Maness v. Meyers – Oral Argument – October 22, 1974

Media for Maness v. Meyers

Audio Transcription for Opinion Announcement – January 15, 1975 in Maness v. Meyers

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Warren E. Burger:

We’ll hear arguments next in number 73-689, Maness against Meyers.

William F. Walsh:

Mr. Chief Justice Burger.

May it please the Court.

This case involves a $500 fine from a Texas District Court and, in that context, it is obviously not an important case and that is obviously not why this Court granted certiorari.

The importance of this case is that it involves the very independence of the American Bar to give free untrammeled legal advice to a client who has the right, should he choose to do so, to follow it or disregard it.

Now, I think perhaps I should make it clear.

I think it’s been made clear in the briefs and I know the Court has seen them.

There is no allegation or suggestion or suspicion that Mr. Maness, who is a member of the Bar of this Court and of the United States Court of Appeals for the Fifth Circuit and, of course, the Texas Supreme Court and so on, was in any way contumacious in any personal sense to the Trial Court.

Actually, there were three lawyers involved in this case, a Mr. Friedman who is unfortunately now deceased and a Mr. Maley who may presently be in the courtroom.

I don’t know whether he is, but three lawyers gave sincere legal advice that this particular client did not have to produce certain documents which, the state contended, were incriminatory.

And, it is simply a case of a lawyer being punished for giving advice on a federal constitutional right, and that’s what this case is all about.

Now, we have had a tradition in this country, since certainly Adams represented the British Soldiers in the Boston Massacre, of lawyers at least being allowed to represent and advice their clients and that tradition is about to be destroyed if this contempt citation stands up, and that is the importance of the case.

Fortunately, it has– had already been decided once.

I think perhaps the value of my presentation to you is perhaps in discussing the facts rather than the law because the law has been completely discussed in our briefs.

As a matter of fact, the case has already been decided by the United States District Court.

If you will examine appendix C in our brief on the merits, beginning at page 74, you will find the opinion of Judge Roberts in Austin dealing with Mr. Maley who was co-counsel in the case and it’s a white horse situation.

There’s no difference between the cases.

It simply was a choice of remedies.

Mr. Maley chose to go the habeas corpus route through the–

Harry A. Blackmun:

Has Mr. Maness chosen to go that route?

William F. Walsh:

No, Mr. Maness chose to come to the Supreme Court because he felt that it was important enough that this Court decide it.

It so happens, Your Honor, that both remedies are available.

You could go the habeas corpus route or the certiorari route.

And, it was Mr. Maness’ feeling, very strongly, that the case is important enough to be decided by this Court and I might–Could he go to Judge Roberts now?

Sir?

Harry A. Blackmun:

Could he go to Judge Roberts now?

William F. Walsh:

Well, I don’t know that he could, having come here, but Judge Roberts has decided Mr. Maley’s case and decided it in what I think is a simple lucid short opinion that is obvious that a lawyer has a right to tell someone that, in his opinion, you have a right to exercise a constitutional right.

Harry A. Blackmun:

Is there an appeal pending from Judge Roberts’ decision?

William F. Walsh:

Yes, Your Honor.

It’s in the Fifth Circuit.

Harry A. Blackmun:

Then we held–

William F. Walsh:

And the Fifth Circuit is holding it in the bench pending this Court’s decision of Mr. Maness’ case.

William H. Rehnquist:

Had this been a criminal right to counsel case, I suppose the right of the lawyer to express his views on a constitutional right could be based on the provision of the constitution that support the right of counsel but, in a civil proceeding, what is the precise basis with that?

William F. Walsh:

Your Honor, you understand there was a criminal prosecution pending.

William H. Rehnquist:

Yes, but this was–

William F. Walsh:

Separately from this.

William H. Rehnquist:

This was a civil proceeding, was it not?

William F. Walsh:

But had the evidence been made available in the civil proceeding, it obviously would’ve been available in the criminal proceeding.

William H. Rehnquist:

Well, do you contend that the defendant in the civil proceeding had a consti– a federal constitutional right to counsel?

William F. Walsh:

Well, Your Honor, he had a constitutional right to counsel.

Yes, I would contend that.

William H. Rehnquist:

Well, would you–

William F. Walsh:

I think a citizen in any case has a constitutional right, if he’s employed counsel, to have a lawyer working for him.

But, you must remember that there was pending a criminal case in the State Courts.

William H. Rehnquist:

Well–

William F. Walsh:

And that the lawyer’s focus was as much concerned with that pending criminal case as it was with the civil case which became the genesis of this action.

William H. Rehnquist:

But this was a civil proceeding, wasn’t it?

William F. Walsh:

This was a civil proceeding alleging the commission of a criminal offense and, I might add this, at this particular day, according to my latest information from granted certiorari Law Week and so on.

This Court has before it, either having granted certiorari or applications for certiorari, some-26 cases involving pornography and obscenity, and I think for a lawyer in the middle of a trial when this Court itself has had considerable difficulties through the years in determining the limits and bound of what is right and what is proper, with this Court having some-26 cases before it right now, for a lawyer working in a Texas town to do anything except suggest to a client that he ought to exercise his rights against self-incrimination I think would probably be negligence.

Now, I– we have briefed it in some detail the merits of the actual defense of McKelva– I mean, the merits of his refusal to produce the information called for by the subpoenee and by the Court order.

And, the only reason we’ve done that, as a matter of fact, my client who is a citizen-member of this Bar, we’ve had some disagreements about the matter but the only reason we’ve done it is simply to assure this Court that the advice is given in good faith that it wasn’t just an effort to avoid legal process or something of that sort.

Warren E. Burger:

There are cases, are there not? There’d been a number of them– of witnesses in a civil action, either parties or independent witnesses, refusing on Fifth Amendment grounds to respond to questions.

William F. Walsh:

Your Honor, the simple remedy for that and the remedy that was presented by this case and really becomes the funny feature of this case is that, of course, the state district judge has the right.

Mr. McKelva having received his advice from his three lawyers, Mr. McKelva had the right to disregard the Court’s order and, thereby, be put in jail for contempt.

And then, it could’ve been tested by habeas corpus.

In this case, it was tested by habeas corpus. Judge Roberts issued a writ for Mr. McKelva and, the minute the state judge learned that the Federal Court had entertained and granted the writ to bring him into the Federal Court, the state judge called Mr. McKelva over from the county jail and said “I’m going to let you go.

Your behavior has been very good and you may be released.”

And, of course, mooted the only traditional way of handling this case.

I don’t think this Court can find a case.

We’ve, I think, done a decent job of research and I don’t think this Court can find a case where a lawyer’s been put in jail for giving non-contumacious advice just because a judge happens to think that it’s contrary to what he wants done.

Potter Stewart:

In your argument, you wouldn’t– wouldn’t your argument be the same despite the fact that, as you say you brief the merits of this question–

William F. Walsh:

You want to know if it was going to be the same.

Potter Stewart:

Your argument would be the same, wouldn’t it, if the advice had turned out to be or even if your opinion was clearly erroneous advice, wouldn’t it?

William F. Walsh:

Erroneous, yes.

Good faith is the question.

Potter Stewart:

Assuming it was in good faith and, as you say, non-contumacious advice.

William F. Walsh:

I think I’m entitled to make mistakes in my practice of law without going to jail.

Now, if I’m arguing a proposition to you which is not in good faith, if I’m trying to kid the Court, this Court or the Court in Tyler, that’s another kettle of fish and, quite frankly, I might take a somewhat different position in that event.

But, so long as the legal advice is in fact given in good faith and, as I say, in this case we have tried to demonstrate to you that there are good faith grounds for believing that the advice was correct.

Byron R. White:

What should’ve– what should a judge do in a civil proceeding when a witness takes the Fifth Amendment and says he won’t answer the question and the judge considers it and says “well, this just happens to be within the area that the Fifth Amendment doesn’t apply to and I direct you to answer the question.”

William F. Walsh:

You have–

Byron R. White:

And the witness says “I’m awfully sorry.

I won’t do it.”

William F. Walsh:

That’s exactly what the– put the man in jail for contempt of Court and then, in Texas, we would have a right to litigate the legality of the confinement and the–

Byron R. White:

Well, what about the lawyer who says “now, you go ahead and refuse to answer”?

William F. Walsh:

Sir, my light is on but let me say this.

The record– the appendix clearly shows and the record clearly shows that the lawyers did not advice him to ignore any Court order.

They simply advised him what they thought his legal rights were.

Warren E. Burger:

You can enlarge on that answer after lunch if you want.

William F. Walsh:

If I may, Your Honor–[Luncheon Break]

Warren E. Burger:

Mr. Walsh, you may continue.

You have about 19 minutes of your time left.

William F. Walsh:

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

I have asked the martial to divide my time in half so that I may have some time for rebuttal, and I just have a few more remarks I wish to make to the Court at this time.

First, I would like to point out that if Michael Maness is guilty of contempt of Court for advising a client about his Fifth Amendment rights, this Court ought to summon Mr. Sinclair back for advising President Nixon not to surrender those tapes and hold him in contempt of Court.

This is a perfect situation of a lawyer giving pro–

Yes, Your Honor.

Byron R. White:

Let me ask you, was the judge– if the judge rules that the Fifth Amendment privilege is not available in a certain context which is being claimed by a party or a witness and insists that a subpoena be complied with or an answer be given to a question and the lawyer advices the client not to answer, do you suggest that he– that the lawyer– neither the lawyer nor the client is in contempt of Court?

William F. Walsh:

No, I didn’t suggest that the client was not.

Byron R. White:

Alright, the client’s in contempt of Court.

William F. Walsh:

This Court has decided that very question in Ryan versus United States in the fall of the second–

Byron R. White:

And– but, the lawyer is not.

William F. Walsh:

No, I think the lawyer has the right to give free and untrammeled advice under any circumstances as long as it’s an honest professional–

Byron R. White:

Let’s suppose that the client at that very moment had the right to challenge the judge’s ruling or appeal.

Instead of disobeying, he could appeal.

William F. Walsh:

Yes, sir.

Byron R. White:

And he chooses not to appeal but disobeys.

The situation would be different, I suppose.

William F. Walsh:

Your Honor, I would be making a quite different argument if that were the case but, under the Texas Law as it applies to this particular case, there was no way to do that.

Byron R. White:

So that, the only way to test the judge’s ruling was to be in contempt and then have the challenge under the Fifth Amendment ruled on as part of the contempt procedure.

William F. Walsh:

That is correct, sir, but–

Warren E. Burger:

And you either get a stay of that or habeas corpus.

William F. Walsh:

Well, Your Honor, the lawyers attempted to obtain habeas corpus relief from both the Supreme Court of Texas and the Court of Criminal Appeals, both of which denied relief.

Byron R. White:

Is there–

William F. Walsh:

They then went to the United States District Court for the Western District of Texas which granted writ of habeas corpus and, the minute the Federal Court granted the writ, the state judge released the prisoner, thereby, mooting the whole case.

Well, is there any–

Sir?

Warren E. Burger:

Did he find him or did he just wash that case out?

William F. Walsh:

He just washed it off.

William J. Brennan, Jr.:

Was there any dispute between you and your opponents as to whether there was a procedure in Texas to challenge this ruling other than back in here?

William F. Walsh:

Well, Mr. Zwiener and Mr. Dibrell can answer that, but I don’t think there is any such dispute.

Am I correct?

If you would, I don’t believe there is any way to do it.

Warren E. Burger:

Mr. Walsh–

Excuse me, go ahead.

William F. Walsh:

Well, that’s all, Your Honor.

I just do want to suggest that this– before I turn this over to my friends at the Attorney General’s Office, I do want to suggest that we are toying here with the right of a free American lawyer to give free and untrammeled legal advice to a person who’s in trouble.

And, that is what is really involved in this case and I hope the Court will recognize it in deciding it.

Warren E. Burger:

When you cast it in that form, of course it at least doesn’t give me difficulty, but let me suggest a hypothetical case to you, just an ordinary civil lawsuit, personal injury or whatever.

An accounting case and you have a witness, not a party.

Warren E. Burger:

A party who refuses to answer, the Court has many sanctions.

He can either dismiss the case of the plaintiff or he– defense counsel can exploit– the plaintiff’s counsel can exploit that.

William F. Walsh:

Yes, sir.

Warren E. Burger:

In argument if it’s the defendant, so later decide it’s a third-party witness and the third-party witness refuses to answer on the grounds of self-incrimination.

Is the Court at that point absolutely bound or can the Court make some inquiry into the good faith of the assertion?

William F. Walsh:

Your Honor, I think the Court can hold the witness in contempt and let the witness exercise his right to habeas corpus and the other relief which is available, which is precisely what this Court decided in Ryan.

Warren E. Burger:

Now, let’s move to his lawyer.

William F. Walsh:

Sir?

Warren E. Burger:

Now, let’s move to his lawyer as in this case.

William F. Walsh:

Yes, sir.

Warren E. Burger:

And the answer of the witness is that, on advice of counsel naming him, he declines to answer for his reasons.

If you can hypothesize a situation where the claim is, on its face, utterly frivolous and unfounded and, here, you’re in the middle or in the process of a trial which might have to be declared a mistrial as a result, there might be many untoward results.

Is the Court totally without power to deal with that situation, other than contempt of the witness himself?

William F. Walsh:

Well, frankly, I am not briefed to discuss that but my answer would be, just having briefed the rest of this case, my answer would be yes.

Warren E. Burger:

Must be against–

William F. Walsh:

Hold the witness in contempt.

Warren E. Burger:

Just move against the witness and not against the client.

William F. Walsh:

I am willing to concede, Your Honor, that there are peculiar circumstances that I can conceive of where the lawyer’s advice would be so frivolous that perhaps the Court could take disciplinary action, but I don’t think by way of contempt.

Warren E. Burger:

And a later–

William F. Walsh:

I think the way would be through the grievance procedure or something of that sort.

Warren E. Burger:

Take disciplinary action or refer it.

Depending on the rules of the jurisdiction, refer it to the proper body.

William F. Walsh:

Yes, sir.

Warren E. Burger:

But, independent of the case and independent of any contempt proceeding.

William F. Walsh:

Your Honor, that happens to be my opinion.

I– as I say, that we’re not involved in that here.

Warren E. Burger:

No.

William F. Walsh:

This man was under a criminal accusation at the time and it happened to arise in the context of a civil action, but he was under a pending existing criminal action at the time.

Warren E. Burger:

And the matter sought to be produced was the subject of the criminal procedure.

William F. Walsh:

Yes, sir, and was contraband.

William F. Walsh:

The state has cited DiBella in its briefing.

Now, the material in DiBella’s case was not contraband.

In this case, if the state was correct in its contention that it was contraband, it, seems to me, raise some slow couture that the man has the right to refuse to produce it.

Thank you, Your Honor.

William H. Rehnquist:

Mr. Walsh, supposing that instead of the attorney’s objection and advice being based on Fifth Amendment grounds, this came up in the course of a proceeding where his client was on the stand, the client, say, was a defendant in a civil action and he’s being crossed-examined.

The other lawyer asked him a question and his lawyer objects on the ground of hearsay and the Trial Court overrules the objection, tells the client who was on the witness stand “answer the question,” and then the lawyer says, very politely, “just a minute, Your Honor.

I’m telling my client not to answer that question.”

Now, there’s no constitutional issue involved there.

Would you say that case is different from yours?

William F. Walsh:

Your Honor, yes.

I would say it’s different because of the pendency of the criminal proceedings against this man, but I would go a little further.

First, if the client wishes to follow his lawyer’s advice, if the lawyer says “don’t answer that question, I don’t care what the judge says,” if he chooses to follow, he goes to jail and that may be tested in the proper appellate remedy, as is suggested in Ryan.

Now, just a moment, Your Honor, the next thing is that it is totally frivolous information that the lawyer has given the client if it is stupid advice.

We do have laws involving malpractice.

William H. Rehnquist:

Well, I thought that–

William F. Walsh:

And the client has remedy against the lawyer.

William H. Rehnquist:

I thought your argument was based though on the idea that this was advice about a constitutional claim.

William F. Walsh:

That’s correct.

William H. Rehnquist:

You think it’s simply–

William F. Walsh:

That’s all that’s involved in this case, Your Honor.

William H. Rehnquist:

Well– but in my example, it’s simply a question of whether it’s hearsay and whether he’s required to answer in the normal course of interrogation of a witness.

William F. Walsh:

Well–

William H. Rehnquist:

Wouldn’t you draw a rather sharp distinction or is this free and–

William F. Walsh:

I am drawing a sharp enough distinction so that I am willing to answer your question.

William H. Rehnquist:

Well, is this–

William F. Walsh:

Because it isn’t involved in this case.

William H. Rehnquist:

Well, is the free and untrammeled right of a lawyer to give legal advice something that exists in a– quite apart from the subject on which he’s advising?

William F. Walsh:

I think so.

William H. Rehnquist:

In a Courtroom he’s–

William F. Walsh:

Well, not in– completely free from the subject on which he is advising.

William F. Walsh:

No, I don’t think that is so at all.

William H. Rehnquist:

But, regardless of whether the subject he’s advising on is a constitutional right or not, you feel that in a Courtroom the lawyer has a right to give free and untrammeled legal advice.

William F. Walsh:

I do.

William H. Rehnquist:

And what’s the source in the constitution for that claim?

William F. Walsh:

The constitutional right to counsel.

William H. Rehnquist:

But, you don’t have the right to–

William F. Walsh:

It is the constitutional right, for instance, to a jury trial and anything above it more than $20.

William H. Rehnquist:

But that’s in a criminal case.

William F. Walsh:

That involves the constitutional right to have counsel represent you.

William H. Rehnquist:

Well– but that’s a Seventh Amendment right that the con– it’s conferred on litigants in Federal Courts.

You were in State Court.

William F. Walsh:

Well, I would be prepared to contend that the Fourteenth Amendment encompasses the right to trial back to the right to assistance of counsel in Civil Courts.

If you happen to have counsel and he’s there and, as these lawyers were, whether you have the right to appointed counsel, as we do in criminal cases, is another kettle of fish but, certainly, if you have a lawyer there and he gives you the advice and you follow it, I think that’s your risk and your remedy is against the lawyer.

William H. Rehnquist:

There’s nothing the judge can do.

William F. Walsh:

Yes, he can put the client in jail.

William H. Rehnquist:

Nothing the judge can do to the lawyer?

William F. Walsh:

Well, I have seen one case in my own home federal district where the lawyer’s asserted a claim of privileges to a communication that was made to them by the clients and Judge Connelly took the position “fine, I can hold you in contempt of Court if you don’t answer the question,” and he said “if you’re right, you can revert,” but you understand this is the lawyer directly claiming a privilege of his own.

This is not advising a client as we have in this case, and Judge Connelly’s position was “well, I’m going to hold you in contempt and if you win in the Supreme Court or the Fifth Circuit or anywhere else, that’s fine but I’m not going to reduce the sentence at the end of 120 days, but that’s a different situation.

No, I think the lawyer has a certain degree of immunity and I think it’s up to this Court to protect it.

The–

William J. Brennan, Jr.:

Your position would be the same if there’s an injunction outstanding against the party and the lawyer advised him not to, he thought the injunction was invalid, and he just advised him to disobey it.

William F. Walsh:

Well, Your Honor, I would hope that I would advise him to appeal the injunction.

William J. Brennan, Jr.:

I know, but if you didn’t.

You advised him to disobey it.

William F. Walsh:

It– Your Honor, if there was judicial relief available, it would be a different kettle of fish.

William J. Brennan, Jr.:

Well, that’s the critical point.

William F. Walsh:

But, in this case, there was no judicial relief available.

William J. Brennan, Jr.:

Isn’t that a critical point in your entire argument?

William F. Walsh:

I think it’s an important point.

Whether it is critical or not, I don’t know, but it certainly is an important issue and I agree with you that the Court needs to consider it.

William F. Walsh:

But, the fact remains that, in this case, there was no relief available other than the relief that was actually granted by the United States district judge and was, thereafter, mooted by the state judge when he realized that it was going to get into Federal Court, and that is the peculiar reason for this whole case.

I would like very much to keep some of my time and, unless the Court has other questions, and turn it over to my friends in the Attorney General’s Office.

Warren E. Burger:

Very well, Mr. Walsh.

William F. Walsh:

Thank you, Your Honor.

Warren E. Burger:

Mr. Dibrell.

Joe B. Dibrell, Jr.:

Mr. Chief Justice and may it please the Court.

Before starting into– on point, I would like to, I think, clear the record with reference to the matter of the way this case came here.

I think that there is no evidence for insufficiency that evidence question concerning the fact that the attorney did in fact advice McKelva, the witness, not to produce the magazines that were subpoenaed.

No question that he’d advice him further, the second time, to produce them and actually if this advice was what was followed and what Judge Roberts held to be contemptible on the part of the witness as well as the attorneys.

I think it’s pointed out on page 14 of the petitioner’s brief and they want to make sure that there’s no question about the jurisdiction or about the fact that the actual advice had been given to disobey the trial judge’s order to produce the material.

Thurgood Marshall:

Is there any explanation to why he drop the charges against the party and didn’t drop them against the lawyer?

Joe B. Dibrell, Jr.:

The– McKelva served seven days in jail, Your Honor.

They were not dropped.

He actually served.

It was a 10-day contempt– criminal contempt sentence and he served 7 of those days, and the judge released him 3 days early and, at the time–

Thurgood Marshall:

Did he sought any– well, did he give any relief to the lawyer?

Joe B. Dibrell, Jr.:

The course of the relief of the lawyer under Article 1911 (a) of the Texas statutes, Your Honor, Justice Marshall, the– before the attorney could actually be held in contempt, actually have to pay a fine or serve time in jail when the contempt has been asserted by the judge.

Another judge must come in and preside over the matter and to hear the matter as somewhat as a review to– and make an independent judgment as to whether to uphold the contempt of the attorney.

This was done in this case by Judge Meyers.

Thurgood Marshall:

But as long as the Federal Court moot, he turned the–.

Joe B. Dibrell, Jr.:

What, sir?

Thurgood Marshall:

Client loose.

Joe B. Dibrell, Jr.:

That was the– that was before the writs were denied, from my understanding that that developed before the writs were denied by the Supreme Court of Texas or the Court of Criminal Appeals with reference to the, not to McKelva but, with reference to the Dis– the contempt, actually the lawyer is, as far as making a file, a determination occurred long after the mootness of the McKelva content.

Thurgood Marshall:

It did?

Joe B. Dibrell, Jr.:

Yes, Your Honor, because the attorney, you see, not had there, review by Judge Meyers under the Texas procedure where the attorneys–

Thurgood Marshall:

I’m not talking– I’m talking about the judge, the original trial judge.

His original action, he didn’t– that stayed, he didn’t touch it all as to the lawyer, but he did as to the–

Joe B. Dibrell, Jr.:

I think under 1911 (a), once he’d made the decision, Your Honor, he no longer had the decision–

Thurgood Marshall:

Well–

Joe B. Dibrell, Jr.:

To do it.

Joe B. Dibrell, Jr.:

I think it’s now to Judge Meyers to another judge who was assigned, Judge Clauson, no longer actually had control of the contempt of the lawyers at that point.

I think once he had made the adjudication then to whether or not he was going to be upheld or whether he will be in contempt or not would be determined by the judge who was assigned to make that determination.

Thurgood Marshall:

Well, my other question is when the witness in Texas pleads to Fifth Amendment, did they use the jargon most states use that “on the advice of counsel, I claim the Fifth Amendment”?

Did they use that jargon in Texas?

Joe B. Dibrell, Jr.:

They have on occasions, Your Honor.

I don’t think it’s uniform.

Thurgood Marshall:

But they have on occasion?

Joe B. Dibrell, Jr.:

Yes, they have on occasion.

Yes, Your Honor.

Potter Stewart:

Did McKelva go up through the– try to get a review of his contempt conviction in the– through the state system?

Joe B. Dibrell, Jr.:

He had to make an application to the state before.

I think we could have had jurisdiction for Judge Roberts.

I think he had actually made an application to the Court of Criminal Appeals and to the Supreme Court as well, but I don’t think there’s any question about it, perhaps if there was jurisdiction, by Judge Roberts to initially grant the writ as far as not having exhausted a state remedy.

Potter Stewart:

So he did not get a review because he was released before there was an opportunity for it, is that right?

Joe B. Dibrell, Jr.:

That’s right, Your Honor.

Potter Stewart:

And it was–

Byron R. White:

Was there a motion to– there was a subpoena issued for magazines and then there was a motion to quash, was there not?

Joe B. Dibrell, Jr.:

There was a motion to quash, yes, Your Honor.

Byron R. White:

And that was what was argued before the judge?

Joe B. Dibrell, Jr.:

The argument– the motion contained one thing.

That the magazines were not owned by the witness–

Byron R. White:

But it was also–

Joe B. Dibrell, Jr.:

With no property interest.

Byron R. White:

It also asserted Fifth Amendment, didn’t they?

Joe B. Dibrell, Jr.:

And, it also asserted the Fifth Amendment.

Byron R. White:

The judge overruled the motion.

Joe B. Dibrell, Jr.:

He overruled, yes.

Byron R. White:

Now, under Texas procedure, could that motion have– could that decision have been appealed?

Joe B. Dibrell, Jr.:

No, not at that point.

It would not– I think Judge–

Byron R. White:

So there was no remedy at that point to protect the materials claimed to be protected by the Fifth Amendment except not produce them and argued out in contempt?

Joe B. Dibrell, Jr.:

I think that the remedy course, had we want to get it, and my principal argument to Mr.–

Byron R. White:

Well, is that right or not?

Joe B. Dibrell, Jr.:

What, sir?

Byron R. White:

Is that right or not?

Was there or wasn’t there some other remedy?

Joe B. Dibrell, Jr.:

Well, perhaps there might– I’m not sure.

We’d– I don’t think it’s developed in the state procedure.

I don’t know that they’re actually prohibited of trying to obtain an appellate judge’s mandamus if a judge is made completely erroneous.

Byron R. White:

But the motion denied the denial.

The motion couldn’t be appealed under Texas procedure.

Joe B. Dibrell, Jr.:

Not at that point.

They’re actually the– just the denial of the subpoena– I mean, the motion to quash the subpoena at that point.

That’s right.

Byron R. White:

And you don’t know whether or not–

Joe B. Dibrell, Jr.:

And he had not yet held them in contempt yet either– at that point either.

Byron R. White:

And you don’t know whether or not mandamus was available.

Joe B. Dibrell, Jr.:

No, I do not.

I would like to point out very– at this– right at the beginning here that the respondent is not in the position here to urge a decision anyway that it would actually destroy or diminish or dilute witness’ right to cert a Fifth Amendment privilege or even a right of a counsel to give legal advices to its effects.

Really, what the respondent is here and what we are seeking and urging upon this Court is some validation of the tools to the trial judges to compel the art of proceedings of the maters before them.

I think it’s respondent’s really petition– contention here that it is the judge and not the lawyer who must be the final arbiter of such matters and, as to the suppression of evidence or claim of privilege subject for review, as the trial proceeding can go on in due course.

And, I readily admit that the conduct of counsel here was not contumacious, but I think it is clear that it was contemptuous in the sense that it did actually counsel a disobedience of a trial judge’s order for production of these matters.

Warren E. Burger:

Well, what if that order had been directed, as I think as Mr. Justice White suggested, to a question subpoenaed to the witness while he was on the stand in the course of trial and he declined to answer on the ground the response might tend to incriminate him.

Would you think the lawyer could be held in contempt for so-advising him?

Joe B. Dibrell, Jr.:

No, Your Honor, not until such time as the judge specifically says “you go ahead and answer the question and then, if the lawyer persists in telling it, I think at that point it’s the witness’ determination to make that determination whether he wants to be held in contempt, go ahead and suffer the consequences for being held in contempt or–

Warren E. Burger:

Isn’t that the normal?

Isn’t that the ordinary route to test it as it is under the federal system or under Rule 17?

Joe B. Dibrell, Jr.:

Yes, it is, Your Honor.

Now, it just might not be a normal means but then, about the same token, if we give this absolute right, and I think that the– if the Court is going to sanction action upon the counsel or just to actually disobey the Court’s order in that point and not be held in some obedience to following the Court’s order, I think is already been pointed out in other areas of disobeying a order of the Court, the Courts are turned into boards of arbitration.

William J. Brennan, Jr.:

Well, how far will you carry that, Mr. Dibrell?

William J. Brennan, Jr.:

Suppose, getting back to the form of question my brother Marshall asked, the response was “on advice of counsel, I respectfully refuse on grounds of self-incrimination,” and the judge says “well, I don’t honor that.

You answer.”

And, the answer was “I’m sorry, Your Honor, on advice of counsel, I respectfully refuse to produce it on grounds of self-incrimination.”

Now, in that circumstance, would the lawyer who had given the advice, would he have been n the difficulty that this lawyer is?

Joe B. Dibrell, Jr.:

I think he would, yes, Your Honor, I think, if I understand your question right.

William J. Brennan, Jr.:

I’m speaking of before he ever takes the stand, he consults an attorney and the attorney tells him “no, if you’re asked to produce it, you just say that on advice of counsel you’re not producing it but pleading privilege against self-incrimination.”

Joe B. Dibrell, Jr.:

No, at that point, I don’t think so.

William J. Brennan, Jr.:

Not at that point, alright.

Now, the judge says “well, I don’t agree with you and I order you to produce it,” and the witness says “again, I’m sorry, but under advice of counsel I refuse to produce it.”

Joe B. Dibrell, Jr.:

That is not the facts of this case.

William J. Brennan, Jr.:

I know it’s not, but I’m asking, would the lawyer be in the same difficulty that Mr. Maness is?

Joe B. Dibrell, Jr.:

No, I do not think so.

William J. Brennan, Jr.:

Well, then why is Mr. Maness in the difficulty he’s in?

Joe B. Dibrell, Jr.:

I think because if he– the feeling of the frustration upon the part of trial judge in this proceeding where, first of all, he denied the motion to quash the subpoena then he asked counsel if he want.

He did not want to hold McKelva in contempt at this point.

He said “I want to give you an opportunity to produce these magazines that had been subpoenaed.

How much time would you like?”

Counsel replied “well, you’ll have to make that determination.

We cannot suggest.

It could even be 10 days we’d still not produce it.”

Nevertheless, the Court recessed until 1:00 and to permit the production of the magazines in convenience to his order.

William J. Brennan, Jr.:

And the lawyer persisted in the advice he’d initially given.

Joe B. Dibrell, Jr.:

That’s right, persisted in it.

Thurgood Marshall:

Is the lawyer–

Joe B. Dibrell, Jr.:

It’s his second persistence in it that we– that the respondent feels was contemptible on the part of counsel.

Thurgood Marshall:

Is the lawyer frustrating the judge or the Fifth Amendment frustrating him?

Joe B. Dibrell, Jr.:

I don’t think the Fifth Amendment was frustrating the course of the facts of this case.

I think that the brief that we filed and the fact that I think your position in DiBella and actually in the analysis of Boyd and I think that clearly, as far as the actual facts of this case, McKelva did not have a right to assert the Fifth Amendment.

I mean, he couldn’t properly assert it was powerful.

William O. Douglas:

I thought possession would be the crime in Texas?

Joe B. Dibrell, Jr.:

This is still a civil proceeding, Justice Douglas, in the sense that we’re trying just to see whether it’s about the injunction is, not one with any further problems.

William O. Douglas:

That’s nothing to do with the Fifth Amendment but, I mean, even though it’s a civil proceeding he could– if possession was a crime, he would be protected, wouldn’t he?

Joe B. Dibrell, Jr.:

I think that, as Justice Black has indicated in Adams versus Maryland, the fact that he will still be able to be very asserting of the Fifth Amendment privilege would give immunity to what, actually at that point, flow from it.

If he had to actually had to produce it in these books at this point, I don’t think he could use that as the factor showing that he had possession of it in a criminal prosecution.

Warren E. Burger:

You mean that could be subject to a motion to suppress?

Joe B. Dibrell, Jr.:

Yes.

Warren E. Burger:

For his possession?

Joe B. Dibrell, Jr.:

He could still have his motion to suppress the evidence later on.

Warren E. Burger:

On the grounds that he was compelled to produce it against his will.

Joe B. Dibrell, Jr.:

Yes.

Warren E. Burger:

Do you think that’s enough protection?

Joe B. Dibrell, Jr.:

I think that what this Court really needs to help to decide this is to keep the balance of what the right of the people and a right of the Court to ultimately have all of the facts brought forth any proceeding, civil proceeding and criminal proceeding, obviously Fifth Amendment privileges, other constitutional rights.

It’s the responsibility of the Court to protect these witnesses and parties as well, but that– I think that what is necessary and what would be helpful and necessary is that we could go ahead and actually have the prophylactic rule about it, as suggested by the modern rule of evidence, the fact that this would be– you actually would have this immunity.

You go ahead and produce it and you would have this immunity from actual to criminal prosecution.

You use in criminal prosecution that part of it.

Harry A. Blackmun:

Mr. Dibrell, let me see if your position is what I think it is.

I take it you have conceded all along that this Mr. Maness could advice his client initially to take the Fifth and then, the Court having ruled, I take it you feel that what he should advice the client is, “in my judgment you have the right to take the Fifth but, if you do, you may go to jail but I, as a lawyer, have to advise you to obey the orders of the Court.”

Isn’t this essentially what you’re saying at this point?

Joe B. Dibrell, Jr.:

Yes, Your Honor.

Harry A. Blackmun:

And that, I take it, you feel is different than to persist in advising the client to take the Fifth.

Joe B. Dibrell, Jr.:

I think so.

Once the Court has had to make some determination, once he has had to be the arbiter of this particular matter of the proper assertion of the Fifth Amendment or not, what– I think what the Trial Court, all Trial Courts, need at least have the– as far as possible to make and a erroneously a free judgment call as possible to protect the rights of the witness who’s claiming a privilege, as well as to protect the rights of the parties who are entitled to have the information come into the trial.

William J. Brennan, Jr.:

The Court could be wrong.

Joe B. Dibrell, Jr.:

Yes.

William J. Brennan, Jr.:

Practicing lawyers, we’ve all known instances certainly where we think they’re wrong.

Joe B. Dibrell, Jr.:

That’s right, yes, Your Honor, and I think that what we need is to cut down as much as possible there up on the part of the trial judge.

Byron R. White:

Well, what if the client said– is told to produce this second time, as you say, and he says “may I talk to my attorney?”

The judge says “alright,” and he talks to his attorney and he asks his attorney “is the judge right,” and the attorney says “well, in my judgment, he’s wrong.”

“Well, how can we test it,” and the attorney says “just refuse to answer him.

We’ll test it out on contempt proceeding, but you’re going to be held in contempt but if you want to test it out, I advise you to–

Joe B. Dibrell, Jr.:

It’s a suggestion that I would make the–

Byron R. White:

Not– the only way you can test it out is to refuse to produce, but we can test it out that way.”

Joe B. Dibrell, Jr.:

I wouldn’t argue–

Byron R. White:

Is there anything– that would be a rather normal conversation, wouldn’t it?

Joe B. Dibrell, Jr.:

If I can get– I think that your question is the one point, I hope, Justice White, in that what is needed I think, as far as the trial judge is concerned, recognizing that, there, the protectors of the rights of the witnesses and all authorities, at least to have it in camera examination of documents which have been subpoenaed to make a better det– more determination and, perhaps, would even urge that some in-chamber inquiry up to the point is to what the testimony–

William J. Brennan, Jr.:

Tell me this, Mr. Dibrell.

Suppose, in this instance, Mr. Maness had said “alright, you better obey,” and so he surrendered the documents he had possession of.

And, the next day, there’s a misdemeanor charge under your Section 3 that for having possession with intent to distribute any obscene matter.

I gather that, on the strength of what he surrendered, even though his lawyer thought he didn’t have to surrender but just to obey the judge he surrendered it, I guess he’d go to jail, wouldn’t he?

Joe B. Dibrell, Jr.:

You’re talking about an involuntary surrender.

William J. Brennan, Jr.:

Certainly, that’s what I’m talking about.

Joe B. Dibrell, Jr.:

Yes, I think–

William J. Brennan, Jr.:

In response to the order.

Joe B. Dibrell, Jr.:

I think you can, at that time, move to suppress it.

Warren E. Burger:

Is it established law that you could suppress in those circumstances in Texas?

Joe B. Dibrell, Jr.:

Well, I think Texas is under the same ruling as this Court as any other State Courts.

In this instance, I think that this Court has ruled that you can still– have found that you can still move to suppress evidence.

Warren E. Burger:

But we find that, sometimes, some of these things are not always followed in the State Court so– but my question is in Texas, in a State Court proceeding, is it accepted law that the involuntary production would enable him to suppress it as evidence in a subsequent criminal trial?

Joe B. Dibrell, Jr.:

I can’t cite a case, Your Honor, but I would– my– probably, yes, it would be–

Warren E. Burger:

It isn’t perhaps quite enough for the man to know that, ultimately, in the Federal Court he might be vindicated if, in fact, it would be incriminating to him or tend to be incriminating in the State Court system.

Isn’t that correct?

Joe B. Dibrell, Jr.:

I don’t think it even– frankly, I don’t think that the State Courts have had the point to where he would– I don’t think that there’s a saying which say that he would have this risk anymore than with the federal system.

Warren E. Burger:

But then, doesn’t that tender give some color of validity to the lawyer’s advice?

If you can’t answer, that it is established Texas law that that would be subject to a motion to suppress, and with a successful outcome, and doesn’t that justify the lawyer telling him not to produce?

Joe B. Dibrell, Jr.:

I think that, frankly, that the State Court would sustain a motion to suppress, but I cannot cite you to a case.

Warren E. Burger:

Well, what if the lawyer had said to the client exactly what you’ve just said to the Court that “I think,” if the client in– during a recess then asked him the question and he said “I think that I can’t cite any case that it will be subject to motion to suppress”?

Joe B. Dibrell, Jr.:

Well, I think we ought to hold that.

There, again, I think the contempt that we’re here is the actual disobeying– the actual very– to go ahead and actually disobey and not just giving advice as to what might be the consequences.

Thurgood Marshall:

But, Mr. Dibrell, on your– you said the only way to try it out is to go to jail.

Joe B. Dibrell, Jr.:

This is what Mr. Walsh indicated, let the– let his client go to jail.

Thurgood Marshall:

Well, if that’s the only way to do it and you say that’s the one we are trying it out, and the judge puts both the lawyer and the client in jail, how do you get a trial while they’re in jail, both of them?

Joe B. Dibrell, Jr.:

Of course, in this case, the judge didn’t put them both in jail until he– you don’t get the trial.

Thurgood Marshall:

Well, you said he couldn’t put them there.

Joe B. Dibrell, Jr.:

What, sir?

Thurgood Marshall:

Could he have given them 10 days, the lawyer?

Joe B. Dibrell, Jr.:

He gave them 10 days, but he could not then put the lawyer in jail.

Thurgood Marshall:

Why not?

Joe B. Dibrell, Jr.:

Because another judge has to come in and hear the matter.

Thurgood Marshall:

Why not?

Joe B. Dibrell, Jr.:

Because Article 1911 (a) of the Texas statute provides that an officer of the Court or the attorney who is held in contempt by a judge, that judge must let another judge come in and preside over the matter.

Thurgood Marshall:

Well, then he say– that judge says “go to jail.”

How do you litigate that?

Joe B. Dibrell, Jr.:

Well, he doesn’t litigate it by a writ of habeas corpus.

Thurgood Marshall:

In jail?

Joe B. Dibrell, Jr.:

Well, he would be broth forth to be litigated in Court.

Thurgood Marshall:

Well, what’s left of the Fifth Amendment in a civil proceeding in Texas, other than the judge’s unfettered discretion?

Joe B. Dibrell, Jr.:

I don’t think it’s anymore unfettered discretion than any judge in the trial of any proceedings that he’s got to consciously follow the– what he understand what action of the law is.

He’s under the same commands of all of the federal judges as anyone else in the matter of constitutional all-preserving, protecting the rights of witnesses or parties.

Thurgood Marshall:

But this is the Fifth Amendment we’re talking about.

Joe B. Dibrell, Jr.:

Yes, and the Fifth Amendment.

Thurgood Marshall:

To the constitution?

Joe B. Dibrell, Jr.:

I think that he has either gone to sus– when the privilege is raised, he’s either got the option of either– obviously, he’s got the option of either sustaining the assertion of the–

Thurgood Marshall:

Do you recognize that the lawyer might have been wrong in the Fifth Amendment advice he gave and, if you assume that he could be wrong, would you also assume that the judge could be wrong?

Joe B. Dibrell, Jr.:

Yes, Your Honor.

The judge can also be wrong.

Thurgood Marshall:

But 10 days will settle that in jail?

And, if he turns him loose, you can’t tell us what protection he has, can you?

Joe B. Dibrell, Jr.:

He returns the–

Potter Stewart:

Materials.

Thurgood Marshall:

Materials loose.

Joe B. Dibrell, Jr.:

I think he still has available to a motion to suppress the evidence even in this proceeding, this current proceeding–

Thurgood Marshall:

Of course he has a right to file a motion.

He has a right to file the–

Joe B. Dibrell, Jr.:

And also to object to it.

The judge has not even had an in-camera inspection of the materials, Your Honor.

Thurgood Marshall:

Can you give me one case in Texas that’s granted a motion to suppress?

I understood you to say you didn’t know of one.

Joe B. Dibrell, Jr.:

A case to suppress evidence?

Warren E. Burger:

In these circumstances.

Joe B. Dibrell, Jr.:

In these circumstances.

No, I cannot give you.

Byron R. White:

Well, I gather the trial judge indicated that it would be.

At page 11 of the petitioner’s brief there’s a colloquy.

I think that’s what it means.

The Trial Court said “which could have been reached by a motion to suppress that evidence or by an objection to an attempt to introduce it.”

Now, I don’t know what law the Trial Court was relying on, but if– I take it that’s what he was referring to.

Joe B. Dibrell, Jr.:

Well, at least Judge Clauson was taking this attitude.

Byron R. White:

Yes.

Joe B. Dibrell, Jr.:

Yes, I think.

Warren E. Burger:

Well, he’s saying that it would be reached.

Does that mean– is that an assurance that it would be– when reached, it would granted?

Joe B. Dibrell, Jr.:

I think of it as an assurance by this Court and this proceeding that it could be reached by that being considered.

William J. Brennan, Jr.:

But it wasn’t the trial judge, was it?

This is the second judge, isn’t it?

Is it or isn’t it, I can’t make out from this.

Joe B. Dibrell, Jr.:

Now, that’s the trial judge.

William J. Brennan, Jr.:

This is the trial judge.

Are you sure about that?

Potter Stewart:

Judge Clauson, if you’ll look at the bottom of page 8, I think it begins with Judge Clauson and then carries on through pages 9, 10, and 11.

Joe B. Dibrell, Jr.:

Yes, it’s Judge Clauson.

William H. Rehnquist:

Mr. Dibrell, what is the normal Texas procedure when someone is found in contempt during the course of a trial for that person who is himself found in contempt to obtain– until appellate review in the state system?

Joe B. Dibrell, Jr.:

By a writ of habeas corpus to the State Court, State Appellate Court.

William H. Rehnquist:

And, was McKelva the client or witness here, was he in a position to seek habeas corpus had he gone to jail to– or had he been sentenced for contempt by Judge Clauson?

Joe B. Dibrell, Jr.:

He was sentenced for criminal contempt of 10 days and–

William J. Brennan, Jr.:

By Judge Clauson.

Joe B. Dibrell, Jr.:

By Judge Clauson, yes, Your Honor.

William J. Brennan, Jr.:

And he sought state habeas corpus.

Joe B. Dibrell, Jr.:

State habeas corpus.

William J. Brennan, Jr.:

All the way up.

Joe B. Dibrell, Jr.:

All the way up.

William H. Rehnquist:

If the Texas Criminal Court of Appeals or Supreme Court have thought his claim meritorious, they would’ve–

Joe B. Dibrell, Jr.:

They could’ve granted.

William H. Rehnquist:

Could’ve granted.

Potter Stewart:

I misunderstood.

I thought you told us a few minutes ago that he was released from custody before he had an opportunity to get a review of this man?

Joe B. Dibrell, Jr.:

He had already made this.

He was leaving before he had a review by the federal district judge.

Potter Stewart:

I misunderstood you.

We’re talking about McKelva.

Joe B. Dibrell, Jr.:

Yes, McKelva.

No, he’d already made his– he’d already been reviewed by the State Court.

Byron R. White:

And, in effect, the judge’s ruling sustained that?

Joe B. Dibrell, Jr.:

That’s right.

Potter Stewart:

Right.

Byron R. White:

And, so that if he hadn’t been– if he had turned the magazines over, he could never have had that review because he never would’ve been held in contempt.

Joe B. Dibrell, Jr.:

He would n– that’s right, he would not been held in contempt.

He’d been obeying the judge’s orders.

Warren E. Burger:

Let me go back.

Joe B. Dibrell, Jr.:

Yes, sir.

Warren E. Burger:

I’m sorry to track over it again, but this judge’s statement at page 11 of your brief.

Joe B. Dibrell, Jr.:

Of the petitioner’s brief, Your Honor?

Warren E. Burger:

Yes, right near at the top of the page where the Court said “referring to the action, the compulsory production, that it could have been reached by a motion to suppress that evidence or by an objection to an attempt to introduce it.”

Now, you say that you can’t cite any case in which the Texas Courts have held that it– that motion would be successful because of a compulsion exerted by the power of the subpoena.

Is the Court saying any more than pointing out the standard routine remedy, you can always make a motion?

Joe B. Dibrell, Jr.:

I think more, yes, Your Honor.

I think it is pointing out here that, actually, at this point of the subpoena, there’s no record, there’s no books or anything else.

The Court has not even had an opportunity to make an in-camera examination to rule on the admissibility of them by having them to see, to actually make a judgment call in that sense of incrimination or anything else.

All he has is the motion and the raising of the assertion of the privilege by counsel, and I think that the trial judge here was trying– was pointing out to counsel that if I turn these over to the city attorney who has asked for the Court to subpoena these magazines.

At that point, you can object to their being introduced by the city attorney raising grounds and to still have a review of that and appeal later as to whether or not “if I do admit him, you can object to it, you can have a review by the Appellate Court to determine whether I laid the correct judgment or not.

If I– in my view, that they should be suppressed or your objection is good, they do not come into this trial.”

Warren E. Burger:

Well, what’s the scope of the Fifth Amendment Incrimination Clause?

Does it mean that you can only use it if you are certain to be convicted of something or does it mean that you can assert the Fifth Amendment right if it will expose you to prosecution?

Joe B. Dibrell, Jr.:

Well, I think this Court has already determines that it is very personal.

It has to be very personal in its claim and it must be asserted for as I think, as I read the decision and as I understand the procedure, going to the actual privacy of the person’s either in the facts, his papers, and of course also his testimony which might be obviously personal to him if it incriminates him.

Warren E. Burger:

But that doesn’t quite answer my question.

In Texas, as you– as the Texas Courts apply the Fifth Amendment to the constitution, is it necessary to show, in order to assert it successfully, that you are bound to be convicted or is it enough to show that you are likely to be prosecuted?

Joe B. Dibrell, Jr.:

No, I don’t think you have to show that you are bound to be convicted.

No, I think it is enough that you might be prosecuted.

I think that a– I don’t think there’s any difference in the fact that it might be– you’ve got to show that it’s obviously some incrimination, otherwise I don’t think that there’s proper assertion.

Warren E. Burger:

Assume– let’s alter our facts a little.

Assume that there was no criminal proceeding pending in this case and he declined to produce on the advice of counsel who said if you do produce them, you are very likely to be prosecuted.

Would that be a– would you regard that as a good– a valid claim that should be recognized by the Texas Courts?

Joe B. Dibrell, Jr.:

I don’t see the distinction there, but what are the possible some criminal prosecution pending or civil.

I think that, still, he’s got a duty to produce these particular magazines in this case.

Warren E. Burger:

Very well, Mr. Dibrell.

Mr. Walsh, do you have anything further?

William F. Walsh:

Very little, Your Honor.

I’ll just say this.

Every time I have to be down at the police station at midnight and tell a client “by George! You have a Fifth Amendment right not to talk to the police,” I guess I am obstructing justice if that is within the meaning of what our friends from the state say, but the fact is that the advice given in this case was obviously sound.

It was obviously founded on careful pleadings.

William F. Walsh:

It, I think, is totally sustained by our briefs but I don’t think that’s the key issue in this case.

I think the key issue is the right of the lawyer to give advice, and this Court in Ryan has made it very clear that there’s a conventional, easy, simple way to pursue this matter and handle it.

And, in answer to the question that was asked from the bench, first, I’d like to point out that at page, I believe it’s 41, yes of the–

Warren E. Burger:

Of which?

William F. Walsh:

Of the appendix, the Court of Criminal Appeals of Texas simply denied the motion for relief to file the application for habeas corpus as to McKelva.

The Supreme Court of Texas did the same, and both of those notations are at page 41 of the appendix.

Potter Stewart:

And did all of that happen within seven days or–

William F. Walsh:

Yes, they moved fast, Your Honor, and did everything they could for their client.

But, they then received the writ of habeas corpus from Judge Roberts, and it was on that day, as a matter of fact, while they were hand-carrying the writ of habeas corpus from Judge Roberts to the State District Court, he apparently learned of it through some informal way which we honestly do not know and he had the man brought over from the county jail and dismissed the charge against him.

And, of course, that mooted the federal habeas corpus for the– as to the client.

Potter Stewart:

And this was a criminal contempt, wasn’t it?

It wasn’t a civil contempt.

William F. Walsh:

Well, he was in contempt of Court, Your Honor.

I’m unsure how–

Potter Stewart:

Well, it was a 10-day certain.

William F. Walsh:

Yes, and that was what was given the lawyers too.

Potter Stewart:

And the lawyers also had the number of days certain post to fine.

William F. Walsh:

The reviewing judge– as Mr. Dibrell has said, the reviewing judge changed the jail sentences to the lawyer as to both Mr. Maley and Mr. Maness to a $500-fine but, of course, on non-payment of the fine they’re subject to going to jail.

And, there is a– what I think is a perfectly sound opinion from Judge Roberts.

It is Exhibit C on the brief on the merits.

Judge Roberts is from Texas.

He knows what goes on and how it goes on and, quite frankly, I don’t think this Court could do any better than to simply adopt Judge Roberts’ opinion as to both parties.

Potter Stewart:

Well, I saw Judge Craig’s opinion and where is–

William F. Walsh:

No, Judge Roberts, Your Honor.

Potter Stewart:

Oh, Judge Roberts, yes.

William F. Walsh:

Yes.

Potter Stewart:

On the habeas.

William F. Walsh:

It’s, I believe, Exhibit C.

Potter Stewart:

Yes.

William F. Walsh:

Yes, at page 74 of our–

Potter Stewart:

Right.

William F. Walsh:

Brief on the merits.

Potter Stewart:

Right.

William F. Walsh:

And–

Byron R. White:

Isn’t there a normal procedure in Texas for granting immunity where the state wants testimony that explain in the–

William F. Walsh:

Your Honor, we have several independent statutes on immunity in various kinds of cases.

Byron R. White:

Normally, the prosecutor or the judge or somebody has to make it clear to the witness or the party that that removes the danger.

William F. Walsh:

Well, yes and, furthermore, I might point out that the idea that Mr. Dibrell suggested to the Court I have crow with it.

I think Chief Justice Burger had his fingers on it.

If this were released, even after advice of counsel, there would be a serious question in my mind as a defense lawyer whether it wasn’t voluntarily released.

I mean, yes, if you actually hit a guy on the head and take something away from him, there’s no problem.

But, if it is your decision not to contest a Court judgment and simply accept it and bring these materials into Court, there is a serious question in my mind as to whether that is not a voluntary surrender and, therefore, your right to suppress may indeed be restricted.

I simply invite the Court’s attention to that.

I have used most of my time.

Unless the Court has further questions, I’d like to thank the Court for its attention and for the privilege of being here.

Warren E. Burger:

Very well, Mr. Walsh.

Thank you, Gentlemen.

The case is submitted.