A Pragmatic View of Privacy

After six federal trials over a period of seven years, the Justice Department last week caught up with Teamster Boss Jimmy Hoffa. By a vote of 6 to 1, the Supreme Court upheld Hoffa's 1964 conviction and eight-year sentence for attempted jury fixing. Chances are, relatively few Americans felt much pity for the cynical czar of the nation's big gest union (1,700,000 members), who insists that every man has his price.

The country's truck drivers, to be sure, are still so loyal to him that they recently raised his annual salary to $100,000 and approved a succession gimmick aimed at putting him back in the driver's seat as soon as he has served his time (21 years if he wins parole). And some trucking employers are admittedly anxious for his early return; only Hoffa, they are convinced, can keep his men in line. Indeed, Detroit's Teamsters staged a 24-hour walkout last week in protest against the Supreme Court decision, forcing Hoffa to rush home and quell the strike at an emotional meeting. "Return to your jobs!" he cried. "Don't take the law into your own hands or you'll hurt me! Don't do it! Please!"

But far more important than those ironic effects is the fact that the Hoffa decision, along with two others last week, approved Government use of informers and certain electronic eavesdropping--practices that go to the very heart of privacy as well as due process.

Immune Plant. To snare Hoffa, Attorney General Robert Kennedy's Justice Department deliberately used spy tactics to get evidence, for which, Chief Justice Earl Warren sadly said, "the Government paid an enormous price." Soon after Hoffa went on trial in Nash ville in 1962 for accepting a bribe from trucking operators, the Government curtly told the judge that he was trying to bribe two of his prospective jurors. Though the judge dismissed the two jurors, that trial eventually ended in a hung jury. Hoffa was next tried on the jury-fixing charge in Chattanooga in 1964. And that time, the Government's star witness was none other than Ed ward Partin, a trusted member of Hoffa's Nashville entourage. The Government had freed Partin from a Louisiana jail in 1962, shielded him from assorted indictments (embezzling, kidnaping, manslaughter), and off he went to Nashville to get the goods on Hoffa.

Largely as a result of what Partin reported that Hoffa had said about his juror-buying efforts back in 1962, the Chattanooga jury convicted Hoffa and three aides. Thus the Supreme Court faced a key question: Did the Government so violate Hoffa's constitutional rights by planting a spy in his "quarters and councils" that Partin's evidence should have been suppressed?

Misplaced Confidence. Speaking for the court last week, Justice Potter Stewart flatly rejected all of Hoffa's constitutional claims. Although the Fourth Amendment bars guileful as well as forcible intrusion into a man's dwelling place, said Stewart, Hoffa was obviously not relying on the "security" of his Nashville suite when he made incriminating statements in Partin's presence. He was relying on "misplaced confidence" that Partin would keep his mouth shut. And thus far, said Stewart, the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."

As for Hoffa's Fifth Amendment claim that he had been "compelled" to incriminate himself, Stewart said that his blabbing to Partin was "wholly voluntary." Nor did Partin even violate Hoffa's Sixth Amendment right to have completely private conversations with his lawyers. Even if Partin divulged those conversations to the Government, said Stewart, the rule is that such intrusion "invalidates the trial at which it occurred," meaning Nashville. And that trial ended in a hung jury, making any intrusion academic. Besides, said Stewart, none of Hoffa's incriminating statements to Partin were actually made in his lawyers' presence.

With equal ease, Stewart discarded Hoffa's "novel" claim that the Government should have arrested him as soon as Partin's reports made him a "prime suspect"--whereupon Hoffa would have been entitled to silence and counsel under the rule laid down in Escobedo v. Illinois. "There is no constitutional right to be arrested," said Stewart. Then what of Hoffa's lofty plea that the mere use of Government informers offends due process and Anglo-American "canons of decency and fairness"? Sorry, said Stewart. "The use of secret in formers is not per se unconstitutional." While Partin unquestionably may have had "motives to lie," the only issue was whether he actually did lie--an issue fully resolved by his week-long cross-examination and the judge's instructions to the jury to weigh his credibility against his self-interest. "The Constitution," declared Stewart, "does not require us to upset the jury's verdict."

Official Obstruction. In sharp dissent, Chief Justice Warren insisted that, when rights are invaded, "prevailing upon friendship with the victim is no less proscribed than an invasion accomplished by force." Worse, said Warren, "here the Government reaches into the jailhouse" to hire a man facing far more serious charges than Hoffa's, makes him "the equivalent of a bugging device," and pays him off "through devious and secret alimony payments to his divorced wife," to say nothing of dropped indictments. Given Partin's motives, said Warren, "no conviction should be allowed to stand when based heavily on his testimony." As for the Government's tactics, "certainly, if a criminal defendant insinuated his informer into the prosecution's camp in this manner, he would be guilty of obstructing justice."

For all that, Warren approved the use of informers in two related cases. Hoffa Lawyer Z. T. Osborn Jr. was appealing his own conviction (3 1/2 years) for trying to slip $10,000 to one of Hoffa's Chattanooga jurors. In Osborn's case, the informer was Policeman Robert Vick, who had originally been hired by Osborn to investigate Hoffa's Nashville jurors, and who was later asked by Osborn to help bribe a prospective juror. By then, Vick had switched sides, and with approval of two judges, the feds had armed him with a tape recorder into which Osborn unknowingly spilled his suborning instructions.

In upholding Osborn's conviction, the court ruled that Vick's tape was completely valid evidence under the Fourth Amendment standard of judicially approved search and seizure. Warren agreed: "I see nothing wrong with the Government thus verifying the truthfulness of the informer and protecting his credibility." Moreover, Warren himself wrote the majority opinion in a third case approving the tactics of a U.S. narcotics agent, who phoned Boston Marijuana Peddler Duke Lee Lewis at home, called himself "Jimmy the Polack" and arranged for Lewis to sell him eleven "bags" (71.5 grams) for $100. Although the Fourth Amendment shields a man's home, said Warren, a disguised agent is fully entitled to pierce the shield without a warrant when the home has actually become "a commercial center to which outsiders are invited for unlawful business."

Gain v. Loss. Not surprisingly, Justice William O. Douglas was stirred to hot protest in defense of privacy, one of his current constitutional passions. "We are rapidly entering the age of no privacy," Douglas argued, as he ticked off "rampant" use of bugging, wiretapping, lie detectors, personality tests, police entrapment, and even "peepholes in men's rooms to catch homosexuals." As Douglas sees it, the whole picture reflects an official "philosophy that the means justify the ends."

To strengthen the Fourth Amendment, Douglas argued, the court should have required the Lewis-case narcotics agent to get a search warrant, for which he had probable cause. In Hoffa, even though Douglas voted to dismiss on technical grounds, he denounced the Government for " 'planting' a friend in a person's entourage so that he can secure incriminating evidence." In Osborn, Douglas argued that even prior judicial approval of Vick's bugging violated the Fourth Amendment ban against a search designed to uncover anything more than the loot or the tools of a crime. Moreover, he insisted, using such evidence as Osborn's tape-recorded words violated the Fifth Amendment as well, because the Government can thereby "make a man talk against his will." And suppose the tape is "rigged" by skillful editing? That trick may be virtually undetectable, warned Douglas; yet his brethren have now approved Osborn-style bugging as "well-nigh conclusive proof."

Douglas was pretty clearly revving up for a forthcoming New York case that may set constitutional standards for electronic eavesdropping. Unhappily for Douglas, though, the court seems no more likely to stop all bugging (even if it could) than it is to curb informers who betray their friends. Unless the police go too far, the court seems willing to take a very pragmatic view of the Constitution, on the theory that the gain in safety is worth the loss in privacy.

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