The Limits of Immunity

Adultery being a crime in California, Bandleader Muzzy Marcellino was well within his constitutional rights when, in a Hollywood divorce court last week, he invoked the Fifth Amendment, refusing to say whether he had been intimate with an actress. This was a classic use of the Fifth Amendment; no unpleasant consequences followed for the bandleader.

But in a Florida court last week there was a different Fifth Amendment situation. Leo Sheiner, a Miami attorney and World War II chief counsel for OPA's milk, cream and ice-cream section, invoking the Fifth Amendment, refused to say whether or not he was a Communist. From Sheiner's refusal Circuit Judge Vincent Giblin drew conclusions that might help to clarify a lot of public confusion about what the Fifth Amendment is and is not supposed to do. Ordering Sheiner's immediate disbarment, Judge Giblin said:

"It is inconceivable to the court that an American lawyer, under obligation to support and protect the Constitution of the United States, when his loyalty to that Constitution and to the Republic is justly questioned, will invoke as a shield the Fifth Amendment or any other amendment to the Constitution of the United States.

"I concede his right, as it is the right of any witness, to refuse to testify under oath in response to a question when his answer may tend to incriminate him. He has that constitutional right. But he does not have the constitutional right to practice law, and the American legal profession demands and should demand that no lawyer invoke the Fifth Amendment in refusing to discuss frankly and openly his activities so that we judges and lawyers of the profession may determine whether or not he is loyal to the Constitution of the United States.

"Suppose that I should be called before a court or a grand jury, and on the witness stand should refuse to answer the question of whether or not I am a Communist. How long do you think the people of this community would tolerate my being a judge? Suppose President Eisenhower should refuse to answer whether or not he is a Communist. How long do you think it would be before the American people would demand his impeachment before the Congress?"

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