Stevens v. Marks Stevens v. Closkey

• Decision Date: 28 February 1966
• Docket Number: Nos. 210 and 290,s. 210 and 290
• Citation: 383 U.S. 234,15 L.Ed.2d 724,86 S.Ct. 788
• Parties: James T. STEVENS, Petitioner, v. Charles MARKS, Justice of the Supreme Court of New York, County of New York. James T. STEVENS, Petitioner, v. John J. McCLOSKEY, Sheriff of New York City
• Court: U.S. Supreme Court

383 U.S. 234

86 S.Ct. 788

15 L.Ed.2d 724

James T. STEVENS, Petitioner,

v Charles MARKS, Justice of the Supreme Court of New

York, County of New York.

James T. STEVENS, Petitioner,

v. John J. McCLOSKEY, Sheriff of New York City.

Nos. 210 and 290.

Argued Jan. 24, 1966.

Decided Feb. 28, 1966.

[Syllabus from pages 234-235 intentionally omitted] John P. Schofield, New City, N.Y., and Eugene Gressman, Washington, D.C., for the petitioner.

H. Richard Uviller, New York City, for respondents.

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, provileges, 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, 84 S.Ct. 1489, 12 L.Ed.2d 653. 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, D.C., 234 F.Supp. 25. The Appellate Division dismissed the appeal, stating its belief that Regan v. People of State of New York, 349 U.S. 58, 75 S.Ct. 585, 99 L.Ed. 883, was controlling.⁶ 22 A.D.2d 683, 253 N.Y.S.2d 401. The New York Court of Appeals denied leave to appeal. 15 N.Y.2d 483, 257 N.Y.S.2d 1025, 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. People of State of New York, supra, binding authority. United States ex rel. Stevens v. McCloskey, D.C., 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, 86 S.Ct. 53, 15 L.Ed.2d 59.

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. People of State of 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, 218 N.Y.S.2d 647, 657, 176 N.E.2d 571, 579. Section 381 of the Penal Law, as amended in 1953, McKinney's Consol.Laws c. 40,⁸ 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, 218 N.Y.S.2d, at 656, 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, 218 N.Y.S.2d, at 657, 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...