THE Justice Department is also trying to punish the defense lawyers, who work for an OEO-sponsored legal service in Los Angeles. The law service is being shut down in June, largely because the government's lawyer, Guy Goodwin, filed a complaint against it in Washington. Goodwin has also threatened to prosecute the defense lawyers for obstructing justice because they advised their clients to remain silent.

The five witnesses appealed late last year to the 7th Circuit Court of Appeals, which refused to reverse their convictions. The court ruled that the First Amendment did not protect them even from questions which did violate their rights to privacy, free speech, and free association. A Grand Jury's right to collect evidence is greater than a witness's First Amendment rights, it ruled in effect.

The court denied that the Grand Jury needed to have probable cause to believe that a crime had been committed in order to ask questions about a person's activities and said that it was the business of the Grand Jury to determine whether a given question was relevant. Grand Jury proceedings are supposed to be secret and a judge could not find out whether questions asked there were relevant or not without invading the secrecy of the Grand Jury.

Several months earlier, the 7th Circuit Court had ruled that requiring New York Times reporter Earl Caldwell to appear before a Grand Jury that was making a general investigation of the Panthers would drive "a wedge of distrust between the media and the militants." Thus, it would have a "chilling effect" on the First Amendment's guarantee of freedom of the press. The judges in that case held that only compelling national interest could be held to justify an invasion of the First Amendment rights of free speech, association, and press. But they held that their ruling was a narrow one. Though they had just emphasized the importance of the First Amendment, they argued that they were releasing Caldwell from testifying only because the Black Panthers are a very sensitive news source.

The Tucson witnesses have appealed their convictions to the Supreme Court, but the Court does not seem likely to accept their case for a decision. The liberal Justice Douglas would not grant them bail pending a Supreme Court ruling-an indication that he does not feel they have much of a basis for appeal. Most of the other Justices are less likely to be sympathetic.

The Supreme Court has ruled in the past that witnesses can sometimes refuse to answer questions at a legislative inquiry on First Amendment grounds but it has never held this in connection with a Grand Jury investigation. In fact, it has ruled that witnesses are "not entitled to set limits to the investigation that the Grand Jury may conduct... or to urge objections of irrelevancy." The Court has given Grand Juries virtually unlimited powers and it would appear that the Justice Department-which controls the Grand Juries-in-tends to use them.