Justices Query Immunity Granted Hubbell

Article excerpt

A poker-faced Webster L. Hubbell sat front and center yesterday while seven Supreme Court justices pressed government lawyers to justify using files to indict Mr. Hubbell after they were obtained under a pledge of immunity.

"The immunity that you gave him immunized nothing. If that was the case, wasn't there a certain deception involved?" asked Justice Ruth Bader Ginsburg, a latecomer to the chorus of doubters who summed up questions from across the ideological spectrum.

"How rare is it to prosecute someone given such immunity?" asked Justice Sandra Day O'Connor.

"It is relatively unusual but far from unheard of," replied Ronald J. Mann, a University of Michigan law professor representing the independent counsel's office, for which he is a consultant.

Justices' comments don't always indicate an outcome, but yesterday's were unusually explicit. Lawyers and justices alike said the outcome could set radical new rules for how investigators collect evidence, arrange an identification lineup and subpoena business records.

Justice Antonin Scalia said the independent counsel's approach would allow a prosecutor to subpoena a gun from the registered owner if he was a murder suspect, even if there was insufficient probable cause to get a search warrant.

"You can't make him tell where the gun is, but you can make him go and get it and give it to you?" Justice Scalia demanded of Mr. Mann.

"Yes," said Mr. Mann. "We can force him to turn over the key to a strongbox with the evidence, but can't force him to tell us the combination."

"Prosecutors all over the country would fall down dead if they thought they could subpoena guns or bloody underwear. It's just completely unthinkable," said Mr. Hubbell's lawyer, John W. Nields Jr. of Washington.

Chief Justice William H. Rehnquist remained noncommittal and probed both sides.

When Mr. Nields said immunity was granted to elicit truth, the chief justice said, "Surely he must tell the truth."

"Yes, but under an immunity order the government is expected to hold him safe from prosecution," Mr. …