B. PRODUCTION OF A WITNESS INCARCERATED IN A PRISON BEFORE THE SELECT COMMITTEE 1. Memorandum on the Power of Congressional Committees To Have a Witness Incarcerated in Prison Appear Before the Committee TO: G. Robert Blakey, Chief Counsel and Director FROM: Jan Schlichtmann DATE: RE: Congressional Power to Produce the Incarcerated Witness This memo analyzes the legal mechanism for producing an incarcerated witness before a congressional committee. The areas discussed are: I. II. III. IV. V. The Nature of the Writ of Habeas Corpus The Power of Federal Courts to Issue the The Power of Federal Courts to Hear Petitions The Power of Congress to Issue the Functional Responsibility for Safeguarding and Transporting Conclusion Even though there could be jurisdictional problems with a committee petition for the writ of habeas corpus ad testificandum, they do not seem to be insurmountable especially in light of the courts' practice to issue such writs automatically. Should a court refrain from granting such a petition, a committee could still seek to exercise Congress' inherent power to issue such process. A court ordered writ has the benefit of allowing the committee to I. Nature of the Writ of Habeas Corpus Ad At English common law there were several species of the writ of habeas corpus, used to move prisoners from one court to another. The writ of habeas corpus ad testificandum issued to secure the presence of a prisoner at trial for testimony is among those listed. Blackstone 3 Commentaries *130. It was directed to the custodian of the prisoner with the object analogous to that sought by directing a subpoena duces tecum to the custodian of an evidentiary document, In re Thaw, 166 P. 71, 74-75 (1908), but in a situation where a subpoena would be unavailing. 8 Wigmore, Evidence §2199 (3rd. ed. 1940). It is to be distinguished from the other major forms of the writ; habeas corpus ad subjiciendum and habeas corpus ad prosequendum. Habeas corpus ad subjiciendum, sometimes referred to as the "Great Writ", constituted an inquiry into the cause of restraint. Blackstone, 3 commentaries *129-30. Ex The most popularly known, it is most often referred to by the shortened generic term "Habeas Corpus", as in the Constitution.1 Parte Bollman 4 Cranch 75, 95 (1807). The writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. Blackston, 3 commentaries *129. The federal district courts are expressly granted the power to issue the writ of habeas corpus ad testificandum in 2 28 U.S.C. §2241(c) (5). Ballard v. Spradley, 557 F 2d 476, 480 (5th Cir. 1977). The decision to issue the writ rests within the discretion of the district court. Ballard, supra at 480. When determining whether it should issue a writ ad testificandum, the district court must exercise its discretion based upon consideration of such factors as whether the prisoner's presence will substantially further the resolution of the case; the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is cleared without prejudice to the cause asserted. Ballard, supra at 480. 1 2 Art. I, §9 cl. 2 §2241(c) (5) also authorizes the federal district courts to issue writs of habeas corpus ad prosequendum. Ballard, supra at 477 fn. 2. Factors such as probability of success of the prisoner's It was early determined that the federal court's a prospective witness currently in Federal custody, §2241 (c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities.4 Its issuance in such cases is premised on the underlying principle that "no sovereign power may interfere with or lay claim to the custody of a prisoner legally incarcerated in the jails of another sovereign power, except that upon a proper showing, and as a matter of comity, one sovereign power will permit another sovereign power to have temporary custody of a prisoner then in the jails of the former either to stand trial, or testify in a trial to be conducted in the courts of the 3 4 See Adams v. U. S., 423 F. Supp 578 (E.D.N.Y. 1976) Barber v. Page, 390 U.S. 719 (1968) In addition, the court stated it is the policy of the U. S. Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs ad testificandum issued out of state courts. Barber, supra at 723-24. latter." Curran v. U. S., 332 F Supp. 259 (D. Del. 1971). The reciprocal honoring of the writ based on comity accommodates As an easy and flexible means of admin- Lunsford v. Hudspeth, 126 F. 2d 653 (10th Cir. 1942). In such cases it is proper to file the petition in the sovereign's court which is in the best position to evaluate the necessity |