Stevens v. Marks , 86 S. Ct. 788 ( 1966 )

MR. Justice Douglas

delivered the opinion of the Court.

Petitioner, a member of the New York City Police Department, was summarily discharged on July 15, 1964. On June 26 he had been subpoenaed before a New York County grand jury, known as the First June 1964 Grand Jury. Before appearing in the grand jury room, an Assistant District Attorney advised him to sign a waiver of immunity, saying that otherwise he would be subject to removal from public office.¹ He signed the waiver.² Thereupon he was an unsworn witness before the grand jury:

“Q. Lieutenant . . . Stevens, as was pointed out to you earlier, this grand jury is inquiring into the crimes of conspiracy to commit the crime of bribery of a public officer and the crime of bribery of a public officer; do you understand that?

“A. I do.

“Q. Do you understand further that you have been called here as a potential defendant, not as a witness; do you understand that?

“A. I do.

“Q. Do you understand that under the Constitution of the United States you have the right to refuse to answer any questions that might tend to incriminate you; do you understand that?

“A. I do.

“Q. Do you understand further that under the New York State Constitution, and New York City Charter, a public officer is required, if he desires to continue to hold his public position, to sign a limited waiver of immunity; do you understand that?

“A. I do.

“Q. Do you understand that that means that if you sign a limited waiver of immunity which requires you to answer questions concerning the conduct of your public office, that what you say will be taken down and recorded, and that should this grand jury vote a true bill against you, that is an indictment — to indict you for a crime, the testimony you give can and will be used against you. Do you understand that?

“A. I do.

“Q. Are you prepared to sign a waiver of immunity?

“A. I am.”

That petitioner’s waiver of “all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment” covered both the privilege against self-incrimination and immunity from prosecution³ is evidenced by the foregoing colloquy.

Then petitioner was sworn, asked a few questions, given a questionnaire to fill out, and asked to return with it completed.

At these stages petitioner had no counsel. On July 15, he returned to a different grand jury — the Third July 1964 Grand Jury. Now he had counsel and refused to sign a waiver of immunity. He was examined, as before, concerning his knowledge that to save his job he had to waive his immunity. He acknowledged that he knew the consequences of his refusal to waive his immunity and was excused.

That same day, as a consequence of his refusal to waive immunity before the Third July 1964 Grand Jury, petitioner was discharged as a police officer.

On July 22 he was again summoned before the First June 1964 Grand Jury and put a certain question which he refused to answer on the basis of his state and federal⁴ constitutional rights. He was brought before a judge who directed him to answer the questions. He refused to answer “on the grounds stated in the State and Federal Constitution” and the judge found him in contempt. On July 28, a hearing was held, at which petitioner, through his counsel, contended that the waiver was invalid or, alternatively, had been effectively withdrawn. In either event his Fifth Amendment claim was valid under Malloy v. Hogan, 378 U. S. 1. For it was agreed that “there is no claim that this witness has been given immunity.” ⁵ At the conclusion of the hearing, petitioner was fined $250 and given 30 days in the civil jail in New York City for that contempt. Petitioner promptly appealed to the Appellate Division of the New York Supreme Court. While this appeal was pending, he sought and was denied federal habeas corpus. Application of Stevens, 234 F. Supp. 25. The Appellate Division dismissed the appeal, stating its belief that Regan v. New York, 349 U. S. 58, was controlling.⁶ 22 App. Div. 2d 683, 253 N. Y. S. 2d 401. The New York Court of Appeals denied leave to appeal. 15 N. Y. 2d 483, 205 N. E. 2d 315. This is the conviction which is the basis of the petition in No. 210.

Thereafter, on September 28, petitioner was summoned again before the First June 1964 Grand Jury. Once again a question was put him and once more he refused to answer, claiming his privilege which, as we have said, was available to him under Malloy v. Hogan, supra, if the waiver was invalid or had been effectively withdrawn. He was brought before another judge who directed him to answer the question. On refusal, petitioner was held in contempt and fined $250 and sentenced to 30 days in jail.⁷ On January 11,1965, petitioner was once more summoned before the First June 1964 Grand Jury and refused again to answer a question on the ground that it was incriminating. He was taken before a judge and directed to answer. On his refusal he was fined $250 and sentenced to 30 days. While serving that jail term, petitioner once again sought a writ of habeas corpus in the United States District Court. The court denied relief, indicating that it regarded Regan v. New York, supra, binding authority. United States ex rel. Stevens v. McCloskey, 239 F. Supp. 419. The Court of Appeals for the Second Circuit affirmed. 345 F. 2d 305. It is this last conviction that is the basis of petitioner’s application for a writ of habeas corpus in No. 290.

Both cases are here on writs of certiorari. 382 U. S. 809.

Not once in any of the hearings was petitioner told that if he responded with incriminating answers, the state immunity statute might preclude a prosecution based on such answers. On the contrary, the Assistant District Attorney made it clear that the view of the prosecution was that petitioner had waived any rights he might have had under the immunity statute:

“Q. And was it further told to you that it meant that if you signed a limited waiver of immunity, which required you to answer questions concerning your conduct in public office, that what you said would be taken down and recorded and that should this grand jury vote a true bill against you, that is an indictment, the testimony you gave could be and will be used against you? Was that explained to you?

“A. I believe it was, yes, sir.

“Q. And did you tell this grand jury you understood that?

“A. That’s right.”

The Assistant District Attorney went on to say:

“Q. And do you understand further that regardless of what your lawyer may say or what anyone else may say, that it is the contention of the People that this is a valid waiver of immunity and that you do not have immunity? Do you understand that?

“A. Yes, sir.”

As we read this record, petitioner was led to believe that he could invoke his federal privilege against self-incrimination only on pain of losing his public employment; that to retain his job he was obliged to sign a waiver; and that should he sign a waiver he would have no immunity in answering incriminating questions. Throughout the various appearances petitioner made before the grand juries and in the New York courts which held him in contempt, the prosecution consistently maintained that petitioner’s waiver was valid. And there was never any suggestion that if, as petitioner contended, the waiver were invalid or effectively withdrawn, he might obtain a valid immunity from subsequent prosecution.

Here lies the difference between this case and Regan v. New York. For after that case arose, New York amended its immunity statute. Instead of conferring automatic immunity on all witnesses who testify before the grand jury, immunity is now conferred “only by strict compliance with the procedural requirements of • our immunity statutes properly enacted . . . People v. Laino, 10 N. Y. 2d 161, 173, 176 N. E. 2d 571, 579. Section 381 of the Penal Law, as amended in 1953,⁸ provides that in any bribery investigation “the court, magistrate or grand jury, or the committee may confer immunity in accordance with the provisions” of § 2447. The latter section provides that an investigating grand jury is among those “authorized to confer immunity” in a proceeding relating to bribery, provided that certain procedural steps are taken: (a) the witness must refuse to answer on the ground of self-incrimination; (b) the grand jury must then be “expressly requested by the prosecuting attorney to order such person to . . . answer” ; (c) the grand jury must then order the person to answer; (d) the witness must then comply with the order to answer; and (e) thereupon “immunity shall be conferred.” Under these laws, immunity is not automatically conferred “merely by testifying.” People v. Laino, supra, at 172, 176 N. E. 2d, at 578. “Complete immunity from prosecution may be obtained by a prospective defendant, or any witness, only by strict compliance with the procedural requirements of our immunity statutes properly enacted ... or by virtue of immunity provisions in' our State Constitution . . . .” Id., at 173, 176 N. E. 2d, at 579.

In the present case neither the prosecutor nor the grand jury had any thought of conferring immunity on petitioner. They tried to hold petitioner to his waiver. Yet if he had gone ahead and testified and it were established in a later prosecution that his waiver was invalid, it seems that he would have been bereft of any immunity under the New York law, since the requirements of “strict compliance” had not been met.⁹ Accordingly, only if the petitioner’s waiver was valid and binding was he bound to testify — at least until the affirmative steps necessary to confer immunity were taken. Whether or not petitioner could validly assert the privilege against self-incrimination depends on whether the waiver was, as he contends, invalid or effectively withdrawn. Although the trial judge which first found him in contempt ruled that the waiver was valid, the Appellate Division considered that question irrelevant in light of Regan v. New York.

Since, as we have seen, Regan is inapposite, we conclude that at the time petitioner was held to be in contempt, he had — -as a matter of federal constitutional law — effectively withdrawn the waiver. When petitioner was asked to waive his federally secured right to refuse to answer the questions, he was informed that failure to execute the waiver would result in the loss of his public employment. Although it put petitioner to “a choice between the rock and the whirlpool” (Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583, 593), New York says that, having “voluntarily” waived his constitutional rights, petitioner may not thereafter claim his privilege. At petitioner’s first appearance before a grand jury after having consulted with counsel, petitioner attempted to do just that: he announced his intention to withdraw his waiver.

Even were we to assume, without deciding, that a State may constitutionally exact, on pain of loss of employment and in the absence of counsel, the waiver of a constitutional right, we would be unable to find any justification for denying the right to withdraw it.¹⁰ We hold that petitioner’s effort to withdraw the waiver was effective, and that in the absence of an immunity provision clearly made applicable to him, petitioner could properly stand on his privilege and refuse to answer potentially incriminating questions.

One final point remains. Although the courts below did not consider the possibility, the briefs suggest that petitioner might, quite apart from the statutory immunity conferred by § 2447, have been given immunity by operation of law. It is said that, as the New York courts have interpreted the state constitution, a potential defendant may not be compelled to appear before a grand jury; any testimony given by him during such an appearance may not thereafter be used against him. People v. Steuding, 6 N. Y. 2d 214, 160 N. E. 2d 468; People v. Laino, 10 N. Y. 2d 161, 176 N. E. 2d 571. Thus it might be thought that this “automatic” immunity resulting from petitioner’s appearance before the grand jury makes this case precisely identical with Regan. We cannot agree. We need not stop to determine whether the immunity said to be conferred here — which merely prevents the use of the defendant’s testimony or its fruits in any subsequent prosecution but, apparently, does not preclude prosecution based on “independent” evidence (People v. Laino, supra; People v. Ryan, 11 App. Div. 2d 155, 204 N. Y. S. 2d 1) — constitutes that “absolute immunity against further prosecution” about which the Court spoke in Counselman v. Hitchcock, 142 U. S. 547, 586, and which the Court said was necessary if the privilege were to be constitutionally supplanted. And see Albertson v. Subversive Activities Control Board, 382 U. S. 70, 79-81. For even if the Steuding-Laino immunity were available to petitioner, he was led to believe — as we have already seen — that no immunity provisions were applicable to his case.

In this sense the case is very close to Raley v. Ohio, 360 U. S. 423, where the existence of immunity was never suggested to the witnesses, later held in contempt. In that case the State Supreme Court held that the immunity under the statute was automatically available to the witnesses and advice of the investigating agency was not necessary. But we reversed those judgments of conviction since what the State was doing was “convicting a citizen for exercising a privilege which the State clearly had told him was available to him” (id., at 438), and we went on to say:

“A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them. Lanzetta v. New Jersey, 306 U. S. 451. Inexplicably contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the force of criminal sanctions. United States v. Cardiff, 344 U. S. 174. Here there were more than commands simply vague or even contradictory. There was active misleading. Cf. Johnson v. United States, 318 U. S. 189, 197. The State Supreme Court dismissed the statements of the Commission as legally erroneous, but the fact remains that at the inquiry they were the voice of the State most presently speaking to the appellants. We cannot hold that the Due Process Clause permits convictions to be obtained under such circumstances.” Id., at 438-439.

Raley demonstrates that the State may not substitute for the privilege against self-incrimination an intricate scheme for conferring immunity and thereafter hold in contempt those who fail fully to perceive its subtleties. A witness has, we think, a constitutional right to stand on the privilege against self-incrimination until it has been fairly demonstrated to him that an immunity, as broad in scope as the privilege it replaces, is available and applicable to him.¹¹ This, it seems to us, is the teaching of Raley, and accordingly the Steuding-Laino immunity — if otherwise applicable- — cannot now be invoked to validate these contempt convictions.

Reversed.

1 Article I, §6, of the New York Constitution provides in part: “No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal ease to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office or of any public office held by him within five years prior to such grand jury call to testify, or the performance of his official duties in any such present or prior offices, refuses to sign a waiver of immunity against subsequent criminal prosecution or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years from the date of such refusal to sign a waiver of immunity against subsequent prosecution, or to answer any relevant question concerning such matters before such grand jury, and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.”

2 The waiver read in part:

“. . .all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution and punishment for or on account of, regarding or relating to any matter, transaction or thing, concerning the conduct of my office or the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the . . . official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence, documentary or otherwise, before the 1st, 1964 Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury.”

3 This was the view of the Appellate Division which, when affirming petitioner’s first contempt conviction, said: “[I]f the waiver of immunity is still valid, petitioner no longer has any privilege to refuse to testify.” 22 App. Div. 2d 683, 684, 253 N. Y. S. 2d 401, 402.

4 Malloy v. Hogan, 378 U. S. 1, holding that the Fourteenth Amendment guaranteed a witness the protection of the Fifth Amendment’s privilege against self-incrimination, was decided June 15,1964.

5 Petitioner’s counsel made the following statement: “May we also have the record clarified, Your Honor. It is my understanding, based on what was said here the last time in court before Your Honor, that there is no claim that this witness has been given immunity. The claim is that he has signed a valid waiver and that he refused to testify under it, and that is why Your Honor has found him guilty of criminal contempt, is that right?” The court replied, “That covers the situation.”

6 Began v. New York arose under an earlier version of the New York immunity law, which conferred automatic immunity from prosecution on anyone who testified before the grand jury. Regan had, like petitioner, executed a waiver of immunity and later sought to repudiate it. Unclear of his rights, Regan refused to testify though ordered to do so. This Court affirmed his contempt conviction, refusing to consider questions raised as to the validity of his waiver and the efficacy of his efforts to withdraw it. The Court’s theory was that regardless of the validity of the waiver, Regan was bound to answer the questions put to him: If the waiver was valid and binding, then of course he must answer since he had waived the right to refuse to do so. If the waiver was invalid, then petitioner would have immunity from prosecution, and thus could not rely on the privilege against self-incrimination.

7 This sentence was served.

8 See Regan v. New York, 349 U. S. 58, 59, note 2 and accompanying text, for a discussion of the earlier version of that section.

9 That immunity was never properly conferred on petitioner was, as we read this record, recognized by petitioner’s counsel and by the judge which first found him in contempt of court. See note 5, supra, and accompanying text.

10 As for the suggestion that withdrawal of the waiver in mid-hearing poses an administrative inconvenience, we only note that there was no such inconvenience here. Petitioner had answered only a few perfunctory questions at his first appearance before the grand jury. He asserted his desire to withdraw the waiver immediately upon returning before the grand jury.

11 The suggestion that we should remand the case to the New York courts for a finding of whether or not petitioner was misled is, we think, wide of the mark. A State must affirmatively demonstrate to the witness that a valid immunity from prosecution is his before it may hold him in contempt for refusing to answer questions that would otherwise be incriminating. Whether the State has met its burden must be measured at the time of the alleged contempt. A declaration that there was a valid immunity uttered for the first time on appeal would come too late.