Beck v. Washington

PETITIONER:Beck
RESPONDENT:Washington
LOCATION:Brown Shoe Co.

DOCKET NO.: 40
DECIDED BY: Warren Court (1962)
LOWER COURT:

CITATION: 369 US 541 (1962)
ARGUED: Nov 14, 1961
DECIDED: May 14, 1962

Facts of the case

Question

  • Oral Argument – November 14, 1961 (Part 2)
  • Audio Transcription for Oral Argument – November 14, 1961 (Part 2) in Beck v. Washington

    Audio Transcription for Oral Argument – November 14, 1961 (Part 1) in Beck v. Washington

    Earl Warren:

    Number 40, David D. Beck, Petitioner, versus the State of Washington.

    Charles S. Burdell:

    If the Court please —

    Earl Warren:

    Mr. Burdell.

    Charles S. Burdell:

    — Mr. Justice.

    The questions involved in this case set forth at pages 6 and 7 of the petitioner’s brief and the first question is this, Were the petitioner, in this case, a prominent labor union official, has been subjected to continuous, prolonged, and sustained, extensive, enhancive and adverse publicity in all media of communication throughout the judicial area in which he lives and is tried, must the state provide him in his grand jury proceeding where the grand jury which is a fair and unbiased and impartial grand jury.

    And this question arises in the State of Washington under circumstances under which accusation may be made by information as well as by indictment.

    The second question is, does the petitioner have a right to have the grand jury charged in a fair and impartial manner and in a manner which is not inflammatory and which is — does not invite the jury’s attention, the grand jury’s attention to adverse, extremely adverse publicity of a hostile nature which has been circulated about this.

    Third question relates to the conduct of prosecutors in the grand jury room with respect to witnesses who are testifying and have testified in favor of or in a manner favorably to the petitioner.

    The next two questions relate to failure of the state and the courts of the state to grant a motion for a continuance, the motion for change of venue under these circumstances where there has been this tremendous campaign of vilification, adverse publicity about the defendant, the petitioner in this case.

    Our position of course is that the state under these circumstances must provide a defendant with a fair grand jury, a fair method of accusation and that the state must do so both under the Equal Protection Clause of the Fourteenth Amendment as well as under the Due Process Clause of the Fourteenth Amendment.

    John M. Harlan II:

    Could I ask you a question?

    Charles S. Burdell:

    Yes, Mr. Justice.

    John M. Harlan II:

    Do your various contentions really amount to two, namely that he got a — he did not have an impartial grand jury which stands independently as your ground of the attack apart from the trial itself?

    Charles S. Burdell:

    Yes, Your Honor.

    John M. Harlan II:

    And secondly that the trial itself was unfair, is that it?

    Charles S. Burdell:

    We make no contention in this Court concerning the fairness or unfairness of the trail itself except that we believed that a motion for continuance should’ve been granted and a motion for change of venue should have been granted.

    John M. Harlan II:

    Did you say — you recognized that the trial itself was fair?

    Charles S. Burdell:

    Yes, Your Honor, I do except for these qualifications.

    Number one, a change of venue or a motion for continuance should’ve been granted to — so that we could have tried the case in some jurisdiction where jurors would not have been subjected to the adverse publicity which they were subjected to in Seattle.

    Felix Frankfurter:

    May I — may I interrupt, is that derived from the same poisoning from your point of view, poisoning mass media which affected your point of view of the grand jury?

    Charles S. Burdell:

    Yes Your —

    Felix Frankfurter:

    Or some additional one at the time of the trial?

    Charles S. Burdell:

    A continuation of the same type of thing during the period between the indictment and the trial right up to the time of the trial Your Honor.

    Then returning to your question Justice Harlan, in addition to the question of motion for continuance and change of venue, and I think I know what — what’s the point you’re making.

    The unfair grand jury proceedings were carried over into the trial and infected the trial, infected the conduct of the trial, because the grand jury proceedings were used to impeach witnesses.

    The grand jury proceedings were mentioned in the course of the closing argument by the prosecutor.

    The prosecutor, for example, referring to the grand jury proceedings and the grand jury in the indictment said something to the effect that these grand jurors were not the 17 ogres.

    They were just ordinary people like you and me.

    The grand — one of the prosecutors or Mayor of Seattle who is a special prosecutor in the grand jury proceedings testified concerning statements made by the petitioner to the grand jury when he appeared before the grand jury.

    And although he testified to certain admissions or statements made by the petitioner in the grand jury when we attempted to obtain the entire grand jury testimony or transcript of the petitioner’s testimony in the grand jury, he denied that the court examine the transcript.

    Charles S. Burdell:

    Decided that while only this portion related to the witnesses’ testimony and we only were given that portion which the trial court thought related to the witnesses’ testimony.

    So, in those ways as well as in many others, in those way as well as others, the grand jury proceedings were carried over into the trial.

    The grand jury proceedings were used at the trial for several purposes and it’s our position infected the entire trial proceedings.

    John M. Harlan II:

    Is this a fair statement of your position that because of this publicity, it resulted in a biased grand jury which deprived you of a constitutional right.

    Charles S. Burdell:

    Yes, Your Honor.

    John M. Harlan II:

    But if that isn’t so, then the grand jury — is that independently — doesn’t entitle you a relief then you say that the grand jury infected the trial, that atmosphere infected the trial and then on that score, you should be entitled to relief —

    Charles S. Burdell:

    That is a fair —

    John M. Harlan II:

    — is that it?

    Charles S. Burdell:

    That is a fair statement although I believe that — I do not believe that what we might call a fair trial cures erroneous grand jury proceedings which have taken place.

    If that were true, then this Court need not have reversed Cassell — or reversed the Carter case or any of the cases where the court has held that — or Hoffman or any of the cases where the court has held that —

    Hugo L. Black:

    Well, what I’m getting at — supposing it were held, I’m not suggesting that it should be or would be, supposing it were held that the — there is no constitutional right to an impartial state grand jury, you would still say that notwithstanding that, you can take the grand jury atmosphere, as you call it, carried over to the trial and you say that atmosphere infected the trial itself.

    Charles S. Burdell:

    Yes, that atmosphere infected the trial but as far as the questions before this Court are concerned, they have only been certified to the point of — should the court have granted a continuance or a motion for change of venue.

    John M. Harlan II:

    But that’s only because the — if the motion for a continuance or a change of venue should have been granted it was because the trial could not have been fairly held because of this publicity in that county, isn’t it?

    Charles S. Burdell:

    Because of the publicity in that county including the publicity relating to the grand jury.

    John M. Harlan II:

    I understand.

    Charles S. Burdell:

    Now, perhaps a few statements concerning the facts would be of assistance and incidentally the decision of the Washington State Supreme Court which was a decision of four judges on one side and four on the other is recorded at 8 — page 828 at the record.

    Felix Frankfurter:

    Would you say Mr. Burdell that perhaps your statement of the facts as to your liking or importance, whatever you said, I should take that the essence, this is a question of the legal conclusion of the constitutional significance of what the facts are on this case.

    Charles S. Burdell:

    Justice Frankfurter, I meant that the facts of the merit, a few statements about the substantive facts of the case.

    I think the procedural facts are the most important and the use of my word perhaps was of course poorly chosen because if it weren’t really important I wouldn’t even be saying some of here so I shouldn’t have done that.

    Felix Frankfurter:

    You don’t — have done what’s the significance — what the facts were, the value, the nature, the time relation of what concern should the me — mass media infected the atmosphere to the grand jury proceedings and the subsequent provision of (Voice Overlap) matters at the trial.

    Charles S. Burdell:

    That’s what I should — that’s what I shall do Your Honor.

    The conviction was for embezzlement of the sum of $1900 which is alleged to have been the proceeds of the sale of an automobile which belonged to a union organization of which the petitioner was the president or the chairman at that time.

    This automobile was sold while the petitioner was outside of the City of Seattle.

    In some manner, the testimony was that the purchaser did not know who owned the car so he made — he had seen the petitioner driving the automobile so he made the check tables of the petitioner.

    And because of this, check was delivered to the petitioner’s secretary and she deposited it in the petitioner’s bank account.

    And then the petitioner testified before the grand jury that when he returned from Seattle — or to Seattle, found out about it, he returned the money in currency to a bookkeeper of the union.

    The bookkeeper before the grand jury confirmed this and said that he had received this amount and other amounts in currency from the petitioner over a long period of time.

    Now, the — as I say, these events took place at the – in 1957 at the height of this period of publicity relating to the petitioner and arising out of the Senate proceedings, the Senate investigating proceedings.

    The proceedings were broadcast on television, broadcast on radio, they were disseminated in all newspapers, all magazines distributed in Seattle.

    They were displayed on kiosks in the City of Seattle with large headlines.

    Charles S. Burdell:

    They were subject of general conversation in the City of Seattle particularly with reference to the subject of the petitioner’s assertion of the Fifth Amendment before the Senate Committee which it did of course on the advice of his counsel.

    Felix Frankfurter:

    What is the time span of this —

    Charles S. Burdell:

    Yes, Your Honor.

    Felix Frankfurter:

    — of this appeal?

    Charles S. Burdell:

    The indictment now was returned on July 12.

    The grand jury pros — going backwards, backtracking, the indictment was returned on July 12.

    The grand jury was impaneled, I believe, some time in May and the Senate hearings insofar as petitioner was concerned, commenced in March.

    The petitioner appeared, I believe, on March 26, 1957.

    As soon petitioner appeared before the Senate, he promptly advised the Senate that he would not be able to answer any questions because of the fact that an investigation concerning his income tax affairs was taking place in Seattle and that upon the advice of counsel, he would not be to permit — he would not be able to answer questions.

    Nevertheless, he was interrogated over and over and over again concerning his financial matters or concerning matters relating to the union and he was required upon the advice of his counsel to assert the Fifth Amendment or the privilege under the Fifth Amendment over and over and over again in response to each of these questions.

    Felix Frankfurter:

    Could you count the number of times he was asked questions —

    Charles S. Burdell:

    No, I didn’t —

    Felix Frankfurter:

    — that he withheld answering because of the Fifth Amendment?

    Charles S. Burdell:

    Justice Frankfurter, I didn’t represent the petitioner at that time and I didn’t count the number of times that he asserted the Fifth Amendment but the newspapers did and reported the number of times prominently and I do not recall the number of times but I think it was over a hundred.

    The questions made — and all of these was — all of these was televised — over the radio and television.

    William J. Brennan, Jr.:

    Do you mean by that, the actual interrogation before the Committee and his invoking the privilege?

    Charles S. Burdell:

    I mean that Your Honor and it got to this point.

    It was — it made such an impression on the people that in December when the trial took place, at least six of the jurors who actually served on the panel or in the trial.

    At least six recalled that he had asserted the Fifth Amendment when he testified before the Senate Committee.

    Now, these jurors said, “Well they could decide the case without prejudice against to the petitioner anyway.”

    But nevertheless, they remembered it and of course this Court as (Inaudible) — Justice Jackson in Krulewitch and Justice Frankfurter in Pennekamp, and Justice Clark in Irvin versus Dowd and the entire court in the Marshall case certainly now recognizes that there are hidden persuaders which people do not even recognize and that the person who has been subjected to the common conversations about the effect the Fifth Amendment which in Griswold points out, everyone thinks that anyone who asserts the Fifth Amendment is guilty of something, people who have been significant to this type of thing over a long period of time really do not know whether they are prejudice, whether they can decide something fairly, they simply are not qualified to say whether or not that they can anymore than the judges can at times as Justice Frankfurter said in the dissent in the Pennekamp case.

    Charles E. Whittaker:

    Mr. Burdell, I understand that you are not complaining however of the petit jury?

    Charles S. Burdell:

    Yes, I am complaining in this sense Justice Whittaker that I believe I should have had a motion for a continuance or that my motion for continuance should have been granted or my motion for change of venue should have been granted so that I could have got away from Seattle particularly referring to change of venue motion.

    So that I could have got away from Seattle into a jurisdiction where there was less radio and television purposes.

    Now, I am in my motion for a change of venue.

    I recited in an affidavit that the County of — I believe it was the county of Whatcom which is North of Seattle was a county where there was not as much radio coverage, not as much television coverage, that the newspapers which were carrying these articles did not have its great circulation on that county, things of that sort.

    I wanted to be in that — in those counties, in one of those counties either Whatcom or Snohomish I think they asked for so that there would be less of this sort of a private case in less of this saturation atmosphere.

    Felix Frankfurter:

    Did you set forth the matter in your motion for a change of venue?

    Charles S. Burdell:

    I did that —

    Felix Frankfurter:

    Where is that in the record?

    Charles S. Burdell:

    I didn’t Justice Frankfurter.

    Felix Frankfurter:

    (Inaudible)

    Charles S. Burdell:

    Yes.

    I did that Justice Frankfurter.

    I set them forth and I want to say that until that time, the law in the State of Washington was that if the — if a defendant in a criminal case asked for a change of venue upon an uncontradicted affidavit, he got it.

    The law was changed in my case.

    The — that in the record is at page —

    William J. Brennan, Jr.:

    Is that the one at 22?

    Charles S. Burdell:

    That’s probably at 22, about 22, yes.

    William J. Brennan, Jr.:

    So that’s the proceeding — the motion for continuance —

    Charles S. Burdell:

    No, that’s the motion for continuance and the motion for a change of venue is later on in 643.

    Felix Frankfurter:

    That must — those must be a set (Inaudible) Mr. Burdell.

    Charles S. Burdell:

    No, I think on — I think it’s at page 643.

    Felix Frankfurter:

    (Inaudible)

    Charles S. Burdell:

    With my affidavit right after it, page 644, in the affidavit.

    In the affidavit I state that the atmosphere of hostility and prejudice towards the defendant is less than extreme and less intense in the counties of Whatcom and Snohomish because there is only one television station in Whatcom County and none in Snohomish County.

    I’ve been listening to the last case.

    We do as well in Seattle as you do Washington, we have four in Seattle including one in Tacoma which is in competition with Seattle which is the CBS station affiliate.

    And I’m not arguing the other case on either side as you would see.

    I see in this affidavit that newspapers published in King County, in King County where I’ve read have emphasized and prominently displayed newspaper reports of the adverse and spurging nature to a greater degree than the newspapers published in Snohomish and Whatcom County.

    Of course the newspapers in Seattle are larger and have a greater distribution than the newspapers in the other county since Seattle is — Seattle Times I believe according to one of the affidavits has the distribution of about a 180,000, Seattle Post-Intelligencer has a distribution of about a 133,000.

    That is not true, of course, of the smaller newspapers in the other counties.

    William O. Douglas:

    You didn’t mention Klickitat County where television reception is practically nonexistent.

    Charles S. Burdell:

    No, I didn’t mention that because everyone goes fishing there so they don’t have to watch television Mr. Justice, in Klickitat County.

    Charles E. Whittaker:

    Mr. Burdell, aside from the county mentioned by my Brother Justice Douglas, is there any other county where there isn’t fair reception of television in your state?

    These two counties that you mentioned in your affidavit, is there a coverage, television coverage, in those counties?

    Charles S. Burdell:

    There is some — oh, yes there is some television coverage.

    Now, I’m off the record on it as —

    Charles E. Whittaker:

    Do these Seattle newspapers also circulate there?

    Charles S. Burdell:

    To some degree, to some degree but of course these are the — these are — to some degree, rural deliveries, these are to some degree people who will buy the newspapers at the corner of a drugstore, in the small towns if they go down there to some degree, these are people who buy it — who get it on — by circulation that is by mail and get an edition which was completely different than the edition which is distributed in Seattle because the Seattle edition of course would have the very latest news particularly wouldn’t have the news concerning the Senate proceedings of the last minute, the early revision which would have to go in the mail wouldn’t have the — wouldn’t have the prominent (Voice Overlap).

    Charles E. Whittaker:

    I understand maybe correctly, maybe not that a criminal defendant in your state does not have a right to a change of venue as a matter of right.

    Charles S. Burdell:

    He does not have it as a matter of right Justice Whittaker.

    But up until this case, the law was that a criminal defendant upon an affidavit which was uncontradicted did have a right to a change a venue as matter of right and I believe the decision is State versus Hillman which I think is in our reports in 42 Washington.

    It’s — the cases discussed and cited in our petition for reargument which is at page 897 but the four members of the — that perhaps should take me back to the decision of the Supreme Court.

    That is the Supreme Court of the State of Washington.

    When we got to the Supreme Court of the State of Washington, we argued of course the questions that we are arguing here, the questions about the right to a fair grand jury, the right to equal protection before the grand jury, the right to a motion for continuance and change of venue.

    Now, four of the judges, the case was heard before eight judges, one judge disqualified himself.

    Four of those judges thought that the conviction should be affirmed on every point and one of the judges wrote an opinion for all of them covering every point saying that the entire thing should be affirmed.

    And four other judges said that it should not be affirmed because of the fact that the defendant was entitled for a fair grand jury.

    He didn’t get it, period.

    They did not discuss the other questions, those four objected.

    But the judges rewrote the opinion from the four — in favor of affirmance did discuss this question of change of venue.

    And his distinction of the Hillman case which had held that a motion for a change of venue based upon an uncontradicted affidavit gives you a right in one.

    His distinction in that case was that — well, in your case counsel, meaning this case, that the — your statements in this affidavit are nothing more than conclusions and the Hillman case doesn’t apply if the — if the statements are nothing more than conclusions, well, it doesn’t hid — it of course doesn’t seem to me that they are conclusions where I put in questions about the number of television stations and the circulation of newspapers and things of that sort.

    In addition, I have included in this affidavit a provision which says that jury panels in King County where we tried this case invariably include employees of the Boeing Airplane Company and that a few years previous to this, there was a most bitter jurisdictional dispute between the Teamsters of which the petitioner was the president and the Aeromechanics Union concerning the right of representation and I averted here that that dispute resulted in an attitude of hostility and bitterness between the two unions and the officers of the two unions.

    As it turned out, I wound up with, I believe, two Boeing employee jurors, one of whom was the foreman.

    Now, I’m saying this because I do not believe that affidavit support the motion for a change of venue was in fact a merely conclusions.

    William J. Brennan, Jr.:

    Well, Mr. Burdell you’re not making a point though, are you, of the change in law, the court did change?

    Charles S. Burdell:

    No, I’m making a point of refusal to grant me a change of venue and I’m explaining —

    William J. Brennan, Jr.:

    May I ask about the continuance a moment, the continuance contemplated what if it had been granted?

    A trial at a later date in the very county it — in which was tried?

    Charles S. Burdell:

    I made both, Your Honor, yes.

    William J. Brennan, Jr.:

    Yes.

    Charles S. Burdell:

    The continuance, I made several motions for continuance.

    I recall I made one for about five months.

    I believe I made it in October 7th when I think I asked for a trial in May of the next year.

    William J. Brennan, Jr.:

    That is in that very county?

    Charles S. Burdell:

    In that very county.

    William J. Brennan, Jr.:

    Yes.

    Charles S. Burdell:

    And the answer — my friend Mr. Kennedy says that the court made a finding that I was not entitled to it for some reasons.

    Charles S. Burdell:

    The way I recall that finding and it’s in the record here and I properly will defer to it in a moment.

    The way I recall that finding is that the judge said, “Well, I think you can this fair trial now as you can next May.”

    William J. Brennan, Jr.:

    (Voice Overlap)

    Charles S. Burdell:

    Probably precise to what he said and he didn’t know he said that.

    William J. Brennan, Jr.:

    And probably agree with that?

    Charles S. Burdell:

    Well, I — my point to him was, at least give me a chance to find out.

    William J. Brennan, Jr.:

    Now, —

    Charles E. Whittaker:

    Well, somebody has to make that — somebody has to make that determination known, doesn’t it?

    Charles S. Burdell:

    Someone has to make a determination as to whether or not I could get a fair trial.

    Now, I suppose you can say this is his determination that I could get a fair trial.

    If we interpret it as being that, I would say he was clearly incorrect in support of those motions for change of venue, we had affidavits, numerous affidavits.

    I had talked to lawyers throughout the city and throughout King County.

    I think in one affidavit, I indicated or in one statement under oath, I indicated that I had talked to 50 lawyers and that everyone of them had told me that they didn’t think I could get a fair trial.

    And I told the court about this by affidavit and under oath.

    This was never denied by any and I do not believe up until this day, so far as I know, the state or the prosecutors have ever said that they in good faith thought I could get a fair trial.

    I do not recall there having said so.

    They did not contravene any of my affidavits concerning these subjects.

    They did not dispute the fact that the publicity was rampant that the public clamor was widespread.

    That the newspaper coverage was the saturation type coverage.

    They did not dispute the fact that these attorneys and as well as the gen — many people who we had talked to who were not attorneys had said that we could not get a fair trial.

    They did not dispute any of that.

    The only thing that they did that I recall at one point where I was stating under oath, my conversations with attorneys and things of that sort.

    One of the prosecutors who was there at that time said that, well, he would always take my word out of court but in this case I had said so many things that he didn’t want to go unchallenged so that he just — they denied it all.

    They didn’t specifically deny anything.

    They really didn’t deny anything.

    Now, —

    Potter Stewart:

    Mr. Burdell how much, if any, of these pretrial publicity related to the offense for which this man was indicted and tried?

    Charles S. Burdell:

    Practically none, practically none.

    He — the pretrial publicity in effect said that he was guilty of racketeering, thievery — in that sense it did.

    This is an embezzlement case.

    Charles S. Burdell:

    He was charged with having been a thief.

    That he had misappropriated funds.

    That he was guilty of, I think in one case, 52 acts of misconduct with reference to the union.

    And each — and of those 52 acts, many were acts of misappropriation.

    Many of these things were stated in a general way but you couldn’t identify, they were — they were asserted so generally that you couldn’t identify this particular $1900.

    The petitioner was charged with having misappropriated some $350,000 and I don’t believe that this $1900 was included but no one would know for sure.

    I think this is $1900 that the — was not included.

    Potter Stewart:

    But in the McClellan Committee for instance, he was not asked about this particular transaction?

    Charles S. Burdell:

    He was not Your Honor.

    No, he was not.

    Potter Stewart:

    About the sale of this automobile?

    Charles S. Burdell:

    In the McClellan Committee — and these are the things that went over the television, the type of christening went along this line.

    Mr. Kennedy, the Attorney General would say, “Mr. Chairman we have information indicating that from the year 1949 Mr. Dave Beck took from the union funds some $4812.39 and deposited it in his own bank account.”

    And the Chairman would say, “Ask the witness whether he did it.”

    And Mr. Beck would have to assert the Fifth Amendment.

    That went on time after time.

    And then in one case which seemed quite significant to me while — after Mr. Beck had asserted the Fifth — the privilege of the Fifth Amendment again saying that he did so from the advice of his counsel.

    Senator McCarthy said, “You know that if you are innocent of any wrongdoing then you could answer very simply yes or no.

    It is only if you were guilty of wrongdoing that you might incriminate yourself.

    You realize that, do you not?”

    Of course that was completely incorrect statement which went out over television to millions of people which was not corrected by the Chairman of the Committee or any of the lawyers of — on the Committee or anyone else.

    The statement was made just a few months or rather, the Grunewald decision in this Court.

    But after Griswold — the written — the statement about how people generally think that one who asserts the Fifth Amendment is guilty of something or other.

    Then I have a two or three other notations here at which I intended to read but won’t where the counsel or an investigator of the Committee says that we have information indicating so and so and the chairman then said — asked the Committee if he did it.

    And Mr. Beck, the petitioner has to assert the Fifth Amendment, I gather.

    William J. Brennan, Jr.:

    Now, are these the proceedings you’re talking about that were televised Mr. Burdell?

    Charles S. Burdell:

    These were all televised and the proceedings as indicated here I hope I have time to reach it, these particular proceedings were televised and the newspaper of the next day indicates that the radio station, one principal radio station in Seattle was jammed with telephone calls about these particular proceedings.

    William J. Brennan, Jr.:

    Was there any (Voice Overlap) the broadcast?

    Charles S. Burdell:

    I beg your pardon?

    William J. Brennan, Jr.:

    Was there any rebroadcast?

    William J. Brennan, Jr.:

    I —

    Charles S. Burdell:

    Oh, yes.

    William J. Brennan, Jr.:

    I take it these interrogations they’re doing —

    Charles S. Burdell:

    Oh, oh yes.

    The television film was flown to Seattle, they’re flown immediately and shown in the evening.

    The radio programs of course were concurrent and I believe that during a portion of the time the television programs in some way were rebroadcast and were concurrent too.

    And then were reshown again in the evening.

    Felix Frankfurter:

    Mr. Burdell, may I ask one other question.

    Charles S. Burdell:

    Yes, Mr. Justice.

    Felix Frankfurter:

    If I heard you right, you said that the grand jury which brought in this indictment, the indictment that brings the case here —

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    — in May, is that right?

    Charles S. Burdell:

    Yes sir.

    Felix Frankfurter:

    Now, what I want to know is, what was the last time that the petitioner was a witness before the McClellan Committee?

    Charles S. Burdell:

    Oh, the last time he was a witness was —

    Felix Frankfurter:

    In this whole sequence.

    Charles S. Burdell:

    The last time that he was a witness before the McClellan Committee was in March, Justice Frankfurter but I’m not sure that you were here when I answered someone’s question which — in which I said that — even in December at the time of the trial the jurors —

    Felix Frankfurter:

    Don’t go to that.

    I want to know —

    Charles S. Burdell:

    Right.

    Felix Frankfurter:

    — was March the only time that he was summoned before the McClellan Committee?

    Charles S. Burdell:

    It was the last time that he appeared before the McClellan Committee but —

    Felix Frankfurter:

    That’s 1957?

    Charles S. Burdell:

    In 1957.

    Earl Warren:

    Well, I read in your brief at page 55 and at page 35, Mr. Kennedy states that at the time of petitioner’s appearance before the Committee on May 16, 195 —

    Charles S. Burdell:

    He returned on May 16, yes.

    Earl Warren:

    Well —

    Felix Frankfurter:

    Well that, that —

    Charles S. Burdell:

    He did return on May 16.

    Felix Frankfurter:

    Well that that — and this wasn’t the last time.

    Charles S. Burdell:

    You’re — it’s correct, it was not the last time.

    The things that I have been reading from this transcript were in March 26 and March —

    Felix Frankfurter:

    I want to know the — his appearance before the McClellan Committee encloses temporal relation to the sitting of the grand jury which brought in this indictment.

    Charles S. Burdell:

    He appeared in — on March and those were the proceedings that I have just read and then he appeared — he was represented at that time by Mr. Conroy (ph).

    He then appeared again in May, I believe May 16th, that time represented by Mr. Williams who also advised him to assert the Fifth Amendment which he did.

    Felix Frankfurter:

    How — just one day, just one day?

    Charles S. Burdell:

    Just one day.

    Felix Frankfurter:

    Just one day.

    Now, the May —

    Charles S. Burdell:

    Mr. Justice, it may have gone overnight into the next day but it wasn’t a prolonged session.

    Felix Frankfurter:

    And those of — and the grand jury was already empanelled?

    Charles S. Burdell:

    The grand jury —

    Felix Frankfurter:

    And notoriously so meaning by notoriously so, that was known to public prints?

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    Now, before the —

    Charles S. Burdell:

    Justice, may I correct that?

    I don’t believe it was empanelled but notice had been given that it would be empanelled.

    Felix Frankfurter:

    It wasn’t in the newspapers?

    Charles S. Burdell:

    Yes — oh yes.

    Felix Frankfurter:

    Now, the May appearance whether it was one day or over the next day, was that televised and broadcast extensively —

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    — as the March one.

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    And the exhibits of that are in here?

    Charles S. Burdell:

    Well not exhibits of the television program but affidavits indicating —

    Felix Frankfurter:

    But (Inaudible) —

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    These photos that the newspapers got?

    Charles S. Burdell:

    Yes, newspapers and magazines and they go right up to the grand jury proceeding.

    For example, here’s the Time Magazine article dated April 8, a month before which refers extensively to these proceedings and the defendant here is — another one, that’s again part of the April special column in the national affairs section about the petitioner in the — his — in the Senate Committee here in the same article there’s a great big picture of his so-called lake-front compound if one looks at it closely enough, one can see it’s really not on the lake and there’s no fence around it.

    Charles S. Burdell:

    There’s not really a —

    Felix Frankfurter:

    Let me ask you this, were the — while the proceedings we’re going on, beginning in May, commenting in the indictment in July — on July 12, was that — was there — do Seattle given this — too many cities are given to somehow rather having the secret proceeding of the grand jury disclosing that case in paper?

    In short, were the proceedings of the grand jury —

    Charles S. Burdell:

    Yes.

    Felix Frankfurter:

    — concurrently —

    Charles S. Burdell:

    Yes —

    Felix Frankfurter:

    — publicized?

    Charles S. Burdell:

    Yes, and they — yes they were, names that were —

    Felix Frankfurter:

    In relation to the petitioner.

    Charles S. Burdell:

    Yes, right from the beginning everybody knew that it was the petitioner who was being investigated.

    In fact, the trial court — the judge who empanelled the grand jury said — told the grand jury that they were going to (Inaudible) —

    Felix Frankfurter:

    They were charged with investigating his affair.

    Charles S. Burdell:

    The Teamsters Union and officers of the Teamsters Union.

    In fact, the charge of the grand jury went something like this, I need not to remind you that the — of disclosures which have been recently made before some —

    Felix Frankfurter:

    Is that in the record, the grand jury charge in the record?

    Charles S. Burdell:

    That is in the record and in our briefs, we make it (Voice Overlap) —

    William J. Brennan, Jr.:

    Is this the (Voice Overlap) — did I understand that ordinarily an offense of this kind in your state prosecute on information and not on indictment?

    Charles S. Burdell:

    Ordinarily upon information Justice Harlan.

    And that is — so may I take a moment at this point to discuss that question because as I understand it it’s the position of the state that — well, the erroneous grand jury proceedings don’t really mean anything because he could have been prosecuted by information anyway.

    Now, it seems to me that — Justice Harlan, may I come back to that question and go on with a few more answers to the question I was discussing with Justice Frankfurter because I haven’t really completed it.

    Justice, on May the 3rd, (Inaudible) — and by the way these newspapers clippings are smaller than they really are and the way they sell them in Seattle — on the streets is that they display them on what I call a kiosk, I don’t know what the real correct name is and they — so you — anyone who passes by a corner can see it and of course they’re larger than this.

    On this day which is May the 3rd, you will notice that there is a sub-headline, this is the Seattle Post-Intelligencer, 133,000 circulation says, “Devin to be special jury prosecutor.”

    That is this grand jury.

    Devin is the former mayor of Seattle who is named as Special Prosecutor.

    The big headline that day is, “Beck indicted on taxes, arrest warrant issued.”

    That was the income tax case.

    These two things happen to come at the same time.

    Here, it’s the same different issue of the same newspaper the same day that has a heading about his arrest on the tax evasion case but they haven’t heard about Mr. Devin being appointed prosecutor yet.

    Here is a clipping relating to the Senate proceedings on May 9th by this time as you could see Mr. — Mayor Devin has already been appointed Special Prosecutor.

    Here, they go back to the Senate Committee and says Senate Probe Lifts Lid on Beck Beer Business.

    Charles S. Burdell:

    Here is — three or four days later it says, “Beck’s profit from trust fund of widow told.”

    A couple of days later on May the 18th, I think it is, “Trust bill may connect Beck to U.S. mail fraud.”

    On May the 15th, it says Beck apparently stole $300,000 from the union.

    Here is Chairman McClellan saying in the headline, “Beck misused union position in 52 instances.”

    And here are the 52 instances written by Dorothy Berger, The Society or rather the Seattle Times, each one commences misappropriation of so and so and so and so.

    Here, the point again that listed, this is May 14th.

    Now, this goes right up.

    And here’s U.S. Newsweek, the case against Dave Beck as the Senators see it.

    This goes right up to May 21 and I believe the grand jury was empanelled on May 20.

    I’m sure it was empanelled on May 20.

    And the grand jurors after empanelment of course they were not kept together as trial jurors are but they were permitted to go home and continue listening to their radios and televisions and read the newspapers and so on.

    And on May 21 —

    John M. Harlan II:

    May I ask you a question about —

    Charles S. Burdell:

    Yes, Justice Harlan.

    John M. Harlan II:

    — the law in your state?

    Your court, Supreme Court split four-to-four, did it?

    Charles S. Burdell:

    Yes.

    John M. Harlan II:

    More than said that under your law, there’s no requirement of an impartial grand jury.

    This is a prosecutory body —

    Charles S. Burdell:

    Of course, yes.

    John M. Harlan II:

    By these are prosecutors.

    Charles S. Burdell:

    Yes.

    John M. Harlan II:

    Before it was said that was not so.

    Charles S. Burdell:

    Yes.

    John M. Harlan II:

    What are we to take in — as the law in your state as being?

    Charles S. Burdell:

    That’s a good question.

    I’ll answer that in just a moment.

    On the day after the grand jury proceedings commenced, here is the article which says McClellan lays many, — “many criminal” acts to that and so on.

    This went right along during the proceeding of the grand jury Justice Frankfurter.

    Now, Justice Harlan, in resisting the petition for certiorari, the state as I recall said something to this effect, The Supreme Court of the State of Washington can decide what their law is and they said that because the State of Washington can’t decide what its law was, this Court couldn’t take certiorari and that the only remedy was to do some — for the legislature to do something.

    Charles S. Burdell:

    You see our — so I guess they were suggesting that the petitioner go to jail while the legislature makes up its mind what is the law on the State of Washington is but of course that can’t be the answer.

    I think this Court — certainly that’s the four-to-four decision didn’t change in the law any.

    The constitution and the statute and the court rules of the State of Washington provide that every decision of the State of Washington has to be a majority of the court.

    And in this case there was quite a great deal of discussion about their failure to agree by the majority and their first decision — this is on page 3 and so I’m not sure what page of the record this is on and — I can find it.

    In their first decision, they had a per curiam besides these two 4-to-4 decisions, they had a per curiam decision which said something of this — it said this.

    One of the judges of this Court disqualified himself from participating in the decision of this case.

    The eight remaining judges after numerous conferences are equally divided in their decision for the reasons appearing in the opinions filed.

    There are being no majority for affirmance or reversal, the judgment of the trial court stands affirmed.

    Then after reargument, they struck out the word “affirmed” so that the last sentence read there being no majority for affirmance or reversal, the judgment of the trial court stands.

    That’s the way it is right now, although the Constitution of the State of Washington of course provides it in criminal cases we have a right to an appeal.

    But they have not affirmed or reversed it just as the judgment of the trial court stands.

    And there I am.

    Felix Frankfurter:

    Now, suppose the law of your state, suppose the law of Washington required you, intellectually required you to that of Justice Harlan’s question by saying that the law of Washington so far as it is officially declared than that of the legislature of Washington which said the grand jury need not be a fair-minded disinterested body hearing, would you be – would your case, would you be in a different situation if you had to make that answer?

    Charles S. Burdell:

    Oh yes, I think, I would.

    Felix Frankfurter:

    You mean, you’d be bound that we will then — that this trial would’ve been alright from your point of view with reference to the federal constitution?

    Charles S. Burdell:

    Well, we have the — you had the Oliver case, I couldn’t (Voice Overlap) —

    Felix Frankfurter:

    The grand jury part, yes, the grand jury trial.

    Charles S. Burdell:

    Oh, the grand jury part, I haven’t — and I haven’t really answered Justice Harlan’s question.

    I don’t know how to get to it.

    Felix Frankfurter:

    I’m sorry, I didn’t mean to answer it for you.

    John M. Harlan II:

    Alright.

    I’d like to put to you what’s in my mind, namely this.

    Are you making equal protection claim?

    Charles S. Burdell:

    Yes.

    I’d like —

    John M. Harlan II:

    In other words, that up to Beck’s time, the defendants were under state law entitled to impartial grand juries and that he was out of his decision and that must be the difference.

    Charles S. Burdell:

    That is in — that is the fact.

    That is not the basis of my equal protection argument.

    Now, I hope I can answer Justice Frankfurter’s question at the same time that I’m answering this one.

    Up until — there is a statute in the State of Washington, it is RCW 10.28.030 and it’s in our brief at page 2 and page 3 which provides that any defendant or any person has a right to challenge a grand juror for bias or prejudice.

    Charles S. Burdell:

    Now that is — that means of course a defendant in custody.

    It has to mean a defendant in custody the way the statute is drawn and perhaps I’d better read the statute.

    Felix Frankfurter:

    That must be — might be substituted?

    Charles S. Burdell:

    I beg your pardon?

    Felix Frankfurter:

    It might mean after he was — after (Voice Overlap) —

    Charles S. Burdell:

    It has to mean afterwards to — otherwise there isn’t equal protection and that is what we couldn’t get.

    It has to mean afterwards otherwise the defendant in custody has the right what the defendant in custody does not have.

    And this is — this is my argument on equal protection.

    That statute that reads as follows, somewhat out of order and I apologize for it because the — at the least of my complaints against the State of Washington is that counsel didn’t wake me up this morning and I didn’t get myself organized here.

    We had an arrangement.

    The — that statute provides that — I don’t find it but do you have it —

    Earl Warren:

    Isn’t that one appears on 47 of your brief, a challenge to the panel must be interposed before the grand jury is made up and sworn —

    Charles S. Burdell:

    No.

    Earl Warren:

    — provided defendant has prior to that time been held to answer?

    Charles S. Burdell:

    No, that isn’t the one Justice Warren.

    The –- it is not on my — it is sworn out of my brief and I have it here somewhere in —

    Earl Warren:

    Well, is it the —

    Charles S. Burdell:

    Let me just find it then.

    Earl Warren:

    Is it your Footnote 24 where it says challenged the panel — challenged the panel, the grand jury shall be allowed to any person in custody or held to answer for an offense?

    Charles S. Burdell:

    I think it’s on page 2 or 3 of the brief where we have all of the statutes.

    Potter Stewart:

    I think it is the very last line on page 2 or — begins quoting the Texas statute, when in the opinion of the court or state of mind exist in the juror such as would render him unable to act impartially and without prejudice.

    Is that what you’re —

    Charles S. Burdell:

    That sounds like from — that sounds like a quotation from one of our decisions.

    Potter Stewart:

    And that was in Section 10 —

    Charles S. Burdell:

    Now, that’s it.

    Potter Stewart:

    — 28.030 of the Revised Code —

    Charles S. Burdell:

    That’s correct.

    Potter Stewart:

    — of Washington —

    Charles S. Burdell:

    That’s it.

    Potter Stewart:

    — provides that a grand juror may be challenged —

    Charles S. Burdell:

    That’s correct.

    Potter Stewart:

    — and then quoted words.

    Charles S. Burdell:

    That’s right, (Inaudible).

    The grand juror may be challenged —

    Potter Stewart:

    Bottom of page 2, on top of page 3.

    Charles S. Burdell:

    In other words, if you know you’re going to be indicted, if you’re in custody, you can have counsel, you can go to the empanelment of the grand jury, you can then challenge the grand juror for bias or prejudice and you can have him excused if he is bias or prejudice.

    Now, in our case of course we were not at the empanelment of the grand jury and we’re not there to challenge for bias or prejudice.

    And the point of this whole thing is that the court asked no one — the court asked none of the grand jurors if they were biased or prejudiced.

    The court — I think he asked three who were labor men.

    There were three labor men on — who were empanelled and I think he asked them if they were biased or prejudiced.

    He asked no one else.

    He did ask them if their service from the grand jury would embarrass them.

    But he asked — did not ask them if they were biased or prejudiced.

    John M. Harlan II:

    Was there any effort by your predecessors so far as the record shows to ask the court to interrogate the grand jury (Voice Overlap)?

    Charles S. Burdell:

    I was counsel then Justice Harlan and I did not attend because it did not seem to me consistent with my view that a grand jury does not have a right to single out a particular defendant before arrest or before a charge in a preliminary hearing, in empanelling a grand jury.

    In other words, I do not believe it proper and part of our argument relates to this.

    We do not believe it proper where there has been no complaint, no arrest for a court to single out any citizen and say we’re going to investigate you, you better be here and look out for yourself.

    John M. Harlan II:

    Well, maybe I’m talking about old days but I thought that we don’t have time?

    Charles S. Burdell:

    I don’t believe so.

    John M. Harlan II:

    Where a special grand jury is brought in for a particular purpose in such a situation?

    Charles S. Burdell:

    I don’t believe so.

    In any event, in any event there was no attempt to do this and I think that I feel that I had a right to presume that the court would interrogate for bias and prejudice.

    And everyone, I may say, was surprised when we found out – well, let’s say I was surprised when I found out that the court did not do so.

    Now, after not having interrogated for bias or prejudice, then as I say the court went on and instructed the jury something like this, said that the Seattle is the only place where you can charge this man with some of these things, statute of limitations that run on some of these things.

    You have to make your charge here.

    And then he said, “I need not to remind you, I need not disclose — need not remind you of these recent disclosures of the Senate Committee which indicate that the — that officers of the Teamsters Union included the — and including the defendant have misappropriated or stolen hundreds of thousands of dollars, money which came out of the pockets of the members of the union, from the members of the union and it is this — the truth or” — oh, and then he went on to say, “The defendant, meaning Mr. Beck or officers of the union, has publicly asserted that these things are a loan and it is this truth or accuracy of this if you are to determine.”

    Now, that wasn’t the question at all because as Justice Stewart said this $1900 really didn’t have very much to do with it or wasn’t included.

    And the question of what the petitioner might have said concerning this, being the $350,000 being a loan or not a loan was not the thing that the grand jury had to determine.

    Now, may I then — with respect to the grand jury proceedings, may I just refer to one or two other items which I think are tremendously important.

    And they relate to this question about the right in the State of Washington to accuse by information as well as by indictment.

    Charles S. Burdell:

    The interrogation of the witness who testified that the petitioner had given him this money was quite shocking and I use that word deliberately.

    My friend, Mr. Kennedy was not one of the four prosecutors who was present at the time.

    But this man was threatened.

    He was harassed.

    He was told that he was committing perjury.

    He was asked if he would take a lie detector test.

    And when he said he wanted to consult his attorney about it, he was told that he must be lying or else he would immediately agree to take a lie detector test.

    The prosecutor said, “We don’t think you’re telling — one of the prosecutors said, “We don’t think you’re telling the truth and we’re going to keep you here and after I get through with you, Mr. so and so is going to take over and I’m going to keep you here until we see what happens here.”

    William J. Brennan, Jr.:

    This was all in the presence of the grand jury?

    Charles S. Burdell:

    Oh, yes justice.

    Right in the very —

    Felix Frankfurter:

    But didn’t he offer himself voluntarily as a witness?

    Charles S. Burdell:

    He offered himself voluntarily as a witness but not — and he’d — I’m sure he didn’t offer himself —

    Felix Frankfurter:

    (Voice Overlap)

    Charles S. Burdell:

    — to that sort of thing.

    John M. Harlan II:

    I suppose that under your law, the prosecutor had met on the opening of the trial with clear objections that this grand jury for the turning around of (Inaudible)

    Charles S. Burdell:

    No.

    That is just the point, Justice.

    That is just the point.

    And by the way may I say one other — I think I have time before I get to that just to refer to one other remark that was made in this grand jury room.

    One of the other remarks that was made was, “Don’t you realize that no one in this grand jury room, no one in this room believes you’re telling the truth?

    Everyone believes you’re lying.”

    Now, I noticed in the counsel’s brief, he has a long summarization of the testimony of this witness which he says demonstrates inconsistencies.

    Now, the trial court when we asked for the — if we can see that grand jury testimony so there were no inconsistencies in it and that’s one reason we couldn’t see it but the counsel says it was inconsistent.

    But the point is it’s not for counsel now or nor was it for the prosecutor at that time in front of the grand jury to say that or to influence the grand jury by saying we don’t believe you therefore nobody should believe you it was for the grand jury.

    Well, that type of statement for the prosecutor to determine whether or not this man was telling the truth and if he were telling the truth then the defendant would not have been indicted.

    Hugo L. Black:

    Is that quoted in your brief?

    Charles S. Burdell:

    Yes, that is in the — that’s in the brief.

    Hugo L. Black:

    You don’t recall the page?

    Charles S. Burdell:

    You mean the —

    Hugo L. Black:

    It’s alright.

    I don’t want to delay you.

    Charles S. Burdell:

    Oh, is that portion of the testimony quoted in the brief?

    Hugo L. Black:

    Yes.

    Charles S. Burdell:

    The witness.

    It is not in the brief because the testimony is so long and there is so many of those things but it is —

    Hugo L. Black:

    I’m talking about the one where you say the prosecutor made these statements.

    Charles S. Burdell:

    Yes, it is in the record at page — that interrogation commences at about page 388.

    And the entire interrogation goes over to about page 3 — to about page 476 and the entire interrogation is full of that type of thing Justice Black and the portion that I just referred to is included in that.

    John M. Harlan II:

    Now, Mr. Burdell, if the grand jury declined to indict here despite the prosecutor’s efforts could the prosecutor then file it on information (Voice Overlap) —

    Charles S. Burdell:

    Yes he could and the important point in that connection is this, it seems to me that in the first place the mere — of course generally speaking, the mere fact that one can return an information is not any reason for granting or for refusing to dismiss again for an indictment where there have been improper grand jury proceedings.

    We have never — let’s say the antitrust laws which can be — if you were — accusation will be made for client information where a — there has been an unauthorized person in the grand jury room or the wrong grand jury considers the matter of something of that sort.

    It never occurred to anyone to say that — well, they could proceed by information anyway so we will not pay any attention to this error in connection with the indictment.

    But here where a witness has been treated in this manner I believe this indicates that there is all the more reason for seeing to it that the grand jury proceedings must be handled correctly because here is what the prosecutor could — can do.

    He can call a grand jury proceeding and he can get this wit — the possible defense witnesses in there.

    He can treat them in this manner.

    He can create a free trial impeachment program for himself then dismiss the whole thing and then turn around and file information which I think is quite improper and not the function of the grand jury at all.

    Earl Warren:

    Well Mr. Burdell, when a procedure under information does — do you have a preliminary hearing there before a magistrate?

    Charles S. Burdell:

    Sometimes but not always.

    Earl Warren:

    Can the district attorney file an information direct in the —

    Charles S. Burdell:

    Yes.

    Earl Warren:

    — superior court and place them on trial without any —

    Charles S. Burdell:

    Yes.

    Earl Warren:

    — without any — he can.

    Charles S. Burdell:

    Yes, they can do that but not the — but where there is no procedure in the statutes which permits a pretrial discovery and the setting up over an impeachment thing like this was and then in information basis.