Raley v. Ohio – Oral Argument, Part 2: Morgan v. Ohio – April 23, 1959 (463)

Media for Raley v. Ohio

Audio Transcription for Oral Argument, Part 1: Raley v. Ohio – April 22, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl Warren:

— proceed.

Earl W. Allison, Jr.:

Mr. Chief Justice Warren, members of the Court.

I have sat in this chamber yesterday afternoon and this afternoon during the presentation of the arguments in the Raley, Stern, and Brown cases which our companion cases to the instant case and also to the arguments presented to this Court in the instant case.

I have listened to the questions propounded of counsel by various members of the Court.

I feel it is my first duty to the State of Ohio and to this Court to clarify certain issues which in my mind at least certainly need clarification.

Before attempting to do that, I would like to explain to this Court my own relationship to the instant case.

The hearing in the instant case was held in Columbus, Ohio in 1952.

Columbus is the county seat of Franklin County, Ohio.

So, that if a contempt occurred, it occurred in Franklin County.

At that time, neither then nor before nor since did I have or have I had any connection with the Ohio Un-American Activities Commission, either as a member or its counsel or any other association.

The record of that hearing was presented to the then prosecuting attorney of Franklin County, and by him to the Franklin County grand jury and an indictment was returned.

That indictment was for one thing and one thing alone, legislative contempt and let me point out this is a first difference between the instant case and the Raley, Stern, and Brown cases which were under the judicial contempt proceedings.

The trial of this case was held by a successor prosecuting attorney to the — to the prosecuting attorney who had first secured the indictment.

By that time, I was an assistant in that office and in fact, prepared the trial brief in this case.

The appeals were held under still another prosecuting attorney, now, Congressman Samuel L. Devine from the Twelfth District of Ohio.

I also handled those appeals before the Ohio Supreme Court on four occasions.

When Congressman Devine left that office, I was appointed by the common pleas court of our county to succeed him.

In other words, I have inherited a case which I have personally handled for five and one-half years.

Standing here representing the State of Ohio, I am not on my own of the responsibility placed on my shoulders in that capacity, but I want to assure this Court in all sincerity that I have lived with this case for five and a half years and I say under the shadow of my own oath, which I took to uphold and defend both the Constitution of the United States and the Constitution of the State of Ohio that my arguments represent my own personal deep and abiding convictions or I would not be here.

The Morgan case cannot be decided on the facts of any other case.

It cannot be decided on the facts of the Raley, Stern, and Brown cases.

It cannot be decided on the facts of the Sweezy and Watkins cases or the Bart, Emspak, and Quinn cases.

It must be decided on its own facts.

So, for a moment, let’s place the Morgan case before this Court.

Let’s place it here by itself and divest it of some of these other influences, granted that this was the same Commission under which the Raley, Stern, and Brown cases, the preceding case arose.

Granted, it is the same Ohio statute which is here under consideration, but it is the conduct of this appellant, Anna Morgan that this Court must pass on in the instant case.

Charles E. Whittaker:

(Inaudible)

Earl W. Allison, Jr.:

The same statute creating the Un-American Activities Commission, Mr. Justice, but not the same statute under which the indictment was returned.

Charles E. Whittaker:

(Inaudible)

Earl W. Allison, Jr.:

In my opinion, sir, it is.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

She was indicted only for a contempt and because of what I am going to point out in the next two or three minutes, I think the Court will see why I at least believe this is a true contempt case.

Because of certain questions asked yesterday by Mr. Justice Frankfurter, I want to detail a little bit for this Court the conduct of this particular witness.

This is not Raley, Brown, and Stern who came in and answered questions and then, when certain types of questions were read, then and there declined to answer.

This is not the case of Watkins and Sweezy whom Mr. Chief Justice Warren, and the majority of the Court said was not a case of a truculent or contumacious witness who refuses to answer all questions.

This is the very case here which the majority in the Watkins and Sweezy cases said that the Watkins and Sweezy cases were not.

When called before this Commission, this witness in case number 463, Anna Morgan, came armed with a prepared statement.

The Commission opened its testimony as far as she was concerned.She was called to the stand and the first thing that was done was she handed them the statement which appears on pages 57 to 59 of the record.

The Supreme Court of Ohio characterized that statement as highly abusive and betrayal, and I would certainly agree with them 100%.

Anna Morgan did not even wait for a single question to be asked to see what the nature of the questions were going to be, to see whether the questions were pertinent, to see whether the questions would be incriminating.

She did not wait for the first question to be asked, she presented her prepared statement which said in the last paragraph, they are thereof, “I must remain silent before this Committee.”

And when — after stating her name, that’s exactly what she did.

From then on, regardless of what question was asked to her, whether it was a question pertinent or not, I’m not passing on pertinency at this point.

Pertinent or not, whether or not it was a preliminary question or not, whether or not it was or could have been a self-incriminating question, she refused to answer each and every question of the Commission which was only carrying out the — the intent which she had already announced she would do.

After stating her name, she refused to answer each and every question citing as her reason therefore, the privilege against self-incrimination or the Fifth Amendment.

A reading of the record in the Morgan case will clearly show that a more contumacious witness can hardly be imagined.

I agree with Mr. Justice Frankfurter when he said earlier the fact we knew.

That a witness cannot just pull down the shade and say, “I’m not going to answer any question, whatsoever.”

Now, that is what she did.

Earl Warren:

Mr. Allison.

Earl W. Allison, Jr.:

And that is the basis she used.

Yes, Mr. Chief Justice?

Earl Warren:

May I ask — may I ask this.

It was stated by counsel this morning that she had the benefit of the testimony of a Mr. Raley or was it something like Terrell (ph), who had just testified prior to this and that he had — had stated that countless meetings were held at her home and — and things of that kind, the things that would have incriminated her if she had said them herself.

Now, does that have any bearing on it?

That’s all I want to — I want to hear it or approach for a testimony.

Earl W. Allison, Jr.:

Mrs. Morgan did not leave the Commission hearing.

I do not believe to prepare the statement between the time that Mr. Terrell (ph) testified and the time of her own testimony.

She came prepared with the statement that she was going to remain silent.

She came into the hearing when she first arrived there with that statement and I think that she had already made up her mind and I’m going to come back to that point in just a moment.

She had already made up her mind that she was going to refuse each, every, any, and all questions.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

She had charted her own course of conduct before she ever came into that Committee room and I don’t think that anything she heard there or anything that was said to her by the Commission or the Chairman or anyone else had the slightest effect on the course of conduct which she had already charted and began to carry out.

Earl Warren:

Well, let’s — let’s put it this way.

Would the testimony of Mr. Terrell (ph) indicate that the questions that were asked of Mrs. Morgan called for answers that might tend to incriminate?

Earl W. Allison, Jr.:

If the Court please, I may have at some time in the past read the record of the questions asked of Mr. Terrell (ph).

I do not at this moment recall them and they are not — I do not believe the part of this record.

I know that there was a previous witness, not the one immediately previous, not Mr. Terrell (ph) —

Earl Warren:

Well, may I (Voice Overlap) —

Earl W. Allison, Jr.:

— but a Mr. DeLong who had testified about certain things concerning Mrs. Morgan.

That is correct.

Earl Warren:

Well, I — I misstated the name.

It was DeLong.

Now, was there anything in his testimony that would indicate to Mrs. Morgan or anyone else that the asking of these questions and the answering of — of them by her would tend to incriminate her?

Earl W. Allison, Jr.:

I would have to say that some of the questions which she was asked may have been self-incriminatory without any other factors being considered at this moment.

In other words, forgetting for the moment any argument on immunity and things like —

Earl Warren:

Yes, yes.

That’s what I mean.

Earl W. Allison, Jr.:

Certain questions, I would have to agree.

It would — could be considered as having been self-incriminatory.

On the other hand, is a question such as this, “Are you a citizen of the United States?”

In and of itself, self-incriminatory.

Under any circumstances, unless you were a person were illegally within this country, can that question be self-incriminatory.

How can a person invoke the privilege against self-incrimination to the question “Are you a citizen of the United States?”

I think that that — that particular question, Mr. Chief Justice, is a very — pointed specific example of the course of conduct which this woman was following.

Even to that — even to that question, her answer was, “I refuse to answer on the grounds of the Fifth Amendment,” to the question, “Are you a citizen of the United States?”

I don’t think it would have made the slightest bit of difference what question she would have been asked.

I think the record clearly indicates that she was going to sit there and willfully, deliberately, contumaciously and contemptuously express her scorn for the Committee and refuse to answer each and every question that was propounded by her, whether they were self-incriminating or not.

She used as her ground in each instance, never the ground of pertinency, never the ground of — of First Amendment, but always in every instance, the ground that she refused to answer because her answer might tend to incriminate her.

Hugo L. Black:

Outside of the first two questions about her residence?

Were all the questions asked about her relationship with the Communist Party?

Earl W. Allison, Jr.:

I think, Mr. Justice Black, that most of the questions asked of her did refer to her relationship with the Communist Party with the exception, and I refer you to the bottom of page 54 and page — and the top of page 55 of the record in 463, where at the very bottom line.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

Question, “Mrs. Morgan, have you ever been employed by the American Zinc Oxide Company?”

Answer, “I refuse to answer under the Fifth Amendment.”

Question, “It — isn’t it a fact, Mrs. Morgan, that you were arrested under the name of Catherine O’Rourke for illegal picketing during a strike at the ASL plant which should have been as your plant?”

Those had to do with past employment.

In most of the other instances, I readily concede and very quickly concede that with — with the exception of the preliminary questions and the question as to her citizenship, most of the other questions did pertain to her alleged communist activities.

I suppose the thrust of your argument that I have to say (Inaudible)

Earl W. Allison, Jr.:

That is one part of the argument, Mr. Justice Harlan, and in that regard, I think it is highly significant.

I would like to read a very short passage from the case of United States versus Josephson in 165 F. 2d 82.

I did not cite this case to the Court because it is an expression of the opinion of this Court, although this Court, the Supreme Court did deny certiorari in this case at 333 U.S. 838 I believe is the page citation.

But I — I use this because to my way of thinking, this is the most logical explanation of our own situation in the Morgan case which I have come across.

I — the — the logic in the common sense reasoning of the Court in the Josephson case commends itself to me and I hope to this Court.

It is obvious — it is obvious that the unqualified refusing, then and there to testify was tantamount toward a refusal to answer any questions at all relating to the matter being investigated.

After what had transpired as shown above, the propounding of one or more specific questions would have been both futile and time wasting and appellants renewed or repute — repeated refusal to answer them would have added nothing.

He had made it crystal clear that he was determined not to answer any question concerning the subject matter under investigation.

Any argument to the effect that it was not shown that he refused to reply to any such questions can only be regarded therefore as wholly specious.

The prosecution met then the requirements of Sinclair versus United States supra that it plead and showed that the question pertained to some matter under investigation.

And at page 87, “By refusing to testify at all, he refused to answer any questions that were pertinent as well as those that were not and thus, he was not put to the decision.”

He argues, could not have been made namely whether or not any particular question was pertinent.

I think that that passage of the Court of Appeals follows very much in line with the argument of the Supreme Court of Ohio in the majority opinion in this case.

That pertinency here is really not an issue because she was going to refuse to answer any questions whatsoever, whether or not pertinency is shown.

That direction to answer would have been futile because a direction to answer would have only brought forth the exact same reply that she gave time after time.

It is on that position that the Supreme Court of Ohio has hinged its opinion after a consideration of this case on four separate occasions, and I think to my way of thinking at least, I think a reading of this record will clearly show that that is exactly what this witness, this appellant was going to do, announced she was going to do and in fact, did do.

Now, if that is not contempt, then I for one do not know what contempt would be.

She’s not being prosecuted here, have to enlarge so to speak under general condemnations conduct which specifically rated.

Earl W. Allison, Jr.:

The specific counts of contempt.

That is correct.

However — however —

Earl W. Allison, Jr.:

Contempt to the legislative committee.

— generally contumacious she may have been, doesn’t quite need the problem we’ve got here, doesn’t it?

Earl W. Allison, Jr.:

Well —

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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It has some bearing, I don’t deny that but —

Earl W. Allison, Jr.:

I — I can only say, sir, that her overall contumacious attitude is certainly reflected in her answer to each and every specific question that she in fact —

How do you relate what you’re arguing to what Judge Taft said in his dissent?

If you do at all.

Earl W. Allison, Jr.:

Pardon me —

I mean Judge Stewart.

I beg your pardon.

Earl W. Allison, Jr.:

There were three dissents in this case —

Stewart, that is —

Earl W. Allison, Jr.:

— as the Court may be well aware, and if I may for a moment look here.Judge Stuart’s dissent, of course points out the majority argument that because of the immunity factor, the — the defendant or the appellant here was deprived of her privilege.

And he then goes on and refer specifically to Chairman Renner’s statement which I presume as to what your specific question is directed, and I can only say this.

Chairman Renner made that statement after the first 12 questions had already been propounded.

If — if this appellant were not contumacious in the first 11 questions or first 12 questions, then she was not contumacious at all.

And I therefore say that Chairman Renner stated while it — I — I do not apologize for the statement.

I don’t try to explain in a way he made it.

He misstated the law as the Supreme Court of Ohio said he misstated the law and I was coming to that just a moment because of Mr. Justice Brennan’s question yesterday.

But, his statement came during the course of a conduct which had already been clearly defined by that appellant herself without the slightest bit of misleading by that Commission or by Chairman Renner.

Earl Warren:

Was there a count of the indictment on those first 12 questions?

Earl W. Allison, Jr.:

Yes, sir.

There is a count of the indictment in this particular case on each of the 37 questions which was asked this witness.

Five of those counts were dismissed upon trial on the ground that they were repetitious of other counts and one or two on another ground.

But basically speaking, there is a count in the indictment in this particular case on each of the questions propounded to her because she refused to answer each and every question.

Earl Warren:

But Mr. Allison, may I ask you think question?

Assume that she did have an intention when she came there not to answer any questions, what — if the questions were asked of her that — that would elicit answers that would tend to incriminate her?

Does she lose her — her standing to — to claim the privileges of the Fifth Amendment because she came to the hearing with an attitude?

Earl W. Allison, Jr.:

Not because she came to the hearing with an attitude, Mr. Chief Justice.

I would of course not say that.

Earl Warren:

Well, what was it that’s —

Earl W. Allison, Jr.:

Let me —

Earl Warren:

All right, no, pardon.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

Let me say this —

Earl Warren:

Surely.

Sure.

Earl W. Allison, Jr.:

— if I may.

I feel that this Court in deciding this particular case and the questions presented therein must look at this case as a hope.

Her attitude is a clear indication of what she intended to do.

Her actions, she was not indicted here for contempt because of her attitude, she was indicted for contempt because of her actions.

Earl Warren:

Yes.

Earl W. Allison, Jr.:

Her attitude is a clear sign of what she was doing when she did what she did.

She had already made up her mind she was not going to answer.

Earl Warren:

Well, that’s attitude.

Earl W. Allison, Jr.:

That’s attitude.

Now —

Earl Warren:

Yes.

Earl W. Allison, Jr.:

But when she did not answer, I then raised this question.

Did she not answer because of the attitude she had previously determined in her own mind or did she not answer because of some of the grounds, which have since been raised during the subsequent appeals of this case like pertinency, direction to answer and so forth?

Earl Warren:

Well, therefore —

Earl W. Allison, Jr.:

Nothing was further from her mind at that time of that hearing as I see the record than the question of pertinency.

Now, we are faced with the question.

“Did she refuse to answer because she had deliberately made up her mind she was going to be contumacious, or did she refuse to answer because the questions were not pertinent?”

I say clearly it is the former.

Earl Warren:

Yes.

Well, let’s — let’s stay with that Fifth Amendment for a moment and just say — say this.

Let’s suppose that she read the testimony of Mr. John, which had to do with her own continent to rest on cert in — other’s — other’s — other things and she made up her mind that she couldn’t answer these question — any questions on that subject matter without tending to incriminate her.

And perhaps she did come to the hearing with the thought in mind that she couldn’t without danger to herself to answer those questions.

But, if the — if the questions sought to elicit answers that would incriminate her.

Is she thereby deprived of claiming that privilege?

Earl W. Allison, Jr.:

Mr. Chief Justice, I will attempt to answer you this way.

Point number one.

Clearly, when the witness came into the hearing room, there was either one of two things, either a privilege against self-incrimination, and I am not arguing the Supreme Court has disposed of the question as to the applicability of the Fifth Amendment, we argued that out.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

I’m not going into the applicability of the Fifth Amendment because the Supreme Court of Ohio has said that whatever privilege she had, be it Fifth Amendment or Article 1 Section 10 of the Ohio Constitution, she claimed it.

And I will — I will agree with that 100%.

She sought to and did invoke a privilege, if in fact a privilege was available to her.

Earl Warren:

Yes.

Earl W. Allison, Jr.:

Now, we maintain as was pointed out in the preceding case that when she also appeared before that legislative committee, she was bathed with immunity by the very virtue of the statute of the State of Ohio itself.

And let me point out that the state statute on immunity in Ohio gives to a witness before a legislative committee even more protection, even more protection than the privilege against self-incrimination for this reason.

I’ll use an example.

Earl Warren:

Well, Mr. Allison, when I asked you the question, I was still speaking in the same context that you started on.

You said, “We will discuss this for awhile, ”shorn of the question of pertinency and immunity and all of those other — other things.

Earl W. Allison, Jr.:

I see.

Earl Warren:

And in — I — I mean shorn of — of those things which should be —

Earl W. Allison, Jr.:

In other words, as a bare — as a bare privilege question.

Earl Warren:

A bare privileged question, yes.

Would she be deprived of it?

Earl W. Allison, Jr.:

Shorn of the immunity factors?

Earl Warren:

Yes.

Earl W. Allison, Jr.:

No, sir.

Earl Warren:

All right.

Earl W. Allison, Jr.:

She would have — she came — would have come into that Committee room cloaked in her privilege against self-incrimination whether it be under the United States Constitution or the Ohio Constitution.

Earl Warren:

Now, I have your position.

Don’t let me interrupt your argument, you go right ahead.

Earl W. Allison, Jr.:

I — I — perhaps, got off on my own interpretation —

Earl Warren:

All right.

Earl W. Allison, Jr.:

— of what your question was.

Now, there is something which I feel and I feel very definite must be said in this case.

I make no claim to being a learner than scholarly constitutional lawyer.

There are attorneys who devote a lifetime to studying constitutional law.

I do not have the time to devote to that.

But with the legal training and experience which I have, coupled with what I hope at least is a normal amount of common sense and logic.

I think this case presents four constitutional questions, either — or four constitutional amendments to be considered, either directly or collaterally.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

The first is the Fifth Amendment which we have just been discussing.

I’m not going to cite the cases with which the Court is far more familiar than I am.

The — the series of cases which have laid down the principle that the Fifth Amendment is not available in a state proceeding.

As I have said, the Ohio Supreme Court is disposed of that question, as held that the privilege was invoked if any privilege in fact existent.

Appellant has again here raised the double sovereignty question, and I’m not going to argue that question because this Court again is far more familiar with the arguments in the cases on that subject that I am.

I am merely going to say that in as much as under the Ohio Statute, the — the immunity statute, this appellant was far more protected than she would have been by the privilege against self-incrimination.

I think we no longer have the question of the Fifth Amendment of the United States Constitution in this case.

The Fifth Amendment does not apply under the long line of decisions of this Court, and the Ohio constitutional provision does apply.

And as decided by the Ohio Court, this witness had a greater immunity than the privilege against self-incrimination which the Ohio constitution would have given her.

I just don’t think we any longer have a Fifth Amendment question for this Court to determine.Now, the next amendment which has been raised in this case is the First Amendment for the United States Constitution.

Again, there is a long line of cases which hold that the Fourteenth Amendment is not shorthand for the first date.

I grant there are cases, some of them recently decided, I am fully aware of those which hold that even though the Fourteenth is not shorthand for the first date.

There are certain inherent First Amendment rights incorporated within our concept with due process of law.

And with that holding I would not quarrel, but I say this, “In the very conduct of human affairs, I don’t care where it is, when it is, or what it’s about.”

Everything that we do everyday of our life in someway touches of what our First Amendment rights.

And I say that if the First Amendment of the United States Constitution is to be interpreted to preclude any punishment or anything which in any way touches upon those First Amendment rights, then I am afraid that we had to better take another look at all of our penal laws, all of our criminal laws.

The very law of assault in Ohio at least, there can be assault by virtue of words, a mere threat.

If we are to say, “You cannot convict me of assault because I have freedom of speech to say I am going to kill you,” then I think we have gone too far.

And in this case, certainly, these questions in the very conduct or the very nature of the course of human affairs touched upon First Amendment rights, freedom of speech, freedom of press, freedom of assembly.

But I say that there is a point, there must be a point at which these things can no longer transcend the rights of some governmental control.

Now, it is my understanding that — and this is — as I pointed out in my brief at page 11.

This was pointed out by Mr. Justice Frankfurter in the Schweitzer case, in the Sweezy case, that this Court’s review is limited, to a review under the Fourteenth Amendment of the United States Constitution.

At least, that as I say, is my understanding of the law before this Court.

Now, it is the conduct that the hearing of this witness, it is the commission of the crime which he actually committed, a misdemeanor, certainly a contempt.

As the only thing she is indicted for is a contempt.

But what she is indicted for occurred at the hearing, and I think we here become confronted with a serious question.

I ask this question.

As the Fourteenth Amendment concept of due process of law apply to the commission of a crime itself.

Clearly, in the case of any crime, it applies starting with perhaps the arrest, the indictment through the trial and so forth.

A person is guaranteed due process of law.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

But here, the appellant is attempting to apply their concept of due process of law to her own commission of the crime.

The crime occurred at the hearing.

That’s where the crime occurred.

In no other case which I can conceivably think of is the perpetrator of a crime guaranteed due process of law during the perpetration of his crime.

I think there — there has been no claim of denial in this case of due process, at any step subsequent to the hearing.

It was her conduct at the hearing for which she was indicted.

It was therefore her conduct that the hearing which was the crime which was committed.

Earl Warren:

Would you mean by that that she’s not entitled to due process when she’s before that Committee?

Earl W. Allison, Jr.:

No, I — I say only, Mr. Chief Justice Warren —

Earl Warren:

Well, what (Voice Overlap) —

Earl W. Allison, Jr.:

— and I think we’re here at a — we’re — we’re here at a — at a question, a question as to how far the protection of the concept of due process of law under the Fourteenth Amendment goes.

Earl Warren:

But I know — but I understood you to say that you knew of no other case where — where a person was accorded the privileges of due — due process during the time that the crime was supposed to have been committed.

Earl W. Allison, Jr.:

During the time the crime was being perpetrated, yes.

Earl Warren:

Being perpetrated.

Earl W. Allison, Jr.:

But, the —

Earl Warren:

Which means — which would mean I take it that during at this Committee hearing where she was a witness, she would not be entitled to due process under your argument.

Earl W. Allison, Jr.:

I only raised the question, sir, as to whether or not the Due Process Clause does go clear back —

Earl Warren:

Oh, I thought you said —

Earl W. Allison, Jr.:

— to the hearing.

Earl Warren:

I thought you said —

Earl W. Allison, Jr.:

I said that this question then arises in my mind, a — a query type of thing.

Earl Warren:

Haven’t there been a number of cases of contempt that have been reversed because of what happened at court proceedings or hearings?

Earl W. Allison, Jr.:

I would presume that as transfer.

I would — I would presume that as true.

Well, I — I know it’s true.

There —

Earl Warren:

Well, that’s —

Earl W. Allison, Jr.:

This Court has in fact reversed many — many statutes.

Earl Warren:

(Voice Overlap) Well, I didn’t understand what you said.

Earl W. Allison, Jr.:

Back to the court proceedings.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Earl W. Allison, Jr.:

I think that this case is, however — I think the appellants in this case are attempting to enlarge the questions before this Court, far beyond the questions which are actually before this Court, if my understanding of the law is correct.

Perhaps, by invoking the Fourteenth Amendment, which to my way of thinking is the only actual constitutional amendment before this Court in this case.

Perhaps by invoking the Fourteenth Amendment, appellant can raise all of these other questions.

That is as I say is a — a constitutional question which this Court certainly is going to have to decide in the instant case as to whether or not in this particular case under the invocation of the Fourteenth Amendment now, this Court can go back and review all of these various questions which appellant said is — are before the Court.

I do not say they are not before the Court.

I — humble opinion, some of them are not.

Some of them have clearly been decided by the State of Ohio, under the Ohio statutes by the highest Court of the State of Ohio and in my understanding of constitutional law, there are some areas in at least in which the decision of the Supreme Court of Ohio will not be reviewed by this Court involving decisions, involving the interpretation of state statutes and I think that in and of itself, knocked out five of six of the questions raised by the appellant in the instant case.

And I would as an example of — of what I am referring to, the appellant raises the argument ones again which has been decided by the Supreme Court of Ohio that this was in fact the law, a legislative.

The — the Commission was a legislative committee to which the immunity statute did apply.

Now, I think the question of whether or not this Commission, under the laws in the Constitution of the State of Ohio is such a committee, is a question for the Ohio of course to decide and not a question which comes before this Court.

That type of — that type of question, I think that the Ohio decision has already knocked out.

Now, perhaps let me say this.

Could I ask you a question?

Earl W. Allison, Jr.:

Yes, Mr. Justice.

This hasn’t been discussed but like the isolated question, I’ll put it to you.

Do you think that it violates the Fourteenth Amendment for Ohio to say that in construing our immunity statute, we will hold a witness to the — to knowledge of the statute on the general knowledge of the immunity statute on the general principle and ignorance is no excuse, ignorance of law is no excuse?

Do you think that violates the Fourteenth Amendment?

Earl W. Allison, Jr.:

In my own opinion, sir, it does not.

It is not such a violation of due process of law.

My understanding of Judge Stewart’s opinion was that had it not been for what he found had been said by the Chairman contrary to what the Ohio law was respecting the right to claim a privilege.

He would have joined in the Court’s opinion.

Is that the way you read it?

Earl W. Allison, Jr.:

I — I — well, yes.

Yes, sir.

That’s my understanding.

And I understood your argument to be when you first started off that on that premise, the fact that this woman had gone there with a predisposition of predetermination not to answer questions was an answer to Judge Stewart’s argument that she could have been mislead by what the Chairman said.

Earl W. Allison, Jr.:

Well, yes.

I — I do say that, Mr. Justice Harlan.

I say that her — her clearly expressed attitude of — of going there and going to be contemptuous is a — is an answer to what Mr. (Voice Overlap) —

Well, is that the only reference to your argument really to the issue here?

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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And I — I don’t — I don’t mean to suggest it.

It doesn’t have a strong relevance.

It does as far as I’m concerned, have strong relevance with — is — is there anything to — anything more to it than that?

Earl W. Allison, Jr.:

To —

What you’ve talked about, what you opened up with in saying that this woman had come there with a predetermined philosophy that she’d answer no questions (Voice Overlap) —

Earl W. Allison, Jr.:

Oh, yes.

In other words, her — her expressed attitude and then the following through of that attitude goes clearly to the point as to whether or not she was mislead —

And that’s the law.

Earl W. Allison, Jr.:

— in anyway by the Commission.

That’s the only trusted view.

Earl W. Allison, Jr.:

Yes.

I’m not — I’m no t going to deny her — her privilege of self-incrimination or I’m not going to remove her from the immunity bathe or anything else merely because she comes here with a prepared statement and an attitude like this.

But, neither am I going to stand here and admit that in this particular case, this witness was a little red riding hood in all innocence while the Ohio Un-American Activities Commission was a big bad wolf waiting to gobble her up.

Well, that’s — that’s (Voice Overlap) —

Hugo L. Black:

Well, the record seems to show this.

Am I wrong about it that, there had been a witness to have a rule — had been interrogated asking her, asking the witness about this Mrs. Morgan’s activities in the Communist Party and so forth.

Earl W. Allison, Jr.:

Yes, sir.

There had been interrogation of fire what —

Hugo L. Black:

She had been sitting — she had been sitting and heard it.

Earl W. Allison, Jr.:

No, sir.

I — I think that is for some confusion creeps in.

I cannot positively answer your question, but I will attempt to clarify at least this much.

There have been references in this case and in this argument to — to prior witnesses.

One witness, a Mr. DeLong definitely did testify regarding Mrs. Morgan’s activities.

To my knowledge at least, Mrs. Morgan was not sitting there during his testimony which had occurred some month or so previously.

Immediately prior to her appearance, a Mr. Terrell (ph) had testified.

Now, whether or not Mr. Terrell (ph) testified on anything as to Mrs. Morgan’s activities, I do not recall because it has been some seven years since I read through that.

Hugo L. Black:

Do you think — you wanted to say — do you seems to say that he did unless I must read it, maybe I do, and that she was sitting there at the time?

And at that the same time, the Chairman of the committee told this witness he could claim his right except against (Voice Overlap) —

Earl W. Allison, Jr.:

Yes, she was there while Mr. Terrell (ph) testified, but I don’t know whether he testified as to anything involving Mrs. Morgan.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Hugo L. Black:

Well, yes.

Further question was asked as supposed to be of him.

“Did Anna Morgan at that time have any official title in the Communist Party?”

I don’t believe she has.

Was she serving any particular task if she can be more or less at large.”

But she organizes the Communist Party?

Earl W. Allison, Jr.:

No, Mr. Justice.

I believe that is the witness, DeLong that is — that — that we are talking about at that point.

Well, from what page are you reading there now?

Hugo L. Black:

Well, right after page 61.

Right after that — right after question, it said —

Earl W. Allison, Jr.:

Yes.

Hugo L. Black:

— (Voice Overlap) own knowledge whether Mrs. Morgan was present during that hearing or at least you spent during the testimony?

Earl W. Allison, Jr.:

Well, may I attempt to clarify it, sir?

Hugo L. Black:

Yes.

Earl W. Allison, Jr.:

On page 60, if you will turn to the — about the middle of page 60, you will find the following question.”

And do you recall of your knowledge whether Mr. DeLong mentioned Anna Morgan at anytime during his testimony?”

Now, that was a question propounded to the Court reporter who had taken the testimony of Mr. DeLong.

Then, there are these questions concerning Mrs. Morgan which had in fact been propounded to Mr. DeLong.

Then, at the top of page 62, “You find a date there, April 1st, 1952, is that a correct?”

Answer, “Yes.”

Question, “And do you know of your own knowledge whether Mrs. Morgan was present throughout that hearing or at least was she present during the testimony of the witness who preceded her on that day?”

That refers not to Mr. DeLong who was discussed on pages 60 and 61, but to Mr. Terrell (ph) who had immediately preceded her as a witness.

There is a change over there in the — in the questioning of the Court reporter between the DeLong testimony and the Terrell (ph) testimony.

Hugo L. Black:

That stands in your judgment merely for the fact that she was sitting there and heard him tell the witness just before them —

Earl W. Allison, Jr.:

Yes, sir.

Hugo L. Black:

— that they had the right to —

Earl W. Allison, Jr.:

Yes, sir.

Hugo L. Black:

— can’t refuse to testify.

Earl W. Allison, Jr.:

Yes, sir.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Hugo L. Black:

And when she came on, she vote in a statement, the closing paragraph of which was that she would not — she claimed the right of self-incrimination —

Earl W. Allison, Jr.:

Yes, sir.

Hugo L. Black:

— against self-incrimination.

Earl W. Allison, Jr.:

That is correct, sir.

Hugo L. Black:

And she — then the first question was asked and she kept it up, and kept it up throughout.

Earl W. Allison, Jr.:

With the exception of answering her name.

Hugo L. Black:

Yes.

Earl W. Allison, Jr.:

I am perhaps, sir — perhaps this Court in its wisdom and then its much longer experience in both the field of law as well as the judicial field as compared to myself.

Perhaps I placed too much emphasis on the clearly contemptuous, abusive, vitriolic statement —

Hugo L. Black:

That wasn’t much used.

Earl W. Allison, Jr.:

— prepared statement which she came there with.

Hugo L. Black:

She wasn’t indicted for that.

Earl W. Allison, Jr.:

She was not indicted for that, but I think it clearly shows her attitude.

William J. Brennan, Jr.:

Your Ohio Supreme Court finding (Inaudible)

Earl W. Allison, Jr.:

It considered it as a factor in — sir, in determining her contumacious conduct.

William J. Brennan, Jr.:

Did you find — is that in the —

Earl W. Allison, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Where is it?

Earl W. Allison, Jr.:

If I may look for one moment.

At page 124, Mr. Justice Brennan, in the second full paragraph.

The Supreme Court of Ohio said, “The State advances the theory and so forth,” and then the second sentence of that paragraph.

“In the light of what we have said however concerning the necessity of a direction to answer, it is neither to necessary to consider this premise.”

That is the premise advanced by the State of Ohio, “Nor to give such statement which is highly abusive and vitriolic, dignity of perpetuation in this opinion.

They did not — they did not go on into the statement itself, but earlier in the record they had referred —

William J. Brennan, Jr.:

Well, isn’t that over — an express which he hold the rest the decision on —

Earl W. Allison, Jr.:

They read —

William J. Brennan, Jr.:

(Voice Overlap) —

Earl W. Allison, Jr.:

No, they did not rest their decision on that statement.

No, sir.

William J. Brennan, Jr.:

Indeed, they expressly rejected it.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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William J. Brennan, Jr.:

You gather the State advanced that theory, did it not?

Earl W. Allison, Jr.:

We advanced the theory there, sir, as we have advanced it here.

William J. Brennan, Jr.:

Yes, and —

Earl W. Allison, Jr.:

But the statement is a —

William J. Brennan, Jr.:

Yes.

Earl W. Allison, Jr.:

— a part of the whole picture that you cannot look.

William J. Brennan, Jr.:

Yes, but your — but your on Supreme Court refused to rest its judgment in any ways on that theory, did it not?

Earl W. Allison, Jr.:

I am under the impression, sir, and I — I will have to — I will have to first say, “Yes, sir.

It appears to have rejected it.”

I am under the impression that somewhere in the Ohio Supreme Court’s opinion, there is another reference to that statement which merely is for the same purpose that I have referred to adhere and that is to show the overall attitude.

I — I feel sure that in that decision, there is another reference, I seem to recall it.

But I — I cannot find it at the moment and since I have only about two minutes remaining to me, I will not take the time to look.

I — I think that there is one thing further that I would like to say to this Court and it is one which, perhaps in these other cases, a question has been raised and not been discussed in the decision, I do not know.

If it has been raised and rejected, then I presume it will once again be rejected.

But I feel very clearly that we have one other amendment of the United States Constitution which I have not discussed, which has some application to the instant case.

I feel very clearly and very strong.

Well, I am not standing here advocating state’s rights in any way, shape or form.

I feel that the Tenth Amendment of the United States Constitution cannot be overlooked.

It has been charged in this by the appellants in this case that the State of Ohio has no power to do this, no power to do that, no power to do anything else.

I say that under the Tenth Amendment of the United States Constitution, Ohio did have power to do certain things unless someone can point the way toward an absolute prohibition against that power in the Constitution and laws of the United States.

In other words, the Constitution of the United States’ Tenth Amendment reserves to the States those powers not expressly granted to the United States Government or expressly prohibited by the Constitution to the States.

Nowhere have I seen in any of the cases which have been decided, which made me feel that perhaps the question has not been raised, any reference to the Tenth Amendment and as to any possible power of the State of Ohio to inquire into affairs which I respectfully submit were entirely within the province of the State of Ohio.

We did pass.

It has been argued here there was no legislative purpose to the Ohio Un-American Activities Commission.

I submit the State of Ohio did pass legislation as a result of the hearings and inquiries which that Commission held.

Could I ask you a question before you sit?

Earl W. Allison, Jr.:

Yes, Mr. Justice.

I’ve read the majority opinion and I don’t want to take time to go through them (Inaudible).

Did the — did the majority discuss the question of Judge Stewart’s — discussed in his dissent prior to which his —

Earl W. Allison, Jr.:

you mean as to Chairman Renner’s statement?

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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(Voice Overlap) as to whether she’s been disallowed (Voice Overlap) —

Earl W. Allison, Jr.:

Yes, sir.

The majority very clearly discussed it.

They did?

Earl W. Allison, Jr.:

And rejected Judge Stewart’s thinking on the question at page — at page 123 of the record where the majority said it is argued also that the Chairman of the Commission in someway contributed to appellant’s misfortune by stating to her, “Mrs. Morgan, I should like to advice you under the Fifth Amendment” and so forth.

And then, the Ohio Supreme Court concluded as I have argued here that that did not mislead her in anyway that it did not influence her in anyway in her course of conduct.

She had already charted that course of conduct.

I believe the instant case, perhaps is a case in which we are more closer or closer to an actual contumacious witness case.

I think the record will bare me out in that regard in any of the cases, any of the decisions which I have read.

Other cases which have been decided, the majority opinions have said they were not the contumacious type of witness.

I submit in the instant case, this was a contumacious witness.

I submit that Ohio had power to punish that contempt if it occurred.

I submit the contempt did occur, and I submit that the punishment which amounted here to a fine of $500 was fully proper and that the decision of the Ohio Supreme Court which has been made under its interpretation of Ohio’s Constitution and statutes should be affirmed.

Earl Warren:

Mrs. Ginger.

Ann Fagan Ginger:

May it please the Court.

Very — I think it may help even at this late date to go back over the fact in this case because I don’t think they’ve been presented in chronological order in such a way as to be absolutely clear.

First, I would like to say though as a sort of a joke that if it is true that nothing was further from the mind of the witness during her testimony, then the problem of pertinency, I would say that there was nothing further from the mind of the Chairman and the other members of the Commission than the existence of an Ohio Immunity Act.

The last day of March 1952, hearings were held in Columbus by the Ohio Un-American Activities Commission and one John DeLong testified at length concerning one Anna Morgan.

And he discussed where she lived, what her position in the Communist Party was and the kind of work she had done.

The following day was April 1st, 1952 and on that day, four witnesses where called before the Commission.

The first one was Mr. Terrell (ph), the second one was Mrs. Morgan.

In other words, on March 31st in Columbus, John DeLong was question that was a friendly witness and discussed at length appellant.

The following day, she was the second witness to appear.

First — first witness, Mr. Terrell (ph), my also representative at that time, not in the hearing but in the trial, it was a companion case with this at one time, was asked a number of questions, all of which she declined to answer on the basis of the Fifth Amendment.

Whether he was asked, whether he knew Anna Morgan, I don’t recall.

In any event, during his testimony as we’ve discussed several times now, he was told that he had a right to refuse to answer any question, the answer to — which might incriminate you, otherwise you are required to answer at page 11 or page 62 of the record.

Mrs. Morgan was or was not present during the testimony of John DeLong.

The record doesn’t indicate that.

Certainly, that was an open hearing and it was reported in the present, she was well aware of it when she came into the hearing, the following day with a prepared statement and she definitely was in the hearing room at the time that Mr. Terrell (ph) was questioned and then she heard Chairman Renner make the statement to Mr. Terrell (ph).

Therefore, while it is true that she came in with a prepared statement, it is also true that she knew that her name had come up in the hearing the previous day and she had heard the prior witness given a certain advice.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

I do not see how anyone can know what she would have done if Mr. Terrell (ph) had been given a different kind of advise.

She might or might not have put her statement into the record.

That’s I think impossible to say.

What do you say your proposition of that on Justice — Justice Stewart’s argument, namely that she was mislead, were concluded by a finding with the — the majority of the Ohio Court that she was not misled?

Ann Fagan Ginger:

Well ,I don t think you can be concluded in a finding that she was not misled in the sense that there was no denial of a federal right to be informed of her status at that time if the Ohio Supreme Court wishes to say that the standards of due process in Ohio will permit a conviction for a contempt in the face of these facts.

This Court couldn’t go into that, but I think this Court reading the fact, can conclude that under the Fourteenth Amendment, it is a denial of due process to find someone guilty of contempt for a willful refusal which is the wording of the indictment, a willful refusal to answer the questions in the face of these facts.

Good answer.

Ann Fagan Ginger:

The witness was called to testify and the first thing he did was to turn in her statement.

Now, her statement says two things which I think are of interest.

One is that, as I mentioned earlier in my argument before, that in all these months, the Commission has failed to state what it considers Un-American or subversive.

That’s at page 57 of the record.

Now, while this is not a lawyer’s way of saying, “I can’t figure out what’s pertinent to the matter under inquiry.”

I think it is a layman’s way of saying, “I can’t figure out what is pertinent to the matter under inquiry.”

She also said in her statement that the — because this Committee conducts its hearings like an inquisition with no rules of evidence.

It — its victims are denied the rights which they would have in a duly constituted Court.

Therefore, I must claim the protection of the Fifth Amendment of the Constitution of the United States and remain silent before this Committee.

I think this is a fairly clear statement which if she had — had a lawyer, she might have made during the course of the hearing.

But without a lawyer, she wrote it down in advance so that she would clearly had made her point.

Felix Frankfurter:

But she didn’t — she wasn’t denied to having a lawyer was she?

Ann Fagan Ginger:

No, you can’t go out —

Felix Frankfurter:

Wasn’t — she didn’t say she was an indigent person who wanted to have a lawyer at the time, did she?

Ann Fagan Ginger:

There is no such provision before a legislative committee that you can get a counsel.

Felix Frankfurter:

Well, it doesn’t prevent a chairman of a legislative committee to say, ”I’ll give you the assistance of Mrs. Jones.

To my mind, a generous-minded lawyer will be glad to represent you.”

Ann Fagan Ginger:

Well, I would —

Felix Frankfurter:

(Voice Overlap) Liberty Union in — in Ohio.

Ann Fagan Ginger:

I might say if I may go outside of the record that this subpoena was served and this client attempted very — with a great deal of diligence to find counsel in the City of Columbus and wasn’t able to do so.

I was at that time a lawyer from Cleveland and came into the case a good deal later.

There were no Cleveland lawyers.

They —

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Felix Frankfurter:

I have notice of the fact — I could take judicial notice even bar showed not a considerable interest from being assigned to a trial with a Communist, isn’t that true?

Ann Fagan Ginger:

But this was a Cleveland Bar and it was a little later after things had changed a little in the State of Ohio.

This is Columbus in April 1st, 1952.

Felix Frankfurter:

Well, but we don’t know whether it’s not — it’s not unreasonable.

It’s certainly not sensible to assume if Mrs. Brown appeared as she did because she wanted to appear as she did.

Ann Fagan Ginger:

I’m sorry, Your Honor.

I know —

Felix Frankfurter:

(Voice Overlap) sensible in some sort.

Ann Fagan Ginger:

I think it is in terms of an investigation before this Commission or the Un-American Activities Committee.

I have heard of no instance.

Maybe — it’s certainly in no instance until 1955 or 1956.

If there have been any since then, I’m delighted.

I know of no instance until at least 1955 in which any Bar Association or anyone else offered counsel for a legislative committee, not a Court.

Felix Frankfurter:

I said it is not sensible to assume that she wanted to represent her — represent herself, that’s not too sensible.

Ann Fagan Ginger:

I believe knowing the client and knowing the other clients who also came in with out counsel that that is sensible as of that year, yes.

Felix Frankfurter:

Well, maybe I should address, we don’t know — I mean the record is blank on it.

Ann Fagan Ginger:

The record is blank, I know, but did it not —

Felix Frankfurter:

This is not a statement of an undivided, unintelligent, non-competent person, was she?

Ann Fagan Ginger:

No, this is a statement of a person who had read the newspapers, but had not consulted a counsel because it — it’s clear —

Felix Frankfurter:

Well, I don’t know if she had or hadn’t —

Ann Fagan Ginger:

Well, I think it’s fairly clear Mr. Justice Frankfurter that if she had consulted counsel, she would have been told certainly to apply, to — to mention Article 1 Section 10 of the Ohio Constitution.

Felix Frankfurter:

She might have had counsel who’d like to challenge this Committee, which is no zone of Ohio Constitution statutes.

Ann Fagan Ginger:

That’s possible.

I prefer to assume that the members of the Columbus Bar had they given a counsel would have said, “Use Article 1 Section 10 of the Ohio Constitution.”

The fact that she didn’t mention that Section, which relates to self-incrimination convinces me as to whether things outside of the record that her failure to have counsel was not a matter of her own choice.

Felix Frankfurter:

I think that’s — I — I am sorry to say, we’ve had lawyers of this bar pending reverse and he will talk of Fifth Amendment without talking — without — without giving a reference to the local state comparable provisions.

Ann Fagan Ginger:

That may well be.

I won’t get into a discussion of this matter beyond saying that I — it is significant that both this client and two others who took a similar position appeared without counsel.

I represented all related.

Felix Frankfurter:

(Voice Overlap) on this record.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

That’s correct.

Felix Frankfurter:

I may have to ask you something else about the — I’m still confused as to the Ohio law.

I don’t think I asked you whether you agree that — is it your view that the Ohio statute automatically afford immunity from prosecution —

Ann Fagan Ginger:

Well,

Felix Frankfurter:

— before witness who appeared before a legislative committee even though he or she may not claim the privilege of — against self-crimination.

Ann Fagan Ginger:

Unfortunately, I neither wrote the statute nor I can’t — it’s my interpretation of it of any value.

This is the first case in which it involved —

Felix Frankfurter:

And what is your answer?

Ann Fagan Ginger:

— and the Ohio Supreme Court said this could be done without —

Felix Frankfurter:

Automatically?

Ann Fagan Ginger:

That’s what they said.

Felix Frankfurter:

Where did they say that?

Ann Fagan Ginger:

In their opinion.

They say, “You don’t have to be given a direction to answer and this will automatically clothe with immunity from the time you walk into the room.”

And therefore, there is no reason to give a direction doing it, sir.

I don’t know how quickly I can find it (Voice Overlap) —

Felix Frankfurter:

They don’t say that.

William J. Brennan, Jr.:

127 —

Felix Frankfurter:

But they do not say that.

They say — they do not say that.

They do not say — they do no give the answer to the question I put to you and other counsel, namely whether the mere fact that your stepping a legislative committee rule, clothe you with the immunity from prosecution, they do not say that.

Ann Fagan Ginger:

Well, if they don’t then that’s fine because I would agree with them.

I thought that I — my interpretation —

Felix Frankfurter:

(Voice Overlap) read English.

Read it and everything.

But do they said that?

A direction to answer after appellant’s refusal upon the ground of self-incrimination was unnecessary since the immunity granted to here included the possibility of justifying.

This question has been before this Court as to whether you’ve got to make some showing that you want to get something for something, or get something for nothing.

Ann Fagan Ginger:

It seems to me clear that it is a — that you cannot assume that a person has immunity unless you give it to them.

I think you cannot have an operation of an Immunity Act until a witness is asked a question, he refuses to answer on the basis of self-incrimination.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

You directed to answer the question and then he is told as to his refusal to answer is not accepted and he is then offered immunity and at that point, he refuses to answer and then he’s in contempt.

Felix Frankfurter:

That’s what I —

Ann Fagan Ginger:

That’s have been all with my understanding and I found no case other than this one in which this was permitted.

Felix Frankfurter:

Well, I agree with you if I may.

Ann Fagan Ginger:

Delighted.

Felix Frankfurter:

The statement of the Chairman isn’t an error because all he said is, you needn’t answer.

Did you claim the privilege against self-crimination?

Ann Fagan Ginger:

In other words, he were saying, “We were not giving you any immunity.”

Felix Frankfurter:

Pardon me?

Ann Fagan Ginger:

In other words, he were saying, “We are not in this case giving you any immunity.”

Felix Frankfurter:

He said you don’t need to answer.

Ann Fagan Ginger:

Right.

Felix Frankfurter:

And it’s a general understanding of immunity statute is that he who has a dispensing power may decide whether he discern prosecution possibly to testify.

And therefore, the Chairman cannot be wrong at all, if that’s the law of Ohio.

Ann Fagan Ginger:

Well, I would agree with you and I think that that —

What does the Supreme Court mean on pages 119 when it said, “Does the witness knew or was presumed to know that under the statute, her invocation of the rule of privilege against self-incrimination was a useless act under the law.”

Said, such a rule of privilege had been supplanted by a statute affording her sufficient immunity from prosecution to satisfy the protection against self-incrimination.

A mere refusal to answer on such a basis constituted contempt and so forth?Is that what you’re referring to when —

Ann Fagan Ginger:

Yes.

— you said it was automatic?

Ann Fagan Ginger:

Yes, I — I can’t read it in any other way.

I think —

That’s the way I read it too.

Ann Fagan Ginger:

The problem is that the Chairman of the Commission and the members of the Commission clearly had either never heard of the Immunity Act or they didn’t think it applied to this Commission and therefore, they didn’t mention it.

We cannot argue here whether this was a commission or a committee, but the fact of matter is that it was a matter in dispute.

I don’t think the Commission felt at ease.

But the point — the point is, in answer to Mr. Justice Frankfurter’s question, “Aren’t you right when you first suggested that this Ohio Supreme Court had construed the statute in this case rightly or wrongly, as providing automatic immunity by walking into the legislative room?”

Ann Fagan Ginger:

That would to be true.

I would to turn for a moment to the questions that were asked because I don’t want to miss the — the problem of whether the questions where preliminary or not.

The first question was her name which she gave.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

The second question was, “Where do you reside — reside?”

And to that, she said, and I do not think the language was either vitriolic or highly abusive.

“I regret that I cannot answer your question under the Fifth Amendment of the Constitution because to do so would give your Committee an opportunity to incriminate me.”

She was then immediately asked.

“Now, Mrs. Morgan, would you explain to the Commission how revealing your address of which you were served with the subpoena by the Sheriff of Franklin County would tend to incriminate you?”

The first question, “Where do you reside?” became count one in the indictment.

On this, she was convicted and fined.

Earl Warren:

What page?

Ann Fagan Ginger:

Page 49 of the record.

On page 50 of the record, the first question on that page, “Now, Mrs. Morgan, would you explain to the Commission how revealing your address?”

That became count two in the indictment and that was on trial.

This was — she was acquitted on that count as not pertinent to the matter under inquiry.

She was then asked, “Are you a citizen of the United States?”

And she said, “I appeal under the Fifth Amendment.”

The — the counsel for the Commission said, “You say you feel under the Fifth Amendment.”

“I continue to feel under the Fifth Amendment not to answer that question.”

“Does that mean that you refuse to answer?”

Answer, “I refuse to answer under the Fifth Amendment.”

“And by the refusal to answer under the Fifth Amendment, you say to answer would tend to incriminate you.”

Answer, “Yes.”

Now, the question has come up whether her refusal to answer, whether she was a citizen of the United States was a frivolous answer or one in which there was no basis for fear of incrimination.

The fact that the matter is that this was a woman who could — who was aware of the possibility of denaturalization action.

If you wish to call this a prosecution or not, I don’t know if that’s important.

A denaturalization case may not be considered formally a criminal matter, but there —

Earl Warren:

Was she foreign-born?

Ann Fagan Ginger:

It’s not in the record.

She was native born.

She had married during the period when you lose your citizenship and she had later become a citizen over again through naturalization and she was aware of these facts when she testified.

Nothing of this is in the record however, but she was asked, “Do you — would the answer to incriminate you?”

And she answered, “Yes, it would.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Ann Fagan Ginger:

Yes.”

Then, she was asked what the Fifth Amendment was and she just kept saying, “Fifth Amendment, Fifth Amendment.”

Now, it maybe that the State of Ohio Supreme Court, reading this record, thinks this was a very strange witness.

They asked her, “What is the Fifth Amendment?”

And she merely says, “I am appealing under the Fifth Amendment.”

I do not think it is strange for — for a client without counsel to be fairly careful of her answers in this kind of a hearing.

It maybe she was intelligent enough to write a statement in a quieter room.

But to think on her feet and give an accurate answer, a careful answer which wouldn’t waive any right, I think at that stage of the law, 1952, what a person would know from newspapers, I think it is fairly clear.

This wasn’t a rigid person who was denying the possibility of a discussion.

She was merely afraid to get away from a formula which she thought was safe.

The next count in indictment, the question was, “How long have you been a resident of Franklin County, Mrs. Morgan?”

And she said — she continued to appeal — appeal under the Fifth Amendment.

For this, she was fined.

And it seems clear to me that this is purely a preliminary question.

It could have had no significance, unless it is somehow connected with the last count in the indictment which I will read when I come to it.

Then, she was asked, “Where are you employed as count five?”

On that count, she was fined.

And you will find throughout the questioning a number of questions later on indicating that she had been a paid Communist Party organizer, count 12, count 14, both indicate these.

So that, her concern over answering, “Where are you employed and her refusal to answer under the privilege makes sense when you read the later questions.

The next count on which she was fined was, “Mrs. Morgan, are you now or have you ever been a member of the Communist Party?”

And the continuing count thereafter all relate to the Communist Party until you get into count 28, I believe.

Now, count seven was — on count seven, she was acquitted in the common pleas court after trial, as its being identical with count six and 36.

In other words, we argued at the trial court that these questions were repetitious and that they were not pertinent, and two of the questions were thrown out on the ground of no pertinency.

That is the question at the top of page 50 and the question at the bottom of page 55 concerning the Civil Rights Congress.

Both of those counts were thrown out on the ground of no pertinency.

And counts six and 30 — count seven and 36 were thrown out on the ground of their being repetitious.

Our argument — our only argument with the trial court was that they should have thrown out all of the counts from seven on, on the ground that they were identical with seven, before that sole reason.

In terms of the answer as to her home, in addition to the problem which I mentioned before about DeLong having testified concerning meetings having been held at her home, the counts in 11 — 17 and 18, and 19, and 20, and 21, and 24, and 25, and 26, all asked questions connecting her home with Communist Party headquarters or Communist Party meetings.

So, there can be no doubt that there was an honest claim of the privilege in connection with her testimony.

I would like to say in conclusion that while it would be possible for this Court to decide this case and to reverse the conviction of this appellant solely on the ground that the failure to direct to answer and the failure to show a willful refusal to answer in the face of the statement by the Chairman that she need not answer, there are pending now in Ohio 20 similar cases before this same Commission which is now the debunked and it would be of considerable value if this Court, considering this case on — for the second time on — acted a remand under Watkins and Sweezy if the Court covered issues beyond the direction to answer and the failure to show a willful refusal to answer.

Audio Transcription for Oral Argument, Part 2: Raley v. Ohio – April 23, 1959 (175) in Raley v. Ohio
Audio Transcription for Oral Argument, Part 1: Morgan v. Ohio – April 23, 1959 (463) in Raley v. Ohio

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Felix Frankfurter:

Before you sit down, may I ask you since — or whether the Chairman was a witness at the trial of Mrs. Morgan for contempt?

Ann Fagan Ginger:

Yes, yes.

That’s in the record.

Felix Frankfurter:

Now, did he make the statement at this trial that before — from the Raley, Stern and Brown case?

Ann Fagan Ginger:

No, he made that statement in that case and he did not make that statement here.

He talked about the purposes of the Commission and he did not make a general statement.

Felix Frankfurter:

Would he ask about this policy at this trial?

Ann Fagan Ginger:

No.

Felix Frankfurter:

At this trial, at the trial on the — judgment or sentence before us, Mrs. Brown was represented by counsel — Mrs. Morgan was represented by counsel.

Ann Fagan Ginger:

That’s correct.

Felix Frankfurter:

Was the Chairman examined, cross examined —

Ann Fagan Ginger:

Yes.

Felix Frankfurter:

— at this trial?

Ann Fagan Ginger:

Yes.

Felix Frankfurter:

Did the Morgan trial precede or follow the Raley, Stern, Brown cases?

Ann Fagan Ginger:

I think it preceded it.

Felix Frankfurter:

Would he say it to merely to find out?

Ann Fagan Ginger:

Very shortly before it.

There was a delay of a year in — by the trial court and deciding a demurrer which I filed, which they overruled but there was a year’s delay so that — although the testimony in Morgan was taken earlier and the testimony in the Raley case, the trials was very close to each other.