he answered before the grand jury and for which he had immunity.

Now, he declines to answer.

He asserts his Fifth Amendment.

You have told him in advance that that's the thing to do.

Mr. Coffield: Right.

Unidentified Justice: Judge Singleton orders him to answer under pain of contempt.

Mr. Coffield: As he did.

Unidentified Justice: And he answers.

And he answers.

Mr. Coffield: Okay.

Unidentified Justice: Is that or is that not immune?

Is that compelled testimony?

Mr. Coffield: That's my Catch-22.

At that point, Your Honor, I have to take the position that if he answered that it is, as Justice Stevens suggests.

I've got to then say it's indirect and it's derivative.

I don't think it is, but I would then--

Unidentified Justice: My question is a simpler one.

My question is, Judge Singleton orders him to answer and says, if you don't answer I'm going to hold you in contempt.

So he says, under that compulsion, Your Honor--

Mr. Coffield: --I will answer.

Unidentified Justice: --I answer, and then he answers.

Mr. Coffield: Right.

Unidentified Justice: Is that or is that not compelled testimony?

Mr. Coffield: Oh, it certainly is compelled.

Unidentified Justice: Well, it would never be admissible in a criminal proceeding.

No.

Mr. Coffield: Well, I would submit to Your Honor that I'm comfortable when you say that.

Unidentified Justice: Any more than a compelled confession.

Mr. Coffield: I am comfortable hearing you say that, Your Honor.

I am not as comfortable when, if you just stretch this out a little bit more and you get a few more questions than, Mr. Chief Justice, you posed.

You then have a judge or a prosecutor who says: Well now, wait a minute; somewhere along that line we think the subject got a little bit away from the container industry and we think you've waived it.

And under Rogers, he's stuck with that.

Or he says, we don't--

Unidentified Justice: He could solve that by asserting the Fifth Amendment on every question that's put, and go through the same.

And he can order... let the judge order him.

Mr. Coffield: --Well, if the judge sits there, I would submit, Your Honors, and makes a determination on a case by case basis, I might feel more comfortable in terms of what's going to happen with Mr. Conboy's uncertainties.

I don't feel a whole lot more constitutionally comfortable, if you'll permit me, but at least no one else is going to be able to second-guess that down the road, as we can if we simply go forward in this deposition.

I think when we go back to the beginnings of this, and even under the Immunity Act of 1954, the Allman case, Judge Frankfurter I think said it best and adopted language in Mathie of Judge Magruder and said:

"If it be thought that the privilege is outmoded in the conditions of this modern age. "

--as Mr. McConnell is really suggesting to us...

"then the thing to do is take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion. "

And I suggest that Starkey is a subtle encroachment, and Fleischacker's a subtle encroachment, and that the panel majority said: No, Mr. Conboy and others like him are entitled to certainty, and the certainty can only be the reaffirmation by this Court of Kastigar and the affirmance of the panel below.

Thank you, Your Honors.

Chief Justice Burger: You have two minutes remaining, Mr. McConnell.

REBUTTAL ARGUMENT OF FRANCIS J. McCONNELL, ESQ. ON BEHALF OF PETITIONERS

Mr. McConnell: Mr. Chief Justice, members of the Court:

The fact is that the Government would not give immunity in this case.

It's my understanding that that is their overall policy.

They will not grant immunity in private civil suits.

So unless we're able to compel--

Unidentified Justice: How could the Government give immunity in a private civil suit?

Mr. McConnell: --I don't know how they can.

Unidentified Justice: Well, I thought you were challenging their failure to give it.

They have no authority to give it.

Iif Judge Singleton in that hypothetical compels the witness to answer the question, can that... in your view, can that answer be used against him in any subsequent criminal proceeding?

Mr. McConnell: No.

Compelled repetition of immunized testimony cannot be used against a witness in any subsequent criminal proceeding.

Unidentified Justice: I'm not talking about immunized.

Compelled testimony.

Mr. McConnell: Compelled testimony over a Fifth Amendment assertion, the answer, cannot be used against that witness in a subsequent criminal proceeding.

Unidentified Justice: That doesn't mean you're supposed to compel him.

That's too general a statement.

That doesn't mean that it's right for the judge to compel him, just because--

Mr. McConnell: That's right.

Unidentified Justice: --Otherwise, the Fifth Amendment privilege would never exist.

The judge would always just order him to answer.

Mr. McConnell: It is too general a statement.

Unidentified Justice: It's too general.

If a witness wrongly claims a Fifth Amendment privilege--

Mr. McConnell: Exactly.

Unidentified Justice: --the Judge overrules it, the witness' answer is compelled; that can be introduced against him in another criminal proceeding.

Mr. McConnell: Exactly.

And to bring both your points, what we're saying here is that the determination that was made by the court was, the witness had no legitimate Fifth Amendment privilege to assert because that privilege had been supplanted by the use immunity statute, which gave him full protection against both direct and derivative use of his testimony.

We've got a simple case here.

When you've got the grand jury transcript and you take the question from the grand jury transcript, the answer necessarily derives from that transcript and is protected.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Tuesday next at 10 a.m..

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United States v. Apfelbaum - Oral Argument

Thu, 13 Sep 2012 21:30:47 +0000

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United States v. Apfelbaum

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New Jersey v. Portash - Oral Argument

Sun, 20 Jun 2010 20:43:22 +0000

Case:

New Jersey v. Portash

Media File:

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Transcript:

Argument of Edwin H. Stier

Chief Justice Warren E. Burger: The case is submitted.

We will hear arguments next in New Jersey against Portash.

Mr. Stier, I think you may proceed when you are ready.

Mr. Edwin H. Stier: Mr. Chief Justice and may it please the Court, The respondent in this matter was entited by a New Jersey state grand jury in two counts.

First count; for misuse of his public offices for the benefit of a private developer.

The second count; for obtaining approximately $31,000 from that developer through Conduit Corp to which he was not entitled as a public official.

After a jury trial, the respondent was convicted on count two and acquitted on count one.

Matter was appealed to the Appellate Division of the Superior Court of New Jersey, which reversed the conviction on one ground, and that was that in the course of the trial, the trial court had ruled in such a way as to deprive the respondent of his Fifth Amendment privilege thereby causing him not to testify, thereby depriving the perjury of evidence that would – it would otherwise have received.

State appealed to the New Jersey Supreme Court which denied the state’s appeal and denied a petition for certification.

The two issues which had been raised before this Court.

One is whether the Fifth Amendment privilege was properly asserted by the respondent in the trial and the second was whether the Harris case, rationale of the Harris case was properly applied to the facts of this case by the Appellate Division of the Superior Court of New Jersey.

The issues in this case arise out of a series of in-camera discussions, which took place among counsel on the court.

During the course of those in-camera discussions, a number of the issues were discussed, including the scope of cross-examination of the respondent in the event that the respondent would testify and whether the state would be permitted to use any of the respondent’s pretrial statements, which were obtained under various circumstances over an extended period of time for the purpose of cross-examination of the respondent.

At the conclusion of the in-camera discussions, respondent’s attorney announced that in reliance on what he believed to be the court’s ruling, his client was not going to testify.

Chief Justice Warren E. Burger: Is the case in its present pasture, in your view, any different from what it would be, if he had not made this engrave but had taken the stand testified and been impeached on the Harris rationale?

Mr. Edwin H. Stier: Absolutely Your Honor.

Chief Justice Warren E. Burger: No difference?

Mr. Edwin H. Stier: Oh, yeah, no, there would be a significant difference, which I am about to get to.

That difference is this.

During the course of the in-camera proceedings, the trial court on at least 14 separate occasions that I have counted in going through the record, said that he would not rule generally on whether the state could use or under what circumstances the state could use prior statements for the purpose of cross-examination.

The court indicated that he was bound by New Jersey Law which requires the rule on a question by question basis.

And because of the fact that no specific ruling was permitted on a proffer of proof by the state for cross-examination purposes, we do not know specifically what circumstances would have been raised in this case.

Justice Thurgood Marshall: Would these question by question be in front of the jury?

Mr. Edwin H. Stier: No Your Honor, there was a --

Justice Thurgood Marshall: Is that in the in-camera discussion?

Mr. Edwin H. Stier: Your Honor, there was a procedure that was established by the court and agreed to by the prosecution and the defense, during the course of the in-camera discussions, which were required the state in the event that the state wanted to use a pretrial statement against a respondent to ask for a sidebar conference before the question was asked in the presence of the Jury.

Justice Thurgood Marshall: Of each question?

Mr. Edwin H. Stier: Each question based on a prior statement.

Justice Thurgood Marshall: I did not see that.

Is that in the appendix?

Mr. Edwin H. Stier: Yes Your Honor, it is in the appendix.

It is in the appendix in several places and it was agreed to by the defense really on in the discussions.

Now, that specific procedure was established by the court so that in the event that the court decided that the questions based on prior statements could not properly be used, the import of the information would not be conveyed to the Jury.

Justice Potter Stewart: Mr. Stier, I am trying to think through whether this argument you are making is a question of state procedure or a federal question, are you –because I gather the state Supreme Court considered for its purposes the question was adequately raised to address the merits of it.

Mr. Edwin H. Stier: Yes Your Honor.

Justice Potter Stewart: And you are saying that it is a matter of federal law, a state may not permit this issue to be raised and preserved in this way exactly.

Mr. Edwin H. Stier: Yes Your Honor.

Our position is that as a matter of federal law, in order to receive the benefit of the Fifth Amendment protection, the respondent is required to assert the Fifth Amendment.

Our position is that in this case, he did not assert the Fifth Amendment, because he did not take the stand under the procedure that it had been established by the trail court for his protection, permit the issue to be framed in such a way that it could be resolved on a constitutional basis.

Justice William H. Rehnquist: What if the New Jersey courts, the Appellate Division here said, it was wrong for the trial judge to refuse to make this kind of general ruling, and refuse follow the question by question approach that you say New Jersey law requires, would we then have a federal question before us?

Mr. Edwin H. Stier: I think it would be a more difficult federal question because of the fact that the state court’s ruling would have been based on state court procedure, but on the other hand in this case, there was no discussion of state court procedure.

This case was decided by the Appellate Division squarely on constitutional grounds.

Chief Justice Warren E. Burger: Now you say, just be sure I have it clear, that in the bench conference when this subject was discussed, the judge made it clear that he would not make anticipatory rulings but would require them to submit the question at a bench conference, when and if he took the stand.

Mr. Edwin H. Stier: That is correct Your Honor.

As a matter of fact, the trial court when the respondent’s attorney announced that his client was not going to take the stand expressed surprise at that conclusion, and indicated that the respondent had made a tactical judgment, not in reliance on his rulings with respect to the use of prior statements, but a tactical judgment not to testify and was simply using this as an excuse to surround his tactical judgment with some constitutional implications.

In the course of the in-camera discussions, the issue that was faced and resolved squarely by the court was the scope of permissible cross-examination of the defendant.

That is the defendant argued that the scope of cross-examination should be narrowed to the scope of direct examination intended to use only a very narrow area on cross-examination and asked the court to restrict the prosecution in his cross-examination only to those factual issues raised.

The prosecution objected very strongly to that and took the position that the scope of cross-examination should be as broad as all of the evidence which it had put it in its case in chief, none of which by the way have been alleged by the respondent to have resulted from tainted statements.

There is no element in this case concerning the way in which the prosecution had acquired all of the evidence which it had put it in its case in chief.

The trial court ruled then that the prosecution would be permitted to broaden its cross-examination to the scope of its evidence which it had been put it in its case in chief, its testimonial and documentary evidence and that in the event that further cross-examination were requested by the state in which any of the respondent’s prior statements would be used, the government -- the prosecution then would have to approach the bench and raise the question at that time with the court.

It was after the ruling on the scope of cross-examination that the respondent indicated that he was not going to testify.

And at that point, the court expressed surprises I indicated before and indicated that in effect the respondent had made a tactical judgment.

Had he --

Justice Potter Stewart: What if he had never been in the immunized testimony at all and the defendant was going to take this, it was anticipated the defendant would take this stand and then the prosecutor made this motion at the close of its case or before the defendant started his case.

What is the rule in New Jersey?

There is no such restriction on cross-examination?

Mr. Edwin H. Stier: That is correct Your Honor.

The trial court’s decision on the scope of cross-examination was based on New Jersey case law, which makes it clear that when a defendant takes the stand, he takes the stand as any other witness and subjects.

Justice Potter Stewart: So I take it then that the prosecutor thought that by asking a question broader than the defendant’s direct, he could perhaps confirm some of the state’s case in chief.

Mr. Edwin H. Stier: That is correct Your Honor.

Justice Potter Stewart: You would ask him, whether or not a certain fact is true.

Mr. Edwin H. Stier: That is correct Your Honor.

Justice Potter Stewart: That you had already put in the case.

Mr. Edwin H. Stier: That is correct.

Justice Potter Stewart: And you anticipated that if he did not – that apparently the reason you wanted to ask that was that there must been something in his grand jury testimony that gave you that clue?

Mr. Edwin H. Stier: No Your Honor, the position of the state is that the evidence that was obtained to put in, in the case in chief and the respondent never disputed that was all based on independent sources and it was that evidence, that the prosecution intended to use for purpose of cross-examination within the scope that the court permits.

Justice Potter Stewart: You may have obtained it from independent sources, but there might be something in the grand jury testimony that would be relevant to or confirm one or more facts in that state’s case in chief.

Mr. Edwin H. Stier: It is conceivable that, that might have occurred.

Justice Potter Stewart: They would have to be or you would not want to -- you would never get around and wanting to impeach him with it.

Mr. Edwin H. Stier: Alright, I think that his evidence that was clearly outside the scope of his prior statements, which may have been outside of the scope of direct examination, which the prosecution would want to use for purposes of cross-examination.

Had the respondent testified and had the prosecutor approached the bench with a specific piece of prior statement that it intended to use for cross-examination, we would know the answer to your question Your Honor.

We would know --

Justice Potter Stewart: Your position must be then that the existence of this prior testimony could not possibly have or just did not exert any pressure whatsoever not to take the stand.

Mr. Edwin H. Stier: Now, that may have been a factor, that may have been a factor.

Justice Potter Stewart: Or how could it have been with what in the way you just answered me?

Mr. Edwin H. Stier: It is possible, and the defendant hypothesized situation --

Justice Potter Stewart: You are asking the question outside the scope of his direct, but which is relevant to your direct case and you want to confirm part of your direct case by his testimony.

Say he answers it a certain way, and then you want to impeach him with something he said in his grand jury testimony.

That has to mean then that there is something in his grand jury testimony that supports your case in chief.

Mr. Edwin H. Stier: Oh, that is true Your Honor.

I did not mean to indicate that there was nothing in his grand jury testimony that was not relevant to the case in chief.

Justice Potter Stewart: Not only relevant, but it supports your case in chief.

Mr. Edwin H. Stier: That is correct Your Honor.

Justice Thurgood Marshall: Oh, is not it your position that you had no way of knowing until he was asked specific questions on the stand whether you would want to use that grand jury testimony or perhaps some other independently acquired evidence to impeach him?

Mr. Edwin H. Stier: Yes, that is precisely the state’s position.

We do not know which statements if any, the state might have intended to use, we do not know whether the state would have taken the position that it would concede the truthfulness of the prior statement or a claim that it was false, we do not know what purpose the state would offer the statement for, we do not know whether the statement would have been claimed by the state to have been outside of the scope of the grant of immunity, we do not know whether there would have been a direct contradiction between what he had said previously and what he was testifying to a trial.

Justice Potter Stewart: But Mr. Stier, if the view of the law that the New Jersey Supreme Court expressed, that should happen to be correct, there would not be any purpose in all these preliminary questions, would there?

In other words, if he had an absolute right not to be impeached, to be free of the impeachment with the grand jury testimony, there would not have been any need for this.

So which leads me to ask you, in order to raise the question of law that you ultimately are going to get to, why do we have to decide and why do we have to bother with this because they did adequately preserve that issue, did not they?

Mr. Edwin H. Stier: I do not believe that is the case Your Honor.

There even if the law is as the New Jersey Appellate Division applied, there are still possible circumstances that could have occurred at the trial which was fallen clearly outside of the Hockenberry case, which is the case on which the Appellate Division relied.

For example, if the particular piece of statement that the prosecution intended to offer could have been demonstrated to be false or could have been demonstrated to have fallen outside of the scope of the grant of immunity, then it would have fallen outside of the Hockenberry case and outside of the law as the Appellate Division applied it.

We do not know that because we do not know specifically what purpose the state might have offered it for or what the circumstances would be surrounding in the obtaining of --

Justice Potter Stewart: No, but the other side of the coin is that if he had been told by the trial judge that, well, I know the Appellate Division views the grand jury testimony is not useable, he would have decided to get on the witness stand, he would have needed all that, if we can take the Appellate, what they represent to us anyway.

Mr. Edwin H. Stier: If his representations are correct, then he might have gotten on the stand to testify, had the ruling been as broad as the Appellate Division conceived, however he still might have been faced, even under Martin Berry --

Justice Potter Stewart: Of course, it is really different.

Supposing we had not granted certiorari in this case, but waited for the next case and there is a second trial under this being a law of New Jersey, would you still say as a matter of New Jersey Law, you have to get through all that procedure?

Mr. Edwin H. Stier: Yes Your Honor.

Justice Potter Stewart: You would?

Mr. Edwin H. Stier: Yes because there are situations in which I would argue, we are not bound by the Hockenberry decision, we are not bound by its scope.

I think it is important for me to take a moment to discuss the circumstances under which the statements were obtained from the respondent.

Respondent provided information on basically three occasions, twice in the state grand jury and once in a statement under oath outside of the grand jury several months later.

During the first appearance in the grand jury, the purpose for his testimony was simply to identify certain records which we are not covered by the Fifth Amendment.

There had been a hearing by the trial court prior to his first appearance and he was ordered to produce certain records before the grand jury and to simply identify what those record were.

He appeared shortly after that time in the state grand jury, under the protection of the state’s public official immunity law, which is a self-executing was at that time, a self-executing use plus derivative use immunity statue which covered public officials’ testifying about conduct in their public offices.

Several months later, as the result of a series of discussions between counsel representing the respondent at that time and the prosecution, a statement was taken from the respondent under oath outside of the grand jury for the purpose of defining the testimony that was required for a case in which it was contemplated that the respondent would ultimately be a witness.

It was a related case, it was an indictment that was about to be returned concerning the individuals who operated the development company and the Conduit Corporation through which the respondent had received the approximately $ 31,000.

Ultimately that indictment was returned.

It is interesting and I think instructive to look at the change of position, which the respondent has taken between the beginning of the trial and this point.

His original argument prior to going the trial was that the indictment should be dismissed because he in effect had made a deal with the state in return for his cooperation.

He believed that the state had entered into a contract which should have barred the state from retuning an indictment.

Although it is clear from the record that his cooperation, his testimony in the grand jury was the result of a desire to strike a bargain with the state.

The trial court at that time found that no such contract had been entered into and held that the indictment should not be dismissed.

But it is clear that in his case, we are not dealing with a defendant who has been brought into a grand jury asserting his Fifth Amendment privilege and refusing to testify, there is more of a willingness demonstrated on the part of this respondent to supply information, although he asked for and received immunity protection, but a willingness to disclose that information because that disclosure was to be in his best interests in disposing ultimately of the criminal charges that faced --

Justice Potter Stewart: But nevertheless on that when he was opinioned in November 14th 1974, the immunity was certainly made express, was not that correct?

Mr. Edwin H. Stier: Yes Your Honor, there is no question about that.

Justice Potter Stewart: And he was asked if he understood that I think?

Mr. Edwin H. Stier: Yes Your Honor.

Justice Potter Stewart: And so there is no clarificaion on what the limits of the immunity were or what the extend of it was I guess?

Mr. Edwin H. Stier: No, there is not.

Justice Potter Stewart: Well, I take it you are going to get to –

Mr. Edwin H. Stier: I am about to.

Justice Potter Stewart: Why you have not exceeded the limits of your promise?

Mr. Edwin H. Stier: I am about to. The Appellate Division of the Superior Court has relied on what is probably the leading authority in the circuits on this question that is US versus Hockenberry, 474 F.2d.

There had been only very few cases decided on this question.

Hockenberry has been relied on in each of those cases.

Hockenberry, the state contends, is wrong in one respect and certainly distinguishable in another significant respect.

I realize that the Hockenberry case has only limited presidential value here, but I think that the distinction between the facts of the Hockenberry case and this case are extremely important, and I want to take one moment to address that.

In the Hockenberry case, the defendant had been subpoenant to a grand jury and had testified truthfully about having perjured himself previously and testified forcedly in another respect unrelated to the first.

He was entited for the perjury at his trial when he testified, the prosecution used his truthful testimony indicating that he had previously committed perjury for the purpose of impeaching his credibility.

Clearly the purpose was not to demonstrate a conflict between his trial testimony and his grand jury testimony, the purpose was to permit the jury to infer from the truth of what he had said in the grand jury, having admitted committing perjury previously, to infer from the truth of what he said that he was an habitual liar, that is not the situation here.

No matter how you construe the decision made by the trial court in this case, it was clearly not so broad as to permit the jury to infer from the truth of what would have been offered from his prior statements, any facts, but simply to demonstrate that there was an inconsistency between what he had said previously under oath and what he was saying now.

Most importantly though, I think that the Hockenberry case and the Appellate Division of this case misconstrued the import of the Harris case.

It had to distinguish Harris versus New York in order to get around the implications of that case.

The Harris case of course dealt with a Miranda situation; a statement obtained in violation of the Miranda rules.

In the Appellate Division and in Hockenberry, the court described a Miranda confession as a voluntary confession and said that since this was an immunity situation, the statement was taken involuntarily.

I dispute that characterization of Miranda.

The Miranda case clearly deals with statements which are compelled that you are involuntarily obtained.

Justice Potter Stewart: Well, did you read Michigan against Tucker?

Mr. Edwin H. Stier: Pardon.

Justice Potter Stewart: Have you read the opinion of this Court in Michigan against Tucker?

Mr. Edwin H. Stier: I am sorry, I --

Justice Potter Stewart: That is the one thought in that opinion if I have the, I think I have the indictment.

The Court saying specifically that violation of the Miranda rules interrogation does not mean that the response to the interrogation was involuntary.

Mr. Edwin H. Stier: Your Honor, I think that the term voluntariness has been used in different contexts, it is used different to mean different terms.

Justice Potter Stewart: Right, and was not it pretty clear in the Harris case itself that the statement was not an involuntary statement, but one on the -- but the statement simply taken in violation of the Miranda, so called Miranda rules?

Mr. Edwin H. Stier: I think that a statement taken in an immunity situation is no more involuntary, the statement taken in violation of Miranda.

Justice Potter Stewart: witness is guilty of contempt if he does not answer.

Mr. Edwin H. Stier: Pardon, I am sorry.

Justice Potter Stewart: The witness is guilty of contempt if he does not answer, is not he?

Mr. Edwin H. Stier: That is correct.

Justice Potter Stewart: Oh, that is generally being considered involuntary then.

Mr. Edwin H. Stier: And the court in Miranda described the coercive atmosphere of the police station as one in which the responses were compelled and described the statement taken under those circumstances as an involuntary statement and indeed compared the compulsion of the police station to the compulsion of a court proceeding.

Justice William H. Rehnquist: Well, just two years ago in Oregon v. Mathiason, we held that testimony given in a police station by someone who is not under arrest did not violate Miranda.

Mr. Edwin H. Stier: That is correct, and I --

Justice William H. Rehnquist: Well, how does that -- how can that be reconciled with the statement you just made?

Mr. Edwin H. Stier: When the compelling atmosphere is created in the police station, which forces the individual in those circumstances to give up his inclination to remain silent, that is the threshold which I believe is reached in a grand jury when immunity is granted and when court compulsion, legal compulsion is exhorted to force the witness to testify.

Certainly under the facts of this case, I believe there would be a less compulsion under the facts of this case than in circumstances where -- some circumstances in the back room of a police station where the compelling atmosphere can be very coercive.

Justice William H. Rehnquist: Oh, you are telling about rubber hoses?

Mr. Edwin H. Stier: No Your Honor, that raises a different question.

Those are the due process cases which I think can be distinguished.

That is the other context in which involuntary is used where the conduct of the police itself is pulled into question, where the policy is different.

The policy there is to deter unlawfulness in the obtaining of a confession.

That element is not present in a grand jury.

I think that the due process cases can be distinguished from the Miranda cases and that the immunity is more closely analogous to the Miranda type situation.

The compulsion in the back room of a police station where it is my contention, defendant should receive no less protection than a witness sitting in a grad jury.

I am not here to urge a ruling by this Court, which would permit a prosecutor to depose a potential defendant; that is not the case here.

In Oregon versus Hass, the court when faced with a question of potential abuse said, we will deal with that problem when the facts of the case indicate an abuse.

I believe it can and could be dealt with under the due process clause, but the due process clause does not apply here, this is strictly a Fifth Amendment case.

Justice Potter Stewart: Mr. Stier, I notice that the opinion of the Appellate Division refers to the privilege as a constitutional protection afforded by the Fifth Amendment and to cognate state constitutional guarantees.

We do not have any constitutional guarantee, do we?

Mr. Edwin H. Stier: That is right, no, there are no state constitutional guarantees.

Justice Potter Stewart: It is statutory entirely, is not it?

Mr. Edwin H. Stier: There is a rule of evidence which creates a privilege against the --

Justice Potter Stewart: Yes, but I mean it is not -- we do not have any privilege in the state constitution.

Mr. Edwin H. Stier: That is correct, there is no --

Justice Potter Stewart: It is only statutory.

Mr. Edwin H. Stier: That is correct.

Justice Potter Stewart: But what of your respondent, I know your time is running, your respondent argues that really this Appalled Division opinion is simply a matter of construction of the state statues, the immunity statute and the privilege statute and therefore that the -- even though it draws on federal cases to inform or like interpretation of those two statues.

The whole decision rest on the state statutes and therefore on adequate state ground and therefore there is nothing here for us to decide.

Mr. Edwin H. Stier: I do not think that, that is what the Appellate Division said Your Honor, I think the Appellate Division rested its holding squarely on the Fifth Amendment, squarely on the Hockenberry case in defining the permissible limits of the --

Justice Potter Stewart: Well, I gather your adversary's argument is sure, Appellate Division did all of that, but only to inform the content of the state statutes, and what all we have here is an interpretation of the state statutes.

Mr. Edwin H. Stier: Well, Your Honor, I think that had the Hockenberry case gone the other way, I think that the state statue would have been construed the other way by the Appellate Division that seems to be clearly what the Appellate division is saying in its opinion that it is bound by the scope of permissible use of immunized testimony as defined by the Hockenberry case, it relies strictly on the Fifth Amendment.

Unknown Speaker: Why as a matter of construction of the state statutes, does that make a difference?

Mr. Edwin H. Stier: I do not believe that they are construing the state statute because the state statute has been held in a number of New Jersey cases to be as broad as the federal constitution permits.

Unknown Speaker: Which I guess, I wrote when I was on the New Jersey Supreme Court and I thought we made quite a point that the state statute was informed primarily not by constitutional interpretations but by common law interpretation of the privilege, is not that case still a law?

Mr. Edwin H. Stier: That case was -- that was decided before this statute was enacted in response to this Court’s holdings in the cases which applied the Fifth Amendment to the states and which have restricted the state in using --

Unknown Speaker: Is the current statute very different from the one dealt within (Inaudible)?

Mr. Edwin H. Stier: Yes it is Your Honor.

I believe that it is different in the sense that it was drawn specifically from this Court’s holdings, which were decided subsequently.

Unknown Speaker: But it is still a statute?

Mr. Edwin H. Stier: Yes Your Honor, it is still is a statute.

Justice Potter Stewart: Mr. Stier, suppose in granting the immunity, the state had said that we will not use anything you say here except in perjury false swearing or whatever the language was, and we just want to know, we will not use it in for impeachment or for cross-examination in any subsequent criminal trial of you, and suppose then the state want to do what – what it wants to do, what it wanted to do here, would that violate the Fifth Amendment of the constitution of United States?

Mr. Edwin H. Stier: No, I believe that it might violate the due process clause of the Fourteenth Amendment, but I think you would still had the same issue of what the scope of protection of the Fifth Amendment is going to be.

Justice Potter Stewart: Thanks a lot.

Chief Justice Warren E. Burger: Your time is up for that.

I am going to try to clarify one thing.

Had this man taken the stand and the prosecutor in impeachment confronted him with his grand jury statements that was given under the grant of immunity and no other impeachment, what would have been the Court’s ruling in your view if you care to speculate about that?

Mr. Edwin H. Stier: If he then confronted strictly with the --

Chief Justice Warren E. Burger: Just what he said in the grand jury under the immunity grant, not some of the things he said at some other time under oath.

Mr. Edwin H. Stier: My argument would still be the same that the use of his grand jury testimony taken under a grant of immunity for that limited purpose, not to infer the truthfulness of what he said in the grand jury but simply to show the conflict between two statements under oath would have been permissible under the rationale of Harris and not precluded by the scope of protection afforded by the Fifth Amendment.

Chief Justice Warren E. Burger: I take it from some of the other things you said that the prosecution happened to use to impeach him that was not included in the grand jury testimony.

Mr. Edwin H. Stier: Absolutely, I think the record is clear on that and indicates a substantial amount of information, which it intended to use, which fell outside of the scope of his grand jury statements or any other statements that he gave.

Chief Justice Warren E. Burger: And you say that neither the prosecution nor the court has any obligation to the defendant to tell him advance how the ruling is, what the prosecution is going to do and how the court is going to rule until and unless he takes the stand and he is confronted with it?

Mr. Edwin H. Stier: That is correct.

I believe that a procedure that was established by the trial court to keep this information away from the jury was clear and is all that the defendant was entitled to.

Chief Justice Warren E. Burger: Very well.

Mr. Edwin H. Stier: Thank you.

Argument of Michael E. Wilbert

Chief Justice Warren E. Burger: Mr. Wilbert?

Mr. Michael E. Wilbert: Thank you Mr. Chief Justice, may it please the Court.

The facts of this case are that the respondent did go before the grand jury after advising the prosecutor that he wished to have his Fifth Amendment rights protected.

It was only at that time after insisting on his Fifth Amendment protection and privilege that he was offered the grant of immunity under the New Jersey Public Employees Immunity Statute.

So the willingness was compelled, it was not him coming forward in volunteering and saying, oh, by the way do I also have immunity.

He refused to testify, sought and obtained immunity from the court and the language of the immunity grand is explicit as said out in our brief.

Mr. Luciani (ph) also advising him that you know that what we obtain here today will not be used against you personally in any subsequent criminal proceeding.

There after and as a direct result of the immunity that he obtained.

He gave grand jury testimony and he also gave other statements to the prosecutor.

I submit that all of that testimony that he gave and all of those statements are obtained by the state as a direct result of his immunized grand jury testimony and therefore under Kastigar, clearly are precluded from use as are the grand jury statements.

Chief Justice Warren E. Burger: But do you mean that the prosecutor could not impeach or undertake to impeach by use of the statements other than those in the grand jury, if he had independent contradictory statements?

Mr. Michael E. Wilbert: If he had independent, I submit Mr. Chief Justice that he could but he had no independent statements.

Chief Justice Warren E. Burger: You say they are all dependent on the grants of immunity?

Mr. Michael E. Wilbert: Yes, there was no speaking to the respondent in this case until after he obtained the immunity.

It was only at that time that he was willing to speak to them, and --

Chief Justice Warren E. Burger: Does the grant of immunity relate only to the testimony given in the grand jury?

Mr. Michael E. Wilbert: I submit that it does not Mr. Justice.

Chief Justice Warren E. Burger: Is it a New Jersey Law on that it is different from all the other 49 states and the Federal?

Mr. Michael E. Wilbert: Mr. Chief Justice, I submit that under Kastigar, any evidence that flows directly from the immunized grand jury testimony is immunized to the same extend as the immunized testimony itself, and I think that under Kastigar in New Jersey at least I think in all the states, an independent --

Chief Justice Warren E. Burger: What if he happened to be presides among besides the other things he did, suppose he happened to be an alcoholic and went to Alcoholic Synonymous and got up and made a lot of these statements.

Now, could he be impeached on the basis of that or would you say that, that was also --

Mr. Michael E. Wilbert: If it were the prosecutors who caused him to be intoxicated and took him to the Alcoholic Synonymous meeting, I think that there is no question.

Chief Justice Warren E. Burger: Where there are actually some facts now, usually people are intoxicated today at meeting, so I am told you know, he is there not intoxicated or anywhere else, The Chamber of Commerce, wherever you want him to be and he makes these statements, you mean that all those statements are protected by the grant of immunity from the grand jury?

Mr. Michael E. Wilbert: No, I think the state could make an argument and possibly make a showing that it was independent and if they carried their burden in a Kastigar hearing that it was independently obtained, not through the grand jury testimony of the defendant, then they could use that, they can use that in the state of New Jersey in any event.

However, the situation here was that after they took his grand jury testimony, they then called him back in on February 5th, 1975 as the date is quoted, called him back in and took another statement under oath from him on the basis of the testimony that they obtained from him in the prior grand jury proceedings.

They had none of this information but they examined him on prior that time.

Chief Justice Warren E. Burger: Supposing they answer these questions in the – to the --

Mr. Michael E. Wilbert: What compelled him was that, he felt that he had the same immunity that flowed from the prior grand jury testimony that he gave.

He was advised that he would not be indicted if he gave grand jury testimony and then he did give the grand jury testimony and he gave the subsequent statement that they called for, they called him into Freehold, New Jersey, Courthouse and with a court reporter and asked him to sit down and under oath give them further information that they did not have.

Chief Justice Warren E. Burger: You say that was compelled?

Mr. Michael E. Wilbert: I submit that is compelled just as though he would still in the grand jury.

Chief Justice Warren E. Burger: What if he refused to come there, was there any process or any contempt part that would force him to come?

Mr. Michael E. Wilbert: I think the state would have immediately called him before the grand jury and said, you have already given testimony under immunity, you now required to continue that testimony.

They called him back twice to the grand jury.

I do not think there would be any limitation on the number of times they call him them back.

Chief Justice Warren E. Burger: You are so telling us that when he went to the prosecutor’s office in response to an invitation and answered questions under oath that he was compelled to do that by something?

Mr. Michael E. Wilbert: I submit he was without question Mr. Chief Justice.

After he had given testimony under oath, he had given testimony in November and then in February was called back to give further testimony, as a result of the evidence that they obtained from his grand jury testimony.

It flows directly under Kastigar.

I submit there is no question of -- in my mind, I would submit that it can not be a question as to it direct consequence of the immunized grand jury testimony.

The defendant then -- the respondent then had telephone calls with the prosecutor, when they called him and other information was obtained, some other information was obtained.

He then was indicted and he went to trial.

At the end of the state’s case, pardon me, prior to trial, there was a hearing wherein judge, the trail judge ruled that statements given under the grant of immunity could be used to impeach the respondent, if he was materially inconsistent in his trail testimony.

The argument made by the attorney general that court never made a rule, it think it is fallacious.

At page 151, he makes a ruling in the appendix, at page 204, he make a ruling.

He makes all of these preliminary rulings under what he conceive to be the fact situation that Harris applied and he made the ruling that if the defendant took the stand in his own defense, he could be impeached by immunized testimony for inconsistencies.

Justice William H. Rehnquist: Do not you have to argue here that kind of a dry run of that sort is a federal constitutional right that attaches along with the Miranda rights?

Mr. Michael E. Wilbert: I do not believe that I do Mr. Justice Rehnquist because I believe that the state found that the court had made the ruling.

The state of New Jersey found that the court had ruled that the testimony could be used to impeach that, that ruling was improper and that the state statute required that no use be made of the immunized testimony with the exception of perjury and false swearing, they are exceptions that are built into the statute and which are still viable to the state in the event he testifies the subsequent trial without the use of impeachment.

He can be charged and indicted and tried for perjury.

Justice William H. Rehnquist: But what if the state court had simply said, we are not going have any in limine motions in this case, if you want to test my ruling, you get on the stand and start answering questions?

Mr. Michael E. Wilbert: I think that, that may have been a situation that violated Brooks versus Tennessee.

Your Court’s ruling in Brooks versus Tennessee was that the defendant who was required to take the stand first in his own defense or not at all was placing the position when he did not take the stand that his Fifth Amendment privilege was violated, not that he took the stand.

Justice William H. Rehnquist: Then you do have to say that a defendant in make it before he make his choice as to whether take the stand or not, is entitled as a matter of federal constitutional law to obtain from the judge some sort of ruling as to whether particular objections made to particular question will be sustained or not?

Mr. Michael E. Wilbert: I do not submit that I do in this particular case, because I believe that the Appellate Division ruling on a substantive state legislative enactment determine that no use could be made of the testimony in the manner attempted by the prosecutor and that therefore the -- and the court had ruled that it could be used and therefore the court had ruled erroneously and had violated the statute.

I submit that we can be on completely adequate independent state grounds in this case.

Justice William H. Rehnquist: Why did the Appellate Division spent so much time on Harris against New York?

Mr. Michael E. Wilbert: I think that they were drawing the distinction that Your Honor is obtained in Mincey versus Arizona just this past term in June that we are talking about compulsion when we are talking about obtaining testimony under immunity and in talking about compulsion, we are not in a Harris situation.

The Judge Garth in US versus Romento (ph) as I have outlined, draws the distinction between Harris and limits and indicates how the court has limited Harris to situations where no compulsion, where there was no involuntariness.

Subsequent to that time, the court has found in Mincey versus Arizona that one of the question is compelled.

Justice William J. Brennan: You have mentioned that you thought the Court of the Appellate Division rested this on questions of the construction and scope of the what, both the immunity statute and the privilege statute?

Mr. Michael E. Wilbert: The immunity statute -- Mr. Justice Brennan, it is the privilege statute.

It was strictly a public employee immunity statute that they had under determination here 2A:81, 2:17.

Justice William J. Brennan: Oh, is not there are separate (Voice Overlap)?

Mr. Michael E. Wilbert: No, Mr. Justice Brennan.

Justice William J. Brennan: I see.

Mr. Michael E. Wilbert: Not in New Jersey, there is one, there is a Public Employee Immunity Statute that they relied upon and they were dressing himself that issue because this man was a Mayor and freehold director at that time.

Justice William J. Brennan: Oh, then your argument is that this whole case involves only a construction of 17.2A2, is that it?

Mr. Michael E. Wilbert: Yes.

Justice William J. Brennan: That is the immunity statute.

Mr. Michael E. Wilbert: That is the immunity statute for public employees, which he fit that category at that particular time.

Justice William J. Brennan: How do you answer my brother Rehnquist’s question, why so much attention to federal cases in the Appellate Division?

Mr. Michael E. Wilbert: I think they were drawing an analogy and construction of their statute and they were utilizing the law that they had available to them.

Hockenberry was available at that time and Hockenberry drew the distinction in Harris.

The trial court --

Justice William J. Brennan: Hockenberry was a federal constitution?

Mr. Michael E. Wilbert: It was Mr. Justice Brennan.

Justice Byron R. White: Say in an ordinary criminal case, the state purports to call the defendant to the stand on their side of the case, they just want to cross-examine the defendant.

Is not there some New Jersey law of some kind, forgetting federal law, is not there a New Jersey -- is not there at least a statutory provision that would prevent a state from doing that?

Mr. Michael E. Wilbert: Yes Mr. Justice White.

What is relied upon by the Supreme Court in New Jersey is the common law of and I believe it is called the general clause of (Voice Overlap) of the constitution.

Justice Byron R. White: So there is no general -- there no New Jersey statute that generally grants the privilege not to testify against yourself?

Mr. Michael E. Wilbert: No, there is not a statutory act, but there is the general proceedings of the constitution.

Justice William J. Brennan: What happen to the statute that we dealt within Tillo (ph)?

Mr. Michael E. Wilbert: I am not familiar with that.

Justice William J. Brennan: I thought the attorney general said, that has been succeeded by another statute that independently of this immunity statute.

Mr. Michael E. Wilbert: That may have been a witness immunity statute to general witness immunity statute under 2A:173 in New Jersey.

Justice William J. Brennan: Well, I am talking about the – it is 25 years ago since I wrote that opinion but what we dealt with was a statutory provision, which declared a privilege against self incrimination, a general privilege.

Justice Potter Stewart: And what he did in immunity statute if there is no privilege not to testify?

Mr. Michael E. Wilbert: There is a privilege not to testify but it is found from the New Jersey constitution of the general provision under 18 according to the New Jersey Supreme Court.

Now, it is --

Justice William J. Brennan: That is that the privilege is now constitutional in New Jersey?

Mr. Michael E. Wilbert: Yes, it is constitutional under the general provisions of the constitution, there is no specific --

Justice William J. Brennan: Well, now general provision –

Chief Justice Warren E. Burger: Can you read it to us?

Justice Potter Stewart: I can not Mr. Cheif Justice, because it does not speak about --

Justice William J. Brennan: Is the constitution any different now than it was when I sat on the New Jersey Supreme Court 25 years ago?

Mr. Michael E. Wilbert: Mr. Justice Brennan, it is still a 1947 constitution.

Justice William J. Brennan: Well, then there was no privilege in that constitution that is why we have to deal with a statutory provision.

Mr. Michael E. Wilbert: There was no privilege specifically stated in that.

It is now been interpreted to be as part of the general language of the constitution under 1A.

Yes, Mr. Justice Pashman’s dissent in Miller --

Justice William J. Brennan: I am not interested in the dissent, is there an opinion of the New Jersey Supreme Court that now reads a privilege into the New Jersey constitution?

Mr. Michael E. Wilbert: The point was not in the majority.

Justice William J. Brennan: But it is there?

Mr. Michael E. Wilbert: There is not a majority case that I know of but the dissent was not dissented to on that basis.

He states it and I believe that is what is found.

Justice William J. Brennan: Yes, I know Mr. Justice Pashman has been better at the center I know but it does not follow that does it that his colleagues have agreed with him?

Mr. Michael E. Wilbert: I do not know that we need to reach that aspect of it because we did have a valid Public Employees Immunity Statute that was not self executing in this case.

He asked for the immunity, he obtained the immunity.

It is now not self executing, excuse me, it was self executing then but he sought and obtained immunity under that statute.

The construction of the statute by the Appellate Division was that the court had ruled and in ruling had violated that statute and that a retrial – a remand for a retrial should be had.

The state in its brief totally misconstrues the state Appellate Division rule.

The ruling was not that the testimony could not be use the subsequent perjury charge.

The ruling as a matter of fact, states at page 207 of that opinion that is not here pertinent, because there was no allegation of perjury, but I am quite certain there was extensive oral argument.

I have attended oral argument on this new Appellate Division.

Could we say that you could not use it even for a perjury charge, no one was conceded that at a subsequent trial for perjury, the testimony could be used because that --

Justice Potter Stewart: Your original motion that if you took, that if your client took the stand that the cross-examination be limited to the subject matter of his own statements.

Mr. Michael E. Wilbert: My first request was that the Court because I was alluded to this by the prosecutor raising it initially that they were going to use the immunized testimony to impeach, I asked that the court rule that they could not use the immunized testimony to impeach.

Justice Potter Stewart: That is not what I asked you.

I ask that the cross-examination be limited to the scope of the direct testimony of your client if you took the stand?

Mr. Michael E. Wilbert: I did not actually articulate that, what I was attempting to do was say that the immunity statute could not be used to impeach.

What it was construed to be that I was trying to limit this direct -- the scope of direct and also then limit the scope of cross; I did not attempt to do that.

The Court pointed out that the -- and I submit that the United States has the same situation under Raffel and under the numerous cases, the Johnson case, that once you take the stand --

Justice Potter Stewart: I think then your position is that if you had, if nothing like this had come up in advance and your client had taken the stand and he testified to a fact, made an assertion, your position would be that the state could not then resort to the grand jury testimony in an attempt to impeach that statement?

Mr. Michael E. Wilbert: Absolutely, and I --

Chief Justice Warren E. Burger: But you will also go beyond that and say that the -- not only is the grand jury testimony immunized but everything you said after that, so that everything is immunized.

Mr. Michael E. Wilbert: Everything is flows directly from that grand jury testimony is as immunized under Kastigar.

I think to have the Fifth Amendment privilege co-extensive as Kastigar indicates it must be, as Mr. Justice Powell indicated in his decision, there can be no use made of that immunized testimony.

Chief Justice Warren E. Burger: (Voice Overlap) the statements made long after, substantially after the grand jury, was it?

Mr. Michael E. Wilbert: The test I do not believe is the distance between –

Chief Justice Warren E. Burger: Now was it or was not it?

Mr. Michael E. Wilbert: Pardon me Mr. Chief Justice.

Chief Justice Warren E. Burger: Would Kastigar deal with testimony given outside the grand jury room, after the grand jury hearing?

Mr. Michael E. Wilbert: I do not believe it did, but Kastigar rule that any evidence that flow directly or indirectly from that grand jury testimony was immunized.

Justice William H. Rehnquist: What about the testimony that had been given before the grand jury testimony, statements made in outside a court context?

Mr. Michael E. Wilbert: At the grand jury or prior?

Justice William H. Rehnquist: Prior.

Mr. Michael E. Wilbert: Before the grand jury meaning prior to it, I would say that, that testimony is not immunized and it could be used.

Justice William H. Rehnquist: It could be used by the state?

Mr. Michael E. Wilbert: Yes and as a matter of fact, the state did use the testimony of a witness in Constance called Pinsky (ph) whose testimony they had obtained prior to, they had obtained it after the respondent took the stand under immunity, but they had the information that he was going to testify to beforehand.

Justice William H. Rehnquist: How about the statement of the defendant made prior to the grand jury?

Mr. Michael E. Wilbert: There was no statement of this respondent.

Justice William H. Rehnquist: Well, but what if there had been?

Mr. Michael E. Wilbert: If there had been, I believe that it would not be immunized because he has to seek immunity and obtain the immunity for his Fifth Amendment rights to flow.

If he goes and testifies of his own will, I think that there is no Fifth Amendment privilege there.

I think the court has found that.

Justice William H. Rehnquist: And the mere fact that he has made statements before ever going before a grand jury, then goes before a grand jury and claims immunity does not mean that the statements he made prior to going before the grand jury can not be used against him if he chooses to take the stand.

Chief Justice Warren E. Burger: The statements that he gives before the grand jury under immunity, I would submit, can not be, because they are compelled.

Justice William H. Rehnquist: Yeah, but the statements made before, I mean before in time, prior in time?

Chief Justice Warren E. Burger: I do not recall the case but it may be US versus Knox, it says that statements made by a gambler on his income tax prior to any request for immunity could be utilized against him, I believe that, that is the case.

I know that, that is the rule of law that Your Honors have imposed; I do not recall a particular case.

I submit there was absolutely no waiver in this case, so his right to testify.

He was faced with the choice of paying the price, either testify and be a subject to the improper use of the grand jury testimony, the immunized grand jury testimony, or do not take the stand at all.

I think Brooks versus Tennessee is navigates on that point and I think Mr. Justice Marshall’s opinion in Wardius versus Oregon is the same, he had a right to rely on the statute.

Chief Justice Warren E. Burger: We will resume there at 1’o Clock counsel.

You may resume counsel.

Mr. Michael E. Wilbert: Thank you Mr. Chief Justice.

The policy that the petitioner urges in this case will in effect lead to a civil deposition discover procedure, not withstanding his oral argument, because the prosecutor then will in his discussion be able to gather the facts of his case.

And after having gathered the facts of his case, will be able to place a defendant in a situation where he has to obtain immunity.

Chief Justice Warren E. Burger: I am not sure I follow you.

Your client didn't, when their prosecutor invited him down for a little tête-à-tête, he did not have to go, did he?

Mr. Michael E. Wilbert: He did, under the Public Employees Immunity Statute.

If he did not go, he was subject to the penalties of forfeiture of public office and possible incarceration for his contempt and --

Chief Justice Warren E. Burger: For contempt of whom?

Comtempt of the prosecutor?

Mr. Michael E. Wilbert: For contempt of the Court because --

Chief Justice Warren E. Burger: Was there any court order directing him to go to the prosecutor?

Mr. Michael E. Wilbert: Yes, there was Mr. Chief Justice.

In New Jersey, the procedure is that he was taken before Judge Schack in Trenton and was advised that he – they sought his testimony of the Public Employees Immunity Statute and it was obtained through that court order.

Chief Justice Warren E. Burger: Speaking now of he is going to the grand jury or going to the prosecutor?

Mr. Michael E. Wilbert: Going to the grand jury.

Chief Justice Warren E. Burger: Well, I was talking about the prosecutor.

Mr. Michael E. Wilbert: He made no statement whatsoever.

Chief Justice Warren E. Burger: Was there an order compelling him to go to the prosecutor?

Mr. Michael E. Wilbert: Only the previous order of the court that he had to give testimony and that he had immunity from the testimony that he gave that was still in effect.

Chief Justice Warren E. Burger: And he gave the testimony at the grand jury, did not he?

Mr. Michael E. Wilbert: He did.

Chief Justice Warren E. Burger: Was there any force in that order, after he had given the testimony to the grand jury, which compelled him to go and talk to the prosecutor?

Mr. Michael E. Wilbert: I submit that it was a continuing order.

It would have been no problem whatsoever for the prosecutor if he refused in February to go back and say he is now not cooperating with us and not giving us further testimony, so that the civil deposition procedure could be used.

In the prosecutor’s discretion after he gains the facts of his case and place the defendant in a position of immunity and then compelled him to testify to use that testimony to impeach his creditability.

Justice Byron R. White: But your position, your constitutional position is made solely on the privilege against compelled self incrimination?

Mr. Michael E. Wilbert: It is the constitutional --

Justice Byron R. White: So far as it rests on the constitutional claim that is – it is just Fifth Amendment, the Fifth and Fourth Amendments?

Mr. Michael E. Wilbert: Well, I believe that also there is a due process are again to be made because --

Justice Byron R. White: Did you ever make that to anybody?

Mr. Michael E. Wilbert: I was under the impression that it was subsumed.

Once the testimony was found to be compelled that there was no question and there was a due process argument.

I am referring to Mincey versus Arizona, where the question is if it is compelled testimony, it violates due process to use it in any regard against the defendant, whether to impeach his creditability or not in the trial, carving out the exception that the Public Employees Immunity Statute has carved out, that it can be used in a subsequent perjury charge but I submit that it is a due process question also under the Fifth Amendment.

Justice Byron R. White: But there is no due process, was there a due process argument submitted to the New Jersey court?

Mr. Michael E. Wilbert: There was not a due process argument submitted to the New Jersey Court, no Justice White.

The mischief that the prosecutor attempts to impose upon the court though with regard to the Fifth Amendment will serve no constructive purpose to prosecutors in general, because the defendant with the choice of either having the immunity granted, knowing it can be used to impeach his creditability if Your Honor so find, I submit in many instances will opt the ladder and will not testify preserving his rights at trial to take the stand free from the use of impeached testimony.

And as Mr. Justice White said in Murphy versus Waterfront Commission, for a 100 years immunity statutes have been used to fared out crime that is otherwise impractical of discovery, conspiracy and various forms of racketeering.

Justice Potter Stewart: Suppose the New Jersey statute though had immunity statute, the Public Employees Immunity Statute had promised the defendant not to use the compelled statements or the statements that his testimony, in circumstances in which the -- against which the Fifth Amendment, Fifth and Fourteenth Amendments did not protect the defendant, suppose that New Jersey had gone farther than it was constitutionally required to do and then at trial it purported to violate its agreement or its promise, would that be a federal constitutional issue then?

Mr. Michael E. Wilbert: I think that would be strictly straight interpretation of a state statute.

Justice Byron R. White: Would that be a federal constitutional issue?

Mr. Michael E. Wilbert: I submit it would not.

I do not think that the state of New Jersey -- I do not think there is a federal question, if we merely limit this to the construction of a state statute.

The state has the right to interpret its statute under substantive interpretation of its own legislation.

There was by the way Mr. Justice White an oral agreement made in this case Mr. Luciani (ph) indicating that, you understand Mr. respondent that none of this testimony will be used against you personally.

It was implied --

Justice Byron R. White: But it was no different from the statue?

Mr. Michael E. Wilbert: It was no different from the statue.

Justice Byron R. White: It is almost in the terms of the statue.

Mr. Michael E. Wilbert: Except for the use the word personally, but it did comply with the Public Employees Immunity Statue, that no use to be made.

I do not think there is any question that the testimony was compelled in this case under the grant of immunity and once compelled that cannot be used for any purpose and except for the perjury recharge, a subsequent perjury recharge, that is all that we are asking that compelled testimony not be used to impeach its credibility.

Chief Justice Warren E. Burger: Could he be entited under New Jersey now for perjury?

Mr. Michael E. Wilbert: Yes he could.

The Appellate Division made that clear in oral argument that they were reserving the right to – and under the statute, it is clear.

The statute says could not be used in any subsequent trial against the defendant with the exception of perjury or false swearing.

At the time of this statute, it was merely perjury, but they have changed the statute to make it non-self executing and include false swearing.

Justice Byron R. White: But your position as I take it on perjury is that, if he had taken the stand that the trial and testify and he was either convicted or acquitted as would be the case, his statements at the grand jury hearing, his previous statements could not be used to convict of the perjury at the trial.

Mr. Michael E. Wilbert: I submit -- the Appellate Division found that they could be used in carving out those exceptions --

Justice Byron R. White: Your position is that grand jury statements could not be used to convict him of perjury in his testimony at the trial.

Mr. Michael E. Wilbert: That is not my contention; I submit that he is exposed to a charge of perjury, if he testifies and testifies untruthfully at trial the, statute prohibits the charge of perjury and allows the statement made at the grand jury to belay side by side with his testimonial trial.

Justice Byron R. White: I thought your position was that the only perjury that he could be convicted would be perjury at the grand jury stage.

Mr. Michael E. Wilbert: That was not my position Mr. Justice White.

I believe that the statute is brought enough New Jersey under the statutory interpretation to charge him with perjury in a subsequent trial and to utilize the statements that he gave against him to show the perjury to a jury.

That is really the problem we have here.

It does not amount to perjury, his testimony --

Justice Byron R. White: I am sorry I just do not understand why you think it is even that it is any more of violation of the statute to use his grand jury testimony at the trial to show that he is lined, if a day later in a perjury prosecution related to what he testified to a trial, you could introduce his prior grand jury testimony.

Mr. Michael E. Wilbert: That is the real problem in this case because there was no contention that he had perjured himself at the grand jury.

He was conceded that his testimony was trustworthy and truthful.

And I submit the use of the testimony at the trial was not going to go to perjury but was merely going to go to the vagaries of memory between the time elapsed and other inconsistencies that might in the jury’s mind indicate that this man was being less than credible without even reaching the question of perjury they were attempting to use it and that is the real problem that we have in the case.

They were violating his rights to take the stand to use to impeach without even, I contend, hoping to obtain perjury.

I have no other points unless there are any other questions.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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Argument of Brenda Soloff

Chief Justice Warren E. Burger: We will hear arguments next in number 72-331, Lefkowitz against Turley.

Miss Soloff, you may proceed whenever you’re ready.

Ms Brenda Soloff: Thank you. Mr. Chief Justice and may it please the Court.

At issue in this case is the ability of the State, in this case New York and its subdivisions here, Eerie County.

To provide themselves with some reliable assurance that in committing public funds to independent contractors, the contractors will deal with them openly and candidly, when information is sought about those contracts.

Two related sets of New York statutes were struck down by the District Court.

The first, in which New York General Municipal Law Section 103 a is an example, requires each public contract to contain a provision that if a person who is called before a grand jury, or other agency, which is authorized to subpoena and swear witnesses.

Such a person is called to testify in an investigation concerning a public contract and he refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning that contract or transaction, then that person and any business organization of which he is a member or officer shall be disqualified from public contracting for five years, and existing contracts maybe canceled.

That’s the first set of statutes involved.

The second group statutes struck down below and which New York General Municipal Law Section 103 b is an example, is directed at already completed contracts and transactions and establishes a five-year disqualification from future contracting for a similar refusal to cooperate under similar circumstances.

Both of these statutes and related statutes, which are similar in other sections of New York Law, were struck down by the District Court.

The two appellees in this case, are licensed architects and members of a partnership which according to the complaint had various contracts with Eerie County.

The only one of these contracts which is specifically mentioned in the complaint, concerns the construction of a domed stadium in Eerie County, similar to the Astrodome in Houston.

In answering the complaint in the District Court, the Eerie County attorney admitted the existence of various contracts and of the stadium contract.

This is the only information in the record about contracts between appellees and any publications in New York.

On February 8, 1971, while under public contract, the two appellees and another member of the partnership were subpoenaed to testify before an Eerie County grand jury respecting transactions and contracts that they had with the county.

All three were presented with waivers of immunity which they were asked to sign.

All three refused.

The third member of the partnership then was granted immunity and testified.

The other two did not, and did not testify.

The appropriate authorities were informed of the refusals and the instant action followed in the United States District Court for the Western District of New York, claiming that they had in the past and wished in the future to contract with the State and its agencies, the appellees claimed that the statutes violated their privilege against self incrimination.

A Three-judge District Court, and what must be regarded as an over extension of the decisions of this Court and Gardner v. Broderick and its companion cases agreed, and the statutes were enjoined.

However, in seeking to protect the public interest, the State has not acted unreasonably towards its contractors.

The State and the businessman enter not only into a business arrangement, but into something of a social contract as well.

The State begins with a premise, that public money must be well and carefully spent.

Neither cost nor quality must be painted by graft, bribery, the use of inferior materials, or any other unseen impermissible factor.

Justice Mr. Justice Stewart : Is that the same premise that the Government employees, the premise that the taxpayer are going to get the honest performance of their labor in return for the compensation pay for them, isn’t it?

Ms Brenda Soloff: That’s right, Your Honor.

Justice Mr. Justice Stewart : And so why this is different from the Gardner case?

Ms Brenda Soloff: This is different from the Gardner case in a number of respects.

A contractor, when he enters into a contract, understands at the beginning what is expected of him.

He hasn’t committed his life, his career, his ability to earn a living through this contract.

He’s seeking profit from an episodic source.

He knows at the time that he enters it, enters the contract that this kind of information will be required of him.

Justice Mr. Justice Stewart : I wonder if the New York City policemen and Gardner knew about Section 1123 of the New York City Charter.

Ms Brenda Soloff: Section --

Justice Mr. Justice Stewart : Does that appear in the case?

Ms Brenda Soloff: It does not appear in the case, Your Honor.

Section 1123 of the City Charter is undoubtedly a harder thing to find.

That’s one thing that can be said about it.

Beyond that, contractors typically enter contracts with attorneys.

They have typically knowledge, they have the advice of the counsel at the time they enter contracts.

And the contract itself is for a limited span of time.

A policeman doesn’t consider perhaps every possible ramification of his employment at the time he takes that Civil Service Examination, doesn’t have the advice of counsel, typically.

And the Section 1123 was very different from the statutes that we have in this case.

The statutes in this case request to information concerning any transaction or contract.

Section 1123 of the City Charter talks about any kind of activity in city Government.

It’s much broader than the scope of the duties of the policeman.

It involves local elections; it involves any aspect of city Government which might possibly occur to an investigating agency.

It isn’t limited to the scope of the employment of --

Justice Mr. Justice Stewart : But in each case, the basic situation is that the contractor in a one case and the employee in the other case, when called before grand jury, must waive his immunity, correct?

Ms Brenda Soloff: He either waives -- the agreement that he makes is either to the contractors makes.

I think that there’s a much closer question as to whether the public employee makes such an agreement.

The agreement he makes is not to waive immunity.

The agreement he makes is if he does not waive immunity, then certain the economic consequences will follow.

Justice Mr. Justice Stewart : i.e., termination.

Ms Brenda Soloff: i.e., termination.

Justice Mr. Justice Stewart : Suspension of the contractor for period of years, termination of the policeman --

Ms Brenda Soloff: That’s right.

Justice Mr. Justice Stewart : In his employment

Ms Brenda Soloff: That is right.

Termination of this particular contract is discretionary and disqualification for a limited period of time.

The consequences to a contractor are far less, devastating than they are of course to an employee.

Justice Mr. Justice Stewart : Well, then, do I understand you correctly that this case, the question in this case is whether a contractor is sufficiently different from an employee, so that the rule of the Gardner case does not apply.

Is that really what it comes down to?

Ms Brenda Soloff: I think that is what it comes down to, Your Honor.

Although, I think the Court need not reach the issue of reconsideration of the Gardner principle itself.

Justice Mr. Justice Stewart : Otherwise, we would have to reconsider the Gardner principle, the Gardner constitutional principle, would we not?

Ms Brenda Soloff: Yes, your honor, I think that’s perfectly correct.

But that the -- the consequences of what happens to a contractor have to be considered from the point of view or at the point in time of what he bargained for.

What was it that he bargained for at the time he went into the contract?

What was his understanding?

I think one thing that’s perfectly clear is that the interests of the State are both urgent and vital.

In the public contractor and in a public employee situation, it is also clear that a contractor has a higher obligation than the ordinary citizen to provide information with respect at least to the relationship which he has with the State.

If he’s unwilling to provide the information, then the relationship should not continue.

So, that the businessman understands when he goes after a contract on which he’s seeking to make a substantial amount of money.

But before that money, and even perhaps public safety will be committed to him, he must be willing to accept certain preventive measures and to cooperate in any necessary detection of wrong doing doing because typically in a situation involving contracts, detection of wrong doing will be difficult.

So then he enters into the special relationship with the State and he agrees that not withstanding any possible consequences, should the time come, he will be open and honest.

Even if it means that the evidence will be used against him and that he will be brought to justice.

Obviously, a principal benefit of this understanding is prevention.

Corruption may well be nipped in the bud.

The public not only is protected, but it has some sense of confidence.

The contractors can be called to account.

But the execution of contract is an open book and that the public is not being had.

Justice Mr. Justice Stewart : Well the agreement of the contract is in the form of a waiver of immunity?

Ms Brenda Soloff: The statute provides that the contract should contain a clause that in the event that the contractor refuses to waive immunity with respect to transactions or contracts had with the State, or to answer relevant questions respecting the contracts then the economic consequences follow.

Justice Mr. Justice Stewart : So, he -- So, there is -- if he refuses to sign a contract with that condition in it, then he is not going to get the contract.

Ms Brenda Soloff: That’s correct.

Justice Mr. Justice Stewart : So, there is a condition or a barrier to doing things with the State which amounts to a waiver of immunity.

Ms Brenda Soloff: No, I do not think that --

Justice Mr. Justice Stewart : Well, eventually it will amount to that because he can’t get the next contract if he reaches that provision.

Ms Brenda Soloff: At the time that he enters the contract, he is under no impermissible coercion to take that contract.

He’s after something.

The State is after something.

Yes, he can at that point to take it or not take it.

But there’s no, this kind of hard choice is not unknown and does not --

Justice Mr. Justice Stewart : It must be during the waive of immunity he can’t get more than one contract.

Ms Brenda Soloff: That’s right.

Unless he’s -- unless he’s going to --

Justice Mr. Justice Stewart : So, sooner or later, it amounts to he either waives of immunity or he doesn’t do business with the State.

Ms Brenda Soloff: Either agrees that should it become necessary, he will waive immunity, or he will not for a limited period of time be able to do business with the State.

Justice Mr. Justice Stewart : When a person does enough business with the State or perhaps when he’s informed enough then you can expect him to have advice of the counsel of what not you should.

You should sustain a State’s insistence upon a waiver, in advance, which -- let’s don’t quiver about what there is or isn’t.

You say it isn’t.

I look at it as sooner or later as an enforced labor.

You just say that the contract that you ought to uphold in an advance waiver by well enough informed person.

Ms Brenda Soloff: Where the interests are so severe on the part of the public, where the contractor is well enough informed, I am sorry, where the consequences are not the devastating kind of consequences which occur to a public employee then the balance, and this is always a question of balancing, shifts back toward the interest of the public in being able to know what has happened with its money.

And it being able somehow to prevent corruption to have an extra tool in preventing corruption in cases where public interest is so vitally concerned.

Justice Mr. Justice Stewart : It can’t really be a balancing process and so far as you can’t -- can you concede that there was a violation of the provision of the Fifth Amendment that’s been held to be incorporated in the fourteenth and then say nonetheless we should just to over look at in the interest of the taxpayers in the State of New York.

That’s hardly -- you cannot concede the violation, can you?

Ms Brenda Soloff: I don't concede a violation.

Justice Mr. Justice Stewart : And then ask this just to balance that out in the interest of the taxpayers in the State of New York.

Ms Brenda Soloff: No, I’m sorry if I even gave that impression.

What I’m saying is that the balancing process which takes place in determining whether or not, --

Justice Mr. Justice Stewart : There was a violation.

Ms Brenda Soloff: -- there was a violation;

Justice Mr. Justice Stewart : Well, I have a little difficulty to that.

Ms Brenda Soloff: It is what is stated here.

Because the question really is, are you compelling testimony by impermissible means?

Unknown Speaker: Wasn't your question the validity in the waiver and if there is a waiver, there is no violation.

Ms Brenda Soloff: But the waiver, the validity of the waiver depends on whether or not, it’s impermissibly compelled.

Justice Mr. Justice Stewart : Was there anything in the written contract that referred to this statute?

Ms Brenda Soloff: There is nothing in the record which indicates one way or the other.

There is an allegation in a memorandum of law filed by the appellees after the pleadings were filed but this was not in this particular contract.

I have since read the contract, the clause is not in the contract.

It is not any Eerie County contract.

I don’t know about other contracts.

Justice Mr. Justice Stewart : So, you’re simply relying on the presumption of the knowledge of the law that is part of everybody plus the fact that this was presumably a sophisticated contractor with good legal advice.

Ms Brenda Soloff: I’m relying on that as well as the fact that I’ve never had heard a claim in the pleadings that he didn’t know what the consequences are.

Justice Mr. Justice Stewart : Well, that was my question.

Is there any real dispute about this at all?

Ms Brenda Soloff: I don’t believe so.

Justice Mr. Justice Stewart : About what?

Ms Brenda Soloff: About whether or not the contractor actually knew that he was subject to termination and disqualification for failure to waive immunity.

The answer as far as I can derive it from the record is he was under no such -- he was not ignorant of the fact.

Notwithstanding the fact that clause was not in the contract.

The complaint below attacked the contract clause statute and the District Court struck that down.

Justice Mr. Justice Stewart : Now is there, I asked you before.

What is the Section 1123 of the New York City Charter that was involved in the Gardner case?

There’s no indication on that opinion.

I just read it as to knowledge on the part of the policeman.

But do we know the chronology if that was a part of the city charter the time that policeman got his job?

Ms Brenda Soloff: We don’t know.

Justice Mr. Justice Stewart : That is the same case you’re here, would not it on this issue?

Ms Brenda Soloff: I don’t know the chronology in Gardner, Mr. Justice Stewart.

Justice Mr. Justice Stewart : But as said were or it's a similar predecessor provision on the part of the city charter at the time of the policeman, Gardner, got a job that would be just the same situation as it is here with no indication that he did not know about it.

Ms Brenda Soloff: I think that we may have here.

There maybe some failure in the pleadings but I think that, that in common sense terms, we have to assume it is much more likely that the contractor in this case knew the ramifications of the law, then that the policeman in Gardner banned Section 1123 of the city charter.

Justice Mr. Justice Stewart : In my observation that employees generally know how to deal about the condition of the job.

Ms Brenda Soloff: And also as I said, the kind of consequence which attaches in Gardner and the kind of scope --

Justice Mr. Justice Stewart : Well, that’s something else, that is a different argument.

Ms Brenda Soloff: This is very, very different --

Justice Mr. Justice Stewart : Different branch of the organization.

Ms Brenda Soloff: Yes, much different from that.

Chief Justice Warren E. Burger: Ms. Soloff, suppose as a condition to getting the contract along the lines of Mr. Justice White was discussing with you, the State presented the contractor, the would be contractor with half a dozen standard forms of waiver of immunity with the title of the grand jury and the date and all that left in blank, and just got these waivers signed in blank.

Would you think that would pass muster?

Ms Brenda Soloff: No, I wouldn’t, Your Honor.

Chief Justice Warren E. Burger: How do you distinguish then from what --

Ms Brenda Soloff: What we’re dealing here --

Chief Justice Warren E. Burger: -- Justice White was suggesting that this was a de facto waiver of immunity?

Ms Brenda Soloff: Because what would bother me there is the scope of what’s --

Unknown Speaker: Let’s put it, the waiver said in it -- when the blank waiver said in it, covered only having things to do with his contracts with the State.

Ms Brenda Soloff: My reaction to that would be that we have to have involved here a genuine, an ongoing investigation into specific transaction and contracts being had with the State.

And that should that come to pass then the contractors requested either to waive immunity or to forego to cancel the special relationship that he has with the State for a period of five years.

Justice Mr. Justice Stewart : So, this is a -- the State is really taking a less severe approach than perhaps it could.

It doesn’t exist on a waiver but it might.

It says really we don’t insist that you waive in advance and appear before the grand jury and have your statements used against you.

You can choose not to have your statements used against you at the later day but the cost to you is you cannot do anymore business with us for a while.

Ms Brenda Soloff: You can but you choose at a time when you haven’t committed materials, you have not committed your firms; you haven’t committed yourself to a course of action involving that contract.

At the time you make that choice, you are still a free agent.

You haven’t obligated yourself in anyway.

You haven’t gone out and hired people to build the stadium.

You haven’t brought in subcontractors.

You haven’t done a number of things which would increase perhaps the pressure to sign a waiver.

What you’ve done is you said, “I really want that contract.

I will be open and honest, there is no problem whatsoever.

I’ll sign.”

And then, at the time when the provision is sought to be enforced, when there is a real problem, you say no, revoke.

And the consequence is not specific enforcement of a waiver of immunity but the promise has been broken, and the business relationship is severed, just as the original understanding provided but he did not testify and he did not waive immunity.

Justice Thurgood Marshall: Do you put this in the same category as a contractor that uses 80% cement instead of 81%.

Ms Brenda Soloff: I’m sorry, Mr. Justice Marshall.

Justice Thurgood Marshall: The contractor uses 81% of the cement instead of 85% of the cement, so he is punished for it.

Isn't that the law?

Ms Brenda Soloff: I don’t know.

Justice Thurgood Marshall: Well in this stadium, if he’s getting ready to build it, if he doesn’t live up to his specifications that he agrees to build the stadium, he’s punished by the State Court.

Ms Brenda Soloff: He has broken the contract.

Justice Thurgood Marshall: So, he put this in the same category.

Ms Brenda Soloff: No, I think this I think goes to different things and is --

Justice Thurgood Marshall: Like what?

You said is just he breaks the contract, he knows all his doings.

He makes the contract and then he breaks it and therefore he severed.

I think there’s a difference.

Ms Brenda Soloff: The difference lies in the scope of the public interest that you’re protecting here.

You are investigating in this situation, criminal violations as well as breach of contract.

The real crux of the matter I think is coming down to why we would want a waiver of immunity, why not grant immunity, and get the candor that we’re seeking.

And I think that the answer to that comes down to the fact that it’s not really that we are seeking to prosecute so much as it -- the State when it undertakes an investigation like this is not willing at the outset to give up the possibility of prosecution because not enough is known about what is involved in the investigation.

Immunity is not something lightly given or easily given and it should not be.

Where here, you have what I think what the Courts have acknowledged to be a higher obligation on the part of a contractor then on the part of an ordinary citizen.

This willingness, this pre-stated willingness to give information without the possibility of immunity has a part of that higher obligation.

Otherwise, you very much returned to -- if you give immunity then you’re placing the contractor in the position of the ordinary citizen.

Justice Mr. Justice Stewart : Ms. Soloff, is there any legislative history of this State legislation --

Ms Brenda Soloff: There is --

Justice Mr. Justice Stewart : -- indicating the kinds of evils to what he was addressed?

Is it bribing public officials to award contract or is it substandard performance by contractors or both or is there something else?

Ms Brenda Soloff: It is basically corruption -- problems involving corruption, Mr. Justice Stewart.

In our brief at pages, page nine essentially, there is a statement by Governor Rockefeller stating what the legislation grew out of and it was the problems that grand juries were having in getting information relating to public contract.

And the governor said, --

Justice Mr. Justice Stewart : Does that really, thank you very much.

It’s a very nice -- very nice statement.

Ms Brenda Soloff: There is another statement in the same volume which I did not set out in the brief dealing more specifically with the fact that in the Leino case, the US ex rel Leino against Wallick (ph) which is cited in our brief.

There’s a reference to the memorandum respecting the fact the grand juries were having a lot of trouble getting information about how the contracts --

Justice Mr. Justice Stewart : Do you really just say here, it would be appropriate to pass this legislation.

Ms Brenda Soloff: In the Leino case as I just said Mr. Justice Stewart there is, I believe a quotation, a further quotation dealing with the fact that that was at issue is a fact the grand jury simply have been (Inaudible) in getting information.

Chief Justice Warren E. Burger: Ms. Soloff, in the Gardner case, you remember that line that undertook to distinguish between the refusal to sign a waiver of immunity and the refusal to answer very specific questions relating to the performance of duties or contract.

Would the State of New York in your view, not have adequate protection if this architect we called before the grand jury asked the specific questions which the Gardner case purported to say if that’s still good law.

Ms Brenda Soloff: That’s not really -- well, it is not so easy to call somebody before the grand jury in New York, or any place else, Mr. Chief Justice Burger.

What happens if the State of the Law of immunity at the time this case arose, it was forbidden to call a target of an investigation or potential target of an investigation before a grand jury.

If somehow, without a waiver of immunity, if somehow he were called, he received automatic use immunity.

Chief Justice Warren E. Burger: This is under New York Law?

Ms Brenda Soloff: This is under former New York Law.

This is under New York Law at the time that this case arose.

Should he testify and claim the privilege against self-incrimination question by question as New York Law then required.

He would receive transactional immunity.

That is, without calling, he could not be put into the grand jury either without a waiver of immunity, or without immunity itself.

Today, the law is somewhat -- is somewhat changed although the impact is no different.

Today, New York gives automatic transactional immunity and has abandoned the target rule.

Unknown Speaker: Automatic transaction in this immunity to whom?

Ms Brenda Soloff: To any witness called before the grand jury.

Unknown Speaker: To any witness called before the grand jury?

Ms Brenda Soloff: I believe so.

Unknown Speaker: Even though he doesn’t claim the privilege?

Ms Brenda Soloff: That’s right.

He no longer needs to claim the privilege in New York under the new code Criminal Procedure Law.

Chief Justice Warren E. Burger: To what extent then, does this affect this importance of this case then?

Ms Brenda Soloff: Well, the waiver, the question -- there is a serious question of the scope of immunity being sought in this case.

It was not explored by the District Court.

Abstention was not raised as an argument.

But the statute, of course, speaks about waiving immunity with respect to any transactions had with the State.

It would be possible of course to waive transactional, the transactional immunity which would occur in being called before the grand jury or which could under the time this contract was entered into could’ve been claimed.

It’s possible to waive transactional immunity and still obtain use immunity, if that is not waived.

We all know what New York would do with the case like this at this point.

There’s in case in the New York Court of Appeals called People against Avant, which has pending decision now for sometime.

That’s cited in our brief.

The third department of the State of New York rejected a contractor claim.

Basically, on the sort of argument which we are presenting today on the public interest involved and the fact that the contractor is essentially changing his mind.

That case is still pending before the New York Court of Appeals.

Unknown Speaker: Well, that probably will turn on a New York problem.

Ms Brenda Soloff: It may or it may turn on this case depending on which is decided first.

Unknown Speaker: Why wouldn’t New York be satisfied with the rule that said that the -- surely the State may question a contractor about his performance of the contract?

And have indicated so -- terminating the contract or finding out what’s going on but that his answers may not be used against the human criminal prosecution.

Ms Brenda Soloff: Because the contractor does have as I said this higher obligation but corruption cases are very difficult to prove without testimony of principle.

Unknown Speaker: You want to be free to use his answers in the criminal prosecution.

Ms Brenda Soloff: If it comes to that, what we’re really saying is we don’t know when we question him.

Whether or not, we’re going to want to conduct a criminal prosecution.

And that we don’t to give it away at this stage.

We don’t want to placed in the position of having granted immunity to a principle figure in a very serious case.

Unknown Speaker: And yet, haven’t you also said that in certain state of New York Law as such that even if he waived immunity.

He might still be able to use his answers against some of the criminal questions.

Ms Brenda Soloff: If he waives immunity.

Unknown Speaker: This would tell (Inaudible) transaction with it?

Ms Brenda Soloff: That’s the question -- the question which I cannot answer because I don’t know what the New York Court would say and if I may point that one further thing in connection with that question, the New York Court of Appeals decision in Gardner against Broderick which was reversed by this Court specifically said, it was post-Garrity case and it specifically said, the waiver of immunity in this case, after Garrity means that the evidence cannot be used in a criminal prosecution.

This Court nevertheless held that that evidence was being sought for criminal prosecution and I really don’t know whether Gardner in the New York Court of Appeals is still the law of New York.

Unknown Speaker: Well, this Court held in Gardner that he was being penalized for asserting the constitutional right, i.e. for refusing to waive immunity that is what Gardner helped to decide --

Ms Brenda Soloff: But there was also the additional statement.

Unknown Speaker: I didn’t join the opinion but -- may not be the authority is to what it held.

Justice William H. Rehnquist: UMs. Soloff, does New York have any statutory authority for interrogating contract that is under or above the performance of their contracts other than a grand jury?

Ms Brenda Soloff: This very statute refers also to heads of state agencies, heads of city agencies and other, a number of any agency which is empowered to swear witnesses and to subpoena and to swear witnesses.

So, there are other agencies.

They do not give automatic transactional immunity.

They’re still under the old procedure.

Unknown Speaker: You don’t want to be -- you’re not satisfied with utilizing that device and being able to question the contractor about the performance of this contract with the understanding that those answers would not be used in the criminal prosecution, just use of immunity.

You’re not satisfied with that.

You want to be able to use those answers perhaps.

Ms Brenda Soloff: Use of immunity raises some of the same problems of being unable to prosecute of being -- of having the public spectacle of --

Unknown Speaker: Yes, you are not satisfied.

Ms Brenda Soloff: Yes, I am not.

Unknown Speaker: Well, your attraction of all the validity of the law that the New York Legislature passed, maybe you might be satisfied with it but the New York’s legislature has passed a different law.

That’s the one involved here.

Ms Brenda Soloff: The statute is very -- is much more carefully limited and any questions that go beyond the scope of the contracts would not be --

Unknown Speaker: But underlying that position is that you can’t really get to the bottom of what has happened unless you can get the information from the contractor himself.

Ms Brenda Soloff: That’s correct.

Unknown Speaker: That’s the basic reason, isn’t it?

Chief Justice Warren E. Burger: Mr. Robinson, while the subject is fresh in your mind as I’m sure it is from listening to the colloquy, I wonder if you would suggest what difference there is between that provision in the Gardner opinion of this Court of which, does that -- whether it is just alright to penalize a policeman or someone else for exercising his constitutional privilege under the Fifth Amendment but it wasn’t alright, it wasn’t constitutional to require someone to waive that in advance which --

Argument of Richard O. Robinson

Mr. Richard O. Robinson: Your Honor, I cannot find any distinction.

In fact, if anything, I think in the Gardner case, the statute in the proceeding which was involved was more restrictive and more related to the specific employment of the police officer.

Now, that Section 1123 stated at that time if any counsel man or other officer or employee the city shall after lawful notice in presses, willfully refuse to appear before any Court or judge or any legislative committee or body authorized to conduct such hearing or inquiry or having appeared shall refuse to testify or answer any questions regarding the property, government, or affairs of the city or of any county included within its territorial limits.

So that in Gardner, the law was even more restrictive and more limited than it is under Section 103 a b, sections of the general municipal law, Sections 26.

Chief Justice Warren E. Burger: Well, I was speaking of that one paragraph in the Gardner case in which the Court said that, if the appellant, the policeman and refused to answer questions specifically directed and narrowly related to the performance of his official duties without being required to waive immunity in advance then the privilege against self incrimination would not have been a bar to his dismissal but that still in fact is the law and not just a view of collateral question, it would mean that the policeman is penalized for exercising constitutional right, isn’t he?

Mr. Richard O. Robinson: We had no argument with that, Your Honor.

Unknown Speaker: Because it says without being required to waive his immunity.

And of course if he -- If he was granted immunity, then of course he could be asked any questions, a policeman or bricklayer or a judge or anybody else if he has been granted immunity then he has no more constitutional privilege.

Chief Justice Warren E. Burger: And then if this paragraph is still the law, he can still be penalized by being fired.

However, I’m simply saying that there are two different kinds of penalties, one of which the Court said it is all right to direct against the policeman and the other is not.

Mr. Richard O. Robinson: I assume that to be the gist of the concurring opinion of the decision.

Chief Justice Warren E. Burger: And in one case, he’s immune from criminal prosecution for the conduct for whatever happens but in the other case, he can be fired from his job so that there are just two different kinds of penalties directed at the same exercise or the exercise of a similar constitutional privilege isn’t that true?

Mr. Richard O. Robinson: Yes, and as I started to say I assume that to be the gist of a concurring opinion of Mr. Justice Harlan, Mr. Justice Stewart, in the Gardner case.

They had dissented in the Spevack and the Garrity cases and then --

Justice Mr. Justice Stewart : And we seized on this paragraph --

Mr. Richard O. Robinson: They seized on it and may have in effect overrule Spevack in process.

But the Court also states that there was not necessarily any criminal proceeding.

I would like to point out to the Court that in this particular case, a grand jury had been in the panel and the two architects here were presented with the waivers of immunity which stated that I have been advised by District Attorney John J. Honan at the grand jury of the County of Eerie now in sessions investigating charges of conspiracy, bribery, larceny, and other matters of every nature whatsoever appertaining thereto.

I am further advised that such charge and investigation may involve me so that they were directly -- they are made targets of the investigation.

I should like to point out from in regards to the previous remarks made in the argument that the law of the State of New York at the time of these proceedings was stated and People versus Steuding, not cited in the briefs, S-T-E-U-D-I-N-G, at six New York 2nd 214.

However, the Court of Appeals held it by virtue of the constitution of the State of New York, a perspective the defendant or one who was a target of an investigation might not be called or examined before a grand jury.

And if he was, he is constitutionally conferred privilege against self incrimination was deemed to violate it even though he did not claim or assert the privilege.

Now, that was incorporated in Article 50 of the Criminal Procedure Law.

So, at the time that this proceeding arose, the targets, the architects, the police here were presented with a waiver, directed him to give up all constitutional rights which is ahead of the time and compelling them, tempting the appellant to testify against themselves obviously in a criminal proceeding.

Unknown Speaker: Well, what’s your explanation for why a contractor -- responsible contractor shouldn’t be bound by his agreement in advance that if he refuses to answer questions about his contract that he can’t do anymore business with the city for a period of time.

Mr. Richard O. Robinson: Well first of all, there was no such provision in the contract.

The State statutes say that --

Unknown Speaker: Are you suggesting that the contractor didn't know about it?

Mr. Richard O. Robinson: I’m not suggesting that, Your Honor.

Unknown Speaker: Let's assume he did.

Mr. Richard O. Robinson: I think, we have to assume he did.

Unknown Speaker: All right.

You assume he did then why should not he be bound by that agreement that he must terminate business relation with the State unless he refuses to answer question.

Mr. Richard O. Robinson: First of all Your Honor, he makes no such agreement.

There was no such agreement.

Unknown Speaker: Well, he went into -- he signed a contract with the State.

Mr. Richard O. Robinson: He did but the statutory state --

Unknown Speaker: And the State Law said that if you do that, there are some certain consequences that come over.

Mr. Richard O. Robinson: The State Law says that every contract shall contain such a provision.

It does not state that every contract shall be deemed to contain such a provision whether or not it is written into it.

There’s nothing in any of the briefs or arguments here --

Unknown Speaker: It must all be technical.

For the purposes of this question, let’s assume that it had the provision in it that said, precisely what the law said.

Mr. Richard O. Robinson: Assuming that to be true, I think we have to fall back on the loyalty oath cases, as Farkova (ph) case to the effect that the State cannot require a public employee to waive his constitutional right as a condition of public employment.

My argument here and the argument of the --

Unknown Speaker: That’s what you have to get to.

Mr. Richard O. Robinson: Yes, the argument of the appellees --

Unknown Speaker: And the reason is?

Mr. Richard O. Robinson: The argument of the appellees is that this statute is overbroad.

We don’t argue that the Government might have less rights than any ordinary employer to inquire into the conditions of the contract, to inquire into relevant matters concerning the contract.

What we argue here is that this goes well beyond that and in effect permits the Government to employ its full powers of subpoena, and repression to inquire into matters not necessarily related to the contract.

Justice William H. Rehnquist: I thought over breadth was a doctrine in the First Amendment area.

Is your client asserting some sort of First Amendment right here?

Mr. Richard O. Robinson: It’s usually asserted in the First Amendment area.

However, I think in the last term in the case of Brooks versus Tennessee, it was asserted.

I believe that was under the -- that was in the Fifth Amendment area.

I believe that was an over breadth case.

I believe also that the city’s recent decision concerning the rights of aliens to public employment would be in the over breadth area.

That is there has to be some reasonable relationship of a limiting statute, a Government statute, a limiting constitutional rights.

Unknown Speaker: You mean a narrowly drawn statute which required a waiver in advance of your rights or waiver of your, or whatever is the objective here and now withdrawn when you wouldn’t see any problem with terms of contractor.

Mr. Richard O. Robinson: Well, I would see a problem with it but I do not believe it’s an issue in this case.

Simply, it’s not an issue in this case.

The issue in this case was very clearly stated by the lower court and that the statute goes well beyond limiting the limitations under constitutional right to narrowly confined areas concerning employment.

Unknown Speaker: And that even if the questions that the State wanted to ask in this case or the right kinds of questions, the statute might authorize other kinds of questions and therefore was invalid on the State.

Mr. Richard O. Robinson: That’s absolutely correct.

Unknown Speaker: Is that your argument?

Mr. Richard O. Robinson: Our position.

Unknown Speaker: Well, it really is a straight over breadth argument.

Mr. Richard O. Robinson: That’s absolutely correct.

And I believe that, that is the gist of the Gardner and uniform sanitations in all these cases that the statutes went above and beyond narrowly confined limitations relating to the employment.

The only other issue presented --

Chief Justice Warren E. Burger: You haven’t wished as far as my understanding indicated what is the difference between penalizing the man after the event and the thread of criminal prosecution for what is the constitutional distinction, I’m well aware that one is civil, economic remedy, and dismissal from employment and the other is exposure to criminal prosecution.

They’re both coercive in terms of exercise of the constitutional right, are they not?

Mr. Richard O. Robinson: Your Honor, I cannot distinguish between a prior restriction and a restriction imposed subsequent to the commencement of a contract.

Chief Justice Warren E. Burger: In other words you think what the court said in the Gardner was probably doubtful.

Mr. Richard O. Robinson: Yes.

Chief Justice Warren E. Burger: Doubtful constitutional law.

Mr. Richard O. Robinson: Yes.

Chief Justice Warren E. Burger: No.

I would well --

Mr. Richard O. Robinson: The only other point raised was the quantitative and qualitative or as to whether the thread of loss of contract, contracting privileges by a public contractor is somehow less of a penalty than a direct employee of the Government.

All I can say is in that, and that is pointed out in my brief, I can see no qualitative or quantitative difference between the firing of a laborer on a garbage truck who can go out and secure other laboring employment in the public sector, and termination of a contractor or an architect’s contract and restriction upon him for five years in future contracting.

If there are no other questions, thank you.

Chief Justice Warren E. Burger: Very well.

I think your time is all is used up, Ms. Soloff.

Thank you very much.

The case is submitted.

Featured:

Sarno v. Illinois Crime Comm'n - Oral Argument

Thu, 23 Aug 2012 18:19:04 +0000

Case:

Sarno v. Illinois Crime Comm'n

Media File:

70-7_19720111-argument.mp3

Related Transcript:

70-7_19720111-argument

Transcript:

Argument of Frank G. Whalen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Act further contained this provision.

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Not just to the State Legislature?

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

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

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

Justice Potter Stewart: Rather than just a legislative?

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

Justice Potter Stewart: (Inaudible)

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

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

Mr. Frank G. Whalen: I believe so.

Chief Justice Warren E. Burger: It is routine?

Mr. Frank G. Whalen: Yes sir.

Yes Mr. Chief Justice?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now --

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

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

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

You are concern about this client that you represent here.

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

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

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

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

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

Now, that is clear is not it?

Mr. Frank G. Whalen: Yes.

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

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

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

He could not tell.

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

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

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

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

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

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

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

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

Mr. Frank G. Whalen: Yes.

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

Mr. Frank G. Whalen: Yes.

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

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

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

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

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

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

Justice Byron R. White: Yes.

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Transactional Immunity?

Justice Byron R. White: Transactional Immunity?

Mr. Frank G. Whalen: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Right.

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

And, which leads to the second question of --

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

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

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

And then --

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

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

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

Mr. Frank G. Whalen: Yes Sir.

Justice Potter Stewart: Can he?

Mr. Frank G. Whalen: Yes.

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

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

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

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

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

They were suppressed and ordered return in the Trial Court.

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

Justice Thurgood Marshall: But what is the difference?

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

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

There was not even any question about immunity being granted.

That was a strictly a Fourth Amendment question.

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

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

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

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

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

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

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

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

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

Mr. Frank G. Whalen: Yes.

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

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

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

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

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

They did not.

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

That is my -- it is my problem.

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

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

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

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

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

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

Would that give you the protection that you need?

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

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

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

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

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

Mr. Frank G. Whalen: Yes Sir.

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

Mr. Frank G. Whalen: Yes, sir.

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

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

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

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

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

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

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

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

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

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

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

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

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

That is our.

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

Mr. Frank G. Whalen: I believe so.

I believe so Mr. Justice.

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

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

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

Certainly in this instance, it was never demonstrated.

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

This is no longer in the Illinois Immunity Act.

This has been amended and has been removed.

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

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

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

Justice Potter Stewart: In what respect?

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

Justice Potter Stewart: That part of it?

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

Justice Potter Stewart: Eliminated entirely?

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

Yes, sir.

Justice Potter Stewart: And there no substitute to this?

Mr. Frank G. Whalen: No.

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

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

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

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

And, we do not believe that answers supply this.

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

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

Thank you.

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

Mr. Flaum?

Argument of Joel M. Flaum

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

There is no double standard in Illinois.

Illinois is a transaction State.

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

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

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

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

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

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

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

If I might just amplify on it a little bit.

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

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

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

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

Mr. Joel M. Flaum: Yes.

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

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

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

That is on identical language.

I wish it would found --

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

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

Justice Potter Stewart: Not the same statute?

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

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

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

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

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

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

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

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

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

Yes, we do.

It is identical in effect in the United States Constitution.

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

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

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

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

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

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

Yes, it is.

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

Mr. Joel M. Flaum: No.

no, there are not.

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

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

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

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

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

Justice Byron R. White: Yes.

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

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

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

Its language and it is not as expensive.

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

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

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

Unknown Speaker: Well, it is time.

It seems to be a (Inaudible)

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

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

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

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

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

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

Illinios met that test that we feel in this case.

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

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

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

It is just been charged with being a defective transaction.

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

Both men filed responsive pleading then accepted that basic premise.

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

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

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

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

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

That just did not occur here.

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

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

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

Mr. Joel M. Flaum: Yes.

The State of Illinois has adapted for that higher standard.

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

Justice Potter Stewart: It may re-consider --

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

If this statute falls it falls within effectiveness in structuring.

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

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

Rebuttal of Frank G. Whalen

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

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Kastigar v. United States - Oral Argument

Thu, 23 Aug 2012 18:17:34 +0000

Case:

Kastigar v. United States

Media File:

70-117_19720111-argument.mp3

Related Transcript:

70-117_19720111-argument

Transcript:

Argument of Hugh R. Manes

Chief Justice Warren E. Burger: We will hear argument next in Number 70-117, Kastigar against the United States.

Mr. Manes you may proceed whenever you are ready.

Mr. Hugh R. Manes: Mr. Chief Justice and may it please the Court.

This case involves the constitutionality of the federal use immunity statute Title 18 Sections 6002 and 6003.

The question presented in this case, whether federal use immunity as conferred by Section 6002 is coextensive with the Fifth Amendment privilege against self-incrimination.

This case arises from the imprisonment for civil contempt of the petitioners, both of them, by the federal district Court or the central district of California for refusing to answer questions put to them by the -- before the grand jury for violations or alleged violations of the selective service law.

The petitioners were accorded use immunity by the United States Attorney and ordered to answer by the United States District Court pursuant to that immunity which was conferred under Section 6002 and they declined to answer the questions in any event invoking their privilege on their theory that the immunity offered by 6002 was incomplete.

Petitioners contend here that only transactional immunity will satisfy the Fifth Amendment privilege.

We take that position for several reasons.

First, the history and development of the privilege and the logic compel absolute immunity be granted and nothing less.

Secondly, we argue that so called tainted evidence, rules required for the administration and control and supervision of the use in these statute are inadequate.

They cannot guarantee the absolute immunity which the Fifth Amendment demand requires.

Thirdly, we take the position that the statutorial language of 6003 so limits the Court power as to prevent a fair and reasonable application of use immunity and in particularly prevent adequate Court supervision of the use of that particular immunity.

Finally we argue that use immunity conferred by 6002 coupled with existing statute for example the Jenks Act rule 16 and other provisions.

As such has to deprive the witness of due process and abridge his right guarantee him by the Fourth and Fifth Amendments and particularly to render these immunity statutes at bar unfair as against the subject witness who may become an accused person.

Before I proceed with that argument, I would like to point out something about this particular statute that we are dealing with which is in response to questions put to prior counsel.

This I would respectfully submit, is use immunity statute that has no limitations indeed it is called a general immunity law.

It is not limited in its application to simply multi-defendant cases nor is it limited in any way to any particular kind of offense.

It permits immunity to be granted and the witness to be compelled to answer and virtually, most if not all offenses.

And certainly as again, whether the person is an individual and charged or suspected of only an individual crime as well as of course, the multiple defendant offense in this kind of situation.

And we submit that where you have a statute that is as broad as the statute at bar from a prosecution point of view if it is there, it is going to be used.

And it is limited in its use.

It has to be approved by somebody in Washington at least besides the assistant attorney general level or it has to be ascertained.

It has to be the authority for giving, immunity must be approved by the attorney general or its authorized representative, but I would submit Your Honor that under Section 6002 has to be as –

Unknown Speaker: The attorney general, the deputy or one of the assistants here in Washington, do I read the statute correctly?

Mr. Hugh R. Manes: Yes sir.

Unknown Speaker: And is that true also with respect to subsection 3 of 6002 when it involves questions before a committee of all the houses of congress.

Mr. Hugh R. Manes: Well, Your Honor I would assume so but I am not addressing myself to the question of scope as--

Unknown Speaker: Well, I am just inquiring as to the scope of –-

Mr. Hugh R. Manes: I would assume Your Honor that that would be true in both cases but I could not represent as to its effect with regard to the house or congress might certainly confirm that that would be true as regards immunity for a grand jury.

And I would add to that if the Court please, that the representations maybe made through the Court as mere conclusions as they were below with regard not only to the authority.

And I would further point out that all that the United States Attorney may show is a conclusionary statement that it is in the public interest for the government to grant immunity and to inquire also really of the witness.

He may not -- he is not required to show in the Court cannot demand that he show reasonable cause for intruding on the privacy, I think this is a very important thing that we are talking about a secret proceedings such as the grand jury as in this case.

In any event, what I wanted to --

Justice Potter Stewart: What does the record in this case show if anything as to the authority under -- as to who did authorize this and why?

Mr. Hugh R. Manes: All the records shows Your Honor and that will appear in the appendix at pages 54 and 60 of the appendix, actually 54 through 60.

Justice Potter Stewart: Right.

Mr. Hugh R. Manes: It simply shows that the United States Attorney represented, that there was a public interest in having the petitioners appear before the grand jury with use of immunity.

That they would invoke the Fifth or indeed had done so in the case of Kastigar and that the privilege was made with good faith with the approval of the Attorney General of the United States.

That is all the showing that was required and I want to reiterate that the showing that is made there is without any detail as to in what respect there is a reasonable cause, it is just a conclusionary statement.

Now, I wanted to urge upon this Court why we take, why it is important to us at least that transaction immunity be regard as the very limit for the Fifth Amendment for the grant of any kind of immunity and I would urge upon this Court that it is the government that wants immunity.

When we talk you know, of giving immunity back, I would urge this Court to consider that it is the government that is seeking to force a person to testify against himself.

And they are seeking that immunity, they are seeking that testimony to compel him to testify against himself because they want some information and he is not convenient for doing that.

Chief Justice Warren E. Burger: We will suspend for an hour.

Mr. Hugh R. Manes: Mr. Chief Justice, state counsel, may it please the Court.

It has been said and argued that---

Chief Justice Warren E. Burger: Do you want, I gather you want us first to overrule the Ullmann case.

Mr. Hugh R. Manes: The which case please?

Unknown Speaker: Ullmann.

Mr. Hugh R. Manes: Ullmann?

Well I would—

Unknown Speaker: Ullman case.

Mr. Hugh R. Manes: I would like that but I try to be realistic Your Honor and assume that is --

Unknown Speaker: First part of your brief deals with that problem.

Mr. Hugh R. Manes: It does and because we believe that the Court has never answered the question as to whether the Fifth Amendment and its history does not enjoin compulsion and on that pieces your honor.

Unknown Speaker: Well, I address myself to the dissenting opinion as you may remember.

Mr. Hugh R. Manes: Yes Your Honor, I do.

Unknown Speaker: But nobody except for Justice Blackmun agreed with it.

Mr. Hugh R. Manes: I know that Your Honor and so I am taking it from there.

But if the Court please, I -- there is an argument that is being made that the Fifth Amendment protects only use of compelled testimony, and I want to address myself to that just for a moment and point out that the Fifth Amendment has been held by this Court in Ullmann not to be interpreted in a hostile or negative spirit, and that it is to be construed liberally to effectuate its intent and purposes and that was the holding of course in Spivak versus Kline (ph) as well as many other cases.

And so I would note that there is not just one purpose as this Court observed in Murphy at page 55 and as observed as long ago as Boyd versus United States, the Fifth Amendment has many purposes that had to be considered when you are evaluating the question of whether use immunity is efficient.

For one thing, the Fifth Amendment was designed and came in to our constitution to prevent disclosures by torture and well, I submit that maybe some may feel that that is kind of remote now, we are in a modern age.

I would remind this Court that it was only 30 years ago when this Court was forced to deal with the problems of third degree in Brown versus Mississippi, Chambers versus Florida and a whole series of cases and only a few years ago when this Court had a hold Miranda that it was necessary for an accused to be given a warning about the effect of this testimony.

So we are concerned with the scope of that protection as applied to coercion.

But in addition to that, the Court please I would submit that the Fifth Amendment also has policy consideration which is long been the concern of this Court, that is the distrust that we have of coerced testimony, the distrust we have of it.

I would submit that in Brown versus United States which was decided only a year after Walker versus Brown, this Court made a very important observation.

It recognized at page 547 168 U.S., the human mind under the pressure of calamity is easily seduced and is liable and the alarm of danger to acknowledge indiscriminately, a falsehood or a truth as different agitations may prevail.

And why I think that particular quotation is apt here is because the petitioners here are put in the position of avoiding jail not simply because they have been granted immunity or be held in contempt, but that they are compelled to avoid jail by giving information which they think the government may want to hear and ought to avoid prosecution.

Now, that is a tendency, I would respectfully submit, that is inherent in any use immunity statute and certainly in the one involved.

But there is another policy consideration here too and the Court please, and that is that it is to avoid not simply a trilemma but a quatrolemma if the Court please of self accusation, perjury and contempt and the possibility of prosecution.

I would submit that Brown versus Walker deals with that dilemma or that quatrolemma as I prefer to call it.

Very succinctly and poignantly and remember this is in 1896 when the Court there is talking about the policies which gave rise to the Fifth Amendment and it observed that if an accused person be asked to explain his apparent connection with the crime under investigation, the ease with which the question has put to him may assume an inquisitorial character, the temptation to press the witness unduly to (Inaudible) him, if he be timid or reluctant, to push him into a corner and to entrap him.

To entrap him into fatal contradictions which is so painfully evident in many of the early state trials made the systems so audios as to give rise to a demand for its total abolition.

In the context of this case, I would respectfully submit in response to a question that was posed to counsel this morning.

That the accused here does not hold exclusively the keys to his jail door.

On the contrary, it is like anyone who has money and has a safety deposit box, he shares that with the bank and so here, the accused shares the keys with the government.

For well it is true that he can talk and thus open the door of contempt that has confined him in contempt.

The government holds the key as to whether his talking may lead to a desire to prosecute him and therefore I submit that when we are talking about quatrolemmal, we are not talking about the policy and the privilege, we have to consider this possibility as well.

We have to consider what was said by this Court in another cases.

The choice here that the accused has between the rock and whirlpool multiplied.

And there is another consideration to Court please and that is the basic respect which this society has for the inviolability of the person and his privacy as the Court noted.

In Mallory versus Hogan as it noted.

In Miranda versus Arizona and it is certainly noted long ago in the Boyd case when it observed that any compulsory discovery by extorting the parties oath or compelling the production of his private books and papers to convict him of a crime or deport that his poverty certainly is a principle that merges into the Fourth and the Fifth Amendment.

And another point, we have here in our society a preference for the prosecutorial system, for the accusatorial system, which places the burden entirely on the government, and not for the inquisitorial process, which I would respectfully submit certainly in the context of this case.

It takes place in the grand jury room where the accused is without a lawyer.

Where he has no protection whatsoever but where he is faced with a lawyer.

And I would respectfully submit that given the secrecy which attends all grand jury proceedings and the secrecy which prevails thereafter as the decisions of this Court have made quite apparent in many cases, that it will be extremely, the accused will be extremely hard put not to feel a sense of entrapment by the circumstances which attempt the use immunity situation.

But there is one additional consideration which I think underscores the Fifth Amendment as I read the cases of this Court and that is the notion of a sense of fair play which requires the government to let the individual alone unless it has reasonable cause to justify intruding upon him.

Now, as I pointed out earlier in my comments, This statute gives the accused no opportunity whatsoever nor indeed the Court to inquire whether there was reasonable cause to peruse his privacy or indeed his defenses and allows the government to ransack his defenses as the accused is not permitted to do with respect to government files.

Now, I would respectfully submit that there is other considerations.

That for example the protection of the innocent even though some guilty may benefit incidentally, that is a choice.

That is a choice which government makes in the context list of this kind of statute and it is a choice which is made upon the circumstance that if the accused has something that it wants to have badly, then the government should be put to the choice as it was put to the choice in Rosairo, as it was put to the choice in Andolshek and Coplin and a number of other cases, it has got to choose.

If it wants to have information, then it will have the information that avoid prosecution.

But if it wants to prosecute, then prosecute and let the privilege remain the sanctuary of the individual who is presumed to be innocent.

Chief Justice Warren E. Burger: And then you think there is, is there any empirical data had been assembled by anyone, any significant way to show how many persons who have been granted immunity in exchange of a testimony had there after been prosecuted and have these problems that you are discussing?

Mr. Hugh R. Manes: No sir, I mean, I am not aware of any empirical data and as a matter of fact I suspect one reason maybe because use immunity is still somewhat new, this statute was only passed last Fall.

Chief Justice Warren E. Burger: And I was thinking of immunity generally.

Mr. Hugh R. Manes: I am not aware of any Mr. Chief Justice but I would say that there are some cases which show the difficulties that Courts have had even with transactional immunity although the difficulties are not going to compound with use immunity but I do not hold any empirical data in the Court.

Finally, I want to submit one other additional consideration to this Court for policy consideration, and that is the respect for law and the orderly process of administration that comes with the idea that a man cannot be compelled to accuse himself and which will be undermined when there is even the suspicion that an accused has been given, that there maybe some evidence that is being used to taint his trial that has come from his own mouth.

I remember reading somewhere, I think it was in Moore versus Dempsey where Mr. Justice Holmes once said that it is not only important to give justice or to do justice but to give the appearance of justice and I think that this is an important consideration.

Now, I am not going to here debate, the question whether Counselman ought to is dicta it is not -- I take the position it is not dicta but obviously this Court is concerned to reevaluate the problem that the Counselman addressed itself too.

And I would however point out to this Court that there have been a -- the Ninth Circuit affirmed of the use immunity statute here, that has not been true in a Seventh Circuit, that has not been true in the Third Circuit, citation to the Satina case, Satina versus Elias being in the 449 F 2, page 40 and more recently just recently, the Eighth Circuit also took the view that the Ninth Circuit was an error and viewed, viewed the underlying policy considerations of Counselmen as prevailing and I refer here to United States versus McDaniel 449 f 2 832 at page 838.

That case incidentally is kind of interesting because it addresses itself to one of the questions that was put to counsel early this morning.

When counsel was asked about weather he was overzealous, whether a prosecutor was going to be overzealous.

In that particular case, I would point out that counsel there was the federal prosecutor who because he was informed by his administrative agencies that there was a suspicion that a bank president was defalcating and embezzling monies.

Turn the matter over to a State to the state of North or South Dakota and the State then held an immunity grand jury proceeding, on the ground of immunity and then at the request of the United States Attorney, turned that transcript over to the United States Attorney for prosecution and indictment followed.

I would say that the Court there held, that that was prime facie evidence of the use of fruits but I would also point out that it demonstrates as does of course, the Berger in 295 U.S. and number of other cases demonstrates that prosecutors can be at times overzealous and particularly when conferred with such extensive power as appears to be the case here.

But when I first spoke, I suggested that there were other compelling reasons why I believe use immunity should not prevail and one of the most important of those reasons of course is that it is inadequate, that the rules that are designed to enforce and administer the use immunity concept are just simply unable to effectively displace the Fifth Amendment.

In short, what I content, what we contented in our briefs is that that the rules that are designed to protect the Fourth and Fifth Amendment in search and seizure cases and in the forced confession case are simply not adequate to protect or to at least define the limits of the Fifth Amendment.

In short, what is happening here, what is being argued for here is the use of essentially procedural rules to define the substantive rights of a witness and I submit that that cannot be done without creating some terrible problems for an accused who is questioning whether the evidence used against him in a subsequent prosecution had this tainted.

Let me suggest some concrete examples of what I am referring to in this concept.

First of all, California, the California Supreme Court decided in People versus Dickson 57 Cal 2 at page 415, that was a forced confession case and it held there that the fruits of a forced confession were not admissible but it went on to hold that the fruits of a forced confession may not be admissible but that if the evidence was discoverable, was discoverable by law enforcement that therefore that under those circumstances there was an attenuation and that evidence would be admissible.

And that same theory that was used in the Dickson case and in subsequent California Supreme Court cases, and the case of like nature has also been applied by the District of Columbia Court of Appeals in Wayne versus United States 318 federal second and it was applied most recently by the Ninth Circuit in a case, United States versus Jackson 448 federal second at page 970 where the Court and I am quoting said “it would be speculative to conclude that but for such information, the police would not have identified defendants or learned their place of residence.”

I would like to reserve some time for reply, thank you.

Chief Justice Warren E. Burger: Very well, Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: Mr. Chief Justice and may it please the Court.

The facts of this case are simple and not in dispute.

The respondent here was ordered to testify under pursuant to Section 6002 of Title XVIII of the United States code, he refused to do so.

The question is whether his sentence were contempt for failing to comply with that order can be sustained consistently with the Fifth Amendment.

Of course, the language of the Fifth Amendment is familiar to all of us.

It is one of the shortest and the simplest clauses in the constitution but I think it is worthwhile to get back to the language.

I do not suggest for a moment that it should be construed literally.

On the other hand I do not think that it should be regarded as a take off point for a vast expansion which has sometimes occurred.

But the language is that no person shall be compelled in any criminal case to be a witness against himself.

And the language of Section 6002 which is Section 201 A of the organized crime control act of 1970 is that though the witness is required to testify under that statute, no testimony or other information compelled under the order or any information directly or indirectly derived from such testimony or other information maybe used against the witness in any criminal case.

The problem arises because of the language in Counselman against Hitchcock, 80 years ago.

The case it seems to me is a sort of jurisprudential case and example of the process by which the law grows and develops In this case, after rather extended delay.

We now know that there are at least three measures or varieties of immunity, not two as we long assumed in support.

The use immunity, which was involved in Counselman and Hitchcock and was held to be inadequate and invalid.

There is extended use immunity.

Immunity not only to the use of the testimony but to its fruits which is what is involved here.

And finally there is transactional immunity giving amnesty or pardon with respect to any offense covered by the testimony and that was held to be sufficient in Brown and Walker.

There is complete agreement as to the invalidity of use immunity alone and as to the validity of transactional immunity.

The problem arises and is presented here with respect to the validity under the Fifth Amendment of full extended use immunity applicable not only to the evidence given but also to the fruits of such evidence.

The situation that seems to me comes within the examples of which the common law is filled which are dealt with in by Dean Pound in his work on jurisprudence, volume three page 564 where he says we must distinguish subsequent judicial rejection of the reasoning by which the result was reached in a prior case and substitution of different reasoning leading to the same result from a changed course of decision and he concludes it cannot be insisted upon too often that the common law technique does not make the language authoritative, much less a binding authority.

It is the result which passes into law.

No one saw the distinction between use immunity and what I will call extended or complete use immunity.

For almost 75 years after Counselman against Hitchcock was decided.

I thought a lot about the privilege against self-incrimination, some 17 years ago.

But I did not see the distinction.

Mr. Mayer’s in his thought provoking book called 'Should the Fifth Amendment be amended', published in 1959 did not see it.

Judge Friendly in his lectures on reconsideration of the Fifth Amendment published several years ago did not refer to it.

Unknown Speaker: Now the distinction to which you are now referring is the distinction between what use and (Inaudible)

Mr. Griswold: Use immunity alone such as was held invalid in Counselman versus Hitchcock.

Unknown Speaker: Right.

Mr. Griswold: And in immunity against the use of the evidence and all of its fruits construed as broadly as the Court feels it should be construed.

The fact was that for ordinary purposes, the question was concealed because immediately after Counselman and Hitchcock was decided, Congress picked up the sweeping the language which Mr. Justice Buchwald has used in a part of his opinion there.

The statute which Congress enacted was introduced in the Congress 12 days after Counselman against Hitchcock was decided.

And Congress provided full transactional immunity in nearly every case where it required the testimony be given in one case where it gave only the narrow use immunity, the Court did held that that was invalid.

Congress did this because it thought it had to do so.

It was only many years later, when this Court found for the first time that the Fifth Amendment applied in terms of the States.

In 1964 seven and a half years ago, the question rose to the surface.

It came in through the side door so to speak because Congress by its statutory language had left no room for it to come before the Court directly in a federal criminal case.

Now the case to which I refer is of course Murphy against the Waterfront commission where the immunity was granted by a Bi-state Organization.

It was held that the state had no power to grant immunity, transactional immunity against a federal prosecution but the Court sustained the statute by holding that under its supervisory power or in some other way it did not wholly clear the testimony obtained in the Bi-state Proceeding could not be used nor could its fruits be used in a federal prosecution and that that complied with the Fifth Amendment.

The issue was implicit and Mr. Justice Goldberg’s opinion for the Court in that case for example, 378 U.S. at page 78 and 79, Justice Goldberg’s statement of Counselman against Hitchcock refers several times and only to use and its fruits.

It was explicit in Mr. Justice White’s concurring opinion and in the Courts opinion, the opinion of Justice Goldberg.

The conclusion was, that the testimony could not be compelled unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against it and then he repeated the conclusion that the federal authorities would not be allowed to use the evidence or its fruits and said this exclusionary rule of permitting the States to secure information necessary for effective law enforcement leaves the witness and the federal government in substantially the same position as if the witness had claimed his privilege in the absence of the state grant of immunity.

And the distinction was explicit and the opinion of Mr. Justice White concurring on that case and if it was that opinion I think which brought it well out into the open and got a lot of people to thinking and resulted in the work by professor Dickson of George Washington University incidentally he has filed a brief in the Zicarelli case on behalf of the National District Attorneys Association which seems to me as an excellent brief and which I hope will be considered in connection with this case.

Since then, the Court has several times given intimations that extended use immunity is sufficient in Gardner against Broderick for example in 392 U.S., the Court said answers maybe compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony for its fruits in connection with the criminal prosecution against the person testifying and more recently last term in United States against Freed, the Court upheld the latest version of the firearm statute under situation which I think analysis will show can be supported only if extended use immunity is adequate.

Unknown Speaker: What about Spivak Mr. Solicitor General?

Mr. Griswold: Spivak was the case of a lawyer, how far that is affected by Gardner and Broderick, I am not sure.

Gardner and Broderick says that—

Unknown Speaker: Well, Spivak has never been really overruled has it?

Mr. Griswold: Spivak?

Unknown Speaker: Has not --

Mr. Griswold: Has what?

Unknown Speaker: Not been overruled.

Mr. Griswold: I do not believe it has been overruled except that Mr. Justice Harlan who dissented in Spivak against Kline (ph) felt it possible to concur and Gardner and Broderick because he thought it had in effect removed the substance of Spivak against Kline and I think it is true that a lawyer cannot be disbarred or a policeman removed because he claims the Fifth Amendment but it apparently is true that both things can be done because the lawyer declines to answer questions and that seems to me to be a fairly thin line.

Thus it seems to us that the Court has at least twice decided that extended use immunity meets the requirements of the Fifth Amendment.

Murphy is not affected by the fact that two jurisdictions were involved there, there were two jurisdictions but there is only one Fifth Amendment and it is now equally applicable throughout the United States in all tribunals, federal and state.

If extended protection against use of evidence and its fruits is sufficient to sustain the validity of a state statute, it is sufficient under the same constitutional provision to sustain the validity of a federal statute.

And on this I would like to call the Court’s attention to the dissenting opinion of judge Vandosen in the Catena Case to which reference has been made 449 U.S. 40, Judge Vandosen’s opinion begins on page 46 and he considers it in some detail, the question of the -- 449 U.S., folks I am sorry, federal second 449 U.S. is little added in history, 449 federal second—

Unknown Speaker: Page 40.

page 40.

Mr. Griswold: Page 40 and Judge Vandosen’s opinion begins on page 46.

The Court could not have decided Murphy as it did unless extended use immunity meets the requirements of the Fifth Amendment nor could it have decided Freed as it did unless extended use immunity meets the requirements of the Fifth Amendment, those cases should be controlling here.

Now, contrary to one of the counsel who appeared this morning, I believe that Counselman against Hitchcock was rightly decided, we do not ask that it be overruled but some of its language is now seen to have been too sweeping and this is one of the ways in which the law develops and the time has come for this development here.

Unknown Speaker: Mr. Solicitor General, do you think we have to have one rule about use immunity in all situations?

It seems to me the interest may differ in various context, for example it was clean in Spivak and Kline and (Ph) Garide.

Mr. Griswold: I am not at all sure Mr. Justice that we need to have it in all situations.

I do feel fairly sure that the same rules whatever they are should be applicable both with respect to the application of the immunity in Federal Courts and State Courts.

Unknown Speaker: Yes I do no think—

Mr. Griswold: I do not find any distinction on the two state basis.

Unknown Speaker: What if the rule, would suggest that you were varying the rule if you said that there maybe state interest, or federal interest say such as in Murphy against Waterfront which might justify taking a risk of incrimination and in another context it would not be justified.

Mr. Griswold: Mr. Justice, I certainly would not contend for a rigid fixed rule of any kind.

I do not think that there is any distinction on that basis between Waterfront and this case.

There may well be other cases such as the discipline of lawyers and discharge of policeman which would present different factors.

I have not given a great thought to them and do not now see any particular distinction but there may well be, I do think that this situation involving the seeking of the evidence of a witness for use in connection with criminal matters is not distinguishable on grounds of special situations from Murphy against the Waterfront.

Unknown Speaker: There has a state interest you say here within the jurisdiction of the same hazards that counsel --

Mr. Griswold: It seems to me to be exactly the same.

Now we have held in other fields where the Court has made sweeping decisions which were right and has later qualified a language, the one that first occurred to me had to do with taxation of stock dividends where the Court in Ison and Macombers said that the stock dividends are not income and cannot constitutionally be taxed.

Congress then immediately stepped in and passed the statute saying stock dividends are not taxable and it was not possible to raise any further question under that statute.

It was only through the side door when somebody was ingenious enough to raise a question with respect to the basis of stock dividends that the Court intimated that well maybe some stock dividends are taxable and in the Coslan Case, it was decided some stock dividends are taxable and Congress has now passed the statute much as it did here providing that certain stock dividends are taxable.

We have a long standing constitutional problem in this country as to the applicability of a non discriminatory tax on the income from state municipal bonds that cannot be raised directly before this Court but for the time being, because congress has enacted that such interest is not taxable but perhaps it may come up someday and the Court may find reasons to qualify some of its earlier positions, it may come up someday for example if congress extends the tax on tax preference income.

Now, the Court may well be concerned about the practical effect of a decision along the lines I have indicated.

We do not want to widdle away on basic Fifth Amendment guarantees impairing it in its important function but that does not mean that we should not perfect our understanding of it and apply it now in a way which leaves its essential guarantees in full effect, wholly unimpaired, while defining its limits in such a way as to preserve other values which are consistent with or indeed required by the constitutions.

Let me suggest the following considerations.

As to evidence, first discovered after immunity has been granted, there should be a heavy burden on the government to show that any such evidence is not the fruit of a lead or clue resulting from or uncovered by the compelled testimony.

This should not be a conclusive presumption because there can be cases where the government can demonstrate that such evidence was independently derived.

It comes in the mail for example, the day after the testimony was given and it has been post marked in France a week before.

The government can show there that the evidence it has was not a result of the compelled testimony.

Unknown Speaker: You talked about a presumption and I missed the presumption that you have just told us now should not be conclusive.

Mr. Griswold: I simply said that -- I said burden, there should be a heavy burden on the government to show that, its evidence was not derived directly or indirectly from the compelled evidence but I said I thought it should not be a conclusive presumption.

Unknown Speaker: How about the—

Mr. Griswold: The government ought to be free to show if it can, that it derived it independently.

Unknown Speaker: We were cited by your brother on the other side to the California case or the Court said, well it was findable, it was findable by the prosecution estrange to this testimony, do you think that would be enough for the government to show?

Mr. Griswold: If it I am sorry Mr.—

Unknown Speaker: I am not, well I am not quoting it but this, it was susceptible of being discovered independently of the --

Mr. Griswold: No, I think the government ought to show that it did discover it independently and that it was not led into it or induced to it by—

Unknown Speaker: I do not have the case in mind but he referred to some California decision—

Mr. Griswold: Neither do I.

It will be rare, I think that the government will want to use or should be able to use evidence which first came to its attention after testimony was compelled and extended use immunity was granted.

Unknown Speaker: Mr. Solicitor General, what about the situation that one of the counsel in one of the previous cases indicated where the government does compel the testimony and the testimony is given and this induces the prosecutor not to use the testimony except to launch an investigation and by independent means, wholly unrelated to the testimony except by the fact that it was given search out independently.

Mr. Griswold: That is a hard question but I think if it can, if it does appear that the investigation was the consequence of the evidence being given, that then the evidence is something which was indirectly derived as a result of the testimony given.

Unknown Speaker: Would you agree?

Mr. Griswold: I would construe directly and indirectly quite broadly and I would put the burden on the government with respect to evidence derived after the testimony is given.

Unknown Speaker: So but for, you would put on a but for test in the sense that except for the testimony the government would never had it?

Mr. Griswold: Almost Mr. Justice, on the other hand I hate very much to give conclusions about purely hypothetical cases knowing full well the practical situations can arise which will make it to look different.

But I am perfectly agree to say that I think there should be a heavy burden on the government to show that the evidence it wants to use was not directly or indirectly derived from the testimony.

Chief Justice Warren E. Burger: Mr. Solicitor General, would you agree that as a practical matter, sometimes the government state or federal will initiate an investigation simply because a particular witness answers a particular question for a grand jury by clamming Fifth Amendment immunity.

Mr. Griswold: Yes Mr.—

Chief Justice Warren E. Burger: That is nothing more and that will trigger.

Mr. Griswold: Yes Mr. Chief Justice, I have no doubt that that may start people to thinking and or why is that and let us look up this and see what we can find and then surprisingly enough they do find something.

Chief Justice Warren E. Burger: That prosecution is in Florida which has –

Mr. Griswold: That prosecution is perfectly valid.

On the other hand, once you have given immunity under a statute which says that the evidence shall not be used directly or indirectly in the prosecution of the defendant, I think there is a heavy burden on the government but I want to point out.

Chief Justice Warren E. Burger: Let me carry it one step further.

Sometimes when an investigation by a collateral prosecutorial agency is triggered by the mere fact that someone is subpoenaed to come before a grand jury, before he ever asks a question is it that true?

Mr. Griswold: Yes it could be.

Chief Justice Warren E. Burger: So that, there are many circumstances which trigger or set off investigations by law enforcement.

Mr. Griswold: There are many circumstances, on the other hand here we have a statute which says that evidence compelled shall not be used directly or indirectly against the accused and I think in a proper construction of the Fifth Amendment, that that should be given a broad interpretation.

But in many cases the evidence, the government has ample evidence before the extended use immunity is granted.

The government’s need and objective is not to get evidence against this defendant but rather to get his testimony against another and usually more important defendant.

Let me take the example of a man who was arrested red handed driving a truck filled with stolen television.

They have got finger prints, they have got eye witnesses who saw every stage of it.

They have got his signature on a receipt that he signed for the goods.

There is no any question about their having sufficient evidence to prosecute him.

Proposal was made that he should plead guilty and testify against his principles and the hope that he will get a lighter sentence but he refused it.

Still, they want to get testimony against the big operators.

It is his testimony maybe essential, that the ring leaders are to be brought to justice.

As things were before 1970, his testimony could be had only at the price of giving him complete amnesty although the government already has plenty of evidence against him.

Indeed, why in the world should he plead guilty and hope for a lighter sentence where if he just sits back and knows that the he will get transactional immunity.

He could not testify against the big operator without disclosing his own guilt and thus he could sit back and demand complete immunity, another aspect of it.

Justice Potter Stewart: Well, well taking a hypothetical case, what on earth have you given this fellow when you are giving this kind of immunity?

You are giving him nothing at all.

Mr. Griswold: You are giving him immunity against the use of the evidence which he gives and its fruits.

Unknown Speaker: But by your hypothesis, you caught him red handed.

Mr. Griswold: By my hypothesis, that will not -- but that is all the constitution requires is that he not be required to testify against himself.

Unknown Speaker: So to understand it.

Mr. Griswold: And you are not going to use any of this testimony.

Incidentally, if he is -- if you are required to give him transactional immunity, he can simply go in and testify and say yes I saw a murder committed.

I was standing there and refused to say anything more.

He now has complete immunity against prosecution for any part of the murder because that was a transaction as to which he testified.

With respect to use immunity, he will get immunity only with respect to what he does testify and thus he will testify much more widely and freely under use immunity and than under transactional immunity.

Giving him extended use immunity, leaves him no worse than he was before.

It does not require that he be put in a better position.

And none of his testimony or its fruits can be used against him but the evidence already available and demonstrably wholly independent of the testimony he gives remains available and can be used.

So this clearly guilty man will not go as scot free.

Let me put the same thing in another way because this has a relation to the Sixth Amendment and its constitutionally guaranteed right, the defendant shall have compulsory process of witnesses.

Suppose you are prosecuting A and B and B says, comes to the District Attorney and says I want to use A as a witness on my behalf and A says nothing doing, I cannot testify without showing I was there and that will incriminate me.

The B says to the District Attorney, we will give him immunity, and the District Attorney says nothing doing, I can only give him transactional immunity, I am not going to let him off, we know well that he is guilty.

But if the District Attorney can give him use immunity, then B can get the benefit of A’s testimony such as it is without A having to be given a pardon or amnesty.

And thus there seems to me that somewhat as in the Simon’s case where the Fifth and the Fourth Amendments were pressed together.

We have here a way in which the allowance of use immunity under the Fifth Amendment will help to support the compulsory process which is given by the Sixth Amendment.

Justice Potter Stewart: You are not proposing that the defense council be empowered to give a witness?

Mr. Griswold: No Mr. Justice, only the -- well nobody can give immunity under the statute except with the approval of the Attorney General, the Deputy Attorney General or a designated assistant Attorney General.

Unknown Speaker: At that point Mr. Solicitor General, there is no Court supervision however over the granting of that --

Mr. Griswold: There is Mr. Justice there is no Court supervision and I do not think there should be, this is a part of the prosecutor's judgment but very narrowly limited, incidentally, the other parts of the statute provide that with respect to administrative agencies, the Attorney General has an absolute veto, they cannot do it unless he approves with respect to congressional committees, it requires a majority of the House of Congress or two-thirds of a committee and it must be submitted to the Attorney General for at least 20 days.

He does not have a veto power.

Now, there are arguments about the use of testimony to impeach the fact that the evidence might conceivably have some effect on cross examination.

My time is expired but I would suggest that there are problems about waiver which come into that.

If the defendant has chosen to testify, he may not have as much protection under the Fifth Amendment as he might otherwise.

Moreover, with respect to the use of the information by way of cross examination, he will have counsel, his counsel can object to the question at anytime.

And if the Court finds that question is derived indirectly by way of using the evidence which was obtained under compulsion.

The Court should exclude the testimony and if necessary it could come to this Court for review.

We think that the Court has already established that what I have found extended use immunity complies with Fifth Amendment, there are undoubtedly peripheral problems that will have to be considered over the years, but as far as this case is concerned, we think that the judgment below should be affirmed.

Unknown Speaker: Is there any question in your mind that this statute 6002 would govern the use of any evidence or of its fruits in any kind of a state proceeding?

Mr. Griswold: I think as far as I am concerned Mr. Justice, of course I am representing the Federal Government and state officer might feel differently, but I think under some decisions of this Court and the supremacy power, if the federal immunity is granted, it is binding on the states.

Justice Potter Stewart: To the full extent is that –

Mr. Griswold: To the full extent.

Some of the old statute referred to in any Court and this statute says in any criminal case, now that could be construed to mean only in a federal Court, I do not think it should be.

Unknown Speaker: Now, I was wondering about for example state administrative proceeding.

Mr. Griswold: Well, I think it only applies to any criminal case.

I think it could perhaps be used in a state administrative proceeding or in a civil proceeding.

Unknown Speaker: Or in a federal administrative proceeding.

Mr. Griswold: Or federal administrative proceeding.

The statute only protects against use in criminal cases and that is all the constitution protects against.

No person shall be compelled to testify, be a witness against himself in any criminal case.

That is all the constitution says.

Unknown Speaker: Well, this court has gone further -- as you said with the outset from the literal words of the Amendment.

Chief Justice Warren E. Burger: Manes?

Rebuttal of Hugh R. Manes

Mr. Hugh R. Manes: Mr. Chief Justice, may it please the Court.

Few remarks on my rebuttal.

First I want to state that the case I was referring to the California Supreme Court case, People versus Dickson, 57 Cal second 415 and there are several other cases that I have referred to in my opening brief of the same elk at page 40 of our opening brief.

Second point, I want to make and demonstrate through this case is that although the government here says we would give, you know --- we would only rely upon the rule that the government must show that it has not discovered rather than use the discoverable rule.

I would point out to this Court that we are talking about the rules as they now exist and are followed in the various circuits and in the States, and therefore, if the Court is of a mind to be thinking in terms of use immunity, it seems to me that the very minimum that is required at this point is to straighten out the rules first before use immunity be considered as within the scope of the Fifth Amendment.

The other point, I want to make is that although the government here talks about having ample evidence before,-- I will cite that example above, that accused that has ample evidence before he is given immunity, I would say to the government, why do they not get a conviction, then when they have got a conviction they can get the testimony without conferring immunity because of course, they have no reason for the rule for the privilege falls but I cannot see as Mr. Justice Stewart points out.

I cannot see giving -- we already have use immunity.

I mean, no Court is going to allow compelled testimony to come in, we have that.

And then the very minimum, the government must give us something more.

Now, the other point I want to make is the heavy burden that the government talks about is a losery, it is losery because although the government can seize that any testimony that aids the government in the prosecution would fall without the rule, I would point out that there are some very compelling examples to show that the government can and will benefit.

For example, when use immunity is given to a witness, he will be in a grand jury proceeding, he will be asked some other things about his witnesses.

He will giving information.

Now, the prosecutor who examines him could very well be as the case may turn out, the prosecutor would prosecute him ultimately and will have the benefit certainly of information on which to draw his cross examination.

But even more compelling in the fact that in this particular context we are dealing with a series of problems and rules that as that I pointed out exist and there is no way to escape from them, we have rules for example that come from Wang San and Adonis which talk about well a little bit of evidence if it is tainted is alright, if it is attenuated.

Now, if you are going to talk about defining what are the Fifth Amendment privileges?

Is whether use immunity is as broad as the Fifth Amendment privilege, the Fifth Amendment says nothing about allowing a little bit of tainted evidence to be compelled and used against the accused.

When we are talking here about the developing rules, we have our Chaplin versus United States saying that the announcing the harmless error rule.

Does that mean that if a Court ultimately concludes that well, a tainted evidence perhaps was used from the mouth of the accused but after all it is harmless in terms of the total context of the case, have we not then abridged the rule?

And these are the rules we respectfully submit that are used to define the use immunity and use immunity therefore comes to use something like “humpty dumpy,” once the egg is broken, it can never be put together again the same way.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Manes, thank you Mr. Solicitor General.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Zicarelli v. New Jersey Investigation Comm'n - Oral Argument

Thu, 23 Aug 2012 18:17:10 +0000

Case:

Zicarelli v. New Jersey Investigation Comm'n

Media File:

69-4_19720111-argument.mp3

Related Transcript:

69-4_19720111-argument

Transcript:

Argument of Michael A. Querques

Chief Justice Warren E. Burger: We will hear arguments first today in number 69-4 was Zicarelli against the New Jersey State Commission of Investigation.

Mr. Querques, you may proceed whenever you are ready.

Mr. Michael A. Querques: Mr. Chief Justice and may it please the Court.

The facts of this particular matter sparse as they are warrant some little attention here this morning.

Sometime in 1969, Mr. Zicarelli was served with subpoena to appear before a new commission in New Jersey which is called a State Commission of Investigation.

The State Commission of Investigation was operating under something else which was new in New Jersey, and that is a so called Use Immunity or Testimonial Immunity Statute.

Consequently, as result of being asked questions and being offered the immunity, which was provided for by the statute, Mr. Zicarelli chose to invoke his privilege under the Fifth Amendment not to testify on the grounds that use immunity so called was not sufficient.

He was not upheld in that argument, and ultimately was held in contempt and appeal was taken to the New Jersey Supreme Court and again, his claim of privilege under the Fifth was denied.

As a result of which, under the statute in New Jersey, somewhat peculiar statute, Mr. Zicarelli was confined to an institution in Yardville, New Jersey, presumably for the rest of his life because the statute in New Jersey provides for no particular period of confinement and it was a civil contempt, civil confinement and as I say, no particular period of cut off.

Unknown Speaker: No, if he had answered the questions, would you then release him?

Mr. Michael A. Querques: Yes Your honor, he would have been released.

Unknown Speaker: He did, as in most civil contempts, he carried the keys to jail in his own pocket?

Mr. Michael A. Querques: That is accurate, your Honor.

So, we are faced then in this case with the ultimate issue as to whether or not, so called use or testimonial immunity is consistent with the Fifth Amendment.

And, this ultimate issue as far as I can make it out from all of the cases that I have read, depends upon the particular answer that you give to the one single test, and that is whether or not, the witness is in the same position, after he has testified as though he had not testified.

And therefore, I would like to try this morning to persuade this Court that a witness such as Mr. Zicarelli would be in a far worst position after he testified then if he had not testified under this use immunity statute.

Chief Justice Warren E. Burger: You are speaking now of his worsening situation, solely, purely in terms of exposure in possible prosecutions?

Mr. Michael A. Querques: Yes, your honor.

There maybe some other considerations --

Chief Justice Warren E. Burger: In the state of Federal Courts?

Mr. Michael A. Querques: In both your Honor.

There is a case out of the Third Circuit, Catena involving other individual who had exactly the same problem and the I think that the opinion by Chief Judge Sykes in that case is certainly applicable here.

Chief Judge Sykes says that the Defendant is in a worst position or stated differently.

He is not in the same position as though he had not testified because once the District Attorney would have that compelled testimony, the District Attorney would be able to use that compelled testimony in cross examination.

And Chief Judge Sykes says even if there were no over reference to the compelled testimony, the questions could be phrased in such a way that the use of the compelled testimony would necessarily impeach and damage the Defendant.

Chief Justice Warren E. Burger: Judge Sykes was speaking of his posture if he recalled as a witness in subsequent trial?

Did he not?

Mr. Michael A. Querques: Yes, Chief Justice.

Chief Justice Warren E. Burger: Is there anything about the use immunity granted before the Grand Jury or investigative body that would prevent him from claiming his Fifth Amendment privileges anew on any new matter when he was called as the witness in the trial or subjected to cross examination?

Mr. Michael A. Querques: I am not certain that I understand the question but if I do, as I understand the use immunity, it would be of no avail to the Defendant facing the prosecution to raise it all over again because it could be used --

Chief Justice Warren E. Burger: I repeat my question.

When he is in the Court room for the trial, though some case subsequent to his Grand Jury appearance or in your case appearance before the Commission, is there anything that prevents him from using the Fifth Amendment?

If he is subjected to a question which he thinks in and of itself will incriminate him?

Mr. Michael A. Querques: Well, I think that question is also answered by Judge Sykes and that argument goes along these lines.

That the Defendant, even if assured that the answers he gave in the compelled testimony before the Grand Jury or before a Commission would not be used.

Nonetheless, it would bear on his mind and he would therefore be influenced to forego and give up or forsake that right that he would have to defend himself.

And I think, that is a very crucial consideration.

Leaving that answer and going to the next one that I have in mind, and that is the one by Justice Brennan in the Picarello(ph) decision the dissent, and that would be that the uncertainties of the fact finding process and the hazards to the witness argue very strongly against use immunity.

I do not think that anyone could argue against the fact that the Government would have all of the relevant evidence, and any of us who had experience with the Government know that they are files and then there are confidential files.

Many, many times, if not indeed all the time.

The young District Attorney trying a case in the Federal Court is completely unaware of so called confidential information resting in the confidential file of the Secret Service or Immigration Authorities or the FBI offices.

And consequently, he is not in a position though the burden would be on the Government to show that the prosecution is untainted.

He would be in no position to rebut the evidence offered by the Government.

In addition to that, the best defense for a person placed in the situation where he has to testify under use immunity could never establish if there was for example, an accidental or an unrecorded exchange of information which somehow tainted his indictment.

There would be no way of showing that a poor memory was attendant to the situation in order to show the taint.

Many times, and I think that this Court has seen it recently proofs are lost through either death, through resignation, through disability or through retirement.

The case that I am thinking about is the recent case out of New York of Santa Belo where one Prosecutor made a so called arrangement with the Defendant, and then as a result of leaving his position, another District Attorney came in and would not honor the arrangement previously made.

You could have exactly the same situation here.

One District Attorney would leave his office or would die or retire, and something that was left behind could be used by someone else and the Defendant could never establish it because of that situation.

Unknown Speaker: Santa Belo did?

Mr. Michael A. Querques: Yes, he did your Honor.

But I think—

Unknown Speaker: Is his convictions reversed?

Mr. Michael A. Querques: Yes Sir.

But I think in this situation, I would ask you to understand that it gets more difficult.

We have a situation here where the years may go by and Santa Belo, you have in a direct appeal immediately following the so called reneging on the bargain and he could do it with a great deal or more expedition that put a man in this particular situation.

Chief Justice Warren E. Burger: Do you have the name of that case that you referred to which Judge Sykes wrote for the Third Amendment?

Mr. Michael A. Querques: Yes, your honor.

Chief Justice Warren E. Burger: I do not seem to find it in your—

Mr. Michael A. Querques: It is not in the briefs your honor because it was decided after we filed a brief.

The name of the case is Catena against the very same commission involved in this case.

I am sorry, I understand now that is captured in the name of the warden of the institution whose name would be Albert Elias.

So, it is Catena against Elias.

Unknown Speaker: In the citation?

Mr. Michael A. Querques: It is decided your Honor, pleases on September 2, 1971.

Unknown Speaker: Third Circuit?

Justice Byron R. White: Did we state the judgment in that case?

Mr. Michael A. Querques: I am sorry Mr. Justice White?

Justice Byron R. White: Did we stated the judgment in that case?

Mr. Michael A. Querques: Yes.

pending the outcome of this case.

While none of the case is referred to the next point I would like to make, to me as I review the matter, it seems to be of great importance and that is this.

A Defendant placed in this situation could never rebut the Government’s assertion that his prosecution is untainted.

If indeed, there was some collusion or some chicanery between one jurisdiction and another, or between one particular District Attorney and another.

Professor Mansfield points up another reason for indicating that a witness would be much worst off, and that is this argument that upon disclosure by a person that he or she committed a particular offense, the District Attorney once knowing of the commission of that offense by this particular individual.

I would feel would be compelled or forced to go out and make the case or be it he would try to make it independently.

So, you therefore had an individual who before he gave the testimony, compelled as it is would be able to go to sweep at night knowing that there was no concerted effort to have him indicted or as once he gave the compelled testimony, he had to go to sweep each and every night knowing that that District Attorney had sent his investigators out into the field to make a case and not to rest until they made a case.

Justice Potter Stewart: Do you think that -- we are speculating that you are giving us that speculative hypothesis in a case where the person has been affirmatively granted immunity from prosecution.

Do you still think that the District Attorney would be so obsessed with making a case after having an affirmative grant of immunity from prosecution?

Mr. Michael A. Querques: I am sorry Mr. Justice Stewart.

I am arguing against use immunity.

Justice Potter Stewart: Yes, I know.

Mr. Michael A. Querques: That you were giving this --

Justice Potter Stewart: This immunity, you sent proofs, you referred to --

Mr. Michael A. Querques: But we were given immunity from prosecution.

I would not make the argument because then the District Attorney would be wasting his time by still trying to go out there and make a case.

The man had immunity from prosecution.

Justice Potter Stewart: Well, I understand that.

Mr. Michael A. Querques: He would know he could—

Justice Potter Stewart: I understand your argument if there were a transactional immunity, he would be wasting his time, but your point is that with what you call use immunity and it is a little than use immunity as I read the statute, it is use of the answer or evidence, or evidence derived there from, so it is use and proofs as it is generally put.

But my question is just as to your speculative argument that the prosecuting Attorney after a person has been affirmatively given this immunity, that he would be obsessively motivated to go out and make a case against a man?

Mr. Michael A. Querques: I think he would, yes.

I think he would.

And if you look at it in this page, there maybe more light on that.

Take the situation where the Prosecutor is asking a question in the case where he anticipates only one Defendant.

Let us take for example a rape case.

Justice Potter Stewart: Yes.

Mr. Michael A. Querques: There is only one Defendant.

Justice Potter Stewart: Yes.

Mr. Michael A. Querques: If there is only one Defendant, what possible reason would he have under a use immunity statute plus proofs to interrogate that individual?

If he did want to use the answer somehow to the benefit of he himself the Prosecutor.

Justice Potter Stewart: Of course generally, one does not find that immunity statute used in that type of criminal activity, is not that true?

Mr. Michael A. Querques: True.

Justice Potter Stewart: This commission, this State Commission was not setup to investigate a deal with individual crimes of violence was it?

Mr. Michael A. Querques: No.

Justice Potter Stewart: It was setup to deal with organized crime?

Mr. Michael A. Querques: No, that is correct.

But when we are talking about use immunity statutes, I think that we have to include the individual cases, as well as the so called conspiracy or multiple defendant cases because in my honest judgment, there such a statute will be used in both kinds of cases.

Chief Justice Warren E. Burger: Is it used when there is only one accused person involved or is it used where there are multiple persons?

Mr. Michael A. Querques: I think it would more often be used Mr. Chief Justice in the multiple defendant type case, but I also believe that it would also be used in the individual defendant.

Chief Justice Warren E. Burger: Can you give me an illustration of an individual crime in which they would have any occasion to use this?

Mr. Michael A. Querques: Yes, I will.

I think in the rape that I have mentioned or if there were a robbery which was carried off by a single individual.

If there were a murder, it was perpetrated by a single individual.

Chief Justice Warren E. Burger: What would be the point of giving him any kind of immunity?

Mr. Michael A. Querques: That is exactly my point, that if called a man under a use immunity statute and he interrogated him, he would not be giving him anything because he could still prosecute the individual.

So therefore, if he called him in, he must have had some evil motive on his mind, viz-a-viz that particular Defendant.

If he knew that only one man committed the crime and he called in a single individual and questioned him under use immunity, that Prosecutor knows that he ultimately came into independent evidence, he could indict that individual.

Whereas, he would not do it if he had the transactional type of immunity.

Unknown Speaker: Do you think Prosecutors are removed to investigate that type of thing?

Mr. Michael A. Querques: I certainly do.

Unknown Speaker: Do you think, call him before a Grand Jury and ask him a question and he rightfully claims Fifth Amendment as he is fully entitled to do, the Prosecutor might be stimulated in to launching an investigation about it?

Mr. Michael A. Querques: That would depend upon the facts but, if there is stimulation, and I would concede that there would be some depending upon the personality of the particular District Attorney.

The stipulation in such a case would be much, much more mile than the kind of stimulation that would occur if under one of these use immunity statutes.

Justice Byron R. White: It depends on the Prosecutor?

Mr. Michael A. Querques: The Prosecutor ended up with a confession.

I would think, Mr. Justice White, that any Prosecutor under a use immunity statute.

Who had in effect a confession from the witness that he called in would be obliged to go out and try to make a case.

I can't imagine sitting back and saying I have a transcript wherein A admits murder and yet, I am not going to do anything about it, by making an independent case.

So A as much worst off.

We come to another consideration which I think probably is the most crucial of all, it is the one that disturbs me as a Lawyer the most, and that is subjecting a witness to this cruel trilemma referred to by Justice Brennan of perjury, self accusation or contempt, and I have analyzed the situation and come to this conclusion.

That if a person --

Justice Byron R. White: That goes to constitutionality of immunity statute?

Mr. Michael A. Querques: Mr. Justice White, I am sorry.

I did not hear the question.

Justice Byron R. White: That goes to the constitutionality of any immunity statute?

Mr. Michael A. Querques: Yes.

Justice Byron R. White: Yes?

Mr. Michael A. Querques: Except that here there is a particular flavor to it because of these trilemma that is forced by the witness.

I would think that the self accusation or confession situation is the least likely to occur.

Because I think that that is the one that a witness would want to avoid the most, confessing to the crime.

I would think on the other hand that the one most likely to occur would be that he would elect because he is forced to testify to commit perjury.

I can concede he may give a false alibi or some other story.

That is a white color crime, say he did not have criminal knowledge or willful intent sufficient to satisfy the statute.

I could even concede that he might plead and trap.

But in any event, I see that he would setup some perjurious story, so that would not have to confess and at the same time, he would not have to go to jail for contempt.

I think it is fairly likely that the person who would not want to accuse himself and at the same time would not want to run the risk of perjury would do this.

He would say, for example, there are two years or maybe three years left before the statute of limitations expires.

And so, I will take the contempt and have myself incarcerated, and wade out the statute of limitations because it is easier to wade out a two or three year-balance on the statute of limitations.

Than it would be to face the indictment and prosecution and then perhaps do 10, 20 or 30 years in jail.

Now because, that situation will occur and it will occur in every single case where use immunity is used, the witness will have to make a choice of one of those three, there is no other choice.

I say most respectfully that the State, the Federal Government or whoever it maybe is doing something very, very distasteful, and something very, very contrary to the American concept of justice.

Because it is, actually inducing or coercing a crime to take place which has not yet taken place to it the crime of perjury.

If that is not the result, the result is that the man goes to jail for contempt, that is also foreign to our system of justice because you call on a suspect, he refuses to answer the questions, and he ends up in jail for contempt whereas he should have ended up in jail, only if the State in shouldering its responsibility, made an accusation by way of indictment and produced evidence in Court beyond a reasonable doubt.

I also wonder as to what role we Lawyers would play in such a situation and I think, most respectfully that Lawyers would be compelled almost to abandon a client.

I can't imagine that a Lawyer would feel at all comfortable with a witness facing this trial on him.

Speaking for myself and many others like me, you would be most uncomfortable sitting next to a client knowing that that client has confessed.

There is one case in this Court that in essence says “A Lawyer who tells his client to cooperate and give up all his rights is in worth his soul”.

I would not feel like I were worth my soul if told a man to give a confession rather than require the State to prove its case.

The witness sitting in that chair on the use immunity is sitting and let me call it a “warm chair”.

The chair next to him occupied by the Lawyer is just as warm for the Lawyer indeed it might be very, very warm, it might be hot.

Because the Lawyer would have to be concerned that if his client took the second choice to with perjury, the Lawyer might ultimately be accused of suborning that perjury.

And if we get down to the third possibility and that is contempt, the Lawyer then really is useless to the client because if the client says to the Lawyer under this situation, I am going to do sometime in jail until the statute of limitations runs out.

There is not anything that the Lawyer can do for him.

So, I say for these reasons and many others which I do not have time to elucidate on and hopefully some of the other Lawyers who appear in the cases will.

That transactional immunity as it presently stands should remain, that use immunity is very, very foreign to our system of justice and will work such hazards, and will work such injustices as time will prove if it ever comes to be.

Thank you.

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

Mr. Phelan?

Argument of Andrew F. Phelan

Mr. Andrew F. Phelan: Mr. Chief Justice, and may I please the Court.

It is the appellant's contention here this morning that he has been incarcerated on the New Jersey State Commission of Investigation, the immunity statute, and he has been in constituted, incarcerated under a provision which is unconstitutional.

A long line of cases, this Court have held that an immunity statute maybe valid.

I submit to you and my further record will State that the commission statute is and was designed to be a use plus proof statute.

It was so designed to attempt to reach a particular problem that existed in the State of New Jersey in the period of Spring of 1968, and was so found to exist by a joint legislative committee of the assembly of that State.

Now, the statute itself recognizes that in order for a immunity statute to supplant the privilege under the Fifth Amendment that it must be co-extensive with the privilege which it seeks to supplant.

It must never put the individual in a situation in which he would be in worst position than had he exercised his privilege or been allowed to exercise his privilege.

Now, we contend that this statute does just that.

The Fifth Amendment says “No man shall be compelled in a criminal case to be a witness against himself”.

Our statute provides after appropriate steps of Due Process within the commission or within the State process, that individual shall not have any of the testimony or the evidence or evidence derived there from used against him in any criminal prosecution.

We submit that under these circumstances, the individual is in exactly the same position as he was had he not been granted the immunity following his claim of the privilege.

Now, since, course Counsel in 1892, which considered a pure use statute.

I, for the record and the commission for the record and I feel state would certainly admit that a pure use statute alone which did not protect against the use of derivative evidence must be unconstitutional.

It completely challenges the logic and reason to be able to say that you can compel a man to answer and then go out and secure evidence on the basis of that answer, and use that against him.

By the same token in the Brown decision some four years later, the transactional immunity statute or the absolute immunity statute, which I believe flowed from Counselmen and perhaps at a time when we were not considering the middle ground, that absolute immunity statute was upheld and that granted I submit a much broader immunity, that which the Fifth Amendment does require.

I submit also that it when utilized, it grants a gratuity to the criminal upon who seeks to exercise it.

I further suggest that it does an injustice to the best interest of the people themselves.

Now, in that middle ground then, we come to the point of just what is it, that the Fifth Amendment will require of an immunity statute in order for it to be constitutional.

I suggest that is a use plus proofs, an absolute situation whereby once you compel a man to testify, you may under no circumstances use anything.

And, I use that term with great consideration.

Anything whatsoever that flows there from, for if we have compelled him to give up a very sacred right, self incrimination against self incrimination.

That then the Government must bear the burden and must bear the duty, and a very heavy duty perhaps it should be, to show that nothing has ever been used against that individual in connection with any future prosecution.

Now, I submit that under such a rule of law with the use plus proof statute, tied in with a heavy burden being placed upon the Government that was noted in note 18 of the Murphy decision, that the burden is placed upon the Government to establish independent source of evidence.

That the individual may very well be in a better position than he is today under a transactional statute.

And I say that for this reason, that under the old Haikey decision in 1913, that the individual must prove as an affirmative defense that that transactional immunity statute has protected him against a subsequent indictment.

I would submit that under a use immunity or use immunity plus proof statute that the burden here would be on the Government.

Now, since the Murphy decision --

Justice Byron R. White: Tell me why does not New Jersey grand absolute immunity?

Why does New Jersey have kind of a statute that does grant transactional immunity?

Mr. Andrew F. Phelan: The use plus proof --

Justice Byron R. White: Do you say it is an extravagant -- on the one hand that it is an extravagant application of the Fifth Amendment that on the other hand you seem to say that use immunity is even more extravagant?

Mr. Andrew F. Phelan: I believe Mr. Justice White that use immunity alone which would allow the Government or the people thereafter to go out and secure evidence based upon the testimony compelled must be unconstitutional.

Justice Byron R. White: I agree.

Yes, yes.

I agree.

Mr. Andrew F. Phelan: I further argue that a transactional or an absolute immunity is too broad, is that it gives to greater gratuity to the individual who seeks to utilize that privilege and then forces the people to secure the absolute --

Justice Byron R. White: You are suggesting that New Jersey limits its statute to use immunity because it could conceive of situations where it would like to be able to prosecute, the gentlemen may have had before the Grand Jury for the very crime that which he is testified.

Mr. Andrew F. Phelan: I do not suggest here that they would like to prosecute.

In our situation --

Justice Byron R. White: Or isn't that the only thing you are protecting.

The only state interest you are protecting is the right to prosecute again or the right to prosecute at some time, in some circumstances for the very crime of that which you would ask him question.

Mr. Andrew F. Phelan: In the first instance, I would say that you were seeking to protect the individual in his constitutional rights.

In the second instance, I would say that you were protecting the public interest and their right to able to get at perhaps, the area of crimes involving involved conspiracies with some activities.

Justice Byron R. White: With a absolute immunity statute, you can get your evidence of the crimes that you want to prosecute for, but you want to retain the right to prosecute this man for the very crime about which you would ask him questions?

Mr. Andrew F. Phelan: If such evidence of an independent nature should be developed either in a different jurisdiction or at a later date.

Justice Byron R. White: You think that that possibility is significant enough to warrant to come and clear to this Court arguing for its retention?

Mr. Andrew F. Phelan: Absolutely Sir.

Justice Byron R. White: So, it is a real possibility that he maybe prosecuted --

Mr. Andrew F. Phelan: I would have to say --

Justice Byron R. White: For the very crime about what he has been interrogated.

Mr. Andrew F. Phelan: I would have to say that there is certainly is a real possibility of that occurrence.

Justice Byron R. White: It is substantial enough anyway for New Jersey to have made this choice and the Defendant in this Court.

Mr. Andrew F. Phelan: Well, if I may could just draw this distinction Justice White, hours of the State Commission of Investigation, we are purely an investigative body.

We have absolutely no prosecutorial responsibilities.

We have no criminal jurisdiction whatsoever.

Our function as conceived by the New Jersey Legislature, was with a broad area of responsibility to determine facts which would then allow us to make recommendations to the legislature for perhaps the enactment of legislation to correct a problem as what it seen to exist.

Justice Byron R. White: Well, in some situations -- if I understand you correctly, New Jersey would be better off with an absolute immunity statute than with the use immunity statute.

That is what I gathered you said moment ago that the gentleman being interrogated might even be -- the use immunity what would be advantageous to him as compared with transactional immunity.

Mr. Andrew F. Phelan: I suggested that perhaps the individual might be in a better position because with the use plus proofs, the burden of establishing, the relationship would be on the Government and on the people that return the indictment whereas now it is my understanding of the law that with the transactional grant of immunity should he later be indicted that he must prove that as an affirmative defense in the defense of this case.

That was my sole position suggesting that he might be at a better position.

Certainly, I think that if our statute were transactional or would it be such or absolute, we would not be here today.

Justice Byron R. White: Well, I am just glad -- the real purpose of my question is really to inquire about what New Jersey's estimate is that the actual importance of this issue in terms of -- how often will it come up.

Do you think it really makes the difference to New Jersey, to the interest of State of New Jersey in just lots of instances?

Mr. Andrew F. Phelan: I think it makes a very substantial difference Your Honor.

Justice Byron R. White: So, so, you are saying that there is substantial enough chance to what it prosecutes say --Mr. Zicarelli for the questions, for the crime about which you have been asking him questions?

Mr. Andrew F. Phelan: No, I am not suggesting that at all Sir.

What I am suggesting is that I believe that under the circumstances that existed in New Jersey in 1968, that there was a sufficiently severe problem to warrant the enactment of the statute in order for us as fact finding body, to secure information which could give rise to testimony.

Justice Byron R. White: Well, I know that you could have done that with the transactional immunity?

Mr. Andrew F. Phelan: But at the same time, we would then have been granting a collective immunity to Mr. Zicarelli.

Justice Byron R. White: Right, so again I say you want to retain the possibility of being able to prosecute Mr. Zicarelli on independent evidence?

Mr. Andrew F. Phelan: Correct Sir.

Justice Byron R. White: Okay.

Mr. Andrew F. Phelan: With the burden of proof being placed upon the Government should any indictment ever be forth coming.

Now then --

Justice Thurgood Marshall: How much weight do you put on this extraordinary situation in 1968 just to find the statute?

Mr. Andrew F. Phelan: The extraordinary situation, well.

Justice Thurgood Marshall: Well, let me ask--

Mr. Andrew F. Phelan: Yes.

Justice Thurgood Marshall: Is still in effect, the statute?

Mr. Andrew F. Phelan: The statute is still in effect that—

Justice Thurgood Marshall: I kind of got there.

Either you have an emergency situation in '68.

Mr. Andrew F. Phelan: In the Spring of 1968, there was convened in New Jersey, a special legislative committee which found that at time a serious organized crime problem did exist within the State.

Justice Thurgood Marshall: Well, do you still have the Commission?

Mr. Andrew F. Phelan: The Commission is still in effect.

Justice Thurgood Marshall: And the statute is being in effect?

Mr. Andrew F. Phelan: Yes Sir, it is.

Justice Thurgood Marshall: Well, my whole point is what is the great value of what happened in '68?

To me as continuous statute as of right now.

Mr. Andrew F. Phelan: Well, we hope that to some extent the problem has diminished.

We do recognize that --

Justice Thurgood Marshall: When the problem disappeared, would the statute be repealed?

Mr. Andrew F. Phelan: I would frankly hope not, because if the use plus proof immunity statute --

Justice Thurgood Marshall: You are not right when you say it is a good statute, now it is good as long as you care to use.

Mr. Andrew F. Phelan: That is my position Sir.

Justice Thurgood Marshall: Okay, well then.

Mr. Andrew F. Phelan: Yes Sir.

Now, in terms of protection of the individual since 1892 to the present time which has been some 80 years.

There has been developed in this Court a rule of law and a body of law which did not existed that time.

And to that, I am referring to the exclusionary rule of law that has been utilized in connection with the Fourth Amendment cases, under unreasonable search and seizures, under electronic eavesdropping, under the Sixth Amendment, under the right to Counsel and coerced confessions.

Now, this body of law did not exist, and was not available for the Court’s consideration.

Under Counselmen nor was it available under Brown, and I submit that this Court has now developed a new body of law which is capable and is absolutely certain of protecting the rights of individual.

Should they be found to be abridged under the Fifth Amendment privilege.

I suggest that in terms of the fact that the information and the protection which might be secured to the individual, of course, that information is always in the hands of the Government.

It was in the hands of the Police Department in Miranda decision.

It has always been in the hands of the Government and the electronics eavesdropping cases, or the hands of somebody else.

And still in our Courts, the judiciary throughout this country has found it capable to be able to protect the right of each and every individual.

Now, there are, I would submit to the Court, a number of advantages certainly, to a use plus proofs immunity.

These I believe, in terms of being able to get at, involved conspiracy cases where you are granting solely, the use plus proofs immunity to an individual will allow us a greater opportunity to inquire and to determine the extent of activities in which this individual has been involved.

While at the same time, protecting the interest of the State, perhaps in a future prosecution should that information developed at a later date or in other jurisdiction.

Now for instance, within the State of New Jersey, we have 21 Counties where we are investigating a certain issue in the southern part of New Jersey, and we seek to secure immunity to an individual.

It may very well be that under a transactional statute or an absolute statute, we maybe granting an individual immunity, and granting him absolute protection to future whereas at the same time and completely unbenounced to us, Mr. Hogan in New York maybe conducting investigation, while the District Attorney and Mr. Inspector in Philadelphia maybe conducting investigation, relating to the same individual.

We have absolutely no way of knowing exactly what these individuals are doing, recognizing the entire spread that conspiracy of organized crime, recognizing that it knows no County lines or International lines for that matter.

Unknown Speaker: Or the Federal Government maybe in such a use?

Mr. Andrew F. Phelan: Or the Federal Government itself maybe investigating, yes Sir.

Unknown Speaker: In which of that you could not grant absolute immunity?

Mr. Andrew F. Phelan: Unless this Court should adopt your honor --

Unknown Speaker: Unless we overrule Berkeley against(inaudible).

Mr. Andrew F. Phelan: Unless we recognized the limitation, I believe which was in suggested or implied in Counsel and recognized that a use plus proofs immunity which was suggested in Murphy is a constitutional and a viable standard.

Now if I may just add one thing, I think that under a use plus proof statute, we may very well be for the first time protecting the Defendant who was entitled on the Six Amendment to compulsory process and confrontation of witnesses I suggest this because formerly as United States Attorney, I found that when a person is called as a witness by the Defense, and that individual likes to claim his privilege, the Government is effectively precluded from securing that evidence because the only thing we could grant him would be absolute or transaction immunity.

That fact deprives that Defendant of the right to confront that witness and the right to at least examine on the basis of what he contends is his Defense.

That situation can be corrected with the use plus proofs immunity.

And we will be for the first time realistic, extending the Defendant his right of compulsory self process and confrontation.

I will be doing that because then the United States Attorney cannot contend nor could any other prosecuted contend realistically that we cannot grant him transactional immunity because of the fact that we will be giving him absolute protection in the future, I submit to you that this in itself maybe the most important issue that we have under the use plus proofs.

Thank you Sir.

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

Mr. Kugler?

Argument of George F. Kugler, Jr.

Mr. George F. Kugler, Jr.: Mr. Chief Justice, and may it please the Court.

I appear here as amicus to support the position of the Appellee, State Crime Investigation Commission of New Jersey and the 24 States join in views expressed in our brief.

It should be noted that the States still bear the primary responsibility for enforcement of the criminal law.

Most crimes are certainly matters of local concern.

These immunity statutes have been extremely important part of our rights in fighting crime particularly, organized crime and official corruption.

One of the most important powers of any Government in preventing the infiltration of crime in that Government is the power to compel citizens to testify in Court before Grand Jury or Agencies such as the State Crime Investigation Commission.

On the other hand, we recognized that one of the most important privileges of any citizen is the Fifth Amendment privilege against self incrimination.

Obviously, there must be a balance struck between the power on the one hand and compel a witness to testify in Court, and the privilege on the other that anything he says may not be use against him.

It seems to me that the-- of course, it all started in Counselmen and whether you read that case as I do, merely holding that the statute in that case was defective because it did not provide proofs immunity in addition to use immunity, certainly, it must be said in all candor that as a result of the equivocal language in that case and the decision of Brown versus Walker case right after it, in which four Justices dissenting and indeed said that no immunity statutes are constitutional.

There arose in the law and in the cases from this Court a many statements to the effect that transactional immunity was the only viable way to compel a witness to testify.

I think the first crack in the dyke if I may respectfully suggest it came in the three cases of Garidi, Gardener and the Sanitation Workers case, and these cases have been tremendously helpful to the States in official corruption and indeed in calling before official bodies or just the boss themselves in a particular community and requiring public officials under duress of losing their jobs, explaining any particular criminal conduct that might come to the attention of the authorities.

This Court has held I believe and has stated that only use plus proofs immunity is necessary as a result of any testimony they give and indeed if they refused to explain their activities, they maybe fired.

The next crack in the dike, if the Court please, I would say in the unanimous decision of Murphy versus the Waterfront Commission.

Personally, I fail to take the intellectual step of differentiating the rule in Murphy which applies inter-jurisdictionally, differentiate that from most cases which would indicate a different rule as required in Traft jurisdictionally and that is in the case where this compelling state also is prosecuting state.

To answer the question of Mr. Justice White, I think, they are very practical considerations of the States that are faced within, this very case and Zicarelli, we had at least five indictments and maybe six, I am not sure and three of them have been already tried and he has been convicted.

At the time, the SCI called him before them and I have no doubt that the SCI would have gone into the matters contained in those indictments.

But we had clearly intendant evidence.

We were not worried about prosecuting Zicarelli on those cases.

We probed them under any test, we could prove that our evidence was independent.

However, we would felt much more comforted as it has been if we were sure of our position that use plus proofs has been constitutional.

As the statute provides, I have to say to the Court that even though we have had a use plus proofs immunity statute for sometime in several sectors of New Jersey, we have used it generally for the reason that we were certainly weren't sure of what constitutional ramifications were.

Under the scheme of things, the legislature has ordained that there shall be a State Crime Investigation Commission.

In my opinion, it was absolutely necessary.

They did not make the Attorney General counsel for that commission, they said in fact the State Crime Investigation Commission can go out and get a compelled testimony by a Court order without the permission of the Attorney General, to be sure, they must get me 24 hours notice.

Indeed in a very relevant investigation of theirs, they could conceivably destroy already made prosecution of ours.

In New Jersey, the witness immunity statute intra-jurisdictionally, that is the Federal versus the State has been extremely affected.

And in many cases in which the Federal Government has recently got indictment.

Unfortunately, we have run a file of each other in several instances and some of the cases that we have ready to go to trial may have been affected by that prosecution.

Now, I suggest to you that most all of the States have little systems of Federalism, if you will.

With the exemption of Rhode Island in Delaware where all the prosecution is done at one level.

Certainly, New Jersey has 21 County Prosecutors, the Attorney General’s Office, and the SCI and also that Cities are empowered to conduct investigation.

With 450 some Police forces, it is very difficult to keep from stepping on each other’s toes with all kinds of cooperation.

And therefore, if indeed use plus proofs immunity is constitutionally sound then it seems to me, that is the practical way to have the States and local Government retain their respective rights to use this very, very powerful weapon of witness immunity.

There seems to be a feeling that the States cannot handle this immunity statute that is too rich for the law that inadvertently or deliberately compelled testimony will be misused in some way because of the closed cooperation among the various Law Enforcement Agencies in the State.

I say to this Court that I believe the States can use it effectively and constitutionally.

I think, for instance, the Picarelli case is a splendid example of effective use of the witness immunity statute.

In that cases as the Court knows, the individual had pled guilty to beating somebody with a tire arm.

The Prosecution Authorities want to find out whether he was hired to do so, and they called the man before that Court having all ready sufficient and dependent evidence to prosecute him as to matter of fact, he had pled guilty.

And, they did so and he did indicate that he has been hired.

Unfortunately, he then disclosed individual that hire him.

But he could had and it would have been effective use and there is no reason under the constitution that he should he not have been prosecuted.

I believe that a simple task in handling this weapon in this day, whenever you want indeed has Counsel, unlike in the days of Counsel Man and the liberal discovery rules in all jurisdiction neither constitutionally required or by rule of Court, I believe that the Defense Counsel and will they clear record of what is been compel can sort out whether or not your convicting a man from his own lips or the proof’s thereof.

Now, I believe that the test should be the burden of beyond the State, and that—the test should be that if the Defendant had remain in silence, he would not of been indicted or not had been convicted as the case might do it.

This task was originally suggested in Counsel, and I believe that is a sound task and I believe the Courts can handle it without violating anybody’s constitutional rights.

I urge this Court to overrule Counsel Man if necessarily, and stick with the doctrine of the Murphy case and apply it inter jurisdictionally and I think in that way, we will have much more effective Law Enforcement and indeed Constitutional Law Enforcement.

Thank you.

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

Mr. Querques, you have anything in further?

Rebuttal of Michael A. Querques

Mr. Michael A. Querques: Chief Justice, I would like to respond just for a few moment as if I have not left to of what you think that Mr. Phelan said.

Mr. Justice White asked Mr. Phelan or whether or not indeed the State of New Jersey wanted to retain the right to prosecute the man who was called about the very matters about what he was questioned.

And Mr. Phelan said to the Court that his commission had no prosecutorial responsibility.

While that is true, it is also true under their statute that they are obliged to disseminate the information which they obtained from question for the local Prosecutors who are 21 in number, for the State Attorney General’s Office, and to the Federal Authorities.

In short, anybody who might be able to use it.

Mr. Phelan indicated that this statute comes in handy and discovering evidence with respect to large scale conspiracies assume that to be true.

I do believe that it is asking for anything to give a man immunity from prosecution, that he helps you to solve a large scale conspiracy case, and gives testimony against seven, eight, nine, 10 or more co-defendants.

Done everyday, prosecutors like to do it, and it would just actually be a continuation of that situation.

Chief Justice Warren E. Burger: If that came to pass Mr. Querques, the prosecution whether Federal or State making use of it would have burden of proving an independent source, is that correct?

Mr. Michael A. Querques: That would be correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: If they had an independent source that was prior to the inquiry, under which testimony was compelled, why should they not be able to use the testimony for that independent source?

Mr. Michael A. Querques: That is a very rare situation, and I would think --

Chief Justice Warren E. Burger: Let us assume on.

Mr. Michael A. Querques: I would think that they would be full hardened, indeed assuming that they had an independent case, then to call to in the witness whom they want to prosecute.

Chief Justice Warren E. Burger: I am speaking of another jurisdiction.

Take the hypothetical at some time, I believe Mr. Justice White suggested or someone did in response to his question.

That Mr. Frank Hogan in New York is deeply involved in an investigation that is being carried on with great secrecy as some of these investigations are?

And unknown to him, a witness who is granted immunity over in New Jersey or down in Pennsylvania.

If he can show, Mr. Hogan can show that he had this information long before, the investigation in New Jersey or Pennsylvania, can you suggest any reason why he should not be permitted to use it, if he can carry that burden?

Mr. Michael A. Querques: He should be permitted to use it.

I have no objection to that, but I quickly point out to the Court that he can use it on the transaction only he if he could.

Because under Murphy, Mr. Hogan is only barred from using the fruits, that he has an independent case, whether it be transactional immunity or use immunity, Mr. Hogan can proceed with his case.

Chief Justice Warren E. Burger: But, we are not -- this Court is in a position to make a choice between two different kinds of immunity.

One of which is more desirable than another Mr. Querques.

We are just required to make a decision other the constitutional forbids a particular one, which is before us today.

Mr. Michael A. Querques: Yes, I quite understand that and for the reason that indicated that I think, with respect to the questioning jurisdiction, the constitutional standard is only met when the questioning jurisdiction gives prosecutional immunity or absolute --

Justice Byron R. White: (Inaudible) differently say than a prosecutor in some other county of New Jersey?

Mr. Michael A. Querques: Mr. Justice White, I --

Justice Byron R. White: Just because it happens to be part of the same phase, is that it?

Mr. Michael A. Querques: Well, because Mr. Hogan is not bringing in that witness.

He is not making a decision—

Justice Byron R. White: Only there is a Prosecutor in the other county?

Mr. Michael A. Querques: If I understood your question, it assume that—for example, a New Jersey Prosecutor would bring in a witness, and question—

Justice Byron R. White: What you are saying -- you are saying that if the District Attorney in San Francisco, all of the witness before a Grand Jury, and that answers the question, that if he gives him immunity, that immunity must be absolute --

Mr. Michael A. Querques: Yes.

Justice Byron R. White: Transactional immunity, and that a Prosecutor in Los Angeles is in great secrecy, also developing a case.

It has a case against the gentlemen who is being questioned in San Francisco.

May not go forward with its independent case, the Prosecutor in Los Angeles may not.

Although, the Prosecutor in Las Vegas or the Prosecutor in Washington may go forward with it as long as he can prove an independent source.

Mr. Michael A. Querques: Yes, because he is not from the questioning jurisdiction.

Justice Byron R. White: Well, so your answer is yes --

Mr. Michael A. Querques: He has an upset -- upset the balance.

Justice Byron R. White: You wish a treat the Prosecutor in Los Angeles differently than the Prosecutor in Washington?

Mr. Michael A. Querques: No, I do not think -- excuse me Sir, I do not you are treating them differently.

You are analyzing the situation to determine whether or not that questioning Prosecutor, number 1, knows what he is doing, and you are telling him in advance that if you call in Mr. X and you question him.

You better be prepared to give him transactional immunity because we can bind you in that way under the United States Constitution.

On the other hand, Mr. Prosecutor in New York, we cannot bind you under the constitution for giving prosecutional immunity, because you did no call in that man.

You did not make a decision.

So, we cannot bind your hand.

We cannot tell you what to do other than to say “You cannot use the proof’s” or what the Prosecutor in San Francisco did.

Justice Byron R. White: Neither did the Prosecutor in Los Angeles calling in, unlike him?

Mr. Michael A. Querques: I make it just as clear as I can.

A Prosecutor who does not call in the witness should not be bound for the same standard as the Prosecutor who has plenty of time to think about what he is doing.

Justice Byron R. White: Well then—

Mr. Michael A. Querques: And, call then the individual.

Justice Byron R. White: Alright, let us say the Prosecutor in San Francisco would be bounded, what about the Prosecutor in Los Angeles?

Mr. Michael A. Querques: Not bound.

San Francisco, Los Angeles, both in California would be bound Sir.

Justice Byron R. White: Both are in the same State, he was bound --

Mr. Michael A. Querques: Yes, I would say he is bound, because they are working under one sovereign.

Justice Byron R. White: So, the different prosecution?

Mr. Michael A. Querques: But, he is working in the State that he is working within the same framework.

Chief Justice Warren E. Burger: But within State where a District Attorney was elected in each District, the sovereign of that District Attorney is not the State.

The sovereign, the voters who elected him, is not that true?

Mr. Michael A. Querques: Well.

Chief Justice Warren E. Burger: In that District --

Mr. Michael A. Querques: That is one way to look at it.

I cannot look at it that way.

Chief Justice Warren E. Burger: You were emphasizing earlier Mr. Querques that something you called a Trilemma, you seem to suggest that the law has some kind of duty to spare a man from the temptation or as you put it the pressure to commit perjury in order to save himself?

Mr. Michael A. Querques: I do not it should spare him, I say it should not induce him to do it.

Chief Justice Warren E. Burger: Now, what about the man who takes the stand in a criminal case in his own defense to testify?

On direct examination of Garcia’s Counsel he is going to be quite cautious about what he asks him.

I would assume you have conceive that?

Mr. Michael A. Querques: Yes, your honor.

Chief Justice Warren E. Burger: Does not the broad power of cross examination, put that witness to defendant under a great temptation or pressure, do you want to use that term?

To commit perjury in order to avoid unpleasant answers?

Mr. Michael A. Querques: I would say yes, it does to you but, it does it in a different framework.

And, do not lose sight of the fact pleas that the defendant in the given case, when he takes the stand, he takes it knowing that he is waived his right under the Fifth Amendment, whereas the follow who is sitting home having dinner one evening and receives a subpoena, he has not elected to take the stand.

He is compelled to take the witness chair, whether it be Grand Jury or SCI or anything else, there is that crucial difference.

Chief Justice Warren E. Burger: I am just focusing just on the pressure here.

You were suggesting that it is unfair to put a man under pressure to commit perjury in order to save his neck, that is the way you put it, but the pressure is the same kind of pressure by way of cross examination in that sense, is it not?

Mr. Michael A. Querques: I would conceive to you that once the Defendant in a trial elects to take the stand, he yes, is under pressure.

But the pressure to begin with, is a lot less, and it is a pressure that he is wiling to take, and it is a pressure against which he has no constitutional guarantee.

He has waived that constitutional guarantee by walking into chair.

The man that we are talking about has not waved anything.

They have forced him into the chair and enforcing him into the chair, they forced him into that trilemmic situation, which he cannot live with, his Lawyer cannot live with and I say that this society should not live with it.

Chief Justice Warren E. Burger: Very well, Mr. Querques, thank you and thank you gentlemen.

The case is submitted.

Featured:

Piccirillo v. New York - Oral Argument

Thu, 23 Aug 2012 18:31:50 +0000

Case:

Piccirillo v. New York

Media File:

97_19701109-argument.mp3

Related Transcript:

97_19701109-argument

Transcript:

Argument of Malvine Nathanson

Chief Justice Warren E. Burger: We’ll hear arguments next in number 97 Piccirillo against the State of New York.

Miss Nathanson, you may proceed whenever you’re ready.

Ms Malvine Nathanson: Thank you Mr. Chief Justice and may it please the Court.

This case presents question of the application of the Fifth Amendment to a witness before grand jury proceeding.

The petitioner contends that the bribery conviction, which is presently being appealed, was obtained in violation of his privilege against self-incrimination and further in violation of his right to counsel, under the Federal Constitution.

In about March of 1964, the petitioner with another person, were arrested for an assault for which crime they were subsequently convicted.

On the same day that they were arraigned for this assault charge, they allegedly offered a bribe to the arresting police officer to induce the officer to dispose of the weapons in the case and to change his testimony to reveal the names of other witnesses and so on.

This bribe offer was fully reported to the District Attorney in March of 1964.

They obtained a mini-phone, tape recording of conversation between the petitioner and the police officer, and all of these was in the hands of the District Attorney in March of 1964.

In March of 1965, one year later, while the petitioner was serving his sentence, under this assault conviction, for which he had pleaded guilty, he was called before grand jury, which was reportedly investigating the assault that had been committed by the petitioner and the conspiracies arising therefrom.

His co-defendant in the assault case was called first, pleaded the Fifth Amendment, was granted immunity and testified.

The petitioner never had a chance to plead the Fifth but was immediately offered immunity -- was voted immunity.

Immediately prior to his actual testimony, he requested to see his lawyer and he was assured by the District Attorney conducting the investigation that he had nothing to worry about.

He was being fully protected, he didn’t need a lawyer at all, and so he testified.

Four days later, the District Attorney had the police officer to whom the bribe was offered come in and testified before the grand jury.

And several months later, the petitioner who had been told that he was being fully protected was indicted for bribery.

The bribery conviction is the case that is presently on appeal.

And during the course of the petitioner’s grand jury testimony, which is -- I stated was given under a grant of immunity.

He was asked to testify about the particular facts surrounding the assault itself.

What weapons were used, where the assault took place, they were interested in who would hired him.

The petitioner could only give a name and a vague description.

As I said, he was asked about the weapons that were used.

He was asked where the assault took place and so on.

There was, I may point out, no eyewitness to this assault, so the only direct evidence of the assault itself would have to come either from the victim of the assault or the petitioner and his co-defendant.

The police officer was also asked about the assault and was particularly asked about what petitioner had told him about the facts of the assault.

And the police officer’s version of what the petitioner told him jived very, very closely with what the petitioner had testified to.

As it turns out, the petitioner had described all of these events to the police officer during the course of making the bribe offer, for which the petitioner was indicted.

Now, it is our position that first that the grand jury actually relied or probably relied upon the petitioner’s testimony, when they decided to indict him for bribery.

It is secondly our position that the petitioner should have been protected from indictment for bribery, because under the Constitution, as you can see he had been compelled to testify to matters relevant to the bribery.

He had to be given protection for such a prosecution and it is further our position that the petitioner was deprived of his right to consult with his attorney before he testified and as a result the indictment that was obtained must be dismissed.

We submit that the grand jury, in fact, actually relied upon the petitioner’s testimony.

He used the petitioner’s testimony as a basis for indicting in several respects.

First of all, the petitioner’s testimony supplied the grand jury with a motive for the bribe offer to which the officer would later testify.

And although, as we have stated in our brief, motive may not be a necessary element of the crime of bribery, it’s certainly easier to get a conviction and we submit easier to get an indictment if the prosecuting agency is aware of the existence of a motive.

And so, the petitioner’s admission that he had committed the assault and that he committed the assault with the weapons that the police officer later said he was suppose to dispose of it in some way.

But we think was crucial in this case and may very -- there was a strong likelihood that the decision whether or not to indict was in fact based upon the grand jury’s knowledge that there was a strong motive for bribery in this case.

It is further out position that the fact that the petitioner’s testimony jives so closely with the police officer’s version of what the petitioner had told him made the police officer more credible to the grand jury.

They didn’t have to believe the police officer.

He hadn’t seen the assault and so that all that he could testify to really was what the petitioner told him.

And it wasn’t necessary that they believe the police officer, and we think that the fact that the petitioner’s testimony supported the police officer’s testimony in so many respects, they also have led to the grand jury decision that in fact, the petitioner was guilty of bribery and should be indicted therefore.

In addition, there’s always a possibility that the grand jury saw the petitioner, made an evaluation of his character, of his demeanor, of his honesty, of his forthrightness, and in view of their evaluation of his character determined that he had committed the bribery and therefore should be indicted for.

Unknown Speaker: How do you escape that?

How do you escape the grand jury’s if they do engage in the exercise of the evaluating of the man by looking at him, how --

Ms Malvine Nathanson: No, it's our position that a person who has been forced to appear before the grand jury and forced to give up his privilege against self-incrimination, should not be indicted by that same grand jury.

Particularly, not in the case like this, where the subject matter of his testimony and the subject matter of the indictment are so close.

Unknown Speaker: What if he appears and claims the privilege?

Ms Malvine Nathanson: Well, I -- this certainly is a problem and it may very well be that a grand jury will take a claim of privileges being some sort of an admission of guilt.

The several cases which we relied upon which established that -- which stated that the grand jury may be affected by the considerations I have mentioned, point this out as well.

This is a chance that a man must take if he wishes to assert his privilege.

But we do not believe that once he has been -- his privilege has been taken away from him, and he has been told that he would be protected and the grand jury should be entitled to rely upon these factors.

Unknown Speaker: Ms. Nathanson, of course, you would not be here had he been indicted by another grand jury?

Ms Malvine Nathanson: On point one, I would not be here.

Certainly, however, the remainder of my argument would be equally valid.

But I certainly agree if it a different grand jury than the problem I raised in the first point of my brief would not exist.

But in fact, he was indicted by this very same grand jury.

Justice Thurgood Marshall: How long period of time was it?

Ms Malvine Nathanson: Between -- I’m sorry, between what?

Justice Thurgood Marshall: Between the time when he first went there, well I mean --

Ms Malvine Nathanson: In the indictment?

Justice Thurgood Marshall: Right.

Ms Malvine Nathanson: Well, he appeared in March of 1965 and he was indicted in July of 1965, as a formal matter.

Justice Thurgood Marshall: Of course, the same people were there in both times?

Ms Malvine Nathanson: Your Honor, there is no way, there is certainly no way of defense counsel to be aware of the names who appeared in the grand jury.

There is however, the statutory framework in New York would require that there at least be seven people there at the same time.

Justice Thurgood Marshall: Well, that’s what I've said, couldn’t have been seven people at one instance?

Ms Malvine Nathanson: No, no, I didn’t make myself clear.

The grand jury system provides that there are 23 people, 16 to 23 people on the grand jury.

But 16 are necessary for a quorum.

So, there must be 16 of 23 present on each occasion.

In addition, there can be no indictment, except by the concurrence of 12 of those minimum 16.

And if we work out the numbers, at least seven people must be identical in any two sittings of the grand jury.

There would be no way of having it be a completely different group of people.

Justice Thurgood Marshall: Seven is a majority of 12.

Ms Malvine Nathanson: Seven is a majority of 12, which is what we required to indict.

Justice Thurgood Marshall: No, I mean the grand jury.

No, I say the grand jury was 23.

Ms Malvine Nathanson: 23 maximum, 16 for a quorum and 12 to indict.

Justice Thurgood Marshall: Well, you know that the -- you have two days in a row that you have all 23 of the day that is known.

Ms Malvine Nathanson: We just don’t know what happened in this occasion.

This information is not available, but there certainly were many people, who heard both the testimony.

That testimony was four days apart over a weekend, the police officer and the petitioner.

Justice William H. Rehnquist: Mr. Nathanson, is your position at the immunity granting grand jury is unable to indict the witness for anything, at all?

Ms Malvine Nathanson: No, Your Honor, but where the witness’ testimony has some relevance, so that their evaluation of this witness would directly bear upon the subsequent indictment, then they can't.

Justice William H. Rehnquist: (Inaudible) in drawing the line?

Ms Malvine Nathanson: Well, so far as this case is concerned Your Honor, what I’m saying is that that one of the factors, which not only in this case was the defendant in fact, the petitioner in fact testify to the same matter that the patrol man later testified too, and that form the subject matter of the indictment.

But in addition, the grand jury may have evaluated his demeanor and so on.

This is not – I am not saying this would be a sufficient ground for dismissal of an indictment.

But I believe it is another factor in the context to this case, which should be considered.

Justice William H. Rehnquist: Now, one last question.

If this case were being decided today by the New York Court of Appeals, do you think it would be decided the same way?

Do you --

Ms Malvine Nathanson: The result would be the same.

The New York Court of Appeals, about seven months after their decision in this case, overruled this case and so far it has set down certain general legal principles.

However, they stated that they had taken another look at the record.

What they said was this is not to say we have decided Piccirillo incorrectly, because in fact, in Piccirillo, the legal testimonies that we’re setting down now would not absolve them of this conviction.

There is certainly no question that this Court of Appeals has in fact considered Piccirillo in light of its subsequent decision in People again -- the matter of Menna, which I assume that you are alluding to, and has reaffirmed its decision in Piccirillo as to the result.

They have again found that Mr. Piccirillo’s rights under the Fifth Amendment were not violated.

Now, it is our position that the subsequent decision by the Court of Appeals, which purports to adopt what we say, is a federal constitutional rule.

Really, there's no more than pay lip service to that federal constitutional rule, I think this is demonstrated by the way they apply that rule in this case.

The spirit with which they apply, the federal constitutional rule does not give its full effect, to the effect that we believe it should have with regard to the second point of my brief.

This is of the transactional immunity rule that we assert is required under the Fifth Amendment that is that a witness who is compelled to give up his privilege against self-incrimination must be guaranteed that he will be immune from prosecution by the compelling jurisdiction, as to any transaction relevant to his testimony.

This is commonly known as the transactional immunity rule.

It is our position that this the rule that was first enunciated in the first occasion in this Court to deal with the question of immunity and the abrogation of the Fifth Amendment privilege in Counselman v. Hitchcock.

It has been constantly reiterated, in numerous decisions of this Court and we believe is a very sound rule.

The rationale for the rule, I think is quite simple.

The Fifth Amendment states very explicitly, “no person shall be compelled to incriminate himself.”

There's no ifs, and, buts, no qualifications.

Only if the incriminatory aspect of his testimony can be removed, if in fact as he testifies, he is not subject to any criminal prosecution that could be based on his testimony.

Only then can you say that the Fifth Amendment no longer applies and he may be forced to testify.

And we submit that this can only done by granting him immunity as to any crime, which could be related to his testimony and which could be proved through his testimony worthily leads.

I do not believe that the exclusionary rule with the District Attorney contends this as a sufficient rule, under the Constitution, is in fact a sufficient rule.

Chief Justice Warren E. Burger: Suppose after the events, after these two things, the assault and bribery --

Ms Malvine Nathanson: Yes.

Chief Justice Warren E. Burger: -- and after he testified for the grand jury the first time.

Then, he decided to telephone the policeman’s wife, threatened her over the telephone that he’d do something to the children, if he got into any difficulties.

Do you think that would be part of the same transaction?

Ms Malvine Nathanson: Oh!

No, no, immunity would only protect somebody up to the point of its testimony.

Chief Justice Warren E. Burger: But do you think the transactional immunity here covers both assault on one man and the effort to bribe another?

Ms Malvine Nathanson: Yes, I do.

Chief Justice Warren E. Burger: But then why isn’t the -- why isn’t the effort to intimidate the policeman after the bribery?

Ms Malvine Nathanson: Well, I'm sorry I misunderstood your question and I thought you --

Chief Justice Warren E. Burger: Yes.

I’m talking about his efforts subsequently to intimidate the same policeman.

Ms Malvine Nathanson: Subsequent to the bribe, and not subsequent to his testimony.

That’s what I misunderstood, I'm sorry.

Chief Justice Warren E. Burger: But then either way.

Ms Malvine Nathanson: Well, certainly not subsequent to his testimony, because his immunity at the time of his testimony would only cover what had happened before.

Chief Justice Warren E. Burger: Let's take before his testimony then.

He has now tried to intimidate the policeman by threatening his children through his wife, that if the policeman doesn’t be quiet -- remain quiet, his -- something is going to happen.

I that part of this transactions?

Ms Malvine Nathanson: On the basis of your question and without having a chance to sit down and analyze the facts, yes.

I think that would be covered by the transaction immunity.

Chief Justice Warren E. Burger: Well then if he carried out his threats, let's pick at another step.

Carried out his threat and kidnapped the children.

Are you going to carry the transactional immunity without [Voice Overlap] item?

Ms Malvine Nathanson: Well actually, in New York, I believe that kidnapping is not covered by immunity, and nobody would have power to grant him immunity in an investigation of that sort.

Chief Justice Warren E. Burger: Well then, let's just say he beat the children up then on their way home from school, instead of kidnapping.

Are you going to stretch this transaction to cover that?

Ms Malvine Nathanson: -- without a chance to actually analyze the testimony, because I think it all depends on exactly what he testified to and is it substantially related to the crime for which he is being prosecuted.

And to be perfectly honest, I would have to sit down, read his testimony, take a look at the facts of the crime and determine whether or not this is substantial relation and this is hypothetical, because I haven’t previously considered.

But this would be the test, and if after analysis it would be determined that the testimony that he gave was substantially related to the beating up of the children.

Then, it certainly would be covered.

Chief Justice Warren E. Burger: Pretty substantially related, isn’t it?

Ms Malvine Nathanson: Well, it’s --

Chief Justice Warren E. Burger: It’s the same objective and the same motivation as the bribery.

Ms Malvine Nathanson: That’s right.

Chief Justice Warren E. Burger: He’s doing it for the same purpose; the bribery didn’t work, so he tries another one.

Ms Malvine Nathanson: But the test is not -- is not whether there might be a similar motivation between the two crimes or anything like that.

The test is his testimony itself, what he said in the grand jury are the words that he uttered substantially related to the subsequent crime.

And in fact, they are substantially related.

Then under this court’s holding in Heike he would be covered, under a transaction immunity standard.

I would hesitate at this moment to make that evaluation of a hypothetical that I, you know, had not had chance to evaluate.

It is our position certainly in this case that there's no question that there was a substantial relationship between the testimony before the grand jury, and the bribery prosecution that was subsequently commenced.

For the same reasons that we feel that the testimony could in fact have been relied upon by the grand jury in indicting, that kind of create the same kind of relevancy.

The testimony established the motive for the bribe offer.

It was in fact about the same tire irons that had been used during the assault and that were the subject matter of a bribe offer.

So, we feel there's no question, but if there was a substantial relationship and that under the transaction immunity test, which we contend as a Federal Constitutional test and as it has been explained by this Court in Heike and applied in other cases, the bribery indictment must be found to have been covered by the transaction immunity to which this petitioner was entitled.

It is finally our contention that the petitioner’s right to counsel was very seriously abrogated in this case.

As I mentioned before, prior to his giving any testimony, he asked if he could speak to his lawyer.

And he was told by the -- or whether he stated that he would like to speak to his lawyer first.

And he was by told by the District Attorney, who is in-charge of the case, that this would not be necessary.

In effect, what Mr. Piccirillo told him after he asked for his lawyer, he said, “under these circumstances you are not a defendant, you are a witness,” this is at page 7 of my brief, “you have been given immunity that means you cannot be prosecuted.

Your rights are fully protected and there’s no reason for your conferring with your attorney.”

Now, of course they pointed that the man was indicted by the same grand jury several months later.

And I think there is at least a very serious question whether some of his rights were being affected during his grand jury proceeding.

And perhaps the advice of counsel might have been helpful to him.

At the very least, counsel might have clarified for him what this immunity.

They were talking about was about as the question Mr. Blackmun -- Mr. Justice Blackmun points out there is somewhat of a problem, where has been in New York State as to what the immunity standard should be to compare this case with the subsequently decided case of matter of Menna.

The advice given by the District Attorney himself, his definition of what the immunity would be, kind of veers between a testimonial standard and a transactional immunity standard.

We also submit that a counsel could have been important perhaps even in negotiating, an additional amount of immunity for his client, which is certainly a perfectly appropriate role of counsel, if counsel can accomplish this sort of thing.

Counsel could at least have made clear to petitioner, what was being covered and what was not being covered.

Now, all the parties in this proceeding knew about the bribery.

The DA had had information about this bribery, at least a year before, when it has first occurred.

He had mini-phone, he had the testimony of the police officer, the statements of the police officer.

The lawyer for the petitioner knew about the bribe offer and obviously petitioner knew about the bribe offer.

Certainly, the parties involved could have clarified whether or not the District Attorney thought that this bribe offer was being covered by this offer of immunity.

And, if in fact, it was not being covered, petitioner may just not want to have given up his privilege, he may have rather subject himself to a contempt for execution, which I submit it's just perfect right to do.

Even with the grant of immunity there is no reason why a man can't elect to go to jail for contempt, rather than perhaps get into worst trouble by being indicted for substantive crime.

And so, we think that there are a lot of things that counsel could have done during these proceedings to advise the petitioner, to assist him, to discuss the matter with the District Attorney and to have been able the petitioner to make a considered reason, well-informed decision as to exactly what he wanted to do when called before the grand jury.

And the District Attorney’s cavalier dismissal of his request to talk to his lawyer with the assurance that he had nothing to worry about and he was being fully protected.

This points up the need that this petitioner had for a lawyer to advise him.

And so, it's our position that for these three reasons, the fact that his testimony, his compelled testimony, in fact, was used in obtaining the indictment.

The fact that he should have been given an immunity that would cover the bribery prosecution under the transaction immunity standard, the fact that he was deprived his right to counsel, all require that the conviction of this case be reversed.

If it please the Court, I would like to reserve whatever remaining time I have for rebuttal.

Chief Justice Warren E. Burger: Very well Ms. Nathanson.

Mr. Meyer.

Argument of Stanley M. Meyer

Mr. Stanley M. Meyer: If the Court please, Chief Justice, I’d like to just mention two things before I actually get into the discussion of the law.

First, in answer to Mr. Justice Marshall’s question, I think it's safe to assume that the grand jury that voted the indictment in this case was the same jury that did here, the defendant testified.

I believe this was an extended grand jury, normally in Kings County the jury sits to periods of 30 or 60 days.

But I believe this jury sat for an extended period, something like a year or so.

Justice Thurgood Marshall: Well, the problem with that is they have one grand jury, exactly the same time.

Mr. Stanley M. Meyer: I believe that it was the jury with the same people that heard him testified.

Justice Thurgood Marshall: Sure, that was one grand jury at the same time.

Mr. Stanley M. Meyer: Yes, that’s true.

Justice Thurgood Marshall: Would it be in better shape if this case was represented to one or the other one?

Mr. Stanley M. Meyer: Your Honor, there's no doubt about that.

And looking at it from the standpoint of hindsight, tactically speaking, that would have been a better procedure, however the question here is whether the procedure violated the constitutional requirements.

And with your Honor’s permission I would prefer to wait and discuss that point after the first one.

And second, I think it's important to place the facts of what happened here in their proper perspective.

And what I'm going to discuss now is in the record, it was mentioned on sentence and so you can see for yourselves that these are not things that have not been in this case.

This case led to a scandal and basically in New York County, involving (Inaudible), involving the New York Housing Authority.

Now, apparently the victim in this case, a person by the name of Jack Graham was employed by the Housing Authority.

And apparently, there was something about him revealing some of the things that had been going on and he had been apparently talking to police or the District Attorney.

And the petitioner here and co-defendant, who was no longer alive, were hired to beat this fellow up.

And they met him one night in the parking lot of his home, they assaulted him, they hit him with tire irons.

This occurred in March of 1964.

Now, the very next day, when he was being arraigned in the criminal court, the bribe offer was made to the patrolman.

The patrolman advised us about it, we advised him to meet the petitioner at a different time.

He did and we had mini-phone equipment.

Eventually, the petitioner pleaded guilty, he was convicted of assault and he was sentenced to the term of imprisonment.

Now, approximately a year later, while he was serving their sentence, he was called to the grand jury.

He had not been arrested or in any way, there had been no proceedings instituted regarding the bribery conviction.

Now, when the grand jury called him in, they weren’t interested in prosecuting this man for bribery at all.

They were interested in finding out, who paid him to commit the assault and to get into the background of this whole thing.

They wanted names, they wanted to know when the meeting took place and so forth and this is how this case arose.

And so in March 1965, the witness was called back and was given immunity.

Now, New York has a use plus transactional immunity statute.

The statutes are reprinted in both petitioner’s and respondent’s briefs.

And that statute protects a witness from the use of his testimony, plus fruits or leads and the statute also gives him transactional immunity, regarding any manner or thing, concerning which he testifies.

Now, that’s clear.

The Court of Appeals in this case decided if analyzing Counselman versus Hitchcock, the Murphy case, and all of the relevant decisions.

That the only thing that Constitution required was, that a witness be given use plus-fruits immunity and that the transactional portion of the New York statute was not mandated by the Federal Constitution.

Then the court concluded that the New York statute was passed, because of the dicta in Counselman and that it really was the intention of the legislature to give the witness no more than the Constitution would require if to give any witness.

And so, the court held that the New York statute only prevented the use of his testimony plus-fruits or leads.

Then seven months later, the court overruled this case, but only to the extent of its interpretation of the second portion of the New York statute.

In other words, it said, “We were right.

We still believe that the Constitution only requires a use plus-fruits immunity.”

However, the New York statute is clear and there really has never been any doubt.

And we must interpret the statute according to its plain language.

And so we hold that the New York statute does give transactional immunity, although it's not required by the Federal Constitution.

Justice William H. Rehnquist: What do you think prompted the New York court to change its mind that there wasn’t very much of a change in its personnel, was there?

Mr. Stanley M. Meyer: No, I don’t believe there was any change, it's very interesting, I believe Judge Keating who wrote the majority of opinion had left the court though.

When we argued this case in the New York Court of Appeals, we really didn’t even argue this point.

And so, we were quite surprise when the court decided that the New York Statue, as a matter of state law, was not an immunity statute.

Apparently, they just felt that they had misinterpreted the statute.

I think it's clear from reading Gold versus Menna and nothing more.

Unknown Speaker: I understand when you argued Piccirillo’s case, this point was not argued --

Mr. Stanley M. Meyer: That’s right, because we all assumed that New York statute granted transaction immunity, as a matter of state law.

Now, I think that’s very important, and it's important for this reason, if transaction immunity or first let me say this, then he was brought into the grand jury in 1965 and questioned about the events leading up to the assault and there’s a lot of testimony.

He was asked many, many questions, but as a matter of introduction, of course, the testimony started of by the prosecutor saying to him, “Now, you’ve been indicted -- you’ve been convicted of assault and you’re serving a sentence for it and isn’t it true that has all occurred on such, and such a date where you hit this man with a tire iron.”

And the word “tire iron” was mentioned.

Now, it was argued that by use of tire iron, that the defendant got immunity from prosecution for the bribery, because when he made the bribe offer to the officer, he said, he offered him money, in exchange for changing his testimony and losing the tire iron.

And so, the argument was made that because the phrase or the two-words “tire iron” was used in the grand jury, that this meant that the defendant testified to a thing or matter as set forth in the New York statute.

Now, if transactional immunity is required by -- incidentally, the court below, all the way down the line held, as matter of fact that this was not a thing testified to and that the testimony he gave had no relation, as matter of fact, to the testimony which supported the indictment.

Now, this is important because if transaction immunity is required by the Federal Constitution, then the decision of the Court of Appeals that this was or wasn’t a thing as specified in the New York State statute is a matter of federal importance and it is to be decided by uniform standard.

On the other hand, if the only thing that the Constitution requires is a use plus fruits immunity, then when New York decided whether this crime as bribery was one of the things testified too in the grand jury becomes strictly a matter of a state interpretation of its own statute and there was no federal constitutional question involved.

And so it is necessary to decide whether transactional immunity is required by the Federal Constitution.

Now, the petitioner relies a great deal on the case of Counselman versus Hitchcock.

Now, it's our position that Counselman is not the law anymore that it has been overruled or that if it hasn’t, it should be.

And that the consequences of our holding in Counselman are much greater and dangerous today than they we're in the days when it was decided.

We also take the position at the Murphy versus the Waterfront Commission case and Malloy versus Hogan have closed this question.

And that this Court has made it clear that the Constitution only requires a witness to be put in the same position as if he had pleaded his privilege or as if he had never testified.

In other words, he is to get only that protection that the Constitution gives him.

And to protect the use by any Government of the testimony he gives and the leads obtained from or the fruits of that testimony would do that.

To give him transactional protection is to give him a benefit not required by the Constitution and it's a benefit which each and every state should have the right to decide for themselves.

That is whether they want to give it to them or not.

Now, this is really the key issue in this case and I think that there really is not much doubt about the law in this area.

Now, this Court in Murphy said that we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating on the federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.

We conclude moreover, that in order to implement this constitutional rule and accommodate the interest of the state and federal governments in investigating and prosecuting crime, the federal government must be prohibited for making any such use of compelled testimony and its fruits.

This exclusionary rule while permitting the states to secure information necessary for effective law enforcement leaves the witness and the federal government in substantially the same position as if the witness had claimed this privilege in the absence of a state granted immunity.

And in footnote 18, in that decision made it clear as far as the rationale was concerned that this Court was only saying that use plus fruits was required.

And the footnote indicates that once a defendant has been granted immunity and compelled to testify in a state proceeding, and then he was later indicted in the federal jurisdiction that it would be up to the federal government to show that the source of the evidence used against in was untainted and did not in any way stem from the evidence he gave before state grand jury which indicated that each government would be free to prosecute or obtain indictments against the witness provided that were totally completely independent.

And this, I submit would be the same situation that a witness would find himself in if he never were a witness, if he were never compelled to testify.

You're sort of saying to a witness tell us things; give us information which we intend to use against other people sort of off the record.

We're not going to use it against you, use it in any way to obtain evidence against you.

But on the other hand, if something comes up clearly from an independent source, we do not want to be prohibited from doing what we normally could do.

Now, the statement in Counselman which caused all the problem was a dicta in that decision.

Now, that case declared a federal statute unconstitutional because in that case as a matter of fact, that statute only gave use immunity and did not protect Mr. Counselman from the federal government’s using the fruits of his testimony or obtaining leads from his testimony.

And for that reason and that reason alone, the statute was unconstitutional.

The statement which has been discussed very often came later on in the opinion and was not necessary to its decision.

Now, this was pointed out in the Murphy case, in this case, in the Court of Appeals opinion and in the Supreme Court of State of New Jersey’s opinion in the Zicarelli case which I submit as highly persuasive.

Also, I would like to point out that the effect of the decision in Counselman was not very great because you had the two sovereignties doctrine.

And it really made no difference what the court said in that case because the Fifth Amendment could not be pleaded in the state prosecution and vice versa -- the opposite was true.

However, since this Court’s decision in Malloy versus Hogan applying the Fifth Amendment to the states has come down a holding such as petitioner suggests Counselman requires would have disastrous effects on law enforcement throughout the United States.

And I suggest that if the basis for Counselman and the conditions under which it was decided no longer exist, then Counselman should be reevaluated.

Now, many courts have considered this problem and have taken the position and this court has overruled Counselman even though it didn’t specifically say so in the Murphy decision.

For instance, in New Jersey, in the Zicarelli case, the Supreme Court said we, and incidentally, New Jersey enacted a statute which only gave use plus fruits immunity, this statute was enacted after Murphy was decided.

And so the legislature took the position that this Court had overruled Counselman and the state was now free to take away the transactional portion of the protection that had previously afforded witnesses.

And so it passed the new statute.

And the statute was tested and it went to the Supreme Court in the State of New Jersey.

I understand the case is here on a sort of application at this time.

And the court said, “We heretofore deemed the Constitution to require immunity against use of testimony rather than immunity from prosecution.”

And recently all legislatures in adopting the model State Immunity Act substituted an immunity from use for an immunity from prosecution which I've just referred to.

There is a difference in that Murphy dealt with a federal state setting, whereas we are here dealing with the claim that our statute does not protect the witness from prosecution under state law.

But the question involved is the same.

In other words, what immunity of the Fifth Amendment requires in exchange for a compulsion to answer.

The values involved are the same.

We see no sensible basis for different answer.

Gardner versus Broderick treated the issue as one and the same siding both Counselman and Murphy.

Murphy held and Gardner repeated that the Fifth Amendment requires protection only from the use of the compelled testimony and the leads it furnishes and that protection of our statute expressly provides.

So we have New Jersey taking that field.

You have New York of course taking that view in this case and in the many cases.

The U.S. Court of Appeals for the Second Circuit, Judge Friendly writing for the majority in the Uniformed Sanitation case.

It took the same view and the District Court in the southern district in two cases falls at the (Inaudible).

Also, California in interpreting Murphy agreed that complete immunity such as what's discussed in Counselman was not required by the Constitution and that answers could be compelled as long there was immunity from federal and state use of the testimony and its fruits.

I also point out that Maine has taken the same view and Kansas in dicta has also agreed.

Now, the appellants cites -- the petitioners cites statutes in a very impressive compilation at the end of our brief four or in the appendix of all of the 50 States in which it is clear that most of the States have adopted transactional immunity statutes.

And apparently, this is done to argue that if the States felt it was necessary to give that type of protection, then it would’ve be persuasive.

And this court order be persuaded that that it too should take the same position.

I would like to point out as I point out in my brief that prior to Counselman, the situation was just the opposite.

Most every state had only a use plus fruits statue.

But because of the dicta in the Counselman, it was thought that transactional immunity was now required as a federal proposition and all of the States amended their statues.

And so since the state statutes were only changed because of Counselman, it seems to me that to argue that these statutes are themselves persuasive is truly putting the cart before the horse.

Also, the practical effects of the contrary rule or as the -- or of a rule as petitioner argues is quite, quite important.

Now, Mr. Justice White pointed out in Murphy in his concurring opinion that if this court adopts a transactional rule, it will in effect be abrogating the immunity statutes in every single state because a state cannot give federal transaction immunities beyond it's power but since because of Malloy, a witness can now plead his federal privilege in a state proceeding he can successfully forward an attempt of any state to give him immunity and secure his answers.

And the Court -- and Mr. Justice White said, “The invalid -- that this would invalidate the immunity statutes of the 50 States since the States are without authority to confer immunity from federal prosecutions and would thereby cut deeply and significantly into traditional and important areas of state authority and responsibility in our federal system.”

Of course the converse should be looked at also.

If it could be said, and I don’t urge it that a state did have the power to grant federal transactional immunity in a state proceeding, and that if the state in granting immunity -- transactional immunity bound the federal government, then the effect is even worse because if that were true, a state of course without consultation with the federal government and without the government’s knowledge could sterilize the federal government from ever proceeding against an individual.

And the example of course comes to mind at the situation where the Government may have a case prepared against a particular individual, the case may be either in the grand jury or be ready to go to a grand jury when all of a sudden it's discovered that this witness in a state prosecution which may not have been very important admitted in ans -- responsive answers to relevant questions that he had committed various federal crimes which were then under investigation in the federal jurisdiction.

So that for all practical purposes, the witness would’ve -- would gain a federal immunity and would prevent the federal government from taking any sort of action.

Now, the other argument is made that we used the testimony of this witness against him on the bribery case and that the grand jury heard him testify and that the -- he furnished the background and the motive for their action.

Now, the record I think dispels that argument.

First, it is conceded that motive on the New York law is not an element of the crime but the Court of Appeals decided as did the original Supreme Court in New York that the testimony of Patrolman Sewell was complete in and off itself that any testimony given by this witness was insubstantial and played no part in the subsequent indictment.

Now, of course the only thing that this witness said was that he had used the tire iron.

But that was repeated by Sewell in the grand jury who testified that when the bribe offer was made to him, the witness admitted the assault admitted using a tire iron and admitted many things and this is in the appendix.

So, that the testimony of this witness was totally unnecessary to support the indictment which was obtained.

I think that merely using the same grand jury does not in and of itself violate anyone’s rights.

Now, let me point out that it is common practice for instance in the Southern District of New York to present a case against a man have all the evidence completed and then subpoena him to testify before the grand jury.

When he testifies pleads the privilege of self-incrimination and then leaves the grand jury room, it's very common for that grand jury who had just heard him plea that privilege to indict him.

Incidentally, such a procedure would be illegal in New York.

And this type of situation has been upheld many, many times.

I think it's far more questionable than what happened here.

Because here, truly, the grand jury and the district attorney did not call this man in order to have him say anything that would be used against him in a bribery case.

They weren’t interested in bribery.

They would have forgone for all times any bribery prosecution.

They were only interested in learning about the background of the assault and getting into this area involving so to speak bigger and better things.

And I think that this must be kept in mind and I just would say one word about this business of counsel.

Now, it's true.

This is what happened.

He was explained the meaning of immunity and he went outside presumably his attorney was with him in the court and then the grand jury came back and granted him immunity.

It was explained to him again and the witness said, “Well, okay.

I'm going to answer the questions but can I just talk to my lawyer for a second?”

And the prosecutor said, “Well, no, you don’t really have to because you have immunity.”

Now the Court of Appeals --

Justice Thurgood Marshall: What did he mean by that statement?

Mr. Stanley M. Meyer: Your Honor, I have no idea. Of course, it would’ve been much better to let the man go outside.

It wouldn’t have changed anything because presumably --

Justice Thurgood Marshall: Couldn’t he assume that as of that moment, he was immune from any prosecution of any kind prior to that moment?

Mr. Stanley M. Meyer: Well,--

Justice Thurgood Marshall: Couldn’t he -- couldn’t he have thought that’s what he meant?

Mr. Stanley M. Meyer: Well, Your Honor, he was unaware that there was any type of bribery proceeding pending so he couldn’t have talk about that.

Justice Thurgood Marshall: Well, he didn’t say partial immunity, limited immunity or absolute immunity.

Mr. Stanley M. Meyer: Well, that’s true.

We can see that.

Justice Thurgood Marshall: He just said immunity.

Mr. Stanley M. Meyer: We offered him complete immunity, transactional immunity but transactional immunity is a matter of state law and we contend that this was not a transactional --

Justice Thurgood Marshall: Did he know what transactional immunity was?

Mr. Stanley M. Meyer: It was explained to him and he had an attorney --

Justice Thurgood Marshall: Explained by whom?

Mr. Stanley M. Meyer: By the prosecutor in the grand jury and he had a lawyer presumably outside who he consulted with.

Justice Thurgood Marshall: Did he want to go back and make that final check with his lawyer for something?

Mr. Stanley M. Meyer: Well, an answer to that [Voice Overlap], the Court of Appeals considered that problem.

And let me just read you their answer, In Gold versus Menna when they reconsidered this situation, they said, “Since Piccirillo’s answers did not form the basis of the present indictment, his claim that his constitutional right to counsel was violated because he was not permitted to confer with his attorneys without merit because his answered weren’t used.

No prejudice did or could result for the attorney could have done nothing more for Piccirillo than to assure that he was given the immunity which in fact he did receive.”

So he got it anyway.

Piccirillo situation is to be distinguished from that of a witness who denied permission to confer with his counsel, refuses to answer and is held in contempt.

Such a witness might properly claim that had he been given an opportunity to obtain advice from his lawyer, he would undoubtedly have testified and thereby been spared a prosecution on a contempt charge.

Thank you.

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

Ms. Nathanson.

Rebuttal of Malvine Nathanson

Ms Malvine Nathanson: On this question of the effect of the rule that we state as constitutional required upon criminal prosecutions throughout this entire country, first, I believe the District Attorney has misinterpreted what we state as constitutionally required.

The Counselman rule as we have discussed in our brief, refers to the requirement that the compelling jurisdiction -- compelling jurisdiction grant transactional immunity to the witness.

The Murphy situation of course was a case where the compelling jurisdiction and the using jurisdiction, or potentially using jurisdiction, were two different places.

It is not the situation on this case but that distinction is very important.

We have not --

Chief Justice Warren E. Burger: How is it important to the use factor?

Would you spell that out?

Ms Malvine Nathanson: Well, we have not proposed that a jurisdiction other than the one which has compelled the testimony be bound by the transactional immunity rule.

So we have not proposed this parade of horrors that the district attorney refers to when some small state prosecution willing to lay the witness from large important federal prosecution.

This is not what we are saying at all.

It is our position that the jurisdiction which makes the decision whether or not to compel the testimony and presumably evaluates so far as the down jurisdiction is concerned how important the testimony is or how important the prosecution against that witness would be.

That jurisdiction which makes that definite decision to grant immunity should be bound by that decision.

Unknown Speaker: And must grant constitutionally?

Ms Malvine Nathanson: And must grant --

Unknown Speaker: Transactional immunity --

Ms Malvine Nathanson: That’s correct.

Unknown Speaker: -- for many prosecutions by that jurisdiction.

Ms Malvine Nathanson: By that jurisdiction but the jurisdiction which is not participated in this decision would not be bound to that extent as to that jurisdiction of the Murphy rule which says a protection use --

Unknown Speaker: Use and fruits?

Ms Malvine Nathanson: Use and fruits.

Unknown Speaker: Right.

Ms Malvine Nathanson: Would be the proper rule to apply.

Chief Justice Warren E. Burger: Why does it need to go beyond use?

Actually assigned to the Counselman on the other --

Ms Malvine Nathanson: I think it's very--

Chief Justice Warren E. Burger: What's your rationale for it?

Ms Malvine Nathanson: It is our position that a -- well, a man who has in fact been forced to testify can never be placed in exact same spot as though he had never testified and this is a fact that has occurred and there's no way of pretending that it never happened.

But to get him as close as possible to that point in time when he was not compelled to testify which meant that the only thing you can do is give him full protection.

For this reason, if he’s only given protection against the use of his testimony or his fruits, first of all, this involves a very, very difficult factual evidentiary kind of a hearing.

Even assuming that the burden would be on the prosecuting agency as it was mentioned, it would be in Murphy, it still is a difficult factual question because it almost involves the -- an exploration into the thought process of the prosecuting agency.

Now, we are assuming that this is the same agency which has compelled the jurisdiction so we can further assume that they have -- that they are aware of the compelled testimony.

Now, you’d have to go into their minds and find out whether that testimony set off any trains of thought, gave them any ideas, gave them any hunches that they acted upon.

These are very, very difficult things to trace and I don’t believe that you can ever have assurance that there would be full protection.

Chief Justice Warren E. Burger: All those factors are still there when you have the federal statement situation --

Ms Malvine Nathanson: Well--

Chief Justice Warren E. Burger: -- on the fruits problem?

What you're arguing against is the fruit problem.

Ms Malvine Nathanson: This is true except for the fact that you're dealing with two different jurisdictions and the likelihood.

Well, for example in this case, there is very little chance that the District Attorney of Kings County was not aware of the petitioner’s testimony.

But if there were federal prosecution, it would not be as likely that the federal authorities would know what he had said.

And so you wouldn’t have this difficult problem of determining how the other state may have -- how his investigation or procedure may have been somehow determined by what he heard because it's not so clear that he was up for the compelled testimony.

Certainly, within a jurisdiction, this is a much, much greater problem and we can see that because of certain practical considerations involved in our federal system, it may be that the rule would have to be different between the two jurisdictions although it's not easy to formulate the rationale.

Apart from just saying that without some kind of differing standards, the problems that the district attorney has presented might in fact come into being.

We do live in a federal system and as Murphy recognized, we have to make accommodations between federal and state interests and we submit that this is the best way of doing it within the framework of the Constitution.

It's interesting that in Murphy, they stated that the witness who is being protected from the use of his testimony was being placed in substantially the same position, substantially, as though he had not testified which is something different from what Counselman said which is that he must be in exactly the same position as though he had not testified.

I think this is a recognition that this isn't really completely what the Constitution would require but because it's not the compelling jurisdiction and because of our federal system, this would be a proper rule under the Constitution.

If I could just make one more comment.

I would like to point out that these questions do not appear in this case.

And again to stress that we are dealing with the compelling jurisdiction being the very same one that has embarked upon the prosecution and so under the transactional immunity test as we have as we believe it is evident from the decisions of this Court and the Constitution, the indictment in this case must necessarily be dismissed.

Thank you.

Chief Justice Warren E. Burger: Thank you Ms. Nathanson.

Thank you Mr. Meyer.

The case is submitted.

Featured:

Sanitation Men v. Sanitation Comm'r - Oral Argument

Thu, 23 Aug 2012 18:31:12 +0000

Case:

Sanitation Men v. Sanitation Comm'r

Media File:

823_19680501-argument.mp3

Related Transcript:

823_19680501-argument

Transcript:

Argument of Leonard B. Boudin

Chief Justice Earl Warren: Number 823, Uniformed Sanitation Men Association Incorporated et al., petitioners, versus Commissioner of Sanitation of the City of New York et al.

Mr.Boudin

Mr. Leonard B. Boudin: Mr.Chief Justice, may it please the Court.

We are here to review by certiorari a judgment of the Court of Appeals for the Second Circuit, affirming the dismissal of a complaint of the petitioners who sought review of the dismissal from employment by the Department of Sanitation in the City of New York.

The dismissal predicated exclusively upon Section 1123 of the New York City Charter.

The individual petitioners were garbage collectors, sanitation that as they had called in the brief who were employed at a city dump to which private cartmen brought garbage.

The Commissioner of Investigation with powers independent of the Commissioner of Sanitation under Sections 803 and 805 of the New York City Charter, believing that a crime was being committed namely that these garbage collectors were taking money from the cartmen instead of requiring the cartmen to pay fees to the city.

Secured a wiretap order under Section 813-a of the Code of Criminal Procedure which was before this Court in the Berger case, and wiretapped the telephone at the (Voice Overlap) --

Justice Byron R. White: Was it a wiretap because in Berger it was not a wiretap?

Mr. Leonard B. Boudin: It was a wiretap in this case -- and wiretapped the telephone at the office of the Commission of Sanitation at the dump.

He then subpoenaed or was then directed the individual petitioner.

There are 15 in number, to appear before him, the Commissioner of Investigation.

He put them under oath, had stenographic record made, advised them that they were charged with crimes, advised them that he had wiretapped the telephone and their conversations, advised them that they had a privilege against self-incrimination to refuse to answer questions and they also interpolate that he played the recordings of their conversations with other persons what purported to be recordings, but advised them that if they say that they're privileged against self-incrimination as a ground for refusing to answer the questions then in accordance with Section 1123 of the New York City Charter, which he cited to them and cited fairly to them, they would be automatically dismissed from employment.

Now, the past diverge, 12 of the individual petitioners, these employees asserted their constitutional privilege at a number of cases after getting the advice of various counsels.

As to those 12, they were immediately suspended by the Commissioner of Sanitation, their immediate employer, in a letter which said they were suspended pursuant to Section 1123 of the New York City Charter.

And since that provision which was involved in Gardner against Broderick was never read to this Court and since its language we think in view of our reliance on Slochower is critical.

Let me just read the critical lines from our point of view of Section 1123 of the New York City Charter.

It says that if any employee of the city shall refuse to testify or answer any question regarding the property, government or affairs of the city, or official conduct of such an employee, on the ground that, the only ground, on the ground that his answer would tend to incriminate him or shall refuse to waive immunity from prosecution on account of any such matter, his term or tenure of office or employment shall terminate and such office or employment shall be vacant and he shall not be eligible for electoral appointment to any office or employment under the city or any agency.

These 12 after getting this notice of their suspension and of charges were told that they could have a hearing, the purposes of which I will question in a few minutes, and they had a pro forma hearing which is the Court of Appeals indicated below was limited to one thing, did they take the Fifth Amendment before the Commissioner of Investigation?

And they went there upon, dismissed from employment, not on the ground of any substantive proof of any irregularities or violation but on the ground that 1123 of the Charter required their dismissal.

In fact, anticipated their dismissal by making the office forfeit the moment they had asserted their privilege.

Now, we take the three, the three who did not assert their privilege against self-crimination, but who answered the Commissioner of Investigation denying the existence of any irregularities or misconduct.

Those three were then suspended by the Commissioner of Sanitation for irregularities by which he meant criminal misconduct.

And they were then, through the apparatus of the Commissioner of Investigation who as Your Honors will see serious police functions here, then were called before the grand jury by the district attorney who would receive the information from the Commissioner of Investigation.

When they appeared before the grand jury, these three were not asked to testify and given immunity under 2447 of the Code of Criminal Procedure which was mentioned to Your Honors yesterday in the Gardner against Broderick case which would have given them immunity with respect to the transaction.

Instead, they were asked to waive immunity under Section 2446.

The provision discussed the Stevens against Marks which would of course have left a viable we think to prosecution for the transaction possibly for more on its face and under the decisions of the Appellate Division in New York would even have permitted their words to be used against them.

There are cases of that kind of the Appellate Division which are not cited said in our brief directly.

When they, not refusing to answer questions addressing myself to the point made by Justice Fortas and other members of the Court yesterday, when they refused to execute this waiver which was involved in Regan and involved in Stevens, they were then served with new charges by the Commissioner of Sanitation, their employer, charging them with having refused to waive immunity and they were then given a hearing.

And again the hearings with a pro forma were unlimited to the question of whether they had refused to waive.

When they insisted at the hearing before a Deputy Commissioner of Sanitation, that the Commissioner should proceed on the charges of irregularities the original charges, the Commissioner refused to do so and limited the issue to the one question, did they assert their constitutional privilege?

Did they refuse to waive immunity before the grand jury?

Justice Abe Fortas: Yes, excuse me Mr.Boudin

Mr. Leonard B. Boudin: Sure, Your Honor.

Justice Abe Fortas: This did not supersede or eliminate the earlier hearing based on their refusal to answer questions, did it?

Mr. Leonard B. Boudin: The earlier hearing, Your Honor is referring to the three or the 12.

The 12 people had asserted their privilege before the Commissioner of Investigation.

These three had answered the questions put by the Commissioner.

Justice Abe Fortas: I see.

Mr. Leonard B. Boudin: And it was because they refused to waive their immunity before the grand jury that these three were then dismissed from employment.

Justice Abe Fortas: Sorry, I think I've (Voice Overlap) --

Mr. Leonard B. Boudin: Dismissed as the Charter request them to be dismissed.

We don't question the fact that the Charter was correctly carried out although we think it was a violation of this Court's decision Slochower.

Now, I come before I come to the details of my argument, let me indicate Your Honors the three basic points of our argument which are -- each of which is an independent ground for the relief which we seek and I emphasized the independence of the points.

And as Your Honors will see I do not agree in my construction of the statute as I refer to the Charter with either the appellant or the appellee's discussion of it in Gardner against Broderick yesterday with all due deference.

Our first point is that a statute which forfeits or declares employment forfeit automatically, unconditionally and irrevocably upon the assertion of the privilege as a ground for refusing to answer questions, denies due process on the Slochower and violates the privilege under Malloy.

This is the Slochower point, our principal argument here.

Our second point is the point upon with so much of the discussion yesterday developed and it is that the refusal to answer, we would submit, even an employer's questions based upon the constitutional privilege cannot be used as a basis for dismissing a public employee.

This we will call the Spevack extension, the Griffin point, the general question of a penalty or making the assertion of the privilege coarsely.

And our third point is that in any event, the situation here of refusal to answer.

This being a refusal to answer in a criminal investigation cannot be used as a basis for dismissing a public employee even if an employer who ask questions of a disciplinary proceeding of a kind referred by Mr.Justice Fortas in his concurring opinion were to have the right to ask the questions.

And let me proceed, if I may Your Honors, with my first point which is one upon which rely on most because there is less dispute as to that and because this Court has spoken to the point in Slochower.

This Court held in Slochower that Section 903 of the Charter which is identical in language with the 1123, identical, violated due process.

That time we didn't have Malloy against Hogan because it had operated to discharge every city employee automatically who asserted his constitutional privilege.

And this Court relied upon the construction, the construction never changed by the New York Court of Appeals in the Daniman case.

Where the Court of Appeals of New York stated, the assertion of the privilege against self-incrimination is equivalent to a resignation.

And it's said there is nothing noble about such a statute.

Other statutes provide for the -- or interpolate forfeiture of an office or employment upon the happening of an event specified therein.

Mr.Justice Clark writing the opinion of the Court regarded the questions asked, I'm quoting, “as being confessed.”

Mr.Justice Harlan dissenting gave a different view to the statute, a view upon which we rely here for our argument as well as upon Mr.Justice Clark's.

Cause Mr.Justice Harlan pointed out that even incrimination would not result in a dismissal under 1123 or 903 as it had been was and I would add that even refusal to answer for any ground other than the fifth would not be a basis for dismissal under 1123.

Mr.Justice Harlan, I think you said correctly that it was the exercise of the privilege which is the basis for the discharge under 903 of the charter.

And Mr.Justice Clark in the Nelson case and Mr.Justice Harlan in Lerner against Casey reiterated the fact that this Charter was directed specifically at the assertion of the privilege not against the general refusal to answer.

Here we are with exactly the same language of the Charter and that was why I was so surprised to hear some counsel say yesterday that this was not an automatic dismissal from employment under the Charter.

As a mater of fact, the Court of Appeals in Gardner against Broderick, the latest word on the subject does not suggest any new construction, any change from the construction which then gave to the Charter in Daniman and the Appellate Division for the first department in Koepnick case cited our replied brief on page 3 said, “it will be observed that as the event itself which terminates the employment rather than any adjudication or finding of the same as far as it is possible to do so,” said the Appellate Division Mr.Justice Stewart.

The statute provides for a procedure which is self-executing.

Justice William J. Brennan: Mr.Boudin --

Mr. Leonard B. Boudin: Yes, Your Honor.

Justice William J. Brennan: But in fact apparently the city does have some administrative procedures whether -- what (Voice Overlap) --

Mr. Leonard B. Boudin: We'll come to that.

The city has simply pulled this administrative procedure out of the hat as a façade, if I may suggest most respectfully, as a facade to meet what the Court of -- what this Court said in Slochower, when it said that it will be different if there were a hearing to go into the qualifications for employment of the employee.

This Court was not discussing of the possibility of a hearing under 1123 which permits of no hearing.

This Court was talking about a (Voice Overlap) --

Justice William J. Brennan: You say permit some --

Mr. Leonard B. Boudin: No, it does not permit it.

The 1123 requires the dismissal from employment.

In fact that declares the office vacant.

And this is a position which is respected by the city itself in the case which we cited in our replied brief.

Where the city -- in connection with the question of a hearing -- I'm talking about a police officer said, “A hearing presumably before the police commissioner following petitioner's appearance before the grand jury would have been a useless formality, this in 1967 Your Honor.

There can be no dispute as to the essential facts that make the statute operative that it referred to the assertion of the privilege.

And it said nothing could be brought out of the hearing even if one will require it to be held that could in any way all to the essential facts that brought Charter 1123 into operation.

The police commissioner has properly and lawfully terminated the petitioner's employment.

Now, the question is where is this hearing coming from?

Justice William J. Brennan: Let me see, is this to suggest that there is a hearing and the city in fact determines that this justification and in particular circumstances there ought not to be a dismissal?

I gather your point is that this would be violative of 1123, is that it?

Mr. Leonard B. Boudin: Yes.

My point would be that the kind of a hearing contemplated by Slochower was a hearing in which I think in inquiring would be made as to the suitability for employment of the employee.

The 1123 of the Charter has no -- it gives no leeway for such a hearing because 1123 of the Charter is mandatory as the corporation counselor said, in connection with the dismissal.

And the (Voice Overlap) --

Justice William J. Brennan: Let's see, your Court of Appeals has sustained not in this case but on the (Voice Overlap) --

Mr. Leonard B. Boudin: Daniman originally.

Justice William J. Brennan: Was there a hearing in the first case --

Mr. Leonard B. Boudin: No.

In Daniman -- in Daniman, there was no hearing.

Daniman Your Honor will recall was an involvement appearance originally before congressional committee.

The Court of Appeals did said -- did not indicate that any hearing was contemplated by the statute even there.

And in Gardner against Broderick, the case argued yesterday, there was no suggestion made in that case that a hearing procedure was now built into 1123.

Justice William J. Brennan: Oh, was there in fact a hearing in that case?

Mr. Leonard B. Boudin: There was hearing in Gardner?

Yes.

When the hearing --

Justice William J. Brennan: You don't think that the action of the Court of Appeals maybe read as in the fact that they should be using your words that the statute has a built-in provision for --

Mr. Leonard B. Boudin: I do not think so Your Honor.

I think that otherwise the Court of Appeals would have made some change in its construction of the statute as calling immediately for the resignation.

I would like to add (Voice Overlap) --

Justice Potter Stewart: There was a hearing.

There was a hearing in this case, wasn't there?

Mr. Leonard B. Boudin: There was a hearing in this case in which the only issue was that as the Court of Appeals point out was the privilege taken.

It said that the transcript was presented at that hearing.

Justice Potter Stewart: That's right.

Mr. Leonard B. Boudin: The transcript of the hearing before the Commissioner of Investigation.

Justice Thurgood Marshall: Mr.Boudin.

Justice Byron R. White: And your client in that hearing further established for example that he didn't understand the Fifth Amendment or the reason he refused to testify was some other reason that the --

Mr. Leonard B. Boudin: The only case in which a hearing could have had any relevance would either show that he didn't take the privilege or that he didn't have counsel (Voice Overlap) --

Justice Potter Stewart: Or that his refusal was not based on the Charter.

Mr. Leonard B. Boudin: Exactly, but that of course would not mitigate -- yes.

Justice Thurgood Marshall: Do I read the statue correctly in this herein, the 12 have just said we won't answer the question, any questions period.

They wouldn't violate this, would they?

Mr. Leonard B. Boudin: That is correct.

If that a hearing (Voice Overlap) --

Justice Thurgood Marshall: If they would have to have a hearing as to whether they will fit to remain as sanitation workers.

If they hadn't claimed the privilege, you just said we won't answer.

They couldn't have discharge them on their lawns, could they?

Mr. Leonard B. Boudin: That is correct Your Honor.

A discharge under 1123 of the Charter would not be permitted if there was simply a refusal to answer questions.

It's only where the refusal is based upon the privilege that the dismissal occurs automatically.

Now, the questions that arise (Voice Overlap) --

Justice Potter Stewart: That there's a hearing in any event, isn't there?

Mr. Leonard B. Boudin: There is a hearing but the hearing has no meaning.

It is not the hearing that was intended by this Court in Slochower.

Let me consider with Your Honor the question of what would happen at a hearing or the possibilities.

A hearing at which one would attempt to justify the assertion of a privilege is obviously not the kind of a hearing that could be contemplated because it would violate the general principle protective of the privilege at the explanation I referred to cases like Huffman that the explanation of the privilege is in a sense its waiver.

You can't call a man to a hearing and say, “Tell us what you did and that you've justified your assertion of the privilege.”

Now, the other question is, could that be any possible hearing before that Commissioner of Sanitation at which you could say, “Yes I took the privilege but I don't want to be dismissed even though I took the privilege.”

The answer is no.

The corporation counsel agrees.

In other ways, you couldn't justify the privilege before the Commissioner of Sanitation by saying, “Well it dealt with the event 20 years ago.”

Well, it would have meant that I would have hurt somebody else out or -- and I really wasn't worried hurting myself, or the damage to me would have been so great (Voice Overlap) --

Justice Potter Stewart: Well, I should think if he did said that that it would have been pretty clear that he wasn't actually relying on the privilege (Voice Overlap) --

Mr. Leonard B. Boudin: Yes, of course in that particular incident.

My point is Your Honor (Voice Overlap) --

Justice Potter Stewart: So when he said that, that would have been -- then he wouldn't have come within the Charter provision.

Mr. Leonard B. Boudin: That's right, he would have avoided it.

But there is no possible situation in which a man can appear before the Sanitation Commission, admit he has taken the privilege and then say don't dismiss me because the Charter requires his dismissal.

When we talk about a hearing, unless we are really talking about a facade, it must be a hearing to a purpose.

Justice Potter Stewart: Or to establish the facts that bring him within this Charter provision, is that it?

Mr. Leonard B. Boudin: Exactly.

But that's still doesn't mitigate the effect of Slochower because on the Slochower the fact that you took the privilege and only the fact that you took the privilege is not a ground for a dismissal.

And the fact that a hearing is given to underlying the fact that you have taken the privilege can't possibly change the situation.

You are still being discharged for taking the privilege.

Justice John M. Harlan: Could I ask you a question Mr.Boudin.

I'm not sure I understood you.

Supposing a man under the statute is called before grand jury and he's asked the questions, and says, “No, I won't answer it.”

The district attorney says, why?

Well, he said, “I just won't answer it” and the district attorney says, “Do you claim the Fifth Amendment privilege?”

He says, “No, I don't because if I did I'd be fired, so I just plan to refuse to answer.”

You say the statute would be inoperative?

Mr. Leonard B. Boudin: Oh, yes, the statute would clearly be inoperative.

Justice John M. Harlan: Are there cases in New York to that effect?

Mr. Leonard B. Boudin: No, but it seems to me Your Honor that it's perfectly clear from the statute that it deals only with the assertion of the privilege.

The statute is not susceptible and (Voice Overlap) --

Justice John M. Harlan: It doesn't say anything about the Fifth Amendment it says he refuses to answer on the ground that the answer may tend to incriminate him.

Mr. Leonard B. Boudin: That's right, but it does not -- the statute does not permit the interpretation because no one has ever suggested that it does, that any ground for refusal to answer except the privilege call for the forfeiture of employment under that statute.

Justice John M. Harlan: But you haven't gone any cases?

Mr. Leonard B. Boudin: I -- there are no cases.

I doubt that anyone would claim that a refusal to answer on the ground that is not pertinent to the refusal to the answer --

Justice John M. Harlan: No, not pertinent to any, he just says I refuse to answer but I'm not going to bring myself within the end of the statute by claiming the Fifth Amendment privilege.

Mr. Leonard B. Boudin: I don't think Your Honor.

I can't cite any cases that this Charter is susceptible of that construction.

Justice John M. Harlan: I seem to agree for not having any cases on that.

Mr. Leonard B. Boudin: Yes there is.

I agree with you, Your Honor.

Now, our second point is the point that is most in controversy.

It is the question of whether or not when an employer asked questions -- the questions must be answered.

It raises the question of whether the implications of the majority opinion in Spevack were the implications that encouraged Mr.Justice Fortas on to be adopted by the Court.

We have said as much as we can in our brief on that point and well, I would like to address myself further to it.

I think that I must turn to the third aspect of my argument.

I doubt that I will reach the wiretapping point in which I point out Your Honors that this is not an inquiry by an employer.

This is an inquiry on the one case by the Commissioner of Investigation exercising police functions under 813-a.

Commissioner who has the power to subpoena and to evoke contempt proceedings, have testimony before him, made a basis of perjury prosecutions.

Very different from the kind of disciplinary proceeding that we think was within the contemplation of -- it should have been with the contemplation of the concurrence in Spevack against Klein.

And of course as far as the grand jury is concerned, there we have a criminal proceeding.

We don't have an inquiry by an employer.

If I may turn briefly to the last point of my argument and that relates to the question of why it's happening.

The investigation was instituted as a result of a wiretap.

It is our argument there that the investigation, the choice that was given to our clients to assert the privilege or not, to waive immunity or not, was the direct result of the wiretapping that was brought on and that we think it's a violation of the Constitution under both Berger and Katz -- for Berger and Katz jointly.

The argument is made by the -- by my friends here that the connection between the wiretapping and the hearing, the assertion of the privilege is tenuous.

We don't think it's tenuous, we think that so far as this record shows this hearing was instituted by wiretapping these hearings andwouldn't have occurred in the absence of wiretapping.

We think the wiretapping is a violation of the Federal Communications Act as well as the Constitution.

The argument with respect to retroactivity which is developed by my friends here, we've addressed ourselves to in our brief.

Justice John M. Harlan: Was there evidence obtained in the wiretapping?

Mr. Leonard B. Boudin: There was no evidence, this is a --

Justice John M. Harlan: (Inaudible) the purpose of this discussion.

Mr. Leonard B. Boudin: This is inactive fruits doctrine.

Justice John M. Harlan: (Inaudible)

Mr. Leonard B. Boudin: Precisely, Your Honor.

And may I reserve less few minutes of my rebuttal.

Justice Potter Stewart: And does it show -- is it shown on the record what triggered the wire attachment?

Mr. Leonard B. Boudin: We're told that a confidential informant triggered the wiretapping and I reminded the Court of what Chief Judge Learned Hand said when he pointed out in the case that I was involved in that the confidential informant was the wiretapper.

So that we don't really know --

Justice Potter Stewart: But the -- this was by court order and I wonder --

Mr. Leonard B. Boudin: This was by court order, an order apparently secured by the Commissioner of Investigation himself.

Justice Potter Stewart: That is the affidavit in which the court order was based --

Mr. Leonard B. Boudin: No, we asked counsel -- rather – we asked the Department of Sanitation, Department of Investigation, one of them to give us the court order, to give us the affidavit that was refused us it's indicated in the brief on the petition for certiorari.

Chief Justice Earl Warren: Professor Redlich.

Argument of Norman Redlich

Mr. Norman Redlich: Mr.Chief Justice and may it please the Court.

What is involved in this case is a situation where 15 employees of the City of New York were called before the City Commissioner of Investigation who is not a prosecutor in anywhere near the criminal sense or in any sense.

The Commissioner of Investigation is appointed by the Mayor of the City of New York.

He has no criminal jurisdiction whatsoever.

If he uncovers any case of criminal wrongdoing, he must turn that evidence over to the district attorney for proper criminal prosecution.

Fifteen employees were questioned by their employer because the Commissioner of Investigation is a Commissioner of the City of New York.

They were question concerning specific matters relating to the performance of their duty, an allegation coming from a citizen complaint that there was at the 91st pre-transfer station, a conspiracy which was costing the city hundreds of thousands of dollars.

Justice Potter Stewart: That -- you said the allegation there had this -- it originated with the citizen complaint, is that where -- is that shown in the record?

Mr. Norman Redlich: The difficulty here, Your Honor, is that the -- the hearings you see before the Commissioner of Sanitation are not part of this -- are not part of this record and it is not -- that point is relevant of course in terms of the -- in terms of the question of the wiretapping.

Justice Potter Stewart: Yes.

Mr. Norman Redlich: But the -- I didn't mean to imply that the citizen complaint was or was not the source of the wiretap, that would be going beyond the record but the fact is that someone complained to the city.

Justice Potter Stewart: And is -- is that bare fact shown in the record somewhere?

Mr. Norman Redlich: In Mr.Freidman's affidavit it is shown.

Justice Thurgood Marshall: Who got the wiretap?

Mr. Norman Redlich: The Commissioner of Investigation.

Justice Thurgood Marshall: Well, he would have the affidavit, wouldn't he?

Mr. Norman Redlich: It would be (Voice Overlap) -- it is not in the record but he would have it, yes.

The -- on the strength of this information, the Commissioner of Investigation called these people and asked them questions.

Now, in light of yesterday's discussion, I would like to point out that at least with regard to these 12, there was no question of any -- of asking them to waive immunity.

They were asked questions.

They declined to answer the questions.

Justice Byron R. White: On what ground?

Mr. Norman Redlich: On grounds of self-incrimination.

They were then suspended and formal hearings were filed against them (Voice Overlap) --

Justice William J. Brennan: Is it the fact Mr.Redlich that under the Charter provisions, once they had refused to answer on ground for self-incrimination, there was no alternative for the commissioner of what to suspend?

Mr. Norman Redlich: The -- as we have interpreted that 1123 in light of Slochower, and as we believe that interpretation has been sustained by the Court of Appeals in Gardner, we do not dismiss automatically.

We hold a hearing and we held one in this case.

A hearing was held in which the 12 employees or 15 employees were given an opportunity to explain why they have pleaded the privilege against self-incrimination?

And in the hearing before the 12, they were asked whether they wish to respond to the charges.

This was in the hearing before the Commissioner of Sanitation.

At that point --

Justice William J. Brennan: I'm getting a little confused.

The -- it was before the Commissioner of Investigation that they refused on grounds of self-incrimination to answer.

Mr. Norman Redlich: That's right.

Justice William J. Brennan: Now, is that -- was that the end of the hearing, as to the 12?

Mr. Norman Redlich: As to the 12, that was the end of the proceeding before the Commissioner of Investigation.

Justice William J. Brennan: Now, there was still another proceeding, wasn't there?

Mr. Norman Redlich: There was still another proceeding.

Justice William J. Brennan: And this is for the 12?

Mr. Norman Redlich: That's right.

Justice William J. Brennan: And this was before whom?

Mr. Norman Redlich: Before the Commissioner of Sanitation.

Justice William J. Brennan: And what was the nature of that proceeding?

Mr. Norman Redlich: The nature of that proceeding was that they were charged with a violation of 1123.

They were asked to explain their plea of the privilege and they were asked if they wish to respond to the charges.

Their position was that they stood by their initial position.

Justice William J. Brennan: Now, do I understand that it's your position that either in Gardner or some other case, the New York Court of Appeals has said that it's a requisite before there may be a dismissal?

Mr. Norman Redlich: The New York Court --

Justice William J. Brennan: That there'll be such proceedings?

Mr. Norman Redlich: The New York Court of Appeals has not affirmatively stated that a hearing is required under 1123.

This corporation counsel, this city, has taken the position that a dismissal not -- may not be permitted.

Either under 1123 or incidentally under that section which is before you yesterday in connection with the (Inaudible) case in an equivalent statute.

We have taken the position that a hearing must be held in which the employee is given an opportunity to explain his plea of the privilege and in the --

Justice William J. Brennan: Is that position sought necessary by reason of any decision of this Court?

Mr. Norman Redlich: Yes, Slochower.

It is our position that what Slochower precluded was an automatic inference of guilt resulting from a plea of the privilege and that these employees were entitled to due process, due process requiring a separate hearing in which they were given an opportunity to explain their conduct before the original investigating agency and in which in the case of these 12, at least they were offered the opportunity to respond to the charges.

Justice Abe Fortas: But I don't understand that.

You said that they've given an opportunity to rebut any inference of guilt, guilt of what?

Mr. Norman Redlich: Now, they were asked if they wish to -- if they wished to respond to the -- the initial questions were asked by the Commissioner of Investigation.

They were asked whether they wish to respond.

They said, they stood by their initial position which was a refusal to answer on grounds of self-incrimination.

Justice Abe Fortas: Well, I understand that but this -- your statement mean that you reach Slochower as meaning that if the employees admit that they did assert the privilege and for that reason refused to testify, that they may be dismissed.

Is that the way you read Slochower, without violating Federal Constitution, they may be dismissed?

Mr. Norman Redlich: No.

We --

Justice Abe Fortas: Is that your reading?

Mr. Norman Redlich: May I ask you to restate that because I wanted to respond?

Justice Abe Fortas: They have a hearing?

Mr. Norman Redlich: Yes.

Justice Abe Fortas: The employees say yes, we claim the privilege and we did not answer the questions because of the privilege.

Now, as you read Slochower, does Slochower stand for the proposition that or that those bear facts the employees may be dismissed without running the file of the Federal Constitution?

Mr. Norman Redlich: No, I do not (Voice Overlap) --

Justice Abe Fortas: Now, tell me just how you read Slochower?

Mr. Norman Redlich: I read Slochower as saying that there must be a hearing and at that hearing it must be evident that the questions that they originally refused to answer.

There were questions which were directed to the scope of their work.

We are not dealing hear with a situation as in Lerner, Brown and Nelson where you had a serious question as to whether the question they declined to answer were questions which related to the employer-employee relationship.

Here, there were questions which they had declined to answer before the Commissioner of Investigation which did relate very narrowly and specifically to the manner in which they were performing the job which they were hired to perform for the City of New York.

Justice Abe Fortas: When you read Slochower as requiring a hearing which may be limited to the purpose of ascertaining of what the questions were in front of the limits of the questions to her as to which they claimed the Fifth Amendment.

Mr. Norman Redlich: Yes, and we as --

Justice Abe Fortas: That's not what -- that's now where Justice Clark's opinion says, is it?

Mr. Norman Redlich: Well Justice Clark's opinion talks about a -- the right of an employer to inquire into the employees fitness for office.

And what we have here when the Commissioner of Investigation questioned these people, Mr.Justice Fortas, the Commissioner of Investigation was, on behalf of the city, as a City Commissioner inquiring in our judgment precisely into that.

He was asking these questions concerning the nature of the way in which they were performing their work.

A transcript of that hearing was then presented to the -- to them by the -- to the employees at the Commissioner of Sanitations hearing.

And we really had two proceedings in which the employees were asked one questions relating to their work.

Two, they were asked whether they wish to offer any explanations to why they had declined to answer and they were perfectly free at that time and in anytime to answer questions directly, narrowly, specifically related to the performance of their work.

It is our view that we have not discharged these employees out of any automatic inference of guilt.

As employees, they have an obligation to reply specifically to questions relating to their work and incidentally as this Court has held as we interpret in Garrity and we believed to be correct, if they had responded to any questions and admitted anything which could be used in a criminal case or the fruits of it could be used in a criminal case, they could not have been criminally prosecuted.

Taking that into this whole picture, it is our judgment that there has been no violation of the privilege against self-incrimination.

Justice Abe Fortas: Your emphasis upon this city counsel for this (Voice Overlap) --

Mr. Norman Redlich: Corporation counsel.

Justice Abe Fortas: Huh?

Mr. Norman Redlich: I said corporation counsel.

Justice Abe Fortas: This corporation counsel for this city administration bothers me.

I appreciate your criteria about that but does that mean that the predecessor of city counsel -- there was -- was there a predecessor corporation counsel following Slochower?

Mr. Norman Redlich: Yes, Slochower is in 1957.

Justice Abe Fortas: What position did they take?

Did they similarly insist on a hearing before termination?

Mr. Norman Redlich: Not in -- not in every case.

I think the position which was involved by our predecessors in office was that a hearing was necessary, well, necessary is too strong.

That in -- in most cases a hearing would be provided.

The Koepnick case which is referred to by -- by counsel, is a case which I think is peculiar to its facts.

In that, it was apparent from that case that that a hearing would serve no purpose at all and that a -- because the witness was claiming there that there was absolutely no right to question them under any circumstances.

Justice Abe Fortas: Was there any account made to obtain a change in the City Charter that bring it into line with Slochower or for any reason they have to Slochower?

Mr. Norman Redlich: Not(Voice Overlap) --

Justice Abe Fortas: -- decision of the city counsel or the City Charter?

Mr. Norman Redlich: Not to my knowledge Justice Fortas.

Justice Abe Fortas: That really makes kind of a mess, doesn't it?

Mr. Norman Redlich: I had to comment on that.

I really don't think so in view of the fact that there has not been since Slochower an automatic type of dismissal.

We have a section called Section 75 of the Civil Service Law.

Section 75 of the Civil Service Law is the proceeding whereby a person is charged with certain conduct which is a basis for dismissal.

That has happened since the Slochower case.

That happened in all of these cases.

These dismissals were pursuant to Section 75 of the Civil Service Law.

The question is that -- the issue that is before us is whether at that hearing in Section 75, if all that you have is the allegation that the person claimed the privilege against self-incrimination he refuses to offer any explanation of it making be dismissed.

We say that as a matter of the privilege against self-incrimination, he can.

Now, that doesn't mean that in all cases, in the matter as the privilege against self-incrimination, he can be discharged under those circumstances.

Justice William J. Brennan: (Voice Overlap) he might get it if the city taking this position?

Slochower of course -- Slochower serve the privilege not in connection with any inquiry into any conduct of his as an employee but before The House Un-American Activities Committee was it?

Mr. Norman Redlich: That's right.

Justice William J. Brennan: Does the city make a distinction and say, “In so far as the privilege is concerned, when the city's inquiry is into the conduct as an employee of an employee, the privilege does not complete his dismissal if he asserts the privilege and refuses to answer questions directed to his conduct as an employee.”

Does the city go that far?

So that in other words the whole hearing requirement the rest of it is really -- is really not in the case?

Mr. Norman Redlich: No, because we do believe we do not go that far.

We believe that the individual should have an opportunity to explain --

Justice William J. Brennan: And you think the privilege, the federal privilege requires that that would be that opportunity, is that it, before he maybe dismissed?

Mr. Norman Redlich: I wouldn't state that the -- I'm not convinced that the federal privilege requires in light of Garrity (Voice Overlap) --

Justice William J. Brennan: Why then the federal constitutional requires that?

Mr. Norman Redlich: The hearing?

Justice William J. Brennan: Yes.

Mr. Norman Redlich: I think that the -- in light of the -- my answer, in light of Garrity, I don't believe that the federal privilege requires it because I think that any evidence that is adduced here could not be used in any criminal proceeding.

I think due process may require it and I think due process might preclude us as it may have precluded the examiners in Spevack from ranging into a -- ranging out to a scope of questions that had nothing to do with the -- the nature of the employee-employer relationship.

Justice Byron R. White: Which didn't happen here.

Mr. Norman Redlich: Which did not happen here.

Justice William J. Brennan: Nor does that happen in any of these cases.

Mr. Norman Redlich: No.

And I think that if they did we would have a serious due process --

Justice Byron R. White: But I supposed you also might say that just under your state law, you would require – they'd be required, that the Commissioner of Sanitation would have to give the employee a hearing before he fired him for refusing to talk to the Commissioner of Investigation.

Mr. Norman Redlich: That is right.

Justice Thurgood Marshall: Well, what -- what ground --

Justice Abe Fortas: But I suppose you are defending this -- I suppose you are defending this on the ground that it's necessary and proper for the city to get answers to these questions from employers with respect to the faithful discharge in their work in events necessary for administrative reasons, is that right?

Mr. Norman Redlich: That is only part of it, Your Honor.

Justice Abe Fortas: So what's the other part?

Mr. Norman Redlich: The other part is that if an employee refuses to answer a question narrowly and specifically related to the performance of this work, the city need not to keep that person on the payroll indefinitely so that he can retire with the city pension.

We have the right to dismiss it.

Justice Abe Fortas: Whatever that is, that's an embellishment of it.

But what you're trying to do is to -- you're saying that the city needs answers to these questions, is that right?

Mr. Norman Redlich: The city even needs answers to the questions or if the answer doesn't come we have the right to dismiss.

Justice Abe Fortas: Right.

But why then is this -- why then has the city here trying to administer and defend, and defend a charter provision that mimics this disciplinary action to a case where the employee refuses to answer solely on the ground or refuses solely – solely refus -- solely to the category of cases where employee refuses to answer on the grounds of the Fifth Amendment, a federal constitutional privilege?

Why does Mr.Justice Harlan asked him a few moments ago, shouldn't -- if that is the purpose, bona fide purpose, why shouldn't it -- this charter provision be phrased in terms that are consonant with the purpose, that is to say, if a city employee refuses to answer questions appropriately directed to him by a person in authority with respect to his activities that that will be grounds for dismissal?

How do you account for the restriction of this charter provision to instances where the refusal is based upon the Fifth Amendment?

Mr. Norman Redlich: Your Honor, the history of this charter provision has been indicated yesterday.

I would like to respond to that, however, by stating that if any employee refused to decline and did not give any reason, we would feel that we would have a right to dismiss him for the same reason that we dismissed him here that he refused to answer specific questions relating to the scope of his employment.

Justice Abe Fortas: On what basis?

Is there another charter provision that --

Mr. Norman Redlich: Under -- the provision under which they were -- they were discharged pursuant to a hearing under Section 75 of the Civil Service Law regarding the -- under which the city employee is -- he is entitled to those rights and entitled to judicial review from that (Voice Overlap) --

Justice Abe Fortas: Was this statute -- is this charter provision is practiced.

It seems to be directly, specifically, carefully, pointedly designed by the drafters to penalize a person for the assertion of the Fifth Amendment right.

I could understand that but then this Court decided Slochower.

And after Slochower, you tell me that as to your knowledge there was no effort to amend this charter provision.

Now this Court is faced with a request in effect by the city for us to deal with a situation which perhaps I'm not sure, but perhaps could have been dealt with by a legislative response to an opinion to a decision of this Court in Slochower.

Mr. Norman Redlich: I would say two things in response to that.

I think this Court should consider these cases in light of the -- the facts before it namely, the hearing in all cases.

And secondly, I think that the -- there is a serious question as to whether there is any violation of the privilege at all.

In light of the fact that these employees could not have been prosecuted criminally as the result of any testimony at which they may have given under this compulsion.

Now, this is -- as a result of the holding in Garrity, I think that this Court might well consider the -- applying a situation here similar to what you had in Murphy against Waterfront Commission.

These 12 employees may well have been or these 15 employees may well have been faced with the -- with what in their mind was a serious danger that if they -- that they were faced with -- between the rock and the whirlpool.

In fact, we feel that the rock no longer exists.

The rock has certainly not existed from the time that this Court's decision in Garrity because any testimony which these employees would give under these circumstances, they would not be used nor prove any of the fruits of that testimony be used.

In light of that fact, we do not see whether there has been a violation of the privilege.

The privilege does not protect against being fired if you refuse to answer.

The privilege does protect against criminal prosecution and we believe strongly that our employees are entitled to and should receive that protection and that is why we welcome the decision of this Court in Garrity.

Chief Justice Earl Warren: Mr.Redlich, may I direct your attention once more to the hearing that you have before the Commissioner of Sanitation in which you have told us that these 12 men were offered an opportunity to respond to the charges and they declined to respond to the charges.Where in the record do we find those charges?

Mr. Norman Redlich: You do not, Your Honor.

Chief Justice Earl Warren: Where are they?

Mr. Norman Redlich: They are not in the -- they are not in this particular record because the hearing took place after this lawsuit was brought, Your Honor.

The purpose --

Chief Justice Earl Warren: Would you mind telling me briefly what the form and the -- of the charges and what they contain?

Mr. Norman Redlich: The charge before the Commissioner of Sanitation?

Chief Justice Earl Warren: Yes.

Mr. Norman Redlich: It was a charge that these employees had violated Section 1123 of the Charter.

And at that hearing, as I understand it, at that hearing they were -- the employees were presented with a transcript of the inquiry which had been conducted previously before the Commissioner of Investigation.

Chief Justice Earl Warren: By the transcript, are you referring to the tapes of the -- the tapes of the wiretapping?

Mr. Norman Redlich: Yes, I'm not sure whether it was tape to -- no, no not the wiretapping, no.

This was the proceeding before the Commissioner of Investigation in which the Commissioner of Investigation asked them questions concerning this alleged conspiracy and they declined to answer on grounds of self-incrimination.

Now, that is the transcript that I'm referring to, nothing having to do with the wiretap.

The -- that transcript was presented to the employees at the hearing conducted by the Commissioner of Sanitation and they were informed that they would be in charge for the violation of Section 1123.

They were asked at this time whether they wish to explain their plea of the privilege and they were also asked whether they wish to respond.

Now, I think --

Chief Justice Earl Warren: I get that part of it but -- but in these charges that you refer to, were they're charged with having done this and that and the other thing in violation of their duties to which they put and responded?

Justice Byron R. White: What were the original questions to the 15 about?

Mr. Norman Redlich: The original questions to the 15 were about the allegation that they had taken money from private cartmen and pocketed the money instead of picking up the tickets which they were supposed to pick up.

Those were the original questions posed by the Commissioner of Investigation.

Those were the questions which we feel they as employees should have answered, they didn't answer.

Now, then the --

Justice Byron R. White: Did they have any chance to talk about those charges in the final hearing before their discharge?

You said they had said at that time, “Well, I didn't think the privilege before the Commission of Investigations but I won't now.

I'm willing to go back and talk about those old charge -- those original charges.”

Mr. Norman Redlich: They were -- at the second proceeding although the formal charge against them was a violation of 1123, they were asked as I understand it two things at the second hearing which Mr.Justice White refers to.

They were asked whether they had any explanation for their refusal to testify before the Commissioner of Investigation.

And then they were asked whether they wish to respond to the -- now, to the questions which had been asked them.

And the state --

Chief Justice Earl Warren: Where do we find -- do we find that colloquy in here?

Mr. Norman Redlich: You do not, Your Honor.

Chief Justice Earl Warren: What do we do, we just take that on fate?

Mr. Norman Redlich: I ask that -- I've answered the question as best as I can, Mr.Chief Justice.

This is --

Chief Justice Earl Warren: Well, I wonder why that isn't in here.

If that's what the state relies on I wonder why they shouldn't be here so we can determine them.

Justice Byron R. White: Where is the best description, if there is, in the record of what happened?

Mr. Norman Redlich: Could I respond to that?

The reason this is not here Mr.Chief Justice is this action was brought to enjoin the very hearing which subsequently took place.

In fact, the District Court decision in this case came down prior to the hearing.

The District Court decision was in December 1966.

The hearings didn't take place until January, so we have an incomplete record in that sense, which the normal procedure challenging this type of proceeding as in Gardner would be to go up under in Article 78.

Chief Justice Earl Warren: Well I think -- I think the thing that is bothering me is your use of the word charges.

Now, were there any -- is there any document charging these men with any misconduct any place?

Mr. Norman Redlich: Your Honor I --

Chief Justice Earl Warren: Or is it just a question of this man having asked the question to me didn't -- they didn't respond that may put those together in some form and you now refer to them as charges.

Were there any charges of misconduct against these men for having violated their duty as sanitation employees?

Mr. Norman Redlich: Mr.Chief Justice the formal charge levied against these employees was that they had violated Section 1123 of the Charter.

In that, they had refused before the Commissioner of Investigation to respond to his questions relating to their work.

Justice Abe Fortas: Was it required (Voice Overlap) --

Chief Justice Earl Warren: And then at the second hearing before the Commissioner of Sanitation, they were limited, were they, only to the reasons why they refuse to answer to the Commissioner?

Were they offered the opportunity then to say, all these questions in regard to those question, we say now that this was the situation, that's the situation and we're entitled to a trial, you want to face it and so forth?

Or were they just asked why -- why did you claim that privilege beforehand?

Mr. Norman Redlich: Although it is necessary to answer that to go beyond the record, answering it to the best of my information, I will.

Chief Justice Earl Warren: You argue that?

Mr. Norman Redlich: Pardon?

Chief Justice Earl Warren: Almost have to go beyond it, I guess.

Mr. Norman Redlich: Yes, I'm answering it to the best of my information Mr.Chief Justice with regard to the 12; they were offered that opportunity with regard --

Chief Justice Earl Warren: In which opportunity?

Mr. Norman Redlich: The opportunity to respond to the original questions that had been asked before the Commissioner of Investigation.

With regard to the three, I do not believe that is the case.

With regard to the 12 who had pleaded the privilege before the Commissioner of Investigation and who then went before the Commissioner of Sanitation, according to my best information and belief, they were asked whether they wished now to answer the questions which had been asked of them by the Commissioner of Investigation, they declined.

Now, with regard to the three who did originally answer the questions and then went before the grand jury, they had a separate hearing before the Commissioner of Investigation the next day after the 12 -- I'm sorry they went for the Commissioner of Sanitation the next day after the 12.

And according to my best information and belief that they were not given that opportunity, their hearing, it was devoted solely to the question of asking -- being asked to explain their refusal to testify before the Commissioner of Investigation.

Before the -- before the grand jury, I'm sorry, before the grand jury.

Chief Justice Earl Warren: Well then, you are placed with the question as to those three at least of whether they are -- they are fired just because they refused before the grand jury to waive their privilege.

Mr. Norman Redlich: With regard to those three, yes, Mr.Chief Justice I think you have a very similar issue to what you had yesterday in Gardner.

Justice Abe Fortas: Well I -- I don't understand this.

On page 17-a of the joint appendix, there's an affidavit of Mr.DeLury in which his quotes from the letter of notification to the 12 employees stating that their suspension was due to the fact that you invoked your constitutional privilege against self-incrimination and refused to answer.

So that -- so far as the 12 aren't concerned, am I to take it from this that they were suspended because they invoked the privilege.

Mr. Norman Redlich: Yes, because the --

Justice Abe Fortas: And thereafter when notice of hearing was served on, are you telling us that there was or was not a reference to the invocation of the constitutional privilege?

I thought you said that there was not?

Mr. Norman Redlich: No what I said was this, that they were charged with the violation of Section 1123 of the Charter and suspended pursuant to that --

Justice Abe Fortas: And at that time, what I have read is the notice that they got.

Mr. Norman Redlich: That is right and that is not --

Justice Abe Fortas: Alright.

Mr. Norman Redlich: I'm sorry.

Justice Abe Fortas: Go ahead.

Mr. Norman Redlich: And that is not inconsistent with my prior answer because there followed a hearing before the Commissioner of Sanitation.

At that hearing, they were asked to explain their refusal to answer before the Commissioner of Investigation and they were asked whether they wish to respond to the questions which had been put to them by the Commissioner.

Justice Abe Fortas: Were they given notice to that hearing before the Commissioner of Sanitation?

Mr. Norman Redlich: Oh!

Yes.

Justice Abe Fortas: Did that notice say that you have -- that the basis or part of the basis was the invocation of the constitutional privilege?

Mr. Norman Redlich: Yes, the formal charge was a violation of 1123, Mr.Justice Fortas.

Justice Potter Stewart: The hearing as I understand it procedurally followed the standard set out in Civil Service Law of Section 75.

Mr. Norman Redlich: That is right.

Justice Potter Stewart: Which is in the appendix to your brief?

Mr. Norman Redlich: That is right Justice Stewart.

My time is long since -- long since up and I appreciate your patience.

My -- what we have to say on the wiretapping question has been adequately covered and ought to find the question of the prospective application of Katz and Berger, if Katz and Berger applicable at all to this situation which we doubt.

The question of the fact that there was no testimony here used in this -- no evidence adduced from that wiretap used or you have here is a refusal to answer questions based on the wiretap.

But no use of the evidence or in our judgment a use of the fruits of that evidence.

And as we indicate that if this Court were to decide to reach the ultimate constitutional question of the validity of the wiretap, we do feel that the record which the Court has before it at this time is quite inadequate to make such a constitutional determination because in order to determine the circumstances under which the government employer may properly tap the telephones of its employees, we believe most earnestly that the Court should have before a better record than it now does concerning the circumstances of this phone, the rules and regulations of this phone, the -- those facts which the employee would have reason to know about this particular phone.

We do not, and I emphasize, we do not take the position that the government has an unrestricted right to tap its employee's telephones.

We feel that there is a very definite element of privacy with regard to certain and perhaps most uses of government phones by employees.

With regard to this particular phone, we believe that a full record would demonstrate that the tap of this phone, it was a reasonable one.

We believe in conclusion that because of the fact that the Katz and Berger should be given prospect of application only.

And because of the tenuous length between the tap in this proceeding that that issue need not be reached in this case.

Justice John M. Harlan: (Inaudible)

Mr. Norman Redlich: I don't know, Justice Harlan.

I am not sure of the answer to that.

Chief Justice Earl Warren: They're secret aren't they?

They're secret.

Nobody knows.

The public doesn't know.

They're not public records or anything else since a matter of -- since it matter -- a confidential matter between the advocate for the wiretap and the judge who issues it, isn't that right?

And there are no requirement of any recording of it for public use in anyway shape or form, isn't that correct?

Mr. Norman Redlich: Mr.Chief Justice, I am not here to defend the 813-a proceedings.

I believe that as --

Justice John M. Harlan: I ask a question again Mr.Redlich.

My recollection is that where the case, affidavits were in the record.

Mr. Norman Redlich: I think they could be put in the record as a result of a trial.

Justice John M. Harlan: (Voice Overlap)

Chief Justice Earl Warren: If they want to give them.

Isn't that right?

Mr. Norman Redlich: Yes.

Chief Justice Earl Warren: They give -- did I understand Mr.Boudin to say that in this case he has one and they weren't given to him?

Mr. Norman Redlich: I believe the position of the Commissioner of Investigation was that there was no need to give them because of the fact that the evidence was adduced from the tap, was not used.

Justice John M. Harlan: I suppose they kept secret.

Is there a constitutional right of privacy informed?

Chief Justice Earl Warren: Thank you.

Justice Byron R. White: Mr.Redlich can I have one more question please.

On the three then I think that the Gardner against Broderick was disposed of that issue?

Mr. Norman Redlich: Yes.

Chief Justice Earl Warren: Mr.Boudin.

Rebuttal of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr.Chief Justice.

I think the answer to a question was put by the Chief Justice by Mr.Justice Fortas will come clearer by a reference to 69-a of the record which consist of the model so-called charge which was only a charge, 69-a, Your Honor, only a charge of violating 1123 of the Charter and not a charge of substantive crime.

Secondly, Your Honor will see it referred only to 1123.

This was what we understood where the charges upon which we were proceeding before the Commissioner of Sanitation and not on the substantive charges of irregularity indeed with respect to the substantive charges of irregularity that were actually put in writing concerning the three, the corporation counsel refuse to go into the matter, if Your Honors recall I indicated.

They wanted to limit this to 1123 and did you take the privilege.

Now, the suggestion that is made here that somehow rather, we would be getting immunity if we had testified before the Commissioner of Investigation, I think, is the answer is given by the discussion yesterday that under 2446, that is the waiver of immunity.

And certainly, here whether it was not even the 2446, there would not have been an immunity with respect to the transaction.

But none of our people were told that they would get the ultimately discovered Garrity immunity if they had appeared before the Commissioner of Sanitation or Investigation or (Voice Overlap) --

Justice William J. Brennan: But it definitely Mr.Boudin (Voice Overlap) I gather, it is a fact, is it not, that the inquiry before the Commissioner of Investigation involving all 15, the questions there put did go to their conduct as employees.

Mr. Leonard B. Boudin: I don't dispute it.

I think the Charter is directly applicable.

I make no -- obviously that didn't deal with the subject matter of the employment, etcetera.

I would also add that Your Honors will recall statement made that the Commissioner of Investigation has secured a wiretapping order.

If Your Honors will look at 813-a, Your Honors will see that 813-a limits the applicant for a wiretapping order to a district attorney, I think I'm recalling it correctly, or to a police officer above the rank of sergeant, so that in this investigation the Commissioner of Investigation was acting as a police officer whatever may be his relations with the City of New York.

I thank Your Honors.

Justice Abe Fortas: Mr.Boudin.

Mr. Leonard B. Boudin: Yes.

Justice Abe Fortas: May I ask, do you know whether Section 75 of the Civil Service Law was enacted after the Slochower case?

Mr. Leonard B. Boudin: No, I think it -- I think it once similar occurred before.

It usually has it before, Your Honor.

Justice Abe Fortas: But the procedure was not followed in the Slochower case.

Mr. Leonard B. Boudin: No, and that may have been because the Board of Education might have had a different mechanism.

Justice Abe Fortas: Well, do you concede that Section 75 requires a hearing in this type of case?

Mr. Leonard B. Boudin: Section 75 will regard the hearing and the corporation counsel agrees in any kind of -- solely and this case involving (Voice Overlap) --

Justice Abe Fortas: So that we can read Section 75 into 1123?

Mr. Leonard B. Boudin: I do not think so because I think these are two different system.

I don't think incidentally Your Honor --

Justice Abe Fortas: I thought you said that Section 75 wouldn't require a hearing in the -- in this type of case.

Mr. Leonard B. Boudin: Based upon charges that would be filed, charges otherwise comparable but the only charge here is the charge of 1123.

In other words, I can't quite reconcile the two and find that 75 could be built into 1123.

We may also just indicate that on page 8 of our brief, we have cited two New York cases of our reply brief which suggest that the privilege against self-incrimination, the refusal to answer questions is available in disciplinary proceedings under New York Law generally.

I thank Your Honors.

Justice Potter Stewart: So the procedures of Section 75, -- the procedures of Section were followed in this case, weren't they?

Mr. Leonard B. Boudin: In the sense that the hearing was offered, except the hearing was limited to (Voice Overlap) --

Justice Potter Stewart: There was notice to all of the proceedings --

Mr. Leonard B. Boudin: Except the charges were limited if I may end with that point --

Justice Potter Stewart: But the substance of the charges and what I'm talking about the procedure of the hearing.

Mr. Leonard B. Boudin: We make no claim that 75 was not -- was violated at any (Voice Overlap) --

Justice Potter Stewart: Or that was not followed here.

Mr. Leonard B. Boudin: No, we don't regard it into the case.

Featured:

Gardner v. Broderick - Oral Argument

Thu, 23 Aug 2012 18:16:30 +0000

Case:

Gardner v. Broderick

Media File:

635_19680430-argument.mp3

Related Transcript:

635_19680430-argument

Transcript:

Argument of Ronald Podolsky

Chief Justice Earl Warren: Number 635, Robert Vincent Gardner, Appellant, versus Vincent L. Broderick, as Police Commissioner at the City of New York.

Mr.Podolsky.

Mr. Ronald Podolsky: Mr.Chief Justice and may it please this Court.

In this case probable jurisdiction has already been noted.

It's a -- an appeal by a former policeman who was dismissed by the appellees.

This policeman was served with departmental charges involving conspiracy to violate gambling laws -- the next -- and suspended.

The next day, he was subpoenaed before the grand jury of New York County and asked to sign a waiver of immunity from prosecution.

It was announced at that hearing that it was a criminal investigation into conspiracy to violate gambling laws.

The appellant refused to sign such a waiver on advice of counsel stating that since he was a target of the investigation, the grand jury had no authority to subpoena and question him.

He was not questioned.

He was not granted immunity but rather excused and thereupon was served with an additional departmental charge, refusal to sign a waiver of immunity before the grand jury as required by Article I, Section 6 of the New York State Constitution and Section 1123 of the New York City Charter.

And --

Justice Potter Stewart: I'm a -- I want to be sure I understand the context here.

He -- what he did was refuse to sign a waiver of immunity which would imply to me that otherwise he would have had immunity had he testified?

Mr. Ronald Podolsky: It is my position, Your Honor.

The appellant's position that since he was under subpoena.

Any testimony that he gave at that hearing would cause immunity to attach to the substantive area of the inquiry.

Justice Potter Stewart: As a matter of New York law?

Mr. Ronald Podolsky: As a matter of New York and I believe federal law as well.

Justice Potter Stewart: Well, but perhaps required by the Constitution, if --

Mr. Ronald Podolsky: Yes, sir.

Justice Potter Stewart: You can make a person testify if you give him -- brought enough immunity.

And do I understand that New York law does -- would have given him immunity --

Mr. Ronald Podolsky: Under these circumstances --

Justice Potter Stewart: -- in the absence of his signing a waiver of immunity.

Mr. Ronald Podolsky: Yes.

There is a more formal procedure under 244 -- 2447 at the Code of Criminal Procedure which was not followed in this case.

But it is my position that he would have been granted immunity had he testified under the compelled compulsion of the subpoena.

Yes, Your Honor.

Now the appellant was served with an additional charge, refusal to sign a waiver of immunity by the police commissioner and directed to report for a hearing on that charge.

Upon appearing, the appellant requested that all three charges; the substantive charges as well as the procedural charge of refusal to sign a waiver be tried at once.

This request was denied and the hearing proceeded under objection on the one charge of refusal to sign a waiver of immunity.

And the grand jury minutes and the District Attorney testified at that hearing and resulted in the dismissal complained of in this action.

No disposition of the substantive charges of misconduct was made.

It is the appellant's contention that the requirement to sign a waiver of immunity before the grand jury imposed by state law is an unconstitutional limitation on the federal constitutional provisions of the Fifth and Fourteenth Amendments and therefore must fall under the federal supremacy of laws section.

I think it's very important to keep in mind that he was under substantive charges involving the same area of grand jury inquiry at the time he was asked to sign a waiver.

He was not someone against to whom charges were not then and there pending.

Appeals through the Courts to this Court subsequently followed.

The Court of Appeals of the State of New York said that the Garrity case undoubtedly partially invalidated these sections, these sections of law requiring the waiver.

May I inquire whether we break for lunch now, Your Honor?

Chief Justice Earl Warren: We'll recess now.

Mr. Ronald Podolsky: Thank you.

A portion of the subpoena would be inadmissible but absolute immunity I don't think would apply unless the formal procedures under the New York Penal Law were followed.

And there was a definite intention on the part of the grand jury to confer that immunity.

There was no legal residuum here respecting the substantive acts of misconduct.

No finding whatever.

The only act of misconduct here was an invocation of a federally protected right against self-incrimination.

Under Malloy against Hogan, the protection of Fourteenth Amendment is coextensive with that of the Fifth and it applies to the states.

The Court of Appeals of the State in New York in this case has held that a refusal to sign a waiver of immunity is equivalent to and an act of invoking a privilege against self-incrimination.

And that being the highest court in the state, I think that their interpretation of the statute is binding for all purposes in this case.

Justice Potter Stewart: He didn't --

Mr. Ronald Podolsky: State --

Justice Potter Stewart: He didn't refuse to answer any questions?

He wasn't asked any questions.

Mr. Ronald Podolsky: He was never asked any questions.

He was excused upon his refusal to sign a waiver, Your Honor.

Justice Potter Stewart: So that that was it.

So that he didn't literally invoke the privilege against self-incrimination.

Mr. Ronald Podolsky: Your Honor, the Court of Appeals of the State in New York by Mr.-- by Judge Fuld, Chief Judge Fuld, has said in its opinion in this particular case, “definitely that a refusal to sign a waiver of immunity under this circumstance is in fact an invocation of the privilege against self-incrimination in the opinion itself”.

And therefore, taking this interpretation as being binding by the highest court in the State --

Justice Potter Stewart: Well, that's not a -- is it -- that's hardly a construction of the state law, is it?

Mr. Ronald Podolsky: It says construction --

Justice Potter Stewart: That would be binding clearly of course, we would all agree would be binding on us if that were a construction or an interpretation of a state, of a New York state law, New York law.

But is it binding if it's a -- suppose a construction of the federal constitution?

It's not binding on us.

Mr. Ronald Podolsky: Your Honor --

Justice Potter Stewart: That's what it is.

Mr. Ronald Podolsky: Your Honor, it was a construction of a New York State constitutional provision.

Article I, Section 6 required the appellant according to the Court of Appeals to waive his immunity -- waive his privilege against self-incrimination and testify.

That is directly from the opinion in this case.

Now the New York State constitutional proviso, accepting public officers from its own protection contained against self-incrimination under Article I, Section 6 at the same time seeks to add a proviso to the Fifth Amendment to the Constitution of the United States and a proviso to the Fourteenth Amendment when no such proviso exists in the federal constitution.

Therefore, it is the appellant's position that the statute is unconstitutional that the requirements are unconstitutional for continued public office.

Now, the Fifth Amendment and the Fourteenth Amendment have applied not only to criminal sanctions but also to administrative sanctions citing for example (Inaudible) case, Lovett, and a few other cases in my brief so that we have a situation where there is a penalty visited upon this appellant strictly by virtue of his invocation of a federally protected right.

The right -- the invocation of that right has proved costly and it is a federally protected right.

The action of the State in New York in requiring its public officers to waive a federally protective requirement is not, I believe, a constitutional one.

Now this -- Court of Appeals of the State of New York has said that Garrity undoubtedly partially invalidated Article I, Section 6 of the New York State Constitution but they don't say what part of that is invalid nor is there any saving clause that I could find in the New York State Constitution saying that a part of a Section is declared unconstitutional.

The rest survives.

At any rate, the Court of Appeals has said that the question when Gardner was before the grand jury and all the way up to the time of the Court of Appeals decided its case and including today, they have said that this is an open question that this Court has left the question open.

Yet, they have countenance by their affirmation.

The full penalty against this appellant for a cause of action which is perfectly consistent with the very openness of the question so we feel --

Justice Abe Fortas: Is there any question as to whether the issues before the grand jury matters upon which petitioner was going to be questioned?

Is there any doubt that those questions were related to the scope of his duty as a policeman?

Mr. Ronald Podolsky: There is no doubt in that in respect.

However, it also inquired into an area under which he was charged by the department existing charges which to this day have never been disposed off.

So that it is -- the Court of Appeals of the State in New York has said that the appellant herein committed an act of misconduct.

Yet, they recognized that the very question is an open one.

Is the appellant held to a higher degree of knowledge of the law than the unanimous decision of the Court of Appeals here or his actions or were his actions perfectly consistent with the very openness of the question, which we hoped to close today.

The --

Justice John M. Harlan: Did he had administrative hearing -- if he had there -- before his dismissal?

Mr. Ronald Podolsky: Yes, Your Honor.

The sole question at that hearing was did he or did he not refuse to sign a waiver?

There was a motion at that hearing --

Justice John M. Harlan: (Inaudible)

Mr. Ronald Podolsky: There was no automatic dismissal.

We have a (Inaudible) point in that that the mere invocation of the constitutional privilege is not an act of misconduct as far as we're -- as far as the appellant is concern.

We have a situation also where to apply this statute as the Court of Appeals of the State of New York has applied it.

We would have a shift of burden of proof of misconduct when the precepts of due process of law and the statutes involved in the State of New York placed that burden upon the prosecution.

The prosecuting authority of the State in New York by an extrinsic independent evidence must come up -- prove acts of misconduct, substantive acts of misconduct.

Justice Abe Fortas: Suppose this policeman were brought up on charges that -- suppose there's a grand jury investigation and it was known that the focus of that grand jury investigation was a charge that he had shot and killed a man while he, the policeman was on duty?

And he was called to testify.

Let's assume he refused to testify and he refused to sign a waiver of immunity on the -- both on the Fifth Amendment grounds.

Would the -- could be a constitutional principle in your opinion that would prevent the state from discharging him as a policeman?

Mr. Ronald Podolsky: Yes, Your Honor.

If it appears that there was a disciplinary reason for asking it rather than a supervisory one.

For example, --

Justice Abe Fortas: Tell me, what's -- would you say that again?

Mr. Ronald Podolsky: Yes.

If it appears that his answers will tend to incriminate him, either disciplinary action for example.

I feel that he would have a right to maintain silence.

If it is used to investigate for supervisory reasons, for example strengthening patrols in the certain area or even suspending him pending investigation of extrinsic evidence, then for that limited purpose, I would say that he could answer it.

Justice Abe Fortas: Oh!

The case I have put to you they say 1429.

It's not a good idea to have policeman on our force who go around shooting people instead of arresting them and so we want to look into this and this is purely supervising.

That's what they say and then can -- then is the state justified in dismissing him?

Mr. Ronald Podolsky: If it is limited strictly to supervisory will not be used against him --

Justice Abe Fortas: He told me if that ruling --

Mr. Ronald Podolsky: -- in a disciplinary sense, then I would say that his refusal to answer, in addition to the extrinsic evidence of the fact of the killing and the gunshot and the ballistics test, it would be illegal residuum there to support a dismissal if the request were for a supervisory rather than a disciplinary reason.

Justice Abe Fortas: Well so --

Chief Justice Earl Warren: Let us be specific --

Justice Abe Fortas: So that the bar is not absolute.

I beg your pardon, Mr.Chief Justice.

Chief Justice Earl Warren: No, go right ahead, right now.

Justice Abe Fortas: The bar is not an absolute one.

That is to say, it is not in every case where the policeman claims a Fifth Amendment protection that the state is disenabled by a reason of the federal constitution from dismissing the man from public service.

Have I stated that clearly enough?

Mr. Ronald Podolsky: You have, you have.

Justice Abe Fortas: And what's your answer?

Mr. Ronald Podolsky: My answer is that if -- if the -- it goes back again, Your Honor to the purpose of the questioning.

If he is assured, if he's granted in effect immunity from prosecution, administrative or otherwise, then that's another ins -- another situation as not being used against him.

It's being used either to strengthen patrols or get him off a sensitive post or whatever it is.

But if it's going to be used against him in a disciplinary sense, then the state would just have to unfortunately content itself with gathering extrinsic evidence independently gathered to discharge this officer.

Chief Justice Earl Warren: Is it your position that if the department has evidence that this man has been associating with gamblers in an illegal way and perhaps accepting bribes and it calls the officer in and asked him about his conduct in relation to that that he can refuse to testify?

Mr. Ronald Podolsky: Especially -- yes, especially, if he's under departmental charges, which he was in this case and if --

Chief Justice Earl Warren: Well, suppose they want to -- suppose they want to do it to find out whether they're going to fire him or not?

Mr. Ronald Podolsky: I don't think his answers there can be used against him, Your Honor.

There can be -- they -- at that point, he is the focus of an investigation and once that comes, we have constitutional -- the questions arising, a constitutional objections to his response.

If he is being accused, he has a right to be confronted by his accusers and cross-examine him before he has a duty particularly to go ahead with the evidence to counter it.

So state must have a extrinsic evidence which would result in a legal residuum.

Under those instances if they have enough to dismiss him, his silence would advance no tenable reason in mitigation, extenuation or explanation for his continued service but his silence again cannot be used as a confession of guilt under any circumstances.

We have a situation where the state is attempting to add a state proviso to a federal constitutional provision.

Under Malloy against --

Justice John M. Harlan: They're not punishing him.

They just say they don't want a man who won't answer questions (Inaudible) police board.

Mr. Ronald Podolsky: Your Honor, the refusal to sign a waiver of immunity under this section mandates dismissal.

It's not discretionary.

They say, "Well, we'll give him a hearing".

What's the hearing have to --

Justice John M. Harlan: The legislatures said that, would you not wish people on our law enforcement branch of our Government that won't answer questions when their official conduct is called an issue.

Mr. Ronald Podolsky: Well, in --

Justice John M. Harlan: It's a legislative determination?

Mr. Ronald Podolsky: The legislative determination at that instance runs contrary to the Fifth Amendment and the Fourteenth Amendment of the United States Constitution and therefore must fall --

Justice Abe Fortas: And that's the issue?

Mr. Ronald Podolsky: Yes, Your Honor.

Well, that is the position that the appellant takes in this case.

There are no -- now the reservations in Spevack against Klein, Footnote 3 and also Mr.Justice Fortas' reservation in that case, spoke about a silence at a disciplinary hearing.

The appellant's silence in this instance was not at the disciplinary hearing.

It was a grand jury hearing without disciplinary powers with powers to indict.

It was a criminal investigation so I think that the reservations there -- I don't agree with them but I don't think they apply in this case.

I think that the reservations are not appropriate either because there would be a violation of the privilege against self-incrimination which applies to states here.

Again, I'd like to emphasize there's no -- at this hearing that they give, the hearing.

The dismissal is mandatory.

The hearing, in my opinion in this case where he gave adequate and good reason for his failure to answer questions and that being that he was a target of the investigation and was illegally subpoenaed.

Now it was a reason, the reason was before the Commissioner --

Justice Potter Stewart: You say, give an adequate good reason for his failure to do what?

Mr. Ronald Podolsky: He had an adequate and good reason, explanation at this hearing.

You see --

Justice Potter Stewart: Or you said for his failure to answer questions.

I didn't read -- again I (Voice overlap)

Mr. Ronald Podolsky: He had an adequate and good reason --

Justice Potter Stewart: I didn't think he was asked any questions.

Mr. Ronald Podolsky: He was an -- he had an adequate and good reason for objecting to his very presence in the grand jury room that a subpoena was illegal on the ground that he was a target of the investigation and under Bernoff against Amoroso cited in my brief, this subpoena probably was illegal and -- thank you.

Thank you.

Chief Justice Earl Warren: General Rankin.

Argument of J. Lee Rankin

Mr. J. Lee Rankin: Mr.Chief Justice, may it please the Court.

This is a case that is of great importance to all municipal governments, state governments and federal governments, federal government in this country.

The problem is whether or not a person occupying official position, one of the most important of which is a policeman in any city.

Law enforcing officer can be asked in regard to the performance of his duties.

Mr.Justice Black -- Stewart brought out properly the issue in this case which did not involve the questioning in regard to the performance of those duties because the appellant refused to sign any waiver.

But he gave as his reason even more than that in that he said that, “Under the law, it was not legal for him to be subpoenaed before a grand jury where he was a target of the investigation”.

So that he made it plain that he would not answer any questions regardless because he said, "He could not legally be brought before the jury".

Now, he was in error in regard to the law in so asserting although he did it under the advice of counsel.

The law as set out by the Court of Appeals of New York in Tomasello, and Goldman, also in Stude make it plain that there is a right and legal power to subpoena him before the grand jury.

But there are certain instance under the Constitution of New York that result from that if he testifies.

And if he proceeds to testify, he gets protection regarding that testimony.

That is automatically giving him whether he claims the privilege or not in regard to any testimony that he gives.

And that protection concerning that testimony is less than the protection or the immunity he would get under Section 2447 of the Penal Code.

In that, it protects him concerning the use of that testimony and any of its fruits but not -- does not extend to the coverage of matter, thing or transaction involved in 2447.

Or is the same kind of protection that the Court described and provided in Murphy against Waterfront.

This case, we think is controlled by the decisions of this Court in Nelson, Beilan and Lerner against Casey.

Except that since those cases, this Court has moved on and included Murphy against Waterfront and Garrity so that a person called before the grand jury has protections that were not present in any of the three cases that I've named.

Beyond that, this inquiry by definition in the constitution and also in the charter provision is a limited inquiry.

It does not relate to security risk and loyalty and other elements that are involved in those cases but to -- is in precisely the question of the performance by the party involved of his official duties in that job.

Now, this case dramatically presents that problem.

Justice William O. Douglas: I suppose that's in a rather large circle of related problems such as the disabilities of any on the men or women on that public payroll to make a speech, to discuss, to criticize First Amendment problems?

Mr. J. Lee Rankin: I don't think that's involved here at all.

These provisions are explicit in regard to official duties and performance.

Justice William O. Douglas: I suppose in the welfare program as been administered the conditions to be made explicit so that you can dispense with a warrant for a search of the house to see if the welfare law is being complied with?

Mr. J. Lee Rankin: I wouldn't think it was possible under these provisions.

Justice William O. Douglas: I know, this is not a -- this is not that case but I mean this is a rather big subject we're getting into, isn't it?

Mr. J. Lee Rankin: No, I --

Justice William O. Douglas: (Inaudible) employment can be conditioned on the surrender of constitutional rights?

Mr. J. Lee Rankin: I think this is a very limited inquiry and it's a question of whether a policeman --

Justice William O. Douglas: Oh, it's just one case, that's true but --

Mr. J. Lee Rankin: Well, but --

Justice William O. Douglas: -- if whether what?

Mr. J. Lee Rankin: -- if you take all public officials in the Court of Appeals of New York has extended it Perlas to public officials.

That's a class and as a reasonable classification and this constitutional provision and the charter provision were in response to the reaction of the people in the State of New York in connection with the See Berry investigations, to the idea that people who admittedly had done all kinds of criminal acts showed in those investigations could continue to occupy their public positions because there is nothing the people could do about it.

Justice Abe Fortas: But general, suppose this man had been dismissed from service for a refusal to sign a waiver and period, nothing more.

Is that different in your submission from the result that they would've obtained if you knew this case has a dismissal for refusal to answer questions with respect to his official duties?

And if there is a difference, what consequences would you attach to it?

Mr. J. Lee Rankin: I think the case of dismissal just for a refusal to sign a waiver is the most difficult case because the heart, the essence of this right, the people of New York wish to assert is to find out how this man was conducting his work on behalf of the people.

Now, this --

Justice Abe Fortas: And also it's very arguable that he has an immunity by reason of federal law, federal constitutional law against being prosecuted in the event that he makes such disclosures.

Mr. J. Lee Rankin: Well, that's --

Justice Abe Fortas: An immunity which the waiver seeks to defeat.

Mr. J. Lee Rankin: It's a contention of the city in this case that he does have that immunity by reason of Garrity.

Justice Abe Fortas: But suppose if he signs a waiver?

The waiver is pro tanto inoperative by reason of Garrity, is that your --

Mr. J. Lee Rankin: That's right.

Justice Abe Fortas: -- statement?

Mr. J. Lee Rankin: It has no effect --

Justice Abe Fortas: But they've done it -- but if on the other hand, your view of this particular case as a refusal by the officer to answer questions with respect to his -- whether he did or did not take bribes or shot a fellow on the street or whatnot, of course, from his official duties.

Then you said it's an easier case?

Mr. J. Lee Rankin: Yes, because there you are going getting to the question of the particular conduct.

On the other hand that if he will not -- if he just refuse to answer which is the effect, a refusal to sign a waiver, certainly, when he has -- gets the immunity, it does under Murphy and Garrity.

Justice Abe Fortas: Well, I didn't know it is different because you're charging him now with the knowledge that he wouldn't -- that the signing of the waiver would be ineffective.

Mr. J. Lee Rankin: Yes.

Justice Abe Fortas: But he has, I suppose -- he could say well if it's going to be ineffective whether these fellows want me to sign it or whether they'd fire me for signing it.

Mr. J. Lee Rankin: Yes.

Justice Abe Fortas: And that may be a very different case and if a man -- a public official or policeman were fired because of his refusal to answer questions within the narrowly defined scope of his official responsibility.

Mr. J. Lee Rankin: Well, but we have a further gloss on this case and that he refused to answer or sign the waiver and to answer on the ground that he could not even be subpoenaed before the grand jury.

So it would be a futile act for us to try to follow up and compel him to answer under the decisions of the Court because he took the position that he couldn't be sworn and he couldn't be compelled to answer.

Justice Abe Fortas: Well, did your Court of Appeals treat it as your brother said, as I understand him, did the Court of Appeals treat this as the case in which he refused to answer the questions as well as case of refusal to sign a waiver?

Mr. J. Lee Rankin: No.

It treated that as insubordination and the failure to -- it did treat it as a failure to respond and tell how he had discharged his duties.

Yes, sir.

Justice Abe Fortas: Because -- if I were just to waive a case as I read with great difficulty of the concurrence that I wrote in Spevack against Klein this would not be covered.

Mr. J. Lee Rankin: The Court went beyond that in the --

Justice Abe Fortas: Now, that would be different kind of a situation.

Mr. J. Lee Rankin: And treated it as a refusal to answer the questions.

Now, there is no Slochower point in the case as we visualize it because of the hearing in which he was given opportunity to explain his reasons for refusing to waive and answer questions.

Justice Byron R. White: He never answered in that hearing anything about his -- the conduct of his official business?

Mr. J. Lee Rankin: That's right.

We did not.

Justice Byron R. White: But why should the state if it -- all it was to do is to find out how the employee has been performing his job?

Why should they be entitled to rely on a grand jury proceeding which is aimed at criminal prosecution?

Mr. J. Lee Rankin: Well, the grand jury in New York --

Justice Byron R. White: Why don't' they just have an ordinary hearing in the civil context and ask him the questions.

If he refuses to answer, he claimed you could fire if he answered.

You would know what you wanted to know and what he said since it's obtained under a job threat.

Wouldn't be admissible in the criminal proceeding?

Mr. J. Lee Rankin: Well, a grand jury inquiry is a broader inquiry under the law of New York, then just a proceeding which needs to end in indictment.

I know one, a misunderstanding --

Justice Byron R. White: Wasn't there a (Voice Overlap) --

Mr. J. Lee Rankin: -- in this case, he was a target of the investigation.

Justice Byron R. White: And didn't -- wasn't there a testimony that he was a -- what a -- possible or probable --

Mr. J. Lee Rankin: He was a --

Justice Byron R. White: -- defendant in a criminal prosecution?

Mr. J. Lee Rankin: That's right.

But the grand jury in New York has a power to make presentments which involved the recommendations about the conduct of the laws, enforcement, and other matters of that kind.

So if they have this broader right, broader interest, and it seems to us that the grand jury should properly be able to inquire into the manner in which public officials are performing their duty.

And then they correct commendations to the legislature or the governor, other officials as to how these laws should be changed or improved to carry out the purposes --

Justice Byron R. White: Does in -- does the New York law require that an employee be asked to waive immunity if he is interrogated by his superior rather than by the grand jury?

Mr. J. Lee Rankin: Yes.

It -- the constitution does not, the charter does.

There is that distinction between the two.

Justice Abe Fortas: Are you -- would you --

Mr. J. Lee Rankin: (Inaudible)

Justice Abe Fortas: Are you defending -- are you saying that despite the Fifth Amendment in Garrity, a public official may be forced to sign a waiver from payment being discharged?

Mr. J. Lee Rankin: No.

I say that in light of Garrity, it doesn't make any difference.

Justice Abe Fortas: Alright.

But you're not defending that were clear then, we're in agreement that the -- you cannot dismiss a public employee because of his refusal to sign a waiver of criminal prosecution and if that is the thrust of Garrity.

That's what I'd like to get cleared General?

Mr. J. Lee Rankin: May I hear the question again, Your Honor?

Justice Abe Fortas: Yes.

A public employee is required to sign a waiver for a criminal -- a waiver of immunity against criminal prosecution.He refuses to do so and that's all.

That's all it's present in the case.

Can he be dismissed for his refusal to sign that waiver?

That's as distinguished from a dismissal for refusal to answer questions as to his performance of his duty.

Mr. J. Lee Rankin: Well, it would seem to me that if you told him that the waiver had no effect as far as waiving his rights were concerned and that he had all of the rights that he has under Garrity and Murphy against Waterfront that he would have no excuse for not proceeding to testify.

Justice Abe Fortas: Then he would say -- what -- why do you want me to sign this.

Is this some exercise in penmanship?

But he weren't told that here anyway, was he?

Mr. J. Lee Rankin: He was not.

But in the book --

Justice Thurgood Marshall: Mr.Rankin, am I correct that this man was suspended first --

Mr. J. Lee Rankin: Yes.

Justice Thurgood Marshall: -- by the Police Commissioner.

Mr. J. Lee Rankin: Yes, Mr.Justice.

Justice Thurgood Marshall: On charges of being involved in gambling?

Mr. J. Lee Rankin: Yes, sir.

Justice Thurgood Marshall: And the next day, he went for the grand jury.

Mr. J. Lee Rankin: That's correct.

Justice Thurgood Marshall: That's criminal.

One is, he's got a chance of losing his job permanently.

The grand jury if he had a chance to go into the penitentiary.

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: And while he's suspended officer, he still obliged to testify?

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: How can you rationalize that?

Mr. J. Lee Rankin: Because --

Justice Thurgood Marshall: You're not -- the grand jury at that stage had nothing to do with his fitness as a police officer.

You have already started that machinery by suspending him.

These are two different items.

Mr. J. Lee Rankin: Yes.

But then --

Justice Thurgood Marshall: I submit that if he'd been suspended after you'd had a different case from which you have here.

Mr. J. Lee Rankin: The grand jury has a legitimate right of inquiry in regard to the performance of his duties in law enforcement under the laws of the State of New York and the fact that it makes an inquiry.

If it's the target -- if he's the target of the investigation, he gets the protection of the Constitution of the State of New York anyway as to the use of that testimony and the fruits of it.

Justice Thurgood Marshall: Well, then the only problem is that he didn't sign the waiver?

It has no legal significance?

Mr. J. Lee Rankin: The further problem that he asserted that he could not be compelled to appear before the grand jury at all --

Justice Thurgood Marshall: Well, then --

Mr. J. Lee Rankin: -- because he was the target.

Justice Thurgood Marshall: Well then it narrows down to bad legal advice, he loses his job.

Mr. J. Lee Rankin: Well, he refuses to answer the question --

Justice Thurgood Marshall: Well, isn't that what it is.

He's operating on the advice of counsel.

Mr. J. Lee Rankin: That's right.

Justice Thurgood Marshall: And you say counsel was wrong.

Mr. J. Lee Rankin: Yes.

Justice Byron R. White: But if he's answered the questions, he might been fired anyway.

Justice Byron R. White: He might have been.

Mr. J. Lee Rankin: Well --

Justice Byron R. White: Might have been.

Mr. J. Lee Rankin: If you can assume that he had good grounds for thinking that he might be incriminated and those grounds included he himself being involved in some way as his reasons, then if they'd -- if it disclose that he was involved in a bribery, he certainly would have been discharged (Voice Overlap) --

Justice Byron R. White: Yes, but I gather, Mr.Rankin, if your position is that under that under the Constitution of New York, had he talked, what he said could not have been used as the basis for evidence in a criminal prosecution?

Mr. J. Lee Rankin: That's correct.

Justice Byron R. White: But if what he said involved him in something for which he might be disciplined or discharged.

He then would have to be the subject of a separate disciplinary proceeding, would he not?

Mr. J. Lee Rankin: That's the law in New York, yes (Voice Overlap) --

Justice Byron R. White: So in other words, he'd have an administrative hearing on all that what he said would do would we provide the basis for the administrative proceedings, is that it?

Mr. J. Lee Rankin: That's right.

Justice Byron R. White: And that's subject to judicial review, I gather, is it?

Mr. J. Lee Rankin: Yes.

There is a contention here, however, that he cannot be -- even though he is given all of those protections under Garrity and Murphy and so forth, and also those under Stude under New York law nevertheless, he could not be asked about the performance of his duties in connection with any disciplinary hearing.

Justice Byron R. White: Do you think, Mr. Rankin that if before the grand jury he refused to waive his immunity and then some questions were put to him and he took the Fifth Amendment and said, I don't need to answer on grounds that it'll incriminate me and the -- and that -- and the -- he was taken before a judge and refused again that he could’ve been held in contempt?

Mr. J. Lee Rankin: No, I don't think so in this case.

Justice Byron R. White: Why not?

Mr. J. Lee Rankin: The Court at least -- Court of Appeals has not yet decided --

Justice Byron R. White: Well, what about -- do you think -- do you -- is it your position that Garrity in effect provides an immunity in those circumstances which really sends in place of the privilege?

Mr. J. Lee Rankin: Well, I've been told by your decisions you haven't cited that question yet to counsel -- regard to Counselman.

Justice Byron R. White: So that you're not -- you would think that he could take this -- take the Fifth Amendment before the grand jury in this case and refuse to talk and that only -- and your only contention is that if he does, he can be discharged?

Mr. J. Lee Rankin: I have difficulty with answering that categorically in light of your decision in Murphy against Waterfront and in Garrity and trying to arrive at the question of whether or not how much immunity you did give in those cases which clearly say that there is -- that the testimony could not be used and the fruits cannot be used but does not go as far as Counselman's dictum.

That I think is the issue of the question that you're asking.

Justice Potter Stewart: What -- where -- of course, no questions were asked of this man either before the grand jury or at the administrative hearing except that the latter to establish that he had indeed refused to sign that waiver of immunity.

Mr. J. Lee Rankin: Yes.

Justice Potter Stewart: Is it clear what kind of investigation this was?

Was this an investigation of his conduct as a police officer as has been assumed and stated here or what was it?

It wasn't -- it did involve his shooting anybody, did it?

Mr. J. Lee Rankin: Before the grand jury, no it did not involve his shooting.

It involved the question of the bribery of police officials regarding -- to keep them from interfering with gambling activities in the city.

Justice Potter Stewart: It was an investigation of organized gambling, was it?

Mr. J. Lee Rankin: Well, it was an investigation of bribery transactions that were --

Justice Potter Stewart: Of alleged police corruption?

Mr. J. Lee Rankin: That's right.

Justice Potter Stewart: Corrupting of the police department by gamblers, is that it?

Mr. J. Lee Rankin: That's right.

And this particular appellant was thought to be one of those involved in the bribery at the time of the investigation for the grand jury.

And when he was given the hearing and took the position that he would not sign the waiver and the reason -- and that he would not -- could not be required to testify before the grand jury because he could not be called and sworn before the jury.

There was no purpose in trying to do anything more about asking about what he'd done because he was indicating that he was taking illegal position but he didn't -- could not be compelled to testify from that point on.

The importance of this issue is obvious and I'm sure that the Court has recognized in connection with the footnote that was referred to and the concurring opinion of Mr. Justice Fortas and the very structure of our Government and it’s various parts in the federal system and the right to try to find out what any official has been doing and his doing in the performance of his duties.

Justice John M. Harlan: Has New York ever had a system requiring evidence (Inaudible) --

Mr. J. Lee Rankin: I don't know of anything of that kind, Mr. Justice.

I offhand had thought that that would not add anything because he would be presumed to know what the constitution provides and what the charter provided.

And if that would make a part of his contractual relationship with the community that once he took upon himself the job of enforcing the laws --

Justice John M. Harlan: (Inaudible)

Mr. J. Lee Rankin: That's right.

Justice John M. Harlan: (Inaudible)

Mr. J. Lee Rankin: Yes.

Rebuttal of Ronald Podolsky

Mr. Ronald Podolsky: Your Honor the appellant waives rebuttal.

Featured:

Campbell Painting Corp. v. Reid - Oral Argument

Thu, 23 Aug 2012 18:16:55 +0000

Case:

Campbell Painting Corp. v. Reid

Media File:

673_19680430-argument.mp3

Related Transcript:

673_19680430-argument

Transcript:

Argument of Albert A. Blinder

Chief Justice Earl Warren: Number 673, Albert A. Blinder -- no.

It's George Campbell Painting Corporation, appellant versus William Reid et al.

Mr. Blinder, you may proceed with your argument.

Mr. Albert A. Blinder: Mr. Chief Justice and may it please the Court.

This case like the one just argued before it is on appeal from the New York State Court of Appeals from a decision rendered the very same day as Gardner against Broderick.

In its opinion, the New York State Court of Appeals declined that the statute in this case which is Section 2701 of the New York Public Authorities law was constitutional and based its finding upon the decision in Gardner against Broderick.

Now, the statute in question which is also identical with several other statutes in New York such 103 of the municipal law and a section of the finance law, provides similarly that if a person is called before a grand jury concerning a transaction or contracts with -- that states any political subdivision thereof, a public authority or with any public department, agency or official of the state or if any political subdivision thereof or of a public authority and refuses to sign a waiver of immunity or refuses to answer any relevant question then such person or any firm, partnership or corporation of which he is a member, partner, director or officer shall be disqualified for a period of five years from biding on contract or from doing business with the state and also any existing contracts at the time may be cancelled or terminated.

In this situation, we are presented with the question as to whether the Fourteenth Amendment is offended by the public authority's law because of the requirement that a corporation be disqualified when one of its officers or directors asserts or refuses the way the privilege against self-incrimination and as a corollary of that, whether the resignation and surrender of control by such an officer or a director prior to being called before a grand jury, makes automatic application of the statute repugnant to the Due Process Clause.

We also have the question as to whether a direction by statute that all public contracts contain an agreement to waive the privilege against self-incrimination is an unconstitutional condition of doing business with the state.

Now, the facts in this situation are somewhat different than the Gardner against Broderick case previously.

In fact, the appellants which is a corporation was disqualified from doing business with the state for a five year period and its contracts were terminated because one of its former officers have refused to sign a waiver of immunity when subpoenaed before a grand jury.

In fact, the individual in question was the president and a director of the corporation until about three weeks before he was subpoenaed before the grand jury.

While the corporation bears the same name as the individual in question, he is the son of the founder, he was 24 years of age at the time that he was subpoenaed and was not in actual control of the corporation.

He was the (Inaudible) I had because he was the heir of power to his deceased father.

About three weeks after resigning his officers and giving up his stock which was 10% of the outstanding stock of the corporation, he was subpoenaed before a grand jury.

The following day, he appeared, refused to sign a waiver of immunity and the corporation a week later was notified by the New York City housing authority that its contracts were terminated and that the appellants was disqualified.

I might add that before the subpoena was served upon him, the corporation notified the appellees that in fact he had relinquished his officers and was no longer the president and director of the corporation.

When he appeared before this grand jury pursuant to subpoena, he was never asked the question and never refused to make any answers.

In fact, all of the other officers and directors who were subpoenaed before this grand jury, signed waivers of immunity, some were called in to testify and did testify, some were not called in to testify.

Two days after the letter of disqualification was sent out by the City Housing Authority, the appellant corporation requested a hearing as to its disqualification.

That letter was ignored.

Four days later, a telegram was sent by the appellant's corporation also to the City Housing Authority, requesting a hearing.

Two weeks thereafter, a letter was sent by the City Housing Authority to the appellant corporation, advising the corporation that it could not have a hearing and that it need not bother communicating with the housing authority again about this subject.

I'm unable to advice the Court as to the content of the waiver of immunity which was offered to the individual in question.

The grand jury being a secret proceeding, we were not acquainted with its contents.

We assume it was a general waiver of immunity and we have not seen any transcript of testimony concerning the questioning by the assistant district attorney of the individual, asking him to sign the waiver of immunity.

The letter which advised the appellant corporation that it was disqualified said and this is the only way we know it that the grand jury in addition to investigating alleged bid rigging was only investigating bribery of the labor official, extortion, coercion, assault and conspiracy of each of these other things.

Now, our argument of course is based on much of what was discussed in the Gardner argument.

Justice Hugo L. Black: Who is the order here against?

Mr. Albert A. Blinder: The order of disqualification is against the appellant corporation.

Justice Hugo L. Black: Anybody else?

Mr. Albert A. Blinder: There's an automatic disqualification of the individual, pursuant to the statute and he also was disqualified but this proceeding was commenced only by the corporation.

Justice Abe Fortas: Well, don't you have -- I beg your pardon.

Justice Hugo L. Black: And the order against them is on the account of the fact that that president, who has now resigned, has he?

Mr. Albert A. Blinder: Yes, he resigned before he was subpoenaed.

Justice Hugo L. Black: But that president had refused to sign the waiver of immunity.

Mr. Albert A. Blinder: That's precisely what the letter said that because of his refusal -- because of the former president's refusal to sign the waiver of immunity, the corporation was disqualified.

There was no administrative hearing despite the fact that one was requested and there were no questions put to the former president when he appeared at the grand jury room.

Justice Hugo L. Black: There's no doubt on what the state law authorizes that --

Mr. Albert A. Blinder: I think that's considerable.

Well, may I say that the New York Court of Appeals held that the state law will approve it, yes! I believe, however, that this is repugnant to the decisions of this Court and to the privileges of the federal constitution.

Justice John M. Harlan: The corporation has no bit amount of purpose (Inaudible).

Mr. Albert A. Blinder: I agree as to that sir.

We're not --

Justice John M. Harlan: I still hear as you say, the purpose (Inaudible)

Mr. Albert A. Blinder: No.

Actually sir, what we're complaining about is that a penalty was imposed upon the corporation in a manner which is repugnant to the Due Process Clause because of a statute which imposed the penalty upon an individual contrary to Spevack against Klein.

Justice John M. Harlan: (Inaudible)

Mr. Albert A. Blinder: Well actually, we're making both this lock out point and the point in Spevack.

We state that vicarious disqualification is based upon an unconstitutional section of law.

And it's rendered unconstitutional not only by Spevack but also by virtue of Slochower because we were afforded no rights at all to make explanation.

Justice Hugo L. Black: What kind of explanation could you have made if that is the law?

Mr. Albert A. Blinder: Well, if we have the administrative hearing Mr. Justice Black, I believe that we could have found out whether the waiver of immunity that was offered to the former officer was a legal one and we would have been able to determine at least what the colloquy had been between the assistant district attorney and the officer in question concerning whether this grand jury was operating within the scope of the statute.

We don't even know that so that under the circumstances, we not only state that the statute is unconstitutional but certainly its application as the New York Court of Appeals said it was valid.It's repugnant to due process and the Slochower.

Justice Byron R. White: Well, I take it then you'll be making the same argument if the president hadn't resigned.

Mr. Albert A. Blinder: We would be making the same argument, yes, certainly in connection with the constitutionality of the statute.

Justice Byron R. White: So you say that the corporation may not be disqualified from contacting with the city even though none of its officers through -- only through whom the corporation can speak even though all of them refused to testify.

Mr. Albert A. Blinder: Yes, our position on that is simply that even under Spevack and Mr. Justice Fortas' concurring opinion that this, a grand jury inquiry is not the proper administrative inquiry to determine the fitness and qualification of this contract.

The grand jury in New York --

Justice Byron R. White: That's a little different point I suppose but you would -- do you mean if there had been an administrative hearing and the same people have refused to talk about the corporation's performance of its contracts that you wouldn't be here.

Mr. Albert A. Blinder: Well, I say this.

I believe that that is an opening question in Spevack.

And under the circumstances, this Court might very well find that our people before our proper administrative tribunal have to demonstrate their fitness and qualification but we say that the grand jury was absolutely the wrong tribunal that it never had the functions of determining fitness and qualifications of a public contract.

In fact and I believe this is set forth by our brief with -- in some detail.

The grand jury by statute may only look into criminal misconduct of public officials and when the counsel for the appellee in the proceeding argument said that the grand jury may present on other than criminal matters, he was not quite stating accurately the Law of New York State.

The lore of New York State as it is clearly set out in the Code of Criminal Procedure.

It says that in the cause of examining into whether there was criminal misconduct, if it finds that there was non-criminal misconduct of public officials that at the discretion of the Court, it may make a recommendation concerning this non-criminal misconduct of public officials but there again, if it does make such a recommendation, the public official who was so charged has the right within 31 days to file an asset to the presentment of the grand jury before that presentment can be made public.

And --

Justice Byron R. White: In any event, we consider this case as though it would be the same issue if this gentleman have not resigned and that this was a -- that one of the officers have refused to testify before the grand jury.

Mr. Albert A. Blinder: Well, I believe that's certainly one of the points.

The other points has to do with the Slochower question as to his resignation whether in fact any administrative hearing was given and I can't say that it's strictly that because we have also made the other point.

Justice Hugo L. Black: Does the New York statute provide for an effective reinstatement proceeding that some sort of a proceeding be brought here by this corporation to remove its disqualification?

Mr. Albert A. Blinder: Yes, under the Public Authorities Law at a later time, Section 2303 was added -- 2603, I beg your pardon.

And under that section, a corporation after its disqualification may commence a proceeding, establishing one that there was cooperation by the corporation afterwards, and two, that the person who was the recalcitrant witness so to speak, had not actually been a control person than the Court might in a discretionary fashion remove the disqualification if it was in the public interest to so remove.

Justice John M. Harlan: Does the record show how the stock of this corporation is known?

Mr. Albert A. Blinder: Yes, it does.

Justice John M. Harlan: Where is the stock?

Mr. Albert A. Blinder: The stock is held as follows.

The resigned officer had 10% of the stock.

His brothers and sisters had an additional 40% of the stock.

50% of the stock was owned by the estate of his late father of which his mother was one of the principal beneficiaries.

Justice John M. Harlan: And there is no publicly held stock.

Mr. Albert A. Blinder: There is no publicly held stock.

This is a closely held private corporation.

Justice Abe Fortas: Suppose the state obtains information from a president of the company in violation of his Fifth Amendment rights and then uses that -- the information in a proceeding against the company itself.

Can the company assert the individual's Fifth Amendment privilege for the purpose of excluding that evidence?

Mr. Albert A. Blinder: Well, I believe this Court has held in United States against White that the privilege cannot be used by a corporation.

And I would assume that in following it through to the state of facts you've mentioned that the corporation could not object providing that it met that competency and relevancy and materiality test of evidence.

Justice Abe Fortas: Yes, if it cannot object in that case, how does -- what's the basis for your assertion that in this case, the corporation can in effect assert the privilege on the behalf of one of its officers.

Mr. Albert A. Blinder: Well, Mr. Justice --

Justice Abe Fortas: Your argument here is that the statute is unconstitutional because it penalizes the exercise of Fifth Amendment rights.

That's still in there?

Mr. Albert A. Blinder: Yes.

Justice Abe Fortas: And you're saying that the penalty imposed by the statute operates upon the corporation.

Mr. Albert A. Blinder: As well as the individual.

Justice Abe Fortas: And here, the corporation is asserting -- it was asserting what in effect you urge as a constitutional right of the individual to be able to exercise his Fifth Amendment privilege without being subjected to any kind of penalty.

Mr. Albert A. Blinder: Well, I think Mr. Justice --

Justice Abe Fortas: And I think it's a problem in this case, don't you?

Mr. Albert A. Blinder: It is a problem and in our reply brief, we explained it as follows.

I'm not certain that the explanation is sufficient to convince you sir but we have said that the corporation is not in effect, asserting the Fifth Amendment.

The corporation is asserting the Fourteenth Amendment in that as a result of an illegal penalty that's based upon an individual -- is having asserted the Fifth Amendment, the corporation by virtue of the Fourteenth Amendment as being deprived of its property without due process.

Justice Abe Fortas: But that would also -- if that were true the you would assume that the corporation wouldn't be able successfully to oppose a tender of evidence obtained in violation of its president's Fifth Amendment rights.

Mr. Albert A. Blinder: Well --

Justice Abe Fortas: The corporation has a right under the Fourteenth Amendment of fair trial and it would be -- it would then be able to assert as part of that right as to have excluded from use against if evidence unlawfully obtained from its president, it seems to me that one would follow from the other?

No?

Mr. Albert A. Blinder: Well, I must say that I think what you say is correct and I believe that it is basically unfair for the corporation not to be able under the same set of circumstances as I've argued to assert that privilege.

However, I do understand that this Court has ruled with in contrary and what I'm saying is that basically since we're talking about a civil penalty which was vicariously imposed without even the right of the corporation to have a rudimentary hearing, I say that that is repugnant to due process.

Justice Byron R. White: Did the corporation ever make -- refer to the city that it was willing to furnish any kind of information through its other officers?

Mr. Albert A. Blinder: Oh yes.

We've -- the corporation turned over all its records and the other officers and directors all appeared before the grand jury and waived immunity.

In addition to which --

Justice Byron R. White: At the same time, is this gentleman --?

Mr. Albert A. Blinder: A week later.

Justice Byron R. White: That this was after the bids has been --

Mr. Albert A. Blinder: No, before it was disqualified.

Chief Justice Earl Warren: You offer to make this man available, the one who refuse to test -- refused to waive immunity?

Mr. Albert A. Blinder: Excuse me your --

Chief Justice Earl Warren: Did you -- did you offer to have him testify in the proceeding of that kind?

Mr. Albert A. Blinder: Well, we merely ask for a hearing.

The hearing did not specify who would be called I think could determine on the nature of the hearing which the appellees would have called.

Chief Justice Earl Warren: Would they have had a right to call him and ask him to waive immunity and if he didn't, to go ahead and declare the corporation ineligible for the contracts?

Mr. Albert A. Blinder: Well, I believe Mr. Chief Justice that that question was left open in the Spevack decision and I -- I maintain sir that even if that right -- well, may I put it this way.

Even if these were the case that he could have been called before a disciplinary hearing appropriately set up by the City Housing Authority and had refused to testify, it is entirely possible that he -- that the corporation and he could have been fired without changing this case which we're arguing at the moment.

I -- my point is that the grand jury is not a disciplinary proceeding and in fact, there was no hearing given and they -- the matter of the fitness and qualification of the individual officer as well as the corporation was never put in issue.

If in fact, that had been put in issue before an administrative tribunal then I do not know what the answer would be because it would depend very much on whether this Court decides that the Fifth Amendment under Malloy and Hogan and Spevack covers disciplinary hearings of public officials as well as public contractors.

I say that it is not necessary for this Court to go that far in seeing the basic unfairness of the situation which resulted in this particular case.

Justice Byron R. White: Was the corporation -- I suppose the corporation was powerless to secure the testimony of this gentleman who resigned.

Mr. Albert A. Blinder: Well, the record reveals that when counsel first hear that this investigation was being conducted by the District Attorney's office and that there was a possibility that subpoenas might be served upon officers of the corporation.

They held a meeting with the officers and directors and advise them that this might happen and that if anyone of them would waive -- would refuse to waive immunity, he had best get out of the corporation as an officer and director in stockholding and the only one who said that for personal reasons he might do this was George Campbell, Jr. and that --

Justice Byron R. White: That was hardly -- for whom was that -- to whose benefit was that advice?

For whose benefit would that advice, the officers or the corporation?

Mr. Albert A. Blinder: Well, it was to the corporation's interest to have them all waive the immunity so that the corporation wouldn't be disqualified if and when they were subpoenaed.

Justice Byron R. White: So you are saying to him, you either waive immunity or get out.

Mr. Albert A. Blinder: Essentially, that is correct.

Justice Byron R. White: Which is what you're objecting to the city during the year?

Mr. Albert A. Blinder: Yes sir.

But this was a private corporation and I say that while the state has the burden of being sure that its contractual obligations do not violate the basic Bill of Rights when a person's family corporation says to the contrary, it might be an entirely different picture.

Justice John M. Harlan: Does record show what the nature of the underlying charge was that set the investigation.

Mr. Albert A. Blinder: Well, the letter -- the record does indicate that the grand jury was investigating bid rigging, bribery of the labor official, extortion, coercion and assault and a conspiracy to commit any of those substantive crimes.

And I must argue to the Court that certainly, within the realm of a transaction and a contract with the state, I can imagine how a grand jury can determine the issue as to whether an assault bears upon the contractual obligation of the contractor or upon his fitness or qualification.

Now, I respectfully --

Chief Justice Earl Warren: Will that depend upon the context in which the assault was committed?

Mr. Albert A. Blinder: I think it might very well Mr. Chief Justice but they never informed you -- the corporation or the client who was the alleged recalcitrant witness just what the circumstances of whether they were investigating.

In fact, under the statute, they do not have to confine the grand jury investigation to only the contracts in question.

Under the statute, they can look into any transaction with any political subdivision or any public official and I assume in this case they could even ask questions concerning whether his taxes were paid, whether the streets were properly paid outside of his house assuming he had an obligation to do so and they could probably ask questions which not in the least could affect his fitness and qualification as a public contractor with the New York City Housing Authority.

So all I can say on this is that without specifically being advised of the nature of the inquiry and that they were looking into the contracts which were allegedly the ones in question.

The individual would be waiving immunity as to all kinds of remote things which couldn't possibly bear upon fitness and qualification and therefore, carrying at once that further, the corporation could in turn be penalized by an inquiry that would have nothing to do with its function as a public contract.

Justice Byron R. White: Well I -- even if the -- even if the city could require a public employee to talk or lose his job, I'm not sure that that would entitle it to do anything at all to these officers and officer this -- well, he wasn't working for the city.

Mr. Albert A. Blinder: No.

Justice Byron R. White: His only recourse would be against the corporation.

Now I take it the corporation is saying that we did all we could to cooperate.

We couldn't control the officer if we would have -- could have gotten his testimony, we would have but our lives are an open book except for him and we can't do anything about him and you're saying that it's a lack of due process to be cut off for that.

Mr. Albert A. Blinder: That's correct sir.

Also, I might add that the individual himself was disqualified but of course we're obviously not raising that question.

We say that the corporation despite all of its intents to cooperate and comply in every respect possible was vicariously disqualified because of an unconstitutional --

Justice Byron R. White: Yeah, but the fact is that there maybe some things about the corporate business that the city hasn't been able to find out and it may be that the only way to find out is if your ex-officer talk but he will not talk.

Mr. Albert A. Blinder: Well, may I just state this.

They never asked the corporation about any of these things and have they done --

Justice Byron R. White: I thought they have to talk -- didn't the officers testify what the other officers testified for grand jury --

Mr. Albert A. Blinder: They were called.

Yes.

Justice Byron R. White: -- and waive their immunity --

Mr. Albert A. Blinder: That's correct.

Justice Byron R. White: -- and were asked questions?

Mr. Albert A. Blinder: That's correct but nothing specific was asked by the City Housing Authority.

Justice Byron R. White: -- which they wanted to know that you didn't know and they could only get from the other appellants.

Mr. Albert A. Blinder: Well, except if it wasn't the City Housing Authority conducting the grand jury.

It was in Assistant District Attorney and I'm sure he wasn't under the -- under the laws of New York allowed to divulge what happened to the City Housing Authority and certainly, it's their duty to determine fitness and qualification and I don't believe that they were ever able to find out because there is a strict rule of secrecy in New York concerning grand juries which makes it a crime to divulge the testimony before it.

And under the circumstances, if the City Housing Authority wanted to find out something about this corporation, I say that the only way they could find out is by asking the corporation because the grand jury wasn't allowed to give it to them and always the Assistant District Attorney without a court order.

Justice Hugo L. Black: Who gave the company notice of its disqualification?

Mr. Albert A. Blinder: Well, what happened was, the Assistant District Attorney notified the City Housing Authority that George Campbell, Jr. had refused to waive.

They in turn wrote a letter to the corporation, telling the corporation that based upon the letter from the Assistant District Attorney informing them that the individual had refused to waive, they were disqualifying the corporation.

Justice Hugo L. Black: Who was disqualifying?

Mr. Albert A. Blinder: The City Housing Authority.

Justice Hugo L. Black: City Housing Authority

Mr. Albert A. Blinder: -- who are the appellees.

Justice Hugo L. Black: And then what did you do?

Mr. Albert A. Blinder: We then filed the necessary -- well, number one, we asked for a hearing which was denied.

Number two, we filed an Article 78 proceeding which is a special proceeding in New York in the nature of the review.

Justice Hugo L. Black: A judicial review.

Mr. Albert A. Blinder: A judicial review.

And we were informed by opinion that we were in the wrong remedy that we should start a plenary action.

We started a plenary action and as part of that move for a temporary injunction.

Justice Hugo L. Black: Is that this one?

Mr. Albert A. Blinder: Yes.

They're both in this case sir.

Justice Hugo L. Black: Both of them.

Mr. Albert A. Blinder: We move for a temporary injunction requesting the disqualification be held up pending the outcome of the plenary action and that was stayed because we were appealing the Article 78 proceeding and then the appellant division of the New York Supreme Court, dismissed both claiming that we were obligated to stand on our contracts and we have no right to test any further.

We then went --

Justice Hugo L. Black: I don't stand on your contract which provided what?

Mr. Albert A. Blinder: The contract provided in advance that if any officer or director of the corporation were called before a grand jury and this is the statutory language --

Justice Hugo L. Black: In the contract.

Mr. Albert A. Blinder: In the contract.

That if any -- if any officer or director were called and refused to waive that the contracts will be terminated and that the contractor would be disqualified for five years.

Justice Hugo L. Black: Did you challenge that?

Mr. Albert A. Blinder: Yes, we did sir.

Justice Hugo L. Black: Is that basically what this issue is here whether they have a right to make it at any contact?

Mr. Albert A. Blinder: Well, there are two questions because the statute contains one section which puts it into the contract and another section which operates separate from the contract and we have argued that both are unconstitutional.

The first, because the state may not impose an unconstitutional provision in its contracts and the other based upon the fact that this is interrogation of Spevack and also Slochower because of the due process.

Justice Hugo L. Black: Your contract has agreed to him but the company's contract agreed that it would -- it could be disqualified if he also refused to testify?

Mr. Albert A. Blinder: That's correct sir.

The statute mandates that every public contract don't have that provision in it and we say that the statutory direction is unconstitutional because it requires an unconstitutional provision to be put into a public contract.

And with respect to the -- to the letter, may I just call to your attention sir the dissenting opinion in Reagan against New York in which Your Honor joined in which Mr. Justice Douglas said, "So far as I know, it has never been held before that the privilege against self-incrimination or any other Bill of Rights safeguard can be bargained away far in advance of the day when needed as protection against the overreaching power of government."

We state that under the entire line of unconstitutional provisions of public contracts that the state may not put this provision into a public contract and cause the contract thereby to agree to unconstitutional provision in the contract.

Justice John M. Harlan: What was the original contract signed by this officer -- this particular officer, the president?

Mr. Albert A. Blinder: Yes, it was signed by the president.

Justice Abe Fortas: Is it signed by the same young man, this 24-year-old man who resigned after all these started?

Mr. Albert A. Blinder: Yes sir.

He signed three contracts in the short period when he was the president which was about seven months.

Justice Abe Fortas: Did the company have other contracts which were signed by somebody else?

Mr. Albert A. Blinder: I believe I did.

In fact, only about 15% of the business of this corporation was with this particular agency.

But as a result of this disqualification, this corporation was not only disqualified from doing business with the State of New York but has been unable to get some contracts with other states and with many private companies because of a general blacklisting which has occurred in the industry.

Justice Abe Fortas: It's like federal blacklist, isn't it?

This federal blacklist is --

Mr. Albert A. Blinder: Yes, I believe.

Although, the Acting Process case which this Court decided, indicated that whether there was a violation with the anti-kickback section, only the one contact in question was not enforceable, it didn't go any further not saying a general blacklisting for a specific length of time.

Now, if I have any more time, may reserve it for rebuttal.

Chief Justice Earl Warren: You may Mr. Blinder.

Mr. Hessel.

Argument of Paul W. Hessel

Mr. Paul W. Hessel: Mr. Chief Justice and may it please the Court.

At the outset, I should like to make the position of these appellees quite clear that whereas in view of the fact that we're here arguing this case along with the case that's relating to public employees, in view of the fact that Court of Appeals has sight of the Gardner case as a authority that have decided the same day as our case, as authority for upholding the constitutionality of Section 2601.

In view of those facts, we take it that the decision of this Court on the public employees' case, will have an impact in my opinion, a major impact upon the equation of the constitutionality of Section 2601 of the Public Authorities Law which is an issue in this case.

It is our position however that if Section 1123 and Article I, Section 6 of the New York State Constitution are held to be constitutional with respect to the public employees and certainly in our opinion a fortiori, this Section of the Public Authorities Law which imposes as somewhat similar duty upon public contractors rather than public employees should likewise be held unconstitutional and that in my opinion then should be the end of the case at that point.

However, by no means that we concede that the commerce is true because there are so many points of distinction between this case and the cases of the -- the public employees' cases that under any circumstances, the judgment of the Court of Appeals in this case should be affirmed.

And those points of distinction relate -- are based upon two grounds.

One on the general proposition as Section 2601 applies to public contractors all over the state generally and certainly upon the peculiar circumstances of this particular case, some of which had been brought out by questioning of various of the justice of this Court.

Now, with that purpose, I should like to fill in somewhat more of the facts in this case that have been thus far brought out.

The authority which is the appellee here is a state created agency.

And in fact, it is so designated as a state agency under the Public Housing Law, designed to carry out the functions of the State Constitution of some slum clearance and the creation and construction of public housing for low income families and as such, all of the statutes of the state according to public corporations or public divisions applied to the New York Housing Authority, the appellee here, the authorities given authorization by the public housing law, Section 151 to bid its public contracts for maintenance of its projects.

There are about 150 of these projects, housing equals to 600,000 low income tenants or person.

In the bidding of its periodic painting contracts, three of these contracts were bid upon by this upheld and cooperation.

And it has been brought out those three contracts which are in issue here was signed on behalf of the appellant corporation by George Campbell, Jr. its president.

In addition to the fact that these contracts contained the mandatory provision of Section 2601 of the Public Authorities Law that the corporation or its officers -- corporation of that contract of an individual or if a corporation and its officers must waive immunity and answer question in a narrowly related field and I'm referring now, particularly calling to mind Mr. Justice Fortas' statement as Spevack, that the corporation must as Section 2601 provides by its officers answer questions were then called before the grand jury concerning any transaction or contract have with the state, any political subdivision thereof a public authority or any public department or subdivision of the state.

Justice Hugo L. Black: It must do what now?

Mr. Paul W. Hessel: I beg your pardon?

Justice Hugo L. Black: It must do what?

Mr. Paul W. Hessel: The corporation or its officers by the contract as Your Honor has brought up.

In the -- written in the contract, there is a provision that the corporation or its officers when called before a grand jury must waive immunity and answer questions in this very narrow field --

Justice Hugo L. Black: Under the Fifth Amendment?

Mr. Paul W. Hessel: Only with respect to contracts or transactions had with the states or any of its subdivisions.

Justice Hugo L. Black: That is with the contracts in which their guilt of a crime is affected.

Mr. Paul W. Hessel: I beg your pardon.

Justice Hugo L. Black: That is in effect with whether their guilt of the crime is to be confessed.

Mr. Paul W. Hessel: Well --

Justice Hugo L. Black: Is that right?

Mr. Paul W. Hessel: -- the statute doesn't talk about it.

Well it may be.

Justice Hugo L. Black: But that's what it does.

Mr. Paul W. Hessel: It may be.

That's what might be required -- is that the officer testify, concerning any transaction which may involve a crime.I can't say anything.

Justice Hugo L. Black: In other words, to straight out waiver of the Fifth Amendment immunity against self incrimination.

Mr. Paul W. Hessel: That's right, by contract.

Justice William J. Brennan: You mean by contract, you can't add the contract unless you agree to it without provision and can't --

Mr. Paul W. Hessel: That's right.

Contract voluntarily subscribed to this --

Justice William J. Brennan: Voluntarily subscribed which don't get a contract unless you agree to this contract containing that provision.

Mr. Paul W. Hessel: That's right.

That is one of the conditions that they're complaining about and I'll come to that question on provisioning.

Now, I would like --

Justice John M. Harlan: Supposing this contract is signed by someone -- other gentleman or a person to this corporation (Inaudible).

Mr. Paul W. Hessel: Well, as long as it's signed --

Justice John M. Harlan: (Inaudible)

Mr. Paul W. Hessel: Well, we're not maintaining that the individual George Campbell, Jr. contracted to waive immunity at the time.

What we're maintaining is that the corporation contracted to a certain consequences as a result of the failure of the third party if you will, to accomplish any particular or to furnish particular information.

Now, what I want to point out at this point --

Justice Hugo L. Black: The point was to make a certain person lose his privilege not to be a witness against himself under the Federal Government's Fifth Amendment.

Mr. Paul W. Hessel: That's so far as the individual is concern.

Justice Hugo L. Black: Pardon?

Somebody.

Mr. Paul W. Hessel: Yes.

Justice Hugo L. Black: That's the basis to get around on the Fifth Amendment.

Mr. Paul W. Hessel: That's right.

That's right.

But the purpose of it was just as the purpose was in the public employees' cases to furnish information.

Now, in addition to that condition in this context --

Justice Abe Fortas: Well, that isn't quite right.

It isn't quite the same thing though.

That's what -- a bothersome fact.

What is required to do here is to waive the protection of the Fifth Amendment --

Mr. Paul W. Hessel: That's right.

Justice Abe Fortas: That is perfectly possible to grant immunity to ask the questions and to get answers to the questions.

So what is happening here is that the individual or the corporation is given the opportunity to contract with the state only if the individual agrees to answer questions without the benefit of the Fifth Amendment.

And that's not a question -- it's not a matter of whether the state can or cannot get answer to its questions because the state can get answer to its questions by grant of immunity consistently with the Fifth Amendment.

Isn't that so?

Mr. Paul W. Hessel: Yes, I would say that by granting the community under Section 2447, to an individual, the state can get answers to his questions.

But we have here an administrative agency which is interested solely in the qualifications of its contract.

It's up to the District Attorney or the grand jury who are concerned with punishment to grant or not to grant immunity under the statute of New York.

Now, if they're conducting a criminal investigation in which they do not find it desirable to grant immunity.

What does the administrative agency to do?

To continue to do business with a corporation which is perhaps under investigation at that time in which they know that some question should be answered and those questions would be available if the corporation carried out by its officers, its contractual duty to furnish that information.

Now it's to the statement here that that information would not be available before it's a grand jury.There's absolutely no basis for that at all.

I don't think I'll take the time of the Court because it's fully briefed in my brief.

Justice Thurgood Marshall: Mr. Hessel, suppose this man who signed the contract, the young man?

Mr. Paul W. Hessel: Yes sir.

Justice Thurgood Marshall: Suppose in the meantime, he'd been arrested and convicted of rigging bids, fraud, etcetera in regard to another corporation.

Could you cancel the contract here?

Mr. Paul W. Hessel: In regard to another corporation completely unrelated.

Justice Thurgood Marshall: Oh!

But the same president.

Mr. Paul W. Hessel: The same president but an unrelated corporation.

Justice Thurgood Marshall: Right.

Mr. Paul W. Hessel: No interlocking directorship of any of that kind.

Justice Thurgood Marshall: No.

Mr. Paul W. Hessel: I would say under New York law that possibly, we would not cancel the existing contract because a property right was involved there.

But as the future disqualification, the New York clause has so held that in fact, even if there were only an indictment and not a conviction at that time.

Justice Thurgood Marshall: We have talking about canceling this one.

Mr. Paul W. Hessel: You mean cancellation of the contract?

Justice Thurgood Marshall: Yes sir.

Mr. Paul W. Hessel: Yes.

Justice Thurgood Marshall: You couldn't do it, right?

Mr. Paul W. Hessel: There our property right would be involved and I would say --

Justice Thurgood Marshall: So you're really not interested in the people in dealing with good, clean people are you, because he had been doing business with a convicted criminal?

Mr. Paul W. Hessel: Well, Your Honor, we've called and made a distinction between cancellation of a particular contract which is a property right and disqualification for bidding on future contract.

Now, I want to make the point --

Justice Thurgood Marshall: Well, could you just qualify him for the future?

Mr. Paul W. Hessel: Yes, Your Honor.

I would say we would.

Justice Thurgood Marshall: You mean that this man had been convicted and it subsequently resigned?

I would assume he would resign that that you would disqualify in the coming five years?

Mr. Paul W. Hessel: Well, under this statute, there is relief from that by judicial intervention and that is one of the points that I wanted to get to.

Justice Thurgood Marshall: But before you get to judicial intervention at least so far as I'm concerned you have to get to a little due process hearing.

Mr. Paul W. Hessel: Well, that's exactly what is provided for in the statute and I'll come into that.

There is now a -- since a question of hearing has been raised, here is another point of distinction between this and the public authorities and the public employees cases.

While my colleague with the corporation counsel's office has taken the position that a hearing is read into Section 1123 and that may very well be so.

It does not appear on the face of that statute.

The Public Authorities Law on the other hand, expressly provides for a judicial hearing on the very issue that has been raised here.

Now the issue that has been raised -- that was raised throughout the record in the courts below was not a constitutional issue at all.

You won't find any constitutional issue in the record of this case.

It was only raised on appeal in the Court of Appeals.

The issue that was raised was solely a question of interpretation of the statute of Section 2601 and that is as to whether an officer who have resigned just before being called before the grand jury was still to be considered or deemed to be an officer for the purpose of that section.

Now, the Court of Appeals so decided and I respectfully submit that decision is binding upon this Court.

The Court of Appeals did not negate the fact that this young man had resigned just before he was called before the grand jury but the Court of Appeals did say that in view of these particular circumstances and in view of the nature of this statute, in view of the nature of the requirement that he shall be deemed to be an officer enacting in his capacity at that time he was subpoenaed before the grand jury.

Moreover, the Court of Appeals further said that there may be times when the statute will operate to penalize a corporation which have actually served at its connection with the recalcitrant officers and which has otherwise been cooperative.

This is precisely the circumstances my opponent was talking about.

The Court of Appeals went on to say the legislature has, however, recognize this problem and has specified a procedure by which the disqualification can be removed under such circumstances.

Now, here is not only an administrative hearing, it's a plenary judicial hearing which this corporation had available to him in addition to which this Section 2603 which I have just read from, provides that such in cooperation can go into the Court, the Supreme Court and get a stay against any harm to it whatsoever including a stay against cancellation of this very contract.

Now, that in my opinion is full judicial due process under the Fourteenth Amendment and it has been so held by this Court in a number of cases which we cite.

Now, some more of the distinctive provisions between -- the distinctions between this and the public employee cases are as follows and I think this is to touch upon some of the questions.

Here, we have a claim of violation of Fifth Amendment rights of somebody who is not even here in Court.

George Campbell, Jr. is not a party to this preceding only the corporation is.

If George Campbell, Jr. had been a party to this proceeding and he had come in and claimed this compulsive waiver was costly to me because, one, I myself was the contractor who is disqualified.

That is an issue that might have to be decided in line with the public employees' cases.Or even if he had said, I am the principal officer stockholder of this corporation and while not directly, indirectly.

You are making it costly to me to exercise my Fifth Amendment right and therefore it's unconstitutional for you to do so, that's another situation.

But that is not the situation before this Court and I respectfully point out to this Court that I think you will shortly have that situation before you in a case that is now pending.

And that's the case of Holland against Hogan which I sat and listened to in the three-judge court down in New York and which I believe is now before this Court the decision.

And there, I believe there is a situation of an officer and a stockholder of milk companies as I believe it is Mr. Hirshowitz, would you going to be in that case, who are claiming that very violation I am talking about.

Here, we have no such situation.

Now, it's a peculiar circumstance in this case that this contract to which they subscribe, not only contain the one condition that its officers must waive immunity and find the information as to other contracts had with state agencies.

It contained another condition that in my opinion was even more open to complaint that they complain about it but it was nevertheless valid and that is that at the time the contract was signed, the corporation by its principal officers must sign a non-collusive affidavit.

I believe that type of affidavit is required in federal contracts.

There, they must swear that they have not been entering into this contract colluded with any other person, firm or corporation to rig the bid and so on and so on.

Now, there is a condition which requires a statement of something that might have been a crime.

In fact, that statement turn out to be a crime because as the record here shows, Mr. George Campbell, Jr. and the corporation were both indicted for perjury for falsifying that non-collusive affidavit and while this case was pending and coming to the course to this Court, both the corporation and Mr. George Campbell, Jr. pleaded guilty to an indictment of bid rigging which was a separate indictment which included this perjury count in a non-collusive affidavit.

Chief Justice Earl Warren: He pleaded guilty of saying it?

Mr. Paul W. Hessel: I beg your pardon.

Chief Justice Earl Warren: You say they plead guilty?

Did you say they plead guilty?

Mr. Paul W. Hessel: Yes.

They pleaded guilty.

Pleaded guilty and we have attached to our brief because it came up only after the matter was pending on this Court.

We have attached to the appendix in our brief a certified copy of the plea of guilty from the county clerk accountant.

Now if ever there was demonstrated in this Court, the validity, the rationality, the reasonableness of these very conditions in these public contracts that are now before this Court, I don't see how there could have been better demonstration of it.

Now, this Court has said and I have cited, I think was the Hoffman case that a public agency has as much a right to attached conditions to its contract as any private contractor and this Court has said so in very broad terms.

Now, of course to every such expression that must be attached to proviso of reasonableness.

Of course I would concede that neither on a public contract nor a private contract can you make it a condition that the contract though must go out and discriminate or shoot people or commit some crime, of course not.

But a reasonable condition such as I have described that swear to the fact that you have not colluded with anybody else in bidding upon this contract to agree that in the future you will be frank and open if called before --

Justice Abe Fortas: But that's not quite it.

Here, you have the waiver problem.

An officer -- you've got two things and they're may be very different.

One is the -- penalizing the corporation for the refusal of its officer to sign a waiver and the other is penalizing a corporation for the refusal of its officer to reply to questions within the -- which are relevant to the contract and to the obligations assumed.

Now, I notice that in your argument, you run those two things together but when you look at it from the point of view of the Federal Constitution.

Is there not a difference between forgetting your separate point about the corporation's right to claim this?

Is there not a difference between compelling a person to sign a waiver of his right -- of his Fifth Amendment rights on one hand and on the other hand, compelling a person to reply to questions as to whether he as well and faithfully discharged his obligations with respect to a public contract?

Mr. Paul W. Hessel: Alright, let me answer that.

Section 2601 talks about both.

It says that the corporation or any person who've been called before in a grand jury --

Justice William J. Brennan: Where is that 2601?

Mr. Paul W. Hessel: Here it is sir.

A clause to be cited on all contracts provided upon refusal of a person called to appear in a grand jury to testify concerning any transaction or to sign a waiver against subsequent criminal prosecution or to answer any relevant question concerning such transaction or contract.

And then in that even, the contract can be cancelled and he may -- and the corporation maybe disqualified.

Now, I think as I've said before you.

It's up to the District Attorney or the grand jury to decide whether their criminal prosecution in the public interest is more -- they are more concerned with that than they are concerned with getting administrative information.

It's up to the administrative agency which has to spend the state's funds to be concerned with the question of getting answers.

Now, if the District Attorney of the grand jury under the statute decides that they will not grant immunity.

They will not permit any person under investigation to testify without a waiver then the administrative agency is in the position where it cannot get the answers to the question that it should have.

Justice Abe Fortas: Well, that's too bad.

Maybe you don't have another statute if that runs a file of the Federal Constitution but that doesn't answer the federal constitutional question.

As I read the statute, it relates to a person who is called before a grand jury (a) to testify or (b) to sign a waiver of immunity or (c) to answer any relevant question.

And if he refuses to do anyone of those things, he -- then the consequence as follow that corporation's contract is terminated and he is blacklisted.

Now, in the present case, we have a situation which this man is called before the grand jury to testify as to sign a waiver of immunity.

In other words, as to sign a waiver of his rights under the Federal Constitution Fifth Amendment rights and he refuses to do so and therefore release the consequences attached.

Now, it is possible that that presents a different question under the Federal Constitution regardless of practical consequences.

That would be preserved if he had declined to answer a question.

Mr. Paul W. Hessel: If granted immunity.

Justice Abe Fortas: He was granted immunity --

Mr. Paul W. Hessel: All without signing a waiver.

Justice Abe Fortas: Suppose he had been granted immunity and suppose he'd been asked a question about this whether you bribed somebody in connection with obtaining this painting contract and he declined to answer that question and then the housing authority went ahead and blacklist him.

That might be quite a different question viewed in the light of the Federal Constitution.

Mr. Paul W. Hessel: Well, I just say an answer to that Your Honor that in public employee cases like Beilan, Lerner, Casey all off against Welleby that the waiver, the failure to waive immunity or to answer questions was equated either as whether as with incompetency, insubordination or various other violations of local statute.

Justice Potter Stewart: A federal employee is or at least maybe for many purposes is different as was pointed out in the case of Spevack against Klein both by in the footnote in the Court's opinion and also in a concurring opinion that when you're dealing and as you were in that case with a lawyer who is not a public employee, different consideration -- different constitutional considerations may be applicable from those that apply between an employer and an employee when the employer is the state and when the employee is an officer of the government.

You began in this case by saying that if the previous case were decided in favor of the respondent a fortiori would control your case but not conversely and that it occurred to me at the time that in so far as your case does not involve a public employee, your adversary might have more rights and I'm thinking of the language in Spevack against Klein.

Mr. Paul W. Hessel: Well, Your Honor, with respect to that, I should respectfully like to refer you to the opinion of Judge Kennedy which was confirmed -- affirmed by the Second Circuit Court of Appeals which I think was eloquent and quite exhausting and pointed out that a public contractor should by far more firmly be in a position to be subjected to the requirement of candor and practice even then a public employee because a public employee can be selected by the state on the basis of qualifications which were examined long beforehand.

They can be rejected by the state for lack of qualifications of various kinds.

A public contractor on the other hand aptly is forced upon a public agency simply through the bidding process and therefore, as the public contractor bidding for a lucrative contract in competition with others in his position who are willing to subscribe to these provisions, he certainly should have no less than obligation than a public employee.

In fact, the very words of these sections of the Public Authorities Law arose from the very type of grand jury investigations that were involved here and you'll find in my brief a reference to the birth of the statute through the governor's message who approved it and signed it and I think the Attorney General has a reference to the Attorney General's recommendation that the statute be adopted because a grand jury was frustrated in its investigation of public contracts because they were blocked by the refusal of public contractors to testify before a grand jury either to waive immunity or to testify.

And I say because this is a public purpose, a vital public purpose, important public purpose.

The condition that was created here is one that is in all respect, it should be held valid by this Court to whether or not the public employee situation is decided by this Court in accordance with the question that was left open to Spevack against Klein.

Justice Abe Fortas: Well the only -- all of these disqualification statutes relate only to appearances before the grand jury, is that right?

Mr. Paul W. Hessel: In this case?

Justice Abe Fortas: Yes.

Mr. Paul W. Hessel: Yes, Your Honor, specifically towards --

Justice Abe Fortas: And none of them for example relates to any proceeding for the sole purpose of determining the eligibility of a public contractor.

Mr. Paul W. Hessel: No.

Justice Abe Fortas: So they're all -- and your brother spoke before you said that New York -- the grand jury always -- the grand jury can exercise its powers only in connection with its investigation of alleged criminal violations, is that correct?

Mr. Paul W. Hessel: No sir, it is not.

Unfortunately, my friend is quite wrong in that.

He has cited in his brief a case of Wood against Hughes I think as the Court of Appeals decided in 1961 which upset to the dismay of the Attorney General and in fact, every law enforcement agency in the state, upset the century and a half old practice of grand jury presentments on the ground that there was no statutory authority for it.

That is the Court of Appeals held that because the statute that authorized the grand jury to make investigations only authorized criminal investigations and therefore, they could not make presentments as to civil or fraud or corruption or anything else as to which no indictments resulted.That was in 1961.

In 1960, just about three or four years thereafter, that case was overruled by a specific act of the legislature and you will find in my brief the government's message on that Act which refer to that case and said that it was unfortunate the Court of Appeals so held but we are now presenting a statute and adopting a statute which expressly authorized the very type of presentment they had theretofore without statutory authorization or something and that is the present situation today.

In fact, the Court of Appeals decision here, now here before you in the Gardner case points out that it was before the grand jury that the information that the public had a right to know and it was not given by Gardner.

Now the Court of Appeals said that obviously must mean that the public would have a right to know whatever information Gardner would have given.

Had he testified under the waiver that it was then required.

There is no question any longer Your Honor that under New York law today, any information brought before the grand jury can upon order of the Court or other appropriate procedure be brought out.

In fact, as I said before the very birth of the statute arose from the grand jury presentment.

Justice Abe Fortas: That doesn't make to what the other counsel said.

He said that there has to be a criminal investigation focused to a grand jury investigation.

Mr. Paul W. Hessel: I don't agree with that.

Justice Abe Fortas: And cannot be called merely for an investigatory purpose.

Mr. Paul W. Hessel: In fact, the very statute --

Justice Abe Fortas: And you say that is --

Mr. Paul W. Hessel: I say that is not true.

Justice Abe Fortas: Alright, I don't want to take anymore --

Mr. Paul W. Hessel: In fact, the very statute that he set forth in his appendix as a provision that states that the grand jury can make what in effect was called presentments as to corruption, fraud and various other things and this may be made public by order of the Court.

Thank you.

Chief Justice Earl Warren: Mr. Blinder -- do you have another -- there is another counsel here.

Yes.

Mr. Hirshowitz.

Argument of Samuel A. Hirshowitz

Mr. Samuel A. Hirshowitz: Mr. Chief Justice and may it please the Court.

The points that I intend to make the duty of the public contractor to furnish information as to the securing and the execution of public contracts which is even more than but at least equal to to that of a public employee discussed in the previous case.

Secondly, the expressed waiver of the Fifth Amendment privilege and the contract executed pursuant to the statute and the lack of ability of the appellant corporation to challenge the requirement for a limited waiver of immunity of its officers which it undertook in the contract to deliver to the state before Spevack and Garrity this Court and the cases mentioned (Inaudible) and Nelson in various areas upheld the duty of candor, the obligation of public employees to respond to calls for information.

These cases followed chronologically Slochower case where the Court appears to have made the type of inquiry and important factor and applied that if the petitioner there had invoked the privilege at an inquiry relevant to the performance of his duties, the outcome would have been different.

Somebody expressions in the dissenting opinion by various justices of this Court in Lenoir and Nelson indicated to emphasis upon the type of inquiry involved in the particular case.

The Attorney General upon the phases of a study of the cases that I've referred to, recommended the legislation that is under consideration by this Court and then the governor and the memorandum, speaking of the urgent need for the legislation approved it and the governor's memorandum is quoted in our brief.

It cannot be plausibly disputed that the inquiry whose subject is collusion of public contractors and bidding practice involved in the present case just as is the inquiry as to the police officers' performance of his duties involved in the Gardner case is relevant.

The claim of privilege of the police officers in the previous case and an investigation of the official duties of such officer is incompatible with the duties and responsibilities of such officers.

Such incompatibility is antagonistic to a rational system of law enforcement and dismissal for lack of candor in such circumstances is a proper exercise that I submit of the state's police power.

As a consequence, every state case to which we have been referred has upheld a dismissal of such public officers before and after the Malloy case and the Griffin case predicated upon the paramount right of the people to protection against law violation.

As a matter of fact, the District of Columbia Court contains a provision which is similar to the statute under consideration here and has an additional paragraph which refers to former officers and says if they refuse to testify then that action rights can be abrogated.

And the uniform rules of evidence Rule 25, prepared by the uniform commissioners, is in line with this expression as to both public employees and public contractors.

The appellant in its briefs has not disputed the importance of the objectives sought to be achieved by the state's disclosure requirement.

The need for self-disclosure as a means of achieving the objective since proof of collusive bidding is normally solely within the knowledge of the participants or the responsibility of the public contractor to account to the state for his actions in obtaining and performing state contracts.

And in this case here in the --

Justice William J. Brennan: May I ask you.

Mr. Samuel A. Hirshowitz: Yes sir.

Justice William J. Brennan: If this young man had signed the waiver and had testified and had revealed the evidence upon which some criminal violation might be charged as against him personally, do you think he would have had the benefit of Garrity?

I gather in the police case --

Mr. Samuel A. Hirshowitz: Yes.

Justice William J. Brennan: -- as I understood Mr. (Inaudible).

He said that if he had signed the waiver and talk, nothing he said which was incriminating.

It could have been the basis of a criminal prosecution.

Mr. Samuel A. Hirshowitz: Nothing he said could have been --

Justice William J. Brennan: And he is -- would that be so here too?

Mr. Samuel A. Hirshowitz: Yes sir, Your Honor.

Justice William J. Brennan: Now, is this because you think Garrity requires that answer?

Mr. Samuel A. Hirshowitz: No.

It was preceded by -- yes, it would be under Garrity of which -- yes.

Justice William J. Brennan: Yes.

Mr. Samuel A. Hirshowitz: But of course --

Justice Byron R. White: Because there was some compulsion only to talk.

Mr. Samuel A. Hirshowitz: Yes.

And in the Garrity case, this Court held as I read it that there is compulsion in a public employee and that case also, police officer had consequently, couldn't be prosecuted on the basis of that evidence.

Justice William J. Brennan: And you say even though this young man is not a public employee, the same application in Garrity you think would be required.

Mr. Samuel A. Hirshowitz: Yes, Mr. Justice Brennan.

Justice William J. Brennan: Yes.

Mr. Samuel A. Hirshowitz: Of course, if he were in view on some of the questions of the Court that he were asked to sign a waiver and refuse and then what was brought and requested to answer questions and was directed to answer the questions.

If he refused, he would under New York law receive the counsel type of immunity, he couldn't be prosecuted for that crime, where as if he signed the waiver under the Garrity case, as I read it, he can be prosecuted not on the basis of the evidence that he gave or the fruits thereof but on the basis of independent evidence.

And the efficacy of such a waiver which has been discussed earlier in the course of the two cases is that in this very painting conspiracy situation involving the public housing, some of the painting contractors did waive immunity and did testify as a result of which you had convictions after trials in New York County and as you hire Mr. Campbell, the alleged paper president of the corporation and the corporation itself pleaded guilty to conspiracy in his bid rigging and that was because the efficacy of obtaining testimony as a result to the statute that sound the consideration in.

Justice William J. Brennan: Wait a minute.

I apologize.

You mean the word conviction is based on what some of this --

Mr. Samuel A. Hirshowitz: No.

Some of the painting contractors in line with Mr. Justice Brennan with what we just said.

Some of the painting contractors when called before the grand jury --

Justice William J. Brennan: Testify.

Mr. Samuel A. Hirshowitz: Did testify.

Justice William J. Brennan: They waive, the sign the waiver and they testified.

Mr. Samuel A. Hirshowitz: Yes.

Justice William J. Brennan: Now, were they prosecuted?

Mr. Samuel A. Hirshowitz: They were not prosecuted but that testimony was used --

Justice William J. Brennan: Used against Campbell --

Mr. Samuel A. Hirshowitz: Right.

And of course they -- and I say this.

They testify that as I understand that in the bidding practices, bids were selected by roads and it was agreed that advances though would be the low bidder.

As my associate here pointed out to the Court, every such public contractor as the appellant executes an affidavit of non-collusive practices before obtaining the contract.

Thus, apart from the statute of being -- apart from the statute that's under consideration by this Court, we maintain that its officers were under a duty to furnish the appropriate information to the state or its investigating agencies when called upon.

The statute did not create such a duty.

It provided that when the refusal to furnish the information as to the securing and performance of contracts -- public contracts as before a grand jury, the contractor would be disqualified for five years and it is this disqualification not the cancellation Justice Marshall, it's the disqualification that's under consideration in this case and not the cancellation as I understand.

The five years is the same period of disqualification which was involved in the case of a public officer under Article I Section 6 of the State Constitution, and in drafting the statute, we and the Attorney General's office used the Article I Section 6 as a prototype on what to put in to the proposed legislation.

The conference of the legislature that the grand jury would not act capriciously in calling upon public contractors or their officers to furnish such relevant information is the reason why the particular section provides for waiver of immunity before the grand jury.

The grand jury is the young, the people of the State of New York.

It has fads or fantasies and it has no leanings in any direction.

And as a protection to the public contractor, the statute provides that only in the case of refusal to waive immunity before the grand jury, may the contractor be disqualified.

Appellants rely upon Garrity and Spevack.

And they maintain that regardless of the above considerations, this Court has already determined that the objective cannot be constitutionally achieved and that state and its subdivisions must by force or continue to pay from the public treasury corporate contractors whose officers refuse to disclose facts relating to the securing and execution of the public contracts.

The New York Court of Appeals in Gardner and in the present case and the three-judge court in a case that has to follow here, the Sanitation Employees case has read Garrity and Spevack as not affecting the state's responsibilities to secure necessary and relevant information from public employees and public contractors.

Even before Spevack, some state courts Justice Fortas in Florida and Illinois simply differentiated the attorney from the public employee.

I'm referring to two cases Shiner against the State in Florida 82 Southern Second 57 and In re Harlan in Illinois, 36 Northeast and Second 545, they contrasted the general duty of an attorney to aid in investigating with the specific duty of public employees in that case such as police officers to furnish information and in the Spevack case, the disbarment of the attorney of course puts him out of business besides the reputation -- detriment to his reputation.

The public contractors involved here simply lose its part of his public business.

Here, the appellant said in its petition and repeated on in his argument that he lost 15% of his business by a reason of the disqualification.

The Garrity case too does not appear to be helpful to the appellant as the New York Court of Appeals pointed out the person executing to limited labor immunity nevertheless obtains constitutional immunity.

Thus, if the officer here had executed to waiver as I said before, he could not be prosecuted upon the evidence secured by his testimony or by any fruits.

Such immunity is coextensive with the waiver of the privilege.

Appellant recognizing in its reply brief and then an exchange for immunity for such prosecution, the witness would be under the duty to testify, contends that the state was required to offer the witness more complete the immunity for many criminal prosecution even derive from testimony unrelated to any evidence given by the witness or leads obtained thereby.

Thus, the issue oppose by the appellant is a very narrow one as opposed the witness would be required to testify despite disadvantages.

The only dispute presented by the reply brief is whether Garrity means that the witness thereby obtains complete immunity under the Counselman case or the limited immunity exemplified by the Murphy case and held by the New York Court of Appeals in (Inaudible) and in Leno.

I see nothing in the reply brief which contends that in addition to this promise of immunity of one category or another, immunity must also be given from other sanctions such as the disqualification from a contract.

The disqualification imposed here is imposed in a manner consistent with the requirements of due process, the contract and those by statute and by contract that testimony of officers maybe required.

The question of whether or not disqualification is or would be justified may be raised by the contractor as the New York Court of Appeals pointed out in the specific statutory provisions which are adversary read.

Appellant in his reply brief acknowledges this and states that it has deliberately refused to avail itself of this proceeding.

Thus, this case is distinguishable also from Spevack because the contractor here has an opportunity to be heard on the reasons for the refusal to testify and in this very case had the corporation presented to the Court in a proceeding under the Section to which I have referred the fact that this was a former officer and that he had resigned in good faith if these were the case that he had no longer had any interest in the corporation.

If this were the case that he was not in league with the other officers of the corporation of this very case, I'm sure that the court acting under that section would have eliminated the disqualification but the appellant was in no position to do that because the only office who refuse to waive immunity, signed a limited waiver of immunity was George Campbell, the president and as you heard, he was the one who's subsequently was convicted of pleaded guilty to a conspiracy for bid rigging so he knew in advance and I'm sure the corporation knew because it also pleaded guilty that this was one officer who could not testify because he had information in his possession.

Furthermore --

Chief Justice Earl Warren: Well, I think we will have to take the rest of your argument from your brief, Mr. Hirshowitz.

Mr. Blinder.

Rebuttal of Albert A. Blinder

Mr. Albert A. Blinder: Mr. Chief Justice and may it please the Court.

I just have one or two rebuttal arguments which I will try to confine in just a few moments.

Number one, with respect to the irrelevancy of the corporation having pleaded guilty to one count of a misdemeanor, may I just say this.

The plea of guilty that was offered by the corporation appellant here was to one count in a multi-count indictment that was offered prior to the commencement of a mass conspiracy trial that lasted over three months.

The District Attorney recommended the acceptance of the one misdemeanor count.

In fact, this was a business decision.

It would have cost the corporation far more money to a defendant on this situation and then there's the maximum penalty on the misdemeanor that it pleaded guilty to.

It did not plead guilty to all of the other things which my learned friends over here mentioned.

I say this is an irrelevancy because under the New York State Law the fact that a corporation may have pleaded guilty does not result in automatic disqualification and certainly not for a five year period.

The only way this occurs is if someone refuses to waive immunity or refuses to -- or asserts his privilege against self incrimination and I believe that that's the very crux of the argument.

Now, as Mr. Justice Fortas inquired before, may I just refer to the learned Court to pages 25 and 26 of our appellant's brief which contains the New York State statutes and from Section 2(a) of Section 253(a), it is obvious that the grand jury's power derives only from the right to investigate criminal conduct and then if in addition to its investigation of criminal conduct, it finds non-criminal conduct.

It may make a report which is still subject to certain other conditions and the other conditions involve the preponderance of credible and legally admissible evidence and also, it gives the officer an opportunity to reply before this report can be made public.

In addition to which, the report itself is limited to reporting on public officers and public employees.

Now, while this is a contractor which may have in one or two aspects be doing certain work for a public agency, certainly, none of the officers or employees of this corporation would deem to be public officers or -- or public employees and under the New York State decision on the subject, I don't even believe under this Section that a report can be handed up except to recommend the changes in the law but it cannot bring to the attention of an administrative agency the misconduct of a public contractor.

It is wholly without the scope of the grand jury.

Now, with respect to standing, I believe that the Attorney General in his brief, attempted to say that this was a situation which was not covered by the Pierce or by the Joint Anti-Facist Refugee Committee case.

I believe, however, that in an analysis of this, it would have to be an inescapable conclusion that this corporation just as the corporation in Pierce was entitled to raise the issue as to whether its business or property were taken away without due process of law.

In addition to which and this was mentioned by learned friend, Mr. Hessel.

In Holland against Hogan case which is number 653 in the October term and which is a petition for certiorari, the Attorney General argued exactly the converse of this situation.

In that case, the individuals are applying for certiorari here and he has argued that it's the corporation that was disqualified and therefore the individuals have no standing, the corporation must bring the suit.

Now, I submit the Attorney General of the State of New York cannot have it both ways either we have standing here or in the Holland against Hogan case there is standing and under the circumstances since we're dealing with exactly the same statute, may I state that this Court should pass upon the constitutionality of the statute which I believe deprives the corporation not only of due process but its individual officers of the guarantees of the Fifth Amendment.

Thank you.

Chief Justice Earl Warren: We'll recess now.

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