Petitioner's problems in the foregoing argument.

• Jurisdiction: United States

Section 178. Petitioner's problems in the foregoing argument. —It would be stretching matters quite a bit to urge that, after the decision in the Hoffman case just the year before, petitioner's counsel in Greenberg was facing an uphill fight. The circumstance that the Court would not allow full time for argument demonstrated the judicial belief that the question was a narrow one, and the per curiam reversal that followed the argument by a mere five days⁵³ was further proof that the case was not one of outstanding complexity or difficulty, even though petitioner lost one vote that Hoffman had had.⁵⁴ But the argument does illustrate three points that have been discussed above.

(a) Don't let yourself be diverted. Back in United States v. Murdoch,⁵⁵ decided in 1931, the Court had held that a witness in a Federal court could not successfully refuse to answer a question when its only tendency was to incriminate him under State law. This doctrine was reaffirmed some 13 years later in Feldman v. United States,⁵⁶ over strong and articulated dissent by three Justices.

As the transcript of argument shows, petitioner's counsel steadfastly refused to be drawn into requesting a reexamination of the Murdock-Feldman doctrine. Why? Because I felt that if that issue were ever squarely raised, there might result a Donnybrook such as could well endanger the decision. I felt I was on sound ground by reason of Hoffman and Patricia Blau; why risk a sure thing for a very doubtful, very chancy bet? See Section 121, and reread the second full paragraph at p. 326.

(b) Don't attempt to cover complex details orally. The Greenberg record showed—I am abbreviating and simplifying substantially—that the Grand Jury's presentment charged both a refusal to answer four questions before the Grand Jury in violation of 18 U.S.C. § 401 (1) and a deliberate disobedience of the order of the District Court to answer those questions, contrary to U.S.C. § 401 (3) ;⁵⁷ that, after the trial, the District Judge made a general finding of guilty; but that the judge later signed a formal judgment and commitment which varied the general finding in two respects: First, it found petitioner guilty of only refusing to answer three questions. Second, it found him guilty only of deliberate disobedience of the lawful order of the court, omitting all reference to obstruction of justice by reason of failure to answer questions before the Grand Jury.

On the first appeal, the Court of Appeals dealt with the case on...