B. PRODUCTION OF A WITNESS INCARCERATED IN A PRISON BEFORE THE SELECT COMMITTEE

1. Memorandum on the Power of Congressional Committees To Have a Witness Incarcerated in Prison Appear Before the Committee

TO: G. Robert Blakey, Chief Counsel and Director

FROM:

Jan Schlichtmann

DATE:

RE:

Congressional Power to Produce the Incarcerated Witness

This memo analyzes the legal mechanism for producing an incarcerated witness before a congressional committee. The areas discussed are:

I.

II.

III.

IV.

V.

The Nature of the Writ of Habeas Corpus
Ad Testificandum,

The Power of Federal Courts to Issue the
Writ of Habeas Corpus Ad Testificandum Extra-
Territorially,

The Power of Federal Courts to Hear Petitions
by Congress for Writs of Habeas Corpus Ad
Testificandum,

The Power of Congress to Issue the Functional
Equivalent of the Writ of Habeas Corpus Ad
Testificandum,

Responsibility for Safeguarding and Transporting
the Congressional Witness.

Conclusion

Even though there could be jurisdictional problems with a committee petition for the writ of habeas corpus ad testificandum, they do not seem to be insurmountable especially in light of the courts' practice to issue such writs automatically. Should a court refrain from granting such a petition, a committee could still seek to exercise Congress' inherent power to issue such process. A court

ordered writ has the benefit of allowing the committee to
call upon the expertise and resources of the Marshall's
office in transporting and safeguarding the witness, while
congressionally issued procedures would place special burdens
on the sergeant at arms making the care of the prisoner that
much more difficult.

I. Nature of the Writ of Habeas Corpus Ad
Testificandum

At English common law there were several species of the writ of habeas corpus, used to move prisoners from one court to another. The writ of habeas corpus ad testificandum issued to secure the presence of a prisoner at trial for testimony is among those listed. Blackstone 3 Commentaries *130. It was

directed to the custodian of the prisoner with the object analogous to that sought by directing a subpoena duces tecum to the custodian of an evidentiary document, In re Thaw, 166 P. 71, 74-75 (1908), but in a situation where a subpoena would be unavailing. 8 Wigmore, Evidence §2199 (3rd. ed. 1940).

It is to be distinguished from the other major forms of the writ; habeas corpus ad subjiciendum and habeas corpus ad prosequendum. Habeas corpus ad subjiciendum, sometimes referred to as the "Great Writ", constituted an inquiry into the cause of

restraint. Blackstone, 3 commentaries *129-30.

Ex

The most popularly known, it is most often referred to by the shortened generic term "Habeas Corpus", as in the Constitution.1 Parte Bollman 4 Cranch 75, 95 (1807). The writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. Blackston, 3 commentaries *129.

The federal district courts are expressly granted the power to issue the writ of habeas corpus ad testificandum in

2

28 U.S.C. §2241(c) (5). Ballard v. Spradley, 557 F 2d 476, 480 (5th Cir. 1977). The decision to issue the writ rests within the discretion of the district court. Ballard, supra at 480. When determining whether it should issue a writ ad testificandum, the district court must exercise its discretion based upon consideration of such factors as whether the prisoner's presence will substantially further the resolution of the case; the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is cleared without prejudice to the cause asserted. Ballard, supra at 480.

1

2

Art. I, §9 cl. 2

§2241(c) (5) also authorizes the federal district courts to issue writs of habeas corpus ad prosequendum. Ballard, supra

at 477 fn. 2.

Factors such as probability of success of the prisoner's
action are inappropriate since they focus on the ultimate
result of the action rather than the need for the prisoner's
testimony vis-a-vis the difficulties attendant to securing
it. Ballard, supra at 481.

It was early determined that the federal court's
authority to issue the writ extended to those persons in
custody under a sentence or execution of a state court. It
is applicable not only for purposes of securing testimony at
3
trial but also proceedings ancillary. And in the case of

a prospective witness currently in Federal custody, §2241 (c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities.4 Its issuance in such cases is premised on the underlying principle that "no sovereign power may interfere with or lay claim to the custody of a prisoner legally incarcerated in the jails of another sovereign power, except that upon a proper showing, and as a matter of comity, one sovereign power will permit another sovereign power to have temporary custody of a prisoner then in the jails of the former either to stand trial, or testify in a trial to be conducted in the courts of the

3

4

See Adams v. U. S., 423 F. Supp 578 (E.D.N.Y. 1976)
where the writ issued to secure a state prisoner's testimony
before a U. S. Grand Jury.

Barber v. Page, 390 U.S. 719 (1968) In addition, the court stated it is the policy of the U. S. Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs ad testificandum issued out of state courts. Barber, supra at 723-24.

latter."

Curran v. U. S., 332 F Supp. 259 (D. Del. 1971).

The reciprocal honoring of the writ based on comity accommodates
the needs of the varying jurisdictions without doing violence
to the constitutional scheme of government. As explained by
Judge Murrah;

As an easy and flexible means of admin-
istering justice and of affording each
sovereignty the right and opportunity
to exhaust its remedy for wrongs committed
against it, there has evolved the now
well established rule of comity which is
reciprocal, whereby one sovereignty having
exclusive jurisdiction of a person may
temporarily waive its right to the exclu-
sive jurisdiction of such person for purposes
of trial in the courts of another sovereignty.
Thus the offender is accorded a speedy trial
and the administration of justice is expedited
by the availability of evidence, which might
through lapse of time be lost, but such a
waiver is a matter addressed solely to the
discretion of the sovereignty, or its repre-
sentatives having power to grant it. Ponzi
v. Fessenden (258 U.S. 254, 42 S. Ct. 309,
66 L. Ed. 607), supra, and Ex parte Aubert,
D. C., 51 F. 2d 136. The privileges granted
by this flexible rule of comity should and
must be respected by the sovereignty to
which it is made available, and this respect-
ful duty is reciprocal, whether federal or
state, because neither sovereignty has the
power to override it. Under the free exercise
of this rule, no right or immunity granted by
the constitution, laws, or treaties of the
United States, is invaded or impaired.

Lunsford v. Hudspeth, 126 F. 2d 653 (10th Cir. 1942). In such cases it is proper to file the petition in the sovereign's court which is in the best position to evaluate the necessity