Slagle v. Ohio – Oral Argument – February 28, 1961

Media for Slagle v. Ohio

Audio Transcription for Oral Argument – February 27, 1961 in Slagle v. Ohio

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Earl Warren:

Mrs. Furry, you may continue your argument.

Thelma C. Furry:

If the Court please, I think, yesterday, I left off at the point where I — we maintain that the Ohio Un-American Activities Commission actually had no authority whatsoever to ever call any witnesses ahead of them, before them and question them in the area of subversive activities.

I think the thing that proves our point is the fact that the legislation of the statutes that was passed because of their recommendation, Ohio Rev. Code 2921.23 through 2921.27 was held immediately after it was passed by the Ohio Legislature to be unenforceable by our Ohio Attorney General, and the Ohio Commission is not in business now.

It went out of business on January 1954.

So that all the furrow and fuss that they caused for the years of 1951 to 1954 was to no avail.

John M. Harlan II:

Isn’t that a matter —

Earl Warren:

It isn’t — oh, pardon me.

That’s what I’m asking, isn’t that a matter of state law?

Thelma C. Furry:

The Ohio Attorney General has held that these statutes were unenforceable and no — there was — under these particular statutes, there were special attorney generals appointed by the Governor and immediately after the Attorney General found that this was unenforceable because of the Nelson case, these attorney generals resigned.

There were never any investigations under these statutes, and the work was not carried on in any manner whatsoever.

There had been, of course, no court opinions because there was nothing attempted under these particular statutes.

Earl Warren:

Was this point raised in the — in the Supreme Court of Ohio, this particular point that you’re in now?

Thelma C. Furry:

Yes, Your Honor.

Earl Warren:

Did they decide it?

Thelma C. Furry:

They decided — they gave no opinion whatsoever in the Ohio Supreme Court.

They merely said that the particular cases before this Court now involved no constitutional questions and on the motion of the prosecutor from Stark County, they — to dismiss the appeal, they did dismiss and without opinion.

That’s the way it stands.

Now —

Hugo L. Black:

Did you said — when did you say the Committee had done nothing?

Thelma C. Furry:

I said that, as a result of the Ohio Commission, the work and the investigations and the furrow they — they caused from 1951 to 1954 actually accomplished nothing in the end because the legislation that they recommend to be passed by Ohio Legislature and was passed by Ohio Legislature was later decided by the Ohio Attorney General that was unenforceable.

So, I say that all of the fuss that they caused, the Ohio Un-American Activities Commission actually accomplished nothing in — by way of legislation which was supposed to have been the purpose that they were set up.

Hugo L. Black:

Well, if — did you — you said something about the Committee not being active now?

Thelma C. Furry:

Well, what I said was the statute that was passed by the recommendation of the Ohio Un-American Activities Committee, Ohio Revised Sections 2921.21 through 2921.27 which provided for special attorney generals to be appointed to carry on the investigation into subversive activities and for the prosecution of anyone who was found to be active in this activity.

As a result of the Attorney General’s opinion, these assistant attorney generals all resigned their jobs, and these particular statutes have never been attempted to be enforced in any area in the State of Ohio.

And this — these statutes were passed in — to become effective in October — November the 1st, 1953, and to date, they have never been used.

And there are no attorney generals under these — these statutes at this time, no special investigators which were, of course, had been appointed by the Governor immediately after these — these statutes were passed and one of the appointments, of course, was the attorney for the Ohio Un-American Activities Commission who had been —

William J. Brennan, Jr.:

But Mrs. Furry, what — what relevance does that have to whether or not the Committee might investigate after our decision in the Uphaus case?

Thelma C. Furry:

Well, I suppose it doesn’t actually have any relevance at this — at this particular time in — in the light of the Uphaus case, except that I think that it’s rather significant and perhaps, this Court should be aware of what has happened in Ohio.

And everything was — all of this commotion ended in nothing so far as — as establishing legislative statutes that could be enforced.

And that was — the point I’m making is that the Ohio Un-American Activities Commission was supposed to be empowered with their authority for the purpose of recommending certain legislation to the Ohio Legislature.

William J. Brennan, Jr.:

Well, they did, in fact, recommend legislation which was in fact passed, I think (Voice Overlap) —

Thelma C. Furry:

That is correct.

William J. Brennan, Jr.:

And it shows that the Attorney General of Ohio has not — for one reason or another, he has not thought it was unenforceable, is that it?

Thelma C. Furry:

Well, the Ohio Attorney General issued an official opinion in which he stated that these statutes were unenforceable in light of the Nelson case that was passed by this Court, was ruled upon in this Court.

In the Nelson case, this Court said that this area of seditious activity was completely occupied by the Federal Government and could not be — States could not become active in this field.

And on that basis, he said that these statutes were unenforceable and they are —

Hugo L. Black:

Well, who prosecuted this case?

Thelma C. Furry:

What is it?

Hugo L. Black:

You say that the Attorney General didn’t prosecute it.

Who did prosecute it?

Thelma C. Furry:

This particular case that we have here?

Hugo L. Black:

Yes.

Thelma C. Furry:

This case is — comes out of the Stark County of Ohio, County Prosecutor, Mr. Putman, who is here.

As a result of the Ohio Un-American Activities Commission hearings that were held in Stark County while they still — while the Commission was still alive, these witnesses who — these appellants, I should say, who declined to answer various questions were then indicted by the grand jury of Stark County, and they were prosecuted by the prosecutor of Stark — Stark County as contempt prosecutions which had nothing to do with the legislation that had been passed.

Hugo L. Black:

Has the Attorney General appeared in this case?

Thelma C. Furry:

No, he has not, merely the Stark County prosecutor.

Earl Warren:

Does the Attorney General normally appear in cases of this kind in — in Courts of Appeals?

Thelma C. Furry:

No, he does not, in — in Ohio.

Earl Warren:

In Ohio, he does not.

Thelma C. Furry:

He does not.

And it’s usually the prosecutor from the various counties —

Earl Warren:

I see.

Thelma C. Furry:

— that — where the case starts, follows it through.

Earl Warren:

Follows it through.

Hugo L. Black:

It has no relevance, I suppose, but (Inaudible) do you mean that, from the State Supreme Court, the Attorney General leaves all the tenant work to the — the county attorney?

Thelma C. Furry:

Where the case commences in a certain county.

Now, if it happens to be a state case, for instance, if these — if these statutes that were passed were being enforced by the Attorney General’s Office, if this was set up so that he could go into various counties and prosecute people by after investigating them, of course, his office would be the one who would go all the way through with the appeal because he would be the one who would be instigating the actions to begin with.

Earl Warren:

Well, assume that the — that this was a case of murder, a robbery or arson or something of that kind, would it — would it be pursued up to this Court by the District — District Attorney or your prosecuting attorney rather?

Thelma C. Furry:

The — by the prosecuting attorney of the county.

Earl Warren:

And not by the Attorney General.

Thelma C. Furry:

That is correct, Your Honor.

Earl Warren:

Is that so?

William J. Brennan, Jr.:

Well, when — when Raley was here, was it not the county prosecutors who appeared in those cases?

Thelma C. Furry:

At that time, it was the county prosecutor from Hamilton County and county prosecutor from Franklin County, Cincinnati and Columbus.

Now, the other point that I wanted to reach this morning was to deal with the argument —

William J. Brennan, Jr.:

Mrs. Furry, before you do, may I just ask one question.

Raley involved what the court — this Court said was an improper representation by the Chairman of the Commission to the witnesses that they might rely on their privilege against self-incrimination.

Is that issue involved in these cases?

Thelma C. Furry:

In the case of two of the witnesses, I would say that that is involved by implication, not by an actual statement by the Chairman that the privilege was available but merely by the fact that when the attorney for the Commission would ask various witnesses a question and they declined to answer, they would then move on to the next question.

The —

William J. Brennan, Jr.:

Well, had these witnesses involved before us now, been told that the statute — the Ohio statute extended immunity?

Thelma C. Furry:

No, they had not.

What happened was that the Commissioner’s — the Commission’s attorney, at the opening of the hearing, made the statement to the first witness.

He said, Did your attorney advise you of the fact that a — a judge in Franklin County has ruled on the immunity statute?

And the witness replied by saying Yes, we are aware of that decision but that we don’t feel it’s binding and that is merely one judge’s opinion.”

Now, these hearings in —

William J. Brennan, Jr.:

And that judge’s opinion was that there would be immunity for prosecution for any testimony they gave?

Thelma C. Furry:

I’ll read exactly what that — this Judge Bryant from Franklin County had a long opinion dealing with the demurrer that had been filed by Franklin County witnesses who had been found guilty of contempt prior to these people being called before the Commission.

At one little portion of the opinion stated this.

Further, the argument of possible self-incrimination are answers that have a tendency so to do is fully met by the provisions of Section 101.44, which is the immunity statute which this Court has a copy of in the brief before them now.

He then quotes the statute in full and says, It is clearly, therefore, that the provision of Section 101.44, supra, grant immunity to the witnesses as to any incriminating matter concerning which they might testify had they entered the questions propounded to them by the said Commission.

There may be one exception to this as one of the questions appeared to deal with whether or not false testimony had been given at a previous time before a grand jury of this county.

It can be safely left to the judge who tries this case properly to apply whatever interpretation be required to make fully effective the protection contemplated by the provisions of Section 10 Article I of the Ohio Constitution should it develop upon consideration of the evidence that the immunity provided by Section 101.44 is not broad enough to cover a particular situation.

Now, this is the only judicial reference to the immunity statute that was made relative to these contempt cases.

William J. Brennan, Jr.:

Well, do you take the position here that Raley, in any way, governs the problems before us?

Thelma C. Furry:

Yes, I think that the Raley and Morgan cases had precisely the same issues that we’re going — that we have in this case, as to — as I pointed out, as to two of the witnesses who were never ordered to answer and which, in the Raley case, and I’m — I’m — we have two opinion in the Raley case, of course, the unanimous opinion and then we have the 4-to-4 opinion, and I’m reading from the 4-to-4 opinion which says The test is whether the witness was commanded to answer regardless.

Now, I — as I read the opinions, the eight — eight — the eighth opinion and the 4-to-4 opinion in the Raley case, there seem to be agreement by this Court that the least a witness could expect is a direction to answer before they could be found guilty of contempt.

And I say that, as at least to two of these appellants before this Court now, they were never directed to answer, and they were never granted immunity.

And —

Charles E. Whittaker:

What are those two, Mrs. Furry?

Thelma C. Furry:

The two that were never granted immunity — were never directed to answer?

Charles E. Whittaker:

Yes.

Thelma C. Furry:

Were Laverne Slagle and Paul Bohus.

Earl Warren:

What’s that second one?

Thelma C. Furry:

Paul Bohus, B-O-H-U-S.

Earl Warren:

Oh, yes.

Thelma C. Furry:

There were three women involved and all three of the women had been directed to answer.

So, of course, I hope to go into various points that would mean that their — their conviction should also be reversed.

Earl Warren:

Now, were there any of these that were not told of this statute?

Thelma C. Furry:

Yes.

Earl Warren:

What ones?

Thelma C. Furry:

The ones who were — that were not mentioned in the statute — the immunity statute was not even mentioned to them was Laverne Slagle, Rose Mladajan, and Eula Cooper.

William J. Brennan, Jr.:

Well, now, didn’t your Supreme Court, however, Mrs. Furry, in — I’ve forgotten, was it the Morgan case?

Thelma C. Furry:

Yes.

William J. Brennan, Jr.:

Hold that the statute was automatically available?

Thelma C. Furry:

Yes, that was at the —

William J. Brennan, Jr.:

In other words, that there was no obligation affirmatively to advise a witness that immunity was available, that the statute was automatically available but in Raley, we found that the Chairman of the Commission supplied everyone but Stern, I think, did it not, had — had told the witnesses that they were free to claim their privilege whenever they thought it advisable to do so?

Thelma C. Furry:

That’s not quite the facts.

In the Morgan case, which was the companion case of Raley, the Chairman did tell Mrs. Morgan that she could use the privilege.

Now, in the other three cases, that was Brown, Raley and Stern which were from Cincinnati, Hamilton County, the Chairman never told them that they could use the privilege but the record showed that their conduct was such by never directing an answer and by implication, this Court found that the — the Committee seem to take it for granted that they had the privilege available.

Now, that’s what the record in the Morgan-Raley case does show.

Mrs. Morgan was the only one who was actually told that she had the privilege.

After this hearing in Stark County, the Ohio Supreme Court did rule on the immunity statute and made it much broader than ever before.

And they said in their opinion, We are determining for the first time in regard to this particular statute that such protection is sufficient to supplant the rule of privilege against self-incrimination.

Now, this is the first case in Ohio that this immunity statute had ever been ruled upon, although it had been on the books since 1872.

Earl Warren:

Was that before or after –after these people appeared before the Committee?

Thelma C. Furry:

This was — this was after these people appeared before the Commission.

These people appeared in Canton (ph) before the Commission on October 21st, 1953, and this opinion was handed down by the Ohio Supreme Court on February 23rd, 1956 in 164 Ohio St. 529.

Hugo L. Black:

164 what?

Thelma C. Furry:

Ohio St.529.

William J. Brennan, Jr.:

That was the Morgan case.

Thelma C. Furry:

That was the Morgan case decision, yes, Your Honor.

Now, I think, perhaps, I should, at this time, attempt to distinguish this case from the Knapp-Schweitzer case, which the Prosecutor uses in his argument as being supporting his position.

In the Knapp case, Knapp was subpoenaed before a New York State grand jury investigating into the conventional state crimes of corruption and misconduct.

And he was specifically granted immunity from state prosecution when he refused to answer on the grounds of self-incrimination.

After refusal, the court adjudged petitioner in contempt, rejected his claim of fear of federal prosecution based on a statement of the United States Attorney that he would cooperate with the attorney — State’s Attorney in this field.

These appellants were subpoenaed to be — to appear before an Ohio Commission investigating in the area of subversion, an area fully occupied by Congress in which the state has no power to act.

This is also an area involving rights guaranteed by the First and Fourteenth Amendments, the essential rights referred to by Bill Of Rights James Madison as quoted in Knapp at page 377, the rights of conscience.

It is not an area of traditional power to investigate in aid of prosecuting conventional state crime.

Some facts of which may be entangled in federal offense.

In the Knapp-Schweitzer case, that was the reverse — reverse situation.

Now, this Court has said before that it is — it is not unmindful of the risk of compounding punishments which would be created by finding concurrent state power over seditious activity, “without compelling indication to the contrary, we will not assume that Congress intended to permit the possibility of double punishment, that is the quote from the Nelson case at page 509 and 510.

Now, most of the cases that we’ve done research on involving immunity statutes, I should think — I believe all of them, as far as I can recall, involved grand jury investigations into crying and hearings before administry — administrative agencies.

Now, this is a fundamental distinction between such proceedings and hearings before a legislative investigating committee.

A grand jury exists to discover the commission of crimes.

It functions as part of the judicial system and is an agency in administration of justice.

A legislative investigating committee has no authority to act as a grand jury or to discover the commission of crimes.

Its only authority is to investigate for the purpose of proposing legislation.

The theory behind all immunity acts is that the questioning body has the authority to compel testimony even if it may incriminate the witness and has the authority to grant a pardon in advance or otherwise, protect the witness from subsequent prosecution as to matters touched in this compelled testimony.

Such a non-law enforcement agency or does a law — non-law enforcement agency have the authority to grant a pardon in advance or otherwise protect the witness from subsequent prosecution as to matters testified to under compulsion unless some procedure were established to ensure that a record was made of the testimony of every witness before a state legislative committee and of every grant of immunity to a witness, denials of due process would be — would necessarily occur.

I think that is what distinguishes this case from the Knapp-Schweitzer case.

Hugo L. Black:

What — what were you reading from now?

Thelma C. Furry:

I’m reading from a prior brief that I prepared in the Morgan case in which we dealt with that in — in much more detail than I did in — in this case before the Court now.

Hugo L. Black:

I thought that you read from one of our opinions about the Court presuming that Congress was not (Inaudible) —

Thelma C. Furry:

Oh, yes.

Hugo L. Black:

— people to double jeopardy?

Thelma C. Furry:

That was in the Nelson case.

Hugo L. Black:

Nelson.

Thelma C. Furry:

Yes, the Nelson case.

I have the — that was at page 509 and 5010 in the Nelson case.

Thelma C. Furry:

Let’s see.

I don’t have the complete citation of it before me.

Now, I feel that this case, the appellants here have tendered exactly the same issues that were tendered in the Raley and Ohio case which this Court did not rule upon, and which this Court said, at page 425, the following, “The issues tendered by the parties range broadly and involved the power of the Ohio Legislature in view of existing federal legislation to investigate activities deemed subversive of the forms of government within the nation,” Pennsylvania versus Nelson, 350 U.S. 497, “The power of the state to compel disclosure of matters interconnected with the protective freedom of speech and assembly,” NAACP versus Alabama, 357 U.S. 449, Sweezy versus New Hampshire, supra, “The existence of an expressed legislative interest for such an inquiry and its definition and articulation to the person summoned,” Watkins and Sweezy in Scull versus — and also Scull versus Virginia, 359 U.S. 344.

I might say here that in no time did the Chairman say anything to these witnesses, these appellants, as to the reason for their investigation, do anything to explain why even though some of the witnesses raised the issue as to why that particular question being asked at the time was pertinent to this particular investigation is being — that was going on, the Chairman never made any statement to explain.

Earl Warren:

You say the witnesses did ask what the purpose of the investigation was?

Thelma C. Furry:

They, at various times, would raise an issue at a particular question.

They would say Why is that question pertinent to this issue?

in that type of language.

I don’t think that any witness came right out and asked for a complete statement from the Chairman.

But even when they asked whether or not why this particular question was pertinent, the Chairman would usually answer, That’s beside the point.

Answer the question, and so forth.

I mean, they would never give them an answer as to why they consider it pertinent and what the reason for their investigation was.

And the effect — this is also from your statement from this Court, And the effect on testimonial compulsion of state immunity statutes not affording immunity from federal prosecution.

That’s in Knapp versus Schweitzer, 357 U.S. 371.

But our disposition of these cases makes it unnecessary to consider the application of the principles of the cases just cited.

Now, because, at that time, this Court disposed of the Morgan and Raley cases on the sole issue as to whether or not the witnesses had been misled to believe that they had the privilege available to them, so that, even though the State of Ohio said that the immunity statute fits upon anyone who walks into a hearing like a cloak without the witness being notified of the immunity statute, this Court held that even with such a ruling from the Ohio State Supreme Court that the witnesses should, nevertheless, had been directed to answer and should not have been entrapped into the position that they were in by being found guilty of contempt.

And since those cases were decided on that issue alone and left the other issues that were raised in the Morgan and Raley case undecided, and these are precisely the same issues that we are raising in this case before the courts today, the same issues that were raised in the Raley and Morgan cases.

Earl Warren:

Where do we find the immunity statute in the record or briefs please?

Thelma C. Furry:

In my last brief for the — which was filed with this Court, the immunity statute is on page 9 and goes on — no, it’s just on page 9.

It’s completely on page 9.

Earl Warren:

Is that the one filed January 11?

Is that the brief filed January 11?

Thelma C. Furry:

Yes, Your Honor.

Earl Warren:

On — well, now —

Thelma C. Furry:

On page 9, it says Ohio Rev. Code, Section 101.44 provides.

Earl Warren:

Oh, I see.

Thelma C. Furry:

And that is the immunity statute.

Earl Warren:

Yes, yes, thank you.

William J. Brennan, Jr.:

Well, Mrs. Furry, do I correctly understand then that we — your position is we must reach the arguments or rather attacks upon the proceedings that we did not reach in Raley because there is not present here a situation such as there was in Raley, namely, of the Chairman having misadvised the witnesses that they might rely on the privilege against self-incrimination?

Thelma C. Furry:

I say this.

Thelma C. Furry:

That, as to two of the witnesses, the Morgan and Raley case would apply to them and they should have been released because they were never directed to answer.

Even though they were never told they had the privilege, the conduct of the Commission would so imply that they had the privilege.

William J. Brennan, Jr.:

Well, I know, but — it’s only by implication, they —

Thelma C. Furry:

That’s correct.

William J. Brennan, Jr.:

suggested it.

In other words there —

Thelma C. Furry:

That’s correct, Justice Brennan.

William J. Brennan, Jr.:

— there was no expressed statement as was true in the Morgan and Raley cases —

Thelma C. Furry:

That is correct.

William J. Brennan, Jr.:

— that you may rely on the privilege.

That, we do not have in this case.

Thelma C. Furry:

You do not have it in this case, Justice Brennan.

At this time, that is all the argument that I wish to present on the behalf of the appellants.

Thank you, to this Court, very much.

Earl Warren:

You may reserve the rest of your time.

Mr. Putman.

Norman J. Putman:

Mr. Chief Justice, may it please the Court.

So that there is no confusion arising from these matters of state law, although I grant they are not relevant for the purpose of this argument, I would like to state that, first of all, I did not prosecute these cases.

I was not prosecuting attorney for Stark County in 1953.

I took office in 1957.

In the State of Ohio, criminal prosecutions are handled on the county level by each of the 88 county prosecutors.

The Attorney General is not a criminal prosecuting attorney.

He’s the lawyer for the Governor of the State and the various state agencies.

When there is a crime on state property or when there has been a fraud against the state or when there is some reason for a special investigation, the Attorney General may be directed by the Governor to prosecute the cases.

So, it is very unusual to see an Attorney General in any case at any level in our state criminal matters.

The second thing that needs to be pointed out in this particular case is that there were some serious state law questions which arose at the time the Un-American Activities Commission of the Ohio General Assembly was created.

Those questions have been resolved in 164 Ohio State by the Ohio Supreme Court, and I don’t discuss them to argue them, but they explain how these cases came up the way they are, why we’re still here and why the Ohio courts feel bound to send these cases up here to the United States Supreme Court.

First of all, there was a considerable problem in the state law level about the power of the Ohio General Assembly to create a commission which existed beyond its sine die adjournment.

That question has been resolved in favor of the validity of the Commission.

But for that reason, they did not appoint a committee, such as the Congress has, for the investigating of Un-American Activities.

Norman J. Putman:

This is not a United States Congress type of committee.

This is a commission created and given birth to by the Legislature so that it may operate under Ohio law after the adjournment of the Legislature.

Now, they called it a commission and you will observe, when you read the Ohio immunity statute, it says any person who testifies before a committee.

At the time, there were a lot of very good criminal lawyers who had serious doubts that the immunity statute which was specifically in terms criminal statutes being strictly construed against the State, since the defendant can commit no error in Ohio.

They felt there was a serious question as to whether this immunity statute was available.

For that reason, apparently, the Un-American Activities Commission, when it met for the Morgan, Raley and Stern cases, elected to play it safe and told its witnesses, You may seek refuge behind the privilege against self-incrimination.”

Apparently, to me, they felt there was no sense in telling these people they had an immunity at all.

So they — they told them that they could rely on the Fifth Amendment.

Apparently, what happened was that, thereafter, the Un-American Activities Commission, having questioned witnesses and moved off from the scene, some eager beaver grand jury at the county level, decided that this had been terrible that these witnesses had refused to answer, and they indicted them under the Ohio Criminal Code.

These are not indictments in the instant case under the Ohio Criminal Code.

The Raley, Morgan and Stern cases were indictments under the Ohio Criminal Code.

In Ohio, there are no common law crimes.

All crimes are codified.

So, there was an indictment under the Ohio Criminal Code returned for the crime of failing to testify before a committee of the state legislature, a specific crime.

When that case went to the Supreme Court of Ohio, there was a 4-to-3 split in the first place.

Judge Stewart recognized right off the bat that under Ohio law, as a matter of fact, Morgan, Raley and Brown and even Stern were not guilty as a matter of fact of the crime of contempt.

This business of entrapment is aside from the mark, as a criminal lawyer understands entrapment.

That is the inducement to do a substantive wrong.

As I understand Judge Stewart’s ruling, it was, as a matter of fact, there is no guilt at all because they were not in contempt.

They were told, You may take the Fifth Amendment.

The witnesses say Thanks, we’ll take it.

There’s no guilt.

That was what was wrong with the Raley, Morgan and Brown cases.

Now, with respect to the Stern case, Stern was convicted and by a 4-to-4 split of this Court, one member not sitting, it developed that Stern’s conviction was affirmed for the reason that there was a feeling on the part of four members of the Court that Stern, as a matter of fact, was abstinent.

His mental attitude was that of hostility toward the Committee.

He had been overruled.

He made his objection.

He pled the Fifth Amendment and they said, It does not apply in our opinion because this question could not possibly incriminate you.

Therefore, you are directed to answer.

And Stern — Stern’s conviction is affirmed by the highest court of the land, and that carries with it the authority of a holding, the authority that the Ohio Un-American Activities Commission was valid, that they validly met under state law, that the questions were pertinent, that the holding may be overruled.

Norman J. Putman:

I understand that, but that’s our authority directly in this case.

Hugo L. Black:

4-to-4 opinion?

Norman J. Putman:

4-to-4.

I’m reciting, as an officer of the Court, the authority.

Now, what happened then in Stark County?

In Stark County, in the cases —

William J. Brennan, Jr.:

Well, what you have — what you’re relying on is an affirmance by necessity.

Norman J. Putman:

Correct, Your Honor.

William J. Brennan, Jr.:

How much of a precedent that is, is another question?

Norman J. Putman:

I wish to discuss that also.

I’m trying to straighten out what appears to be a lot of nonsense from Ohio which, if you look at it from the standpoint of an Ohio lawyer, is the only way it could happen.

So, in Stark County, after the Un-American Activities Commission met, and I might say, as a matter of state law, they were validly met.

And the record will show on page 45 that it is just not true that the Chairman of the Committee admitted on cross-examination that they were there only to expose.

The question was asked on page 45, and it was a tricky question, So that, when you stated a moment ago that the purpose — that couldn’t be the purpose because the law had already passed, and above that, that as far as passing legislation, that was not the purpose of the Committee, was it?

Samuel Levine, who was later elected prosecutor and is now serving in the Congress, answered correctly, To pass legislation?

question he asked.

No, that wasn’t the purpose of the Committee, and he goes on to explain, The purpose of the Committee was to gather evidence and recommend legislation.

I submit to the Court that that is rather a farfetched attempt to prove that the Committee was admitting that it wasn’t there to investigate legitimately.

He simply tried to give a truthful answer under oath that this Committee isn’t going to pass any legislation.

Alright, what happened then in Stark County?

Earl Warren:

Mr. Putman, while we’re getting this background, may I —

Norman J. Putman:

Yes, sir.

Earl Warren:

— interrupt you before you get into the other.

Now, you say that this was — was a commission as distinguished from a legislative committee.

Norman J. Putman:

But it was later held —

Earl Warren:

Yes.

Norman J. Putman:

— by the Supreme Court of Ohio —

Earl Warren:

Yes.

Norman J. Putman:

— to be a select committee.

So they —

Earl Warren:

Yes.

Norman J. Putman:

— held that the immunity statute did apply and that they were authorized on this.

Earl Warren:

Yes.

Now, all I want — all I want to ask you is whether that holding of the Supreme Court was before or after the hearing that these people had for which they are now held in contempt.

Norman J. Putman:

Sir, that hearing was later.

Earl Warren:

The hearing was after the Supreme Court had —

Norman J. Putman:

No, no, no, Your Honor.

At the time the witnesses were asked to appear and testify and required to take their chances, they did not have the benefit of the rule of the highest court of the State.

Earl Warren:

Yes.

Norman J. Putman:

There’s no question about that.

Earl Warren:

Yes.

Norman J. Putman:

hey were on the spot.

Earl Warren:

Yes.

Well, now, this — this language, if — this language is rather explicit, and I’m wondering if, in the absence of — of such a holding, if they wouldn’t be entitled to rely on this language because it says “except a person who, in writing, request permission to appear before a committee or subcommittee of the General Assembly or be their House thereof or who, in writing, waives the rights, privileges and immunities granted by this section, the testimony of a witness examined before a committee or subcommittee shall not be used as evidence in the criminal proceeding against such witness.”

Now, it says nothing about the Commissions in there and would not a private citizen, in the absence of a — of a rule by the Supreme Court, be entitled to — to say that this meant what it said, a — a committee or subcommittee of the Legislature?

Norman J. Putman:

Well, not only would a private citizen would be inclined to feel that way but Judge Kingsley Taft of the Ohio Supreme Court felt that way in his dissenting opinion in 164 Ohio St.

Earl Warren:

Yes.

Norman J. Putman:

I simply point out to the Court that that is, so far as the applicability, and I understand not so far as due process is concerned but so far as the state law is concerned, that has been resolved in favor of the State 4-to-3.

Earl Warren:

Yes, but after — after this one?

Norman J. Putman:

Absolutely, Your Honor.

Earl Warren:

Yes.

Norman J. Putman:

And not only that, they — they still didn’t convince one of the judges of the Supreme Court of Ohio that it applied.

He dissented.

I’m simply throwing —

Earl Warren:

Yes.

Norman J. Putman:

— that in, in support of your question.

Earl Warren:

Yes.

Norman J. Putman:

The state law is clear, however, and was understood, and was understood generally, by lawyers that immunity in Ohio community statutes, which read in that language, are like a cloak that come over you when you sit down in the chair or when you stand up and take the oath, that it requires a specific written waiver to divest yourself of the immunity.

It’s a dangerous thing for a prosecutor to use because he has to be careful who he calls in and bathes in immunity.

However, that’s the law of Ohio but as a matter of fact, there was a question in the mind of these people as they testified before the Un-American Activities Commission as to whether they had immunity by reason of the sequence of the ruling.

Norman J. Putman:

However, in this particular hearing, to get right now to the Raley and Stern business, this is an entirely different situation here.

The facts are set forth in our brief, and they’re short.

This hearing was held in the Stark County courthouse and all five of these defendants were called into Judge Graham’s courtroom together.

Where, was assembled a number of people who wanted to witness this procedure.

All five witnesses were there, and they were represented by quite competent counsel.

Everyone was present at the time that everyone else testified.

Mrs. Furry represented all but one of the witnesses and Mr. Scribner, who was before the bar of this particular Court in the Barenblatt case, represented Mr. Slagle.

Mr. Pollak, one of — one of the witnesses associated with Mr. Scribner — one of the lawyers associated with the Mr. Scribner represented the other witness.

They were all informed at the beginning of this hearing, and the record before the Court shows it, that it was the ruling of this Commission that the immunity statute applied because the court in Franklin County had said so that the witnesses were to understand they were given immunity automatically by a hearing, that they could not incriminate themselves under state law.

They were given immunity.

And that the Fifth Amendment, as a privilege, would not be recognized, and they were expected to answer.

John M. Harlan II:

What page is that on the brief?

Norman J. Putman:

The first witness, Mrs. Perry — well, State’s Exhibit K begins at page 87.

Hugo L. Black:

Page what?

Norman J. Putman:

At page 87 of the record begins the transcript.

John M. Harlan II:

This is at the beginning —

Norman J. Putman:

Yes, page 90 — page 90 of the record here.

They asked Mrs. Perry what’s her husband’s name.

Mrs. Perry says I’m asking you why my husband’s name is pertinent.

The questioner says For the purpose of identification.

You have indicated that you are married, etcetera, and that’s why we want to know what your husband’s name is.

If you choose to answer on the basis that such an answer will make you subject to federal or state prosecution, I only point out to you that, possibly, your counsel has already called your attention.”

A decision handed down recently by the Common Pleas Court of Franklin County which states that a witness may not avail himself of the amendments of the federal constitution in a hearing before a state commission, before which the State of Ohio to grant immunity for prosecution for any offense except perjury.

“Has your counsel already called that to your attention?”

Answer, My counsel has informed me on this, but that’s only the opinion of one judge.

John M. Harlan II:

Was each witness so informed?

Norman J. Putman:

All were present, Mr. Justice Harlan.

At the time the statement was made, all heard the questions and the directions to the other.

John M. Harlan II:

Where does it show that?

Norman J. Putman:

The record does not affirmatively indicate in that language that that is the fact.

Norman J. Putman:

However, the — the record indicates, by the sequence, that one follows the other, and it may well be that there is a failure of this particular record to affirmatively indicate, such as the record does when they say a quorum — let the record show a quorum is all present.

I have not been able to find that the record affirmatively indicates that all five defendants were present, except that I believe that counsel will recognize that it was a fact on — as a matter of fact —

Earl Warren:

I — I thought Mrs. Furry told us it was not the fact, that there were two of them — two of them, they asked that Slagle, Mladajan and Cooper, is that right, were not present?

Is that what the counsel stated that —

Norman J. Putman:

I didn’t understand her to say that, Your Honor.

Earl Warren:

Well, I —

Norman J. Putman:

But I want it to be clear that I don’t know — because —

Earl Warren:

Yes.

Norman J. Putman:

— I was not there, and I’m not representing anything to the Court.

Earl Warren:

And the record doesn’t show.

Norman J. Putman:

And the record does not affirmatively indicate that.

Earl Warren:

Yes.

Norman J. Putman:

That’s correct.

Hugo L. Black:

Mr. — may I ask you, suppose they did tell them that and suppose a court of pleas court in Franklin County had previously held that.

Would that ever stop the county prosecuting attorney from prosecuting them with the Supreme Court’s interpretation that they did not — that the — that it gave to the act?

How would they know that the Supreme Court would hold that?

Norman J. Putman:

Well, let me concede, sir, that they would have no way of knowing that.

Hugo L. Black:

And there was a room for, and there was, a very sharp cited opinion, Mr. Putman.

Norman J. Putman:

There’s no —

Hugo L. Black:

Was there anything unreasonable about the lawyers telling her that you can’t rely on this judge — this one opinion of this one judge when this is a committee of a — of a legislature?

Norman J. Putman:

I find nothing unreasonable about that feeling.

Hugo L. Black:

Wouldn’t it been a —

Norman J. Putman:

I’m in sympathy with the person, as a matter of fact.

Hugo L. Black:

Wouldn’t it been a very — wasn’t it have been a very natural advise —

Norman J. Putman:

Absolutely.

Hugo L. Black:

— for a lawyer to give this to him?

Norman J. Putman:

Yes, Your Honor, and that — that is one of the substantial questions involved in this case.

What I’m trying to do here —

John M. Harlan II:

Due — due process question in this case —

Norman J. Putman:

Yes, Mr. —

John M. Harlan II:

— is whether a right or a wrong about the immunity statute, these witnesses were put on fair notice that the Committee wanted an answer.

Norman J. Putman:

That’s — that’s correct.

John M. Harlan II:

That’s the due process question —

Norman J. Putman:

That’s what I’m trying to —

John M. Harlan II:

— that’s all there is to it, isn’t it?

Norman J. Putman:

That’s what I’m trying to demonstrate here.

Hugo L. Black:

Well, why is that the only question?

If the record shows that the law, as it then stood, remind that 90% of the lawyers, for instance, did not grant the power to grant immunity, why were they compelled to act on the basis that the Supreme Court would hold the contrary, if the record shows that?

Norman J. Putman:

Well —

Hugo L. Black:

Due process requires a fair proceeding before anybody goes to jail, I suppose.

Norman J. Putman:

I — I believe that’s true.

Hugo L. Black:

And the record does show that, as I understand, they put on the stand, they were told, You have immunity.

The lawyer took the position, We don’t have it.

Although one judge has said so, we don’t know that at all, and they still refuse to answer.

Norman J. Putman:

That is correct.

And there is a substantial question involved in that which I would like to get to, it being, that even if it were true, it was not a grant of immunity from federal prosecution.

And these questions were directed specifically about Communist activities.

This was an — this was a Barenblatt type of question being propounded to the witness directly about Communist activities, your Communist activity at Ohio State University, your membership in the Communist Party, your working for Communist Party members who are candidates for office.

It was a direct inquiry into Communist affiliation.

An answer to which would have incriminated them under federal law under the Knapp versus Schweitzer and Raley.

Hugo L. Black:

And under the law as a normal person would have read it in Ohio.

Norman J. Putman:

As a normal person might have reasonably read it, yes, Your Honor.

Hugo L. Black:

It would have incriminated them.

I mean, they — they couldn’t know that they wouldn’t be prosecuted if they admitted it.

Norman J. Putman:

If — if a failure to understand the law correctly is held to be a defense, that is true.

Hugo L. Black:

Well —

Norman J. Putman:

However —

Hugo L. Black:

— there might be a difference, might there not?

Norman J. Putman:

Yes.

Hugo L. Black:

And a case where you want to — you’ve got to prove that some person will willfully do it and something, you have to do prove that in Ohio?

Norman J. Putman:

No, Your Honor.

That’s what I was trying to develop.

Hugo L. Black:

You don’t have to prove that they willfully defied the Committee?

Norman J. Putman:

If the Court please, the point involved in — in this case and which was discussed in the note at page 444 of 360 U.S. in the Raley cases was that, under the Ohio law, as announced in the opinion below, it is not necessary to show a willful or deliberate refusal.

These cases are brought under the civil contempt of court statute which simply says a failure to answer the question results in the infraction of the rule.

This was not in —

Hugo L. Black:

What could be done to the person who does that?

Norman J. Putman:

They can be put in — they can be incarcerated.

There’s no question about that.

Hugo L. Black:

You mean in jail?

Norman J. Putman:

Yes, sir.

Hugo L. Black:

Well, then there’s much — much difference what they call it, does it?

Norman J. Putman:

I see no difference —

Hugo L. Black:

The result is they could be —

Norman J. Putman:

— Mr. Justice Black.

Hugo L. Black:

— put in jail.

Norman J. Putman:

Yes, sir.

Hugo L. Black:

And they could have been if the Court hadn’t —

Norman J. Putman:

Given them immunity.

Hugo L. Black:

— contrary to the dissenters’ view, which sounded rather natural and normal view to me, if they hadn’t, contrary to his view, held that it meant that they conclude something besides what it said on its face.

Norman J. Putman:

That is — that is what was involved in the mind of the person answering the question.

And there’s no — there’s no doubt about that, except that, as a matter of law in Ohio, the Ohio Supreme Court held that as a matter of Ohio law, you are charged with the knowledge of the law as of right now, no matter what the Court in the future says it’s going to be.

And I recognize that there is a federal due process question involved in that.

I’m simply trying to get the fact picture straight as to —

Hugo L. Black:

Yes I — I understand that.

Norman J. Putman:

— as to how it came up.

Hugo L. Black:

I understand that —

Norman J. Putman:

Now, then —

Hugo L. Black:

— in your presentation.

Earl Warren:

Mr. Putman, may be you gave us the page but if you did, I — it escaped me, the — the page where the judge had been — page of the transcript where the judge had them in his chambers before the hearing and told them about the waiver of immunity and so forth.

Norman J. Putman:

Our understanding is that that took place — that conference took place not at the criminal trial, but at the hearing before the Commission, on page 90, where there was a discussion of —

Earl Warren:

90?

Norman J. Putman:

Yes, a discussion of the — of the ruling of the Common Pleas Court.

Earl Warren:

Now, let’s see what — what that language is.

I’m asking your husband’s name and you have given the answer which indicates there is something about mentioning your husband’s name that would tend to incriminate or degrade you.

Of course, you — you know best what the relationship with your husband is.

If you choose to refuse to answer on the basis that such an answer would make you subject to federal state prosecution, I will only point out to you that, possibly, your counsel has already called to your attention a decision recently handed down by the Common Pleas Court of Franklin County which states that a witness may not avail himself of the amendments to the federal constitution in a hearing before a state commission, before which the State of Ohio is granted immunity for prosecution for any offense except perjury.

Has your counsel called that to your attention?

Norman J. Putman:

Let me —

Earl Warren:

Now, you say that — that is the place?

Norman J. Putman:

No, Mr. Chief Justice.

Earl Warren:

Well, I thought that —

Norman J. Putman:

Let me correct my mistake.

When I said to the Court that all of the witnesses were in Judge Graham’s courtroom, I meant the large courtroom in which the trial took place for the purpose of the conduct of the question and answer period.

I did not intend to convey any impression that everyone was huddled into Court’s private chambers in a conference ensued between the defendant and their counsel.

It has been our information from a reading of this record that the different witnesses were present while each other were being questioned during the hearing, the formal open hearing under oath, and that they had an opportunity to learn, having been represented by common counsel that the witnesses were being informed that the immunity statute applied by the Common Pleas Court’s ruling and that the Commission wanted answers.

That’s the —

Earl Warren:

Well —

Norman J. Putman:

— only statement that I am —

Earl Warren:

I understood you also to say that the Commission had resolved that — that they could not be prosecuted and — and that no prosecutions would result if they did testify.

Norman J. Putman:

I have found no such resolution in the record of this case —

Earl Warren:

Yes.

Well, I —

Norman J. Putman:

— Mr. Chief Justice.

Earl Warren:

— I misunderstood what you said then.

Norman J. Putman:

Well, it’s probably my fault.

I’m — I’m simply — as a matter of fact, the Commission made no resolution that I know of in this particular hearing throughout the record as such.

There are notations where there have been specific directions to answer.

Let the record show a quorum is present.

And I have those noted.

Norman J. Putman:

The — the witnesses Cooper — the witness Cooper was ordered to answer a question at record page 134, at record page 135 and at record page 130.

Olga Perry was ordered to answer a question at record page 91.

William J. Brennan, Jr.:

Mr. Putman.

Norman J. Putman:

Yes, sir?

William J. Brennan, Jr.:

What issues are before us in this case?

Norman J. Putman:

The issues that —

William J. Brennan, Jr.:

Laying aside your reliance, if you will, upon the equally divided vote in Stern as settling the validity of the Commission.

Norman J. Putman:

The issues in this case are, first of all, whether the privilege against self-incrimination afforded by the Federal Constitution is a privilege and immunity of federal citizenship, whether it is part of due process as — as binding on state courts under the Fourteenth Amendment and whether, as a matter of fact, Knapp versus Schweitzer, which authorizes that sort of whiplashing, ought to be overruled.

That’s a substantial issue in the opinion of a prosecuting attorney about a rule of law that, as a matter of fact, is very little, if no, help at all in obtaining of evidence for the prosecution of crime because unwilling witnesses are no help to you.

That’s substantially involved in this case because three of these witnesses were directly ordered to answer questions.

They were told they had immunity, and they said, We don’t want any of that state immunity business because you’re asking us about questions for which we could go to the federal pen under the Smith Act, and I think that’s a substantial federal question that the defendants are entitled to raise and have preserved in the record and have borne their burden of proof on appeal which they did not do in the Raley case.

The second issue that I believe is involved in this case is whether the Ohio Commission is allowed to ask these questions of this type.

I think that is settled by the Uphaus case, which was reported in the same volume as the Raley case and the Barenblatt case.

Thirdly, there is involved because the first witness, Mrs. Perry, took the First Amendment, as well as the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendment, whether there is involved some question about her rights of freedom to assemble, free speech, free religion, to petition the Assembly, all of these questions that were discussed yesterday afternoon.

I think that’s involved in Mrs. Perry’s case as to whether or not this fact situation is a Barenblatt type of situation where the questions are directly about Communist affiliation or whether it’s a Sweezy question where they ask you about a speech or a lecture at a university and your membership and the progress report.

That’s in this case, in Mrs. Perry’s convictions.

Also in this case is the question of whether or not they have expressed a legislative interest for an inquiry and whether they have articulated it to the person summoned in every single question for which there is a conviction.

The thing that makes this complicated is that there are five defendants, there were 10 counts in each indictment and, although the judge found the defendants not guilty on some counts, there are a number of different counts in a number of different questions.

And you can have quite a field day in the Court of Pleas.

William J. Brennan, Jr.:

Well, do we have to isolate the questions as to each of the five witnesses?

Norman J. Putman:

I don’t see how the Court can avoid it, and —

William J. Brennan, Jr.:

Now, what were the sentences, concurrent on all those counts as to which (Inaudible)

Norman J. Putman:

They were all concurrent, and they were all properly pronounced.

William J. Brennan, Jr.:

So that any one is good.

Norman J. Putman:

That is correct.

William J. Brennan, Jr.:

Each conviction.

Norman J. Putman:

They were all concurrent.

There were five to 10 days in the county jail and a fine of $500.

It was the maximum sentence allowable under the state law.

There is also —

Earl Warren:

Did the judge — did the judge give concurrent sentences on each one of the counts or did he just say six months for — for your offenses?

Didn’t he just give an aggregate sentence as distinguished from saying I give you six months in the first count, six in the second, and so forth and saying they’ll be served concurrently?

Norman J. Putman:

What the Court has in the record is neither the verbal pronouncement of sentence which you had yesterday nor the written journal entry of the sentence which was discussed yesterday in Court but a written opinion of the Court declaring his — his present state of mind that the defendants are guilty and that in the future, he will call them in and sentence them.

The record before this Court does not reveal whether the sentences were concurrent or consecutive, unless some counselor has made some statement to that effect in his brief.

But the record does not show either the verbal pronouncement to the defendant from the bench of his sentence, nor the journal entry.

And in Ohio, Courts of Record speak only through their journal.

They do not speak from the bench.

And if it is not on the journal by journal entry, it does not exist.

The Court has no jurisdiction to sentence verbally.

If it does not appear as part of the owner’s journal under state law, the defendant is not sentenced.

Earl Warren:

Well, what —

Norman J. Putman:

That’s (Voice Overlap) —

Earl Warren:

— does the journal show in this case?

Norman J. Putman:

I’m sorry, sir.

I don’t know what the journal shows, except I’m satisfied that it shows concurrent sentences, that there was no attempt to attack these on one after another.

William J. Brennan, Jr.:

But do we have to consider each of these sentences on each of the five witnesses on — if it doesn’t show that they’re concurrent?

Norman J. Putman:

I — I do not believe that there’s any way out of it.

And I believe the questions are substantial federal questions that the defendants are entitled to — to have answer.

And they’re different questions.

They invoke each of these cases on page 425 of 360 U.S., for the Court enumerates the questions in the Morgan and Raley case that were not necessary to decide because the burden of proof about raising it in the lower court had been met.

I’m simply conceding here that it certainly has been met and the Supreme Court of Ohio has ruled on it.

Charles E. Whittaker:

May I ask, what is it that you ask us to do?

Norman J. Putman:

I feel bound, as an officer of this Court, to submit that the convictions are valid under the present state of the pronouncements of this tribunal under the direct authority of the Stern case.

If Stern can go to jail in Ohio, as a result of one of these Un-American Activities Commissions, I submit that that is authority for us to urge the affirmance.

What I ask, as a prosecuting attorney of the Court due, is decide the issues with respect to this immunity from federal prosecution versus state prosecution because it troubles us and gives us difficulty repeatedly in our proceedings.

William J. Brennan, Jr.:

Well, you sound to me as if you thought the immunity ought to extend to both federal and state prosecution.

Norman J. Putman:

I — your — Mr. Justice Brennan, I would not —

William J. Brennan, Jr.:

I don’t mean to embarrass you.

I just say you —

Norman J. Putman:

I’m not embarrassed.

Norman J. Putman:

It should extend, yes, to both federal and state prosecution or there ought to be no ability on the part of a law enforcement officer to compel testimony.

Getting to the Attorney General’s place in Ohio, I might point out our experience.

The Attorney General came into Ohio last summer and put a Negro in jail and said, You put the finger on somebody for bribery or sit there until you put the finger on him.

He says I’m not going to because I might incriminate myself.

The judge said, You can’t take the Fifth Amendment because we have a state immunity statute.

He said, Well, I’ve got a federal income tax to worry about.

And he said, You sit in jail.

Well, he sat in jail overnight and finally, he put the finger on a police sergeant for $10 for three years ago, sometime in October.

The Attorney General took the case to the trial court and the jury acquitted the defendant in 10 minutes on the first ballot.

That’s the kind of testimony you get from compelled witnesses.

Immunity statutes are terrific for prosecutors to clothe willing accomplice witnesses.

But the value of the Knapp versus Schweitzer rule so outweighs horrible prays of federalism that we pay for it in embarrassment.

Everyone looks at Perry and Mason, and they say You prosecutors are all alike.

You do terrible things to defendants.

And I do not ask you.

Since you have asked me, what I will say, frankly, is of no value to us.

I am much more concerned as a prosecuting attorney about exclusionary rules and things of that type that are not in this case where we have reliable evidence which would be helpful as a matter of truth.

Those are the things that — that we get concerned about, and so I don’t urge to plead on the basis of hamstringing the police to preserve Knapp versus Schweitzer, and I’m glad I got the chance to —

William J. Brennan, Jr.:

Well, it’s very resourceful.

Norman J. Putman:

— say that without abandoning my obligation.

I would like to see that issue decided in this case rather than on some narrow ground, since the Court has inquired of me.

And I believe that those issues are fairly raised by the defendant in this case, and I think they’ve been rather thoroughly discussed here.

If there are no —

Earl Warren:

Mr. Putman, you’ve been very frank with us, and I — I do want to get this — this straight in my — my mind though.

Now, at the — at the time these people testified before the Committee or rather refused to testify before the Commission, there was no ruling of your Supreme Court to the effect that this immunity statute embrace commissions, as well as committees and subcommittees of the Legislature.

And all these people had before them, so far as the basic law of your State was concerned and the rulings of your Supreme Court, the language of the section which limited it specifically to committees and subcommittees of the — of the Legislature.

Now, is it not the — is it not a real issue in this case as to whether those people had a right to rely upon a plain language of the — of the statute in refusing to — to testify on the grounds that their testimony might incriminate them?

Norman J. Putman:

Mr. Chief Justice, I had not seen that issue in this case, previous to this morning.

And I’m not satisfied, as I stand here, that it’s any more than a question of fact under the state law as to whether or not the person was, as a matter of fact, in contempt of the Commission.

There may be a due process question involved in the entire concept of ignorance of the law being no excuse under certain circumstances, I don’t know, but that’s the way the thing is handled in Ohio.

Earl Warren:

Well, I’m talking out — about the plain reading of the statute.

Now, if it was — if it was other than the plain reading of the statute, it might be a different situation.

But — but this statute reads Any — any witness who is called before a committee or a subcommittee of the Legislature is given immunity, and you have told us that this body that they refused to testify before was consciously made a commission and not a committee or subcommittee of the legislation — Legislature for a specific purpose.

Norman J. Putman:

That’s my understanding, Your Honor.

Earl Warren:

Yes.

Alright.

Well, now, if — if that is true, is there any reason on earth why they aren’t entitled to rely on a plain and obvious reading of that statute?

Norman J. Putman:

Except that they were informed that the law had been decided in Ohio, previous to that day, contrary to that position.

Earl Warren:

Well, by a Court of Common Plea, your Common Pleas Court.

Then — then where does that — where does the Court of Common Pleas stand in the hierarchy of the courts?

Norman J. Putman:

Well, for purposes of security to these witnesses giving answers, nowhere, Mr. Chief Justice.

They —

Earl Warren:

That —

Norman J. Putman:

— they aren’t binding for some —

Earl Warren:

It isn’t a bind — it isn’t a decision that’s binding all over the State, is it?

Norman J. Putman:

When you talk about due process and the security in the mind of the individual that he has a right to rely, he can’t rely on the Court of Common Pleas of any county in the State of Ohio because he may be — it may be reversed by the —

Earl Warren:

Yes.

Norman J. Putman:

— Supreme Court.

Earl Warren:

Yes.

Norman J. Putman:

I may have painted the picture a little too black in talking about the general understanding of the difference between commission and committee, but I’m frank to point it out because it did trouble the Justice — Judge Taft in his dissent in the state court, that he didn’t think that the immunity statute applied and he didn’t even think, as a matter of fact, that the indictment was properly raised —

Earl Warren:

Yes.

Norman J. Putman:

— in the Morgan and Raley cases because it punished contempts criminally by committees.

It was generally understood, though, at the hearing by people.

They were told, the witnesses, that this was a subcommittee within the meaning of this rule, and they had immunity.

But I do not deny for a minute that your point is valid that the witness had no right to rely on that.

Earl Warren:

And I — I presume that if, subsequent to this hearing, the Supreme Court had held otherwise that the language of the section when it said a committee or a subcommittee meant a subcommittee or a committee and nothing else, that they could not then be punished for contempt, could they?

Norman J. Putman:

Well, if the Court — Supreme Court of the State had held that the Common Pleas Court was wrong and that, thereafter, they could be prosecuted and they didn’t have immunity, of course, that would have indeed been a due process situation.

Earl Warren:

Yes.

Well, that’s what I meant.

Norman J. Putman:

And I suppose, in that sense, they might have had a right to rely on the federal due process clause, but that’s — that’s asking a defendant before a — or respondent to assume a lot by way of what might happen to him in the — in the future.

Hugo L. Black:

Is the Franklin County case published?

Norman J. Putman:

All of these cases, as I understand you to mean, Franklin County cases are reported.

Hugo L. Black:

The one —

Norman J. Putman:

Excuse me.

Hugo L. Black:

— the one where the report was made.

Norman J. Putman:

You are talking about the one that was — that was enunciated to the witness —

Hugo L. Black:

That’s right.

Norman J. Putman:

— at the time of the hearing.

Earl Warren:

Are those reported cases?

Norman J. Putman:

Oh, yes, Your Honor.

That is reported somewhere, but I don’t have it here.

Hugo L. Black:

They are not published in the record, are they?

Norman J. Putman:

It is not in the record, to my knowledge.

Earl Warren:

Well, are they published cases in (Voice Overlap) —

Norman J. Putman:

In every library, Mr. Chief Justice.

I’m sure of that.

Hugo L. Black:

But you —

Norman J. Putman:

Under Ohio —

Hugo L. Black:

— there was a note to them from one of you after the case was decided.

Norman J. Putman:

I should like to be permitted —

Hugo L. Black:

It may not be material, but —

Norman J. Putman:

— to —

Hugo L. Black:

— I’d like to see them myself.

Norman J. Putman:

— to do that.

If the Court would desire to have some further assistant by way of supplementary briefs and just sorting out who was directed to answer, what and what questions apply and research through all these different defendants.

I’d be glad to do that.

I don’t want to —

William J. Brennan, Jr.:

Speaking for myself, I think that would be very helpful, Mr. Putman, because it’s quite impossible on what’s presented to us now.

Norman J. Putman:

It would require quite a bit of individual research on the parties for each member of the Court.

Earl Warren:

Yes.

Earl Warren:

May I ask this, could you — could you and counsel agree upon whatever you send to us in that regard, do you think?

Norman J. Putman:

I don’t think that would be difficult —

Earl Warren:

Yes.

Norman J. Putman:

— to do.

Earl Warren:

Would you — would you do that jointly then for us?

We’d appreciate it very much, Mr. Putman and Mrs. Furry.

Norman J. Putman:

Alright, sir.

Earl Warren:

Thank you.

You’ve been very frank with us, Mr. Putnam.

Norman J. Putman:

Thank you.

Earl Warren:

We appreciate it.

Norman J. Putman:

Thank you very much, Your Honors.

Earl Warren:

Mrs. Furry.

Thelma C. Furry:

I just want to try to clarify essential statements that I think Mr. Putman is a little bit confused on.

He was not present at the time of the hearing before the Commission.

I was.

I was counsel for four of the defendants.

The kind of courtroom that the hearing was held in was like any Common Pleas or Court of Appeals court where the judge has been to sit upfront and the tables in the center here and seats in the back of the room, quite a large courtroom.

The witnesses were all subpoenaed for the same day but whether they all came into that courtroom at the same time, I honestly could not say, and there’s nothing in the record that indicates that they were all there listening to each other testify.

Witnesses could have — they were all there that day, and they became present and were sworn in when they were called by the Commission to answer questions.

But whether or not each one listened to what the other one was being asked and so forth, I do not know and the record doesn’t know because I was upfront with my witnesses at the time they were before the Commission.

And what the other four witnesses were doing at that time, I have no way of knowing, and I’m sure Mr. Putman has no way of knowing.

Now, as to whether —

William J. Brennan, Jr.:

Was it in Campton?

Thelma C. Furry:

Campton, Ohio.

As to — I think Mr. Putman is also a little bit confused about what this Commission told these people about immunity.

They, at no time, offered any witness immunity.

The record indicates this at the bottom of page 90, which Mr. Putman showed —

William J. Brennan, Jr.:

But I — I thought — I thought your Supreme Court said that an offer of immunity was unnecessary that, automatically, the statute accorded immunity without offer.

Thelma C. Furry:

That decision was made subsequent to this, Justice Brennan.

Thelma C. Furry:

This — this hearing took place in October of 1953.

The Ohio Supreme Court made that pronouncement in February of 1956.

William J. Brennan, Jr.:

Well, did the — was that — was that the gist also of the Franklin County Common Pleas decision?

Thelma C. Furry:

No, it was not, Your Honor.

It was not that broad.

And by the way, for the Court’s enlightenment, I don’t know if you keep records or not but in the Morgan record that was before the Court in the October term of 1958, that’s Number 463 here in your Court, this judge —

Hugo L. Black:

October term 1958, Number 463?

Thelma C. Furry:

Number 463, this Judge Bryant’s opinion is in the record in full.

I do not believe that — that Judge Bryant’s, that’s that Common Pleas judge who made this opinion in Franklin County, I do not believe that his opinion is recorded — are recorded in any law book.

But you will find it in this, in the Morgan —

Earl Warren:

Now, where is that again, please?

Thelma C. Furry:

That is in the transcript of the record in this Court, in the United States Supreme Court, October term 1958, Number 463.

That’s the Anna Morgan versus the State of Ohio.

Now, his opinion is in there complete.

The —

Charles E. Whittaker:

His import — his name was what?

Thelma C. Furry:

Judge Bryant, B-R-Y-A-N-T, and his decision was rendered on October the 13th, 1953.

This hearing was held on October 21st, 1953, about a week later.

On page 90, which Mr. Putman already called to your attention, is the first reference that this Commission made to the immunity statute by calling the witnesses’ attention to the fact that Judge Bryant had made this decision in Franklin County.

And then later, with witness Paul Bohus, on page 111 of this record before the Court now, the attorney for the Commission said this, after Paul Bohus said, I invoke the Fifth Amendment, he said, the attorney said, at page 111 in this record at the bottom of the page, I’m going to assume that your counsel has fully instructed you in the effects of this decision by Judge Bryant of the Franklin County Common Pleas Court and has also instructed you about your rights under the state and federal constitutions.

Is that — that is correct, isn’t it?

The answer by the witness was Counsel had instructed me on that, but my own belief is that it’s the private opinion of one judge and my rights under the Fifth Amendment had guaranteed me the position I have taken on that question.

The counsel goes on and says I suggest that you discuss with your counsel that if a ruling by Franklin County Common Pleas Court in a criminal case can be classed as a private opinion of one judge, you may find it has a more far-reaching effect.

The witness answers, after conferring with his counsel, It is not a matter of private opinion, but it is just one man’s opinion.

Now, that was the only two places that this record will show that there was any discussion about immunity, and that was only with Paul Bohus and with Olga Perry, and I submit to this Court that that certainly was not an offer of immunity to either one of these people.

As a matter of fact, at page 92, right after Mrs. Perry, on — at page 90, had declined to answer and he first — the counsel first called the attention of this decision to her, on page 92, he says I may point,” this is the attorney for the Commission himself saying this, I may point out that the ruling of the Court of Common Pleas of Franklin County has ruled otherwise but as you sated in your opinion, that is just one man’s view.

He was agreeing with what the witness had said.

That’s in page 92 of the record.

As a matter of fact, these witnesses were never offered immunity or ever told that this statute of immunity applied to them.

It was merely — this opinion of Judge Bryant was referred to twice.

John M. Harlan II:

Could I ask you a question?

Thelma C. Furry:

Yes.

John M. Harlan II:

Is there any place that you can point as to — in the record if there is any member of the Committee, you said, that these questions don’t have to be answered because it — they will incriminate you or that you don’t have to answer them because there is doubt as to the scope of this immunity statute?

Can you point to any place in the record where either of those things appeared?

Thelma C. Furry:

Where the — where a member of the Commission asked that —

John M. Harlan II:

In that presentation, yes.

Thelma C. Furry:

— if they made such a statement?

John M. Harlan II:

Yes.

Thelma C. Furry:

No, Your Honor.

There is nothing in the record where they made such a flat statement.

Our position merely is that when the attorney for the Commission moved on from one question to the other, after there was a declamation and didn’t — in most cases didn’t direct answer, that he was accepting the offer — the declamation and the reason given by the witness at that time, the privilege.

That is all the — just to — I want to clear the record as to these facts that were discussed by Mr. Putman.

I think there’s some confusion on his part, and I have no further argument to offer at this time.

Thank you.

Earl Warren:

Well, the Court — the Court will appreciate very much the cooperation of counsel on both — both sides in untangling this kind of — of facts for us.

Thelma C. Furry:

Now, — so that we are clear, you want a statement from us stipulated, I presume, by both of us as to the questions asked by each one and which ones were directed to be answered.

Is that the —

Earl Warren:

Yes or —

Thelma C. Furry:

— thing you in the presentation?

Earl Warren:

— or any other — any other comparative facts here that will — will show us the status of the — of the individual defendants before this Court.

Thelma C. Furry:

Thank you, Your Honor.

Norman J. Putman:

Will I need to defend it Mr. Chief Justice?

Earl Warren:

No, no, it need not.

It need not be, if you will just — if you will just have it typewritten and sent to us, that will be sufficient.

So we don’t ask you to write any additional briefs.

If you will just — if you will just make the facts known to us in a rather graphic form, we appreciate it very much.

Norman J. Putman:

Thank you, sir.