William J. Brennan, Jr.

“ Other members of the Commission and its counsel made statements which were totally inconsistent with any belief in the applicability of the immunity statute, and it is fair to characterize the whole conduct of the inquiry as to the four as identical with what it would have been if Ohio had had no immunity statute at all. Yet here the crime said to have been committed by the appellants, as defined by the State Supreme Court, was simply that of declining to answer any relevant question on the ground of possible self-incrimination. ”

“ The Supreme Court placed its reliance entirely on the immunity statute. It held that the immunity under the statute was automatically available to the appellants, that even though it did not preclude federal prosecution it was adequate to make answers compellable, and that since 'the immunity granted * * * precluded the possibility of justifying a refusal' to answer on the grounds of self-incrimination, 164 Ohio St. at page 553, 133 N.E.2d at page 120, a direction by the Commission to the appellants to answer was not necessary. ”

“ Stern persisted in his refusal. The due process ground used in our Brother BRENNAN'S opinion to invalidate the convictions of Brown, Raley and Morgan is, therefore, not present as to Stern. There was no 'entrapment' in the above question upon which he was convicted, since it was made clear, even without reference to the Ohio immunity statute, that as to that question the privilege was not available. The reason given by the Commission, except where bad faith is necessary which is not true here, [19] is irrelevant. The test is whether the witness was commanded to answer regardless. ”

“ The second witness whom Judge Stewart had in mind would seem from the record before us to be Brown. The first count of Brown's indictment was based on a refusal to answer the question, 'And what has been your educational background?' After pleading the privilege, Brown was pressed for an explanation as to why his answer would be incriminating. ”

“ Stern was convicted for refusal to answer the question, 'Where do you reside, Mr. Stern?' The Chairman refused to accept Stern's plea of the privilege [18] and twice unequivocally directed him to answer the question. ”

“ A State may not issue commands to its citizens, under criminal sanctions, in language so vague and underfined as to afford no fair warning of what conduct might transgress them. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. ”

“ But this does not suffice: 'It is essential to our jurisdiction on appeal * * * that there be an explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws.' Charleston Federal Savings & Loan Ass'n v. ”