Therefore, the defendant held the key to his own speedy retrial and the reason for the greatest portion of the delay between the first and second trials, the defendant's willful disobedience of the trial court's order to answer certain questions, should not be weighed against the state. The defendant asserts that the trial court's contempt and commitment order violates the standard established in Yates v. United States, 227 F.2d 844 (9th Cir. 1955), cert. granted, 350 U.S. 947, 76 S.Ct. 322, 100 L.Ed. 825 (1956), and was therefore an invalid justification for the delay between trials. The court in Yates held that imprisonment cannot be used to coerce evidence after the trial has terminated.
See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 78 L.Ed. 674 (1934). See also United States v. McCord, 137 U.S.App.D.C. 5, 420 F.2d 255, 257 (1969); Yates v. United States, 227 F.2d 844, 846 (9th Cir. 1955), aff'd in part, rev'd in part, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). Although not identifying it as a constitutional guarantee, most courts in recent years have recognized that a defendant should be allowed to testify in his defense.
That order was reversed on appeal on the ground that petitioner could not purge herself of the civil contempt since the trial had ended. Yates v. United States, 227 F.2d 844. Petitioner was again confined on Sept. 8, 1952, after the District Court, on that same day, adjudged her in criminal contempt of court for her June 26 refusals to answer.
The refusals were contemptuous of judicial authority because they were intentional obstructions of court proceedings that literally disrupted the progress of the trial and hence the orderly administration of justice. Yates v. United States, 227 F.2d 844 (CA9 1955). Respondents' contumacious silence, after a valid grant of immunity followed by an explicit, unambiguous order to testify, impeded the due course of Anderson's trial perhaps more so than violent conduct in the courtroom.
On September 3, 1952, four days after petitioner's release from custody, the District Court ordered her recommitted on the civil contempt arising out of the four refusals to answer on June 26. 107 F. Supp. 408. The District Court denied her application for bail pending appeal, but the Court of Appeals granted it, and she was released two days after her commitment; the Court of Appeals subsequently reversed the recommitment order of the District Court on the ground that petitioner should not have been reconfined for civil contempt after the close of the main trial. 227 F.2d 844. Two days after her release on bail, on September 8, petitioner was adjudged guilty of criminal contempt for the four June 26 refusals and sentenced to four three-year terms of imprisonment, to run concurrently. 107 F. Supp. 412. Petitioner was then reconfined; the District Court denied her bail pending appeal, but the Court of Appeals granted it, and she was released on bail three days after her recommitment. The Court of Appeals subsequently reversed this contempt judgment because of the District Court's failure to give any notice that it intended to regard the June 26 refusals as criminal contempts, 227 F.2d 848.
The Ninth Circuit has yet to decide whether the right to testify is of constitutional magnitude. In Yates v. United States, 227 F.2d 844 (9th Cir. 1955), aff'd in part, rev'd in part, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957), the court, in different portions of its opinion, characterized the opportunity to testify as both a right and a privilege. In Fowle v. United States, 410 F.2d 48 (9th Cir. 1969), the Ninth Circuit seemed to accept the idea that the right to testify was constitutionally required, relying on Justice Clark's concurrence in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
See U.S. v. Cardillo, supra. A defendant must have a fair opportunity to answer and should be aware of the consequences of refusing to answer. Yates v. U.S., 227 F.2d 844, 846 (9th Cir. 1955). The record shows that Panza and his counsel were expressly warned that Panza's testimony would be stricken if he refused to answer.
It was improper to use the sanctions of 28 U.S.C. ยง 1826 to secure testimony at a deposition that was no longer necessary in the proceeding. See Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Backo v. Local 281, United Brotherhood of Carpenters, 438 F.2d 176 (2d Cir. 1970); F.T.C. v. Stroiman, 428 F.2d 808 (8th Cir. 1970) (per curiam); Yates v. United States, 227 F.2d 844, 847 n.4 (9th Cir. 1955) (dictum); Harris v. Texas Pacific Railway Co., 196 F.2d 88, 90 (7th Cir. 1952). For this reason we vacated the district court's order of contempt.
There is no case law bearing directly on the issue. Weir relies on dicta in Yates v. United States, 227 F.2d 844 (9 Cir. 1955). There the lower court continued Yate's imprisonment for contempt for refusing to answer certain questions before the trial court, after the trial ended.
Moreover we believe the federal district court should have deferred to the determination by the state court that under state law Miss Carter could still have purged herself of contempt and was therefore not entitled to bail. The cases of Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) and Yates v. United States, 227 F.2d 844 (9th Cir. 1955) upon which the appellee seeks to rely are distinguishable since they involve federal rather than state prisoners. We are informed that Miss Carter has taken the stand in the state court trial and has testified.