# Petition for Writ of Certiorari — Henry W. Grunewald v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0300%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 - **Citation:** 352 U.S. 866 ## Text ? sae : ; = ween - = a ee, e. se | - PETITION ‘FOR A WRIT OF CERTIORARI TO THE FRARY ———- Portea “Supreme Co "aft Oe WD * Burnexi co RT. us phil ee eilecaro acpi : = JUNO] HAROLD 8... WILLEY IN ‘THE _ Supreme cout. of the Bnited States OcToBER ‘ Stenm, 1955. - > No. ] a 8 lk A 3. ¢ '~ “MAX HALPERIN, ° 0 —U. S.— (100 L. ed. Advance p. 361, 76 S. Ct.—), decided last month, we. scored the assumption that ‘those who claim this priv ilege are either criminals __ or perjurers. The privilege against’ self-incrimina- , tion would be reduced .to a hollow mockery if its exercise could be taken as equivalent either to a _ confession of guilt or a conclusive Presumplion of perjury. . | As we ; potated: out in. Uliiiana, a witness may have a reasonable feat of prosecution and yet be . _ innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous cep ct See Grisw old, the Fifth. . Amendment Today (1955). 6. . ° o ‘ = _* . o * _@ - (p. 455) ‘In pradtiont effect the questions sia are taken as confessed and nfade the basis of the ‘discharge. No consideration is given to such factors “as ithe subject matter of the questions, remoteness ee the period to which they are directed, or justifica- tion for exercise ‘of. the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice, couscientiously given, whether wisely or unwisely. ‘* _@ hae: & ° re “4s --@ Since no inference of guilt was possible from the claim before the Federal committee, the discharge falls of its own weight as wholly without support. There has not. been the-‘protection of the individual Mr. Justice ( 'ardozo characterized as the very essence of due process.’ Ohie Bell Telephone Co..v. Com- mission, 301 U.S, 292; 302, 81 L. ed. 1093, 57 S. Ct. 724,” If the record disclosed theit:Halperin ’s testimony at his | trial indicated that Halperin was perjuring himself when ne had claimed his testimony would tend to incriminate and that in fact he" was not etisnared i in suspicion raising circum. - stances, it might be that’ the discrepancy might have been the subject of cross examination without denial of due ' proves! This, however, was conspicuously not the ease. His justification to refuse to answer before the Grand Jury is conceded.. He was entitled. to inv oke. the Fifth Amend- ment. anid : This result was appreciated by the Court in Masterson v. Fransit Co., 304 Mo. 507, 524,.525, which wrote: “The right of. fhe motorman to refuse to testify under the circumstances stated was a personal right of such high importance that it is expressly guarded, in the Constitution itself. It is there given absolutely and unequivocally, yet we are now asked to declare that it isa right which the citizen will exercise at his peril, the peril of being branded with-suspicion, the peril of having it brought up against him to impeach himself if he should ever assert his innocence. Such ‘a ruling would Be a gross impairment of the comsti- , _ tutional right ;’ | . . It is respectfully submitted that the Wastersonf™rase view coincides with the recent decisions of this Count tule. minating “in the Slochower decision. \ ‘There ts no more firmly established ‘rule in the field of ei evidence than that which requires that only when incon: sistency has been shown may former conduet be weighed against the witness’ credibility (3 Wigmore on Evidence, Page 725, Section 1040). It is interesting to note that in Commonwe valth v. Smith. 163 Mass. 411, 432, the Court in approving the right io:" cross examine a witness regarding a prior claim of refusal to answer on the ground of self-incrimination, found it necessary first to’search for and purport to find the element of inconsistency. Thus concerning the nature of the Gon- stitutional privilege, as intended only for the guilty, the Court noted: ze 2 e ai , ¢e tp ttniasnisioay , 14 : ee o . m “The defendantyin€ Such case now says he is inno- cent. “Fé formerly did not say he was innocent, but. . . tliat he would not answer lest he might incriminate. himself. ses In our: ease, even this niiscanceived inconsistency did ‘not exist. ‘Halperin did formerly say he was innocent and - his testimony shows moreover that his i innocence, as noted -: in the Slochower case, Was of a nature beset by ‘cireum- stances of guilt which justified this action. . a ‘@ The Massachusetts Court erred in failing to recognize that innocence and self-incrimination are_not mutually exclusive but may readily co-exist, hut within the frame- work of the Court’s mistaken view, the fact remains’ the Court appreciated. at must be able. to pinpoint an incon- sist tency before if could hold the witness’ credibility may be de emed _inipoached by’ the jury. : | The’ case of Raffel v. U litted Stafes, 271 U. S.'494 is not to the contrary, and in any event, it has been reversed in principle by*the recent trend of this Court's decisions cul- minating in the Slochower case. On these phases, the Court is urgently, respectfully referred to the dissenting opinion of Judge Frank (Vol. V—Appendix pp. 3r7a- en). mang- - festly, written before this Court's decision.” The’ Trial Court compounded ‘the prejudicial] effect of this instruction authorizing petitioner’s conviction via the destruction of his eredibility because of his irvocation of of the Fifth ‘Amendment by refusing to charge as requested that ‘An innocent man may honestly claim that-his answers may tend to incriminate him’’ (798, 728, 729), especially in view of the Court’s attitude toward Halperin’s claim * The appeal herein. was argued’ in the Court of Appeals on ’ November 15.16, 1955. Its decision was announced April 10, T1956. | The Sloe Wower. case decision became publie on April 9, 1956. ‘ ? . = . - 15 of honatigitionn’ privilege, as exemplified by his remarks. in the course of trial.’° The prev ailing opinion ov erlooked the vital difference between the requested charge and that given (768) : the | requested charge Ww ould have served to correct ‘the jury’s misconceptions that.an innocent man can not claim to be incriminated by his answ ers, ‘and thus have explained to- thie jury why Halperin’ s action before the Grand Jury was irrelevant to :-the Fssues The char ge as‘given,merely arbi- trarily directed dibjew +. to disr egard what they undoubtedly deemed an important relevant fact. as For discussion in another ééntext of the futility. of .. admgnishing a jury tocdisregard what it may deem inaypor- The question of whether a person may be ‘convicted of corruptly influencing ‘witnesses sole ly on. proof. that he -ddvised a witness.te plead the Fifth Amendment where the Witness was justified in doing sq, even though the plea would also serve the interests ‘of fhe person giving the advice, is an important question of Constitutional law not directly decided by this Court. a The reasoning of the Court in U eid States v."Herron, 28 FY, 2d 122, 123, D.C. Calif., in holding that it is not the _law to maké criminal the act of advising a witness to plead the Fifth Amendment: where he is justified in doing so ir respectiv ¢ of the inotive of the person so advising, is sound, we respectfully submit. The Court wrote: ‘“In the case of Ex parte Irvine (C. C. 1896) 74 F. 954, Circuit Judge ‘Taft, now Chief Justice of the United States Supreme Court, in his decision said as* follows: ‘It is argued by’ sownecl for ‘the respondent that there was evidence before the trial court to show that the privilege was pleaded ‘in bad faith, merely to”save the defendants, and not to protect the wit- nesses from a prosecution of themselves. * * * We . do not understand any of the American authorities to go so far as to hold that where from the evidence and the nature ofthe question, the court ean definitely, ‘dete ‘rmine that the question, jf answered in a partieu- lar way, will form a link in the chain of events to. establish the commission of a crime by the witness, \ \ | re 25 3 “ es | the court should i inquire into the motive of the witness “ in-pleading his privilege.’ : The witness himself, therefore, is protected i inhis - claim. of privilege by ine allowed the. privilege, irrespective of his motive for claiming the same. In this case the defendant Herron is charged with influencing, by advising, the witness Rasmussen to claim a lawful privilege, and I do nat ‘believe it is the law or the policy of the law to make ‘criminal, no “matter what the motive might have been, the advi ising “a witness to do that which wa's lawful and would in fact have protected the witness from disclosing self-. incriminating matter.’”’ (Emphasis in origina} ) The Court. of | hile? opinion, on the ‘other hand, - appears to affirm the conv iction of Halperin on the corrupt , influencing of witnesses comata upon evidence of advice to prospective witnesses to plead the fifth amendment when thé witnesses could do so with ample. justification. The Court wrote (Vol. V, Appendix p. 315a) : : a evidenee adduced in support of Counts-6._ and 7 describes attempts by Experian himself. to ‘iawtioe beth Berman aiid Tobias. The substance: ‘of what Halperin said to both is beflected in the testimony of Berman that Halperin told him ‘he felt he was going. fo ‘stand on. his constitutional rights. and not do any talking. He wanted me to take the - same stand, that I should not talk and stand on my constitutional ‘rights. He mentioned the fact that he had done me a good turn and that was the aqant, I could do for him.’ ’’? "22 Halperin’s Pacer marae was, that in March, 1952, he did-not- ‘ eall Berman, but Berman called him (681), and Berman said that _. Davig was'down to see him the day before (682). Berman told Halperin that Davis had told him he was trying to make a deal with the United States Attorney in the Eastern District for immunity for himself and his partner, and that he wanted Berman to back him up by stating that: the $60,000 had been paid as a fee (682). This was the first a oo knew that $60,000 had been involved in the package (682). Berman asked Halperin what he thought he _ / The Court of Appeals’-opinion appears contrary to the Herron case. \It is manifest -that not only the disposition _of Counts 6 and 7,-but also of Count 5 is affected by the Court’s views contrary to those expressed in the Herron case. - Conclusion. t The writ of certiorari should be granted. Respectfully: submitted, Henry G. Srxcer, | Attorney for Petitioner Halperin. ‘Harry Sipvern, 6 - | | 2 x a ” With him on the petition. should do and Halperin said that Berman should consult a lawyer and that ‘‘If vou ask meas a lawyer, I would.tell you to avail your- self of your constitutional privilege’ (683), Halperin did not say that Berman had anything to fear by not talking (683), or that he, Halperin, had. done Berman a good turn (683). -Halperin never aided: and abetted anyone fo get Berman to lie or impede justice | (684). He had no dealing eats or indirectly with Tobias on March 15, 1952° (684). Wlperin denied any conversation prior to Davis speaking. to Marks. Under Count Five, dealing with the influencing of Marks, there is no evidence that -Halpenin, himself; had any “onversation with Marks with ‘regard to his appearance before the Grand Jury, and no contention by the Government to the cantrary. “It is sought to*hold Halperin in consequence of a . diseussion had=by Halperin with Davis, Schopick and Hoffman, but ali that was discussed there was a canvass of the sentiment of these defendants with regard to whether Davis’ ¢lients would pleadtheir Constitutional privilege. 2 "At fitst they felt that the clients would not talk and would plead -, ~ their Constitutional privilege (367). Later, they became doubtful about this (368).3and it was decided that Davis should communi- eate with Marks,<;.° ah oe a: Fairly read, thé¥e is nothing in. » shh testimony with regard to these conversations-which would wartant imputing to Halperin any intent that Davis shauld do more than merely ascertaitNkissclients’ : * intentions and perhaps, to urge them to give further consideration to the advisability of their pleading their Constitutional privilege: Indeed, Davis’ testimony shows clearly that his mission was merely | one of inquiry and that hé.realized that there must be nothing said ° by him which could be used against him if Marks, as he expected, would report his conversation to the Grand Jury (369). © . Appendix A. Fifth Amendment, : “oe * © nor shall be: “sompelled in any criminal | ‘ase to be a. - witness against himself. woh dois " Section 371, Title 18 U. S. C. “OTL. Conspiracy to commit sees or to de fraud U nited States _If two or more persons conspire either to comruit any offense against the United States, or to defraud the United States, or any agency thereof: in any ay : : Py bs pe ~