Petition for a Writ of Certiorari — In re Vitari

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 399

In ne: JOSEPH F. VITARI,

Petitioner

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

Bentuey G. Byrnes,

Epwarp A. Wa..ace,

Counsel for Petitioner.

INDEX

Sussect INpEx

Page

Petition for a writ of certiorari... 1

TABLE OF C'AsEs CITED

Adamson v. People of the State of California, 332

U.S. 46, 67 S. Ct. 1672 NAA 2 oe 17

Apodaca v. Viramontes, 53 N.M. st 212 P. (2d) 425,

13 A.L.R. (2d) 1427... 14

Counselman vy. Hitchcock, 142 U.S. 547, 35 L. ed.

1110, 12 S. Ct. 195 eh ate? 17

Estes vy. Potter, 163 F. (2d) 865, 340 U.S.920 2 13

Foot v. Buchanan, 113 Fed. 156 11

Louisiana vy. Rodriquez, 52S. (2a) 756, 219 La. 217 7

Marcello vy. United States, 196 F. (2d) 437. Ny 9

Twining v. N. ¥., 211 U S. 78, 29 3. Ct. = 53 L. ed.

97 ie ; ees

United States v. Jaffe, 98 F. Supp. 191 ee 12

United States v. Russell, (U.S.D.C., D.C., February

es IR ee or ere ae a ee meek Cate SS 11

Sratutes Crrep

Constitution of Louisiana:

Article 1, Section 11 ; 9, 13

Article 19, Section 13 7, 8 14, 15, ‘16, 17, 18, 19, 21

Constitution of the United States:

Fifth Amendment ©... _. 6, 19, 20

Fourteenth Amendment Se

Revised Statutes of Louisiana of 1950, Title 15:

Section 11 awn NUP Cae E Tw nd oan 6, 8,9

Section 12 . . ye 6

United States Code, Title 28, Section 1257... 19

—4235

a Ses

“_— )

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 399

In rE: JOSEPH F. VITARI,

Petitioner

To the Honorable the Supreme Court of the United States:

The petition of Joseph F. Vitari, of full age of majority

and a resident of the Parish of Orleans, State of Louisiana,

with respect represents:

That petitioner is entitled to the issuance of writs of

certiorari and review on the following grounds, and for the

following reasons, to-wit:

I

That on June 26, 1952, and July 3, 1952, in answer to a

subpoena, petitioner appeared before the Grand Jury then

in session for the Parish of Orleans, New Orleans, Louisi-

ana, and was asked, among other questions, the following:

Q. Foreman: Have you earned anything in addition

to your salary on the Police Force?

Q. Foreman: I will repeat the question, Captain.

From January 1, 1948 to December 31, 1951, did you or

did you not receive income in addition to your salary

as an officer of the New Orleans Police Department?

Q. Foreman: I have before me, Captain Vitari, a

series of other questions which I want to ask you. You

»

have a large number of loans around the City in both

amount and number, or you have during the past three

or four years. Will you tell me from what institutions

you have been borrowing?

Q. Foreman: You testified to me under oath previ-

ously that on the home that you owned across the lake,

Waveland, I believe it was, that you had a loan on it

which you were paying and I wondered if you can tell

us to the best of your recollection how much per year

you paid on that loan during the past four years?

Q. Foreman: For the year 1952, we have incomplete

figures since the year has not run out yet. So, I will not

go into that. Captain, you can see what we are getting

at here. You show a salary in 1950 and 1951, which is

considerably less than the amount of money which you

actually paid to various lending institutions, exclusive

of refinancing. This does not take into account your

personal living expenses, or any other expenses which

you may have had. And we would like to ask you an

explanation on this fact.

Q. Mr. Screen: Do you have any interest in any

other businesses, Captain?

Q. Mr. Screen: Captain, as this is a bribery investi-

gation you know that in the question of investigating

bribery that anyone who gives evidence is granted im-

munity, constitutional immunity, once they have given

that evidence, and the District Attorney is free to grant

such immunity to an individual giving that evidence,

You know that, I presume?

Q. Captain, with that in mind, T ask you again how

can you account for the funds that you have expended

for your loans, both from the Credit Union, the banks

and from private lending agencies, and for your living

expenses?

Q. Mr. Sereen: What do you estimate your net worth

was at the time you became a Captain?

Q. Foreman: Can you tell us what income you have

reported for the past four years?

Q. Mr. Sereen: Have you been given any money by

3

anyone as a gift? I do not mean necessarily as a bribe,

but as a gift?

Q. Mr. Screen: Did you have accumulated before

January, 1948 any funds in excess of the amount you

testified to at the previous time, which I think was a

couple of hundred dollars?

Q. Mr. Sereen: Captain, to the best of your recollee-

tion, what are your monthly payments to the Merchants

Bank in Bay St. Louis?

Q. Mr. Screen: From what funds do you make your

payments on your loan at the Merchants Bank in Bay

St. Louis?

Q. Mr. Sereen: Well, Captain, in other words your

answer seemed to be contradictory. You say you re-

ceived no loans, credits or no emoluments from anyone

and you tell me then that you have no other income

other than your police salary, and yet the figures show

that you spent more than your police salary. Can you

offer any explanation for that?

Q. Mr. Sereen: Have you ever received any financial

assistance from your wife?

Q. Mr. Sereen: And then you joined the Force.

Now, since joining in 1921, have you inherited any

money?

Q. Have you received any funds from anyone, legally

or illegally?

Q. Foreman: Other than your police salary?

Q. Foreman: Captain, have you received any gifts

or funds in excess—outside—in addition to your police

income, police salary, which gifts or funds would have

been in excess of one hundred dollars a year? That is

something that you could not easily forget?

Q. Foreman: Captain, under oath, at the session of

the Grand Jury on May 7th we asked you the question

and got answers as follows:

Relative to your home in Bay St. Louis:

‘*Q. You say you paid five thousand dollars for that

property in 1949, is that right?”’

A. Yes.

4

Q. How much of that money was cash?

A. $3,000.00.’’

Captain, where did you get that $3,000.00?

Q. Mr. Screen: Is the $5,000.00 that you previously

testified to as the total amount that has been spent

on your home in Waveland, is that the total amount?

Q. Foreman: According to your pay records which

we have obtained from the City of New Orleans the

Police Department, your income from salary for the

year 1949 amounted to $2370.12 after withholding and

income tax and pension and according to the records

which we have obtained from the police Credit Union,

the National Bank of Commerce, the Hartsfield Loan

Company, the Merchant’s Bank of Bay St. Louis and

the rent figure supplied by you, your cash out-lay for

1949, exclusive of living expenses and deposits made

to the Whitney National Bank totalled $3188.96. This

represents a figure of $1218.84 excess cash outlay over

income for the period 1949 exclusive of living expenses,

insurance premiums, expenses of running the home

across the lake and expenses of operating the vehicles

which you have. Can you explain that?

Q. Foreman: Captain, according to your pay records

which we have obtained from the City of New Orleans

and the Police Department your income for 1950, after

deductions for withholding income tax and pension

totalled $2595.65. According to the records which we

have obtained from the Police Credit Union, the Na-

tional Bank of Commerce in New Orleans, the Harts-

field Loan Company, the Merchant’s Bank in Bay St.

Louis, the rent figures supplied by you, your cash out-

lay for 1950 exclusive of living expenses and deposits

made in the Whitney National Bank totalled $4073.06.

This represents a figure of $1477.41 excess cash out-

lay of income for the period 1950 exclusive of living

expenses, insurance premiums, expenses of running

your home across the lake and expenses of operating

the vehicles which you have. Will you explain that?

Q. Foreman: Captain, according to your pay records

5

which we have obtained from the City of New Orleats

and the Police Department your income for 1951 was

$2831.95 after deductions for Federal Income Tax and

pension. According to the records we have obtained

from the Police Credit Union, the National Bank of

Commerce in New Orleans, the Hartsfield Loan Com-

pany, the Merchant’s Bank in Bay St. Louis and the

rent figure supplied by you, your cash out-lay totalled

$3736.57. This represents a figure of $994.62 excess

cash out-lay over income for the period 1951 exclusive

of living expenses, insurance premiums expenses of

running your home across the lake and expenses of

operating the vehicles which you have. Can you ex-

plain that?

Q. Foreman: For the first four months of 1952, Cap-

tain, in other words, January, February, March and

April of this year, according to your pay records which

we have obtained from the City of New Orleans and

the Police Department, your income for those four

months totalled $906.24 after with-holding for Federal

Income Tax and pension. According to the records

which we have obtained from the Police Credit Union,

the National Bank of Commerce in New Orleans, the

Hartsfield Loan Company, the Merchant’s Bank in

Bay St. Louis and the rent figure which you have

supplied, your cash out-lay for these four months, ex-

elusive of living expenses and deposits made in the

Whitney National Bank totalled a figure of $1493.10.

This represents a figure of $586.95 excess cash out-

lay over income for the four months, January through

April, 1952. This is exclusive of living expenses, in-

surance premiums, expenses of running the home

across the lake and the expenses of operating the

vehicles which you own. Can you explain that Captain?

Petitioner avers that his answer to each of the above

questions was as follows:

A. I refuse to answer the question on the grounds

that it might incriminate me or lead to questions or

facts that might tend to incriminate me.

6

2

That on July 3, 1952, a motion was filed by the Fore-

man of the Grand Jury, Robert M. Walmsley, III, on be-

half of the Grand Jury, setting forth the above listed ques-

tions and requesting that petitioner be made to show cause

why he should not be held in contempt; that his Honor,

Judge J. Bernard Cocke, Judge of Section E, did sign an

order on July 3, 1952, wherein your petitioner, Joseph F.

Vitari, Sr. was ordered to show cause on July 8th, 1952,

why he should not be held in contempt for refusal to an-

swer the questions above stated; that petitioner appeared

in the Criminal District Court, Section E, and that the above

questions were repeated to him and the Judge of the said

Section E did order petitioner to answer all of the ques-

tions, whereupon your petitioner refused to answer same

on the ground that the answers may tend to incriminate

him, all in accordance with the rights guaranteed to your

petitioner by virtue of the provisions of Article I, Section

11, of the Constitution of 1921, of the State of Louisiana,

and the Fourteenth Amendment of the United States Con-

stitution; that His Honor, the Trial Judge, found your

petitioner guilty of contempt under the authority of Title

15, Sections 11 and 12 of the Revised Statutes of 1950, State

of Louisiana, on July 14, 1952, and sentenced petitioner in

accordance therewith; that thereafter your petitioner,

through his Counsel, informed the Court of his intention to

file an application for writs to the Supreme Court of the

State of Louisiana, whereupon the Honorable Trial Judge

deferred execution of sentence of ten days and $100.00 fine,

and in default of payment of the $100.00, an additional ten

days, until such time as this Court should rule upon his

application.

3

Petitioner further avers that he filed in the Supreme

Court of the State of Louisiana an application for writs

7

of certiorari, mandamus, prohibition and habeas corpus,

which writs were denied on July 23, 1952; that the Supreme

Court stated that the writs were denied on the authority of

the case of State v. Rodriguez, 52 S. 2d, 756, 219 La. 217.

Petitioner further avers that the ruling of the Supreme

Court of the State of Louisiana in effect passed upon the

constitutionality of Section 13, Article 19, of the Constitu-

tion of the State of Louisiana for the reason that the con-

stitutionality was passed upon and held valid in the case

of State v. Rodriguez, supra. The effect of the manner in

which the Supreme Court of Louisiana denied the writs in

the instant case was the same as if the instant case and

the cited case of State v. Rodriguez were companion cases.

4

Petitioner further avers that Section 13 of Article 19

reads as follows:

‘Section 13. Any person may be compelled to testify

in any lawful proceeding against any one who may be

charged with having committed the offense of bribery

and ‘shall not be permitted to withhold his testimony

upon the ground that it may incriminate him or subject

him to public infamy; but such testimony shall not

afterwards be used against him in any judicial proceed-

ings, except for perjury in giving such testimony.’’

5

Petitioner further avers that in the case of State v.

Rodriguez the constitutionality of the above quoted section

of the Louisiana Constitution was decided by the Supreme

Court of the State of Louisiana. It was held that the Sec-

tion was constitutional, the Supreme Court stating as

follows:

‘Tn the leading case of Twining v. State of New Jer-

sey, 1908, 211 U. S. 78, 29 S. C. 14, 26, 53 L. Ed. 97, it

was held that the exemption from self-incrimination

provided by the Fifth Amendment was not one of the

8

fundamental rights of national citizenship so as to be

included among the privileges and immunities of citi-

zens of the United States which the states are for-

bidden to abridge by the provision of the Fourteenth

Amendment that no state shall deprive any person of

life, liberty, or property without due process of law.

In the cited case the Supreme Court said: ‘* * * we

think that the exemption from compulsory self-incrimi-

nation in the courts of the states is not secured by any

part of the Federal Constitution.’

‘‘The above is full and complete authority for the

proposition that the State of Louisiana, or any other

state, is not compelled to guarantee to its citizens im-

munity from self-inerimination.”’

6

Petitioner further avers that the State of Louisiana has

granted to its citizens immunity from self-incrimination by

incorporating into its Constitution Article 1, Section 11.

Petitioner further avers that this is a guarantee of self-

incrimination against all crimes; that Article 19, Section 13,

is an exception insofar as the crime of public bribery is con-

cerned. Petitioner further avers, with due respect, that the

findings of the Honorable Trial Judge that the holding in

the Rodriguez case that both sections of the constitution are

of equal force, are clear and unambiguous, is erroneous on

its face.

7

Petitioner further avers that the Grand Jury of the

Parish of Orleans was impaneled and was instructed by the

then presiding Judge, Judge Niels F. Hertz, that they

should investigate all crimes; that the Grand Jury before

which your petitioner has been found in contempt was not

impaneled for the specific purpose of investigating into the

crime of public bribery and corrupt influence, as was true of

the Grand Jury in the above mentioned case of State v.

Rodriguez; that your petitioner, knowing that the present

9

grand jury before which he has been held to have been in

contempt, was investigating all of the crimes prescribed by

the various statutes of the State of Louisiana, was ap-

prehensive of the possible criminal prosecution for any act

that may have been violative of the aforesaid criminal stat-

utes; therefore, your petitioner, under the provisions of the

Constitution of the State of Louisiana, and that of the

United States of America, could properly refuse to answer

questions and that said refusal could in no way be likened

to that passed upon in the above mentioned case of State v.

Rodriguez.

8

Your petitioner further avers that the questions pro-

pounded to him, as set forth above, were of a general nature

and could possibly elicit answers which could lead to a

prosecution or form a link in a chain of evidence which could

lead to prosecution under any and all laws of the State of

Louisiana and under any and all laws of the other 47 states

of the United States, and under any or all laws of the Fed-

eral Government; that said questions were so general and

comprehensive in nature that it is impossible to conclude

what the Grand Jury before which your Relator has been

held to have been guilty of contempt, was pursuing; that in

view of said fact, coupled with the fact that the questions

in the recent case of State v. Rodriguez, were specific and

exempletive of the investigation being pursued, your peti-

tioner is entirely within his rights, as set out in Section 11

of Article 1 of the Louisiana Constitution and the 14th

Amendment of the Constitution of the United States.

In the ease of Marcello v. United States, 196 F. 2d 437, the

United States Court of Appeals for the Fifth Circuit stated:

‘*An early opinion of the United States Supreme

Court authored by Chiei Justice Marshall held that a

federal court may not compel a witness to testify

against himself in any criminal case, even though the

10

offense be one against the state rather than against the

federal government. United States v. Saline Bank, 1

Pet. 100, 7 L. Ed. 69; see also opinion of Mr. Justice

Holmes in Ballmann vy. Fagin, 200 U. S. 186, 195, 26

S. Ct. 212, 50 L. Ed. 433. There can be no doubt how-

ever that the learned district judge had in mind the

later rulings of the Supreme Court, which are binding

alike upon him and upon this court, such as United

States v. Murdock, 284 U. S. 141, 52 S. Ct. 63, 76 L. Ed.

210, and Feldman vy. United States, 322 U. S. 487, 64

S. Ct. 1082, 88 L. Ed. 1408; see also 58 Am. Jur. Wit-

nesses, sec. 51; Annotation 82 ALR 1376, 8 Wigmore

on Evidence (2nd Ed.) See. 2258. The doctrine is so

strongly entrenched that it appears as futile to protest

as it is to expect an individual to feel that his constitu-

tional privilege has been safe-guarded because the

penitentiary into which his answer may land him is

under the supervision of the state instead of the fed-

eral government.’’

‘*A method by which the privilege may be completely

circumvented suggests itself when we consider that

State tribunals may pursue a like course with refer-

ence to criminal offenses against the federal govern-

ment. See Feldman v. United States, 322 U. S. 487, 64

S. Ct. 1082, 88 L. Ed. 1408. With much inconsisteney,

we may indulge the hope that more state courts will

follow the lead of the Supreme Court of Michigan in

the view that,

‘*It seems like a travesty on verity to say that one is

not subjected to self-incrimination when compelled to

give testimony in a State judicial proceeding which

testimony may forthwith be used against him in a Fed-

eral criminal prosecution.’ People v. DenUyl, 318

Mich. 645, 29 NW 2d 284, 287, 2 ALR 2d 625, 628.”’

9

Petitioner further avers that it is without legal founda-

tion for any prosecutor, investigating body or any Court to

a

try your petitioner and find him guilt!tY of contempt in the

refusal to answer questions, when said Westions are taken

out of context, and are isolated from™ other questions an-

swered in other matters covered. Yor"" Petitioner further

avers that there are innumerable de®“!sions holding that

there can be no contempt proceeding ¢ of the nature herein

decided, based upon isolated questions S$ Of @ series.

The leading case on this question, F’ oot wee Buchanan, 113

Fed. 156, 161, decided by the former Ci!cuit Court for Mis-

sissippi, states:

“It is argued by the District AAttorney that some of

the questions asked (we have n?0t stated them all)

could have been answered without e®™dangering the peti-

tioner. We cannot accept that view: It was one exam-

ination, relating to one subject, annd the questions cul-

minated in an effort to show the ' W!tness’ connection

with the misdemeanor charged. Wy here there is a series

of questions, the examiner cannot ‘Pick out one, and

say, if that be put, the answer yWill not incriminate

him.’ ’’

11

In United States v. Harry Russell! (Crime Committee

Case), decided in the United States Diistrict Court for the

District of Columbia on February 5, 14991, the rule is thus

stated;

‘‘Some of the questions propounéded to the defendant

were not, standing alone, pertinent: to the subject of the

committee investigation. Their re?levancy becomes ap-

parent only when they are consider(€4 as links in a chain

of questions designed to elicit answers which taken to-

gether would warrant deduction’ Of ultimate facts

sought to be established.’’

“The defendant had a right to So regard the ques-

tions, and if he was apprehensive that the facts so de-

duced might incriminate him, he w’4S, in the opinion of

the Court, privileged to remain mu'te.’’

12

In commenting on this rule of law, Judge Morris, in a

case in the United States District Court for the District of

Columbia, ‘‘The Amerasia case’’, United States v. Jaffee,

98 F’. Sup. 191, 196 (1951), said:

‘It is further to be noted that many of the questions

asked this defendant and which he declined to answer on

the ground that such answers would tend to incriminate

him were so obviously incriminating on their face that

they were not made the subject of contempt proceed-

ings, as were the questions set forth in the twenty-six

counts of the indictment.”’

10

Petitioner further avers that prior to the hearing of the

rule for contempt of the Grand Jury, your petitioner filed

in the Crinimal District Court for the Parish of Orleans a

prayer for oyer, wherein your petitioner sought the entire

transcript of all the proceedings wherein he appeared under

subpoena as a witness before the Grand Jury of the Parish

of Orleans. That your petitioner averred in the Criminal

District Court for the Parish of Orleans in the said prayer

for oyer that he had answered certain questions concerning

the crime of public bribery and that it was necessary that

the advice, admonitions and instructions concerning the obli-

gation to answer questions and the immunities afforded the

witness under the law of Louisiana as directed to your peti-

tioner by the Grand Jury and the District Attorney for the

Parish of Orleans, assisting the Grand Jury, be made a part

of the record in order that your petitioner would be ina posi-

tion to properly defend himself. That the Honorable Judge

of the Criminal District Court for the Parish of Orleans re-

fused the request for oyer on the part of your petitioner on

the grounds that the requested material had no bearing on

the rule before the Court.

13

11

Petitioner further avers that prejudicial error was com-

mitted in refusing to allow the prayer for oyer wherein the

entire transcript of his testimony was requested for appear-

ances on three occasions before the Grand Jury for the

Parish of Orleans for the reason that said transcript would

show that your petitioner answered specific questions re-

lating to the crime of public bribery; that the questions

upon which petitioner has been found guilty of contempt are

general in nature and are not conducive to an answer

limited in scope; that your petitioner avers than the juris-

prudence is well settled that the witness is the final judge of

whether a question will elicit an answer that will incriminate

him or form a link in a chain of evidence that may form the

basis for prosecution of a criminal statute.

12

Estes v. Potter, 163 F. 2d 865 (1950), cert denied, 340

U. S. 920. The Court said:

‘The questions propounded to appellant do not dis-

close the incriminatory nature of the answers, sought

to be elicited, but appellant does not have to prove that

his answers would incriminate him to be entitled to his

privilege. If that were the nature of the burden, he

would be forced to divulge the very facts that the im-

munity permits him to suppress.’’ U.S. v. Burr, 25

Fed. Page 38, at page 40, No. 14,692; State v. Butler, 47

S. C. 23, 24S. E. 991,

That in view of the above stated facts and law, your peti-

tioner was entirely within his rights, secured to him by

See. 11, Art. 1 of the Constitution of 1921, State of Louisi-

ana, and the 14th Amendment of the Federal Constitution

in refusing to answer the above listed listed questions.

J

14

13

Your petitioner further avers that it ]

every state wherein the right against self-i, ; mination has

been limited with the restriction of the th, mental right

as stated above, must be accompanied by co lete immunity

in order that the basic rights secured und ““due process

of law’’ be not violated ; that it has been he

, > , and a reading

of Section 13, Article 19, confirms the hold, that the im-

munity from prosecution as provided f< in the above

stated amendment to the Constitution « the State of

Louisiana provides immunity with respect

public bribery only; your petitioner furthe , vers that the

jurisprudence is well settled to the effect lat a judge, a

District Attorney and an investigating bod)

; ‘are all power-

less to extend immunity beyond that set OUby law.

Apodaca v. Viramontes, 53 N. M. 514919 P. 2d 425,

13 ALR 2d, 1427.

‘The defendant refused to answer Qstions depend-

ing upon his constitutional rights agaist solf-incrimi-

nation, whereupon the District Attorney offered com-

plete immunity and the action was a roved by the

Court. The witness continued to refust, answer and

was held in contempt by the Court.”’

Issue: The decisive question then, s whether the

District Attorney and the District Cou: in New Mex-

ico, absent constitutional provision or abling statute

conferring the power, are authorized 5 grant immu-

nity from prosecution for an offense ti which incrim-

inating answers provoked by questionsasked will ex-

pose the witness:

* * * Citing 3 Jones on Evidence (ivil Cases, 4th

Ed.) 1652, § 888, the Court states:

s been held in

o the crime of

‘‘The mere fact that the Prosecutns officer had

promised him immunity or states in OP court that he

15

will not prosecute the witness or file any information

against him does not change the rule; the immunity

must be something more substantial than the grace, or

favor of the prosecuting officer.’’

In view of the fact that the immunity is limited, and in

view of the fact that your petitioner is the final judge of

incriminating questions, and in view of the further fact that

the questions upon which this contempt is founded are the

epitome of generality, your petitioner was entirely within

his rights, as was stated by the Court in State v. Rodriguez,

in refusing to answer.

14

Petitioner further avers that Section 13 of Article 19 is

violative of the Fourteenth and Fifth Amendments of the

Federal Constitution for the reason that it deprives your

petitioner of due process of law, and of his inalienable

privileges and immunities in that said section and article of

the Constitution of the State of Louisiana does not afford

your petitioner the right against self-incrimination as is set

forth in the Fourteenth and Fifth Amendments of the Fed-

eral Constitution.

Petitioner further avers that if the answers to the ques-

tion as above set forth were to give evidence that the peti-

tioner was engaged in an illegal business, wholly uncon-

nected with the crime of public bribery, and violative of the

criminal laws of the State of Louisiana, your petitioner

could be prosecuted ; that if your petitioner, in answer to the

above questions, were to give evidence which would show a

violation of any Federal laws, or laws of the other States

of the United States, your petitioner would be subject to

prosecution for the violation of such laws. Petitioner avers

that by virtue of the provisions of Section 13 of Article 19

of the Constitution of Louisiana, your petitioner is granted

no immunity from fines and forfeitures that may result in’

16

convictions which would grow out of evidence coerced from

your petitioner by virtue of the provisions of the said sec-

tion of the Constitution of Louisiana. Your petitioner

further avers that the Supreme Court of the United States

has, in innumerable instances, declared that confessions

adduced through threats and intimidation and used in

prosecutions in the various State Courts of the United

States was a denial of due process of law as guaranteed by

the Fourteenth and Fifth Amendments of the Federal

Constitution ; that the above quoted provision of the Consti-

tion of the State of Louisiana is in effect an attempt to se-

cure such evidence and admissions in much the same manner

as those which this Court has declared unconstitutional and

that therefore the said Section 13 of Article 19 is unconsti-

tutional in that it denies the petitioner the privileges and

immunities and the due process of law as set forth in the

Fifth and Fourteenth Amendments of the Constitution of

the United States.

15

Petitioner further avers that Section 13 of Article 19 of

the Louisiana Constitution as written and construed is

violative of the 14th Amendment of the Federal Constitu-

tion for the reason that, as written and construed, it de-

prives your petitioner of due process of law and of his

privileges and immunities as are guaranteed him by the 14th

Amendment of the Federal Constitution.

16

Petitioner further avers that in innumerable decisions

this Court, when passing upon statutes which demand the

testimony of witnesses in return for complete immunity

from fines and forfeitures which may be brought about as a

result of the information divulged—that the immunity

granted or the immunity from prosecution must be co-ex-

17

tensive with the right against self-incrimination as secured

in the Bill of Rights.

Counselman v. Hitchcock (1892), 142 U. S. 547, 35 L.

Ed. 1110, 12 S. Ct. 195.

Petitioner further avers that there is no immunity

granted under the provisions of the above quoted section

and article of the Constitution of Louisiana. Petitioner

avers that as written and construed, he could be forced to

give information which in effect would constitute confession.

17

Petitioner further avers that in the Twining decision

referred to by this Honorable Court (Louisiana Supreme

Court) in the case of State v. Rodriguez (Twining v. N. Y.,

211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97) the question before

the Supreme Court of the United States was the right of the

prosecuting officer to comment on a defendant’s remaining

silent, or refusing to take the witness stand in a criminal

proceeding; whereas Section 13 of Article 19 compels a

witness to give testimony against himself regardless of

what that testimony is, and what crime he confesses having

committed, if the District Attorney or investigatory body

informs him that they are investigating bribery. In a more

recent case before the Supreme Court of the United States,

Adamson v. People of the State of Calif., 332 U. S. p. 46,

67 Sup. Ct. p. 1672, the same question was before the Court

and it was held that a law providing for the comment on a

defendant’s not taking the witness stand was not violative

of the ‘‘sense of fairness’’ in a criminal proceeding as is

contemplated by the Fifth Amendment as applicable against

a State by virtue of the 14th Amendment ; that the Supreme

Court of the United States, in a 5 to 4 decision upheld the

ruling of the Twining case and noted that there could be

18

instances wherein state provisions could be violative of this

“*sense of fairness’? in criminal proceedings; petitioner

further avers that any law requiring a witness to give evi-

dence against himself without affording complete immunity

is just as violative of the Constitutional concept of ‘‘sense

of fairness’’ as is the confession extracted through physical

violence; that Section 13 of Article 19 does violate the

“sense of fairness”’ and is in conflict with and in violation

of the due process clause and the privilege in immunities

provisions of the 14th Amendment of the Constitution of

the United States and therefore illegal and void.

18

Petitioner further avers that on July 28, 1952, he was

committed to the Parish Prison for the Parish of Orleans

and there began serving the sentence above referred to.

That under the provisions of the sentence your petitioner

must serve through the 6th day of August, 1952 and in

default of payment of the $100.00 fine, petitioner must serve

through August 16, 1952. That on August 13, 1952, the

Honorable Justice Hugo Black issued a stay of execution

whereunder petitioner was released from custody pending

the action of this Court on this application.

19

Petitioner further avers that this Honorable Court has

jurisdiction to review the instant case by virtue of writs of

certiorari and review.

The issue of unconstitutionality of the above stated sec-

tion and article of the Constitution of 1921 of the State of

Louisiana was raised by motion to quash in an answer toa

rule taken against your petitioner in the Criminal District

Court for the Parish of Orleans, State of Louisiana, to show

cause why he should not be held in contempt for his refusal

—

19

to answer certain of the questions that had been propounded

to him on the grounds as above stated.

The trial Court sustained the validity of Section 13 of

Article 19 of the Constitution of the State of Louisiana. The

Supreme Court of the State of Louisiana refused writs of

certiorari, mandamus, prohibition and/or habeas corpus

on authority of prior jurisprudence of the Court in the case

of State v. Rodriguez.

The Supreme Court of the United States has jurisdiction

to review the case on appeal by virtue of the provisions of

Title 28, U.S.C. See. 1257, 62 Stat. 929.

20

Petitioner further avers that the date upon which the

decree of the Supreme Court sought to be reviewed was

rendered on July 23, 1952. This petition is filed and pre-

sented to this Honorable Court within the 90 day period set

out in Rule 381% of the Rules of this Honorable Court.

21

Petitioner further avers that in recent years the vari-

out States have passed statutes which in effect erase the

fundamental right against self-incrimination and there

has been profuse activity in the field of investigation by

local State and Federal authorities. The questions pre-

sented are appropriate and substantial in the light of these

happenings. A line of decisions of the Supreme Court of

the United States high-lighted by Twinning v. New Jersey,

and more recently Adamson v. State of California, (the

latter case a 5 to 4 decision) have brought into focus the

principle of the right against self-incrimination as set forth

in the Fifth Amendment of the Constitution of the United

States. In none of the instances has the question ever

been raised before the Supreme Court of the United States

al

20

of whether or not a State may deny a witness or a defend-

ant the right to decline giving information against him-

self by way of testimony under oath. In the Twinning and

Adamson cases, supra, the validity of procedural statutes

allowing a prosecuting officer to comment on a defendant

not taking the witness stand in his own defense were held

valid, as not being violative of the 14th Amendment of

the Constitution of the United States, and that these proce-

dural statutes may have denied the parties the funda-

mental right as evidenced by the Fifth Amendment of the

Constitution of the United States.

22

Petitioner further avers that the validity of Section 13,

Article 19, of the Constitution of 1921, State of Louisiana,

as above quoted, was attacked as unconstitutional and in

derogation of the rights secured applicant by the Consti-

tution of the United States, by way of motion to quash in

the Criminal District Court of the Parish of Orleans, State

of Louisiana.

His Honor, the Judge of the Criminal District Court for

the Parish of Orleans, upheld the validity on the grounds

that the right against self-incrimination need not be guar-

anteed by a State and that the right granted in the Con-

stitution of the United States was only operative where

the Federal Government was concerned,

The validity of the above named section of the Consti-

tution of Louisiana was attacked in applicant’s petition

for writs of certiorari, mandamus, prohibition and/or

habeas corpus to the Supreme Court of the State of Louisi-

ana. The Supreme Court of the State of Louisiana denied

the writs on the authority of the prior jurisprudence, State

v. Rodriguez. In the said case of State v. Rodriguez, the

above quoted section of the Constitution of Louisiana was

21

held as not being in violation of the Constitution of the

United States, citing Twinning v. New Jersey, supra.

It is submitted that this application for writs should be

allowed ; that the said question involved is substantial and

that Section 13 of Article 19 of the Constitution of 1921,

State of Louisiana, is unconstitutional and the decisions

of the State Courts are erroneous and should be reversed.

Wherefore, petitioner prays that writs of certiorari and

review issue herein according to law, directed to the Su-

preme Court of the State of Louisiana, ordering the said

Court to send to this Court a certified copy of all of the pro-

ceedings had in the case hereinabove mentioned and that,

upon due hearing that all acts, orders and proceedings had

in the said Court, be set aside, annulled and dissolved, as be-

ing in violation of the Fifth and Fourteenth Amendments

of the Constitution of the United States.

Respectfully submitted,

Bentiey G. Byrnes,

Epwarp A. Wa.wace,

Attorneys for Joseph F. Vitari, Sr.

(4235)

pene

Supreme Court of the United States

No. 399

IN RE: JOSEPH F. VITARI

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF THE STATE OF LOUISIANA.

BENTLEY G. BYRNES,

EDWARD A. WALLACE,

Counsel for Petitioner.

|

HT ENN Te

+ NG: a

INDEX

Subject Index

Jurisdiction

Assignment of Errors

Statement of the Case -

Argument

Confessions

Adequacy of Immunity _...._

Conclusion

Table of Cases Gted

Brown v. State of Mississippi, 2971S. 278, 56 Su-

preme Court, 461 (1936)

Counselman v. Hitchcock, 142 U.¢ 547, 35 L. Ed.

1110, 12 S. Ct. 195.

Doyle v. Hofstader, 177 N.E. 497_.

Henry Emery’s case, Mass. Repors, 107, 108, page

172, 9 Am. Rep. 22

In re: Nicastro, 111 NYS 2d, 222

Twining v. New * oes 211 U.S.78, 29 §. Ct.

53 L. Ed. 9 -*

Ziang Sung a v. United State 266 U.S. 1

Supreme Court, 1... oes

Statutes Cite.

Constitution of Louisiana:

Section 13, Article 19 _____ 1, 2,5

Constitution of the United States:

Fourteenth Amendment ___ 1, 3,8

United States Code, Title 28, Sect, 1257

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Supreme Court of the United States

No. 399

IN RE: JOSEPH F. VITARI

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT

OF THE STATE OF LOUISIANA.

JURISDICTION

The jurisdiction of this Court is based upon Title

28, United States Code, Section 1257, in that the con-

stitutionality of a State law was raised and the ruling

of the State Court was in favor of its validity.

ASSIGNMENT OF ERRORS

The conviction and sentence of petitioner, which is

based upon Article 19, Section 13, of the Constitution of

Louisiana is invalid for the reason that it denied peti-

tioner due process of law in that it is an attempt to

secure a confession by intimidation.

The conviction and sentence of petitioner, based

upon Article 19, Section 13, is invalid for the reason

that it is based upon a law which denies your petitioner

the privileges and immunities guaranteed by the Four-

teenth Amendment of the Federal Constitution in that

it denies him the right against self-incrimination with-

out affording him adequate protection against prosecu-

2

tion which may grow out of testimony given under com-

pulsion.

May It Please this Honorable Court:

STATEMENT OF THE CASE

The facts necessary for the consideration of the

Federal question presented to this Honorable Court in

the petition for writs of certiorari and review are as

follows:

Petitioner was subpoenaed to appear before the

Grand Jury of the Parish of Orleans, State of Louis-

iana, as a witness in connection vith the normal duties

of the Grand Jury of inquiring and investigating viola-

tions of the Criminal Statutes of the Stiate of Louisiana.

In answer to the subpoena, petitioner aippeared and cer-

tain questions were propounded to him, some of which

he refused to answer on the ground tthat the answers

might incriminate him or that they might lead to other

questions or facts that might incrimiinate him. Peti-

tioner was ruled into Court to showm cause why he

should not be held in contempt for his rtefusal to answer

the questions and upon his persistence jin his refusal, he

was cited for contempt and has served] seventeen days

of a twenty day sentence imposed upon! him.

ARGUMENT

The basis for the sentence and the? Citation of con-

tempt is Section 13 of Article 19 of thee Constitution of

Louisiana of 1921, which reads as folloyWs:

“Section 13. Any person mnay be compelled

to testify in any lawful proceediing against any

one who may be charged with having committed

the offense of bribery and shall 1not be permitted

to withhold his testimony upon ithe ground that

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it may incriminate him or subject him to public

infamy; but such testimony shall not afterwards

be used against him in any judicial proceedings,

except for perjury in giving such testimony.”

It is the position of the petitioner that the above

quoted section of the Constitution of the State of Louis-

iana is in violation of and in conflict with the Four-

teenth Amendment of the Constitution of the United

States and therefore null and void. As has been stated

in the petition for writs of certiorari filed in this Court,

the Supreme Court of the State of Louisiana has held

that on authority of the case of Twining v. New Jersey,

211 U.S. 78, 29 S. Ct., 14, 53 L. Ed. 97, the above quoted

Section of the Constitution of Louisiana is valid.

It is respectfully submitted that Section 13 of Art-

icle 19 is unconstitutional in that it denies petitioner

due process of law as guaranteed him by the Fourteenth

Amendment of the Constitution of the United States.

The quoted provision of the Constitution of the State of

Louisiana and the interpretation given it by the Su-

preme Court of the State of Louisiana is in violation

of the Fourteenth Amendment of the Constitution of

the United States in two respects.

FIRST: Its verbiage and use has been ap-

plied in an attempt to extort a confession upon

which criminal prosecution might lie.

SECOND: While the law compels the giving

of incriminating evidence, it grants no immunity

from fines or forfeitures which may result from

the disclosures.

CONFESSIONS

In instances too numerous to mention, this Court

has held that a conviction based upon a confession

4

through coercion is invalid in that there is a denial of

due process of law.

In the case of Brown v. State of Mississippi, 297

U.S. 278, 56 Supreme Court, 461 (1936) the Court

states:

“The due process clause requires ‘that state

action, whether through one agency or another,

shall be consistent with the fundamental principles

of liberty and justice which lie at the base of all

our civil and political institutions. Hebert v.

Louisiana, 272 U.S. 312, 316, 47 S. Ct. 103, 104

71 L. Ed. 270, 48 A.L.R. 1102. It would be dif-

ficult to conceive of methods more revolting to

the sense of justice than those taken to procure

the confessions of these petitioners, and the use

of the confessions thus obtained as the basis for

conviction and sentence was a clear denial of due

process.”

Earlier, in the case of Ziang Sun Wan v. United

States, 266 U.S. 1, 45 Supreme Court, 1, in defining the

requirements with respect to the voluntary nature of a

confession, the Court stated:

“* * * A confession is voluntary in law if,

and only if, it was, in fact, voluntarily made. A

confession may have been given voluntarily, al-

though it was made to police officers, while in

custody, and in answer to an examination con-

ducted by them. But a confession obtained by

compulsion must be excluded whatever may have

been the character of the compulsion, and whether

the compulsion was applied in a judicial proceed-

ing or otherwise. Bram v. United States, 168

U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568.”

In both instances defendants had been coerced into

giving confessions or signing statements through the

use of physical coercion.

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5

By virtue of the aforementioned section of the Con-

stitution of the State of Louisiana and the inherent

powers of the Courts of this State in the execution of

these laws, the witness is compelled to give disclosures

on the threat of jail sentence. It is respectfully sub-

mitted that there is little or no difference in the coer-

cion. The difference lies only in the degree.

It may be argued that the Brown and Ziang Sung

Wan cases have no application in that the question for

decision was whether a conviction based on a coerced

confession would lie, whereas in the present instance no

confession has yet been made. However, the only dif-

ference in the two instances is the stage at which the

coercion is applied. If the application of intimidation

and threats and physical violence denies due process, as

is stated in the Brown and Ziang Sung Wan cases, the

denial is inherent in the method just as well as in the

use to which the results are put.

ADEQUACY OF IMMUNITY

As is evident from a reading of Section 13, Article

19, of the Constitution of Louisiana, as quoted above,

the witness may be compelled to answer even though his

answer may subject him to fines, forfeitures and pen-

alties of any criminal statute provided for by the laws

of the State of Louisiana or any other governmental

body.

The question of withdrawing the privilege against

self-incrimination and the right secured the individual

has been passed upon in innumerable instances. The

leading case, and one frequently referred to by this

Court is that of Counselman v. Hitchcock, 142 U.S. 547,

35 L. Ed. 1110, 12 S. Ct. 195. In that case the Court

stated:

6

“We are clearly of opinion that no statute

which leaves the party or witness subject to pros-

ecution after he answers the criminating ques-

tion put to him, can have the effect of supplant-

ing the privilege conferred by the Constitution of

the United States. Section 860 of the Revised

Statutes does not supply a complete protection

from all the perils against which the constitutional

prohibition was designed to guard, and is not a

full substitute for that prohibition. In view of

the constitutional provision, a statutory enact-

ment, to be valid, must afford absolute immunity

against future prosecution for the offense to

which the question relates. In this respect, we

give our assent rather to the doctrine of Emery’s

case, in Massachusetts, than to that of People v.

Kelly, in New York; and we consider that the

ruling of this court in Boyd v. United States,

supra, supports the view we take. Section 860,

moreover, affords no protection against that use

of compelled testimony which consists in gaining

therefrom a knowledge of the details of a crime,

and of sources of information which may supply

other means of convicting the witness or party.”

The same principle has been applied by the State

Courts in nearly every State in the Union. See Henry

Emery’s case, Mass. Reports, 107, 108, page 172, 9 Am.

Rep. 22. Doyle v. Hofstader, 177 N.E. 497, In re: Ni-

castro, 111 NYS 2d, 222.

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In the Emery case, supra, the Supreme Court of

Massachusetts stated:

“It follows from the considerations already

named, that, so far as this statute requires a wit-

ness, who may be called, to answer questions and

produce papers which may tend to criminate him-

self, and attempts to take from him the constitu-

tional privilege in respect thereto, it must be en-

tirely ineffectual for that purpose, unless it also

7

relieves him from all liabilities, for protection

against which the privilege is secured to him by

the Constitution. The statute does undertake to

secure him against certain of those liabilities, to-

wit: the use of any disclosures he may make, as

admissions or direct evidence against him, in any

civil or criminal proceeding.

“In a case already referred to, People v.

Kelly, 24 NY 74, it was held that such a provision

by statute, removed all the liability against which

the witness was secured by the constitutional ex-

emption, and that, being thus otherwise furnished

with all the protection to which the Constitution

entitled him, he had no further occasion, and

therefore no right, to set up the claim of privilege,

as a protection against that to which he was not

exposed. But this decision was made upon the

ground that the terms of the provision relied on

in the Constitution of New York protected the

witness only from being compelled ‘to be a wit-

ness against himself’ and did not protect him from

the indirect and incidental consequences of a dis-

closure which he might be called upon to make.

“The terms of the provision in the Constitu-

tion of Massachusetts require a much broader in-

terpretation, as has already been indicated, and

no one can be required to forego an appeal to its

protection, unless first secured from future lia-

bility and exposure to be prejudiced, in any crim-

inal proceeding against him, as fully and exten-

sively as he would be secured by availing himself

of the privilege accorded by the Constitution. Un-

der the interpretation already given, this cannot

be accomplished so long as he remains liable to

prosecution criminally for any matters or causes

in respect of which he shall be examined or to

which his testimony shall relate. It is not done,

in direct terms, by the statute in question; it is

not contended that the statute is capable of an

interpretation which will give it that effect; and

8

it is clear that it cannot and was not intended so

to operate. Failing then, to furnish to the persons

to be examined an exemption equivalent to that

contained in the Constitution, or to remove the

whole liability against which its provisions were

intended to protect them, it fails to deprive them

of the right to appeal to the privilege therein sec-

ured to them.

“The result is, that, in appealing to his priv-

ilege, as an exemption from’ the obligation to an-

swer the inquries put to him, the petitioner was

in the exercise of his constitutional right; and his

refusal to answer upon that ground was not and

could not be considered as disorderly conduct, or

a contempt of the authority of the body before

which he was called to answer.”

CONCLUSION

It is respectfully submitted that the conviction and

sentence of the petitioner is null and void for the reason

that it is based upon a law which denies your petitioner

the due process guaranteed him by the Fourteenth

Amendment of the Constitution of the United States and

the privileges and immunities afforded him as a citizen

of the United States and should therefore be set aside.

Respectfully submitted,

BENTLEY G. BYRNES,

EDWARD A. WALLACE,

Attorneys for Petitioner,

Joseph F. Vitari.

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