Pittsburgh Plate Glass Company v. United States – Oral Argument – April 29, 1959

Media for Pittsburgh Plate Glass Company v. United States

Audio Transcription for Oral Argument – April 28, 1959 in Pittsburgh Plate Glass Company v. United States

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Earl Warren:

Number 491, Galax Mirror Company, Incorporated, et al., Petitioners, versus United States of America.

Mr. Morison, you may proceed.

H. Graham Morison:

Mr. Chief Justice and may it please the Court.

I represent the individual Defendant in this case, John Messer, Sr. and two corporations, the Mt. Airy Mirror Company, and the Galax Mirror Company of which Mr. Messer is a Corporate Officer.

The issues here are the same as in the case of Pittsburgh, which was heard at the end of the session yesterday.

Mr. Chief Justice, on yesterday, you asked counsel for Pittsburgh if the defendants contended that they would be entitled to grand jury testimony of all witnesses, and we’d like to clear that up so far as these defendants are concerned.

The answer, of course, is no.

In this case, however, as I will demonstrate, the facts were that there was one key witness.

He is so characterized by the Government, Jonas, and this man Jonas decimated the defendants by his testimony, one witness.

William J. Brennan, Jr.:

Can you refer us in the record where it is, where the press con for his testimony was made on behalf of your client at the trial?

H. Graham Morison:

Yes, Mr. Justice Brennan.

I might point out that there were 10 defendants in this case and, as a working rule of court and with the Court in Chambers, it was understood that an objection by any counsel for defense would be applicable to each of the others unless counsel should accept and show — so notify the Court.

Now, as to whether Mr. Chief Justice, under other circumstances, it would —

William J. Brennan, Jr.:

Well, excuse me.

That —

H. Graham Morison:

Yes?

William J. Brennan, Jr.:

— would mean that the request which was referred to yesterday is the same in question —

H. Graham Morison:

Yes.

William J. Brennan, Jr.:

On behalf of your client?

H. Graham Morison:

Yes, sir, it is.

William J. Brennan, Jr.:

Thank you.

H. Graham Morison:

It is.

It was made on behalf of all defendants.

Mr. Chief Justice, as I was saying, of course, whether under other circumstances, in another fact situation, in another case, it would be appropriate for the trial jury — trial judge to make a grand jury testimony made available to any number of witnesses would be 10 — would depend, we believe, upon the particular facts in each situation.

But, as I pointed out here, 10 defendants requested the grand jury testimony only of Jonas, although there were numerous other Government witnesses who testified before the grand jury and who testified at trial, and no request was made for their testimony.

Felix Frankfurter:

Were those witnesses, the other nine witnesses for the Government, witnesses to matters of — technical matters not dealing with the merits of the controversy?

H. Graham Morison:

No, sir.

There — there were certainly two witnesses for the Government.

Mr. Buchan and Mr. Stroupe, who testified as to the critical issues of fact of what occurred at this meeting at The Bluffs where the Government contends, there was an agreement.

But, I’d like to —

Earl Warren:

Mr. Morison —

H. Graham Morison:

Yes, sir.

Earl Warren:

Pardon me.

Finish your answer.

H. Graham Morison:

That’s all right sir.

Earl Warren:

I was just going to ask then if you contend here that your client was entitled to this statement — this testimony as a matter of right or that the judge abused his discretion in this situation and not giving it to him.

H. Graham Morison:

Mr. Chief Justice, we do not contend here that the standards that we seek — think are appropriate, in any weight of this, the trial judge’s discretion.

That is not contended.

We do not believe it involves any change of Rule 6 (e).

We do not believe that it involves the overruling of any case decided by this Court on this issue.

And, I’d like to develop that, if I could, Mr. Chief Justice.

Earl Warren:

Yes, in your own time.

H. Graham Morison:

Now, it is our contention, if it please the Court, that you cannot understand the sinuous of fundamentals in this case unless you look at the facts as it pertains to my client.

John Messer, a man of advanced years, a man of very positive and determinative personality who had been a vigorous price competitor, who completely controlled the price policies of his company, went to the Asheville meeting which was with the Mirror Manufacturer’s Association and, quite in character, as we reveal from the testimony of others, I’ll tell you later why John Messer didn’t testify.

He announced to two members of the industry, “I, in view of the critical shortage of plate glass and the increased demand for mirrors, I’m going to raise my price.”

He didn’t say, “I want to raise it.”

But, “I’m going to raise it.”

And, quite understandably, from this man, that set off quite a discussion among the members of the industry at that meeting.

Subsequently, a man named Kenneth Hearn called Jonas who was not present at the Asheville meeting and told him what Messer had said.

And, we get the first evidence advice of bias of the witness Jonas on his reply.

The testimony is when he heard that on the telephone he said, “I wouldn’t believe John Messer on anything.”

The second evidence of bias is the witness is — comes from the witness Buchan who said, “Jonas was bitter towards Messer because of the price war.”

But the most dramatic evidence of this witness’ bias against my man Messer occurred at the critical meeting at The Bluffs where Jonas precipitated a fight, a verbal duel with Messer that was so intense, one witness said, “I thought they were going to come to blows.”

And, the second witness, that, “I thought Messer was going to have a stroke.”

Now, what is the testimony?

Keep in mind this meeting.

There were only four people that are important that attended that meeting.

One was John Messer, the other was Grady Stroupe of Stroupe Mirror, the third was Ralph Buchan of Carolina Mirror, and the fourth was Messer.

Now, two of the witnesses, Buchan and Stroupe, are in agreement on what occurred.

Here’s what they said, in essence.

H. Graham Morison:

They said, first, that when the meeting opened, Messer restated what he’d said at Ashville to one and all, “I’m going to raise my price to 78, an increase of about 10%.”

At that point, Jonas jumped on it and, in effect, doubted his veracity.

And, this terrible, as they described it in the record, hassle between the two men occurred.

Then, after that had subsided, there was a discussion of the price situation.

And next, finally, when Messer, still thoroughly mad, he said, “All right, you’re going to all have to get out a letter on the same day,” and what happened then?

Both Buchan and Stroupe said as follows.

Stroupe said, “I didn’t come here for that purpose and I won’t do it.”

Buchan said, “I am not authorized to make any sort of an arrangement.

I’m here only as an observer.”

He was a subordinate of Carolina.

He was sent there by Ed Gardner, the President of the company.

And, they both agree that, in — at that posture of the events at The Bluff, Messer said, “You can all go to hell.

I’m going to 78 and the rest of you can do what you want.”

Now, the testimony is that Buchan reported that last and significant fact to his superior, Gardner.

And, Gardner had to deal with that and evaluate it as to what he would do.

It’s significant that neither Buchan nor Stroupe testified that there was an agreement, but Jonas did.

Now, I want to talk about John Messer again.

You’ve got to understand that — I believe the Court have got to understand this man.

John Messer was a man of advanced years, I have stated he was a very positive and assertive man, a tough, vigorous price competitor.

He was examined extensively by Dr. David C. Wilson of the University of Virginia Hospital, a specialist of neurology and psychiatry.

Dr. Wilson testified that Messer had advanced arteriosclerosis, hardening of the arteries in — particularly in the brain, that he’d suffered several minor strokes, and that he’d suffered, as is usual in the — such cases, a profound loss of memory, and that his recollection of the events — critical events in this case at Ashville and at The Bluffs were vague and unreliable.

Now, obviously, he was not put on the stand, and I don’t think I take liberties with the record, if I suggest to this Court, that he was of no help to his counsel in giving us the elemental facts of what occurred in Ashville and at The Bluffs.

That had to come from his competitors, including this man, Jonas.

Now, certainly, I think it is abundantly clear, this man Jonas, described by the Government as a principal and key witness, he was.

His bias towards Messer, I have just described, stands out in the record.

This man Jonas, I said, decimated our man.

He did.

He glibly supplied every missing detail from the meeting at The Bluffs necessary to support the Government’s case against Messer.

Now, let me tell you how he did that.

He — Jonas testified Messer didn’t say, “I’m going to raise my price.”

H. Graham Morison:

He said, “I want to raise it.”

When Jonas testified that when he got the assurance of the others that he agreed that he had raised his price, he said, “We just agreed that 78 was about fair and we went along,” that they let Messer dictate, sending out a letter.

And, he significantly did not remember that, at the end of the meeting, this peppery language of Messer saying, “You can all go to hell.

I’m going to 78 and the rest of you do what you want to.”

He didn’t remember that.

Now, Buchan testified that he recalled no arrangements made at that meeting at The Bluffs for calling other participants, the other mirror companies not represented, but Jonas did.

He tied it all together.

Now, I want to talk about — I’m talking again about the critical effect of Jonas, this one man, this one witness, on the defense, and to show you the posture in which we find Jonas.

Neither Jonas, his company, the Lenoir Mirror Company, nor another mirror company, a co-defendant not named as a defendant, the Slane Company which owned the big interest in his company, were indicted.

Suspect one, second in our dilemma of defense when we sought to interview Jonas, Government counsel instructed him not to talk to Defense counsel.

And, third, the record shows Jonas testified not once, as most of the others did, but three times before the grand jury and was interviewed extensively by Government counsel, each and every time.

Now, keep in mind, there were no signed statements that Jonas had given to the Government.

The Jencks statute discovery that was exceeded to us were notes and memorandums of Government counsel preparing for trial to examine Jonas.

We knew that the only way in which you could attack the credibility of this key witness who would lie in that grand jury testimony.

And, it’s not enough to say you could have cross-examined.

Every trial lawyer knows that when you get a sense and instinct, don’t do it if you don’t have the foundation and let him, before the jury, say, “I’ve told the truth before the grand jury and I’ve told it here.”

And, at that point, 10 defendants, each for different reasons, sought from the trial judge the testimony of Jonas who stated that his testimony before the grand jury covered the same batter as he testified to at the trial.

And, the Court — the District Court summarily denied it because he said, “You’ve got to make a showing of prior inconsistency before I’ll even listen to it.”

Now, here was Jonas, the critical witness.

Certainly, in the phrase of this Court, it was one of particularized need that we were faced with.”

And, the only policy against exceeding to the disclosure we sought is the traditional one of secrecy.

Now, we believe, if it please the Court, that the philosophy expressed in Jencks and in the Andolscheck case in the Second Circuit by Judge Hand is the correct philosophy that should have been applicable under these facts.

We interpret that philosophy to be that fullest access to documents and material reasonably necessary for defense be given in a case of this kind.

We believe that it is an — a philosophy of evenhanded justice and a fair play in a criminal case.

But we point out that if the public interest requires that such a strict rule of secrecy of — be cloaked around the grand jury, then we say that the Government should not be permitted to use a witness who made such damaging inroads upon our defense and then to deny us the means of impeaching that witness.

Felix Frankfurter:

May I ask you whether — at what stage was this request for the grand jury minutes?

That is, at what stage of the cross-examination was it?

H. Graham Morison:

After the witness Jonas had testified in chief for the Government, Mr. Justice.

Felix Frankfurter:

Right after that?

H. Graham Morison:

Yes, sir.

Felix Frankfurter:

Before any cross-examination?

H. Graham Morison:

Yes, sir.

Felix Frankfurter:

So that, there was — if I were to read the direct and cross, I would not find that, on the cross, he’s already been hemming and hawing and shown to a visitation of some resolving.

Generally showed himself to be a shifty and not fully reliable witness.

That is not his case, is it?

H. Graham Morison:

That is not his case.

This was a —

Felix Frankfurter:

This is merely on the basis of his opening — at the opening inquiry by you or by your counsel associate.”

Did you testify in the grand jury?”

“Was it referring to the same subject matter?”

“Yes.”

“I ask for the grand jury minutes.”

That’s the record, is it not?

H. Graham Morison:

That is correct.

After he had testified in chief and, mind you, if you read the record, the character of this witness Jonas, he’s a skillful and intelligent man.

Felix Frankfurter:

But did he show on the cross that he was a — or that the experienced trial judge, such as Judge Paul is, in the Court of Appeal that this is not a truth-telling witness?

On the basis of the direct, could you say that if you read it in the court prints?

H. Graham Morison:

Well, now, Mr. Justice Frankfurter, you put me in a role that I can’t assume.

I can tell you I was trial counsel there.

My heckles were out three feet.

Felix Frankfurter:

I know.

H. Graham Morison:

I just knew this was a suspect.

Now, how he struck judge —

Felix Frankfurter:

I want to know whether the judge would have had his suspicion as a very experienced judge.

Judge Paul, like all experienced judges, has the notes, different kinds of notes from opposing counsel, but —

H. Graham Morison:

That —

Felix Frankfurter:

But he has their notes.

H. Graham Morison:

Mr. Justice Frankfurter, if you concede, there are two kinds of notices.

I’ll agree with you.

Now, he didn’t, apparently.

Felix Frankfurter:

These two kinds.

H. Graham Morison:

Because in — although we don’t think that, in the rule that he — that Judge Paul applied here, that he exercised any discretion.

I will develop that later.

He applied, mechanically, a rule which even the Government concedes —

Felix Frankfurter:

Did it say —

H. Graham Morison:

Is improper.

Felix Frankfurter:

Did it say so?

H. Graham Morison:

I’d like to read that to you, Your Honor.

Felix Frankfurter:

But it was — did he say it was mechanical?

H. Graham Morison:

No, he didn’t say it was mechanical.

Those are my words.

Felix Frankfurter:

Yes.

H. Graham Morison:

In the context of the record.

Now, here’s the way — this is on page 259 of the record.

Mr. Homer Carlson was speaking for all defendants, all 10.”

Then, I want to move for the production of the grand jury minutes.”

The Court “Exactly what I thought you were and you’re not going to get them.”

Mr. Homer Carlson “We want to make the record.”

The Court “Unless you can show me — can show some sound basis that contradicts between what happened in the grand jury room and his testimony before the grand jury, and his testimony in this trial, I’m not going to require the production of the grand jury records.

It would be easy for an attorney to get access to the records of the grand jury by just such a motion as you’re making here.”

Now —

Felix Frankfurter:

I’m suggesting that that does not preclude that if Judge Paul had been in — as he sat there and listened, as a careful trial judge does, perhaps he even get to call and even takes notes, doesn’t he?

Did he?

Did he ask?

H. Graham Morison:

I can’t answer that, sir.

I don’t know.

Felix Frankfurter:

Anyhow, listening with the experienced old facts and nerves, if he had come to the conclusion this is a very shifty witness, non-constant, he wouldn’t have found contradiction or suspicion for the basis of contradiction in that very effect.

H. Graham Morison:

But, Mr. Justice Frankfurter, I point out that if he were pursuing a much better standard, as the one you suggest, sensing that there was truly in this witness something shifty and unreliable, he didn’t apply that.

He didn’t say.

Felix Frankfurter:

How do you know he didn’t?

H. Graham Morison:

Well, all I know is what the record said and the impact on us, “unless you can show,” which we couldn’t.

Felix Frankfurter:

No, but non-constant —

H. Graham Morison:

“Unless you show a contradiction between what he said before the grand jury and before this trial, I will not let you.”

Felix Frankfurter:

It’s just as easy, indeed, easier for me to incur from that, that he thought, so far as he was a judge of a witness’ truth-telling capacity, this was a — this is a truth-telling witness.

That’s the impression he made on him and, that being my impression of the trial judge, unless you give me some good ground for disturbing that clear impression, I won’t ask for the grand jury minutes based — that the request was merely on the fact that he’s been a witness before the grand jury.

H. Graham Morison:

Well, may I — Mr. Justice Frankfurter, the — in reply to that, I think the most important thing I have just tried to patiently spell out, the damaging effect of this witness on us, the incidence which led us —

Felix Frankfurter:

Yes, I understand, but —

H. Graham Morison:

— to his suspension which were —

Felix Frankfurter:

But damaging testimony may be truthful.

H. Graham Morison:

That’s right, Your Honor.

But here’s a man who had testified not once but three times.

That’s suspicious to a trial lawyer.

Second, here is a witness who had expressed his bias against the Defendant Messer, extreme bias, and he testified to it at trial on direct.

Felix Frankfurter:

That’s what cross-examination is for.

H. Graham Morison:

That’s —

Felix Frankfurter:

To bring up those points and to make the jury alert to the fact that a fellow who has an extreme bias is likely to color his testimony.

H. Graham Morison:

Yes, sir.

Well, if I may go on, Mr. Chief Justice, I hope I’ve tried to answer Mr. Justice Frankfurter.

Now, we believe, if it please the Court, that what is presented here is what is the appropriate standard that should be applied in situations of this kind, of — where, here, a key Government witness covers the same matter at — in his grand jury testimony as he covered at trial, and it’s crucial to the defense, and it’s relevant.

We believe that that testimony should be made available to the defense for purposes of impeachment.

Now, Mr. Justice Whittaker, on yesterday, you asked counsel for Pittsburgh if it’s the defendant’s view that trial judge retained any discretion in dealing with requests like those made here.

Well, our answer is, of course, we do believe that he has discretion and that it must be exercised at all times of course.

But, I affirm — our view, again, that we believe, here, that the trial judge in denying access based upon the standard which the Government concedes is wrong of requiring prior inconsistencies was not exercising his discretion.

He was mechanically — applying a standard.

Is not your basic contention here that Jencks has made an incursion into the traditional rule regarding the secrecy of grand jury minutes?

Isn’t that the basic position of your argument?

H. Graham Morison:

Mr. Justice Harlan, I wouldn’t put it in that — in that term.

In the first place, Jencks didn’t have anything to do with grand juries.

The second thing, of course, in Procter and Gamble, this Court reserved that point.

But, we believe this, that the philosophy of fair play, the philosophy of equal-handed justice that was annunciated in the Jencks case is something that no judge can ignore, whether it applies to the Government document situation or grand jury.

H. Graham Morison:

The defendant is in the same impossible situation that he’s in.

Now, we don’t say that Jencks controls this case.Of course it doesn’t.

Do you think you would have been up here if Jencks hadn’t come down?

H. Graham Morison:

Yes, sir.

As I — I told the Court, my heckles were up and they were up two-feet long.

If that be called discretion, it was not an exercised discretion that yields the fair play that I think the federal judicial system and administration of criminal law intends.

In other words, your argument is, this is a pure question of whether the trial judge abused his discretion.

H. Graham Morison:

I do not, sir.

I — we do not believe that this is a review of discretion.

We believe that —

What is —

H. Graham Morison:

— what the Court —

What is it?

H. Graham Morison:

— has before it here is what is the appropriate standard?

Now, Mr. Justice Harlan, there are many standards in effect in the Circuits, and the first — the first standard which the Government concedes is wrong is the one exercised by the trial judge here.

The second is the very limited in camera inspection which is announced by the court below in this case.

The third is the more liberal intermediate inspection granted where the Court is required to review the entire transcript of grand jury and trial testimony as annunciated in Spangelet.

And, the last, of course, is the Third Circuit’s rule which more conforms to the Jencks procedure.

Mr. Chief Justice, I’d like to reserve, if I may, the rest of my time.

Earl Warren:

Yes, you may.

Philip Elman:

Mr. Chief Justice.

Earl Warren:

Mr. Elman.

Philip Elman:

May it please the Court.

I think that if there are two points that standout very clearly from this record, they are these.

First, that though Jonas was an important witness for the Government, the Government had a case without him, that the Government’s case, based upon the testimony of employees of defendant corporations was enough to go to the jury entirely without Jonas, that the testimony of these witnesses, hostile to the Government, substantially corroborated Jonas’ testimony on every point.

Second, the second observation as to the facts in the record which I think should be made here is that the arguments as to the need for just Jonas’ testimony that he was a key witness, he devastated the defense, that he hadn’t been indicted himself, that he was suspect.

All these arguments which are really addressed to the discretion of the Court in determining whether or not inspection or production should be made, those arguments were not made in the trial court.

That issue was not tendered to Judge Paul.

It was not argued to Judge Paul that there was something special about Jonas that required that his grand jury testimony be presented.

Now, let me document these general assertions that I’ve made.

Philip Elman:

First, as to Jonas’ testimony being substantially corroborated, my first reference shall be to the Court of Appeals opinion.

The record at page 854, Judge Sobeloff, dealing with the argument that the trial court should have given an instruction as to Jonas’ testimony being received with caution in view of the fact that he was an accomplice or conspirator, in the middle of the page, record 854, Judge Sobeloff says, “Moreover, Jonas’ testimony was, in many respects, corroborated by other witnesses.”

That statement does not go as far as some of the statements made by Judge Paul who heard the testimony and presided over this case.

I should like to refer, first, to page 414 of the record.

There, in the colloquy between the Court and defense counsel, defense counsel asked Judge Paul to give this instruction to the jury that the uncorroborated statement of a — of a — of a conspirator isn’t enough.

The Court, this is about a-third of the page down, “There are uncorroborated statements by every witness in here as to certain things.

There is certainly corroboration for involving all these parties in this conspiracy without the testimony of Mr. Jonas.”

I asked the Court, too, to turn to page 422 at the bottom of the page, which is a continuation of the same colloquy.

Here, they’re referring to the testimony of Jonas as an accomplice and they wanted special instruction as to that.

At the bottom of the page, Judge Paul says, “In this case, the testimony of Mr. Jonas is not only not uncorroborated, but it is strongly corroborated by the officials, or at least the employees of the defendant companies themselves.

Further than that, there is no denial whatever of Mr. Justice as to Jonas’ testimony so far as I can recollect.”

Then, over in the next page, there’s a discussion of as to — between Pittsburgh’s counsel as to these — the inconsistency as — between Jonas’ testimony as to these telephone calls to Mr. Prichard in Pittsburgh.

And, the Court says, “That’s the only instance I can recollect in which his testimony was denied,” and he thinks that’s completely out of the case because Mr. Gordon who is the individual official of Pittsburgh who was tried here, Judge Paul has directed his acquittal.

Judge Paul thought that inconsistency was out of the case.

Now, that’s page 422, if I may impose on the Court still further, page 471, these are the actual instructions to the jury given by Judge Paul and he’s referring to Jonas’ testimony there.

And at the bottom of the page 471, he says, “I am –,” you see, it’s referring to the attacks that were made on Jonas’ testimony during the closing arguments.

He says, “I am frank to say, I did not see anything in Mr. Jonas’ testimony that was any worse or as bad as what Mr. Messer’s own counsel said about him in the opening statement when he said that he had the reputation of being a price-cutter and a double-crosser.”

And, I think it is not improper to say that Mr. Jonas’ testimony is in no way denied in any substantial particular.

I’m not vouching for his testimony nor am I a part as to Mr. Jonas.

He says the attack on him was about justification of the evidence.

In the second paragraph there, he says his testimony was corroborated by Mr. Stroupe.

Now, Mr. Stroupe was the — was the President of the Stroupe Mirror Company, one of the defendants here.

And, he says, “I think you’re entitled to consider that fact.”

And he points out the strains that Mr. Hearn, who was one of the active participants in this conspiracy, was not called here.

Now, that’s Judge Paul’s version of the facts.

That’s Judge — that’s the Court of Appeals’ version of the facts as to Jonas’ testimony.

And then, we have the question of whether this motion for the production of the grand jury testimony, which was made to Judge Paul, it was addressed to his discretion, whether it made the arguments that Mr. Morrison has made here this morning, and the answer to that appears very clearly in the record, 263 and 264, the motion is for the production of Mr. Jonas’ testimony.

There are no reasons given for it on the ground that Jonas is crucial but his testimony is suspect, and so on.

Mr. Morison has referred Your Honors to the colloquy on page 259.

Well, at the bottom of the page there, Mr. Homer Carlson, speaking for all the defense counsels says, “We want a transcript of his testimony before the grand jury regarding the subjects to which he, Jonas, has testified on direct examination.”

Philip Elman:

The Court “Exactly, and you can do that for each witness and you get a complete transcript of the testimony before the grand jury, and that is not permissible.”

Now, what was the response for that?

Was the response, “Well, Jonas is unique and he’s a crucial witness?

No.” The answer — their response to that, on the next page was, “Well, we’re relying on the Jencks case.

We’re relying on the Rosenberg case.And once a witness has testified, once the grand jury has returned its indictment, the secrecy reason fades into a mist.”

That’s on the bottom of page 260 of the record.

Now, that’s the issue that was presented to the District Court and it is argued here that that was — it was reversible error on the basis of that showing for Judge Paul to deny the motions.

Was there any request that the judge himself should look at the grand jury minutes?

No, sir, there was not and Judge Sobeloff, in his opinion below, points that out.

On page 855, he says, this is the opinion of the Court of Appeals, “The defendants at no time requested the judge to make a preliminary inspection of the transcript to ascertain whether there was inconsistency.

On the contrary, they insist that they and not the trial judge are to determine the existence well-known of inconsistency.”

They rely on Rosenberg and Jencks.

That’s the issue here.

William O. Douglas:

Would that have made a difference if they had?

Philip Elman:

Sir — I believe, sir, if they had — if they had made the arguments that they are making here.

Conceivably, although I — from my reading of this record, I doubt it very much, conceivably, had they said to Judge Paul, “We think that there’s — the circumstances here are such in view of the fact that Jonas wasn’t indicted,” and so on, “that we think that we have made enough of a showing to justify you, to — in exercising a discretion, to inspect yourself.”

I think that would have raised a different issue.

Now, I think —

Potter Stewart:

So, we don’t have —

Philip Elman:

In all fairness —

Potter Stewart:

We don’t have here, in any form, the grand jury testimony, do we, Mr. Elman?

Philip Elman:

You do not have it and I have not seen it.

I don’t know what’s in it.

Potter Stewart:

I thought that was correct.

William O. Douglas:

But, I —

Philip Elman:

Now —

William O. Douglas:

— think that, in the Second Circuit, they retreat a motion for inspection as a request for the judge to look — to see if there is any inconsistency, is that right?

Philip Elman:

The Second — there is a conflict between the Second Circuit and —

William O. Douglas:

The Ninth.

Philip Elman:

— the Fourth Circuit and the Ninth Circuit —

William O. Douglas:

Yes.

Philip Elman:

— in this regard.

It’s — that the point of conflict is not presented by this case because there was no request to inspect by the judge but, in the Second Circuit, as I understand it, and as the Government believes the practice to be on a basis of — particularly of Judge Frank’s — General Frank’s opinion in the H.J.K. Theatre’s case, upon the mere allegation of a possible inconsistency by defense, it’s the duty of the trial judge to read the minutes of the grand jury.

Now, there is some — there has been, I think, a slight —

William O. Douglas:

In camera.

Philip Elman:

In camera.

I think one can’t be too dogmatic about the Second Circuit practice now because there have been subsequent opinions, particularly, the Spangelet opinion in 258 F. 2d in which Judge Hincks refers to the burden of the trial judge and refers to the necessity of the defense to particularize what portions of the grand jury minutes that they want the judge to read.

Judge Sobeloff in this case and the Ninth Circuit in the Herzog case was concerned about making the — putting an — the burden of — on the trial judge who has got a lot of other things to do, of scanning the grand jury minutes, particularly, when they, as an antitrust case, they may cover volumes.

And, Judge Sobeloff, here, while he didn’t dissent from the proposition that the trial judge should inspect the grand jury minutes, whenever there was — there were any circumstances at all that he felt justified that was very careful not to impose any mandatory duty on the trial judges, not to make —

Felix Frankfurter:

Did the Second Circuit required an allegation of inconsistency, not to establish it but merely an assertion by counsel?

Philip Elman:

In the H.J.K. Theatre’s opinion —

Felix Frankfurter:

I just turned to that.

Philip Elman:

— you’ll find a sentence in Judge Frank’s opinion that says, “That where the — where inconsistency is alleged or shown.”

Felix Frankfurter:

I can’t imagine —

Philip Elman:

And, reading it literally, it sounds as if the mere allegation —

Unless the practice has changed, in theory at least.

I was trying the cases there, you just couldn’t go in and say, “Judge, I’d like to have you look at the grand jury minutes to see if there is some inconsistencies.”

You have to make some kind of a persuasive showing that would move the judge to undertake that job.

I don’t think Judge Frankfurter is being difficult in that.

Philip Elman:

Well —

Felix Frankfurter:

What was the panel in that case?

Do you happen to remember?

Philip Elman:

I am —

Felix Frankfurter:

Because I’m very confident I could think of at least three Circuit Judges —

Philip Elman:

Yes.

Felix Frankfurter:

— who would not deem that as a basis, mere assertion by counsel, in that circuit, who would not deem that as a ground for even reading the minutes there.

Philip Elman:

I must confess that my knowledge of the Second Circuit practice is based solely on the opinions of the Court of Appeals, and I do not have any personal firsthand knowledge of the District Court practice.

The — there is an opinion, a very extensive opinion, by Judge Palmieri in the Consolidated Laundries case which is referred to in the briefs.

It’s 159 F. Supp. which takes a view which I think is in accord with Mr. Justice Harlan’s statement of the practice.

It suggests that there is an exercise of discretion by the district judges and that it is not automatic, but I — as I say, I cannot enlighten the Court beyond that.

Philip Elman:

Now, on —

Earl Warren:

Mr. Elman, at the time that this request was made, had the other witnesses testified those that the counsel said — showed animosity on the part of Jonas toward his client, or did Mr. — was Mr. Jonas an early —

Philip Elman:

No, Mr. Jonas —

Earl Warren:

— witness to —

Philip Elman:

Mr. Jonas was the last Government witness —

Earl Warren:

Last Government —

Philip Elman:

And the other witnesses had referred to this animosity between Messer and Jonas.

Now, Mr. Justice Frankfurter inquired as to whether there was any appearance on Mr. Jonas’ cross-examination that he was an unreliable shifting witness and so on.

Well, the record thereto is quite clear.

After Mr. Jonas completed his direct — direct testimony, the defense asked not only for the grand jury minutes, but they also asked for the records of the Lenoir Corporation, of which Mr. Jonas was present, and they also asked for the notes, the working notes of the Government counsel — Government trial counsel, and that request was granted by Judge Paul on the basis of the argument that these papers would give them a basis for impeachment of Jonas’ testimony.

And those records were all turned over, those notes were given over to the defense, and after they had examined them, they came back and in effect said, “Judge Paul, we do not wish to cross-examine Jonas.”

The subs — the cross-examination of Jonas was almost negligible.

He was not cross-examined by defense counsel on any of the really important points which they say here were decisive in the case.

Now, let me —

Charles E. Whittaker:

Well, what —

Philip Elman:

May I — may I refer —

Charles E. Whittaker:

To make it worth the note in the trial?

Philip Elman:

Mr. Karp, who was Government’s trial counsel, had interviewed Jonas prior to the trial, and he had made some notes on the basis of such interviews and those notes were turned over to the Court.

The — Judge Paul looked at them.

He said, “I don’t” — he said to the defense, “I don’t think you’re entitled and I don’t think they come under the Jencks statute.

They look to me like summaries and I — they — and they bear out everything that Jonas testified, but I have no objection to your looking at them,” and they were turned over.

Now —

Does that appear in the record?

Philip Elman:

Yes.

May I?

If you can without — I’m interrupting you, Mr. Hazard.

Leland Hazard:

Page for reference is page 251.

Philip Elman:

251, thank you very much.

Now, on this — if I may — if I might give you a record reference for what I said just a moment ago about their not cross-examining Jonas after this effort to discredit him.

This — that appears in the record at page 296 and 297.

Philip Elman:

Can — this is a colloquy between court and counsel, and Judge Paul refers, this is at the bottom of the page 296, “You gentlemen, yesterday, Mr. Gilmore made a great furor and he want to examine all these records of Mr. Jonas to discredit him to affect his credibility.

He wanted the statements given to counsel for the Government and they were furnished to you.

You went in there and spent an hour at this morning examining Mr. Jonas’ records, and then, you come in and say, “We have nothing to ask him”.

That is exactly the same way you want to get hold of these grand jury minutes.

You have no reason to think that there is any contradiction in there.

You just want to get hold of grand jury minutes and that’s not permissible.”

And then, as the saying “a repetition of what appears earlier.”

In other words, this case and this record, we respectfully submit, do not present the question which has been argued here this morning that there was in this case a particularized showing as to a particular portion of a particular witness’ testimony of a sort that made it an abusive discretion for the trial judge to refuse to inspect the minutes.

That was not what they asked for.

That is not the showing they made.

What they asked for here was an automatic delivery of the entire transcript with Jonas’ testimony and the Court of Appeals, we say, was absolutely correct in holding that no defendant either before or after Jencks was entitled to that.

Now, the argument was made this morning that this does not mean any wholesale disclosure of the grand jury testimony.

Well, the — the only basis for the inspection of disclosure here was he testified before the — had testified before the grand jury, and we see no answer to the Chief Justice’s observation yesterday that you can make the same showing as to every witness at the trial who has testified before the grand jury.

And, presumably when the grand jury indicts, it does so on the basis of incriminating testimony and the witnesses, or at least many of them who appeared before the grand jury, are bound to be called to testify at the trial.

And, if every witness who has testified before the grand jury and who testifies at the trial has his grand jury testimony turned over to the defense, we think you have the same kind of wholesale disclosure, the same kind of wholesale breach of secrecy that this Court last term, in the Procter and Gamble case, rejected.

Now —

Hugo L. Black:

What kind of showing do you think it would be necessary to make in order to get the use of testimony that had been given before the grand jury on the same subject?

Philip Elman:

Well, we think — we think, in the first place, it’s always — it’s always open to the defense to cross-examine the witness as to whether he testified before the grand jury and what his testimony was.

It’s — the defense in cross-examination can attempt to breakdown his story in every way it can.

It — the defense can present other witnesses who contradict the particular witness’ testimony.

We think that once that is done at the trial, they will have a foundation of some sort upon which to invoke the judicial discretion of the judge.

We don’t think it can — you can lay down an absolute rule that the defendant always gets it simply on the showing that the witness has testified.

We don’t think you can lay down an absolute rule and the Court of Appeals didn’t lay down an absolute rule that the defendant never gets it.

And, every judge that has considered this problem, except for the judges in the Third Circuit who we think acted in almost a mechanical response to the Jencks decision, every judge who said, in the last analysis, “You’ve got to — you’ve make — you have to balance these rights of the defendant and of the grand jury and exercise a discretion,” and it’s a reviewable discretion.

It’s a — and it’s a discretion which we think is no different from the discretion which in other respects, a trial judge has to exercise to protect the right of the defendant, the constitutional right of the defendant to a fair trial.

Now, there’s been some reference to this being the Government’s choice.

The Government choose — chose to call this witness and the Government by doing that is waived secrecy.

Well, one thing is clear.

It is that the secrecy of the grand jury isn’t the Government privilege.

We’re not dealing here with executive privilege.

Philip Elman:

We’re not dealing here with papers that belong to the executive branch of the Government.

We’re dealing here with what is really a judicial privilege.

The grand jury is an arm of the Court and the reasons for secrecy aren’t to — help the Government or to help or to protect the witnesses before the grand jury.

The reasons for secrecy are, as this Court has said several times, that it is indispensable to the grand jury as an institution which is — which is recognized in the Bill of Rights and the Fifth Amendment as the method, the sole method, for initiating serious criminal charges.

You’ve got to preserve the independence of the grand jury.

You’ve got to preserve the integrity of the grand jury.

You’ve got to protect the grand jury sometimes from the State, the prosecution, and all that, all these reasons are for the grand jury’s protection and for the protection of the community and not for the Government.

Now, Rule 6 (e) recognizes that very specifically.

I could give you a simple example of that.

I have not read the grand jury transcript in this case for the simple reason that Rule 6 (e) says it may be read by Government attorneys only for use in the performance of their duties.

I didn’t think it was necessary to — in the performance of my duties as counsel for the Government in this case in this Court to read the grand — to read the grand jury minutes.

But, suppose I had done so and suppose I had considered that it wasn’t fair to my associates on the other side that I should have had the benefit of that reading and that they had not.

Suppose I thought that it was in the interest of justice that they read those grand jury minutes and suppose I had secured the approval of the Attorney General to have them see those grand jury minutes.

Could I have done so?

The answer is I clearly could not because Rule 6 (e) says in the second sentence that a — an attorney may disclose matters occurring before the grand jury only when so directed by the Court preliminarily to or in connection with a judicial proceeding.

I would have had to secure an order of this Court and the permission of this Court to have counsel on the other side see these grand jury minutes.

It couldn’t have a clear illustration of the fact that this isn’t — these grand jury minutes don’t belong to the Department of Justice.

The rule permits the Government to make a record of the transcript of the grand jury proceedings and permits attorneys to use them in connection with their duties.

Well, there’s a very good reason why Rule 6 (e) does that.

It’s helpful not only to the Government, but it’s helpful to the grand jury that there’d be a record of the proceedings, particularly, in an antitrust case such as this one where you have an industry-wide investigation and the grand jury sits over a period of months hearing scores of witnesses.

It would be wasteful.

It would be uneconomical.

It would be a very foolish way of doing business not to have some record of the testimony.

It would be very important not only to determine whom to indict, but whom not to indict, to know what the testimony was.

Leads given by the testimony have to be explored.

The use of the making of a record and the use of that record is — has been deemed by the Court and the rule.

And, the rule as I — the Court knows, was submitted by Congress as the force of statute.

It was deemed appropriate and right that the Government should be able to use that procedure.

Now, are we to say that, because that procedure is followed and the Government does make a record that somehow the Government’s action prejudices the right of the grand jury as secrecy?

Felix Frankfurter:

Is it for the Government to waive that interest?

Felix Frankfurter:

Did I understand you —

Hugo L. Black:

To say that one way to make a particular showing would be to ask the witness what he had testified to before the grand jury?

Philip Elman:

I think there’s no doubt that you can, Mr. Justice.

Hugo L. Black:

That you can?

Philip Elman:

You can.

This — the —

Hugo L. Black:

You can ask him a number of questions that you get by this —

Philip Elman:

There’s no —

Hugo L. Black:

You cannot?

Philip Elman:

You can ask the witness because the rule imposes no obligation of secrecy on the witness.

You can ask him what he testified to.

Hugo L. Black:

And you can ask him a number of questions, “Did you testify this and did you testify that?”

Philip Elman:

That’s right and he may say, “I did testify before the grand jury and what I testified to there is different from what I’m testifying today,” and the reason —

Hugo L. Black:

If he said it was the same.

Philip Elman:

Suppose he said it was the same.

Well, the —

Hugo L. Black:

Suppose he answered about 20 questions the same, and then, they said, “We’d like to see the testimony.”

Philip Elman:

I think you —

Hugo L. Black:

That be agreed on?

Philip Elman:

I think there, again, you have to leave it to the trial judge who is on the spot.

He can see the witness.

He may think that this witness is lying, or he may be troubled by it, or the inconsistencies that are alleged may relate to a specific narrow part of the grand jury minutes.

So, that isn’t — it’s a very simple matter for the judge to say, “You prosecute now.

You let me take a look at those minutes.

I just — I want to see what he said before the grand jury.”

Now, I — we recognize that protection of the rights of the defendant in this particular regard must be left to the good sense, the wisdom of the trial judge, but if — but that is the only way, you can — we think, that you can balance these two rights, both of them of importance to the accused.

It’s just as important to the accused, to the citizens, that there’d be an independent grand jury which can have testimony before it which is uninhibited and unrestrained by publicity.

And, as the Court said last term in Procter and Gamble, the grand jury, as a public institution serving the community, might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.

So that, it’s no answer to say that once the witness has testified, once the grand jury has concluded its deliberations, then all the reasons for secrecy disappear.

That were an answer — that would have been an answer long before the Jencks case and there’s nothing new about the Jencks case that deals with this proposition.

Philip Elman:

What — what Your Honors are being asked now is to make a drastic far-reaching departure from established law and we think that if the Court is to consider that, it should have the benefit of the experience, and it should have the benefit of the views of those who are familiar with the grand jury as a functioning institution.

Earl Warren:

You may finish your statement.

Philip Elman:

With — as the Court said, in the Isthmian case, it should be able to act on the basis of information and not speculation.

And, if the matter were dealt with in — through the rule making process, the Court could then call upon experienced trial judges — experienced federal trial judges who are — who have first-hand experience with the trial jury and who can tell Your Honors whether it would not — would or would not impair the efficiency of the grand jury to lift the secrecy of its proceedings in this regard.

You could — you could call upon those who were experienced with the state court and who could tell Your Honors whether or not the decline of the grand jury in the states is or is not attributable to the fact that there has been a breach of secrecy to a large extent in state procedure.

Thank you very much.

Earl Warren:

Mr. Morison, you may conclude.

H. Graham Morison:

Thank you, Mr. Chief Justice.

I first want to come back, Mr. Chief Justice, to the first point I addressed to you.

It’s raised again by Government counsel.

The implication seems to be raised by my Brother that there is something inherent in the facts in this case that would entitle us to ask for every witness’ grand jury testimony, and we have denied that that’s true.

Now, a discussion ensued yesterday with Pittsburgh counsel about the ruling in Socony-Vacuum.

And, I want to compare that case with this to show you that we think that if the trial judge does exercise and must exercise his discretion that has got to value the impact of the witness on the defense in every case, and that when he finds, as in this case, that it was damaging, then, justice would require that access be given.

Now, in Socony-Vacuum, what was the situation?

There, the Government’s witnesses were employees of the defendants.

When the Government put them on the stand, they were less than — they needed to be prodded along and the Government used the grand jury transcript to refresh their recollection.

At that moment, counsel for defense jumped and said, “Now, we want Your Honor to read all of these witnesses’ grand jury — all of the grand jury testimony into the record,” and the judge properly said, “No.

These are friendly witnesses.

You undoubtedly have talked with these witnesses and they’ve told you what the questions were before the grand jury and what their answers were.”

Again, we think in Socony-Vacuum that the Court properly exercised that discretion.

Now, the Government note that we — as they often do, that we didn’t cross-examine extensively.

I adverted to that earlier by saying this is a trial lawyer’s judgment in the forum as to what you should do.

We exercised it one way.

Now, this Court will recall that, in the Palermo case argued here yesterday, the Government said they can’t have access to documents because you had extensive cross-examination.

Now, all I am saying, Your Honors, is this.

My Brother Elman, like myself, is an advocate.

He seeks to aid the prosecution and what he has said is to restrict this in order that the prosecution may be aided.

Now, this business about who raised the privilege, well, the Government raised the privilege in this case of course.

Their voice could hardly be heard, however, because of the judge’s ruling which was so quick.

Now, coming to the second phase of the question, what is the trial judge’s discretion?

H. Graham Morison:

And, I want to say it again that we believe the proper standard says that the trial judge of course retains under 6 (e) his discretion in every phase of the case and that when a request comes, he must of necessity, in the proper exercise of his discretion, evaluate the impact of the Government’s witness upon the defense.

And, if he finds, as here, that he was extremely damaging, then we believe that he should give access to those grand jury minutes for the purpose — the most essential purpose in criminal jurisprudence, to attack the credibility of the witness.

Now, I would like to point out again Mr. Elman has been very helpful in almost a seminar way in suggesting that this is a difficult problem of the public interest of weighing and balancing.

We concede that it is, but we don’t think that advances the situation to simply say that there must be some inherent change in 6 (e) that calls for Congress and great convening of jurors to decide it.

We believe that this is something that this Court has had to decide over and over, and over again.

What are the proper standards in fair play in justice that must be applied as a guide to the Courts to see that justice is done?

Now, I’d like Mr. Chief Justice to note the impact of the court below’s standards, if I may.

Earl Warren:

You may.

H. Graham Morison:

Just briefly, sir.

Earl Warren:

But just for a second.

H. Graham Morison:

We’d like to point out, Your Honor, that the court below, noting that the judge had applied this improper standard of prior inconsistency, they nevertheless sustained him on the basis that we had not specifically requested in camera inspection.

But, whether that was an error or not, certainly the prejudice of this defendant should not be permitted to continue.

And, I challenge this thing that the dogs might sleep at night.

I have never seen the grand jury testimony.

The trial judge has never seen it.

The Court of Appeals in the Fourth Circuit has never seen it.

And this Court has never seen it.

And, I submit Your Honors, let us suppose, as suppose we must, that in three days of grand jury testimony, there is exculpatory material helpful in clarifying the search for truth for this defendant Messer who could not speak for himself.

That’s the problem.

Now, the Fourth Circuit in dealing with that has rejected the Third Circuit’s rule in the — in Rosenberg.

It has adopted a rule and the Government seeks this Court to support a rule which modifies the more intermediate Second Circuit rule, as in Spangelet, in these respects.

First, the trial judge is not required to make any inspection.

Second, if he does make an inspection, it must be limited to particular points, sharply in issue.

And third, even if the judge does find an inconsistency, he is not required to reveal it if he believes it to be inconsequential.

And we believe, Mr. Chief Justice, that that means that there will never be inspection.

Thank you, sir.