Sarno v. Illinois Crime Investigating Commission

PETITIONER: Sarno
RESPONDENT: Illinois Crime Investigating Commission
LOCATION: Illinois Crime Investigating Comm'n Hearings at the County Building

DOCKET NO.: 70-7
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Illinois

CITATION: 406 US 482 (1972)
ARGUED: Jan 11, 1972
DECIDED: May 22, 1972

ADVOCATES:
Frank G. Whalen - for the petitioner
Joel M. Flaum - for the respondent

Facts of the case

The Illinois Crime Investigating Commission was created to investigate organized crime in Illinois. Albert Sarno and Chris Cardi were police officers. The Commission wanted the officers to testify pursuant to an investigation of a "juice loan" or "loan shark" racket.

On February 8, 1968, the presiding judge in the Circuit Court of Cook County entered an order requiring the petitioners to appear before the commission under a grant of immunity pursuant to an Illinois statute. On February 24, 1968, the officers appeared, but they refused to answer any questions pleading their right against self-incrimination under the Fifth Amendment.

On March 21, 1968, the Commission filed a motion in the Circuit court, and moved the court to enter an order directing the petitioners to appear before the Commission and answer the questions. The officers filed a motion to dismiss or to strike the foregoing motion. The officers' motion was denied, and the court entered an order directing the petitioners to appear before the Commission and to answer the questions. The officers refused to obey this subsequent order, still pleading the Fifth Amendment. The officers were found in contempt of court and sentenced to serve a period of six months in the County Jail. The decision of the trial court was appealed and subsequently affirmed by the Illinois Supreme Court. The officers appealed to the Supreme Court.

Question

If an unwilling witness invokes his privilege against self-incrimination under the Fifth Amendment, can a state make that witness testify by granting that witness immunity?

Media for Sarno v. Illinois Crime Investigating Commission

Audio Transcription for Oral Argument - January 11, 1972 in Sarno v. Illinois Crime Investigating Commission

Warren E. Burger:

We will hear arguments next in number 70-7, Sarno against the Illinois Crime Investigating Commissioner.

Mr. Whalen, you may proceed whenever you are ready?

Frank G. Whalen:

Mr. Chief Justice and may it please this Court.

Two questions are presented here for the Court’s consideration.

First question is considering the implication of the questions, the circumstances, and setting under which they were asked, where the petitioner is justified in pleading the Fifth Amendment under a State Immunity Statute according to the -- to afford transactional immunity.

And the second question, must the State affirmatively demonstrate to respondents when testifying and pursuant to the Illinois Immunity Act, that an immunity is brought in scope as the Fifth Amendment privilege is available and applicable to them.

In 1963, the Illinois legislature created the Illinois Crime Investigating Commission.

The sole purpose of which was to investigate organized crime in the State of Illinois.

In 1968, petitioners, Sarno and McCarty, where ordered to appear and give testimony before this Commission.

They appeared and refused to testify, pleading the Fifth Amendment.

Now, as to the circumstances and the studying that were found at the time they appeared, the first would be that Illinois at this time had a double standard of Immunity Act.

There was the Grand Jury Act, which applied to proceedings before Grand Juries and to -- and before Trial Courts.

Under this the Grand Jury Act, a witness was given immunity from prosecution for any offense shown in whole or in part by such testimony.

Further, this Act, the Grand Jury Act had been interpreted by the Illinois State Supreme Court in People versus Walker, 28 Illinois 2nd 585 and there the Supreme Court in very strong language upheld the constitutionality of that Act.

In fact, the Court there said that the statue eliminates the constitutional privilege against self incrimination.

Now, the State of Illinois Immunity Act which we are concerned here with, provided a witness shall not be prosecuted or an account of any transaction, matter or thing concerning which he gave answer.

The Act further contained this provision.

The Court shall not order any such person to testify or produce evidence if it reasonably appeared to the Court that such testimony or evidence would subject such witness to an indictment, information or prosecution under the laws of another State or of the United States.

This statute had never been interpreted by the State Supreme Court and was first interpreted on this offensive appeal.

This was a public hearing without the privacy in terms of Grand Jury proceeding, and it became obvious to the petitioners that the questions asked were based upon records that had been at a prior time, illegally seized from the home of the petitioner McCarty.

Warren E. Burger:

Is this Commission a Legislative Commission, Mr. Whalen?

Frank G. Whalen:

Yes, it is.

Warren E. Burger:

It is much like I suppose arisen now, but it is not much like a Congressional Committee conducting an inquiry into this particular subject?

Frank G. Whalen:

I would like commit to --

Potter Stewart:

What are duties in the event that does as -- it does has what it is before that do answer questions, what does it do with him?

Frank G. Whalen:

Well, I can only assume Mr. Justice that it is to report as to the various prosecuting agents.

Potter Stewart:

Not just to the State Legislature?

Frank G. Whalen:

No and then, I am really not sure of my answer, but it is my understanding that that would be the function.

Potter Stewart:

So, it appeared correctly, you are understanding that this agency is a kin to the New Jersey Commission from which we have just heard?

Frank G. Whalen:

Oh, I believe very much so.