In re Terkeltoub

• Decision Date: 08 June 1966
• Docket Number: No. Misc. 11-188.,Misc. 11-188.
• Citation: 256 F. Supp. 683
• Parties: In the Matter of Solomon B. TERKELTOUB, a Witness Before the Grand Jury.
• Court: U.S. District Court — Southern District of New York

256 F. Supp. 683

In the Matter of Solomon B. TERKELTOUB, a Witness Before the Grand Jury.

No. Misc. 11-188.

United States District Court S. D. New York.

June 8, 1966.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, J. Edward Meyer, III, Asst. U. S. Atty., of counsel, for United States.

Solomon B. Terkeltoub, New York City, for respondent.

MEMORANDUM

FRANKEL, District Judge.

This is an application to compel a witness to give to a grand jury testimony he claims is privileged. The circumstances leading to the refusal are these:

On April 20, 1966, Vincent M. Fiorillo was named in an indictment charging that he had committed perjury before a federal grand jury when he denied having had certain telephone conversations with one Tony Vone. Fiorillo has pleaded not guilty. Pretrial motions have been heard, and the case is being readied for trial. Fiorillo is represented by Solomon B. Terkeltoub, who has been at the bar for some 32 years.

On May 13, 1966, according to his affidavit, the Assistant United States Attorney in charge of the Fiorillo prosecution "received competent and reliable information indicating that on May 12, 1966, Vincent M. Fiorillo and his attorney, Solomon Terkeltoub, had met Tony Vone in a Bronx diner at Fiorillo's instance and during a three hour conversation had, individually or collectively and through the offering of various inducements, endeavored to persuade Tony Vone to testify at the pending perjury trial that he did not have the conversations alleged in the perjury indictment."¹

On May 20, 1966, Messrs. Fiorillo and Terkeltoub were called before a grand jury which had proceeded to inquire whether the foregoing facts warranted a prosecution for obstruction of justice under 18 U.S.C. § 1503. Our concern on the present application is only with the attorney, Terkeltoub, whose testimony the Government wants compelled.

On his appearance before the grand jury, Mr. Terkeltoub was asked questions (as the Government's Memorandum accurately summarizes them) "as to his alleged meeting, in the company of his client, with a third party, Tony Vone— the fact of such a meeting, the place, its duration, its initiation and purpose and the conversation which took place."

Mr. Terkeltoub asserted that answers by him to these questions would effect a deprivation of his client's rights to due process under the Fifth Amendment and to the effective assistance of counsel under the Sixth. Amplifying this view, he said: "If I am told by the Court that I am not breaking a professional confidence and privilege, then I will answer those questions providing there is nothing personal insofar as I am concerned."

It is common ground that this refusal to answer is not based upon the traditional attorney-client privilege.² Here, then, as in Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), there is no necessity "to delineate the content and scope of that privilege as recognized in the federal courts."

Elimination of that privilege simplifies the problem, but does not make it simple. On the one hand, there is the heavy weight of history and public need commanding that the grand jury's investigations be as unfettered as possible. See, e. g., United States v. Thompson, 251 U.S. 407, 413-415, 40 S.Ct. 289, 64 L.Ed. 333 (1920). And the Government comes here with the laudable purpose of guarding against suspected attacks on the integrity of the judicial process itself. Cf. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879, 881 (1953), cert. denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260 (1955). On the other hand, the disclosures now demanded touch a vital center in the administration of criminal justice, the lawyer's work in investigating and preparing the defense of a criminal charge. Appraising these interests in the circumstances now presented, the court concludes that the attorney was not only entitled, but probably required, to withhold answers to the grand jury's questions.

In explaining this conclusion, it bears emphasis that while the witness before us is a lawyer, the crucial interests at stake belong to the whole community. As a seasoned trial lawyer and Justice said, "it too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. * * * The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences" of a practice impairing the lawyer's effective representation of his client. Hickman v. Taylor, supra, 329 U.S. at 514-515, 67 S.Ct. at 395 (Jackson, J., concurring).

In the same opinion, Mr. Justice Jackson said (id. at 517, 67 S.Ct. at 396):

"Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses' stories, and not because he wants to do so but in self-defense."

And so we start here with a demand that is troublesome on its face — a demand that a lawyer be forced to testify about his work in supposed defense of a client. Our problem is not solved, but it is affected, by a recognition that this sort of procedure must have at least a slightly chilling impact upon counsel for defendants in criminal cases. Again, this has nothing to do with whether lawyers for their own sakes should be treated better or worse than other people. It has to do with how the public may fare depending on the course followed with applications like the one before us.

The attorney whose testimony is now sought is concerned at the moment with "perhaps the most critical period of the proceedings" against the defendant Fiorillo— "from the time of * * * arraignment until the beginning of * * * trial, when consultation, thorough-going investigation and preparation are vitally important * * *." Powell v. State of Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932). At the heart of the job of "thorough-going investigation and preparation" is the interviewing of prospective witnesses, hostile as well as friendly.³ And no lawyer, on any side of any case, would consider it salutary for his client that the opposition knew who was being interviewed and what was being said during such meetings. If vivid illustration were needed, it is supplied every day in this courthouse by the Government's stout resistance to discovery efforts by defendants in criminal cases.

Because privacy is so vital to these preparatory efforts, the prosecution is forbidden to eavesdrop or plant agents to hear the councils of the defense. Coplon v. United...