In re Kohn , 252 La. 235 ( 1968 )

SANDERS, Justice.

We granted certiorari to review the conviction and sentence for contempt of court of Aaron M. Kohn, managing director of the Metropolitan Crime Commission of New Orleans. The trial court sentenced .Kohn after he refused to disclose to the Grand Jury the name of the confidential informer who had given, him certain information concerning gambling operations in New Orleans.

The Grand Jury proceeding is a sequel to In Re Metropolitan Crime Commission, 251 La. 518, 205 So.2d 384. Hence, the events forming the larger background of the proceedings assume importance.

In September, 1967, Life Magazine published a news article alleging the existence of “organized crime” in several cities, including New Orleans. The information pertaining to New Orleans allegedly emanated from the Metropolitan Crime Commission. As a result of this article, the District Attorney for Orleans Parish initiated a grand jury investigation to determine the validity of the magazine’s assertions. The court summoned Kohn and fourteen other members of the Metropolitan Crime Commission to appear before the Grand Jury for testimony. Thereafter, the Grand Jury caused a subpoena duces tecum to issue for the production of all papers or documents containing the names of confidential informers of the Metropolitan Crime Commission and the amounts paid to each of them. The subpoenas were directed to E. C. Upton, Jr., president of the Crime Commission, James W. Mills, Jr., treasurer, Philip L. Frank, Sr., secretary, and Aaron Kohn, managing director.

All responding parties filed a motion to quash the subpoena duces tecum. The motion to quash alleged the subpoena, was so broad as to be unreasonable and oppressive. The motion further alleged:

"Individual movers aver that insofar as the said subpoenas purport to require production of their personal records and papers that compliance with the said subpoenas would amount to compulsory production of evidence against themselves in criminal proceedings in violation of the protections afforded by the Fifth Amendment of the United States Constitution and by pertinent provisions of the Louisiana State Constitution.

* * * * * ❖

“Movers further aver that disclosure of identity of informers of the Metropolitan Crime Commission of New Orleans, Inc. is violative of the rights of movers as protected by the First Amendment of the United States Constitution, and would effectively destroy the operation of the Commission in its fight to improve law enforcement and administration of justice.”

The trial judge overruled the motion to quash the subpoena duces tecum. This Court granted certiorari with a stay order to review the ruling. On December 11, 1967, the Court handed down its decision, rejecting the constitutional defenses, but quashing the subpoena duces tecum under LSA-C.Cr.P. Article 732 on the ground it was “highly unreasonable and oppressive.”

On December 13, 1967, before the judgment of this Court rejecting the constitutional defenses became final, the Grand Jury secured another subpoena duces tecum directed to the same parties ordering them to produce the next day all Crime Commission papers reasonably necessary to obtain the following information:

“The name and address of all informers, including informers being classified as confidential informers who within the previous year have furnished the Metropolitan Crime Commission of New Orleans, Inc., with information relative to organized crime in Orleans Parish and which information was furnished to Life Magazine for its publication alleging the existence of organized crime in Orleans Parish.”

The court also summoned the individual officers of the Commission to appear before the Grand Jury to testify on December 14, 1967.

When the respondents appeared on December 14, in compliance with the subpoenas, the State consented to a continuance of the subpoena duces tecum until the judgment of this Court in the first proceeding became final. The State also postponed the testimony of all Commission officers except Aaron Kohn.

During the Grand Jury’s interrogation of Kohn, it asked Kohn to disclose the name of a confidential informer who had given the Crime Commission information about the gambling activities of a named individual. On the advice of counsel, Kohn refused to answer the question, asserting his rights under the First and Fifth Amendments of the United States Constitution and “further on the ground that the issue •of confidential informers is still before the Louisiana Supreme Court.”

Kohn was then sworn in open court. In the presence of the trial judge, the foreman of the Grand Jury repeated his earlier question. After the judge instructed Kohn to answer, he again refused to do so, assigning the same reasons for his refusal.

The trial judge then ruled: “ * * * you are now in conempt of Court. I wil give you another opportunity to answer the question.” Kohn demurred. The judge then stated: “ * * * it is the judgment of this Court that you are in contempt. And, it now becomes my duty to sentence you for this contempt. I am going to sentence you under the last paragraph of Article 25, to be imprisoned in the Parish Prison until you decide to answer this question. When you are prepared to answer the question, you notify the Court, and you will be brought into Court so that you might answer the question, and then you will be released.”

Counsel for Kohn requested a stay of the sentence to apply to this Court for supervisory writs. The trial judge refused a stay and remanded Kohn to the parish jail.

On Kohn’s application for writs, filed the following day, we granted a stay of sentence and ordered the trial judge to answer the application.

On January 15, 1968, this Court denied a rehearing in In Re Metropolitan Crime Commission, supra. On the following day, we granted certiorari in the present proceeding.

At the threshold of the case, the State maintains this proceeding is moot because the Grand Jury that sought the information was discharged on March 6, 1968. The State reasons that Kohn can no longer answer that Grand Jury’s question to terminate his sentence. We find the record insufficient, however, to establish the imprisonment was conditioned upon relator’s disclosing the name of the informer only to that particular Grand Jury. Insofar as the record shows, the relator could comply by furnishing the information to a succeeding Grand Jury. Hence, we reject the allegation that the case is moot.

Relator Kohn relies upon a two-fold defense in this Court. First, he asserts the subpoena and subsequent proceeding to compel disclosure of the name of a confidential informer violated the stay order of this Court in the prior proceeding, where a constitutional bar had been urged to such disclosure. Second, he asserts his privilege against self incrimination under the Fifth Amendment of the Constitution of the United States. To support this constitutional theory, he relies upon two recent decisions of the lower federal courts arising from the same Grand Jury investigation, Chandler v. Garrison, 286 F.Supp. 191 (E.D.La.1968) and Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967).

As to the stay order, Kohn points out that, as a party to the first proceeding, he had raised constitutional objections to disclosing the names of confidential informers under the First and Fifth Amendments to the Constitution of the United States. At the time of the present subpoena, the case was still pending on rehearing.

The State contends the present proceeding is unaffected by the previous stay order. It reasons that the issue in the former proceeding was whether written documents of a corporation, the Metropolitan Crime Commission, containing the names of confidential informers were constitutionally protected. The issue here, the State suggests, is whether Aaron Kohn, as an individual, can be forced to give the names of such informers by verbal testimony.

The order relied upon stayed and suspended “until the further orders of this court all proceedings against the relator in * * * [the] Criminal District Court.” The judgment in the prior case, terminating the stay order, became final when this Court denied a rehearing on January 15, 1968. LSA-C.Cr.P. Art. 922. Hence, the stay order was in effect during the present proceeding and raises the first barrier to the contempt sentence.

We decline to accept the proposed technical distinction between the proceedings. The subpoena duces tecum in the first proceeding was' directed to Kohn. He was a party to that proceeding and raised constitutional objections to the disclosure of the names of confidential informers. At the time of his present sentence for contempt, his attorneys were still before this Court urging that the state and federal constitutions barred the compulsory disclosure of such names. It is true the Grand Jury in the former case sought the names from writings in Kohn’s possession and in this case from his memory. But this circumstance did not alter the real thrust of the proceeding. The objective remained the same: to compel the disclosure of the

names of the confidential informers.

We conclude the stay order barred the Grand Jury proceeding against relator to compel the disclosure of the name of the confidential informer. Hence, relator’s position is well founded.

Since this conclusion requires a reversal of the contempt judgment, we do not reach the substantial constitutional question posed by this case.

For the reasons assigned, the contempt judgment and sentence are reversed and set aside, and relator Aaron Kohn is discharged.

FOURNET, C. J., concurs with written reasons. HAMITER, J., concurs in the result. McCALEB, J., concurs in the result, since the decree orders the discharge of relator. SUMMERS, J., dissents. BARHAM, J., dissents with written reasons.