
    Herschel GORDON, Petitioner, v. Richard E. GERSTEIN, State Attorney of the 11th Judicial Circuit, State of Florida, County of Dade, Respondent.
    No. 35134.
    Supreme Court of Florida.
    May 25, 1966.
    Rehearing Denied Sept. 21, 1966.
    Carr & Warren, Miami, for petitioner.
    Earl Faircloth, Atty. Gen., and Herbert P. Benn, Asst. Atty. Gen., for respondent.
   THOMAS, Justice.

This case comes to us via certiorari, under Section 4(2) of Article V of the Constitution, F.S.A., the District Court of Appeal, Third District, according to the court’s certificate, having passed upon a question of “ ‘great public interest,’ ” defined by the court as a “question of procedure relating to law enforcement * * * of legal and practical importance * * * applicable throughout the State.” A more precise statement of the problem will emerge as we give the facts and digest the law presented in the briefs.

The petitioner was served with a subpoena commanding him to appear and testify before the respondent-State Attorney. The petitioner appeared in obedience to the subpoena but he refused to answer any questions directed to him unless his attorney would be present during the examination. Thereupon the State Attorney applied to Honorable Gene Williams, Judge of the Criminal Court of Record, and got a citation and rule to show cause why the petitioner should not be adjudged in contempt of court for his refusal to testify in the absence of his attorney.

The petitioner attacked the contempt citation on the ground that Section 27.04, Florida Statutes, F.S.A., granted no authority generally to the State Attorney to conduct “secret” hearings and that, specifically, it did not appear from the proceedings just what it was that the State Attorney proposed to investigate. In the first place use of the adjective “secret” is not accurate or well chosen for secrecy of the proceedings would not be established simply because the investigating officer chose to go forward with his duties without waiting until prospective witnesses arranged to be accompanied by their attorneys. For aught we know, or the record discloses, the hearing room would have been open to the multitude while the investigation progressed. As for his lack of knowledge about the subject of the inquiry the petitioner had but to read all of Section 27.04 to learn that the State Attorney is empowered to resort to the procedure “as to any violation * * * of the crimiual law.”

Failing in his assault on the citation and rule to show cause, the petitioner filed an answer admitting his refusal to testify without the presence of his counsel and asserting that he was entitled to representation by an attorney by reason of the provisions of Sections 11 and 12 of the Declaration of Rights of the Constitution of Florida and Amendments VI and XIV of the Constitution of the United States.

At the hearing on the rule to show cause an assistant State Attorney swore that the disappearance of one Judith Hyams was being investigated and that there were “strong indications” that foul play was involved.

At the conclusion of the hearing on the contempt citation the judge ruled that the petitioner would be required to observe the witness subpoena and appear before the State Attorney or one of his assistants without the presence of counsel.

From the order of the trial court the petitioner appealed to the District Court of Appeal, Third District.

According to the petition for certiorari here the petitioner believes that the appellate court was faced with the question whether a court, “or a prosecutor, may compel a person to appear without counsel before a prosecutor and give testimony in secret against his will concerning violations of the criminal law of this State.” (Italics supplied.)

The District Court of Appeal was wholly unsympathetic with petitioner’s position and sustained the trial court on the authority of Dinnen v. State, 168 So.2d 703, where the court was dealing with an identical situation.

We are nonplussed by repeated references to a “secret” session in which the State Attorney was undertaking to ferret out crime and the perpetrators of it. True, investigations by a grand jury are secretly held because the statute requires that they be secret but there is slight if any analogy between such procedure and that followed under Section 27.04. Eventually in his brief the petitioner, himself, submits that there is clearly no analogy between such inquests before a prosecutor and before a grand jury citing Sections 905.17, 905.24 and 905.27, Florida Statutes, F.S.A.

The petitioner makes the bald assertion that the ruling in Dinnen was wrong and should be “specifically” overruled by this court.

The petitioner dislikes the decision in Dinnen and prefers the dissenting opinion of Justice Black in Anonymous v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed. 1234, but we do not join him in the choice. Rather we adopt the logic of Judge Augustus Hand in In Re Black, 47 F.2d 542, quoted fully in Dinnen. It is true that Judge Hand was considering an objection by a prospective witness to appearing before a grand jury without counsel but his logic appeals to us and, actually he applies it to witnesses at trial also. What a spectacle would evolve if all the witnesses before all the grand juries and all the prosecutors in the State could plant their feet and defy inquisition into criminal violations unless each had an attorney at his elbow. That would indeed be a leap from the sublime protection under the Constitution to the ridiculous obstruction of justice. We don’t view the administration of justice as a means only of coddling prisoners and securing to lawbreakers escape from paying for their misdeeds but rather as a system to winnow the guilty and innocent to make freedom as well as guilt more sure.

In his next question, the petitioner asserts that there is no authority in Section 27.04 for the State Attorney to hold a secret inquisition, and in his formal presentation of the problem he insists that there is no authority in the State Attorney to exclude counsel for a witness being interrogated.

We think this treatment of the litigation puts the vital question completely out of focus. We know of no provision for secret inquisitional sessions by the State Attorney. This is the attitude of the Attorney General, respondent, who says in his brief that what he “is. empowered to do pursuant to Sec. 27.04 F.S.A. is not done in ‘secret chambers’ ”.

But the petitioner pursues the matter by urging that such an inquisition by the State Attorney is a stage of a criminal prosecution and having adopted that as a premise he contends that if the witness, presumably any witness, is summoned under the act, he is entitled to counsel at that step in the prosecution, else his rights under Section 11 of the Declaration of Rights of the Florida Constitution and Amendment VI of the Constitution of the United States securing to the “accused” in all prosecutions the assistance of counsel, and Amendment XIV prohibiting the State from enforcement of laws that abridge the privileges or immunities of citizens under the Federal Constitution are violated.

All this argument is beside the point of the case which as we have indicated is not brought clearly into focus. The petitioner presented himself in obedience to the subpoena but he refused to testify unless his counsel was with him during the interrogation. This, apparently, was on the theory that he himself might eventually be prosecuted and the State Attorney’s inquisition being a stage in the proceeding would constitute the deprivation of the right to counsel guaranteed him by the Constitutions. But this was a forlorn hope and the position seems to have been settled in In Re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376. It is true that was a case dealing with an inquisition by a fire marshal1 to determine whether a fire resulted from carelessness or design, but the underlying principle is the same. The court said it was not a criminal trial or an administrative proceeding that would adjudicate the witnesses’ responsibility. Then appears this significant language: “The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel.” (Italics supplied.)

From our study of the record we are convinced that the petitioner was not justified in declining to answer the questions asked him by the State Attorney and that his failure or refusal to do so unless accompanied by his attorney was contemptuous. Since the hearing was open, doubtless the petitioner’s attorney could have been present, but that circumstance is only inci-dentál.

The decision of the District Court of Appeal is affirmed.

THORNAL, C. J., and CALDWELL, ERVIN and HOBSON (Retired), JJ., concur.

ON PETITON FOR REPIEARING

In his petition for rehearing the petitioner asserts that this court made inconsistent rulings, that is, that by affirming the judgment of the trial court we held that the petitioner’s attorney should be excluded from the room during an investigation, as he interprets the decision of the trial court, and that the hearing under Section 27.04, Florida Statutes, F.S.A., was open. We do not give the order of the trial judge such a literal meaning.

j; He was faced with the problem whether Ol‘ not a prospective witness could refuse to testify unless he was accompanied by his attorney. Obviously, the judge was correct when he decided that the proposed witness could claim no such right. In his order he held that the petitioner should appear and submit to interrogation “without the presence of counsel * * Inasmuch as the prime question was whether or not a witness could refuse to testify without his attorney being present and since the hearing was, or should have been, open, we interpreted the quoted portion of the order to mean that the witness would have to appear whether his counsel was present or not.

' A picture of the proceedings gathered from the record seems to justify the interpretation. The petitioner states that the court was correct in holding that hearings under Section 27.04, Florida Statutes, F.S. A., were open. This seems to be the attitude also of the State for in the Attorney General’s brief we find this language: “Even if the interrogation rather than 'inquisition’ takes place pursuant to Sec. 27.04, F.S.A., these proceedings are not of such a due process nature as to warrant the presence of counsel along with the witness.” And it is further stated in the brief that “Perhaps it is important to mention what the State Attorney is empowered to do pursuant to Sec. 27.04, is not done in 'secret chambers.’ ”

The record shows that at the outset of the investigation the assistant state attorney, who was conducting or assisting in conducting the hearing on the citation for contempt, stipulated that when the witness, now petitioner, came into the office of the assistant state attorney, there was no time to advise him of “anything” since witness’s lawyer refused to let him testify and the witness refused to testify without the attorney being present. This strongly resembles a non sequitur but we will not pause to discuss it. Instead we hasten to the next entry in the record where it appears that the assistant state attorney said to the witness’s attorney “ ‘You may not stay in here, sir, but your client may ask you, and go outside to do so, any questions that he is asked to confer with you. As far as sitting here during the time I am questioning him, you may not, sir.’ ”

This presents a truly remarkable situation. At an open hearing attorneys representing witnesses would be excluded, but the witnesses could pass in and out to consult their lawyers. Such goings on would not, it seems to us, be conducive to orderly procedure.

After digesting the petition for rehearing we are back to our original thought that a witness may not plant his feet and decline to testify in obedience to a summons unless his lawyer is with him, and that any attorney may be present in a hearing so long as he does not interfere with the course of the investigation. If he does interfere, his conduct may be regulated by a proceeding in contempt.

The petition for rehearing is denied.

- THORNAL, C. J., and ROBERTS* CALDWELL and ERVIN, JJ., concur.  