Anonymous v. Baker/Dissent Black

Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, decided two years ago, upheld as constitutional the action of a state fire marshal in compelling persons suspected of burning a building to testify about the fire in secret and without benefit of the presence of their counsel. Four of us dissented on the ground that such secret inquisitions violated the Due Process Clause of the Fourteenth Amendment. In this case the Court upholds the action of a state judge in compelling testimony from persons suspected of getting statements of defendants in negligence cases under false pretenses and later 'tampering' with these statements. I think it violates due process for a judge no less than for a fire marshal to compel testmon y to be given incommunicado. In fact it was Star Chamber judges who helped to make closed-door court proceedings so obnoxious in this country that the Bill of Rights guarantees public trials and the assistance of counsel. And secretly compelled testimony does not lose its highly dangerous potentialities merely because it represents only a 'preliminary inquisition * *  * whereby the court is given information that may move it to other acts thereafter.' (248 N.Y. 465, 162 N.W. 492.) Nor does this record justify a holding that this inquisition adopted the mantle of secrecy and barred counsel from the room out of tender solicitude for the reputation of the defendants in this contempt case. Doubtless the defendants' lawyer and the defendants themselves are at least as capable and perhaps as much interested in saving their reputations as the judge who is sending them to jail.

The naked, stark issue here is whether a judge, who must actually try cases in public-or any other government official for that matter-can consistently with due process compel persons to testify and perhaps to lay the groundwork for their later conviction of crime, in secret chambers, where counsel for the State can be present but where counsel for the suspect cannot. In upholding such secret inquisitions the Court once again retreats from what I conceive to be its highest duty, that of maintaining unimpaired the rights and liberties guaranteed by the Fourteenth Amendment and the Bill of Rights. Cf. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040. Here as in Groban my answer would be that no public official can constitutionally exercise such a dangerous power over any individual. I would therefore reverse this conviction.