U.S. Supreme Court ruling supports Stumbo argument that witness pardoned by Fletcher can not assert 5th. Amendment on basis of possible Federal prosecution

 The United States Supreme Court in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) concluded that a witness who was granted immunity from prosecution in a state criminal action, could be compelled to testify, and that the witnesses argument that he was entitled to assert his 5th. Amendment rights against self-incrimination did not apply, because any subsequent  prosecution by the Federal government could not use the testimony compelled by the state court against the witness in the federal prosecution.  See excerpts from this case below.

In an article published on July 6th. the Louisville Courier Journal  stated:
Attorney General Greg Stumbo has asked a judge to decide whether witnesses at Gov. Ernie Fletcher’s criminal trial may refuse to testify despite a pardon that protects them from prosecution.

Stumbo’s office yesterday submitted a list of 68 people prosecutors could call who might invoke their Fifth Amendment right against self-incrimination. Kentucky criminal procedure does not allow lawyers to call a witness they know will take the Fifth.
Stumbo is arguing that people who have been pardoned are immune from prosecution and therefore cannot incriminate themselves, so they are not eligible to invoke that right.

Lawyers representing some of the people on the list said that when Fletcher issued the pardon last August, Stumbo decried the move and said he had been in touch with the FBI about possible federal crimes.

“As long as these folks have the cloud of a potential federal investigation looming, they certainly have the right to claim the Fifth Amendment,” said Frankfort lawyer Guthrie True, who represents six people on the potential witness list who refused to testify before the grand jury that indicted Fletcher.

True said Stumbo’s request is “overbroad” and should be examined to see whether prosecutors acted in good faith to include only those people who are relevant to the case.

In his motion to Franklin District Court, Stumbo asks Special Judge David Melcher to conduct “dry run” hearings on potential witnesses, asking them questions that could come up during trial and determining whether they could legitimately refuse to testify.

“It is the court that must decide whether witnesses that may be called by the Commonwealth may ‘hide behind an imaginary or unappreciable danger or risk’ and invoke the Fifth Amendment in light of the immunity granted by a full gubernatorial pardon,” Stumbo’s filing states, quoting from a 1959 Kentucky Supreme Court case.

Stumbo’s filing addresses the potential for federal prosecution by citing a 1964 U.S. Supreme Court case that states witnesses who are immune from state prosecution can’t have their state testimony used against them in a federal prosecution.

Fletcher has been indicted on three misdemeanor counts of conspiring to place political supporters in civil-service jobs that are supposed to be filled on merit. He pleaded not guilty, and his trial is scheduled for Nov. 8.

Frankfort lawyer Paul Harnice represents Fletcher’s former chief of staff, Daniel Groves, and Fletcher’s former personnel adviser, Basil Turbyfill. Both are on the list, but Harnice would not say whether his clients would plead the Fifth if called to testify.

Harnice said he would advise any client to be wary of saying much if there’s a federal investigation afoot.

“Caution is the better part of valor in that type of situation, especially when you have an attorney general that’s not going to stop at anything,” he said.

Stumbo’s office declined comment yesterday, citing instructions by Melcher that lawyers in the case limit their public comments to statements contained in official court filings.

Fletcher excluded himself from his pardon, and he took the Fifth during his appearance before the grand jury.

Citing Melcher’s instructions, Fletcher lawyer Kent Westberry declined to say whether Fletcher would refuse to testify at trial. Westberry said he had not seen Stumbo’s latest filing.

Corbin lawyer Howard Mann, who represents Transportation Secretary Bill Nighbert, also declined to comment on whether his client would refuse to testify.

“It wouldn’t surprise me if any number of the witnesses did in fact plead the Fifth, based on the attorney general’s comments, which were widely disseminated in the press,” Mann said.

University of Kentucky law professor Bob Lawson said Stumbo has a “pretty good argument” that pardons preclude people from pleading the Fifth.

But the caveat, Lawson said, is whether a potential witness could be prosecuted under another jurisdiction, such as in federal court.

The U.S. Supreme Court has upheld the concept of “use immunity,” which would not stop a person granted state immunity from being prosecuted under federal law, but would prevent any testimony that person gave from being used against them in a federal proceeding, Lawson said.

“The court will have to look at those cases and decide whether or not they are under any real threat of incrimination,” Lawson said.

Reporter Elisabeth Beardsley can be reached at (502) 875-5136.

By Elisabeth J. Beardsley
Reprinted from The Courier-Journal

Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)

Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York.2 Notwithstanding this grant of immunity, they still refused to respond to the questions on the
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ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were thereupon held in civil and criminal contempt of court. The New Jersey Supreme Court reversed the criminal contempt conviction on procedural grounds but, relying on this Court’s decisions Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, affirmed the civil contempt judgments on the merits. The court held that a State may constitutionally compel a witness to give testimony which might be used in a federal prosecution against him.3 39 N.J. 436, 452—458, 189 A.2d 36, 46—49.

          Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.
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                            I. THE POLICIES OF THE PRIVILEGE.

          The privilege against self-incrimination ‘registers an important advance in the development of our liberty—’one of the great l ndmarks in man’s struggle to make himself civilized.” Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511.4 It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 2 Cir., 233 F.2d 556, 581—582 (Frank J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distruct of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964.

          Most, if not all, of these policies and purposes are defeated when a witness ‘can be whipsawed into incriminating himself under both state and federal law even though’ the constitutional privilege against self-incrimination is applicable to each. Knapp v. Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 1310 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of
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‘cooperative federalism,’ where the Federal and State Governments are waging a united front against many types of criminal activity. 5
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          Respondent contends, however, that we should adhere to the ‘established rule’ that the constitutional privilege against self-incrimination does not protect a witness in one jurisdiction against being compelled to give testimony which could be used to convict him in another jurisdiction. This ‘rule’ has three decisional facets: United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, held that the Federal Government could compel a witness to give testimony which might incriminate him under state law; Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, held that a State could compel a witness to give testimony which might incriminate him under federal law; and Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, held that testimony thus compelled by a State could be introduced into evidence in the federal courts.

          Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of this rule.6 Our review of the pertinent cases in this Court and of their English antecedents reveals that Murdock did not adequately consider the relevant authorities and has been significantly weakened by subsequent decisions of this Court, and, further, that the legal premises underlying Feldman and Knapp have since been rejected.
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          In light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts17 and by Chief Justice Marshall and Justice Holmes. See United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We reject—as unsupported by history or policy—the deviation from that construction only recently adopted by this Court in United States v. Murdock, supra, and Feldman v. United States, supra. We hold that the constitutional privilege
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against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.

          We must now decide what effect this holding has on existing state immunity legislation. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, this Court considered a federal statute which provided that no ‘evidence obtained from a party or witness by means of a judicial proceeding * * * shall be given in evidence, or in any manner used against him * * * in any court of the United States * * *.’ Id., 142 U.S., at 560, 12 S.Ct., at 197. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said ‘that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.’ Id., 142 U.S., at 585, 12 S.Ct., at 206. Applying this principle to the facts of that case, the Court upheld appellant’s refusal to answer on the ground that the statute:

          ‘could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a crim nal proceeding in such court. * * *’ id., 142 U.S., at 564, 12 S.Ct., at 198,

          that it:

          ‘could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted. * * *’ ibid.,

          and that it:

          ‘affords no protection against that use of compelled testimony which consists in gaining therefrom a
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          knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.’ Id., 142 U.S., at 586, 12 S.Ct., at 206.

          Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra, at 77—78, and that ‘the same standards must determine whether (a witness’) silence in either a federal or state proceeding is justified,’ Malloy v. Hogan, 378 U.S., at 11, 84 S.Ct., at 1495, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.18 This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.

          It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court’s decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal
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prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed. But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this opinion.

          It is so ordered.

          Judgment sustained in part and vacated in part and cause remanded with directions.

          Mr. Justice BLACK concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the reasons stated Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion), as well as Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion); Speiser v. Randall, 357 U.S. 513, 529, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion); Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (dissenting opinion); and Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729 (dissenting opinion).

           Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring in the judgment.

          Unless I wholly misapprehend the Court’s opinion, its holding that testimony compelled in a state proceeding over a witness’ claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, is overruled.

          I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested
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also on a refusal to exercise this Court’s ‘supervisory power’ over the administration of justice in federal courts, I think that it can no longer be considered good law, in light of this Court’s subsequent decision Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In Elkins, this Court, exercising its supervisory power, did away with the ‘silver platter’ doctrine and prohibited the use of evidence unconstitutionally seized by state authorities in a federal criminal trial involving the person suffering such a seizure. I believe that a similar supervisory rule of exclusion should follow in a case of the kind now before us, and solely on that basis concur in this judgment.


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