In re Oliver

Decision Date08 March 1948
Docket NumberNo. 215,215
PartiesIn re OLIVER
CourtU.S. Supreme Court

Messrs. William Henry Gallagher, of Detroit, Mich., and Osmond K. Fraenkel, for petitioner.

Mr. Edumund E. Shepherd, of Detroit, Mich., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

A Michigan circuit judge summarily sent the petitioner to jail for contempt of court. We must determine whether he was denied the procedural due process guaranteed by the Fourteenth Amendment.

In obedience to a subpoena the petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a 'one-man grand jury' investigation into alleged gambling and official corruption. The investigation presumably took place in the judge's chambers, though that is not certain. Two other circuit judges were present in an advisory capacity.1 A prosecutor may have been present. A stenographer was most likely there. The record does not show what other members, if any, of the judge's investigatorial staff participated in the proceedings. It is certain, however, that the public was excluded—the questioning was secret in accordance with the traditional grand jury method.

After petitioner had given certain testimony, the judge-grand jury, still in secret session, told petitioner that neither he nor his advisors believed petitioner's story—that it did not 'jell.' This belief of the judge-grand jury was not based entirely on what the petitioner had testified. As will later be seen, it rested in part on beliefs or suspicions of the judge-jury derived from the testimony of at least one other witness who had previously given evidence in secret. Petitioner had not been present when that witness testified and so far as appears was not even aware that he had testified. Based on its beliefs thus formed—that petitioner's story did not 'jell'—the judge-grand jury immediately charged him with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail. Under these circumstances of haste and secrecy, petitioner, of course, had no chance to enjoy the benefits of counsel, no chance to prepare his defense, and no opportunity either to cross examine the other grand jury witness or to summon witnesses to refute the charge against him.

Three days later a lawyer filed on petitioner's behalf in the Michigan Supreme Court the petition for habeas corpus now under consideration. It alleged among other things that the petitioner's attorney had not been allowed to confer with him and that, to the best of the attorney's knowledge, the petitioner was not held in jail under any judgment, decree or execution, and was 'not confined by virtue of any legal commitment directed to the sheriff as required by law.' An order was then entered signed by the circuit judge that he had while 'sitting as a One-Man Grand Jury' convicted the petitioner of contempt of court because petitioner had testified 'evasively' and had given 'contradictory answers' to questions. The order directed that petitioner 'be confined in the county jail * * * for a period of sixty days * * * or until such time as he * * * shall appear and answer the questions heretofore propounded to him by this Court * * *.'

The Supreme Court of Michigan, on grounds detailed in the companion case of Petition of Dohany (In re Hartley), 317 Mich. 441, 27 N.W.2d 48,2 rejected petitioner's contention that the summary manner in which he had been sentenced to jail in the secrecy of the grand jury chamber had depi ved him of his liberty without affording him the kind of notice, opportunity to defend himself, and trial which the due process clause of the Fourteenth Amendment requires.3 Petition of Dohany (Ex Parte Oliver), 318 Mich. 7, 27 N.W.2d 323. We granted certiorari, 332 U.S. 755, 68 S.Ct. 76, to consider these procedural due process questions.

The case requires a brief explanation of Michigan's unique one-man grand jury system.4 That state's first constitution (1835), like the Fifth Amendment to the Federal Constitution, required that most criminal prosecutions be begun by presentment or indictment of a grand jury. Art. I, § 11. This compulsory provision was left out of the 1850 constitution and from the present constitution (1908). However, Michigan judges may still in their discretion summon grand juries, but we are told by the attorney general that this discretion is rarely exercised and that the 'One-Man Grand Jury' has taken the place of the old Michigan 16 to 23-member grand jury, particularly in probes of alleged misconduct of public officials.

The one-man grand jury law was passed in 1917 following a recommendation of the State Bar Association that, in the interest of more rigorous law enforcement, greater emphasis should be put upon the 'investigative procedure' for 'probing' and for 'detecting' crime.5 With this need uppermost in its thinking the Bar Association recommended a bill which provided that justices of the peace be vested with the inquisitorial powers traditionally conferred only on coroners and grand juries. The bill as passed imposed the recommended investigatory powers not only on justices of the peace, but on police judges and judges of courts of record as well. Mich.Laws 1917, Act 196.

Whenever this judge-grand jury may summon a witness to appear, it is his duty to go and to answer all material questions that do not incriminate him. Should he fail to appear, fail to answer material questions, or should the judge-grand jury believe his evidence false and evasive, or deliberately contradit ory, he may be found guilty of contempt. This offense may be punishable by a fine of not more than $100, or imprisonment in the county jail not exceeding sixty days, or both, at the discretion of the judge-grand jury. If after having been so sentenced he appears and satisfactorily answers the questions propounded by the judge-jury, his sentence may, within the judge-jury's discretion, be commuted or suspended. At the end of his first sentence he can be resummoned and subjected to the same inquiries. Should the judge-jury again believe his answers false and evasive, or contradictory, he can be sentenced to serve sixty days more unless he reappears before the judge-jury during the second 60-day period and satisfactorily answers the questions, and the judge-jury within its discretion then decides to commute or suspend his sentence.6

In carrying out this authority a judgegrand jury is authorized to appoint its own prosecutors, detectives and aides at public expense,7 all or any of whom may, at the discretion of the justice of the peace or judge, be admitted to the inquiry. Mich.Stat.Ann. § 28.944 (Henderson 1938). Comp.Laws 1929, § 17218. A witness may be asked questions on all subjects and need not be advised of his privilege against self-incrimination, even though the questioning is in secret.8 And these secret interrogations can be carried on day or night, in a public place or a 'hideout,' a courthouse, an office building, a hotel room, a home, or a place of business; so well is this ambulatory power understood in Michigan that the one-man grand jury is also popularly referred to as the 'portable grand jury.'9

It was a circuit court judge-grand jury before which petitioner testified. That judge-jury filed in the State Supreme Court an answer to this petition for habeas corpus. The answer contained fragments of what was apparently a stenographic transcript of petitioner's testimony given before the grand jury. It was these fragments of testimony, so the answer stated, that the 'Grand Jury' had concluded to be 'false and evasive.' The petitioner then filed a verified motion with the State Supreme Court seeking to have the complete transcript of his testimony before the judge-jury produced for the habeas corpus hearing. He alleged that a full report of his testimony would disclose that he had freely, promptly, and to the best of his ability, answered all questions asked, and that the full transcript would refute the charge that he had testified evasively or falsely. In his answer to the motion the circuit judge did not deny these allegations. However, he asserted that the fragments contained in the original answer showed 'all of the Grand Jury testimony necessary to the present proceeding' and that 'the full disclosure of petitioner's testimony would seriously retard Grand Jury activities.' The State Supreme Court then denied the petitioner's motion. Thus when that Court later dismissed the petition for habeas corpus it had seen only a copy of a portion of the record of the testimony given by the petitioner.

The petitioner does not here challenge the constitutional power of Michigan to grant traditional inquisitorial grand jury power to a single judge, and therefore we do not concern ourselves with that question. It has long been recognized in this country however that the traditionl 12 to 23-member grand juries may examine witnesses in secret sessions. Oaths of secrecy are ordinarily taken both by the members of such grand juries and by witnesses before them. Many reasons have been advanced to support grand jury secrecy. See, e.g., Hale v. Henkel, 201 U.S. 43, 58—66, 26 S.Ct. 370, 372-375, 50 L.Ed. 652; State v. Branch, 68 N.C. 186, 12 Am.Rep. 633. But those reasons have never been thought to justify secrecy in the trial of an accused charged with violation of law for which he may be fined or sent to jail. Grand juries investigate, and the usual end of their investigation is either a report, a 'no-bill' or an indictment. They do not try and they do not convict. They render no judgment. When their work is finished by the return of an indictment, it cannot be used as evidence against the person indicted. Nor may he be fined or sentenced to jail until he has been tried and convicted after having been afforded the procedural safeguards required by due process of law. Even when witnesses before grand...

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