Earl Warren: Number 175, Talmadge Raley, Joseph Stern, Emmett Calvin Brown versus State of Ohio. Mr. Hover, you may proceed with your argument.
C. Watson Hover: Mr. Chief Justice, and the Court. At adjournment yesterday, there was some definite uncertainty and possibly even some confusion even if that were confined solely to counsel, on the suggestion that the witnesses, the defendants in this case, the Talmadge Raley and Brown case. At some however, other been deceived or entrapped into committing the offenses with which they were subsequently indicted. That, the -- the basis for that suggestion is in the dissenting opinion of one of the judges of the original consideration of the case in the Ohio Supreme Court. In that judge's own words, the suggestion, or the basis from which this suggestion is made is as follows.
Speaker: What page?
C. Watson Hover: I'm reading from page 236 of the record, Mr. Justice Harlan, towards the bottom of the page, the second last paragraph. “Commission was composed in part of able and experienced lawyers and the hired special counsel and yet, the defendants were informed by the Chairman of the Commission that they had a right to rely on the constitutional privilege against self-incrimination.” And then skipping over to the very last sentence of the same dissenting opinion. “Under the situation in the present cases, it seems clear to me that the defendants after being apprised by the Commission that they had a right to rely upon the protection against self-incrimination could not be in contempt with the Commission except as to the few questions which two of them were directed to answer. I want to make this point, nowhere in this record of the Talmadge-Brown or Stern hearings is there any statement from the chairman of this Commission or from any member of it along the lines stated here as the fact backing that portion of this dissenting opinion. You will recall that this Court, the Supreme Court of Ohio, when it's hearing this matter, is hearing two cases involving four defendants. What maybe the record of the hearing of the other defendant not here involved in this proceeding. That the hearing that took place in regard to another person, another time, another city, another set of circumstances. The -- the record in this case does not show and I say frankly, I do not know that record. I do say beyond any doubt and beyond any possibility of being doubted, there is nothing in the record of this case.
Speaker: In which case?
C. Watson Hover: The Raley, Stern and Brown cases, number 175 on -- on this docket. To give any strength or effect whatsoever to that suggestion of the dissenting judge in the Ohio Supreme Court. The only other portion of that opinion, I want to refer to and I am not adopting it as the State's position here, is to point out that even that judge in his dissent, reserves for his own consideration without deciding the possibility that two of the three defendants, Raley, Brown or Stern may in his own language be in contempt except as to the few questions which two of them were directed to answer. And the record there is clear in regard to these three defendants in case number 175.
Speaker: That story as I understand it, purported to reverse in as the two as to whom he (Inaudible)
C. Watson Hover: He -- he did not join in the Court's opinion. He does -- he makes no expression as to whether he would reverse or what he would do with it.
Speaker: Well, although eventually, he dissented across the board, did he not?
C. Watson Hover: Except in his own words as to possibly questions which two of the defendants were directed to answer. Now, those -- and I say the -- the majority in the Supreme Court did not rest its opinion on that basis. The Court of Appeals, hearing this case on appeal at the state level did go thoroughly into each and every circumstance behind each and every count in again the three cases, Raley, Stern and Brown. Beginning on page 184 of the record, Judge Mathews of that -- that is a tried -- member -- three-member court on a district level. Judge Mathews wrote a lengthy and I -- I suggest earnestly to this Court and exceedingly well-reasoned and complete opinion covering all phases of this subject. He picks up these indictment counts one by one. And he reads out as he proper -- as -- as probably is correct. He weeded out all of those counts in which there had been an indictment for the refusal to answer a question of the Commissions' counsel. And in doing so, it was a rather extensive weeding job. The conviction of Raley was affirmed on seven of 16 counts and reversed on all other accounts. The conviction of Stern was affirmed as to a first count and reversed as to others. The conviction of Brown was affirmed as to all four counts for which he had been indicted. The reasoning of Judge Mathews in the Court of Appeals in affirming those counts which were affirmed by his court, does not go to the extent of ruling that there was a specific positive requirement that the witness received a direct order to answer a question in order to be in contempt. The Court of Appeals opinion was to the effect that the witness under the circumstances where the Committee Chairman or a member of the Committee is asking the questions that there is a -- an order, an implied order to answer. Or there is an expectation of receiving an answer inspite of the fact that the refusal in all but three of these various counts. The -- the refusal to answer was not followed by a specific and direct order of either the Chairman or a committee member to the witness that we expect an answer.
Felix Frankfurter: But it was a ground for the refusal statement.
C. Watson Hover: The grounds for the refusal were almost without exception to the Fifth Amendment.
Felix Frankfurter: Do you say your --
C. Watson Hover: At one -- there's one point of refusal in one indictment were the witness merely says, “I don't think its any of your business.”
Felix Frankfurter: And your -- your contention is that where a question is put to witness, and the witness enforced his privilege against self-incrimination which is also -- which is given to him by Ohio law, is it not?
C. Watson Hover: Well, yes, sir.
Felix Frankfurter: And invokes that privilege and no further direction is given, either by the Chairman or a member of the committee -- the implied request for an answer, carries through a reasonably stated or at least not fully stated ground of objection to the answer, is that right?
C. Watson Hover: Yes, that -- that is the -- that is the position which was -- which was taken in the opinion of the --
Felix Frankfurter: Is that your position?
C. Watson Hover: -- Court of Appeals. Yes. That the asking of a question --
Felix Frankfurter: Implies that you want an answer.
C. Watson Hover: Yes, that -- that --
Felix Frankfurter: It also implies that an objection on the legal grounds which is valid save you from answering, is overruled and repetition is made of the implied direction to the answer to the original question.
C. Watson Hover: That was not --
Felix Frankfurter: That's your position.
C. Watson Hover: -- that was not done, as a matter of fact, in any of these questions.
Felix Frankfurter: No, but that's your position.
C. Watson Hover: Yes. Now, that is further added too by three specific counts in the indictments where there was a -- what certainly must be deemed a direction to answer.
Felix Frankfurter: Before you may go to that, Mr. Hover, may I ask --
C. Watson Hover: There was never any over ruling of an objection. I -- I don't want to --
Felix Frankfurter: May I ask of what refusal are to remain under -- what refusals on the basis of which the sentence for contempt a interest remain in case your position -- as to be implied request for an answer, made after a legal objection is taken.
C. Watson Hover: Yes.
Felix Frankfurter: What remains after that?
C. Watson Hover: Two counts in the Raley indictment. I again furnish the numbers here in a -- in a moment if I may.
Speaker: Three and Nine?
C. Watson Hover: Three and nine is correct as to Raley and one as to Stern, the only count remaining as to Stern.
Felix Frankfurter: And Brown is not --
C. Watson Hover: Brown at no time, was given a specific and direct order to answer. That is correct.
Felix Frankfurter: So that none remains?
C. Watson Hover: If -- if the rule of --
Felix Frankfurter: Tell me. Assuming your -- your position --
C. Watson Hover: Assuming my position --
Felix Frankfurter: (Voice Overlap) --
C. Watson Hover: -- of an implied --
Felix Frankfurter: Yes. Command.
C. Watson Hover: -- request is not correct, then none would remain of Brown. That is the state of this (Voice Overlap) record.
Felix Frankfurter: Mr. Raley is three and nine and Stern one. It's the only (Voice Overlap).
C. Watson Hover: Correct.
Speaker: I'd like to ask you a question as for, taking count number three of -- that brings -- or count number one of Brown, page 150 -- (Inaudible).
C. Watson Hover: Count number one of Brown is what has been your educational background?
Speaker: And he refuses to answer it?
C. Watson Hover: On the basis that he does not feel it's any of the Court's -- the Commission's business.
Speaker: And you construe to be adhered to or the (Inaudible)
C. Watson Hover: He did -- he did not mention or even attempt to invoke the Fifth Amendment in regard that specific question. And that too is pointed out in the opinion of the first reviewing court. The ground for the refusal was, “I just don't think it is your business.” It's told by the Chairman of the Commission, would -- would decide the question, and then proceeded to ask, “Do I understand for the record, you are refusing to answer the question because you feel it is not our business?” To which the defendant responded, “The answer is the same.”
Hugo L. Black: What page is that?
C. Watson Hover: On -- I -- I'm reading from 193 of the opinion, that will be on 150 of the record, page 150 of the record of the Cincinnati hearings.
Earl Warren: I got --
C. Watson Hover: That's at the bottom of page 150 in the actual hearing record.
Earl Warren: Well, in this record, Raley, Stern, and Brown versus Ohio?
C. Watson Hover: Yes.
Earl Warren: 150?
C. Watson Hover: At the bottom of page 150.
Earl Warren: Oh -- oh, I see. Well, he did invoke his rights on privileges is under Fifth Amendment, didn't he?
C. Watson Hover: Well, that then he comes in the next answer and says, “No, I just don't think it is your business.” “Is there anything about that? The answer to that question may tend to incriminate you.” “No, I just don't think it is your business.”
Earl Warren: Well, but he'd already invoked the Fifth Amendment, hadn't he?
C. Watson Hover: Well, he -- he --
Earl Warren: Did he abandon that?
C. Watson Hover: He invokes it and then denies that he invoked it apparently. And still of course rests on a reason sufficient or probably unto himself for refusing to answer.
Hugo L. Black: Your argument is that where a man feigns the benefit of the seven against self-incrimination, feigns it specifically and pointedly. And the Committee ask -- well, the question -- have continued to ask him questions about it as though he had not raised it. And if he doesn't repeal unequivocally each time, he'd waive it.
C. Watson Hover: Not at all. No, no, Justice Black. We -- we do not claim that.
Hugo L. Black: But here, he has unequivocally declined to answer about educational background on the grounds which tend to incriminate him. And then he starts the cross examine him no why he won't (Inaudible)
C. Watson Hover: Well, one, one question later. He says, “No, I just don't think it's any -- it is your business.” That -- that's one question later.
Hugo L. Black: Well, do you think that waived his objection he'd had before?
C. Watson Hover: Well, I -- I think he is saying there that I don't think there is -- if may paraphrase the question and answer. It seems to me he has saying, “No I don't think there is anything about some Communist Party school or a particular illegal institution I may have attended that would make me hesitate to reveal where I have been educated. No, I am not saying that. I am saying it is none of your business.” Now, that is the way I at least read that question and answer.
Earl Warren: Well, where do you get the words that say that. This seems to me to be so clear. “And what has been your educational background?” Answer, “I refuse to answer that question, I invoke my rights and privileges under the Fifth Amendment.” Question, ”Is there some particular illegal situation which you attended or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?” And he said, “No, I just don't think that's your business,” having claimed the Fifth Amendment.
C. Watson Hover: Well, I -- I think that still the reason he is not answering that as he said himself is “I don't think it's any of your business.”
Hugo L. Black: Well maybe he was saying that that's a man claimed the privilege, of as a genuine, bonafide claim.
C. Watson Hover: Yes.
Hugo L. Black: The practice of continuing the cross examine as to why he claims the privilege. There's not any of that in this. And that -- what do say about that?
C. Watson Hover: He asked them additional question.
Hugo L. Black: Well, suppose -- suppose a man does claim the privilege genuinely and honestly and it's it s a good claim. Do you think it is any of the question as in this to continue to cross examine him? He tried to make him tell, at least infer that he is guilty of something?
C. Watson Hover: It -- it --
Hugo L. Black: -- because he claims his constitutional privilege?
C. Watson Hover: Not at all. It would seem to me that the examiner has a right and apparently, does some thinking at least, possibly the duty to inquire into the -- the possible reason for invoking the -- the Fifth Amendment privilege with a view to determining whether or not there is some conceivable justification on the part of the witness for invoking. The -- the chair is asking him, “What's your educational background, is there something about it that would make you hesitate to revealed it?” He says no, I -- I -- first when the plaintiff regard to question, “I invoke the Fifth Amendment.” “Then is there something about it that would make you hesitate to reveal it?” “No, I just don't think it's any of your business.” Now, that -- that's the -- and there was. And in fact, the original plaintiff --
Hugo L. Black: Then somewhat on their approach, doesn't it?
C. Watson Hover: Well, I -- I don't think this --
Hugo L. Black: To the seriousness of the claim.
C. Watson Hover: Well, I -- I don't think these questions were planed by this -- by the Chairman of this Commission. The -- the hearing developed and it proceeded from question to question. I -- I -- at least in -- I don't -- I was not present myself at these hearings. But in reading this record a number of occasions with in the past seven years, I -- I can't see any fixed pattern of the -- of the questioning. I can see a fixed intention to get information if possible in various fields but the -- there doesn't seem to be any fixed pattern in the questioning as developed.
Charles E. Whittaker: Whether the -- in what you have been reading about for the last seven years, ensure pattern one way or the other after a man claims his constitutional privilege, to continue to cross examine him as to why he claimed it?
C. Watson Hover: That is done on occasion in some of these counts, yes. Where the claim of the privilege has not been accepted by the Chairman or the Commission to the extent of saying, “You -- you claim the privilege?” We realize the door is completely positively and irrevocably barred against us. That -- that pattern does not appear, it does not on a -- on a number of this questions whether they form the subject matter of these indictments or not. The -- the Commission has proceeded for an additional two or three questions. It never reaches the point and possibly, we don't use cross examination in the same -- in the same frame work, but it -- that to me, this -- this record never reaches the point where I at least would consider it cross examination. Now, a few more questions, two, three, four, at the most, to elicit why, If there'll be a reason why. Yes, that -- that exist. The -- the Commission did not just bluntly stop and say, “Well, you -- you say Fifth Amendment. That it the magic word, it bars us.” We could not --
Earl Warren: Well, what could be more cross examining than this. The question is, “And what has been your educational background?” Answer, “I refuse to answer that question. I invoke my rights and privileges under the Fifth Amendment.” Question, “Is there some particular illegal institution which you attended? Or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?” Now, if that isn't cross examination, what would you call it?
C. Watson Hover: I -- I call it an additional question to -- in an attempt to elicit additional information then. I -- I can imagine a dozen directions, but -- but the cross examination at least in a rather technical sense of the word would, could and possibly should take it that point. This is one additional question, and that -- that's all.
Speaker: Before you contrast as the same character of the question on 163, referring as the Brown, (Inaudible) answer the same self-incrimination.
C. Watson Hover: That one is the -- that's --
Speaker: Do you say that the 150 instead of completing the privilege and simply (Inaudible) or suggestion that would discriminate him about this conviction by jurisdiction practices.
C. Watson Hover: That is right. On the -- the 163 -- the -- the questions on 163 form the basis of the second the third counsel against Brown. Again, there was no direction to answer just a simple direct question, a simple direct, review so that the -- I think we all interpret as being the -- as being invoked of the Fifth Amendment when he says the answer is the same. There -- there was never any question that -- that it was a -- the Commission assumed that that is what he meant.
Hugo L. Black: Would you have any doubt assuming if the Fifth Amendment applied? Would you have any doubt to this second question? Did call for self-incriminating testimony?
C. Watson Hover: Which second question?
Hugo L. Black: Suddenly -- put that --
Earl Warren: 1150, the last question on the page.
C. Watson Hover: Oh, were coming back the first count of Brown on -- on page 150.
Earl Warren: Yes.
Hugo L. Black: Would you have any doubt what that's called or if that's on -- Fifth Amendment is applicable. And under the Brown case and under numerous cases --
C. Watson Hover: Why -- why --
Hugo L. Black: -- that wouldn't -- that wouldn't be a trying to get a man to incriminate himself.
C. Watson Hover: Why -- why yes, I -- I would doubt that Mr. Justice.
Hugo L. Black: You would doubt that he's won?
C. Watson Hover: Yes. Yes, sir. And --
Hugo L. Black: Well, why -- what about asking if he's extended some particular illegal institution, do you think it would --
C. Watson Hover: He wasn't really then.
Hugo L. Black: -- discriminate a man to admit he had attended an illegal institution?
C. Watson Hover: He wasn't indicted for that.
Hugo L. Black: I'm not talking about what's he indicted from. I'm talking about this question.
C. Watson Hover: May I suggest, the reason he wasn't indicted for it --
Hugo L. Black: I'm -- I'm asking about the question.
C. Watson Hover: The question, yes. The second question, yes.
Hugo L. Black: Would you say that the second question, that there's any lawyer who hears that, that would deny that that ask a man to incriminate himself.
C. Watson Hover: No, and I'm not denying it.
Hugo L. Black: You don't deny it.
C. Watson Hover: No. Neither do the Commission, neither did my grand jury. The -- the second question of that series?
Hugo L. Black: Plainly did.
C. Watson Hover: Decided, they asked a man for something that might tend to incriminate him.
Hugo L. Black: That was plainly on its face.
C. Watson Hover: Very certain. He was not indicted for it.
Hugo L. Black: After he had -- after he had just declined to answer about his educational background on that ground.
C. Watson Hover: That is right.
Felix Frankfurter: It's you're contention isn't it that the Fifth Amendment doesn't apply to state proceedings?
C. Watson Hover: Oh, no, no. I -- I find that -- argue -- in thinking of this, argues the Fifth Amendment, possibly Justice Lewis as others. We have a strictly completely parallel provision --
Felix Frankfurter: All right.
C. Watson Hover: -- in the Bill of Rights of the Ohio Constitution --
Felix Frankfurter: Therefore.
C. Watson Hover: -- in Section 10 of Article I.
Felix Frankfurter: Yes. But he was -- and he was told that he could rest under its protection, didn't he?
C. Watson Hover: No. No, no, Mr. Justice Frankfurter.
Felix Frankfurter: And thus, the Chairman told him that they wouldn't ask?
C. Watson Hover: No. That -- that's what I tried to get into as soon as we opened this morning, that is not so.
Felix Frankfurter: You mean nowhere did the Chairman say that, “We're not going to ask people to incriminate themselves?”
C. Watson Hover: He -- nowhere did the Chairman say to Mr. Brown, “We are not going to ask you to incriminate yourself.”
Felix Frankfurter: Well, in --
C. Watson Hover: No.
Charles E. Whittaker: What about 150 -- direction 157 (Inaudible) “Do you mean to say that this new practice on the grounds that the answer might tend to incriminate your?” Question, “You have privilege to refuse to answer based on the right granted by the Fifth Amendment of the Federal Constitution.”
C. Watson Hover: And so he did. They -- as you put it. And he then -- then the -- the Chairman asks him, “Is that correct?” Meaning as I understand it, is that what you want us to understand you are doing here.
Felix Frankfurter: What is --
Earl Warren: Well --
Felix Frankfurter: What I'm -- I beg your pardon.
Earl Warren: No, no, go ahead.
Felix Frankfurter: I'm referring to what Judge -- Justice Stewart quoted on page 237 of the record.
C. Watson Hover: The quotation on page 237 --
Felix Frankfurter: Yes.
C. Watson Hover: -- is what I read yesterday in response to Justice --
Felix Frankfurter: Brennan's, yes.
C. Watson Hover: -- Brennan's question.
Felix Frankfurter: Now, what do you make of that?
C. Watson Hover: That is the Chairman's testimony at the trial of these defendants. Where the Chairman himself says, I --
Felix Frankfurter: It was the policy.
C. Watson Hover: -- you in regard -- it was the policy. Your -- your recollection there is better than mine. However, the point I wish to make is that that statement, whether the Chairman's recollection as a witness is good, better and different. That statement was not made to these defendants.
Felix Frankfurter: But in the fist place, have we got the record of -- the stenographic record?
C. Watson Hover: Oh, yes it's all here.
Felix Frankfurter: Well, I'm --
C. Watson Hover: You -- you have the record of the Commission hearings and Cincinnati would have the record -- the record of the contempt to trial.
Felix Frankfurter: And you mean to say, when the Chairman said it was our policy, he didn't know what he was talking about?
C. Watson Hover: That -- that's exactly what I read yesterday.
Felix Frankfurter: That is what you say.
C. Watson Hover: Well, yes. I -- I --
Felix Frankfurter: Is that what you -- I'm trying to find out.
C. Watson Hover: I don't think there is -- I don't think there is any question about the -- the fact that that was stated directly from Mr. Renner's cross examination in the trial of these defendants.
Speaker: I thought there was something in the record, maybe in connection with it where evidence would bring the suits under these witnesses present in the interrogation of another witness where statements, probably with the kind as reported as this privilege that you made, and that would disperse this. Is that the next case?
C. Watson Hover: No. That is the next case, another time, another place, another city, another circumstance.
Felix Frankfurter: But my question is -- goes to a different --
C. Watson Hover: Yes, I -- I understand.
Felix Frankfurter: -- point.
C. Watson Hover: I will --
Felix Frankfurter: Namely, when a Chairman of a Committee says, “This is in our policy and we didn't press questions -- we didn't press witnesses to answer questions, will tend to incriminate him.
C. Watson Hover: (Voice Overlap) --
Felix Frankfurter: You think that's how you disregard that even to considering what -- all of us have had experience with this kind of thing, no. That a hearing like this in a continuous thing, witnesses know about it even though they may not be witnesses at the time. They may have been present when our witnesses were called and they read about it in the newspaper. And here, the responsible Chairman says “This is our policy”. And you say we should pay no attention to that. Is that what it gets down to?
C. Watson Hover: I say it is not in the case of the State of Ohio versus these defendants.
William J. Brennan, Jr.: Well now, let's -- let's see if it's not, Mr. Hover. Isn't this true, nowhere in --
C. Watson Hover: I have it on page 4.
William J. Brennan, Jr.: It's nowhere on interrogating any of these three witnesses that the Chairmen ever tell them that they had immunity, did he?
C. Watson Hover: No he did not.
William J. Brennan, Jr.: And there were many, many instances. You pointed some out to us now, I think page 163, in which the witnesses pleaded the privilege, usually by saying same answer applies. And in none of those cases, at least at 163 and those pages around 163 was the witness ever pressed to answer, was he? After he impleaded the --
C. Watson Hover: (Voice Overlap) on the three which I -- which I --
William J. Brennan, Jr.: Yes.
C. Watson Hover: -- mention specifically. Those on --
William J. Brennan, Jr.: He was not, was he?
C. Watson Hover: Those only three, he was pressed to the extent of --
William J. Brennan, Jr.: Yes. Otherwise they were not pressed.
C. Watson Hover: Correct.
William J. Brennan, Jr.: Well now, and the Chairman then said that, as Mr. Justice Stewart quoted it. That it was not the policy to press it, to allow them the take the -- the privilege, even though they didn't like a statement with -- a direct statement that it was that the policy of the Commission not to press question which we felt would be of incriminating nature. Can't we take that as supported by the record as to the interrogations of these very witnesses?
C. Watson Hover: The record itself would, I think be more reliable. I -- I have it here exactly as the witness stated.
William J. Brennan, Jr.: No, I -- I'm suggesting you agree with me what record shows.
C. Watson Hover: Yes, I --
William J. Brennan, Jr.: It shows that he never told them they had immunity and he never pressed them for an answer when they pleaded the Fifth except in the three instances pointed out.
C. Watson Hover: (Voice Overlap) I -- that -- that that point in the record is completely clear and that is the way the record is. However on the -- on the other questions --
Felix Frankfurter: May I -- may I -- in connection, may I -- I suggest first. The question is, you suggested the failure to direct and repeat, the command as such it is. We -- we ask a question because that complied with, we want an answer, I follow that. That's rational enough of these principles. And then, the witness raises objections. And then the Chairman or a member of the Committee doesn't say what you answer is quite their objection. Your interpretation of that episode of that inference or that transaction is, that imply me -- they meant to repeat it because they'd already asked them the question before he raised his objection, isn't that correct?
C. Watson Hover: No.
Felix Frankfurter: Pardon me?
C. Watson Hover: My -- my --
Felix Frankfurter: I thought that was the transition (Voice Overlap) --
C. Watson Hover: -- my position with that point is, there has been a question asked, there has been a refusal to answer.
Felix Frankfurter: Yes.
C. Watson Hover: These indictments are laid under a statute which makes it an offense to refuse to answer a question about which a witness may be lawfully interrogated.
Felix Frankfurter: But I think you may -- you must take the full context.
C. Watson Hover: That --
Felix Frankfurter: There was a question asked, there was a refusal intervening question and refusal was objection.
C. Watson Hover: In a one instance. In the Brown -- in the first Brown count. That is --
Felix Frankfurter: There is an objection. And the question wasn't repeated, it wasn't said -- your objection is overruled because you have no such claim. I put it to you that it's more rational to interpret the failure to review the question in light of the policy expressed by the Chairman, then they say impliedly -- impliedly overruled the objection simply because you would already ask the question before the objection was made.
C. Watson Hover: The -- that comes back to the policy of the Chairman, Mr. Justice. And I -- I --
Felix Frankfurter: Well, but you better you have better source for knowing that the policy of the Commission or any inquiring bodies on the Chairman.
C. Watson Hover: The -- the testimony --
Felix Frankfurter: I -- I just want to -- I just want to discover out of what material is one to draw a policy except the explicit statement of a Chairman, what the policy was.
C. Watson Hover: May I -- may I suggest that the policy does not seem to be a necessary prerequisite to the commission of the offense.
Felix Frankfurter: Well, but if the quality --
C. Watson Hover: The -- this is a statutory offense.
Felix Frankfurter: But if he correctly interpreted the policy, then isn't Justice Stewart right, there was no contempt in refusing to answer if you acted on the policy of the Commission that if you arrange the justification for refusal to answer that is incriminating, the question isn't pressed and therefore refusal to answer isn't contempt.
C. Watson Hover: Provided these witnesses were not mislead in that respect and they were not --
Felix Frankfurter: But how could -- how could people not be mislead if a Chairman indicates that if you say this will intend to incriminate you, you don't have to answer and the Chairman doesn't press the question in light of such justification to refuse to answer.
C. Watson Hover: But -- but there is nothing in this record to indicate -- to -- to establish that the Chairman indicated that in regard --
Felix Frankfurter: Except two things.
C. Watson Hover: -- in regard to these witnesses.
Felix Frankfurter: Except two things. One is because that calls the general policy, and two, the question was renewed.
C. Watson Hover: Usually, the question was not renewed.
Felix Frankfurter: I'm talking about the old record is not renewed.
C. Watson Hover: That's nearly all of them.
Felix Frankfurter: All right, nearly all of them. And therefore, that thing that finger to renew gets illumination to the expression of the Chairman what the policy was. Namely to give the claim of the privilege.
William J. Brennan, Jr.: Well now -- now certainly, this must as to the atmosphere of that hearing. I think you agreed earlier, wasn't one to suggest that immunity was available, was it?
C. Watson Hover: There was no suggestion whatsoever, the new --
William J. Brennan, Jr.: And then there's nothing in the atmosphere of the hearing at all would suggest that was available. And -- nor was there anything in the atmosphere at that hearing to suggest that the privilege was totally irrelevant, was there?
C. Watson Hover: No, it did -- they didn't go to that --
William J. Brennan, Jr.: Now, don't you think the Committee members where in large part responsible for that, for the very reasons that Mr. Justice Frankfurter suggested?
C. Watson Hover: I think the Committee members just had these refusals and in -- nearly all instances, let them sit. Then turn them over for prosecution after the Committee had gone through its statutory proceedings to affect that ultimate end. And these indictments flowed from that. The indictments where -- do not cover all of the questions. There -- there was a distinct effort made to avoid indictment. On the basis of what the Committee had meant to operate. That is, we will not press where there seems to be some reasonable ground. And that -- that the -- that the indictments flowed from that exact same thinking. Now, whether the -- whether the -- the picking and choosing was a 100% accurate is of course open to question under any circumstances, but that was the purpose. Well, I'm --
Earl Warren: Well, doesn't this -- doesn't this question that we've been talking about at the bottom of page 154 right within this policy that was stated by the Commissioner or the Chairman? He said, "It was the policy of the Commission not to press questions which we felt would be of an incriminating nature.” For instance, whenever witness was asked a question I believe that every witness before the Commission was asked a question, “Are you or have ever been a member of the Communist Party?" And the -- if the witness refuse to answer that question, we did not press it. Now, take that and -- and compare it with this question that we've been talking about. "Is there some particular illegal institution which you attended or some Communist Party School that you attended that makes you hesitate to reveal where you were educated?" Now, isn't that -- isn't that just about as explicit as asking a man if he was a member of the Communist Party?
C. Watson Hover: Yes.
Earl Warren: And its just as incriminating, isn't it, if he has answered yes.
C. Watson Hover: And it was a question, if I -- may I add, that was not pressed.
Earl Warren: May not -- was not pressed yes. And if you take that within -- and placed it in the framework of this policy that the Commission said it had. Why wasn't -- why, was the man in contempt if he exercised a privilege which the Chairman of the Commission and the Commission itself recognize.
C. Watson Hover: Well, that -- that is again reading the -- the two series of questions and answers on invoking the privilege.
Earl Warren: Yes.
C. Watson Hover: Now again, if the second answer is read as "No", I am not invoking a privilege or I am not fearful that there will be any incrimination.
Earl Warren: Yes.
C. Watson Hover: “I just don't think it's your business.” Then -- then the -- then the -- at least the possibility of raising a debatable question of incrimination arises which is what the -- what the indictment did for the trial purpose.
Felix Frankfurter: Mr. Hover, may I -- I beg your pardon.
Earl Warren: Go ahead. No, go ahead.
Felix Frankfurter: May I ask this question? As I understand you a little while ago to say that the -- the un -- the unrepeated question after the claim was made constitutes the bulk of the question? Did you say something most -- that they were most of them? The questions that were asked to which self-incrimination -- for which self-incrimination was invoked and they're not repeated, constituted the major portion of the question in controversy. Is that right?
C. Watson Hover: Constituted the major portions of the questions for which indictments were had.
Felix Frankfurter: Yes. For which indictments were asked, yes.
C. Watson Hover: Yes.
Felix Frankfurter: Well, on that -- on that -- I thought pursuant authority to press myself (Voice Overlap) --
C. Watson Hover: Well, not the major portion of the --
Felix Frankfurter: No, no, no. Reads to me as “No”. But they -- the major portion of the questions, the -- for refusal of which sentence was imposed, Is that correct?
C. Watson Hover: Correct. That is correct.
Felix Frankfurter: What I want to know this. Assuming that the unrepeated question cannot be sustained, I'm saying assuming as, the -- if the counsel are here for his -- find out what they proposed. Assuming that those cannot be sustained, leaving only a minority of questions. Assume the latter can be can be sustained. I would like to have your view as to the validity of the sampling imposed in wholesale as justifying -- as -- as satisfying legality. Assuming we sustain you as to those few. Would you care to say something about that?
C. Watson Hover: Yes. That -- that question has already been considered. Not -- not judicially but isn't --
Felix Frankfurter: Yes. You don't actually press (Voice Overlap) --
C. Watson Hover: It's in the large for this reason --
Felix Frankfurter: I hope my questions are irrelevant --
C. Watson Hover: -- that the first count --
Felix Frankfurter: -- when I asked them.
C. Watson Hover: Exceedingly so. The -- the first count of Raley was among those which were dismissed in the Court of Appeals. That -- that gives rise to your question right -- right there. The sentence was guilty on all counts. And then the Court exercised a privilege which is rather standard practice of making sentences run concurrently. There -- there is no -- nothing in the docket of the record to say, “I find you guilty of the -- the first count, and you do 10 days on that. And I find you guilty of all the others. And I-- I'm just going to forget about those.” That is not this record and not -- not Ohio procedure. The person is found guilty and sentenced on all counts and the sentence --
Felix Frankfurter: Engrossed as if it were okay.
C. Watson Hover: Oh, yes. In this case it was engrossed. You're indicted for 16 counts, you were found guilty of 16 counts. You are filing -- fined -- and I think the fine in 10 days, $500 something. And the sentences aren't -- be run concurrently in the fines paid that way. So as I say, that -- that question has been in this case for -- for sometime, they're just not, at least up to this point, been occasioned to -- to bring it into the actual proceedings. It's -- it has been considered not the fact.
Felix Frankfurter: Well, -- well can -- well -- are you then saying that the sentence can stand engrossed, although make a portion of the underlying convictions are undermined?
C. Watson Hover: Oh, yes. The -- these are separate indictment counts. I -- I'm speaking --
Speaker: What was the sentence, 10 -- 10 days?
C. Watson Hover: 10 days and $500, I -- I believe suggest. The --
Felix Frankfurter: The separate indict waived for the -- for each question?
C. Watson Hover: A separate count in one indictment. The Indictment consists of 16 counts, each count being a specific refusal. The -- those are the 16 counts which we have -- should impartially meted out already.
Felix Frankfurter: And the sentence is promulgated to count to count and the sentence runs against counts, is it?
C. Watson Hover: Yes. With the sentence.
Felix Frankfurter: That's all of them concurrently.
C. Watson Hover: All of them concurrently.
Felix Frankfurter: So that ultimately knocked out, leave the standing the good sentences for the good counts. Leave standing the sentences for good counts.
C. Watson Hover: But still there's just one sentence. That is one -- one period of time.
Felix Frankfurter: All right.
C. Watson Hover: Yes sir?
Hugo L. Black: Mr. Hover, I have just read the entire evidence to Mr. Brown, the questions that were asked. And am I right in thinking this? They cover -- question and answers cover 15 printed pages. I didn't figure out the time but I would say that we must claim the Fifth Amendment, 75 to 100 times.
C. Watson Hover: Now, you -- you are undoubtedly correct.
Hugo L. Black: And the Chairman intervened at the number of times to be sure he was claiming the Fifth Amendment. That's right, isn't it?
C. Watson Hover: That is correct.
Hugo L. Black: And the Chairman did not ever indicate to him at any time from the first to the last question to what I can find. That there was anything wrong with his claiming of the Fifth Amendment or that he was not entitle to claim it.
C. Watson Hover: The Chairman did not ever claim that he was not entitled to (Voice Overlap).
Hugo L. Black: And all the questions --
C. Watson Hover: That is so.
Hugo L. Black: -- were asked, he would decline on the Fifth Amendment and they'd just go on to another question, all of them practically about the Communist Party.
C. Watson Hover: No.
Hugo L. Black: In most of them?
C. Watson Hover: No.
Hugo L. Black: Well, like number --
C. Watson Hover: Of the indictment counts, none of them.
Hugo L. Black: I'm not talking about the indictment counts.
C. Watson Hover: Oh, excuse me, sir. Excuse me.
Hugo L. Black: I'm talking about now the -- the evidence interrogation --
C. Watson Hover: That -- the -- I'm carrying the question. I understand.
Hugo L. Black: -- showed that from the beginning to the end, he relied on the claiming, the privilege under the Fifth Amendment. No one ever indicated to him by any word, either the Chairman or the question that there was -- that he didn't have a right to claim the Fifth Amendment.
C. Watson Hover: No one, and that is correct. No one ever so indicated.
Carl B. Rubin: May It please the Court.
Earl Warren: Mr. Rubin.
Carl B. Rubin: In the time remaining, I should like to address myself to the question of the Ohio immunity statute. May I say at the outset that I believe the -- by a mistake, this Court was misinformed as to the applicability of the Ohio statute. The distinction between committees and commissions in Ohio is not a very precise one. As a matter of fact, this particular question was considered by the Supreme Court of Ohio and in the first branch of the syllabus, stated very specifically that this was a select committee so as to be with in the terms of the statute. Now, I should like to point out in this regard that that the Ohio statute on immunity is not like the federal statute where there must be a specific action taken before the immunity is conferred, where the Attorney General must be consulted in the District Court of permission granted. To the contrary, in Ohio, the provision for immunity before the legislature is a great that you must specifically divest your self up. You have it until you take action and you must take your action in writing. Now, this is similar of course to the Ohio law on a jury trial. A person is entitled as a matter of law to a jury trial, unless they specifically waive their right in writing, so too is it the immunity statute. There is no question in the record that at no point or that at any point were these witnesses told of the immunity statute. But the statute does exist, it did exist and it did cover these witnesses as fully and as completely as the State of Ohio could do so. If these witnesses in fact do not have immunity, it is not because of the action of the legislature of Ohio, it is despite the action of the legislature of Ohio. And I submit that this is an important consideration particularly in view of the fact. But getting back to the record, and in connection with the -- the discussion that has gone on as to the misleading by the Chairman of these witnesses. Might I point out to the Court and I think quite significant, the discussion that was held with counsel for Talmadge Raley. Bear with me one moment. Mr. Burger, this is counsel --
Felix Frankfurter: What page?
Carl B. Rubin: I'm sorry, sir, page 99. Mr. Burger, “Mr. Chairman, you will forgive the witness for taking his legal advise from me rather than from the Committee.” The witness, “If I recall.” Chairman Renner, “You may advise your witness what his rights are under the Constitution.” Mr. Burger, “I certainly will.” Mr. Chairman Renner, “I was not aware that you would advise him not to give that answer.” Mr. Burger, “I had not. I didn't advise and to give any answer. I pointed out that you were telling the witness what the law is, and with all due respect, that is my function. If he wants to know the law, I think it is I he should ask and not you.”
Earl Warren: As to his privilege of course.
Carl B. Rubin: Yes, sir. But the -- the point that I --
Earl Warren: Because what they were talking about was with the privilege.
Carl B. Rubin: Yes, sir. But this I submit is important in the context of whether or not this Chairman misled this particular witness who came to this Commission hearing with a statement that he read, with the council, with whom he conferred, and who advised him specifically that it was to him, the witness should look for a legal advice not to the Chairman of the Commission.
Felix Frankfurter: Not of the -- I -- I must say -- never been so confused about an immunity situation as I have about this one. As I understood you a minute ago in stating the law of Ohio which was news to me, except that it has an analogue in -- in the immunity which flows without asking for it, under the Sherman antitrust law among your case in this Court. But as I understood you, the Ohio law is that a witness appearing before a legislative committee, and this for the purposes of your law was a legislative committee, cannot refuse to answer because automatically, answer is compelled in exchange for an automatically flowing immunity of the statute for a statute giving immunity from prosecution. Is that what you've said?
Carl B. Rubin: I'm saying, sir that the --
Felix Frankfurter: Isn't that what you said?
Carl B. Rubin: Well, I -- I don t know if I phrased it quite that fashion, I'm saying the Ohio immunity statute is automatic.
Felix Frankfurter: Automatic.
Carl B. Rubin: The --
Felix Frankfurter: And therefore, it has to be disavowed.
Carl B. Rubin: In writing.
Felix Frankfurter: In writing.
Carl B. Rubin: Yes, sir.
Felix Frankfurter: And since it is -- correct me on this because I -- on this -- I'm now walking very aware of this. Does that mean that it is much as the immunity statute flows automatically and has the least specifically disavowed in writing. A witness inevitably can't claim immunity from testifying because he had immunity from prosecution. Is that correct?
Carl B. Rubin: I -- you lost me, sir. At the very end, he cannot claim immunity from the statute.
Felix Frankfurter: The point of an immunity statute is that it withdraws the right to withhold answers to questions --
Carl B. Rubin: Yes, sir.
Felix Frankfurter: -- because it may tend to incriminate him.
Carl B. Rubin: Yes, sir.
Felix Frankfurter: Is that right?
Carl B. Rubin: That is correct.
Felix Frankfurter: Now in Ohio, there is automatically immunity from prosecution and the only possible rational explanation I can find for that is that thereby, nobody can give -- claim immunity from testifying.
Carl B. Rubin: Yes, sir. That is correct.
Felix Frankfurter: Now, is that correct?
Carl B. Rubin: Yes, sir.
Felix Frankfurter: So then, there is an automatic immunity statute, immunity from prosecution which automatically disables a witness to say, “I won't testify because I may incriminate myself.”
Carl B. Rubin: That is correct.
Felix Frankfurter: Is that right?
Carl B. Rubin: That is (Voice Overlap) --
Felix Frankfurter: Now, what I want to know is this. Is Chairman Renner who presumably was a lawyer, was he?
Carl B. Rubin: Yes, sir.
Felix Frankfurter: Did he at any time tell this witness, "Your privilege against self-incrimination can't be asserted because the legislature of Ohio has displaced that immunity with the immunity from prosecution.
Carl B. Rubin: No, sir. It is not in the record.
Felix Frankfurter: Well then, how can the witness know whether he did or didn't have a right to claim it?
Carl B. Rubin: This Court held in Sinclair versus the United States that the witness is rightly bound to construe the statute. This would mean as --
Felix Frankfurter: If this -- this witness should know more law than the Chairman did, is that it?
Carl B. Rubin: Well, I -- I submit to Your Honor that the witnesses knew very well how to claim their privileges under the immunities --
Felix Frankfurter: But that isn't the question, the question before us is whether he will fully defy the questioning power of this Committee. And if he was misled, you can't by imposing knowledge of the laws of fiction, as an explanation of understanding.
Carl B. Rubin: I submit to Your Honor that the -- all was there and that this witness, accompanied by counsel, if you please.
Felix Frankfurter: Did --
Carl B. Rubin: -- was in --
Felix Frankfurter: You didn't understand. Apparently, the Ohio law is almost as obscure to some of the Ohio lawyers as it is to me.
Carl B. Rubin: Perhaps so. I may need my time --
Earl Warren: May I -- before you sit down, I'd like to ask you just one hypothetical case. In the -- in the -- having in -- in regard your Ohio law. Suppose a witness goes before the Committee and he has asked a question which you will clearly incriminate him. And the -- the Chairman of the Committee says, "Now, Mr. Witness, you're -- you're entitled to claim your privilege of self-incrimination if -- if any of these questions -- answers to these questions would incriminate you.” And the witness says "Well, Mr. Chairman, I do claim my privilege of self-incrimination.” And the Chairman says "You're excused." Could he then be indicted and convicted for contempt to that Committee?
Carl B. Rubin: I would say not.
Earl Warren: Now why, what is the difference between that case and the case that -- of Brown, Mr. Justice Black having said that there was -- that's practically what happened there.
Carl B. Rubin: I submit, sir, that there is this difference. That in hypothetical instance that you gave me, there is no question, no specific question that he refused to answer.
Earl Warren: Oh, yes, he refused to answer. They ask him -- they ask him a question which would have been incriminating.
Carl B. Rubin: Yes.
Earl Warren: And he said, “I refuse to answer on the grounds that will tend to incriminate me.”
Carl B. Rubin: Yes.
Earl Warren: And the -- the Chairman then said, “You're excused.”
Carl B. Rubin: Well, may I suggest sir that the --
Earl Warren: Yes.
Carl B. Rubin: -- hypothetical example has this one variation. There is nothing again in this record that indicates that witness Brown was told by the Commission or by the Chairman that he had a right to assert the privilege against self-incrimination and that nothing further would then be done. I -- I submit that that is an essential --
Earl Warren: But within -- within the fact that the -- that the Chairman of the Commission said, “You may claim your privilege,” but failed to say, “And if you do, nothing will be done about it.” Do you think that distinguish it?
Carl B. Rubin: No, sir. I am saying this and I -- I think this one bit of background is important. This Commission appeared in many different cities in Ohio and interrogated some 30 odd witnesses. Whatever the Commission's or the Chairman's recollection of what he thought he said. I -- I don't believe that is as important as what he actually said. I -- I don't believe that if he said something in Akron, Ohio or in Columbus, Ohio, that is not part of this case. It can be assumed that he granted to these witnesses or -- or misled the witnesses into believing that there would not be prosecution. Now, I -- I believe that Justice Stewart fell into the trap that Justice Brennan pointed our yesterday. This is what the Chairman said he said. But it is only his recollection, some 15 months after the fact. And I -- I submit that -- that this particular record in this particular case, in the case no such statement by the Commission.
Earl Warren: Can you repudiate the testimony of your -- the Chairman of your Commission?
Carl B. Rubin: No, sir. I -- I am saying that -- that whatever his -- his testimony is correct but it has no bearing on these particular cases because the -- it was not stated to these witnesses that this may have been -- that's maybe correct in the Morgan case but it is not correct in these cases.
Earl Warren: All right.
Carl B. Rubin: Thank you very much, sir.
Earl Warren: Mr. Johnson.
Morse Johnson: May it please the Court. I should like to call again the Court's attention. I regret that there has been so much confusion about exactly what the Chairman said and what the Commission meant, to the record on page 99. At the middle of the page and this is one of the questions which form the indictment, the -- the -- a count in the indictment. Where Chairman Renner, contrary to what the State has -- has apparently asserted here clearly has told the witness that he had their -- had privileges under the Constitution. “We would like to know whether you recall that interview. You may say yes or no. Do you recall that interview or don't you recall it? If you recall it, and we ask you about your recollection, then you are privileged to claim your rights under the Constitution. But it is our opinion,” and note here, Your Honors how carefully he then circumscribed himself but it's our opinion -- it is my opinion that you have no constitutional right to refuse the -- answer the question of whether or not you recall that interview. Now, it appears to me following on through from 99 on to a 100 that Chairman Renner at -- at that point having told the witness that he could assert his rights under the Constitution then went on to indicate that he, personally, felt may be that the -- that the witness could not but as it gets over to the -- to the middle of page 100, it -- Chairman Renner seems to indicate that he finally accepts the assertion of the privilege. Contrast that, if the Your -- if the Court would please, with record at 132.
Earl Warren: Where is that -- what language are you referring to on page 100?
Morse Johnson: He then asked the witness to check with his counsel, Mr. Chief Justice. I should like to create and consolidate counsel to determine whether in his opinion, you are required to answer the question whether you recollect having had such an interview. The witness, I've been -- advised by counsel that the privilege does apply if I desire to use it. Chairman Renner, “Counsel may proceed.”
Felix Frankfurter: Before we go with your page 132, the -- the interview referred to in -- over a month by Chairman Renner in this record? Do you --
Morse Johnson: If -- if the interview -- if you'll pardon me Your Honor, I didn't quite understand you.
Felix Frankfurter: We would like to know whether you recall that interview. What I want to know is, is that interview transcribed and found in this printed volume?
Morse Johnson: No, Your Honor, that refers back up to the third paragraph or second question on page 99. “Let me refer to an article carried in a Cincinnati Post on September 13, 1949, captioned “Schools Trace Communist Propaganda.” Union agent denies (Inaudible) and refers to an interview with you. Do you recall that interview?” And then that question became one of the counts in the indictment which the appellant Raley refused to answer on the ground that it might incriminate him under the -- under the Fifth Amendment and the Ohio Constitution. The interview itself was never in the record, Your Honor.
Felix Frankfurter: That's an interview given between one of these petitioners and (Voice Overlap) --
Morse Johnson: Appellant Raley and the newspaper reporter. Now, we have, as I point out to the Court that -- that colloquy on page 99 and then we have the one question that I would submit is the only -- only one where the -- the witness was at least directed to answer the question. That's the -- that's the appellant Stern's first count in -- in his indictment on page 132. He -- he asserts his privilege and Chairman Renner says, “The chair will request that the witness answer the question.” The witness, “I have answered the question” Mr. Isaacs, “Mr. Chairman, I asked the witness to be ordered and directed to answer the question.” Chairman Renner, “The Chairman directs the witness to answer the question relating to his address and so forth and so on.”
Felix Frankfurter: Well, now, what do you say to the legality of that question?
Morse Johnson: I say, Your Honor, that it's quite clear that the witness was at -- and -- and this is the only instance. It is our position where the -- where the Commission actually ordered and directed an answer that at this -- at this point, appellant Stern was told that the -- that the Commission ordered and directed him to make an answer.
Felix Frankfurter: Yes. But I want to know whether that question could be put to him.
Morse Johnson: Whether that question could be put to him? Your Honor, I -- I mentioned yesterday and I'd like to mention again today for -- for that very purpose. If -- if the Court would turn to the record at page 141, 142. In the middle of the page, there's a question starting, “Do you know Frank Hashmall?” “I claim the privilege.” “Do you know Sylvia Hashmall?” Question, “As a matter of fact in March of 1950, Frank and Sylvia Hashmall and their family moved in with you, did they not?” And if -- and they -- they go on to talk about whether or not his residence later on, turning over on page 142 about the fourth question down or the third question down. “Is it not a fact in March of 1950, Frank and Sylvia Hashmall, Frank Hashmall being the district organizer for the Communist Party and I'll add to it. Your home became the Communist Party headquarters for this section.” Now, I think --
Earl Warren: That's the same residence they were asking about on page 132.
Morse Johnson: It is to be assumed that, Your Honor.
Earl Warren: Yes.
Felix Frankfurter: Then why --
Morse Johnson: Yes.
Felix Frankfurter: -- why should one assume? What I'm asking is this. If in a -- in the federal court, this question were asked, “Where do you live? What is your name?” And the witness says, “I won't answer.” “Where did you live?” “I won't answer because it might tend to incriminate him.” I think I'm clear in saying that if -- if that question were asked and no other indication but that's the question that might tend to incriminate, he couldn't stand on it furthermore.
Morse Johnson: If --
Felix Frankfurter: You can't just say, “I won't end to anything because anything might incriminate me.”
Morse Johnson: If -- it later developed, Your Honor, that the -- the Commission or the -- or the investigating body, whatever it might be, had possession of information that they thought was -- was factual, that this man's home had been or was then -- the headquarters of -- of the Communist Party.
Felix Frankfurter: Might -- was towards the question, the -- the -- a question asking for residence. “Where do you live?” Without more, would not justify him in claiming privilege. I said very calculatingly without more. Now, at the time that he refused to answer on page 132, there was nothing whatever except he asked “Where do you live?” The man can't say, I would raise the bar on anything without giving some intimation so that the judge, I'm talking about the court. There have been such cases. You can't just say, “ I won't answer anything.” He must give some indications so that the judge in good conscience can say, “Yes, this might lead to something else.”
Morse Johnson: Your Honor will note --
Felix Frankfurter: -- (Voice Overlap) 132, all he was asking, “Where do you live?”
Morse Johnson: You -- Your Honor, well note that following that question, Mr. Stern did reply to many questions and gave -- gave the Commission factual answers as to where he'd worked, where he attended school, what he'd done and --
Felix Frankfurter: I think it's Baltimore.
Morse Johnson: In -- in Phoenix or --
Felix Frankfurter: (Inaudible) from my point of view to indicate something, if he say, “I can't answer that because it will lead to something else or I would step up -- somehow rather a mitigation.” You can't just say Fifth Amendment, shout the Fifth Amendment the way generally it's shouted unthinkable, Fifth Amendment. And shut out all inquiry and --
Morse Johnson: Well, Your Honor, if I may -- if I may ask you this question. Suppose the witness was aware of the -- of the alleged information that the Commission had about his home being the -- the headquarters of the Communist Party. Is it incumbent on the -- on the witness to say “I do not wish to testify as to where I live because I'm fearful that you might ask me further questions about" --
Felix Frankfurter: No, it doesn't have to mean that, he has to give some information, ordinarily merely asking a man where he lives. Wouldn't give the most imaginative judge a suggestion that he can't say that because a sequence of questions might implicate others if he gives the residence. It probably doesn't call a fact that you might address because other people live there.
Morse Johnson: Well, Your Honor, we don't have a question of a judge asking questions, we have a question of the Commission which it had --
Felix Frankfurter: Well --
Morse Johnson: -- a previously and throughout this hearing, indicated that it had a lot of incriminating or what he considered incriminating information about these witnesses.
Felix Frankfurter: Well, this isn't --
William J. Brennan, Jr.: Well, may I ask you --
Felix Frankfurter: -- is there anything to hind this denial to anything that preceded whereby the Chairman or any fellow has the responsibility. We'll, get some things in that this is down a dangerous road.
Morse Johnson: There is nothing preceding this question. But there is certainly something subsequent to this question.
William J. Brennan, Jr.: Well, Mr. Johnson, what about preceding the direction? About that question that preceded the direction to answer the question?
Morse Johnson: Well --
William J. Brennan, Jr.: Chairman put the question, “Is there something about the nature or character of the home in which you live? That to admit you live there would make you subject to criminal prosecution.” That question was asked in the privilege pleaded before the direction was given by the Chairman. Is there anything in that which will suggest the --
Morse Johnson: Well, I think Your Honor, I -- I agree with Your Honor that I -- I --
Felix Frankfurter: But he merely said, “I won't answer, I won't answer anything.”
Morse Johnson: Because there's something about the --
Felix Frankfurter: That was pulled down a curtain if they would ask for anything.
Morse Johnson: Yes, Your Honor. I -- I would like to -- unless Your Honor would like to investigate further into that area, I -- I should like to point out how important --
Hugo L. Black: Which one -- which one of those two questions made the basis of the counts?
Morse Johnson: That the -- I'll have to look it up, Your Honor. “Where do you reside, Mr. Stern?” That's the very -- “Will you state your name please?” Answer, “Joseph Stern,” at the very top of page 132. Question, “Where do you reside, Mr. Stern?” And then he answered, there's no further -- specific word --
Hugo L. Black: But where did he -- where did the Chairman of the Commission asked him to answer that personal question?
Morse Johnson: I think it -- I think it could be argued that he was talking about the second question that Mr. Justice Brennan was talking about when he gave a direction to order an answer but I think the implication is that he was still asking where he lives.
Hugo L. Black: That's the one that he requested the answer.
Morse Johnson: I -- I think that --
Hugo L. Black: It follows immediately after that second question --
Morse Johnson: That the Court concluded that.
Hugo L. Black: -- something about the nature or characters of the home. “Which you live, and to admit you live there would make you subject to criminal prosecution,” the same answer. Chairman Renner, “The chair will request that the witness answer the question.”
Morse Johnson: Well, Your Honor, I -- I regret that that -- I regret we have to go on further than that because Chairman Renner finally says, “This is prejudicial to my own case.” The Chairman directs the witness to answer the question relating to his address, the address of his residency in Cincinnati.
Hugo L. Black: It was after he had asked him the question.
Morse Johnson: That's right, Your Honor.
Hugo L. Black: Was there anything shown to that -- on page 142 whether that was the residence, that was asked about his home.
Morse Johnson: That's correct, Your Honor. And it would -- has been our position --
Hugo L. Black: Then they asked him the next one, “As a matter of fact, you reside at 3959 Wilson Avenue in the city?”
Morse Johnson: 3595 Wilson Avenue in the City of Cincinnati, Ohio. There's nothing in the record to indicate, Your Honor, that that residence which is -- as specified or identified at page 132 is the residence that they were talking about on page 141 as being the --
Hugo L. Black: Yes.
Morse Johnson: -- Communist Party headquarters and I have no knowledge about that. I should like to call the Court --
Speaker: May I ask --
Morse Johnson: Excuse me.
Speaker: I don't want to interrupt you but you indicated that you thought that was the only question which there was a direction in the case of these people. I'd like to ask you about count three and count nine of the Raley indictment. And --
Morse Johnson: Three is on 91.
Speaker: -- also about count one of the Stern indictment.
Morse Johnson: Well, this count on of the Stern indictment (Voice Overlap) --
Speaker: That's the one you've dealt with on the request. I beg your pardon.
Hugo L. Black: I want to ask you one other question which again to (Inaudible), has been. If this -- did all this determination appear the same day in Cincinnati?
Morse Johnson: Yes, Your Honor. In the morning and in the afternoon.
Hugo L. Black: Some of it occurred in the morning.
Morse Johnson: That's correct.
Hugo L. Black: Raley testified in the morning?
Morse Johnson: That's correct, Your Honor.
Hugo L. Black: And they were all summoned there for that day.
Morse Johnson: They were all present.
Hugo L. Black: These three witnesses, they were present.
Morse Johnson: That's present -- that's present. You're right, Your Honor.
Hugo L. Black: And if 1:15, adjourn until 2:00.
Morse Johnson: Yes, Your Honor. I don't remember the exact hours.
Hugo L. Black: And then they call Stern or Brown and then finished with him and called the others. So it was all a part of one continuous session that day.
Morse Johnson: That's correct, Your Honor. Number three, Mr. Justice Harlan, is now as a matter of fact, “That was the headquarters of Local 766 (Inaudible) at that time, isn't that correct?” I again assert my privilege.” Mr. Raley, would you explain to the Commission how you could incriminate yourself like knowledge and the location of the headquarters.” Mr. -- the witness, “I don't believe, Mr. Chairman, that I have to give the reasons for asserting a privilege.” Chairman Renner, “I nevertheless request an answer as to the -- as to why you think it would incriminate you, not as to the -- not as to the question for which there had been an indictment.” And there's a colloquy, and I think that when the witness says, “I think I was correct in view of the line of questions that I have to assert my privileges under the Constitution.” And Chairman Renner on page 92 answers, “Counsel will proceed,” I don't believe that this Court should hold, that -- that appellant, Raley, was put on notice that he'd been given a specific and direct command that this -- his assertion of the privilege under these circumstances had been rejected by the entire Commission and considered contimation and will -- contumacious and willful defiance of the Commission following that colloquy. Particularly, Mr. Justice Harlan, given the law of Ohio, and might be, I will follow the reply brief in this -- in this case, these witnesses were indicted under the judicial contempt section. And the Ohio Supreme Court and its decision state that the -- that amounted to merely a definition as to what shall constitute contempt. I'm quoting from the record at page 230. Now, there's no question in the State of Ohio, the cases, for the practice of law, the secondary authorities, that a witness must be directed and ordered and been -- be clearly apprise that the Court overrule whatever objection had been, he had raised or his counsel had raised and he was specifically directed to answer the question. This is the applicable section under which these counts were indicted.
Felix Frankfurter: Am I to infer from what you've said that you might pattern to our brief that you have not --
Morse Johnson: I did follow your entire brief, Your Honor --
Felix Frankfurter: Or that you -- have you -- have you briefed this in the -- what you just said?
Morse Johnson: What I have just said. Yes, Your Honor.
Felix Frankfurter: Everything.
Morse Johnson: I did and I sent it on to this Court. Yes. Right.
Felix Frankfurter: May I ask this question? Under your -- under Ohio law, commitment for contempt, certainly for contempt. Does that require willfulness in the sense as purpose, consciousness of -- of -- (Voice Overlap)?
Morse Johnson: There is -- there -- the -- there is nothing in the statute, the judicial contempt section, which states that -- there that -- that willfulness --
Felix Frankfurter: No, but --
Morse Johnson: -- is an -- is an element of the offense.
Felix Frankfurter: -- what about the law above your case laws?
Morse Johnson: Under case law, there -- I could -- I -- I have no cases where willfulness was -- was required. But there are cases and full -- and it's written in the books have replayed with citations as to where, to -- in order to complete the offense, there had to be a direction so that the witness knew that the Commission or -- or the Court.
Felix Frankfurter: Usually defying, there must be an awareness of defying the Court's --
Morse Johnson: That's -- that's right, Your Honor.
Felix Frankfurter: -- or the Committee's direction.
Morse Johnson: That's correct, Your Honor.
Felix Frankfurter: Is that right?
Morse Johnson: That's correct, Your Honor. Mr. Justice Harlan, were you still interested in question number nine?
Speaker: Yes. I take it, what you've said on page 91, you say that I nevertheless request an answer or refer to as not to the question that was asked but to the basis for -- the claim of this privilege, that's what you're saying?
Morse Johnson: That's right, Your Honor. And he later --
Speaker: Which one?
Morse Johnson: -- states on page 92, "I think I was correct in view of the line of questions which involve the headquarters being -- the headquarters of the Communist Party that I can stand on my privilege.”
Speaker: The only -- the other one I'd like to ask you about is page 99, count nine.
Morse Johnson: Right, Your Honor. I -- all that the Chairman has said there is, “It is my -- but it is our opinion,” and then he changes it. And mind you, Your Honor, we're dealing with witnesses in front of the Commission who were, as this -- this Court has frequently held in the Wilson case and so forth, to render a considerable amount of pressure. They have to make decisions quickly.
Speaker: The witnesses had lawyers, didn't they, in this case?
Morse Johnson: This gentleman had a lawyer with whom he could consult. And did consult. And having consulted with their lawyer, the Chairman on the next page seems to -- seems to accept counsel. “I have been advised by counsel that the privilege does apply, if I desire to use it.” “Counsel may proceed.” And I don't believe, Your Honor, that this Court could hold that this witness under those circumstances, particularly since he said it's my opinion as distinguished from the Commission's opinion, had overruled his assertion and found at a contumacious invocation.
Hugo L. Black: Did all have met a lawyer?
Morse Johnson: Appellants Raley and Stern had a lawyer, Mr. Justice Black. Appellant Brown was without counsel. I should like to call the Court's attention to what I consider a very important element in this case which -- which is as relevant to, particularly to Mr. -- appellant, Stern's refusal to answer the question, the point where -- where you live, the question as to where he lives. This Court will note that the mandate to the Commission required or -- or authorized the -- the Commission and this is on page 5 of my brief. “To maintain a liaison with any agency of the federal state or local governments in devising and promoting means of disclosing those persons in groups who seek to alter or destroy the Government of this State or of the United States by forced filings, intimidations, sabotage or threats of the same. I think this -- Court's attention should be called to the fact that throughout these hearings, these witnesses, and each of them were asked many questions about men, their associations with men, their friendship with men who were then under indictment under the Smith Act in federal court who had been convicted of -- of a violation of the Smiths Act. But more importantly, in this particular instance in which Mr. Stern refused to answer the question as to where he lived, Frank Hashmall was later alleged to have been at his residence. Frank Hashmall subsequent to these hearings was indicted under the Smith Act. Subsequent to these hearings, Frank Hashmall was indicted under the Smith Act. And I submit to Your Honors that it -- it was very proper and very correct for -- for appellant, Stern, to be concerned about questions, about with whom he lived and where he lived and who lived with him, particularly given the fact that the -- it seems to be to the Commission's opinion that Mr. Frank Hashmall, who subsequent to these hearings, had -- was indicted under the Smith Act. I feel that this -- this whole case and all of the issues that the case raises stand or indicate one thing. Human experience, as I think Mr. Justice Frankfurter pointed out in the Ollman case has a tendency -- there was a tendency in human experience to abuse power. And I think, Your Honors, that not only is there a tendency to abuse power, I think there's a tendency to abuse power in the same way. The National Commission on Law Observance and Enforcement summarized the rather inglorious history of the Star Chamber and the High Commission, the ecclesiastical courts. And pointed out that in those days, those -- those commissions in courts which did not operate like our judiciary does today exactly, were trying to do much the same things and have the same tendencies to do the things that this Commission had tried to do. To not have a specific charge, because when you have a specific charge, it requires that the questions must be pertinent. To be authorized to poke around into somebody's life and -- and into their activities in hopes that they might be able to find someway to condemn, to indict, to accuse, to expose an individual whose activities may have created a certain amount of hostility on the -- so far as the Commission. And I suggest that the whole tenor and attitude and authority of this Commission stem back or generated to the very problems that -- out of this high Commission, out of this Star Chamber, out of the ecclesiastical courts hail specifically, the privilege against self-incrimination. But the operations of those -- of those courts were much the same as legislative investigating commissions can be if they're not required to -- to take into account pertinence, if there isn't a specific matter under inquiry so that he witness can determine whether or not the -- the Commission has the authority to ask the question. And therefore I submit to Your Honor that these convictions should not be allowed to -- to stand, they violate the Due Process Clause of the Fourteenth Amendment, and I urge their reverse.
Felix Frankfurter: Just as a matter of curiosity beyond secrets, is this committee or committee commission, commission committee, whatever it is --
Morse Johnson: Commission.
Felix Frankfurter: -- still alive?
Morse Johnson: No, it's no longer alive Your Honor.
Earl Warren: Mr. Johnson before you sit down, I -- I would like to express appreciation of the Court to you for your assumption of this burden in this case. It's an unpopular one, the unpopular clauses that lawyers ordinarily do not seek to -- to undertake. And the fact that you've been willing to undertake it by assignment of the Court without compensation to yourself with all the burdens that go -- go with it, entitles you to the appreciation of this Court, and I thank you.
Morse Johnson: I'm deeply honored, Your Honor.
Earl Warren: And gentlemen representing the -- the State of -- of Ohio, we -- we thank you for you very earnest presentation and representation of the interest of your State.