United States Ex Rel. Touhy v. Ragen, Warden ( 1950 )

LINDLEY, Circuit Judge,

dissenting.

As I understand the law, the public policy controlling in our national jurisprudence is that a person should not be deprived of his liberty without giving him an opportunity to have access to material which might exculpate him, and that he should have a reasonable opportunity to produce evidence that may prove his innocence. Consequently, frequently arising is the broad question of whether an executive official is free to refuse disclosure of any evidence in his possession, regardless of its character, for any reason which to him may seem sufficient, “free, in the sense that compulsory process against him is beyond the constitutional power of the legislature to authorize or the Court to issue, physical compulsion being, of course, out of the question”, Judge Kirkpatrick in O’Neill v. U. S., D.C., 79 F.Supp. 827, 830. But this broad issue is not necessarily presented in this case, for, irrespective of what may be the constitutional limitations upon the power of other branches of government, the Department of Justice, acting under power granted by the Congress, has provided by its own directives, a method by which, by judicial decision, the rights of a person seeking to procure evidence in the custody of the Department, are fully protected. In other words, those directives, having provided reasonable protection for the rights of applicants, satisfy constitutional demands.

Under the pertinent administrative directive, as I interpret it, it was the duty of appellant, as a subordinate in the Department of Justice, to produce the subpoenaed documents for examination by the court, in order that the latter might determine their materiality and whether their nondisclosure was essential to the public interest. But the evidence discloses that appellant himself, while on the witness stand, unqualifiedly refused to produce them, and the ultimate statement of the United States Attorney plainly indicates that, pursuant to instructions from his department superior, the actual records would not and could not be submitted to the court for its determination in the respects mentioned. Thus, he said expressly that he had never intended actually to produce the documents and that he could not do so under the orders of his superior. Thus, it seems clear to me that appellant, acting as he interpreted the directions of the Department of Justice compelled him to act, violated the directive. The inevitable result is that the Department, despite its own directive, has taken upon itself the determination of materiality and public interest and effectually prevented the court from making a judicial determination of those questions.

It is at this point that I must diverge from the majority’s reasoning. To deny the petitioner the opportunity to obtain evidence that might exculpate him from a judgment of long imprisonment, is arbitrarily to deprive him of his rights under the pertinent directive. If the information is material or relevant, or if it is of such character as to demand its nondisclosure, adjudication of those questions is clearly a judicial function, not that of the administrative official who is subpoenaed to produce them. To deny the power of the court to make the determination is to usurp the judicial function. Such action, from time immemorial, as I have understood, has been held to thwart the division of powers contemplated by and expressed in our constitution. If we ever become so unfortunate as to have an administration so unprincipled in character, so ruthless, as to rob the courts of their functions and as to usurp judicial power, then we may well revert to the nefarious inquisitions of old or the abhorrent gestapo of a lately existent ruthless government. Thus, in Duncan v. Connell, Laird & Co., Ltd. (1942) A.C. 624, discussing the nature of the privilege to withhold production of public documents on grounds of public interest, the English court said that upon objection to production of such documents, the ruling to be made involved a “decision of the judge”. In Zimmerman v. Poindexter, D.C., 74 F. Supp. 933, 935, the court said, in a similar situation, that it is a “judicial question for ultimate decision by the court.” Holding that it is eminently appropriate that “relevant documents which elucidate those vital issues in this action, should not be withheld from the court,” the opinion proceeds: “To rule otherwise, in the absence of controlling authority would do violence to the court’s duty to search for the truth and-would be inimical to the traditional concept of the subpoena duces tecum as a vehicle of proof in Anglo-American jurisprudence.” The language of Dean Wigmore in his work on Evidence, 3rd Ed., Secs. 2378a, 2379 is pertinent: “The truth cannot be escaped that a court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to * * * (administrative) officials too ample opportunities for abusing the privilege. The lawful limits of the privilege are extensible beyond any control, if its' applicability is left to the determination of the very official whose interest it may be to shield a wrongdoing under the privilege. Both principle and policy demand that the determination of the privilege shall be for the court; and this has been insisted upon by the highest judicial personages both in England and the United States.”

Whatever the cause of the violation of the department’s own directive, whatever may have occurred in the communications •between its head and its subordinates to lead to misunderstanding and to what I take to be, an inadvertent error made by conscientious law abiding officials, I think it is clear that the court, deprived of the opportunity to exercise its judicial function, was perfectly justified in entering the order from which this appeal was taken.

I would affirm the judgment, but direct that appellant may purge himself completely by producing the documents subpoenaed, for the court’s determination of the issues lodged in it by the directive.