# Levine v. United States (362 U.S. 610)/Dissent Black

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* Opinion of the Court
* Dissenting Opinions Black Brennan
Mr. Justice BLACK, whom The Chief Justice and Mr. Justice DOUGLAS join, dissenting.
The Court here upholds the petitioner's conviction and imprisonment for contempt of court in refusing to answer grand jury questions, although admitting that 'the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom, in what began and was continued as 'a Grand Jury proceeding." Stated not quite so euphemistically the Court is simply saying that this petitioner was summarily convicted and sentenced to a one-year prison term after a 'trial' from which the public was excluded-a governmental trial technique that liberty-loving people have with great reason feared and hated in all ages.
This Court condemned such secret 'trials' 12 years ago in the case of In re Oliver, 333 U.S. 257, 68 SCt. 499, 92 L.Ed. 682. There Oliver had been convicted by a Michigan state court and sentenced to jail for 60 days on a charge of contempt based on his refusal to answer questions propounded by a one-man grand jury. Since the public had been excluded from Oliver's 'trial' we were squarely faced with this precise question: 'Can an accused be tried and convicted for contempt of court in grand jury secrecy?' Id., 333 U.S. at pages 265-266, 68 S.Ct. at page 504. Our answer was an emphatic 'No,' although Mr. Justice Frankfurter and Mr. Justice Jackson dissented. We held that Michigan had denied Oliver due process of law guaranteed by the Fourteenth Amendment by convicting him of contempt in a trial from which the public was excluded. In the course of our decision we said this:
'Counsel have not cited and we have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. Summary trials for alleged misconduct called contempt of court have not been regarded as an exception to this universal rule against secret trials, unless some other Michigan one-man grand jury case may represent such an exception.' Id., 333 U.S. 266, 68 S.Ct. 504.
It seems apparent, therefore, that the Court in upholding petitioner's sentence for contempt here is not only repudiating our Oliver decision in whole or in part but is at the same time approving a secret trial procedure which apologists for the Star Chamber have always been careful to deny even that unlimited and unlamented court ever used. The Court holds that petitioner's secret trial here violated neither the Due Process Clause of the Fifth Amendment nor the Sixth Amendment's guarantee that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * *.' Certainly the one-year prison sentence for criminal contempt here, like the three-year criminal contempt sentence in Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672, has all the earmarks and the consequences of a plain, ordinary criminal prosecution. Id., 356 U.S. 193, 78 S.Ct. 648 (dissenting opinion).
In the Green case I asked for a reappraisal of the whole doctrine of summary contempt trials. I repeat that 'I cannot help but believe that this arbitrary power to punish by summary process, as now used, is utterly irreconcilable with first principles underlying our Constitution and the system of government it created * * *.' Green v. United States, supra, 356 U.S. at page 208, 78 S.Ct. at page 656. This case illustrates once more the dangers of such trials and the fact that it is nothing but a fiction to say that by labeling a prosecution as one for 'contempt' it is changed from that which it actually is-a criminal prosecution for criminal punishment-a procedure which is being used more and more each year as a substitute for trials with Bill of Rights safeguards. The length to which the Court is going in this case-depriving petitioner of the specific public trial safeguard of the Sixth Amendment and holding that he has no more than whatever measure of protection the Court chooses to give him under its flexible interpretation of the Due Process Clause of the Fifth Amendment-is shown by its express declaration that the Sixth Amendment's guarantee of a public trial for those charged with a crime provides no protection at all if the crime charged is labeled 'contempt.' And the Court cites no case holding that the public trial provision of that Amendment does not apply to criminal contempt proceedings.
I wholly reject the idea that the presence of any power so awesome and arbitrary as 'criminal contempt' has grown to be, as nourished by courts, is essential to preserve the independence of the judiciary and I am constrained to say that such a plea of necessity has a strange sound when voiced by our independent judiciary dedicated to fair trials in accordance with ancient safeguards. It is pertinent here to repeat the statement of one of our great lawyers, Edward Livingston, who said: "Not one of the oppressive prerogatives of which the crown has been successively stripped, in England, but was in its day, defended on the plea of necessity. Not one of the attempts to destroy them, but was deemed a hazardous innovation." Green v. United States, supra, 356 U.S. at page 214, 78 S.Ct. at page 659.
In the closing part of its opinion the Court indicates that its decision rests to some extent upon a failure of petitioner to make the proper kind of objection to the secrecy of his trial. His objection is referred to as 'an abstract claim (raised) only as an afterthought on appeal.' The Court thinks that the trial judge was not given 'an opportunity to avoid reliance on (the claim now made).' The record shows, however, that on the two occasions petitioner was brought before the court, he requested a trial according to due process, notice and specification of the charges against him, an opportunity to prepare his defenses, an adjournment to obtain compulsory process and subpoena witnesses as well as, in general, proceedings under Rule 42(b), which undoubtedly calls for a public trial. Petitioner's objection seems sufficient to me to raise the extremely important point of his constitutional right to a public trial.
Despite the Court's decision that petitioner's repeated claims for constitutional procedures were not enough to raise the constitutionality of his secret 'trial,' there is an intimation in the Court's opinion that maybe at some future time, in some future contempt conviction, the Court would frown upon exclusion of the public from some part of a contempt trial such as this. Here it is said, however, 'The proceedings properly began out of the public's presence and one stage of them flowed naturally into the next. There was no obvious point at which, in light of the presence of counsel, it can be said that the onus was imperatively upon the trial judge to interrupt the course of proceedings upon his own motion and establish a conventional public trial.' The theory of the Court here seems to be that since grand jury hearings in the grand jury room are secret, the grand jury's proceedings in court against allegedly recalcitrant witnesses may also be in secret. But surely this cannot be. The grand jury has to report to the judge to invoke his assistance and it did so in this case, bringing Levine along. The grand jury then preferred charges against him to the court. To say that grand jury secrecy extends into the courtroom is wholly to ignore the difference between secrecy of grand jury deliberations and votes, and secrecy of a trial for contempt. Not only are the grand jury deliberations supposed to be free from the intrusions of others, but the idea of a grand jury is one of an independent body, which even the judge shall not be allowed to interfere with or control. See, e.g., Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252. The grand jury did not enter the courtroom to deliberate or to vote; it went there and took the petitioner there in order to ask the court to compel him to testify under penalty of contempt. At that moment the grand jury deliberations were temporarily ended and a court proceeding against petitioner began. It was then that there arose petitioner's constitutional right to be free from secret procedures gravely jeopardizing his liberty or property. The judge has no more right or power under the law to intrude on the secret deliberations of a grand jury than anyone else. Grand juries, as this Court has said, "* * * are not appointed for the prosecutor or for the court; they are appointed for the government and for the people * * *." Hale v. Henkel, 201 U.S. 43, 61, 26 S.Ct. 370, 373, 50 L.Ed. 652. See also Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. When the grand jury came into the courtroom with the petitioner it was to get immediate action against the petitioner under its charges, which the Court now holds the judge was entitled to try summarily and secretly without further notice. This was the kind of trial from which the public should not be excluded if we are to follow constitutional commands. In fact, I believe, as I said in Green v. United States, supra, that at the very least a man whose liberty may be taken away for a period of months or years as punishment, is entitled to a full-fledged, constitutional, Bill of Rights trial.
The Court seems to conclude its holding by invoking the doctrine of error without injury. In my judgment it is scant respect for the constitutional command that trials be had in public to look at the circumstances of the trial and conviction of a man tried in secret and approve the trial on the ground that 'anyhow he wasn't hurt.' I think every man is hurt when any defendant in America is convicted and sent to the penitentiary after a secret 'trial' which is condemned by the Constitution's requirement of public trials as well as its command that all trials be conducted according to due process of law.

## Notes

1 I omit the word 'life' from the usual phrase 'life, liberty or property' because the courts have not yet said that their vast power to punish for contempt extends to taking the life of the convicted defendant.
2 It is to be borne in mind that petitioner is not to be put in jail with the keys in his pocket, so that he would be released immediately upon complying with the court's valid order, see Brown v. United States, 359 U.S. 41, 55, 79 S.Ct. 539, 549, 3 L.Ed.2d 609 (dissenting opinion), but is being punished by a year's imprisonment for a past and completed offense. See, id., 359 U.S. 53, 79 S.Ct. 548; Green v. United States, supra, 356 U.S. at page 197, 78 S.Ct. at page 650.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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