Anonymous Nos. 6 and 7 v. Baker

PETITIONER:Anonymous Nos. 6 and 7
RESPONDENT:Baker
LOCATION:United States Senate

DOCKET NO.: 378
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 287 (1959)
ARGUED: Mar 25, 1959
DECIDED: Jun 15, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – March 25, 1959 in Anonymous Nos. 6 and 7 v. Baker

Raphael H. Weissman:

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

This is an appeal from contempt of court convictions made by a New York State Supreme Court justice, conducting a judicial inquiry into alleged so called ambulance chasing in Kings County, Brooklyn, New York.

The appellants were sentenced 30 days to sit in prison for refusal to answer questions.

Each appellant served two days and they are both enlarged in bail pending the determination of the appeal.

Their refusal to answer these questions was based upon the fact that the justice denied or refused to allow their counsel to be present in the courtroom while they were being questioned.

And the appellants now make a claim on this appeal that the denial of their counsel’s presence in the courtroom while they were being questioned and the appellants now make the claim on this appeal that the denial of their counsel presence in the courtroom where they were being question was a denial to them of their Fourteenth Amendment due process rights.

The order of this Court of November was from the consideration of jurisdiction until the argument of the case on appeal.

Our position on that jurisdictional aspect is that appeal does lie here as a matter of technical right, and in any event a substantial question being presented that the Court can make the decision of the question by the route of certiorari if for technical reasons, appeal fails.

Now, on the right to come here by way of appeal, the appellants take the position that Section 90 subdivision 10 of our local judiciary law in the State of New York, as construed and applied in this case, denied them their Fourteenth Amendment due process.

The section in brief provides for conduct of investigations by the appellate division of the conduct of attorneys at law.

And one of the provisions is that until a certain stage is reached, these investigations must be made privately.

Now in this case, the review of the commitments on the local law has to be taken by so called Article 78 proceedings, the equivalent of a common law certiorari and where a justice of the Supreme Court is involved as a party, the proceeding must be initiated in the intermediate appellate court or the appellate division of the Supreme Court of the State of New York.

So that the instant case started by original petitions in the appellate division of the Supreme Court for a review of these commitments.

The appellate division in this case, dismissed the petition on the ground that there was no distinction between the case we presented and a prior case which we designate as a companion case, which had then recently been decided by the appellate division and needs to appeal had been denied by the Court of Appeals.

In our case, the essential part of the ruling on this point is stated on page 10 of our brief and the appellate division said that we contented that our case was different from Anonymous M from the so called companion case.

They cite the Anonymous M case and they find that there was no difference and therefore our petitions were dismissed.

Now the Anonymous M case, the opinion on that or the essential portion on jurisdiction is printed on page 15 of our brief and there we say that the appellate division construed the right of the justice conducting the inquiry to exclude counsel to come out of this Section 90 subdivision 10.

The excerpt of this is a short one, it’s central, and I’ll read it.

The order also provided, this is from the companion case, that for the purposes of protecting the reputation of innocent persons, the said inquiry and investigation shall be conducted in private pursuant to the provisions of the judiciary law Section 90, Subdivision 10.

Then I have omitted certain portions and they conclude, it was not an abuse of discretion for the additional special term to exclude petitioner’s attorney from the room while petitioner was being questioned.

Now was it a violation of his constitutional rights?

Citing a local case which has nothing to do with it and matter of Groban then recently decided in this Court in judiciary law Section 90, so that we say that our petitions were dismissed in the appellate division on the ground that this local statute authorized the exclusion of counsel in order to maintain the statutory privacy.

Now after the dismissal of our petitions in the intermediary appellate court, we took an appeal as a matter of a right to the Court of Appeals to higher State Court of New York on the ground that a constitutional question was involved.

Then counsel for respondent made a motion in that court to dismiss on the ground that no substantial constitutional question was involved and the Court of Appeals granted the motion to dismiss on the ground that no substantial constitutional question was involved.

It should be no different if there was no challenge to the form in which we took our appeal.

It was the substance of our appeal that was thus adjudicated and we say that under the decisions of this Court that adjudication by the Court of Appeals at least for the purposes of jurisdiction is an affirmance of what was done in the appellate division.

Now with that as the premise, this is the way we start out our right to appeal as a technical matter under the decisions of this Court.

This Court will not review a construction of the statute of the state, especially in its constitutional aspect unless the court — the higher State Court itself either had an opportunity to construe it in relation to the constitutional challenge or in fact they construe it in relation to the constitutional challenge.

Now we say that the appellate division decision went up to the Court of Appeals which the Court of Appeals in effect did affirm, gave a full and complete notice that what was done here was done under this local statute, that it was challenged on the ground that would be unconstitutionality that is to say that it would deny due process.

And that the Court of Appeals had ample opportunity to say what it wanted to say in point of construction of that statute so that we say as a technical legal manner that appeal lies here because we have satisfied the rule, laid down on the cases of this Court that the highest State Court either did construe it or had a chance to construe it.

Do you specifically advise the statute — constitutionality of the statute?

Raphael H. Weissman:

I did not, not in the appellate division.

The point I am making here is there is a bifocal approach.

Either the necessity for the challenge in the State Court as I see it Your Honor is to give the highest State Court an opportunity to construe the statute, but if even without anybody raising the question, the record as a whole shows that the decision in the higher State Court was an affirmance of our position taken on the basis of a statute, then we have the substantial or real equivalent of a decision by the higher State Court that this statute authorizes exclusion and we are here as a matter of right by route of appeal.

Felix Frankfurter:

Do I hear correctly that do you think the companion case Anonymous M was a different case from your case and did not govern your case, isn’t it?

Raphael H. Weissman:

Only — not in respect — my answer should be no sir.

Only in respect of a local matter, there was a question of discretion involved.

The appellate division had decided two things.

The appellant division didn’t say that all must, all counsel must be excluded.

The appellate division there said that the justice at the inquiry had the right to exclude counsel over discretion to admit him.

The fuller text of that opinion shows that.

Now the distinction we make —

Felix Frankfurter:

I thought, read it actually somewhere that you indicated the circumstances in the companion case, Anonymous M, were different from circumstances in this case, that is correct, isn’t it?

Raphael H. Weissman:

That is correct in respect —

Felix Frankfurter:

And in this case, your claim is that he is not merely a witness as to the conduct of others but potentially he himself was or the defendant or may, may become a defendant that was not true in the companion case, was it?

Raphael H. Weissman:

That’s right.

Felix Frankfurter:

And therefore you say the misconception, it wasn’t misconception, the appellate division to find Anonymous M controlling from which I draw the inference, you tell me if it were just as I believe that the statute as such does not — does not violate or offend the Fourteenth Amendment, but the application made of it to the particular circumstances of the case which you are arguing, am I right about that?

Raphael H. Weissman:

We have — perhaps one qualification — I think Your Honor is right on that as to our position.

We take the traditional position that the statute as construed and applied to our particular case.

Felix Frankfurter:

That is true of every statute which is as it were arbitrarily applied to a particular situation makes them appeal although the statute continues to stand, continues to be enforceable and tomorrow after the effects of decision it just as operated as it was the day before?

Raphael H. Weissman:

That could be.

On the other hand there are statutes by their face upon a mere reading so far impinge upon constitutional limitation.

Felix Frankfurter:

That is in this case.

Raphael H. Weissman:

No because that statute was dragged in here by the heels.

It was never intended to cover a so called ambulance chasing investigation.

The statute has a long history, but that of course is not for this Court.

Those were some of the collateral matters that we argued in the local court.

We were —

Felix Frankfurter:

What becomes then, the underlying basis of the action of, what this judge authorized was this order to investigate ambulance case, wasn’t it?

Raphael H. Weissman:

Yes.

Felix Frankfurter:

That gave him his jurisdiction.

Raphael H. Weissman:

Yes sir.

Felix Frankfurter:

So that is the real, the real offence here is whether under that order he could do what is denied to him?

Raphael H. Weissman:

Only in one way, he didn’t act only under the order.

He was authorized by the order to act under the law.

He applied the law.

He was authorized by the order to undo the statute to exclude people so as to maintain the privacy.

The statute is right in the crux of this problem.

Felix Frankfurter:

Didn’t the order accorded at a special term — set forth that in order to protect the innocent people he may exclusively hold the hearings in camera.

Raphael H. Weissman:

Yes and it referred to this section of the statute.

The statute is right there.

Felix Frankfurter:

But because if flowed from that order, is it not?

Raphael H. Weissman:

His appointment flowed from the order, but he applied the law, he applied the statute.

Now on this question of the jurisdiction, we, he didn’t detain the case much longer because in any event I think the question as to whether or not we presented a substantial question is, subsumed in the court’s decision that the problem be postponed, the jurisdictional problem for the argument of the case on the merit.

So even if for technical reasons we failed on this question of right of appeal, I think the Court can decide the question by way of certiorari and the problem is really here without any serious impediment and now to the merits.

This was an order to investigate alleged malpractice by attorneys and others associated with them in Kings County.

The appellants here are not attorneys.

They are licensed investigators and they are just that.

They are licensed by the State of New York.

They have a defined function in the scheme of negligence, litigation and settlement.

Now they were subpoenaed to come before this investigation of the judicial inquiry.

They came with counsel and they repeatedly pointed out to the judge that before they had come in for the actual questioning, they and their counsel had been informed by a member of inquiry staff that enough evidence had already been gathered against them to submit to the district attorney, that the enquiry doesn’t intend to pussyfoot with them and that is if they come clean so to speak, that will be taken into consideration.

The testimony that was given by this member of the staff is found on page 115 and 116 in the record.

The way he came to give the testimony was that these parties repeatedly turned to the judge and said, we are not here as witnesses, we are here as prospective defendants, we are here as targets of this investigation.

We need the advice of counsel, and we were threatened they said.

And so the judge for the integrity of this process I suppose held a hearing to find out who threatened and when he was told especially that a member of the inquiry staff did it.

And so he heard testimony about one or two other witnesses and then came to the particular member of the staff and questioned and he was told you heard what was said and what you say about it.

And Your Honor see here, there on the page, that he tells his part of the story and he goes on to say, I don’t know my exact language, but I indicated that we did not intend to pussyfoot with them.

We were not trying to trap them in any manner, but the testimony and evidence have come before us in the course of our investigation that someone and the employer Gotham Claims Service, these appellants did business on their partnership name of Gotham Claims Service, had with some frequency obtained statements from defendants holding themselves out to be from defendants carriers and also holding themselves out to be from other agencies and in one instance the district attorney’s office.

That our investigation had disclosed that these statements had been tampered with and that it was these statements — and that it was relative to this that we wish to speak to them to find out if these statements were actually taken by Gotham Claims service for what attorneys these statements were taken, and whether the tampering was done by them or their employees, or a direction of some attorney.

Raphael H. Weissman:

And then he says something else, he finally says, I further stated that in my opinion there was prima facie evidence in the event that the clients decided to plead the Fifth Amendment to refer the matter to the district attorney’s office.

All this had happened before these people were called into the courtroom to be questioned and in light of this they repeatedly made their protest to the judge that they want the help of counsel while they were being questioned and he nevertheless denied.

Were they indicted (Inaudible)

Raphael H. Weissman:

No Your Honor they weren’t yet.

Their further investigation is being held up pending this litigation.

Now —

Felix Frankfurter:

Did the appellant claim immunity under the New York constitution?

Did they refuse, did they object to the whole inquiry and not merely decide a counsel —

Raphael H. Weissman:

Now they faced their refusal solely on the ground that their counsel was not allowed to be present?

Felix Frankfurter:

They did not invoke the state constitution of immunity, did they?

Raphael H. Weissman:

They did not.

Felix Frankfurter:

Or contest against the constitutionality of the proceeding in its entirely?

Raphael H. Weissman:

No sir.

There is no other questions in this case that whether or not the denial to them or the presence of their own counsel during the questioning in the courtroom so vitiated the process as to render this commitment void, that’s the sole question before this Court.

Now what actually is done with this evidence that is gathered at the judicial inquiry is disclosed now by a report made, an interim report by Mr. Justice Arkwright to the appellate division.

In quotations from that report in our brief, he says how many doctors the evidence that the doctors sent up for a prosecution before the medical board, how many are sent to the District Attorney’s office and it shows the closest liaison between this office and the District Attorney’s office, it’s right there in his own report, it’s just as though they were in an anteroom of the District Attorney’s office once you take people after they are examined, right into the other room for presentation for indictment, I said you take people, I mean you take their evidence.

Now, the reason for emphasizing this is that the brief for appellee and the position of Mr. Justice Arkwright in his answer, made very light of the whole thing.

They preceded on as though (Inaudible) as though this was something else, as though they were just conducting some sort of preliminary inquiry and thereafter a report is made for the appellate division and the appellate division then says what to do with it.

Now, in words that of course is so but in reality and there is own report shows, that isn’t anymore so than if the people here involved were clerks in the District Attorney’s office gathering the information so as to bring it into the Grand Jury room.

Charles E. Whittaker:

Mr. Weissman.

Raphael H. Weissman:

Yes, Your Honor.

Charles E. Whittaker:

I’m not sure I understand what happens after this investigation conducted by the special term is completed and he makes a report I understand to the justices.

Raphael H. Weissman:

Yes Your Honor.

Charles E. Whittaker:

Now then must if any further proceedings are to be taken against an individual, a separate judicial proceeding be instituted?

Raphael H. Weissman:

Yes sir, a separate judicial proceeding or a separate administrative proceeding because doctors are involved as well as lawyer, the firemen or prosecution for crime.

Yes, those are all separate technically separate steps.

Charles E. Whittaker:

No judgment is rendered upon any findings made by the special term?

Raphael H. Weissman:

None except as a recommendation from a justice of the Supreme Court is called what, this is a judicial inquiry.

It may be not the traditional judgment of conviction.

It may not be the traditional order of disbarment, and what is the recommendation by a justice of the Supreme Court who has taken testimony and considered it judicially and comes to a conclusion.

Raphael H. Weissman:

Technically Your Honor when Mr. Justice Arkwright gets through, he does nothing more then send his report to the appellate division, but that’s only technically.

It’s as if the clerk and the anteroom in the District Attorney’s office, when he gets through examining somebody, and develops a case against him, he doesn’t himself make a judgment of conviction he takes it in for the further steps.

Substantially what happens is that here is where these people are being tried.

Charles E. Whittaker:

Does it amount, does the report to the special term amount in effect to a determination of further or not there is probable cause to initiate some further proceedings?

Raphael H. Weissman:

Yes at least for that end (Inaudible) and the recommendation that certain things be done.

We have in the record here an excerpt from the report which indicates what the appellate division authorized Mr. Justice Arkwright and Mr. Hurley to do with these things.

It’s only formal approval by the appellate division.

This is a standard procedure and all of these investigations (Inaudible)

Raphael H. Weissman:

Well, standard in the sense that the two or three we’ve had before have — I’m afraid I can’t answer that, I don’t what they did in the others, but the orders seemed to be the same thing.

There is nothing standard of this because there is no statute, there is no rule, there has been one decision by our Court of Appeals, the old Carlen case.

This is breaking new ground in this respect.

This problem of representation by a counsel didn’t arise in the earlier investigations we had in New York.

Now Your Honors — I beg your pardon.

Felix Frankfurter:

(Inaudible) which validated this proceeding (Inaudible)

Raphael H. Weissman:

Procedure.

Felix Frankfurter:

That the proceeding (Inaudible) the appellate division into a generally inquiry (Inaudible) and they have to recognize that, unless I’m wrong about it, that such procedure, such inquiry maybe had either in camera or public, and in camera in order to protect its people, this is in the very words of the order, isn’t it?

Raphael H. Weissman:

Yes.

Now in —

Felix Frankfurter:

(Inaudible)

Raphael H. Weissman:

And yes what Your Honor said is true, but it doesn’t reach this point.

Felix Frankfurter:

I’m just suggesting it, I’m suggesting that this inquiry has been (Inaudible) in Chief Justice Cardozo’s opinion (Inaudible) just for the proceeding by the appellate division.

Raphael H. Weissman:

Yes Your Honor.

Except that, that decision left open the question as, for whose benefit privacy is to be maintained.

This order and the proceedings here, the record here showed that the privacy is maintained for the benefit of the appellate.

They were the ones being questioned and secondly aside from that, there wasn’t any question in any one of the prior investigations as to whether or not privacy reaches to the point, when a man accused in every realistic sense of the word cannot come in with his counsel.

Counsel under common law traditions have been entrusted with the lives, the secrets of the lives and fortunes of human beings for centuries.

Felix Frankfurter:

He could have stopped this whole inquiry couldn’t he by saying I’m a potential criminal defendant and thereby don’t propose to answer these questions, could he not?

Raphael H. Weissman:

Well that would have been a little more difficult because —

Felix Frankfurter:

Why would that be difficult?

Raphael H. Weissman:

Because before the Grand Jury you could do it, the statutes and the decisions were not so clear and the difficulty is manifested by the fact that he was clamped into jail here when he said I don’t want to answer without my attorney being present, that was his difficulty.

I’m putting to you a different question, I cannot conceive it is possible that a claim of a immunity may before a judicial proceeding, such as this was is not subject to same rights of a claim of immunity for any other judicial, and he could have stopped this whole inquiry by saying, I am a potential defendant, or I may turn out to be a defendant as a result of this inquiry and therefore I don’t suppose to begin answering questions, couldn’t he?

Raphael H. Weissman:

He’d have difficulty under our state law for this reason.

He was not before a Grand Jury.

Felix Frankfurter:

I thought he was the judge of the Supreme Court.

Raphael H. Weissman:

The judge didn’t look at it that way.

That was his difficulty.

The judge kept saying all through the hearing I advise you or I rule that you are only a witness.

Felix Frankfurter:

Yes but he never claimed immunity which he can invoke under the New York constitution (Inaudible)

Raphael H. Weissman:

That’s right.

Felix Frankfurter:

And this before a man who was sitting in special term as a Supreme Court Judge in Brooklyn.

Raphael H. Weissman:

There are two answers to that, he never did, he never got to it, in the first place.

We say that he being a potential defendant had all his constitutional rights, among them the right in the first place to be represented by counsel and that —

Felix Frankfurter:

So is that the Fourteenth Amendment?

Raphael H. Weissman:

Under the Fourteenth Amendment.

Felix Frankfurter:

Why he, under the Fourteenth Amendment he could be prosecuted for a crime and not be entitled to the defense of counsel.

Raphael H. Weissman:

Well that depends upon the — yes there are situations, but in this case he had the right as a potential defendant to representation in a criminal case by — a potentially (Inaudible) by a counsel.

In our state we allow counsel in all criminal cases.

Now, getting back to the question or the implications as I get them from Your Honor’s question, about he could have invoked the state privilege against self incrimination, of course he could have, but does the existence of one constitutional right constitute a basis for the denial of another?

Felix Frankfurter:

Not if he has it.

Raphael H. Weissman:

Not if he has it, now of course we claim he had, now the second thing is, these were laymen.

There are difficulties about invoking constitutional rights.

There are intricate angles of waiver, depends upon how much you say, and what attitude you take and whether you do it on the affirmative.

Felix Frankfurter:

Could he go out in the hall and consult his counsel?

Raphael H. Weissman:

Yes he could go out in the hall and consult his counsel and that only emphasizes the violation of his constitutional rights.

In this case the judge below at certain junctures told them that they may consult their counsel outside.

Now Your Honor will surely know, the counsel outside cannot know the course of proceedings, the conjunction at which a man is asked the question.

Felix Frankfurter:

But he could tell him don’t answer anything.

Raphael H. Weissman:

He could tell him —

Felix Frankfurter:

(Inaudible)

Raphael H. Weissman:

It all depends upon whether or not counsel wants to act clumsily or whether he wants to act to the best of his ability with full knowledge.

Raphael H. Weissman:

Now counsel outside doesn’t know exactly what’s happening.

Here is a (Inaudible) layman who comes out and tells him, the judge told me this or that.

That has happened.

I have been outside with trials there.

It’s the most difficult thing in the world to get it from them whether layman or lawyer to get the exact conjunction at which whatever question arouse.

Felix Frankfurter:

Mr. Weissman but your case here if it doesn’t (Inaudible) finds great support from the fact that a member of the staff told him we are not going to pussyfoot with you, you could have reported that.

That’s not a clumsy problem.

Even the layman in this business would understand that, wouldn’t he?

Raphael H. Weissman:

Yeah.

Felix Frankfurter:

Indeed your claim is that that would make your case different from Anonymous M?

Raphael H. Weissman:

Yeah.

He didn’t have to resort to that.

Every man doesn’t have to claim —

Felix Frankfurter:

Now but the question is whether it violates the federal constitution, whether – that he wasn’t allowed to have a lawyer in although he could have protected himself (Inaudible) by not having him in?

Raphael H. Weissman:

He could not — if he could have protected — I will say two things.

In the first place he could not have protected himself and plead no reason adequately if he didn’t have his lawyer in there.

And then in second place even if he could, if he faced is a criminal trial, he is entitled to be presented in pretrial proceedings by counsel and he doesn’t have to have counsel on an as-if basis, counsel standing outside to get information from him in a frightened condition or otherwise.

If counsel is going to represent somebody, if he has a right to representation by counsel, it must be then and there.

There’s another consideration as was indicated by the dissenting opinion of Mr. Justice Black in the Groban case.

This in an in-camera proceeding.

While it’s been sanctioned in the Karlin case and never taken up higher, this is still an in-camera proceeding with all the invidious and unfortunate consequences that in-camera proceedings have to this day.

An in-camera proceeding is not only vicious when it was conducted in history, it is infinitely more vicious in these more civilized times.

Now in such a situation it is a very comfort and great protection for a man when he is being grilled by a judge, a large staff of counsel in the courtroom to have the guiding hand of counsel and he is entitled to it.

Now we say Your Honors that that the decisions below were rested on the misapprehension of the reach of the decision of this case in matter of Groban.

And while dissecting precedence is hardly a profitable undertaking in most times, in this case it will help to focus the problem down, the considerations in relation to this problem were fully developed by the three opinions in matter of Groban and we say that in substantial, realistic respect, the case of matter of Groban is based upon considerations that do not apply here and entirely different from the considerations that apply here and that in this case the man was entitled to his counsel.

Now there were the three opinions, one by Mr. Justice Reed and there was a concurring opinion by Mr. Justice Frankfurter and there was the dissenting opinion by Mr. Justice Black.

First I think it is profitable to see that the considerations that moved the prevailing opinion of Mr. Justice Reed are entirely absent and different here and I shall show that even the concurring opinion was based on considerations that has applied to the circumstances of this case would warrant a holding here, require a holding here, the counsel should have been allowed.

In the first place, we had in the Groban case, a fire marshal making an investigation of causes of a fire.

Perhaps the situation as you view it as a whole (Inaudible), but practically through the imagination you could see that one cannot compare, considerations applying to the investigation of a fire by a fire marshal to hearing in the courtroom, the old appellate division courtroom with bench as long as this, Judge in a courtroom outside as lighted up as this courtroom with a large staff of counsel on one side having a man in there and he is not to be represented.

The situations are entirely different in the, and the difference is even shown in the very open book of our language.

Raphael H. Weissman:

People say what’s your hurry where is the fire.

The fire marshal is in a hurry.

He has to do things quickly.

It didn’t happen to be in that case that it was done in such a hurry but the ruling had to be made on a basis that he would exercise his power this way and that way Your Honors kind of made a ruling for every hour of these function, but he was a fire marshal.

He may have to run with some people right down and while things are smoldering and find out what’s the cause of the fire and in such circumstances to require representation and perhaps some reasonable time for preparation.

It violates the essential function involved.

We have no such problem here and this is a long investigation, judicial investigation, hearings in a courtroom presided over by a judge.

We don’t have that kind of hurry.

Now in the Groban case it was prominently stated both in the majority opinion and Mr. Justice Frankfurter’s concurring opinion that all that you had there was that the man who came here to this Court and complained, said that he suspected or that there was a suspicion against him.

And both Mr. Justice Reed’s opinion and Mr. Justice Frankfurter’s opinion had worded to the fact that this was not anything aimed at a man who have been accused.

There was a suspicion and Mr. Justice Reed pointed out in that case that the suspicion that was — they had argued before this Court, was without even any (Inaudible) or any proof or any affidavit to sustain the fact that the fire marshal had any suspicion against the man involved in Groban.

And you have no such problem here because before the questioning commenced, the very judge was informed in that proceeding that his assistant had already told the man that they had gathered against him evidence, prima facie evidence sufficient to make out a crime and we won’t pussyfoot with you.

If you don’t play ball we’ll send it to the district attorney.

So that in the Groban case you had a suspicion, and here you have a man who in every real sense of the word and its meaning in the English language was accused.

The brief for appellee and that’s the argument we’ll talk about accusation in the technical sense.

Suppose in the New York statute or the Judge Arkwright said, one man grand jury, would that be of any difference to your position?

Raphael H. Weissman:

Well as I remember the Murchison case which I didn’t cite here I don’t think that there’d be much difference but I am not in a position to say, difficult enough to focus on the one problem and perhaps the analogy might be misleading and I have really haven’t considered it from that point of view.

There is another aspect of the investigation and will involve the Murchison situation because this judge sits in a dual capacity explicitly under the (Inaudible).

He is both investigator and justice of the Supreme Court.

He investigates and he adjudicates, but that problem is not involved in this.

This is solely the question of right of representation by counsel.

Now in another point that was made in the prevailing opinion in Groban was that in any event, if anything was done unfairly to extract evidence from the person who ultimately is charged with crime that can be shown upon a subsequent prosecution at the prosecution level as a basis for a plea to exclude like in the general considerations of the forced evidence or involuntary evidence of whether there was something on there.

Now that’s the very important thing to remember because in this case these people had no such chance whatever, these people are called to give evidence before a justice of the Supreme Court and under our local practice act and under the common law everywhere, when you give evidence in court (Inaudible) that’s it, you have no more defenses.

You can’t impeach that in any subsequent trial except on relevancy, but I mean as to it’s — the genuineness of the evidence that was given.

Now in the concurring opinion written by Mr. Justice Frankfurter, emphasis was laid on the fact that the statute there was not aimed at suspect and the thought was developed from which I rely here to some extent, that if there are differences, as I read the opinion, the concurring opinion it reserved on the decision made and the concurring opinion as I read it, and this sounds probably I’m sure to Mr. Justice Frankfurter, because he knows what he wrote and I’m just reading it and imagining the (Inaudible).

That was no general warrant in the Groban case to investigate people without counsel, no matter how near you get to the suspect line and so on.

And Mr. Justice Frankfurter there wrote the sentence that if there are differences in degree a due regard for due process requires that those differences be given their significance.

Now here we don’t have any differences of degree.

We have a substantially different situation.

We have a court process and not a fire marshal’s investigation or anybody else’s investigation.

Raphael H. Weissman:

This is called an investigation, but it’s made by a court.

A court in all its aspects functions judicially.

A court has administrative functions, but in the whole, in the gross and scope of their judicial functions, administrative aspects of judicial functions.

Potter Stewart:

I don’t find at all the distinction that you are making.

As I understand that your — you of course have to accept the Groban decision because there it is, and as I understand the distinction you have been making, it suggests that there is less danger of unfairness in the case of a man not represented by counsel if the hearing officer is a fire marshal than there is for a man unrepresented by counsel if the hearing officer is a judge, do I gather that correctly?

Raphael H. Weissman:

Well I’m sorry if you got that impression it’s my fault.

I think the danger maybe as great perhaps of one case as in the other.

I point out that in fact according to that record and this the danger here was infinitely greater than it was there and then I point out as a matter of law, the judicial process that the court has to take account of the way things are done in life, that what the court may have to reluctantly yield to a fire marshal it doesn’t at all have to either reluctantly or yield to a judge.

Those things happen all the time in the judicial process, and then they are all like a mathematical formula.

You first take account of realities, and I think that pervading the whole Groban opinion and this language shows it was, that the majority side, was that this was a fire marshal.

We are dealing with fires.

Fires need expedi —

Potter Stewart:

The fire was over in that case, wasn’t it?

Raphael H. Weissman:

In there, I said before in that case, it happened that the fire was over, but it is hardly to be expected that this Court will make a decision for a fire marshal when he is at the fire and then what happens a half hour later or a half hour before or a half hour or a day later, those things are done that way.

Maybe if a fire marshal comes back here or a fire marshal’s case where the thing had been over for six or eight weeks, maybe Your Honors might think that the considerations of fine even to a fire marshal should not apply to a situation six or eight weeks later.

I do not say that our man was in less danger, if he were before one or another.

What I said about the fire marshal was try to read the considerations that the judicial process has to wrestle with in concrete situations.

Now what it says about a fire marshal is one thing, what it says about a judge, holding a hearing in an open court with a large staff of counsel on another side is another thing.

But further my distinctions go in showing that in point of fact the facts disclosed by that record showed an infinitely less situation of danger requiring protection than ours.

Potter Stewart:

Well I understand of course your point about the suspicion in that case as contrasted to the statement of the investigator?

Hugo L. Black:

What (Inaudible)

Raphael H. Weissman:

What Your Honor?

Hugo L. Black:

What action is present in this hearing?

Raphael H. Weissman:

In the hearing room, the presiding justice and several members of the staff of counsel.

Hugo L. Black:

Counsel for whom?

Raphael H. Weissman:

For the judicial — for him, for the judge.

This order points to —

Hugo L. Black:

Employed by whom?

Raphael H. Weissman:

Huh?

Hugo L. Black:

Employed by whom?

Raphael H. Weissman:

By the judge, appointed by the appellant division and employed by the —

Hugo L. Black:

Paid by the state?

Raphael H. Weissman:

Yes, there’s a charge on the city budget.

Hugo L. Black:

For the whole city attorneys or county attorneys or what?

Raphael H. Weissman:

No, they are just called under the judiciary law counsel appointed to aid in the investigation.

Charles E. Whittaker:

Were the private lawyers appointed by the (Inaudible)

Raphael H. Weissman:

The private lawyer —

Charles E. Whittaker:

(Inaudible)

Raphael H. Weissman:

Practicing publicly, but the got their appointment, they have their appointment, they are public officials in that sense of the word.

They are like (Inaudible).

They are investigating attorneys, they (Inaudible) the District Attorney’s office.

Hugo L. Black:

Is the statute printed under which they were appointed?

Raphael H. Weissman:

No Your Honor but the order is printed and that refers to the statute.

The order of the appellate division appointed the judge to hold the term.

It also appointed him to be the investigator and then it also appointed Mr. Hurley as counsel to aid the judge, not as the attorney, to aid the judge in the investigation and then it gives him authority to appoint a staff and they get a budget, and it’s like a temporary special prosecutor.

The judge himself is paid his own judicial salary, he gets no more.

Hugo L. Black:

And what happens under the law if the charge is made by the judge?

Raphael H. Weissman:

It goes back to the appellate division, gets its approval and then it goes to the District Attorney for prosecution or for disbarment or if a doctor is involved to the medical board, and the record does contain the statement as to what had been done with the evidence gathered at or about the time that this situation arose.

Hugo L. Black:

The special prosecutor’s (Inaudible), does it with the report made by the judge?

Raphael H. Weissman:

The judge himself of the special prosecution.

Hugo L. Black:

Well, I mean the —

Raphael H. Weissman:

Yes.

Hugo L. Black:

— the assistants to the judge — the special prosecutor, is that (Inaudible) in when the judge makes the report to the District Attorney?

Raphael H. Weissman:

Well, now for whatever we see in the record that maybe so, but in the reality and in accordance with newspaper items that I’ve also included in the record, they cooperate with the District Attorney’s office and Mr. Hurley is in-charge of that staff and he could tell us more.

They really do not in any realistic sense of the word end.

They just carry on.

They take that evidence, we know in Brooklyn and we read it in the papers all the time.

They cooperate with Mr. Aaron Cooter who is an assistant of Mr. Silva, the District Attorney and they carry through the prosecution though the disbarment or whatever it is that happens to be recommended.

It is not a confined function that the judge —

Hugo L. Black:

As I understand you, the only ones present for the judge.

Raphael H. Weissman:

The judge —

Hugo L. Black:

Special prosecutor, special attorney.

Raphael H. Weissman:

Yes and the stenographer.

Hugo L. Black:

The stenographer.

Raphael H. Weissman:

And some of his investigators.

Hugo L. Black:

And the witness —

Raphael H. Weissman:

And the witness.

Now from time to time, and at one time in this —

Hugo L. Black:

Any other officials there, are permitted to be there?

Raphael H. Weissman:

I don’t know whether any others were there, but — and I don’t know whether they are permitted to be there.

I was there on one occasion and I saw about 12 people sitting around.

Hugo L. Black:

You were inside?

Raphael H. Weissman:

I was inside.

Hugo L. Black:

Were you permitted to stay inside?

Raphael H. Weissman:

Now that was in connection with a special motion on another case, yes sir.

Hugo L. Black:

In another case?

Raphael H. Weissman:

Yes sir, not in this case and in the other case I was permitted to come in because again the witness refused to answer questions unless his counsel was present and the judge after this Court had granted certiorari permitted me to come in the one case, but that was another case.

Hugo L. Black:

The charge here is based solely on the practices that he declined to testify without telling his lawyer there that —

Raphael H. Weissman:

Yes.

Hugo L. Black:

Is that the —

Raphael H. Weissman:

Yes Your Honor, there is no question about it.

The appellate division memorandum makes that perfectly clear that the whole case —

Felix Frankfurter:

Just in the interest of accuracy, I suppose your brother would tell us, but isn’t this like the many instances to which Chief Judge Cardozo referred where the whole proceeding is initiated by a bar association, it makes the petitions to the appellate division and the appellate division then decides whether the representations are of sufficient gravity to call for an inquiry and when it finds a sufficient gravity as it did in the Karlin case, it then designates a special justice of the Supreme Court to sit in as the hearing master, a report to it, and the hearing master (Inaudible) Supreme Court of either the first division or the second or any of the other four divisions in New York, is then assisted by a lawyer designated by the petition in bar association, isn’t that correct?

Raphael H. Weissman:

Substantially Your Honor.

Hugo L. Black:

That’s what occurred here, did the bar association name the (Inaudible) special judge or the —

Raphael H. Weissman:

No.

Felix Frankfurter:

Not the judge?

Raphael H. Weissman:

Not the judge.

Hugo L. Black:

So the lawyer —

Raphael H. Weissman:

They nominate the lawyer because I think it’s a requirement under the statute.

Raphael H. Weissman:

They nominated the lawyer and they nominated a distinguished lawyer Mr. Hurley of (Inaudible).

Earl Warren:

Mr. Weissman.

Raphael H. Weissman:

Yes Your Honor.

Earl Warren:

I understood you to say that the order gave the judge the discretion of either permitting counsel or keeping counsel out, is that correct?

Raphael H. Weissman:

Yes Your Honor.

Earl Warren:

Now does that refer back to any language in any statute?

Is there any statute that gives the right to do that?

Raphael H. Weissman:

No Your Honor.

It’s the same statute.

Earl Warren:

Yes.

Raphael H. Weissman:

The appellate division did that in a decision.

If I answer Your Honor inadvertently here and perhaps mislead you, the appellate division enjoined privacy in the older, but in another decision which we have included in our brief, they indicated that since in that case, this companion case, the matter of M. Anonymous, the person who came before the justice was not a mere witness as to act of somebody else, but was himself a target of the investigation that the judge might well — very well have exercised his discretion to allow counsel with him in courtroom while he was being questioned.

Earl Warren:

I see.

It is not in the order itself, is that correct?

Raphael H. Weissman:

Yes sir.

In the order it just enjoined to maintain privacy and that refers to the statute.

Earl Warren:

Yes, yes.

May I ask this as a matter of interest?

Was there any discretion used prior to your case that you know in excluding or admitting counsel?

Raphael H. Weissman:

There are opinions which we’ve referred to in our brief that show that counsel had been uniformly excluded, except for the one instance after certiorari was granted in this case —

Earl Warren:

Yes.

Raphael H. Weissman:

— where I appeared with another witness who again refused, that time he was (Inaudible) to go in without counsel and I was permitted and that was the only instance and the judge himself told me that, that was the only exception, but theretofore he had maintained a rigid adherence to exclusion.

Earl Warren:

Yes.

Raphael H. Weissman:

Now Your Honors there are two cases that the filed brief mentions, at the end of term this Court had two cases involving the denial of counsel during a period of preliminary police investigation, and I just want to point out briefly that those cases have nothing to do with this kind of situation.

In those cases it was pointed out, in both opinions that whatever was said to the prosecuting authorities was said voluntarily, whereas here the people were brought in under compulsion, to be raised by their heals if they refused to answer, and secondly you have the feature in those two cases, the (Inaudible) case that if there were some abuse involved in procuring the evidence that maybe shown for the purposes of later exclusion, which I’ve shown before does not exist here.

Once they give their evidence they are gone.

Now, there has been some attempt to equate this with a Grand Jury procedure and I need only refer to what Mr. Justice Black said in the dissenting opinion, in Groban about the attempt to do that.

This of course is not anything like a Grand Jury procedure, certainly not in our state.

They couldn’t get him to come in and testify without giving him immunity, if he is a target of the investigation.

Felix Frankfurter:

He would have to claim it, wouldn’t he?

Raphael H. Weissman:

Well he would have to claim it, but he’d get immunity.

Felix Frankfurter:

Yes.

Raphael H. Weissman:

And they’d change in the statute.

Formally if they ask him questions he got immunity.

Now —

William J. Brennan, Jr.:

Mr. Weissman do you have prosecution of information in New York, do you not?

Raphael H. Weissman:

I’m sorry?

William J. Brennan, Jr.:

Prosecution on information, rather that on indictment.

Raphael H. Weissman:

There are for minor crimes.

William J. Brennan, Jr.:

Well might, for example on the basis of testimony taken before the judge, the District Attorney prosecute by information, say your client is —

Raphael H. Weissman:

Indeed.

My client didn’t testify, but others who do indeed.

That’s one of the functions and purposes of this.

If a crime discloses one that could be prosecuted by information, you pick it up from here, you bring in there, you prosecute, that’s all there is to it.

And then one other point I want to mention is this that some attempt has been made in the brief heretofore and I think obliquely or briefly in this brief, to say that this right of representation by counsel in the criminal case doesn’t apply until you have practically called the man up for trial.

And verbally that was arguable before the end of term of this Court, and now even verbally that is not arguable.

If a man has a right to be represented by a counsel, he has the right to have him when it is most important.

If a man goes in before this judge and gives his evidence and has no counsel, then it doesn’t matter if had John W. Davis represent him at the prosecution.

He is a goner, because all his rights are gone and there is no way to reclaim, and one of those preliminary police investigation cases Your Honors made clear in the opinion by Mr. Justice Clark, that the right for counsel commences at the point in free trial, I think the word was proceedings, but in the scope of the setting, I take it to mean that at the pre-trial action whatever it is, where the man comes in for jeopardy.

In this case if the man didn’t have his counsel while he was before the judge, he will have been prosecuted later on, if they had as they say they have a case against him for crime without ever having effective representation of counsel.

This case Your Honors was in the court.

I am aware that I have made this point in several aspects.

This was in the courtroom conducted by a judge.

This was part of the judicial process, and I say to Your Honors that the Court is the one place in this world where the denial to a person charged to refuse of counsel, should not be allowed.

Earl Warren:

Mr. Hurley.

Denis M. Hurley:

Mr. Chief Justice, may it please the Court.

I think I can probably clarify some of the questions that the Court has been asking by a brief reference to the order of the appellate division establishing this judicial inquiry and investigation.

For the convenience of the Court, I have set out the order in an appendix, Appendix A at page 27 of my brief.

And there briefly this order was made on the 21st of January 1957 by the court and signed by the presiding justice of the appellate division.

And Your Honors will note that it’s in the matter of the petition of the Brooklyn Bar Association that this investigation was launched into unprofessional conduct by attorneys and others acting in concert with them in Kings County.

Denis M. Hurley:

Now there’s the order on page 27.

Then on page 28, the order sets forth the scope of the inquiry, and the scope of the inquiry as set forth therein under the various paragraphs one, two, three, four with respect to alleged improper practices and abuses by attorneys and counselors at law, with respect to alleged, corrupt and unethical practices including the practice of solicitation in obtaining retainers, and in the subsequent prosecution and disposition of claims with respect to any other practice involving professional misconduct, fraud, deceit corruption, crime, misdemeanor and so on.

Then the order provides that Judge Arkwright be appointed to conduct this additional special term with full power to compel the attendance of witnesses, their testimony under oath, the production of books and papers.

That it was to begin on the 22nd of January 57, and then – I, an attorney and counselor at law, who has been duly designated by the Brooklyn Bar Association is designated to aid the justice in the conduct of the inquiry and in the prosecution of the investigation pursuant to the provisions of the judiciary law set forth.

Then the last paragraph concerning privacy as you will notice from the introductory words is for the purpose of protecting the reputation of innocent persons.

Now immediately following the order – oh and the one other very important factor, the last directory paragraph states that upon the conclusion of the inquiry and investigation, the justice shall make and file with this Court, that is with the appellate division, his report setting forth his proceedings, his findings and his recommendations.

In other words, going back to very first case in New York that I know of where such an inquiry was ordered on the application of the association of the bar of the City of New York in the first department in 1928, in that case the appellate division said and I cited the case in my brief, Matter of Association of the Bar, that is the leading case, and in that case, the court said that the — it had inherent power to order this investigation, but it also had statutory power to order such an inquiry, a preliminary investigation as this.

And the court said, that because the appellate division by virtue of Section 90 of the judiciary law, which is printed in my brief for the convenience of the court immediately following the order Appendix B on page 30, in this statute in the judiciary law Section 90, plenary power as I can see that is vested in the appellate division although the conduct of attorneys they have regulatory control, disciplinary control over attorneys, which incidentally as I understand it from Judge Cardozo’s opinion goes back to some 300 years in England, with the Inns of Court where the justices delegated their power to the members of the Inns of Court, all of which is very elaborately set forth in Chief Judge Cardozo’s opinion in the Karlin case that’s been referred to here.

Earl Warren:

Mr. Hurley.

Denis M. Hurley:

Yes Your Honor.

Earl Warren:

May I ask you one question? Under this order, that you have just been reading, did the judge have the authority to grant immunity to any witness who might come before him?

Denis M. Hurley:

No Your Honor, that is very interesting question and we have found that there is no such power in the justice to grant immunity.

In New York it must be granted — it must be granted by special statute to each separate court or commission or body that may exercise the power.

Recently —

Felix Frankfurter:

You mean the immunity if it justifies or must he — maybe — must he respect a claim of immunity against self incrimination?

Denis M. Hurley:

Oh, he must definitely respect the claim.

In other words, if a witness said I claim my – I invoke my constitution the court will have to uphold it.

Felix Frankfurter:

I thought you probably —

Denis M. Hurley:

But I thought Your Honor was talking about whether the —

Earl Warren:

I did that was the question I — that is the question I asked.

Denis M. Hurley:

In other words as I understand the question, and the judge here, Judge Arkwright, had not right to grant the witness immunity from prosecution and compel him into court.

Earl Warren:

Yes.

Denis M. Hurley:

As a matter of fact for the benefit of such an inquiry as this, and because we had had up to the date of this particular proceeding, we had 60 witnesses invoke their privilege, 24 of whom were attorneys and these attorneys over the last three years or so had some 9500 cases and with their plea of immunity we just can’t find out, we can’t get the facts from these attorneys.

We have been trying to get the state legislature to pass legislation so that a judge presiding with such an inquiry as this may have the power to grant the witness immunity and thereby compel him to talk.

Felix Frankfurter:

Let me be clear of what you are saying?

Denis M. Hurley:

Yes, Your Honor.

Felix Frankfurter:

If a witness claimed privilege to keep quiet at an end of the inquiry that Mr. Justice Arkwright – Justice confronted in this case —

Denis M. Hurley:

Yes, Your Honor.

Felix Frankfurter:

That is he is not given because the grant of immunity for prosecution is something else which in New York and other state is carefully guarded as to who can be given and who can’t.

Denis M. Hurley:

That’s right Your Honor.

Felix Frankfurter:

If this witness had claimed privilege not to testify, that would have been at the end of inquiry as to him.

Denis M. Hurley:

Yes, Your Honor.

Earl Warren:

By claiming that it would incriminate him, is that —

Denis M. Hurley:

If he claimed that he would be incriminated by — that would be the end of it.

Earl Warren:

Well, that’s not exactly what I was —

Denis M. Hurley:

We could go no further and the judge repeatedly in this case has upheld witnesses who invoked their constitutional privilege against self incrimination.

Earl Warren:

Yes.

Now what I am getting at is this, suppose there was this in the proceeding and nothing else?

Witness was asked a question and he said, judge if I answer any questions I demand immunity, what would happen then?

Denis M. Hurley:

The judge wouldn’t have the power to grant him immunity from prosecution.

Earl Warren:

All right, suppose it ended right —

Denis M. Hurley:

We haven’t got that right.

Earl Warren:

All right suppose it ended right there, what would happen insofar as the witness was concerned, what would happen then? Would you proceed or would you dismiss the witness?

Denis M. Hurley:

We proceed Your Honor.

Earl Warren:

You would proceed?

Denis M. Hurley:

We would proceed.

Earl Warren:

In other words you would not recognize his demand that if he testifies, he is entitled to immunity, you would compel him to go further and claim his privilege against incrimination?

Denis M. Hurley:

That’s right Your Honor.

Felix Frankfurter:

But Mr. Hurley nobody can claim immunity from prosecution merely by asking for it.

He can only claim that in answer to or as an equivalent to his privilege against self incrimination.

Denis M. Hurley:

That’s right Your Honor.

Felix Frankfurter:

Witness can say Your Honor; I want immunity before I talk.

Well, the judge says what are you claiming immunity for, immunity from prosecution?

You can’t claim immunity for prosecution unless you claim the privilege against self incrimination.

Denis M. Hurley:

That’s right Your Honor.

Earl Warren:

As I understand (Inaudible) that too.

The only thing I understood a little while ago from the question that if he had just walked in there and had demanded immunity and nothing else, he could have been excused —

Denis M. Hurley:

No, he had to claim his privilege.

Earl Warren:

I think Justice Frankfurter you and I are not in disagreement.

Felix Frankfurter:

He can’t do that before a regular court, Mr. Hurley, can he?

Earl Warren:

No, you can’t do that in any court.

Hugo L. Black:

He would have to claim immunity and he would have claim privilege on each question that was asked no matter how many —

Denis M. Hurley:

That’s right Your Honor.

Hugo L. Black:

He would be in there without a lawyer.

Denis M. Hurley:

That’s right.

Hugo L. Black:

Now you don’t mean to say that do you, that by just refusing to answer the first question on the ground it might incriminate him, you would be let alone until you’re going out?

Denis M. Hurley:

Oh, no we would ask a series of questions.

Hugo L. Black:

Continue to ask questions.

Denis M. Hurley:

I continue to —

Hugo L. Black:

Somewhat like it’s done usually when a witness gets on the stand and they make him claim his privilege, and claim his privilege and keep on claiming his privilege.

Denis M. Hurley:

That’s right and then I have usually ended with a sort of anomalous question Mr. Jones — as I take it from your answers, you are going to make the same claim with respect to every question I ask you.

No matter what the question is, you are going to claim — you are going to invoke your privilege against self incrimination.

Felix Frankfurter:

Well, just as a matter, can we ask you –

Denis M. Hurley:

Yes Your Honor.

Felix Frankfurter:

Justice Arkwright or any other judges in New York allow you to go on and put substantially the same question which to his mind is clearly relevant to the claim of the privilege forever for hours?

Denis M. Hurley:

Oh!

No, no, as a matter of act — oh as a matter of fact.

Felix Frankfurter:

(Inaudible)

Denis M. Hurley:

Well, in this particular case without the claim of immunity, but claiming that he shouldn’t be compelled to testify because his counsel wasn’t in the courtroom.

I think in one case the Judge held him in contempt on 16 questions and in the other case on 24 questions.

It was probably all over in each instance in —

William O. Douglas:

You have the rule of New York that if a witness answered one question and he has waived all of the his right to protest to —

Denis M. Hurley:

As to that, as to that particular matter we have the matter of waiving?

William O. Douglas:

Like the Rogers case in this Court?

Denis M. Hurley:

Yes it maybe waived, it maybe waived by answering relevant questions as possible.

William J. Brennan, Jr.:

Well Mr. Hurley have you had occasion then when a witness has answered and then later evoked the privilege to have the judge rule that he could not?

Denis M. Hurley:

No we haven’t, we haven’t had that.

It’s either been an outright invocation of the privilege or the witness has testified.

William J. Brennan, Jr.:

Well in other words you have never raised with the judge the question whether in fact the privilege was available as to the particular question to the witness?

Denis M. Hurley:

I don’t follow you on that Your Honor.

William J. Brennan, Jr.:

What’s your name, I plead the – privilege against self incrimination, have you ever challenged that to the judge at that time.

Denis M. Hurley:

No, the judge — the Judge Arkwright and now Judge Baker has upheld every witness the way they’ve invoked a privilege.

William J. Brennan, Jr.:

Without regard to what the question was?

Denis M. Hurley:

That without regard to what the question is.

He is — both judges are very conscious of this rule about the link in the chain.

Earl Warren:

While that matter is true, why — why did they ask 16 questions in one case and 24 in another before the witness is excused or before a general question was about — concerning his refusal to testify was given, why 24 questions.

Denis M. Hurley:

Well it was a matter of probably another 10 minutes Your Honor.

And as a matter of fact it maybe, as I recall it, I think that with respect to these witnesses, there might have been different counsel questioning them.

I think I, one of my assistants started with one and then I added some other questions, he was sick, he wasn’t well and he has to be relieved and I took over.

Earl Warren:

He left —

Denis M. Hurley:

Frankly I wasn’t satisfied with the questions my assistant had asked so then I asked these others.

Earl Warren:

Do you let more than one person interrogate the witness in those proceedings?

Denis M. Hurley:

Only in this, only in this particular case, and in this particular instance where this assistant of mine happened to get sick.

He — judge couldn’t hear me.

He said he had a terrible cold and he asked me if I please take over and ask the questions.

Now referring if Your Honors please to the statute this will answer some more questions, I think I was up to the point of saying that the appellate division has full control of the lawyers.

And this order that I have just referred to is a statutory order in this sense that it follows almost literally and in some cases verbatim Section 90 of our judiciary law.

And beginning on page 30 I set forth the pertinent parts of the judiciary law pertaining to such a proceeding as this.

And then if you get down to about the middle of page 31, you’ll see that there is language there to the effect that the presiding justice of the appellate division to which charges of professional misconduct against an attorney and counsel at law had been presented may make an order directing, and then it talks about expenses, how the expenses have to be paid, and then down below that that would as to a specific disciplinary proceeding against attorney A.

Then down below that the presiding judge may also make an order directing the expense of a preliminary investigation in such charge, to such charges to be paid by the county treasurer of the county and so forth within the judicial department.

And the subdivision 7, that it shall be the duty of any district attorney within the department when so designated by the presiding judge to prosecute all proceedings for the removal or suspension of attorneys, and down below that, or in county’s of a certain size that presiding justice may appoint an attorney and counsel at law designated by a duly incorporated bar association approved by him to prosecute any such proceedings and so on.

Then we come to subdivision 10 which is the statute which my friend attacks as I say for the first time in this Court, never, never raised in the courts below.

Now if Your Honors would glance through subdivision 10 of Section 90 set forth in full on page 32 about any statute or rule to the contrary not withstanding all papers, records and documents upon the application or examination of any person for admission to the bar and so forth or in any compliant, on any compliant, inquiry, investigation all these papers shall be sealed and deemed private and confidential and then it goes into the question that the court may on good cause show, divulge these papers and so forth.

William J. Brennan, Jr.:

Now those are only papers related to admission?

Denis M. Hurley:

No, admission of above and then it gets into and upon any complaint inquiry, investigation, or proceeding.

William J. Brennan, Jr.:

May I ask there Mr. Hurley, I notice that the order makes provision for findings as well as recommendations?

Denis M. Hurley:

That’s right, findings.

William J. Brennan, Jr.:

Would findings include the for example some finding as to witness or does findings relate only to findings as to lawyers under —

Denis M. Hurley:

We think both and judges have so acted.

In other words, if a doctor, we find a doctor, who is just as bad as a lawyer or if a insurance adjuster we find for example an insurance adjuster for an insurance company, suppose he is taking bribes and we have evidence of that that he is being bribed in these cases.

William J. Brennan, Jr.:

Well does this mean this time then as to the appellants here, there might be finding say that they were dropped in someway, are those findings under Section 10 might be released at the discretion of the appellate division even though they may never have been prosecuted for the crimes suggested by the findings?

Denis M. Hurley:

Yes that’s — you see the duty of the judge and my duty I think this answers another question of the court, our job ends when judge, when the judge reports his proceedings, his findings and his recommendations.

Now in answering a question before my friend said, maybe I could elaborate on that.

Well what the appellate division, what the judge has done so far is to with respect to lawyers? Well that breaks down into two categories, if there is an adverse report.

It breaks down, was there some evidence of criminality here on the part of the lawyer and the appellate division has decided under the judiciary law to send the whole package as it were to the district attorney, they say the district attorney has it now for criminal investigation, he may as well have it for disciplinary proceedings too and under the statute I’ve just read the district attorney maybe designated to conduct a disciplinary–

William J. Brennan, Jr.:

When you said for a criminal investigation did I correctly understand that maybe that on the basis of the findings and evidence alone there could be a prosecution and information without further criminal investigation?

Denis M. Hurley:

I don’t concede — I don’t understand it that way Your Honor, because what we do, what Judge Arkwright does in this preliminary investigation — he listens to the witnesses, he listens to the proof and the exhibits we give and when we are all through he sends out, he sends these the stenographer’s minutes, the exhibits, he sends the whole kit and caboodle to the appellate division with recommendations.

William J. Brennan, Jr.:

Well now suppose the appellate division sends as you say the package to the —

Denis M. Hurley:

Well then — the appellate division has been very careful about what it does in these matters.

It doesn’t appear here but what it does is this.

It looks over what the judge submits, conferences in the court with the seven judges, and then they determine whether or not follow the recommendations of Judge Arkwright.

They always — in some cases they haven’t followed them.

They haven’t followed them.

In one case where I recall he recommended criminal proceedings they didn’t follow that, they just sent it for disciplinary proceedings.

Now then if the criminality involved and when it goes to the district attorney.

The appellate division has been very careful not in saying that it would refer the material to the district attorney, but they make an order first they made resolutions and now they make orders in this way.

And they say that Mr. Justice Arkwright and then necessarily the counsel may in their discretion if they see fit turn over material to the district attorney.

In other words, they are being, as I understand, they’re being very careful there because since Kings county is in the second judicial department if there should be criminal prosecutions later, the matter may eventually get back on a criminal appeal to that court and the appellate division doesn’t want to be put in a position of having prejudged the matter.

So that they just do it by this resolution and grant us permission to tell the matter is over.

Felix Frankfurter:

You interested me as an old New Yorker in saying that the district attorney begins — conduct disciplinary proceedings and (Inaudible) New York.–

Denis M. Hurley:

Oh, it’s through the whole state Your Honor, under the —

Felix Frankfurter:

(Inaudible) New York on the mechanism of the Bar Association.

Denis M. Hurley:

Usually it is.

This is — I don’t think it’s — as far as I know it’s never been done before.

I think this is the first time that the appellate division has done it this way and I asked them why they were doing it way, and they put it upon the basis that he gets the criminal — if it’s criminal he goes ahead with criminal, if he doesn’t find enough to indict or to obtain information in one of the lower courts, then he goes ahead with disciplinary proceedings.

It’s the first time it has been done and then I asked him why, in addition to that, and they said they wanted to save money.

In other words, if they designate a lawyer appointed by the Bar — recommended by the Bar Association, he does the work, he keeps track of his hours and he eventually submits his bill with a big long affidavit to the —

Felix Frankfurter:

You also have to balance a budget, do you?

Denis M. Hurley:

Beg your pardon?

Felix Frankfurter:

You also have to balance a budget.

Denis M. Hurley:

Oh yes indeed, yes indeed.

We’re held to strict accountability for that.

We have – we have to account to the comptroller and the City of New York for every penny that’s spent there.

William J. Brennan, Jr.:

Well Mr. Hurley, have you a case in exercise or been given this discretion to turned over to the district —

Denis M. Hurley:

Oh yes, we’ve done that.

William J. Brennan, Jr.:

And you have done it.

Denis M. Hurley:

Oh yes.

William J. Brennan, Jr.:

Now in those instances where you have done it, has there been an independent criminal investigation or have there been —

Denis M. Hurley:

Independent — that’s what I was going to say as to our limitations.

We find the facts, Judge Arkwright and now Judge Baker finds the facts and reports to the appellate division.

The appellate division has to study it, and then it’s the appellate division that takes some action or doesn’t take any action.

If they say it goes to the District Attorney, then the District Attorney considers the whole thing de novo.

He’s an independent elected official.

He decides whether there is a crime here and frankly I’m sure my opponent will go along with me as a practical proposition, there haven’t been many criminal prosecutions and those if there have been, they very frankly too haven’t been too successful.

The jury seemed to be very sympathetic to lawyers and to others in this type of matter.

Felix Frankfurter:

The potential offenses, the potential that may arise out of your investigation are not so petty and casual that they do not require a Grand Jury proceedings, do they?

The order must require —

Denis M. Hurley:

Oh yes indeed.

Felix Frankfurter:

So that the District Attorney must make submissions to Grand Jury to get an indictment.

Denis M. Hurley:

I was going to come to that.

Our matters go to the appellate division, the appellate division to the District Attorney, if there is any criminal aspect from the District Attorney, he’s got to decide what he wants to do with it and then he in turn must go before a Grand Jury and present the matter, and then it’s up to the Grand Jury whether or not to indict.

William J. Brennan, Jr.:

Not so if it’s the kind of offense that maybe prosecuted under information though?

Denis M. Hurley:

Well, he could do it on information, but that’s as to misdemeanors conducted on what we call our Court of Special Sessions.

Felix Frankfurter:

That’s what I meant these are not — I’m not asking of that order, if there is a case, it’s an important case, isn’t it?

Denis M. Hurley:

We’ve tried to keep it that way, in other words —

Earl Warren:

Is barratry – is barratry an indictable offense in New York?

Denis M. Hurley:

I think it is Your Honor, but I don’t think I’ve heard it — I’ve ever heard anybody indicted for it.

As I recall that story up litigation, I’ve never heard of an indictment for it.

Earl Warren:

(Inaudible) appeal to me Mr. Hurley.

If you bring — if in these investigations, you bring a witness before the judge with the idea in mind of making findings against him, accusing him either of criminal offense or some professional offense, and if that record, with those findings is to be given to the lawyer who prosecutes this man while he is on the witness stand, why in reason shouldn’t that man be entitled to have someone present in court to represent him, while this proceeding is going on?

Earl Warren:

If you are to make a finding that may even result in his going to jail or in destroying his professional reputation, isn’t it consistent with due process and legal proceedings of all kinds to give that man an opportunity to be represented by counsel?

Denis M. Hurley:

Well of course that question Mr. Chief Justice goes to the very heart of this case.

Earl Warren:

Yes.

Well I ask you —

Denis M. Hurley:

It goes to very heart of the case.

Now of course, I’m in such thorough disagreement with my worthy advisory here, that I wouldn’t know where to begin to answer him.

I disagree with him on the facts, on the law, on jurisdiction, on the precise questions to be determined here are not everything.

Felix Frankfurter:

You’ve got a package too haven’t you?

Denis M. Hurley:

I have a real package in order to answer my opponent and that comes down to answering the question of the Chief Justice.

But Justice Harlan asked my opponent a little while ago about whether this was the substandard procedure and my friend said in a few cases.

Well I can think off hand of about nine or ten such proceedings, that before I got into this one, frankly two years ago I had nothing, never had anything to do with a disciplinary proceeding and had no idea what this was all about.

I looked at the precedents and I found them in Kings County and Queens County and Westchester County and Nassau County, in New York County, presiding Justice Botine, I think it was in 1940 as an Assistant District Attorney had conducted just such a proceeding as this.

There were proceedings all over the state, and as a matter of fact, this particular matter is being watched with great interest, because there is one about to be launched in Nassau County on Long Island and they have been in constant touch with me from Buffalo from the Fourth Department that they’re thinking of an investigation up there.

Earl Warren:

Now if you can’t answer that question that I asked you, would you mind answering this one?

Does the judge have the power to determine whether counsel can be permitted to enter or whether he shall be kept out?

Denis M. Hurley:

Well the appellate division put that in the matter of Anonymous case as a matter of this discretion.

Personally my own view is that there he was according that he would be according the witness of privilege, that the witness would have no right to it strictly.

In other words – in other words, I take the position —

Earl Warren:

He has the discretion then to either admit them or reject them?

Denis M. Hurley:

That’s right Your Honor.

Earl Warren:

Well that’s all I ask.

Denis M. Hurley:

Yes.

Now as to the other question I was coming —

(Inaudible)

Denis M. Hurley:

No Your Honor, I’m sorry, but as I read it, and it’s a matter of practice, it’s not mandatory.

That didn’t to be in the order.

It doesn’t need to be conducted in private and as a matter of fact in the very first case that I referred to before, Association of the Bar, the City of New York in 222 Appellate Division and that’s the case the investigation where this matter of Karlan went to the Court of Appeals, there, there was no privacy.

There was nothing in the order about conducting it in camera or in secret.

So what Judge Wasable did there, and I think very wisely, when an attorney was called in and was to testify, Judge wasable, who said counselor, your conduct is going to be looked into here, we’re going to inquire about all these negligence cases you have, do you want a public hearing or do you want it in private?

He gave them an option.

Denis M. Hurley:

He gave them an option, and if they took the option, whichever option they took that was it.

Felix Frankfurter:

Well Cardozo request that?

Denis M. Hurley:

Yes that’s in the Karlan matter.

Earl Warren:

That is not in this case.

Denis M. Hurley:

No here the appellate division directed in its order that it be conducted in private.

Now to come to —

Tom C. Clark:

(Inaudible)

Denis M. Hurley:

He did Your Honor.

Tom C. Clark:

He was the investigative justice also, was he not?

Denis M. Hurley:

Yes Your Honor.

Tom C. Clark:

Are you familiar with Henry Oliver case out of Michigan (Inaudible)

Denis M. Hurley:

I am Your Honor

Tom C. Clark:

Does that have any bearing on that?

Denis M. Hurley:

Well I don’t think so for this reason, this was a summary contempt, criminal contempt as we call it committed in the presence of the justice.

Everything had happened before Judge Arkwright and what I was going to come to, except that it’s been taking so much time to get across the statutory provisions in the order, is that the time factor here was — is I think of vital consideration.

The interesting thing here is that these witnesses were first called in as witnesses on December 4, 1957 they were called in.

And on the plea of their attorney, there was different counsel at the special time, the matter was adjourned, that testimony was adjourned, pending this appeal in matter of Anonymous, which was then pending in the appellate division.

Now the — that was an unrelated matter to this particular situation except on the sense it arose out of this inquiry and M. Anonymous involved an attorney.

Now my friend says it’s — his case is so different and the appellate division didn’t find itself.

As a matter of fact there was so much criminality in the M. Anonymous case that he was later indicated by the grand jury in King’s county and tried in the county court.

But on that day December 24 — December 4th there was the attorney for the appellants who in the presence of the appellants walked up to my assistant counsel as soon as they got the adjournment and came out of the courtroom, and these were his words according to the record, counsel for the appellants wanted to know from my assistant exactly what was wanted of his clients in this matter.

And then it was that my assistant without any previous authorization or consultation with me or the judge or anybody else off the record and as a favor to them, for which he was thanked, gave his views as to what evidence we had available that are concerning them and there was his language that’s been quoted in both briefs about a sufficient evidence to present to the grand jury.

Earl Warren:

Was it truthful, the statement that he made?

Denis M. Hurley:

As far as I am concerned Your Honor, if Your Honor please it was a truth —

Earl Warren:

Well you said it was without authorization and so forth and so —

Denis M. Hurley:

Yes, well it —

Earl Warren:

I wanted — is it — you take it as truth?

Denis M. Hurley:

It was his, it was his opinion, it was his opinion of what the evidence that we had available at that moment would show.

Felix Frankfurter:

(Inaudible)

Denis M. Hurley:

Oh no.

Felix Frankfurter:

All right, all right.

Denis M. Hurley:

The only, the only point that I make with reference to it is that when my assistant said and this was his view, he told it preliminarily–

Earl Warren:

Where is his testimony?

Denis M. Hurley:

This is — I am picking up my adversary’s brief, he’s got it quoted at page 89.

Felix Frankfurter:

Record at 115?

Denis M. Hurley:

Record 115.

Earl Warren:

115, yes I have it here.

Denis M. Hurley:

The point that I’d like to make in that connection is where my assistant said first he talked about the fact that we were interested primarily in attorneys, we were looking into the conduct of attorneys.

And he wanted to know whether these young men, licensed private detectives, whether they had taken these statements, for what attorney’s statements were taken, and whether the tampering was done by them or their employees or at the direction of some attorney.

So that he was indicating that we were primarily interested in lawyers and what lawyers did.

Then he goes on and he says I further stated that in my opinion there was prima facie evidence in the event that the clients decided to plead the Fifth Amendment to refer this matter to the district attorney.

Now my friend in this Court and courts below and the other attorney for these appellants in the courts below say that that was a threat of prosecution by the district attorney.

Well I think if you study that language carefully and honestly this is what I believe my assistant had in mind since we were concerned with the conduct of these attorneys.

I further stated in my opinion it was prima facie evidence in the event the clients decided to plead the Fifth Amendment invoked their, rather than it should have been the New Yorker constitution, but to invoke that constitutional privilege to refer the matter to the district attorney for prosecution, I don’t think so.

We wanted these men to talk and I think that that language is far more susceptible.

Though I am going to take, I am going to take for granted in this argument what my, what my adversary says it means but I think it’s far more susceptible of the proposition that these young men would probably say to the district attorney in order to obtain immunity from prosecution rather than, rather than they were going to be sent there to be convicted for crime, because that wouldn’t do our inquiry any good.

Earl Warren:

Well it seems to me that the language at the beginning of his answers is a little more cryptic and a little more challenging than you suggest what you have read.

His answer was, my recollection of the facts as they took place on December 4th was that following Mr. Zangara, this is on top of page 115, was that following Mr. Zangara being before the court and asking for an adjournment that he and his clients approached me in the outer foyer outside the courtroom and Mr. Zangara as spokesman for the group, asked me exactly what was wanted of his clients in this matter.

I, at that time, told Mr. Zangara that all, I don’t know my exact language, but I indicated that we did not intend to pussyfoot with them.

Now that’s pretty — that’s rather strong language it seems to me if taken together with the rest of it.

It isn’t — it isn’t just I’ll do you a favor and I’ll be glad to tell you what to, what we have got here and so forth and —

Denis M. Hurley:

Your Honor please, the point where I say that favor was involved, is that my assistant talked at all.

He had a — he had this lawyer Zangara —

Earl Warren:

He should have had counsel too and talk with these people outside of the court room.

Denis M. Hurley:

He had Zangara their lawyer and these two appellants, these two licensed private detectives, who — who were so fearful of what might happen that that — that the reason they ultimately said that they wouldn’t testify without the presence of counsel after the court and I had repeatedly told them the matter had been decided by the appellate division and leave to appeal had been denied in the Court of Appeals, one of these young man said, this to the court, the court if you wish to go out I will suspend for a few minutes and let you go out and here is the answer of this witness, the witness, no Your Honor because I understand the United States Supreme Court has not ruled on it yet.

Now these were not ignorant layman as my friend would have you believe.

He is a licensed private detective and they are also insurance brokers.

Felix Frankfurter:

Have you ever heard claiming the privilege against self incrimination, these detectives?

Denis M. Hurley:

I’d like to come to that Your Honor — Your Honor please I really think that that’s what that’s what they are concerned about that if they pleaded, they maybe in trouble with the State of New York on their licenses.

They don’t want to plead it and this is the device that they are using to avoid having to plead.

Hugo L. Black:

Why would there be in trouble with the State of New York where they are licensed?

Denis M. Hurley:

I beg Your Honors pardon.

Hugo L. Black:

Why would they be in trouble with the State of New York with their licenses if they claimed the constitutional privilege?

Denis M. Hurley:

Well I think I don’t — I haven’t got the specific case in mind if Your Honor please as to what the licensing department would do here, but I am sure there would be a very serious question if a young man comes in to be a licensed private detective that he certainly got to answer any proper questions that the authorities would put to him.

I don’t say it’s strictly analogous with this Court’s recent decision in Lerner against Casey and in the matter of the Philadelphia school teacher, but I would say if they are asking for the privilege of a license from the State of New York, they certainly got to answer any questions that the authority wants to put to them.

Felix Frankfurter:

But it’s analogous to the case of a policeman claiming a privilege and still wanting to be a policeman?

Denis M. Hurley:

And still wanting to remain on the police force, I think it’s the same thing.

May I say this —

Hugo L. Black:

You mean, as I understand it, that if the man had, he is not allowed to have a lawyer there, apparently he can’t refuse to testify on that ground and if he claimed the privilege, he would be denied a license, to continue in the business, if he claimed the constitutional privilege.

Denis M. Hurley:

Well of course it’s not strictly on that ground Your Honor.

It’s refusing to answer the questions of his superior and to answer them with candor.

I think that’s going to be, as a matter of fact that’s probably going to be one the problems that we have in this case, with all of the attorneys claiming their privilege here.

It’s going to be the same sort of thing.

Felix Frankfurter:

Mr. Hurley your time is – running on the New York time and I hope you can come in back with Chief Justice’s question, which you say that heart of this case —

Denis M. Hurley:

Yes.

May I just in answer to that question paraphrase or reword the question as I see it that’s before this Court and this will sum up everything I think.

In other words, the question as I see it is do these appellants, as mere witnesses, have a constitutional right to the presence of their counsel in the hearing room in what has been called by the Court of Appeals as a quasi administrative proceeding.

In other words, the appellate division could have conducted this investigation itself and Judge Arkwright and now Judge Baker is merely the nominee of the appellate division and I am assisting the judges.

It’s a quasi administrative in that sense.

It’s non-adversary.

It’s non accusatory, it’s non-prosecutorial and it’s a preliminary fact finding inquiry that doesn’t end in any judgment or decree and establishes the rights of no persons whatsoever.

Now I would like, I don’t know whether I got time.

Earl Warren:

That wasn’t my question and that’s going to be your question and I don’t — you are right to answer it your way.

Denis M. Hurley:

Now that’s the question, on the merits as to that Your Honor.

Earl Warren:

The question that I —

Denis M. Hurley:

I’d like to give you a three fold answer in capsule form, one we rely upon the decisional law of the State of New York as to the right of a witness to counsel which has remained unchallenged for 73 years.

I am going back to a case that was decided by the Court of Appeals in 1885 and the right of a witness to counsel didn’t come up again, until came up in this proceeding in matter of Anonymous.

That is 73 years unchallenged in the State of New York till it was challenged in matter of Anonymous and now here again.

We rely upon the decision of this Court in matter of Groban, decided two years ago.

And thirdly I don’t want to sit down without saying this Your Honors that we rely upon the public policy of the State of New York expressed by the people through their legislatures that witnesses in such an inquiry as this have no right to counsel.

Denis M. Hurley:

In the back of my brief, in the back of my brief Your Honors, the very last pages, you will find on page 41 Appendix E, the Civil Rights Law of the State of New York.

There on page 41, 73 five different agencies are given, are defined as agencies where a witness is given the limited or restricted right to be accompanied by counsel and then judicial inquiries were not included there.

That was in 54.

So in 1958, a bill was introduced which I have set forth in the last two pages of my brief page 43 and 44.

A bill was introduced in the legislature in New York to amend the civil rights law in relation to the right of representation by counsel of persons called as witnesses in certain inquires and investigations.

That bill would have answered this case and would have answered the contention of my opponent, because it doesn’t allow, even the bill doesn’t allow in a judicial inquiry or another investigation, it doesn’t allow witnesses in blanket form, every witness, the right to counsel but only witnesses whose testimony, and I am reading from the bill, may tend to involve himself or other persons in any subsequent criminal or quasi criminal prosecution.

I submit that on that basis —

Earl Warren:

Was that bill enacted?

Denis M. Hurley:

That bill was not enacted Your Honor, if Your Honor please.

Felix Frankfurter:

May I ask you this Mr. Hurley —

Earl Warren:

What is its relevance here?

Denis M. Hurley:

I say that the people of the State of New York having enacted the civil rights law and having granted in five different investigations by five different agencies, the right to counsel to witnesses in limited form, then when the, the assemblymen came along and introduced the measure that would have amended that and allowed counsel in a judicial inquiry under certain circumstances and that failed a passage that this matter is very much of a great concern to the people of the State of New York through their legislators.

And I submit that as a proposition of whether with that consideration going on in the State of New York, this Court should intervene or interfere and overrule and predetermine for the people what has been decided now as a matter of policy.

Felix Frankfurter:

How long have you been stating (Inaudible)

Denis M. Hurley:

Since it started Your Honor, since January 1957.

Felix Frankfurter:

Would you mind stating what you regard to be the practical difference if every witness is summoned before in this enquiry to bring his lawyer along.

Denis M. Hurley:

Your Honor please quickly we had 2500 witnesses up to the time we called these witnesses in.

We examined 2500 witnesses in private.

This is an immense proposition and I have set forth more pertinent parts of Judge Arkwright’s report on page 33 of my brief.

Just think Your Honors in — between 53 and 57, 122933 statements have retainer filed in Kings County, how can we possibly even spot check that number, but we —

(Inaudible)

Denis M. Hurley:

What –

(Inaudible)

Denis M. Hurley:

Most of the – most of the witnesses, it is hard for me to say, I would say one to four, or one to five, in other words every witness — if we call five witnesses, it would be one lawyer in the five.

In other words, we have to call in plaintiffs and claimants, and doctors, and police, and labor delegates and so forth.

I suggest this to Your Honors that of these witnesses, we examined 726 in court up to June 11th, by the time that this matter broke and if witnesses were allowed — counsel was allowed for witnesses in these 100s of cases, it seems to me, as was pointed out in the opinion of the Groban case, that we have — to say that there would be delay, that this would be cumbersome, that this would be unwieldy, and add unduly to the cost of this well.

I just don’t see any possibility of our ever getting through and I might suggest to Your Honors that up to this very moment, the expenses have run over $200,000 a year where — the City of New York has paid over $400,000 to date and if witnesses were allowed counsel, it would just make it that much more cumbersome and make just that much more delay and I don’t know when we have to get through with the investigation.

Earl Warren:

Well I suppose if there are four lay witness who run for the lawyers that the numbers, the numbers that you gave us isn’t the sort of materials might otherwise be, because I suppose most of those and a great many of them are voluntary witnesses who would have no case and have a lawyer who were not under investigation, but how many people are potential defendants among those that you examined?

Denis M. Hurley:

Well, that’s very difficult to say.

I’d say before we get through we have got — if we only examine into lawyers who filed say a 100 statements of retainer a year, now that’s about a two a week allowing two weeks of vacation and we file a prima facie, lawyers just do not get two cases a weekly legitimately.

Denis M. Hurley:

If the appellate division goes along with the thinking that is prima facie course for investigation, for inquiry.

We call them up and say how did you get a 100 — how do you get two cases a week.

The law firms in the city go along and they don’t get ten, they don’t get 12, they don’t half a dozen in negligence cases and these lawyers are not experts.

Some of them had never tried a case in their lives.

They are settlers and what this investigation as Judge Arkwright’s report will show, what the y are actually doing is they are conspiring with doctors, with collision shop and with others all — and then they bribe the man in the insurance company so that it is all coming around to get to these golden reserves of the insurance companies.

Earl Warren:

Well, I am sure you realize Mr. Hurley that no one on this Court would be out of sympathy with an investigation of such matters because they have been involved with some experience with that situation, and what we’re interested in only is whether the individual who is called before a secret investigation at that time has his federal rights protected under the constitution, and that’s what these questions at least I have asked are directed to them (Inaudible) sympathy investigation of this kind to determine what to —

Denis M. Hurley:

I can readily understand that Your Honor.

Now my friend in concluding says that with the last place that – of all places the witness was — should have the right to counsel in before a justice of the Supreme Court and before a court.

I take this as a contrary view.

It seems to me that the last place where a witness, a lay witness particularly should need counsel is in before a justice of the Supreme Court of the State of New York.

Now I say that on this basis that I conceive it to be the duty of a justice of the court, and I know that judges always exercise it persistently in every case that I ever heard of, they turn around and protect the witnesses the minute the witness is beginning to get into danger.

I regard that as a duty of the judge to look, to see to it that the witnesses are fully protected.

Felix Frankfurter:

May I ask you this?

Denis M. Hurley:

Yes.

Felix Frankfurter:

As a matter of practice the witness says Your Honor I would like to go outside and talk to my lawyer.

Denis M. Hurley:

Yes Your Honor.

Felix Frankfurter:

Would that request be granted in the matter of course?

Denis M. Hurley:

Yes Your Honor.

Felix Frankfurter:

Would it be granted more than once in the course of his enquiry?

Denis M. Hurley:

Yes, Your Honor.

Felix Frankfurter:

So that difference really unless he’d say not only would he have a — unless the claim is and I haven’t heard him say that not only may he have counsel sitting next to him, but counsel may not merely — he may not merely be entitled to have the advice of his client – of his counsel but he may have the right of examination through his client, what difference is there between going out when he wants to (Inaudible) than having him sit next to him?

Denis M. Hurley:

I don’t see any difference Your Honor.

Hugo L. Black:

Do you think Mr. Hurley if we can decide this case as to the principle that’s before us on the basis of the fact that you with your idea of ethics and so forth will let a lawyer — let a man go out and talk to your lawyer, does the law require that he be granted that privilege?

Denis M. Hurley:

No Your Honor.

Hugo L. Black:

Does that depend entirely on the judge and the lawyers who are conducting the investigation?

Denis M. Hurley:

I would say so.

Hugo L. Black:

Would you say that all judges are precisely the same in connection with their treatment of witnesses and defendants?

Denis M. Hurley:

No, but I don’t think — I don’t think, I certainly wouldn’t make any presumptions as to it or I presume that any such thing.

Hugo L. Black:

I am convinced that you wouldn’t.

I am convinced that you wouldn’t, but we can go on the basis if the – of power in that realm, that a judge and the prosecutor can’t deny the right even to go to see their counsel?

Hugo L. Black:

Can we decide the case on the basis, within the instance that which you are permitted, you have permitted that to be done?

Denis M. Hurley:

Well, I certainly think you can decide it in this case Judge Black —

Hugo L. Black:

Well, I —

Denis M. Hurley:

You have got a complete record here —

Hugo L. Black:

(Inaudible)

Denis M. Hurley:

Every word taken down by an official reporter there isn’t a thing that happened in this case that isn’t contained in this record.

Felix Frankfurter:

Mr. Weissman claimed —

Denis M. Hurley:

Every word of it.

Felix Frankfurter:

Mr. Weissman claimed that he can come here on appeal on the basis of how this statute was construed in his client’s case, not in some abstract client case.

Denis M. Hurley:

Well, so far as this — that’s true, and I am not going to talk too much because I haven’t got time now, but I wouldn’t have too much time to talk about jurisdiction.

I think Your Honors will look in vain through subdivision 10, the statute he attacks to find anything about depravation of right of counsel.

There is no such thing in the statute.

So he takes it direct appeal on the theory that this statute — he is claiming this statute is unconstitutional and he is claiming it for the first time in this Court.

There is no word and he is so conceded here there isn’t word in this record at the additional special term, the appellate division, the Court of Appeals anywhere that he ever claimed that this statute was unconstitutional and there isn’t a word in it that deprives a witness of the right to counsel.

I submit Your Honor that both on jurisdiction and on the merits we should prevail.

Raphael H. Weissman:

Mr. Chief Justice, I have reserved 5 minutes in my (Inaudible)

Earl Warren:

Well, of course whatever time you have left the record show you have one minute, but you may have your one minute, whatever the time is, you want to take it right now, you may or it —

Raphael H. Weissman:

Well, I do it very quickly perhaps (Inaudible).

I want to make answers to unfinished questions from bench, first to say that every witness would come with a counsel that’s partially (Inaudible).

It isn’t to claim that every witness would come.

If every witness came with the counsel this investigation would never be finished.

That doesn’t help this problem.

It’s only such a witness as becomes the target of the investigation who then becomes really a defendant who has the right for counsel.

And that brings the numbers down so that the significance of all the figures given, disappear.

The claim that the New York Court of Appeals decided that a witness hasn’t got right to counsel is true, but that has nothing to do with this, if this man weren’t in a position of a witness these appellants, to what somebody else did, I wouldn’t claim their right to counsel and they wouldn’t have it.

Only when it became apparent that they no longer witnesses, but defendants, targets of the investigation, then they were entitled to counsel.

And as Mr. Justice Whittaker asked the question that, it had been cleared up and this is the most important thing.

It is Mr. Hurley and the judge now who without discretion on the part of the appellate division referred these matters to the district attorney for prosecution.

Now I was handicapped.

I suspected that myself.

Raphael H. Weissman:

Mr. Justice Arkwright filed his final report and I wrote a letter for appellate division en banc asking for a copy of that report for transmission to this Court in eight of the pending cases and the court met in en banc and denied my request.

I think the counsel ought to produce here for the information of this Court the final report of Mr. Justice Arkwright, and that will tell you precisely the number of witnesses, the number of people who were targets of the investigation, what can they do with the evidence and how it is done.

And it will clarify the question asked by Mr. Justice Whittaker as to whether there is some intervening discretion involved.

Even if they were, the case is not much weaker than it was, but now it been made perfectly clear, and I think the report ought to be produced so the Court should have it, that there is no intervening discretion.

As Mr. Hurley and the judge themselves are a norm of the prosecution.

Thanks.

Earl Warren:

Mr. Hurley is that report – would that report will be available to the Court?

Denis M. Hurley:

I would say it would be appellate division — if the appellate division would release it and as a matter of act I have put in my brief as Appendix C the report of Mr. Justice Arkwright that was right up-to-date at the time this thing happened.

This came about in April, the examinations were in April and these young men were held in contempt and Judge Arkwright report was dated June the 11th, published June 23–

Felix Frankfurter:

That’s earlier report.

Denis M. Hurley:

Now he is talking about a report that was just made the end of the year while all this was going on, it would certainly —

Felix Frankfurter:

Were all the reports made for the appellate division?

Denis M. Hurley:

All reports —

Felix Frankfurter:

Well they are not made directly the Kings – Mr. Silver, the Kings County —

Denis M. Hurley:

Oh!

No we just report to the appellate division.

Felix Frankfurter:

And they can do what they please with it.

Denis M. Hurley:

And the appellate division that —

Earl Warren:

If they are available it might be helpful otherwise not –

Denis M. Hurley:

I shall take that to the appellate division.