TRIAL

Volume 12 Number 1 January 1976

American justice has always had

trouble swallowing the notion of immunity. It took a 5-4 Supreme Court decision to give immunity its first constitutional foothold and two periods of national hysteria to make it commonplace But there are growing indications that the criminal justice system might be ready to rid itself of at least the worst aspects of the immunity monstrosity Congress and the courts have foisted on the American people.

Radicals have long charged that forced immunity can be manipulated to make a mockery of the Fifth Amendment, and their apprehensions seem to be increasingly shared by crit Ics from elsewhere on the political spectrum Supreme Court Justice Thurgood Marshall has stated that immunity "authorizes-even encourages interrogation that would otherwise be prohibited by the Fifth

Judy Auner, a graduate of Antioch School of Law in Washington, D.C., and Kathleen Johnson, a graduate of American University Law School in Washington and a member of the Pennsylvania bar, are staff members of the Coalition to End Grand Jury Abuse

Amendment." In 1974 Los Angeles Police Chief Edward Davis was more strident. "Indictments are being generated," he said, "and in my opinion under an unconstitutional law that is in effect a 20th century legal rack and screw.... Your option is to talk or go to jail. You have no option. You have no free choice. If this isn't a clear violation of the Fifth Amendment right against self-incrimination, I have never heard of one."

Even ex-Vice President Spiro Agnew has spoken out: "As things now stand immunity is an open invitation to perjury In the hands of an ambitious prosecutor it can amount to legalized extortion and bribery."

The critique of immunity has penetrated into the halls of Congress, too. The model criminal code recodification introduced by Representatives Kastenmeier, Mikva and Edwards includes no provision for immunity at all. Several congressional representatives have introduced bills that would tightly constrict the use of immunity in grand jury proceedings. Their legis lation would overrule the hastilypassed, far-reaching immunity provi sions of the Nixonian Organized Crime Control Act of 1970. The strongest of the bills, the Grand Jury

Reform Act of Rep. John Conyers (DMich) and 24 of his colleagues, would abolish all forced immunity.

Why all the concern about immunity? The current immunity statute gives a United States Attorney, acting in his/her capacity as advisor to federal grand juries, the right to grant limited "use" immunity to a recalcitrant witness with only the authorization of the Attorney General required. The "use" means that the gov ernment can still prosecute the witness on the subject of the testimony. although it cannot use the actual testimony in the prosecution. "Grant" 15 really a euphemism. The witness has no say in the matter Consider what happened to a young Oakland woman named Cynthia Garvey in 1975.

At the beginning of the year people were starting to wonder why the FBI couldn't find fugitive Patty Hearst With pressure on the red faced Bureau growing, something had to be done. When someone in the FBI came across Garvey, once close to an SLA member, the Bureau was quickly off to interrogate her. But Garvey, holding that the Bureau was manipulating the Hearst search to scapegoat the left, refused to answer FBI questions.

Personally, Garvey had no sympathy for the SLA, and had, in fact, publicly repudiated the organization.

This was borne out when Garvey re

fused to cooperate with the SLA de

fense in a subsequent criminal trial.

Garvey refused to answer the FBI questions her legal right. The FBI had her subpoenaed to appear before a San Francisco grand jury. Again, on principle, Garvey refused to testify. The government then trotted out "use" immunity, despite Garvey's protestation that she knew nothing about the SLA other than what she read in the newspapers.

For this subsequent refusal to testify, she was imprisoned for nine months before being released at the end of the grand jury's term ironi cally ten days after Patty Hearst was apprehended. Jail for silence a frightening concept in American jus tice Armed with immunity, the gov ernment can apparently make offers that cannot be refused.

What happened to Cynthia Garvey was clearly not contemplated by the framers of the Bill of Rights. For them the right against self incrimination was a cornerstone of America's ac cusatorial system of justice, and they meant the words they wrote into the Fifth Amendment: ". nor shall fany person] be compelled in any Criminal Case to be a witness against himself

Indeed, until 1857 the Fifth Amendment provided absolute protection. In that year Congress, motivated

by an urge to facilitate legislative investigations, passed the first federal immunity statute The act protected any witness from "any fact or act touching which he shall have testified. To mounting congressional horror, the act produced a steady stream of immunity "baths." Immunized witnesses, secure in the knowledge that they could not be prosecuted for their testimony, spewed forth on all their crimes, whether or not they were of congressional con

cern.

In reaction, Congress enacted a statute which permitted the prosecution of acts described in a witness' testimony as long as the witness' own words were not used against him or her. Then, in 1868, Congress extended this immunity to a broader range of proceedings

A generation later, the Supreme Court, in its first immunity decision, Counselman v. Hitchcock (1892), struck the 1868 law down The Court found the protection afforded by the statute constitutionally insufficient The Court held:

"No statute which leaves the party or witness subject to prosecution after he answers the incriminating question put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States."

Congress immediately responded to Counselman with the Compulsory Testimony Act of 1893 which provided for the granting of full or "transactional" immunity before Interstate Commerce Commission regulatory nvestigations. In an historic 5-4 decision, a deeply divided Supreme Court upheld the statute in Brown v. Walker (1896). The court majority held that the Fifth Amendment protected citizens only from criminal prosecution. Any other negative fall-out from a witness' immunized testimony - the wrecking of a reputation, for instance, or the loss of a job was not protected by the Constitution's self-incrimination guarantee.

The most forceful refutation of that stance came on the district court level before the case reached the high court. Judge Grosscup wrote:

"Then, too, if immunity was only against the law-inflicted pains and penalties, the government could probe the secrets of every conversation, or society, by extending compulsory pardon to one of its participants, and thus turn him into an involuntary informer."

The 1893 act served as the basis of the federal approach to immunity for the next 50 odd years. What first upset the fragile immunity balance created by Brown was the onset of the Cold War red scare Congressional anticommunist fanatics were outraged

that the Constitution could actually be invoked to challenge their power. Sen. Joseph McCarthy added a new phrase to the political lexicon, "Fifth Amendment communist." After the courts refused to quash the Fifth Amendment outright, Congress, in a typical fit of period hysteria, put to gether the 1954 Communist Control Act, which, among other charming provisions, extended immunity into criminal law for the first time by enabling grants of immunity in treason, sedition and various other kinds of anti-communist statute cases.

While there were words of caution about in the land Thomas E. Dewey warned that "the granting of immuni ty is an extraordinary power which should in all cases be carefully restricted" rabid anti-communism prevailed. In the words of Sen McCarran, the bill would go "a long way

to help expose the Communist conspiracy in this country."

Congressional opposition was slight but prophetic Said Rep Burdick:

"If this Congress, by legislative action, can whittle down the protection guaranteed to a citizen by that [the Fifth] amendment, and thus change or minimize the importance of that part of the Bill of Rights, we are doing it at the risk of losing our independence, and, as I understand and believe, in violation of the Constitution itself."

The constitutionality of the 1954 act was challenged in Ullman v. United States. Although the Supreme Court struck down some of the Act's provisions, the immunity section stood over the vigorous objection of Justice William Douglas "My view," wrote Doug. las, "is that the Framers put it beyond the power of Congress to compel anyone to confess his crimes."

Nevertheless, the 1954 law had successfully given immunity a foot in the criminal law door, and "transactional" immunity became a routine feature of many subsequent bills. In 1968 the Congress consolidated all the immuni ty provisions into 18 USC 2514.

About the same time a new hysteria was brewing, and its catchword phrase was "law n' order." Nixon sought to move it along by declaring a war on organized crime and introducing the Organized Crime Control Act of 1970. This act radically altered past congressional and judicial treatments of immunity by restoring the longdiscredited use immunity. It softened this somewhat by not allowing prints of testimony to be used against the witness as well as the testimony itself. However, proving that one's testimony was not used to gather other testimony is difficult.

Significantly, the act removed the bench's discretion over the immunization process by changing the directive

that the court "may" issue a grant of immunity upon the request of a US attorney to the court "shall "With the switch of a single word the Depart ment of Justice had gained a broad, new power.

Perhaps the inspiration for the Nixon administration's extension of immunity came from the Salvatore Giancana case. Long linked to or ganized crime, Giancana had successfully frustrated attempts to prosecute him. In 1965 two assistant US attorneys hit upon a novel plan for getting Giancana behind bars: Giancana was granted immunity, and when he predictably refused to testify, he was held in contempt and jailed for a year until the term of the grand jury in whose name the contempt had been sought expired A new grand jury could have repeated the process, but the new Attorney General, Ramsey Clark, vetoed the idea.

Clark's misgivings about the punitive use of immunity were not too widespread in Congress. No one wanted the political liability of voting against an "anti-crime" bill, and Nixon's Organized Crime Control Act passed overwhelmingly.

The test case for the act's immunity provisions came two years later in Kastigar v. United States The Supreme Court, with Justices Douglas and Marshall dissenting, upheld "use" immunity Reversing over three quar ters of a century of precedent, the Court contended that "use" immunity afforded all the protection required by the Fifth Amendment. Out of the clearing and into the woods.

Has "use" immunity achieved its stated purpose in the war on organized crime" Professor Leroy D Clark, in his recent book, The Grand Jury - The Use and Abuse of Political Power, found no substance in the argument that forced immunity is needed to fight organized crime. The largest organized crime syndicate (the Mafia), he notes, has between 3,000 and 5,000 members. Between 1960-69 only 235 indictments were returned against 328 alleged members of the Mafia, and these at a time when there were centralized strike forces established in the Justice Department to crack down on organized crime. Why the disproportionately low indictment rate? The Mafia principles would not buckle even when granted immunity or jailed for contempt.

Such absolute obedience to its leadership is a fundamental tenet of the Mafia, in particular, and organized crime in general Even during times of internal warfare, those involved in or ganized crime do not deviate from this principle On August 10, 1975, the New Jersey Supreme Court freed

Gerardo Catena, a reputed Mafia family boss, after he spent five years in prison. The court said it was convinced Catena would never testify about organized crime Catena had been immunized and found in contempt. Criminal loyalty is further reinforced by organized crime's readiness to retaliate against possible informers.

The point is so obvious that a disturbing question arises was the Organized Crime Control Act of 1970 really aimed at organized crime? Or was organized crime a stalking horse to give the Nixon administration new tools to use against its political opponents?

We do know several things. In 1969 the Nixon administration reactivated the dormant Internal Security Division of the Department of Justice and increased its staff tenfold. Soon after the Organized Crime Control Act of 1970 was passed, the Justice Department began a massive grand jury campaign against antiwar and left groups. Paul Cowan, in "The New Grand Jury" in The New York Times Magazine, April 29, 1973, gave this account of the LS.D.'s activities:

"Between 1970 and January, 1973, it had presented evidence to more than 100 grand juries in 36 states and 84 cities. It had subpoenaed between 1,000 and 2,000 witnesses [not people charged with substantive crimes, but simply hose who might know a fact or two that could lead to an indictment] nd compelled them to testify under ath. Hundreds have chosen to stand mute About 30 have been cited for contempt of court."

Immunity was the weapon that made this grand jury onslaught possible, and how the Justice Department used immunity during this period is worth taking a look at. The official Justice Department statistics on immunity for the Criminal Division (of which the IS.D. became a part in 1973) are somewhat less than complete, but they are interesting. For example, for fiscal year 1973, 50% of the grants authorized were actually used, 73% of which were used for witnesses appearing before a grand jury. The remaining 27% were used at trial. Interestingly, only 54% of the grants used contributed to indictment or conviction, although 64% of the witnesses testified as anticipated. Criminal Division requests for immunity increased 173% in that year, with the number of witnesses for whom immunity was authorized increasing by 163 These statistics are certainly telling -the number of authorizations requested and the use of those

authorizations have increased, but immunity was a contributing factor in only one half of the cases. Further, since the records combine indictments and convictions, substantial questions still remain on the effectiveness of immunity in securing grand jury indictments.

One conclusion seems inescapable: the Fifth Amendment has, through the legitimization of "use" immunity, become a vehicle for government harassment of dissent, with possible imprisonment for those who refuse to play the immunity game.

Although the effectiveness of forced immunity is questionable, it is instructive to consider those cases where it might have been a contributing factor in compelling testimony. Did the recalcitrant witness react to the threat of indictment or did she/he react to the threat of contempt? The distinction is of critical importance, for the fear of indictment would lead a witness who has asserted his/her Fifth Amendment right against self-incrimination to testify if immunity is available voluntarily. The coercive aspect of the immunity grant would not be needed to induce such a witness to testify. In addition, in those situations where the government has other incriminating evidence against a witness, it is indeed questionable whether the threat of imprisonment for contempt would induce the witness to testify if she/he has not seen the threat of indictment as an adequate basis for making an immunity deal to begin with. And even where forced immunity coerces testimony that might otherwise be lost, critical questions remain about the legitimate role of the grand jury in investigations as well as the likeli hood of the government having methods of gathering evidence that do not involve shirking off the "burden" of the Fifth Amendment. Take the example of John Dean, a culprit against whom the government had incriminating evidence In an effort to save as much of himself as possible, Dean wanted to testify and he voluntarily accepted "use" immunity. Where a witness has the desire, for whatever reason, to testify, she/he is quite capable of weighing the situa

tion

The Yale Law Journal, in an article entitled "The Federal Witness Immunity Acts," summarizes the conflict:

"The continued existence of immunity acts can be justified only if the assistance they provide government organs in obtaining information necessary to the performance of their functions outweighs the possible harm they do to the government through unintended grants of immunity-and to individuals by subjecting them to

social stigma, and perhaps, to painful, 'remedial' sanctions."

There are few who would take the position that the government should not be aided in most of their attempts to investigate criminal activity However, the existence of governmental power to force immunity on a witness has, in recent years, become such a threat to our cherished freedoms, that the demonstrably limited circum stances in which it is an effective investigative aid must be weighed against the most basic constitutional protections that have been eroded through its misuse.

An additional objection to the concept of immunity is the fear of widespread immunity baths. To alleviate these apprehensions, the Conyers bill, HR 2986, includes a requirement that at least twelve members of the grand jury vote affirmatively for the offer of immunity.

Grand jurors, being apolitical, do not have an ax to grind, nor would they be motivated by high political aspirations. That being the case, the grand jury provides an invaluable check on a prosecutor who would grant immunity to all the small fish in order to catch the big one. The grand jury, in fulfilling its obligation to conduct an inves tigation, would also seriously consider whether a witness' testimony is critical enough to grant him/her complete absolution. If at least 12 people feel that way (as opposed to the one required now), the grant is most probably warranted. After all, the vote of 12 peers (in some states even less) is sufficient to deprive a person of his/her liberty.

At this point we are at a crossroads. Watergate has permanently etched on our minds the principle that individual constitutional rights must be safeguarded, that governmental officials must not overstep the bounds of the Constitution and encourage governmental illegality itself. The ease with which the government can abuse its tools has been poignantly demonstrated, and we must act now to prevent such flagrant abuses from ever again arising. We must have the Fifth Amendment returned to us. As citizens, it is our right, and only we should be allowed to waive it. In the words of former Senator John Sherman Cooper:

We adhere to the Bill of Rights because it protects against the power of the Government itself and because they protect, at last, the innocent. When, for reasons of expediency or emergency, we weaken these individual rights and give inordinate pow. ers or emergency powers to any branch of our Government, it is the record of history that at last that power will be used wrongfully, or will be used unwisely, or against individuals."

The Giancana case opened up crucial new ground for Federal prosecutors. In 1965 two assistant U.S. attorneys in Chicago, Sam Betar and David Schippers, were trying to break up the organized crime outfit they believed to be Giancana's, When they convened the grand jury they-and their quarrythought the panel would play its traditional role of subpoenaing peripheral witnesses in order to amass enough information to indict more prominent suspects. If they subpoenaed someone of Giancana's stature, he'd surely invoke the Fifth Amendment and refuse to testify, they thought. As a rule, such people weren't given immunity from prosecution, since the point of the investigation Iwas to indict them. The two attorneys were stumped.

But after brain-storming for a couple of weeks, they came up with a relatively novel way of trapping Giancana. They would get him court-ordered immunity, but then they'd jail him for contempt of court when he refused to testify (as he'd be likely to, in order to preserve his credentials with the rest of his colleagues) That device had been used in state courts-Alfred Scotti, Manhattan's Chief Assistant District Attorney, estimates that he's obtained more than 100 contempt citations in the past 20 years. And in a few nineteen-fifties national security cases, witnesses-like former Government employe Ludwig Ullman-were jailed for refusing to cooperate with the juries. But their punishment was incidental to the Government's case. Giancana's was part of a planned strategy. Betar and Schippers, and Nicholas DeB. Katzenbach, who was Attorney General at the time, agree that the tactic had never been used in a major Federal case. In Katzenbach's mind, there was still a principled distinction between granting a witness immunity to encourage him to testify, and using immunity as a device to imprison people who were certain not to talk. The Giancana case occupied a novel middle ground. Nevertheless, after much thought, he decided that it fell into the first category, not the second. (In some political cases, he thinks, immunity may fall into the second category.)

Still, the use of immunity "was such a new technique that other law-enforcement people treated us as if we were freaks at first," says Betar, who is now in private criminal practice in Chicago. "We realized that we'd better do our homework on Giancana, in case he decided to bluff us out by testifying to some lies. So we took six months suryeilling him, putting things together."

The device worked well, Betar says. "Giancana went to prison. And jailing him created a state of chaos and fear in the minds of his associates. At first, they had thought we were just trying to grab some headlines with the grand jury. But once the

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lesser lights learned that we'd found a way to put the head of the whole show in jail, they didn't know how to cope." One of them decided to testify, lied, and was cited for perjury. Others talked and produced information that led to indictments and convictions of several important mob figures.

Giancana remained in jail for a year, until the grand jury disbanded. Then, Betar and Schippers and their superior, U.S. Attorney Edward Hanrahan, tried to bring him before the next panel to imprison him for its full session-18 months. But Ramsey Clark, who had replaced Katzenbach as Attorney General, vetoed the idea. "I just couldn't accept the method of coercing testimony," he said when interviewed later.

Giancana left town for Odernavaca, where he still lives. Meanwhile, Betar and Schippers had spotlighted an effective new tool for law-enforcement officials. "I don't want to brag," Betar says, "but I know we laid the groundwork for the way immunity provisions have been used in the past few years."

The tool remained unused until Richard Nixon's election as President. Then the Justice Department, under John Mitchell, devised what came to be known as the 1970 Organized Crime Control Act, whose first two titles expanded the powers of Federal grand juries. Title I empowered the Justice Department to convene special investigative grand juries that would last for 18 months and could be reconvened for 18 more. And Title II allowed prosecutors to go beyond the all-encompassing "transactional immunity" that Betar and Schippers had granted Sam Giancana. "Transactional immunity" would have provided sufficient legal basis to imprison any witness who refused to testify. But now, for the first time, the law. also provided for a narrower "use immunity" which could, in certain instances, allow witnesses to be indicted for the substantive crimes the grand jury was investigating.

Traditionally, lawmakers and the courts had adhered to a strict construction of the Fifth Amendment in cases involving grand-jury witnesses. When Sam Giancana was granted "transactional immunity," he was assured that he'd never become a defendant in the case about which he was testifying. For this reason, such immunity had traditionally been granted with utmost caution; the fear was that powerful criminals might be able to get corrupt prosecutors to grant them such immunity, thus insulating themselves from the law. "Use immunity" solved that problem. U.S. Attorneys rarely have to lobby with Justice Department officials to grant a key witness immunity as Betar and Schippers did. But "use immunity" also affords