United States ex rel. Annaloro v. Elias/Dissent Douglas

MR. JUSTICE DOUGLAS, dissenting.

These are applications for bail in cases from the Court of Appeals for the Third Circuit, in Catena pending certiorari to this Court and in Annaloro pending appeal to the Court of Appeals. Each applicant was convicted by a state court for refusing to testify before a grand jury. Each sought habeas corpus in the federal court; and in the Catena case, 449 F. 2d 40, the Court of Appeals held that the applicant was unconstitutionally detained. [p808] Concededly, the Annaloro case is on all fours with Catena, although the Court of Appeals has not yet heard the merits.

The underlying question in these cases is whether the immunity to which a witness is entitled who refuses to testify because of the Self-Incrimination Clause of the Fifth Amendment is "transactional" immunity or "use" immunity. The question is one that was stirred last Term in Piccirillo v. New York, 400 U.S. 548. As MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and I concluded in that case, the constitutional requirement calls for "transactional" immunity. Id., at 550-551, 562, et seq. That plainly is the law as it now stands, ibid.; and the Court of Appeals so held. Since applicants were granted only "use" immunity and refused to testify on that ground, they have wrongfully been imprisoned. They are therefore being held unconstitutionally and should be discharged pending review of the cases.

We have noted jurisdiction in No. 69-4, Zicarelli v. New Jersey State Commission of Investigation, 401 U.S. 933, which raises the same question. But since Malloy v. Hogan, 378 U.S. 1, held that the Fourteenth Amendment applied the Self-Incrimination Clause to the States as fully as to the Federal Government, it will require a reversal in direction by this Court and a dilution of Malloy to say that these applicants are lawfully detained.

I would follow settled law until it is changed and meanwhile discharge these prisoners on suitable bail.