David R. Jones v. United States of America, Willie L. Short, Jr. v. United States of America, Arthur L. Jones v. United States

JONES, Appellant, David R.

v. America,

UNITED STATES Appellee. SHORT, Jr., Appellant, L.

Willie

v. America,

UNITED STATES of Appellee. JONES, Appellant, L.

Arthur America,

UNITED STATES of Appellee. 17688, 17690, 17689,

Nos. Appeals

United States Court of

District of Columbia Circuit.

Argued April 29, 1964. Rehearing in banc Decided

On July 16, 1964. Millеr, Prettyman, Dana- Wilbur K. Dick, Washington, Mr. J. Jerome D. C. Judges, Bastían, (appointed by her and Circuit dis- court) appellants sented. in Nos. 17690 and 17692. Raleigh Washington, police Gerry Levenberg, D. Columbia in Mr. arrived C., Weinstein, it: Mr. Harris warrant and wrote on “Arrested with whom (both appointed Washington, C. 9-15-62 10:30 AM leigh Ra- D. Sheriff’s Office Sgt. court) brief, appel- O’Bry- on for N.C. Tilmon B. was Det. and lant in Nos. ant.” Atty., By begun Terry, O’Bryant 11:00 AM

Mr. John A. Asst. U. S. Acheson, question appellee. for Messrs. David Short. At first he denied all C. Q. according O’Bryant’s Nebeker, guilt, Atty., Joel D. U. S. Frank but testi- mony Blackwell, Messerman, Asst. on Gerald A. cross-examination “admitted Levetown, Attys., participation” and 2 or 3 U. S. Robert A. within minutes. Atty., O’Bryant questioned him Asst. U. S. at the time the brief about an hour appel- began filed, on and a half or were for two hours before brief Barry making Fredericks, O’Bryant lee. I. B. which Messrs. confessions Weitzel, typed. Michael Rauh and William C.

Jr., Attys., ap- Asst. U. also entered S. Sunday, September On pearances appellee. Best, Mr. Judah brought Short to of District Colum- Atty., Asst. U. S. at the time brief Monday morning bia. On Short was tak- filed, appearance was appellee. also entered an en for first a time before commit- ting magistrate, appointed lawyer who lawyer represent him. The talked with Edger- Before Chief judge, Bazelon, judge him or ten five minutes and told the and Circuit Senior Prettyman, ton preliminary hearing. he waived Judges,* and Wilbur K. Miller, Fahy, did not know what this meant. He could Burg Washington, Danaher, Bastían, not bond make and taken back and Circuit er, Wright, McGowan, jail. days later, Fifteen on October he Judges. ques- was taken typed tioned. The confessions in Judge: North EDGERTON, Senior Circuit Carolina were read and he confirmed Judges Bazelon, Fahy, Washington, them. Indictments followed. The con- Wright, parts and McGowan concur in fessions were admitted in evidence at I, II, parts opinion. and VI of this These the trials. Judges opinion of the court. Bazelon, Wright Fahy, join parts in III, IV, opinion V, and which are not the F.R.Crim.P., 40(b), Rule re of the court. quires person that a “arrested ap- * * * Willie Lee Short David Jones issued in warrant another state peal from сonvictions of assault with in- unnecessary delay shall be taken without Short, tent to rob. D.C.Code 22-501. § the nearest available commission appeal David Jones and Arthur Jones nearby judge er or a the United States robbery. convictions D.C.Code § in in the district which arrest was alleged 22-2901. The crimes were made” who “shall inform the defendant August July 28, have occurred 3 and charge against right him, retain counsel and of his have hearing hearing by sign A warrant for Short’s arrest was is- or to waive Aug- sued in the ust, District Columbia a waiver before the commissioner Thursday, September 13, judge. 1962. On or commissioner police Raleigh, ar- Carolina, North shall inform also the defendant that he required charge, rested state him on a notified the is not statement and to make a got police, District Columbia him from that statement made signed against him, Short a “waiver of him extradition.” used shall allow reason September 15, Saturday, opportunity On counsel Detective able consult Sergeant provided him to admit bail as shall

* Sitting by authority 13,1963. of 28 U.S.O. 46 Nov. § amended compliance confession, Metoyer these rules.”1 2There U.S.App.D.C. 62, with this Rule. F.2d (1957) , and Heideman v. United O’Bryant, Sheriff’s When office U.S.App.D.C. Raleigh, wrote on “Ar- warrant: (1958) , “inquiry where sure make AM”, 9-15-62 rested 10:30 it was his charging duty unnecessary to take Short “without wrong persons” (Heideman, U.S. magistrate delay” who App.D.C. 945) at 259 F.2d at seemed rights. O’Bry- Instead, him advise of his nothing appropriate. It has to do with length. O’Bryant questioned ant him at O’Bryant go case. did not any not “did see need to take him before Columbia to North Caro magistrate committing in the State of pocket lina with in his the arrest warrant North Carolina” and made effort do any purpose. for such He well knew argument appeal so. In oral of this Short was to held. had no He author government 40(b) conceded that Rule ity O’Bryant to release him. Moreover complied should have been and was not testified that Short an oral confes made with. sion or within “two three minutes.” Though custody Short had in the been government challenge not trial does officers, of state at some time became he judge’s findings purpose of O’Bryant’s prisoner. is no There evi O’Bryant’s interrogation “to of Short was dence that this time was later than 10:30 get a confession out of him.” Before O’Bryant AM, when wrote “Arrested” on began write, subjected he Short warrant, or that the state officers ques an hour and a half two hours of question who then allowed him to tioning purpose getting for the in violation not law would have allowed O’Bryant typed confessions which magistrate him to take Short were introduced in which evidence. The compliance with law. He testified that lag time occurred not while the state hospitable”.2 the state “most officers were being typed ments were but before “Unnecessary began delay”, therefore, typing began. nothing There is to take later not than 10:30 AM and included' McNabb-Mallory this case out of the time two some hours later when rule that “a confession is inadmissible O’Bryant began typing the confessions illegal during if made detention due that were introduced promptly carry prisoner failure be trials. committing magistrate”. Upshaw fore a delay ques- purpose Some for the v. United U.S. tioning person an arrested to determine S.Ct. 93 L.Ed. 100 Short’s whether should be held or released thought “necessary”. should has sometimes confessions not have been admit pur- appropriate But this assumes some ted in evidence.3 His must convictions pose delay obtaining for the than other therefore reversed. practically pro- This identical with the the FBI had or asserted control over 5(a), F.R.Cbim.P., prisoner. visions Moreover, Ap- of Rule re- the peals the Court of persons garding on a arrested domestic said if the arrest and detention warrant. purpose local had been “for the enabling question federal officers to they willing 2. Officers testified were to let concerning defendants the bank robberies go because the District of Columbia period for a of time forbidden to federal charges were more than serious the state 5(a) officers Rule Federal Rules charge. Procedure, of Criminal admissions thus Coppola, v. States F.2d 340 properly obtained would be excluded.” (2d per curiam, 1960), Cir. aff’d 365 U. 281 F.2d at 344. (1960), S. 6 L.Ed.2d 79 upheld custody admission confessions obtained 3. That Short had been in state FBI while the defendant was a does not mean that mis- prisoner, apprehension state but “the taken in his belief that he arrested Short. exclusively detention were state In substance if form said suggestion crimes” and there is no

II 97 L.Ed. case, present In the trial, confession In each Short’s testimony Arthur about David and Jones nr jury with “name” was read names made it obvious that the omitted person” substituted “named Su illegally But as the Joneses. obtained names theirs. testimony said, other preme has prejudiced them therefore confessions impossible for such a de make as well as him. from the incrimination divert vice to co-defendants, against a confessor’s As anony “an co-defendants confessor’s hearsay. York, is inadmissible nobody”. New the confession Stein mous writing. you will him oral confession “If let reduce the officers state U.S.App. States, go v. United Muschette arrest him.” I will judgment (1963), legal. F.2d 989 A crime commit D.C. The arrest 569, grounds, U.S. 378 a fed of Columbia vacated 84 in the District ted (1964), 1927, purposes 1039 12 L.Ed.2d removal of the for S.Ct. crime eral steps Wimsatt, locate a to were taken 161 v. immediate United States statute. arrest to typist, (S.D.N.Y.1908); entire time v. the United States and 586 F. twenty only (E.D.Pa.1910). presentment hour and was an Campbell, It F. 179 762 Congress, viola act of minutes. is “defined case, O’Bryant necessity present testified an offense act is of In the of the tion against charges; States, first denied the and such of at that Short the United question uniformly prosecuted O’Bryant him and to been continued have fenses according minutes”, States, 3 F.2d or three Parker two such.” 903, v. United “within to 1925). testimony (9th O’Bryant’s on cross-exami- at 904 Cir. detail, confessed; legality illegality nation, in what of ar- or the But the appear. any, and direct if not On is irrelevant. Even the arrest if does rest examination, O’Bryant illegal, testified not have relieved that would re-direct obligation arresting only confessions later written officer the the magistrate. alleged promptly typed. oral When the take Short The status North Carolina which he attempt not of the war- made he did confessions writing continued and of is therefore irrele- but rant them to reduce to half and a for an hour vant. to Short “talk” type. began to This court has sometimes held if a before he or hours two “ques- prisoner point as he he confesses as soon is ar- he testified that At one police immediately reduce for before he rested the two hours tioned” Short began taking writing type. point instead of At he said his confession another immediately magistrate, story in him before a the own words the Short told as well as state- written the oral confession asked written then began write, Those be admissible evidence. cases asked ments. When questions typed were not reviewed the Court. in narrative answers court banc not now This does consider form. overruling they Mallory these cases because do not would be left of the Little They emphasize confession, getting quick police, cover this case. promptness both the after discussing spend with which the written con- hours case could the and, possi- get with fession obtained then an admissible written statement. exception States, present ble Porter v. United case three resembles recent U.S.App.D.C. 385, police got 103 258 F.2d 685 in which the immediate cases (1958), denied, 906, cert. S. 79 oral confessions seek further evidence from the then continued to (1959), prisoner Ct. 3 L.Ed.2d 1257 promptness prisoner producing magistrate, with which the him before either crime, before a magistrate. by taking In then taken before a Meto- him to the scene yer States, U.S.App.D.C. States, v. United 102 v. Jones United 113 U.S. writing (1957), App.D.C. 256, (1962); 250 F.2d 30 Na 307 F.2d 397 began ples States, U.S.App.D.C. confession “within 20 or 25 minutes v. United 113 voluntary (1962), first (in after the statement” and banc), F.2d 618 307 prisoner magistrate by questioning crimes, to a taken so him related about quickly speed” up U.S.App. that he “undue claimed Coleman v. United 115 presentation. set his In Heideman v. F.2d D.C. 317 891 This U.SApp.D.C. 128, United F.2d 943 court held that the oral confessions were (1958), denied, cert. admissible but the evidence afterwards haye (1959), acquired S.Ct. L.Ed.2d should been excluded be unnecessary delay. did not even take the time to cause against cus- In be al- accordance time-honored used co-defendants tom,4 jury lowing against con- trial cautioned the it used only that a confession is con- fessor himself. follows forget jury But the confessor. can victions the Joneses as well as one in consider- defendant’s confession convictions Short should reversed. the case co-defendant whom Su- Anderson v. United States the implicates. Speaking for Second preme in evi- Court held admission Circuit, Judge Hand Learned called illegally dence of obtained confessions “subterfuge”. time-honored custom a of some defendants convic- vitiated the why He “There reason said: is no ground tions of all. One of the decision prosecution if it chooses indict several judge’s charge was that allowed together con- defendants should not be ascertaining jury “to assume fined evidence admissible all.” guilt they or innocence of each defendant probably furthers, But he said the “rule proof could consider the whole made impedes, than rather search 356-357, the trial.” U.S. truth, perhaps and this excuses de- S.Ct. 87 L.Ed. 829 But in vice which satisfies form it vio- while York, the later case of Malinski v. New substance; is, lates the recommen- L.Ed. gymnastic dation of a mental (1945), sustaining con- state court beyond, only powers, which their viction where a coerced co-defendant’s anybody but else’s.” Nash joint confession had been introduced at a States, 1006, (1932). 54 F.2d 1007 trial, Supreme distinguished Court suggests, theory As this statement ground primarily Anderson subterfuge probably behind is that proceeding it dealt with criminal “a a confession is such valuable a federal District Court over which we against policy the confessor sound have more do control than we over crim- pеrmits joint trial, despite its at use a courts”, only inal trials the state and harm it does to confessor’s secondarily ground (“Moreover”) on the ought co-defendants who to have the it involved an erroneous instruction protection hearsay rule. jury. 401, 412, 411, 324 U.S. Supreme a co- sustained (1945). present ap- S.Ct. 781 Since the (1) defendant’s where conviction peals, Anderson, like involve “a criminal against confession was admissible proceeding Court”, in a federal District confessor, (2) impractical it to de- co-defendants’ convictions should co-defendant, (3) lete references to the Anderson, as reversed as affirmed enough against there was other evidence in Malinski. (4) conviction, him sustain his and ju- the time-honored admonition Ill ry clearly repeatedly given.5 and We said in 1955: it “No doubt would they prosecutors Since be a boon to if could were not confessions against Jury him, person summon admissible even there is no before a Grand being permitting reason whom whatever for them to an indictment sought prejudice interrogate him, his co-defendants. And the and there iso- purpose rule, McNabb-Mallory protection lated from the of counsel discourage presiding judge prolonged questioning in or- and insulated from the get public. der a confession sus- critical observation But before the pect magis- rights by question is told of (cid:127)there is serious our his whether trate, jurisprudence, would be defeated as al- fortified constitutional much lowing wrongly declaration, procedure.” permits obtained confession to ed., Frankfurter, Douglas Black, 4. Wigmore, 3d Justices §§ Evidence, dating cases from cites Brennan dissented. Kramer v. United Cf. States, U.S.App.D.C. 50, F.2d 5. Delli Paoli v. United (1963). (1957). 77 S.Ct. L.Ed.2d 278 recognized appro- U.S.App. utes, have often United v. Powell priateness 367, 372, of one rule We D.C. jurisdictions so and another question be answered should think this subject they to federal law.” negative. far as are reconcile We cannot in the States, 336 U.S. procedure, in this Griffin v. United was used which (1949). guaran L.Ed. 993 case, 69 S.Ct. the Fifth Amendment compelled person The courts of the District Columbia shall be that “No tee with en- should not content themselves forcing witness criminal case to be a which the minimum standards himself.” They requires. should the Constitution investigation grand jury trial, Like example re- also set for the Nation which a crime is “a criminal case” rights spect for of citizens. incriminating questions need not an- Hitchcock, 142 v. swered. Counselman grand ju interrogation before a Mere 547, 562, 195, 35 L.Ed. as much may as ry accused harm the trial, putting the ac- At a interrogation trial. Even at a mere his on the witness stand without cused incriminating state “no direct makes asking anything at all him consent way ment, to know whether there privilege would violate constitutional incriminating appearance was in fact against self-incrimination.6 We think members or all the of some minds in the taking him with- before the Jury.” United States of the Grand asking anything out his consent and him (N.D.Ill. DiGrazia, F.Supp. privilege. perhaps violates his This is brought having 1963). His implicit action Court’s suspicion. manner and may His arouse States, infra, in Lawn v. 339, may suspicion. Because arouse voice 2 L.Ed.2d 321 secret, investigations as view,7 minority If is not and ours is a is “isolated Powell said in we Appeals York the New Court of said presiding protection of counsel in a different connection “We well ob from the critical insulated disregard weight authority else- may Though public.” he servation own, and where start with a rule of our was, unqualified, to decide as Short be practical experience. consistent with answer, questions he himself what for ** * Consistency go requires us to peril. If he answers at his must decide go go forward or to back. cannot We may incriminating questions make it he * * * present back. The distinction did, certain, in that he will be as Short Campbell is indefensible.” York v. New grand testimony And before the dicted. Evening Post, 320, 245 N.Y. N.E. 157 used, though jury may be 153, (1927). 52 A.L.R. 1432 testimony not, impeach trial.8 at testify all, an U.S. or to 328 If refuses to United In Fisher v. ground questions 476, 1318, 1382 on the 463, L.Ed. swer some 90 66 S.Ct. might him, “Mat- incriminate (1946), Court said: answers grand jury may If relating in the draw conclusions. enforcement to lаw ters questions that are answer courts he refuses to are entrusted to the guilty incriminating, policy is not to inter- not Our the District. contempt. prosecutor aloud the read of law which The the local rules fere with they fashion, typed, exceptional situa- confessions that save in they egregious his and com- asked has been and tions were error they acknowledged decisions, “Court, its were true. He mitted.” Apparently Congress, other evidence stat- little in its were. and enactment denied, 936, 1959), “universally S.Ct. 8 cert. 360 U.S. 79 held.” 6. This is said to (1959). McNaughton ‍‌‌​​​​‌​‌‌‌‌‌​​​​‌‌‌​​​​‌‌​​‌‌‌‌​‌‌‌‌​​‌‌‌‌‌‌‌‌​‍Evidence, Wigmobe, L.Ed.2d 1548 rev. 3 2268, p. 406. § Wigmore, Evidence, 2363, p. ed., 8. 8 § 3d (1954); Unit A.L.R.2d 238 7. See 38 Cleary, (2d Cir. 265 F.2d ed v. States grand jury fully possible, presented,9 in he would him as but incapable still of an intelli have been plainly prejudiced dicted him. He gent of coun waiver without the advice interrogation. by the Michigan, sel. Moore v. Cf. validly not Short did waive (1957). 191, 2 L.Ed.2d grand jury and not be taken mentally “intelligent, acute” Even “ indulge every questioned. rea- ‘Courts up dependent defendant should not “be presumption sonable waiver’ of government agents legal on counsel rights.” fundamental constitutional aid, able however conscientious and Zerbst, 458, 464, Johnson v. U.S. agents may be.” Moltke v. those Von (1938). A S.Ct. L.Ed. Gillies, 708, 720, 725, 68 waiver is not unless it is intelli- valid 92 L.Ed. 309 “intelligent gently An made. waiver Moreover, gave in our view Short * * * case; depend, must in each consent, unintelligent one, not even an particular facts circumstances grand jury to be taken before the on surrounding case, including October 2. His actual of mind is state background, experience and conduct of irrelevant, since a of mind that state the accused.” an indi- Ibid. Short expressed implied or words or Negro gent schooling young whose legal conduct has no effect. He was not grade. stopped with the third Reece Cf. shortly asked October or even be Georgia, day, go fore whether he wanted to (1955); Huff, L.Ed. 77 Williams v. grand jury.10 before the He was taken U.S.App.D.C. 326, 146 F.2d 867 jail in handcuffs. He had been in al barely He cannot read and can write. frequently most three weeks. Prisoners pоlice necessary found it read acquiesce suggestions, or orders explain simple to him twice a form for consent, pressure “true free fear waiving him, extradition. No one told readily is not so to be found.” Judd v. grand jury, before he was taken to the U.S.App.D.C. 64, 66, rights jury what a orwas what his (1951).11 although be, before it would the com- mitting magistrate facing police actually When Short was general told him in warn- terms that he need it was too late warning not “incriminate himself.” Even if the to mean much. government things explained gave prosecutor officers had him in the Probably jury. Little other evidence was available. meant a trial other, laymen juries many juries. one case but not are trial think all fingerprints. any case, willingness Sep- had Short’s David Jones surrendered, willingness but he had made no con- on October tember 16 is not trials, govern- anyone nothing fession. Even at the show 2. There is heavily thought ment relied on Short’s confessions. on October 2 that Short even principal grand provided willing The corroboration was to the then to be taken by co-defendant, Johnson, jury interrogated. who confessed before the trials but after the indictments hearing dismiss the 11'. At a on a motion to testimony by and was rewarded for his dismissal of said, pressed, Short when indictments robbery indictment grand jury before the he when he was acceptance guilty him and of a testify “knew he because he wanted plea bery. attempted for indictment rob- anything.” no did But he made at- hadn’t tempt exculpate himself before jury. Instead, grand grand 10. Detective testified that on he told the 16, September way jury signed on the from North which that his statements Columbia, Carolina to the he District were read to him were true. The motion testify suppress asked whether he Short wanted to to dismiss and motion confessions were grand jury before the and Short he denied. U.S.App.D.C. 133, In Moon v. said accept States, did. Short denied this. We 115 317 United F.2d 544 O’Bryant’s testimony. if, timely (1962), But motions as Short claimed, grand he did not know what made. jury was, thought he Well have ceedings pro- inadequate to District room wоuld have been States rights presence Court for tect his even Columbia cases”, preliminary hearings felony voluntary. prosecutor told The had been every Jury” but that each court “will make him he was “before Grand provide assignment effort to did not tell him in what business reasonable engaged. early prosecu- proceedings The counsel practicable.” ques- tor him Rule 44 of the Federal told he need not answer op provides and that be used tions answers could Rules Criminal Procedure trial”, appears court him “If the defendant “at but did future counsel, grand jury without the court shall advise not tell him would use assign right him of counsel and his answers to to indict decide whether stage represent every prosecutor counsel to him at him. The tell him did not proceeding pro- unless was entitled to he elects to consult counsel before being questioned. ceed without counsel or is able to obtain counsel.” Criminal Rule 24 of the Court

IV of General Sessions is in same words. “step in the is a crucial Indictment right Short’s Sixth “to Amendment against” proceedings the accused. have the for Assistance Counsel stages right he has at other crucial which defense” was withheld. The just in- jump the does not time begin counsel does not at trial. If it be- committing gan In this case the dictment. little, then would often be worth magistrate, of the Court stages. for cases are often lost at earlier Sessions, appointed counsel General “requires guiding The accused hand court’s in accordance with that every step proceed- of counsel at in the to be ings against about Rule 24.13 When Short was Alabama, him.” Powell v. questioning 45, taken to the 53 S.Ct. 77 L.Ed. badly his counsel. (1932).12 needed to consult This is a constitutional government prevented him from principle, But the not a mere factual observation. doing informing so, counsel Accordingly the accused is entitled to questioned. arraignment. was to counsel at Hamilton v. Alabama, 368 U.S. 82 S.Ct. committing magistrate deter- (1961); L.Ed.2d 114 Rives, Evans hearing mines, preliminary un- after U.S.App.D.C. 242, 250, hearing, lеss the accused waives whether (1942). He is entitled to counsel at held he should be to await action of preliminary hearing, at if he is least then rep- jury. duty It is counsel’s “to plead. Maryland, called White v. stage pro- every resent him 10 L.Ed.2d ceeding” Any requires. prac- as Rule (1963); Wood v. United assigning lawyer few tice of for the U.S.App.D.C. 274, F.2d magis- moments the accused before the A.L.R. 1318 He is entitled to re- trate more and no would mock the appeal. counsel on Ellis v. United quirement of assistance counsel. 2 L.Ed.2d appointment must continue until prosecution is terminated or coun- Congress implemented normally appointed, has the con- sel is which should right arraignment. Except stitutional to the assistance of rare be before op emergencies lawyer counsel. The no should asked Code Columbia Legal provides accept appointment. Aid 2-2202 that § a truncated Agency attorneys “shall available make There is contention that Short’s indigents pro- represent counsel, in criminal with or either without notice 335, Wainwright, lawyer again. Gideon v. U.S. 372 never saw this Cf. Cf. 343, 792, (1963). Trilling States, U.S.App. 9 L.Ed.2d 104 799 v. 177-178, 159, 677, D.C. 260 F.2d 695-696 (1958).

871 People Short, to with- from such v. obtained of court ensue leave detention.” Donovan, 148, cannot 13 draw. Unauthorized withdrawal 243 N.Y.S.2d N.Y.2d Judge agrees Prettyman 841,193 (1963). N.E.2d 628 tolerated. expressed para- views in this with the Illinois, Finally, 378 in Escobedo v. graph. 1758, 478, 12 L.Ed.2d 977 S.Ct. 84 U.S. held that (1964), the right to coun- Sixth Amendment of that case particular circumstances is if a obtained sel violated confession constitutionally entitled accused by questioning an defendant uncounseled during police questioning be- counsel against after indictment is used him in a Though ex- Court’s fore indictment. United States court. Massiah v. United ruling than the press no broader States, 201, 1199, U.S. 12 377 S.Ct. 84 facts, from the were different which case, (1964)14 L.Ed.2d 246 In that princi- case, underlying our facts pointed three Justices in a dissent out right begins be- ple that to counsel reasoning opinion that the Court's applies here. indictment fore equally pertinent seem “would to state- failing any By ments obtained at cоunsel after to inform time right prosecution attaches, examination, impending counsel there whether ” * * * at a cru- deprived has been an indictment or not his assistance (377 208, 1204). preju- p. greatly at In to Short’s cial time York, voluntary might have suc- New state- defendant’s dice. Counsel even being preventing ment obtained in the him from of counsel absence ceeded preliminary hearing grand general, jury. after and before in- taken before interrogations “secret, parte dictment has of de- been held inadmissible. ex People Meyer, pris- v. N.Y.2d are not conducted when fendants * * * (1962). prac- N.Y.S.2d This 182 N.E.2d 103 oner has counsel. questioning Fifth Circuit has said: “No can secret one tice carries dispute point the truth of Professor Chafee’s of invidious discrimination indigent statement, Lee v. United person defendants.” ‘A accused crime 1963). (5th F.2d Cir. lawyer right needs after his arrest gone Though be- counsel could not have probably any more than time.’ he could with Short fore It would not be therefore unreasonable given him in ad- have valuable advice recognize an coun- accused’s any, questions, as to vance what sel from the Lee moment of arrest.” there. should answer when he was taken v. United unlikely is most that Short would Ap- The New York Court of repeated his former confessions have peals recognizes right. Judge now if he had been counseled. Counsel court, Fuld said for that “One might him that those con- have advised important protections most counsel illegally fessions were obtained and could being can his de- confer while client is not be used in trial.15 pre- tained authorities V privilege self- serve client’s prevent depriva- incrimination and Since indictment obtained viola- rights rights tion of this and other which tion of federal constitutional must long here, charged accused, 14. The New York have held courts an uncounseled grand interrogated jury, counsel must be available whenever held for questioned considering jury in- the accused is People after indictment. before the Biasi, dictment, juris- 7 N.Y.2d Di N.Y.S.2d v. is without People (1960); N.E.2d diction to indict the uncounseled accused. Waterman, Compare Zerbst, N.Y.S.2d Johnson v. 9 N.Y.2d 467-468, N.E.2d 445 L.Ed. 1461 (1938). Judge Wright indict- would dismiss the following where, as ment reason: for 872 grand jury dismissed,16 at least This where substantial means that prejudice resulted, the violations the Fifth clause Amendment “re- against nothing privilege quires self-incrimina- No other consti- more”. right question

tion and of his to the assistance tutional was before Court. necessary opin- to dismiss counsel make We do not understand the Court’s say anything any him. This is ion to indictments about other con- quite independent question. of the fact that stitutional Due for- deference confessions, interpret opinion read to written which were bids us as con- grand jury, taining were obtained in viola- a vast dictum to the that effect McNabb-Mallory including tion of Constitution, rule. the entire all its Amendments, nothing “requires more”; authority We reason nor see neither words, proceedings in other that distinguishing between unconstitu- legally grand a constituted unbiased grand jury, composition of tional jury may violate number of the de- Texas, Cassell v. 70 S.Ct. rights, including fendant’s constitutional (1950), 94 L.Ed. 839 uncon- to the assistance of counsel grand proceedings jury, stitutional of a privilege against and his self-incrimina- although here, Supreme has Court tion, affecting validity without language used broad that the effect Costello, therefore, indictment. is no by legally “An returned con- indictment bar to our view that an indictment ob- grand jury, stituted unbiased like an in- tained violation of constitutional prosecutor, formation drawn if rights must be dismissed. On the con- face, enough valid on its to call for trary, substantially supports Costello charge trial of the on the merits.” Cos- Supreme this view. For the af- Court States, 359, 363, tello v. United firmed the conviction of Costello on the (1956); 100 L.Ed. re- ground grand jury’s that action in peated in Lawn v. United indicting him had not violated his con- U.S. 2 L.Ed.2d 321 rights. stitutional thereby The Court (1958). The context in each of these implied grand jury’s that if the action two cases shows that this broad lan- rights, had violated his constitutional guage applies only grand jury pro- when indictment would have been invalid and ceedings have not violated constitutional the conviction would have been reversed. rights. Lawn At a former trial Dis- urged petitioner Costello had judge indictments, trict had dismissed hearsay solely based on indictment ground largely compelling on the the Fifth evidence violated Amendment prospective appear defendants requirement person “No shall questioning capital, or otherwise held to answer for analogous compelling appear them to crime, presentment infamous unless on a though trial, ** in a criminal Jury or indictment of Grand noted, case, also as we do in this In re- 76 S.Ct. 406. U.S. adequate warning. Supreme jecting contention F.Supp. Lawn and his language quoted Court used broad co-defendants were afterwards re-indict- immediately Fifth above and added “The ed for similar crimes and convicted. more”,. nothing requires Amendment they claimed that nothing i.e., than an “indictment more the evidence obtained from them in the legally un- returned constituted * * * grand jury proceeding jury, first valid was used biased S.Ct. its face”. 350 U.S. at them in the second Texas, 359, 363, 16. Cassell v. S.Ct. U.S. (1956), indict- That an L.Ed. 839 is ir- L.Ed. 397 challenged ground here, ment cannot be on the since admission of such relevant inadequate incompetent right. evidence violates no constitutional presented grand jury, Costello that, proceeding. Court’s and in said: District discretion The Court light government’s concession, only question of the here deal “We not petitioners, had abused. circumstanc- discretion been whether in the case, pre- to a es of this were entitled present in the before us record hearing liminary to sat- them enable show, District and not does case isfy unsupported suspicions that the their testimony determine, not what did Court grand jury in- that this returned indictments, tending support use made direct or derivative dictment confessions, was before than Short’s they produced of materials which Washington Judges and grand jury. grand jury. holdWe before the should Court the District think McGowan they were not.” U.S. at that question then should and determine 311.17 This to indicate seems of Short indictments whether the decide “unsupported suspicions” that if the Irrespective of dismissed. be should facts, would the second indictment they think question, any constitutional resulting con- have been invalid and the taking of the un- record the on this victions would have been reversed. grand defendant before counseled by us jury not be countenanced should VI power supervisory of our in the exercise jus- of criminal the administration Tane, over 329 F. In United States v. So of Columbia.18 in the District tice Appeals 2d decided Court Judges majority, may be 24,1964, March for the Second on Circuit join Wright Fahy Bazelon, and and indict Court had dismissed Washington Judges in McGowan and ground resulted from ment on the that it disposing dismissal matter of the illegal tapping. government’s thus wire think, although present, we for the appeal on in conceded brief that case III, parts and V of in IV shown “where, we have here, indictment opinion, should now challenged the indictments this exclusively rests almost dismissed, merely of our because testimony, challenge sustained, power supervisory but because (p. the indictment be dismissed.” 2). Appeals compelled appearance The Court held that dis of the missal indictment was within self- violated his jury. thought 17. Lawn Costello in a are discussed sensible to We have Note, 111 U. of Pa.L.Rev. 1159- in situation have the District this Court accurately fully inform itself as to upon the in- what the evidence which Washington Judges rested, add and McGowan dictment can be said to have following: taking We believe that the decide was a foun- then to whether there particular apart supplied of grand jury, before the this defendant dation for it from that having solely by per- without first means of the defendant’s counsel, appearance grand jury. the benéfit consultation with sonal before the extraordinary disregard of the unimpressed its are not the conten- We situation, that, light handling by of his of the realities as well as de- tion of the customary practice. token, By same fense counsel of the motion to dismiss hardly court, extraordinary indictment, it is for this the District acted responsibility reasonably, is with considering position vested as it supervision justice criminal this we now take heretofore been has not circuit, clearly jurisdiction. to hold that there was a defect articulated this justice However, that, administration of in- this we on the facts of believe case, justice stance which warrants our intervention. this the interests of question familiar, then becomes the have been better served if the trial perennially difficult, had, irrespective positions one of the sanc- taken imposed supervisory counsel, exactly tion to if our informed himself power meaningful. happened is to be at all We what before the disposed have fixed light sanction more limited then motion in the knowledge. arising than automatic dismissal the indict- of that In cases precise future, pro- ment without reference to the such indictments in the state of the evidence before the cedure should be followed. Washington August 3, incrimination and because his to 1962. Detec- notify Sergeant O’Bryant, counsel violated failure to tive of the Metro- was politan warrant, lawyer appear. Police, that he was to who obtained the teletyped in and North Carolina appealed All re- convictions are Virginia giving the and addresses names versed and the cases remanded to of Short’s relatives in North Carolina. proceed- the District for further Court month) ings August I, (the parts II, consistent VI On same with and warrant, alleging majority robbery on opinion. of this another Less than a ruling July liquor part our 28th of in the District court think in VI a store by Municipal Columbia, of pro- should have issued retroactive well as was spective application. ruling of Court for the That here. It called arrest Zebulon, Jones, present one to David said to from therefore limited case and days cases in North Carolina. later Jones which indictments are Two hereafter gave sought. subsequently Compаre up found or himself and was Durham v. jury. 228, 240, U.S.App.D.C. bound over to the 862, 874, 45 A.L.R.2d 1430 e., early month, i. Sometime the next Blakeley, September, Deputy Sheriff Zebulon, Carolina, North received in- Reversed and remanded. given was ad- formation that Short at a Raleigh. couple days dress in A later Judge PRETTYMAN, Senior Circuit Raleigh (Thursday, 13, 1962) September (dissenting): given police officers went to the address Judge Edgerton’s opinion is divided warrant; copy County a the Wake parts (I VI), into to and this will dissent ap- Short went the rear door but was out follow that same format. prehended, and radioed officers However, discussing I, Point Blakeley Blakeley Sheriff in Zebulon. I deeply advert the facts. am dis- told them also that Short was wanted turbed because it seems me Washington, difficulty lo- D. C. Some majority brief résumé contained in the cating teletype ensued, but follow- opinion does not describe case shown morning O’Bryant a confirmed to by the record. Deputy Kelly Sheriff Short inquired he wanted here and whether Facts Kelly would talked “waive extradition”. year About a and a half Short, read extradition document events in the District of Columbia with him, twice told him he did not have concerned, which we are North Carolina sign to, if did he not want and ex- (on 6, 1961) warrant issued March plained procedure. he said Short Zebulon, the Recorder’s Court of Wake signed back “come here” and County, Carolina, North for the arrest waiver extradition. charge of one upon Willie Lee Short O’Bryant Raleigh flew to the next alleged deadly weapon, assault with a morning, Saturday, September 15th, ar- County. have Deputy occurred in that riving at about took ten o’clock. Blakeley family Sheriff knew the Short get short while for him sheriff’s attempted to execute the warrant but brought office and for Short to be except upon failed to find one the accused O’Bryant his cell. warrant: noted on the occasion when fled in car. “Arrested 9-15-62 10:30 AM Sheriff’s August 10, 1962, year On almost a Office, Raleigh, N. C.” foregoing, a half after the a warrant was Municipal O’Bryant give issued Court told Short need gаve District of Columbia1 for the arrest of statement and that if one it could charge Willie Lee Short at- be used him. Sheriff Scar- tempted robbery allegedly borough O’Bryant present committed and heard

1. Now the District of Columbia of General Sessions. O’Bryant inquired office. came to Sheriff’s then fiance so advise Short. going explained all, O’Bryant robberies, that he four in several about anything he knowledge and, of them. read some statements denied interrupt true, they read was not The officer then described to Short so. read state- police had him. evidence They ments; nobody interrupted; fingerprints in the had Short’s grocery contents had turned Short if the store. Jones asked David shoes, He police the true. answered Jones’s statements were himself in. The had sister, Short, they and the shoes were. Then later a ‍‌‌​​​​‌​‌‌‌‌‌​​​​‌‌‌​​​​‌‌​​‌‌‌‌​‌‌‌‌​​‌‌‌‌‌‌‌‌​‍witness as identified signed robbery. participant the fiance all state- worn They a in the latter’s shotgun from obtained ments. had

alleged apartment accomplice’s 16th, morning, September Sunday On O’Bryant testified, “I search warrant. plane O’Bryant boarded and Short * * * n him some of the informed O’Bryant Washington. talked En route that time evidence that we had and at to wanted he about whether to Short you ‘Well, said, tell he I as well grand jury; Short testify it,’ he told me.” truth about and about the truth to tell said wanted he say O’Bryant said, “Yes, I would further thing; (O’Bryant) said he and whole within an minutes or interval two They ar- provision be made. could minutes.” trial found: three The court Washington The noon. about rived O’Bryant testified, I believe “Officer him, and was that Short indicate does not record that this man confessed to him any subjected to questioned or otherwise Raleigh to he said he wanted because etc., booking, procedure, except routine give story. he him the whole When Monday evening. On afternoon or that morning, evidence, found out that was other o’clock, September 17th, ten at gave story he because he want- whole sitting presented to a was Short ' ** get toed it offhis chest lawyer was Municipal A Court. briеfly to O’Bryant typewriter appointed, talked and and Short obtained a signed (Short) telling had typed him, he him Short’s answers into statements. “to come Carolina The in North first concerned the at- statements statement Hearing Washington, tempted grocery D. C.” robbery It back to store. waived, to begun over p. bound and Short was at 12:30 m. and concluded was grand jury. implicated at Jones 1:03. Short David apartment one Johnson whose taken be- 2nd Short On October gun found. The second state- transcript grand jury. The fore begun 1:10 at ment at and concluded hearing prosecutor that the showed liquor store rob- 1:40. concerned the Short, answered: said to and Short Jones, bery, implicated and Short David Short, “Question: I Mr. want (David’s brother), Arthur Jones you you are before know man more named Johnson. Two state- going Jury Grand and that we concerning ments not in the robberies you questions. to ask want some cases at bar followed. last one was you you during don’t have know finished sometime afternoon. anything you don’t want to. here if sign did not ask Short to anything. You don’t have tell us upon completion, statements their be- you anything your If state- do tell us cause did he discovered that Short being and can ment taken down and, testified, not read well he any you be used future forcing knew had been accused of arising any trial out mat- sign defendants to statements and here, ters that talk about we Short were alone at the time. He there- you other matters. Do understand family fore asked have Short’s come that? eight evening in. About o’clock that wife, sister, and the latter’s Yes. “Answer: Knowing you during “Question: still sion is if il- inadmissible made testify? legal promptly to come want here detention due failure committing carry prisoner before a “Answer: Yes.” magistrate.” The heart of doctrine The statements made delay detention, is a under federal —not Carolina, by his sister North witnessed merely delay during delay but detention. fiance, and her were read to Short purpose require the doctrine they grand jury, and he was asked officers, federal Court has over whom the transcript true. The shows supervisory power (the not a doctrine is answered, “Yes.” On stand principle), obey constitutional a Rule. hearing answered, said he “No.” remedy provided by McN line abb Short, Johnson, On 8th October applicable of cases is to confessions made attempted David Jones were indicted for illegally while federal officer is with- robbery grocery and, to- store holding prisoner presentment. gether Jones, robbery of with Arthur In the cases at arraignment bar there was no deten- liquor the store. On tion, holding by no custody, any in guilty. fed- pleaded not eral or District of Columbia officer at On Johnson turned November 21st the time these confessions were made. himself in and a became witness the custody in Short was the of a North pleaded in Government both cases. He sheriff, being Carolina seri- held under a guilty ease, in and the indict- one charge ous of violation of a North Caro- ment was to dismissed as him. Motions My spell custody lina law. brethren a on suppress and to dis- confessions O’Bryant’s part from his notation at the made, miss the heard indictments warrant, time on the a matter I dis- shall robbery and denied. Trial on of the cuss in detail in a moment. There is liquor was on store had December 12th no shred of evidence that the North Caro- 19th, attempted trial on rob- O’Bryant lina sheriff turned Short over began bery grocery January store permission with to take him to a federal evidence, 1963. Besides other such magistrate authority to set him fingerprints, and, shotgun, as in one free. And it is fantastic to assume that case, by victims, identification the sheriff O’Bryant had such idea. presented Government as Johnson a wit- could not have terminated Short’s de- cases, presented ness in both and it tention, no (O’Bryant) matter what he written statements made in simply did. There was no detention put North Carolina. The defense Short’s authority federal point. sister and her at that fiance on the The stand. juries guilty returned verdicts of in both Supreme point The Court has met this appeals cases. The now before us are squarely, clearly. succinctly The appeals the consolidated from those con- question Second in Circuit had the United victions. Coppola.3 city police States v. Buffalo Coppola under a series arrest for I. agents interrogated state FBI offenses. Admissibility Statements robbery. him about bank He a confessed A. day to them. After noon the next statements court holds Short’s Buffalo turned him over to fed- O’Bryant un- officers, been inadmissible duly to have presented. eral McNabb-Mallory citing rule, also sitting Circuit, banc, der The Second en held Upshaw. Upon the record facts in the confessions admissible —“uncoerced us, point presented with- is during now before confessions made a detention McNabb-Mallory-Up- in the doctrine state officers which the Federal officials confes- is “a doctrine powerless pre- shaw. That did not induce and were Upshaw F.2d 340 L.Ed. 100 Raleigh by plane granted just in Supreme cer- arrived vent.” The Court began Washington, argument, him. Some tiorari, in to talk.to and then heard O’Bryant in- opinion af- one-paragraph conversation ensued. Curiam Per at question robberies —four now terested in a series of Circuit.4 firmed the equip- Then, question in precisely moment. borrowed is before us ment, typed out the statements. Coppola. typing stated, first As heretofore ought an- that a rule be be begun completed about and was 12:30 federal nounced a confession says that court at 1:03 o’clock. The person officer, law- made while confession, pur- for the the time of the custody a state state under ful officers Rule, poses of was 12:30 and that charge, court. in a federal is inadmissible unneces- 12:30 was time from 10:30 to rule. It would But that new delay. sary McNabb-Mallory doc- under yet trine; problem an- a number has ever no court We have Metoyer,6 rule; in Heidem would be nounced and it had it in such times. We Jackson,9 Porter,8 an,’7 exact contradiction to the now, never, subject.5 until decision on the haveWe Muschette.10 ascertain, held I can so far B. is inadmissible confession “threshold” delay un Regardless foregoing, minor of some later because reducing derstanding con- were admissible. Short the details statements writing.11 now orally court within two fessed them O’Bryant, point. writing who had three minutes after law on this new States, 762, 1289, Coppola 906, 3 L.Ed.2d 4. 365 U.S. v. United S.Ct. 79 360 U.S. (1961). 884, (1959). 6 L.Ed.2d 81 S.Ct. 79 1257 holding U.S.App. For cases confessions States, 5. similar 114 v. United 9. Jackson period given during a of state detention (1962). 181, 313 F.2d 572 D.C. admissible, Hollingsworth v. see United States, 116 U.S. v. United Muschette 1963); States, (10th 342 321 F.2d Cir. (1963), 239, App.D.C. va 989 322 F.2d Sailer, (6th v. F.2d 541 United States 309 grounds, 378 remanded on cated and 835, 1962), denied, cert. U.S. 83 Cir. 374 (1964). 569, S.Ct. 1927 U.S. 84 1884, (1963); L.Ed.2d Mor S.Ct. gan 10 1057 above, States, U.S.App.D.C. v. 111 see cited United to the cases 11. In addition (D.C.Cir. 127, 1961), States, U.S.App.D. Bailey 294 F.2d 911 cert. 117 v. United denied, 978, 482, ; Hughes (1964) 241, L. v. U.S. 82 S.Ct. 368 7 F.2d 542 C. 328 (1962); 127, States, U.S.App.D.C. v. Ed.2d Tillman United 306 439 United 113 States, 1959); (5th (1962); 422 F.2d Cir. v. United 268 Turberville F.2d 287 Carpenter States, 400, 405-406, States, U.S.App.D.C. v. United 264 F.2d 565 112 (4th Cir.), denied, 936, (1962); Sawyer 411, cert. v. 360 U.S. 79 F.2d 416-417 303 381, 1459, (1959); States, U.S.App.D.C. S.Ct. phenson L.Ed.2d 1548 303 3 Ste 112 United States, denied, 879, 392, v. United F.2d 83 257 175 cert. 371 U.S. F.2d (6th 1958); Papworth (1962); Lockley 150, Cir. v. United 9 L.Ed.2d 116 States, Cir.), 163, (5th States, U.S.App.D.C. 256 F.2d 125 cert. de v. 106 United nied, 854, 85, (1959). v. 358 U.S. 79 S.Ct. 3 L.Ed.2d Goldsmith F.2d 915 Cf. 270 (1958); States, States, U.S.App.D.C. 305, 88 Horne v. 246 United United 107 (5th Cir.), denied, 335, 343-345, 313-315, F.2d 83 cert. 355 cert. de- U.S. 277 F.2d 878, 143, (1957); States, 2 78 S.Ct. L.Ed.2d 109 nom. 863, v. United nied sub Carter States, 106, Brown v. United 228 F.2d 286 5 L.Ed.2d 86 364 81 S.Ct. U.S. (5th 1955), denied, (1960). Cir. cert. 351 U.S. For from other circuits cases 986, (1956). States, 76 S.Ct. 100 L.Ed. 1500 v. 596 see Evans United F.2d (8th 1963); Long, States v. Cir. United Metoyer States, U.S.App. United 1963); (6th F.2d 468- Cir. United (1957). D.C. 250 F.2d 30 (2d Ladson, F.2d 535 Cir. States v. 1961), States, U.S.App. 7. Heideman v. United denied, cert. 82 S.Ct. (1958), D.C. nied, cert. de (1962); Muldrow v. 7 L.Ed.2d 789 3 L.Ed. States, (9th F.2d 903 Cir. United 2d 767 1960); Holt v. F.2d denied, U.S.App.D. (8th 1960), 8. Porter v. United cert. Cir. (1958), denied, C. 258 F.2d 685 cert. 5 L.Ed.2d 747 says The court very O’Bryant’s it does not now over- was few minutes after being rule office, the cited cases. having the sit- arrival Such at the sheriff’s uation, ought submit that airport the court down touched at the at about ten cases, follow the holding whether some members o’clock. The sheriff was not disagree O’Bryant. or holding them not. The at case Short for He was him bar is an even more illustration vivid on his own account for a serious offense principle than involved the cases North Carolina. cited. Here the oral confession object 40(b) of Rule is to obtain * * * made “within two minutes juris- a warrant for removal to another minutes”; three several offenses and a respect diction. In this differs complicated involved; set facts were 5(b), merely Rule which results in a participants involved, four all holding juris- of the accused in the same them all of the crimes. in- sheriff, diction. The North Carolina quiring alone, strange officer was was in yielding custody Short, would have territory, equip- and had to use borrowed yielding him for removal out of ment. North Carolina. Furthermore Rule 40 requires (b) when a warrant re- C. moval is issued “the defendant shall be ruling point The court rests its on this admitted to bail”. So the sheriff would by O’Bryant a failure to take Short yielding have been Short for admission before a United States Commissioner to bail. In addition to these consider- compliance or a 40(b). with Rule ations there is relationship the delicate ruling To make this the court was re- between authority state and federal12 quired unnecessary delay to find an after criminal cases. That relationship Short was arrested and before he con- unalloyed is not one mutual love and words, fessed. In other the confession affection is one of the better known facts illegal must be due to an detention dur- judicial day. administration in our unnecessary delay. There is evidence that the sheriff says The court Short was “arrested” custody have released time Saturday morning. at 10:30 It bases prior to actually he time did make the finding solely this upon the fact release, e., O’Bryant i. when route was en O’Bryant wrote 9-15-62 “Arrested 10:30 plane. My to say brethren there is AM” on the warrant he had with him. contrary; no evidence to the therefore O’Bryant Of what course was meant they assume the sheriff would have— he read the warrant to Short or served indeed that he did —turn Short over to copy upon him. That is “arrest” in Saturday, about noon on parlance. normal with The notation had noth- permission get whatsoever to do a warrant of awith transfer of removal custody. But in the circumstances I bail. think we cannot reverse delay O’Bryant’s part case on must by speculating convictions facts not period be measured of actual cus- the record us. And think I tody. O’Bryant’s delay begin could not speculаtion totally in this is case un- prisoner. until he control over the Every realistic. consideration obvious Short; He had no inherent control over on the record indicates that sheriff permission he needed the of state officials actually would—as he did—move with holding who were Short on a state degree some of deliberation. An instan- charge. My brethren there is no custody taneous transfer of uninhibited O’Bryant’s evidence that Short became strange to a officer under out-of-state prisoner later than 10:30 mentioned. the facts of this case seems me pure speculation, “prisoner” That is a if beyond custody. permissible unsup- specula- realm of means one And the tion ported is unrealistic. hour of 10:30 inference. eyes Carolina,

12. In the of North of Columbia is federal. authority arrest make actually to He had Short released The sheriff morning. Sunday in North Carolina. The con- O’Bryant on given, typed, read had been fessions (d) semblance is no There pres- family, in their and reaffirmed no claim —that of evidence—and indeed O’Bryant’s delay on was no ence. There subjected form of was Short Delay part prior there- to those events. questioning for or to coercion extended after, any, if was immaterial.13 obtaining purpose of a confession. O’Bryant’s conduct was Lieutenant D. all concerned characterized time, including members pertinent: scene at are Other considerations family, exemplary; he, a Short’s vehemently (a) emphasize as I Negro officer, nice Willie.” “rather duty positive, af- can that is a —a throughout My that his conduct view is suspected per- duty ask firmative —to hearty deserves commendation. magis- son, presented to a before he (e) repeatedly told before charge, formal trate under a solemn spoke that not make a state- he he need anything about he knows whether it could be ment and that he made one alleged my To mind con- offense. against used him. He warned. po- trary is оf the so-called the essence talked; had a Nevertheless he really lice state. That to, as law. I understand the tyranny. (b) typing purported of a confes- II protection sion accused as question admission This is whether the police. weapon for much as it is a confession, all other Understanding expressions is of- of oral deleted, names was reversible error frequent- uncertain, ten recollections respect to all defendants. Short’s ly inexact, memory is characteristi- in each trial confessions were introduced writing cally faulty. an ac- But awith defendant, in which was a with the than, charged more with no cused can be of his deleted. names co-defendants nothing but, Ex- he said. else what robbery jury trial was cautioned requires emplary police procedure the re- immediately judge, trial writing. This duction confessions them, that the the confession was read requires facts to be sorted represented evidence confession And to be accurate. statement them only and was not to be considered takes bit time. Fur- and Arthur Jones. David (e) in- ther admonitions to this effect were warrant had with charge in cluded the court’s the him warrant. It was was a federal Similarly, by Municipal in the the our Court and had close case. issued attempted robbery trial, jury warrant, good only of the the status a state by judge, immediately jurisdiction trial cautioned the in of issue.14 Moreover the them, was read was not a officer but a after the confession federal against having Metropolitan policeman, the confession was evidence the sta- only; the instruction was also re- tus of a or other state officer.15 sheriff thority Mitchell, to execute See D.C.Code v. it. States United § ed.). (1944) ; (1961 64 88 L.Ed. 1140 Jack- 4-138 S.Ct. U.S.App.D.C. v. son 181, United ed.), (1961 which § 15. See D.C.Code 4-136 1962). (D.C.Cir. F.2d upon members of the force bestows powers of con- “all the common-law Rice, Askew, Judge F. in Kirkes v. excep- stables,” with certain enumerated Supp. (E.D.Okl.1940), num- collects a law an of- At common the acts of tions. assuming point. Even ber of cases on the beyond jurisdiction ficer were void. warrant, one issued under like the Sheriffs, Police, and Am.Jur. See 47 (1943), valid outside Constables and cases cited § Fed.R.Crim.P. Columbia, O’Bryant au- therein. had no District of peated announced, of the case. at the end each In now rule that state- by counsel the defense ex- instance ments one admit- defendant cannot be pressed joint repeated satisfaction instructions with the ted in a trial even with given. by judge as cautions the trial that the evi- is dence admitted defend- one judge, trial The course followed alone, largely ant will of course eliminate deleting of the names the co-defendants joint joint My trials of offenders. dis- admonishing and twice in each case senting brethren and I think the result- jury point, accordance ing confusion, multiplied delays, and fre- practice in established courts. federal quent injustice raw not in the- are best Sitting specifically en banc referred we justice. interest administration recently approval to the rule with Dykes January, United v. Ill Implicitly approved States.16 it we Kramer v. United States.17 part Judge Edgerton’s opinion This appearance concerns Short’s prob has had this before the grand jury. years. does not lem have the con- several contexts recent majority currence of a In court Anderson found the Court case that, although so judge is a dissent. the trial admitted disputed confessions under restric Our brethren that Short’s constitu tion, charge jury “his bound to no right against tional self-incrimination confessions”, such restricted use presented was violated when he was and that from what told them the grand jury, and that therefore the jury every right could believe it indictment should be dismissed. Dis every consider defendant tilled, point is that inadmissible tes proof whole made at the trial.18 The timony jury. was received Malinski,19 Court reversed. a state case, reception But the cases clear the trial substituted letters for the names the other defendants inadmissible evidence does not invali gave clear instructions as to the limi date a resultant Lawn indictment. v. tation. The Court affirmed. In Delli 21 specific point.22 United States on the Paoli the Court found the instructions by petitioners The claim in that case as to limited use of the confession be was that evidence obtained from them clear, and assumed the followed the in violation of the Fifth Amendment was instructions. The Court affirmed. We Court, jury. received think it clear that under the law as citing Costello,24 Holt23 and that the said firmly established, trial court in admission of such would not case at bar was correct its treatment invalidate the indictment. of the matter. Judge Clark, The late Chief This court now Charles E. relies frank dic- by Judge writing tum Learned Hand. for the Second Circuit in United U.S.App.D.C. 189, 190, 16. 114 F.2d 21. 355 U.S. 2 L.Ed.2d 580, 581, denied, cert. 10 L.Ed.2d 1059 Coppedge 22. And see U.S.App.D.C. 50, 79, U.S.App.D.C. (D.C.Cir. F.2d 11 311 F.2d 128 4 (1963). 1962), denied, 946, cert. 373 U.S. 83 S.Ct. 1541, (1963). 10 L.Ed.2d 701 States, 18. Anderson v. United ‍‌‌​​​​‌​‌‌‌‌‌​​​​‌‌‌​​​​‌‌​​‌‌‌‌​‌‌‌‌​​‌‌‌‌‌‌‌‌​‍318 U.S. 356-357, States, 87 L.Ed. 829 23. Holt v. United 218 U.S. (1943). (1910). 54 L.Ed. S.Ct. York, 19. Malinski New v. Costello v. United (1945). S.Ct. L.Ed. 100 L.Ed. 397 20. Delli Paoli v. United L.Ed.2d 278 pros- above, the ings, quoted shows that subject Cleary,25 this examined States don’t crystal having clear—“You Cleary, was

exhaustively. ecutor been ar- Second, the anything.” rested, us subpoenaed appear to tell to before have to to talk warning, wanted grand jury and, shows Short evidence after testi- the grand jury. the witness incriminating While length, the deeply him- fied at dis- upon motions testimony the Largely upon in court stand the self. why he asked suppress, grand he was jury miss and him. indicted jury, grand and go the wanted before indictment. The dismissed the I answered, know that “Because he Circuit and Court reversed reinstated Surely anything.” state- a Judge pointed hadn’t did Clark out indictment. go why reasoning he wanted of the reason that in ment District Court’s implication he respectable might that apply an is a where ac- case well surely go. that upon testify And when his cused is at own wanted called question an- trial; but, said, would have was asked “it must he he be noted go,” grand jury investigation, though swered, if indeed “I want to a didn’t that proceeding, Moreover in his mind. in a criminal sense a [cita- closely analogous specifically on the testified tion is not omitted] grand transcript “Basically,” said, point, оf the a criminal trial.” citing and he Third, long many indisputable. jury proceedings a list cases authorities, jury scholarly was not told what Short both the trial American jury. grand grand English, jury Thus “the is a law said or did en- before agency.” further, no or there was forcement And he said did he whatever grand pointed out, “Appearing prejudice a his trial. before jury unduly is not in itself coercive reasoning agree cannot We ** * situation. That wit- [the he say They that mere of our brethren. during ness] nervous and confused jury, grand interrogation mere- a before testimony his not unusual reaction —a there, sus- ly being brought arouse a not witness —is sufficient to render the prohibited. But picion is investigating and therefore testimony involuntary. important body. grand jury is an slightest factor is lack of even the all, must ask it If is to function at it suggestion government ap- officials testimony say questions. Our brethren plied any pressure engaged in might at be used before form of misconduct which contributed to though trial, not so used even testifying.” his The entire discussion at should to us we It seems this case. Judge pertinent prob- Clark is proper brethren case. Our least await lem at the case bar and should be read indigent say young, un- Short was in this connection. The of our view dis- married, old, years schooled. He was directly contrary senters is Lawn job at had a two children. He and had Cleary. of Zebulon in his town warehouse home put Three facts case bar he month had had it for a beyond dispute. matter realm of There is no evidence was arrested. First, grand spoke jury, before he job any time not he could have Short was four advised times he His home. sister went testified speak: orally O’Bryant need not once grade aat or fourth went to the third Raleigh; opening once in public high There school. statement, presence written read there; have could not continued that he family; open once ipso drop-out im- is not school facto court; prosecutor and once liability for crime. mune grand jury. Our no- dissenters adopt body us specifically wоuld have Our dissenters told he need ignores law, speak a rule which new rule taken there. transcript jury proceed- between fundamental differences 1458, (1959). 936, denied, 459, L.Ed.2d 1548 79 S.Ct. 3 25. 265 cert. 360 U.S. F.2d 882

grand jury trial, by accept- judicial again and a a not a rule officer must consult jurisdiction lawyer ed federal a used he can be taken a by only grand jury.29 My agree a few states.26 brethren lawyer Short could not have had a IV grand jury him in the That be- room.30 Judge Edgerton not does con- have the ing so, lawyer the most a could have done majority currence a the court would have been advise him that he point, opinion this and so his on it is speak. already need not But had been a dissent. given by judicial that advice a officer question is whether the indictment open presence lawyer, court in the of the must be dismissed because situa- formally given warning and he was a full respect Supreme tion to counsel. The by prosecuting to the same effect respect- has rule twice stated the attorney spoke before he to the ing validity in a indictments simi- jury. say person To that a has a lar In context. Costello v. United lawyer to a under such circumstances Court, opinion by 27 States in an Mr. purely purposes for such is theoretical Black, Justice said: necessity to assert of a ritual with- by legally “An indictment returned a guar- out substance. The constitutional constituted and' unbiased empty gestures. antee is Our dis- (cid:127) jury, by like an senting information drawn brethren refer to Short as “un- prosecutor, face, if valid on its That, course, counseled”. is inaccu- enough is call for trial of the rate. charge on the merits. The Fifth (in dissenting Part V of Our brethren requires nothing Amendment opinion) the statement characterize more.” Court, Supreme twice made And in Lawn v. United States28 language Lawn, “broad Costello and in Court, opinion by in an Mr. ‘ Justice Whit- [quoting words we to the effect taker, point, without dissent on the used quoted].'” They have above exactly language. the same drastically a limited mean- context shows grand jury the case аt bar the which They say plain “Due words. legally returned this indictment was con- interpret forbids us to deference jurisdiction. It allega- stituted. had No containing opinion vast [in Costello] tion * is * made that it was biased. quoted dictum view the We lawyer. statement the Court as clear One Moreover Short complete. appointed preliminary phrases It for him at the a well-established hearing plentitude rule. is with a he was bound over consistent where know, past grand jury. rule, authority, No far as of which cited so some ruling says lawyer opinion. apply person has in the who We fully rights of his Court as find it. and has we advised Orfield, 897, 156, generally Federal 100 L.Ed. 788 26. See U.S. 76 S.Ct. (1955) ; Jury, 343, Orfield, Jury, The Federal Grand Grand 22 431-432 F.R.D. (1959) 343, ; (1960); (1959); 425 cf. 45 Iowa 564 22 F.R.D. Delgado, Escute L.Rev. 67 (1st 1960), (1958); 237, 282 F.2d 335 Cir. Vale A.L.R.2d L.J. 1271 38 denied, 883, 1033, (1954). 81 cert. (1961); Fed.R.Crim.P. L.Ed.2d Supra 27. note 350 U.S. at 76 S.Ct. Advisory Committee’s Notes thereto. 406. 330, 333, Groban, 30. In re 77 S. U.S. Supra 28. note Ct. Fed.R. L.Ed.2d 376 6(d) clearly presence Crim.P. forbids the Arguments present limiting such rule exists were of counsel those while rejected “[ajttor- in Gilmore v. United session Cir.), (10th denied, neys government, F.2d cert. for the un- witness examination, interpreters L.Ed. der when need- * * * Scully, ed, stenographer”. See also United States v. Cir., denied, cert. testimony own all was.” his was there V replied “Regardless, that Your Counsel Edg- Judge opinion part his Honor, testimony of what other there that is maintains erton in dissent. He was,” rights Short’s constitutional Short should the indictment judge pressed The violated. for a for dismissed the reasons advanced position. clear counsel’s statement opinion. Parts III and of the IV urged empha- Counsel with considerable is v. Texas31 V Part Cassell In this brought being grand sis that before the say they see upon. brethren Our relied jury being without counsel and without authority distin- for nor neither reason rights per- advised of his violated the guishing the There that case. rights. prosecutor interjected son’s The jury grand ille- was that Court held suggestion stipulate with a counsel that fell constituted; case gally therefore that there other was evidence well-established familiar and within the grand jury, present- that the Government jury illegal grand cannot rule that fingerprint ed еvidence as to a of Short’s legal brethren Our indictment. return in one of cases. Defense said counsel ques- effect, say, in that a constitutional nothing that had to do with the case. question; there is constitutional tion court assuming, then said: “I am Cassell, question such a was assume,— because no have not to here; was invalid the indictment is one assuming I am that there was other valid indictment Cassell; therefore grand jury justify evidence before the to not Cassell does think We invalid here. his you indictment this case. Now are remotely question in the approach the arguing to me that there was no now at bar. case grand other jury, evidence before the are you ?” The court then denied motion VI to dismiss. speaks Edgerton Judge point On this perfectly Thus it is on clear the record opinion inis present for court. to motions dismiss were made dissent. argued; that Short’s counsel did not allege District Court there was no other than evidence The court directs testimony; and that taken he offered the evidence examine testimony proof ignored to that “what effect. He and to determine indictments, judge’s grand jury’s tending support offer to look ignored minutes, adversary’s confessions, than Short’s proffer stipulate then grand jury.” Court is there was other The District evidence. went the indictments He court on the whether determine proposition illegal present- that Short’s should dismissed. grand jury ment to the invalidated made for Short Prior trial counsel regardless indictment of what evidence indictments a motion to dismiss the grand jury. was before the brought ground be- that Short was custody jury, District Court fore clear So testify counsel, question him- trial raised the without itself before the argued evidence, motion was and that counsel self. The of other ques- judge quickly court. raised to assume there the defense chose suggested probe He tion as to other evidence.32 such evidence and declined grand jury inspect join probe minutes that he in a Thus this matter. going said, present “I’m not to assume order He court’s directs retread- 94 L.Ed. 839 no other evidence before the guilt except testimony. of his his own Counsel] : I “Mr. [Defense do Kramer began argu- When counsel brought not know what be- following occurred: ment the grand jury.” fore the you assuming “The Court: Now —you assuming must be there was we have law cretion of thereon cuit almost tion to United sence sidered and decided rado. the trial Several well-established showing of made bear or ground There States quash will not incompetency court stated precisely upon of abuse of discretion.” same v. Tane an already trod, on a trial court and its action ample it is addressed indictment for the ab- words, the same statement reversed point problem. First, as Carrado,33 “A mo- ^[34] it. the Second Cir- evidence and cited Car- examined, propositions of and reverses authority except upon to the dis- before con- tion of or court was miss must be denied. because judge emphasized disclaimer fense disposition before counter to movant of the * * proffer proof court accords counsel regularity present that no It ruled have of grand jury, proof by all the eminently of the matter interest and, motion order of this court no competent — that, the burden on the foregoing e.g., the on the recognition correct. We absent prosecutor. “I am not to assume other motion to evidence part principles. assuming, presump- upon the trial that side, by of claim dis- de- is Second, disposing discretion of the trial court in the same as we said effect.35 Carrado, of the motion appel- “It is also that dismiss. does true discretion; find an lant abuse who attacks an indictment returned indeed no returned without sufficient the burden of strong of such tion.37 tudinous ed some federal courts did must due at least presumption findings form Four, evidence.” authorities on the clearly showing even courts some of a ^[36] support competent ground regularity Third, which held jury, jury. evidence, this that was the absence there is held that Costello) рroposi- accord- it Multi- has (as commits even when cords no self declines if posed upon Instead of abuse could be regularity any, sua order sponte there was. reversible recognition movant, holding counsel seek of this determines what grand found. proof, this upon specific error unless he court We think the court burden This court presumption proceedings. clearly trial holds evidence, inquiry judge proof erro- that, him- pro- ac- neous. sufficiency inquire courts will not into the of that evidence.38 This and relies United court cites Tane, supra. In that case the States v. The trial court acted in strict accord granted judge trial a motion to dis- foregoing prin-

with the well-established Appeals ciples. this to miss. The Court of held inquiry It made insistent into subject. inquiry so Its within affirmed. a be his discretion met 1289, denied, States, 904, U.S.App. 33. 10 Carrado 373 U.S. 83 S.Ct. v. United 93 183, 188, 712, (1963); denied, D.C. L.Ed.2d 199 111 U.Pa.L.Rev. 210 F.2d cert. 1154, (1963); Wharton, 1018, 874, 1157 n. 20 4 347 U.S. 74 S.Ct. L.Ed. 98 (1954). 1140 1852 n. 4 Criminal § Procedure (1957). 848, (1964). 34. 329 F.2d 853 Wharton, 4 38. § Criminal Procedure See, e.g., Rosenburgh, United States v. 3, citing n. 1852 v. Anderson United (7 Wall.) 580, 19 L.Ed. 263 States, (8th Cir.), denied, 20 273 F. cert. (1868); States, Nanfito v. 20 United F. 647, 56, 42 L.Ed. (8th 1927); 2d 376 Cir. Stewart v. Unit States, (1921), and Olmstead v. United States, 1924). (8th ed 300 F. 769 Cir. (9th F.2d Cir. 19 1927), 53 A.L.R. 1472 Supra grounds, note 33. affi’d on other U.S. 48 S.Ct. 72 L.Ed. States, supra States, 37. Carrado v. United note See 15 F. also Murdick v. United 33; Nunan, (8th 1926), States 236 F.2d 2d Cir. cert. denied (2d denied, 1956), Clarey Cir. cert. sub nom. v. United U.S. L.Ed.2d 665 71 L.Ed. (1957); Beatrice Foods Co. v. United (8th Cir.), cert. authority ruling in the sense it was coerced for re- can be How by violence, promises, versing or a was who such extracted denied trial Thus is no claim threats. do not see. motion we competent evi- was not the confession Edger- Judge quite clear in It is made meaning of that term dence within opinion four our brethren ton’s is that The claim rules of evidence. upon the indictments would dismiss these the under it was in evidence inadmissible ground that of constitutional two Mallory not “com- and that it was rule being rights taken were violated petent” it inad- evidence because grand jury, this fact and that before the missible. position the vitiated indictments. This thing the of sort precisely the is This evidence, any question not does involve dealing Cos- Supreme Court рaragraph made first as is the clear Although supra. tello, the Government opinion of Point Point V and in VI. The 368 ex- presented 144 witnesses clearly also states that two others witnesses, only trial, three that hibits at our brethren District would have the knowledge, first-hand whom had none of Judge testimony what determine other jury. Costello the testified than Short’s confession was before the because indictment dismiss the moved grand jury and “then whether decide incompe- e., hearsay, i. on it based of Short be dis- indictments should that noted The tent evidence. ground upon missed.” But which expressed con- “Varying have been views District is Court is to its decision base chal- cerning be indictments whether Apparently testimony no means clear. part lenged whole or in based because play other than the confessions is to citing evidence”, cases incompetent on part. Apparently, if there be such other Court, speaking texts.40 testimony, deny the court would through without Black and Mr. Justice dismiss; none, motion to if be it dissent, said: grant ruling would motion. Thus “ * * * Fifth depend upon testimony. But neither would But any opinion says constitu- nor Amendment further that these two judges provision prescribes kind opinion taking are of tional that grand juries upon which uneounseled evidence defendant before the * ** every grand jury is There act. should not must be countenanced our constitu- supervisory us in reason believe the exercise of our op- grand jury power. was intended From tional statement latter English substantially appear like its testimony nothing would erate has * * * progenitor. And in this Judge do with decision England country of old must quite make. as Thus two different body propositions posed. as a has convened that, is if One rules, laymen, illegally an from technical accused is free taken grand jury, acting secret, pledged no to indict he cannot be made answer crime; prejudice to free for his because indictment one special As him must favor. propo- one because of dismissed. The other English sition is historian that an late аs indictment must be dis- say English juries missed could unless evidence other than confes- sions own such still free to act their Short’s was before the grand jury. knowledge they pleased so. to do claim is made that Short’s

No confes- «(cid:127) ^{[*] [*]} claim made “In Holt [31 sion was not made. No 1021], claim made this Court it was true. No S.Ct. L.Ed. not pause hardly that Mal- 4. need U.S. at 76 S.Ct. at n. We lory upon does rest constitutional power grounds supervisory upon but Court. change. had to decide whether an indict such a In a trial on mer- quashed its, ment should be because to a strict defendants are entitled supported part by incompetent designed observance all the rules bring the incom evidence. Aside from about a fair verdict. De- very petent entitled, however, ‘there was evidence fendants ‍‌‌​​​​‌​‌‌‌‌‌​​​​‌‌‌​​​​‌‌​​‌‌‌‌​‌‌‌‌​​‌‌‌‌‌‌‌‌​‍are not little the accused.’ rule which would result in in- Fifth Amendment legally constituted pointing out an indictment petency the criminal would be incompetent grand jury, grand jury, its if indictments could be could liminary trial to determine the com drawn ment. An indictment returned dence before the ground trial on the merits a defendant be held ‘hearsay.’ of such a rule would be that before ground.’ 4]. here face, required by Court refused to hold that such charge always that there was all practice open the great enough same If the evidence before ^[7] insist on a kind of on the merits. adequacy prosecutor, evidence before the to indictments were U.S., should be like an indeed. grand jury. thing the Fifth Amend in challenge to requires resulting ‘The abuses of at 248 call the nature of and unbiased inadequate upset is true where of the evi information for if valid on enhanced [31 quashed, nothing on such trial of on the This is result delay by pre the or to motions. pretrial ple ably adopted the District Court should be affirmed. the facts to cut it down to size. To that Everest. Little more is ing). Judges ities transcript caused to resemble a constitutional Mt. in courts in this a cated. As in some Bastían end ion. dissent demonstrates how synthetic Judge Edgerton’s opinion from which terminable the assurance оf DANAHER, I am authorized I so far as we are concerned. previously the Costello matter can be made to seem ancient am with a we Wilbur K. of agree theretofore opinion of the precise situation is English delay it. turn country unnoticeable with case Circuit It settled the Miller, that but add hearings to appropriately question the Court was deal- other cases the rule and unmistak- differed. fair state that and text author- the presented Judge (dissent- foregoing opin- required trial.” Danaher nothing easily judgment molehill on Short’s problem of compli- Circuit recited to a sim- where which than late, the of more. Deputy Kelly Sheriff and another deputy County, Carolina, in Wake North urges “Petitioner that this Court looking had been for super- Short since is- power should its to exercise of suance a North Carolina warrant on justice vise in the administration of March 1961. in Wanted Zebulon on a federal courts and a rule establish charge of dangerous weap- assault with a permitting challenge defendants on, “running” fugi- Short had been ground they indictments on the —a deputy tive. The sheriffs supported by learned adequate are not September competent Short had com- persuasive been evidence. No ing to Raleigh. his mother’s house reasons are advanced for establish- Specifically, they “tip” Sep- received such rule. It would run coun- tember there, that he history ter to of whole they went to institution, mother’s house laymen to arrest in which him. inquiries conduct their unfettered justice technical rules. deputies Neither nor sister met the near concept requires Asking a fair trial front door. them search 362-364, course, setting warrant, possessed force up a warrant and otherwise Raleigh, North Carolina. concerning presence and effect clamor willing here managed Still, return officers, if Short her brother were to warn she Municipal O’Bryant, doc- local Two door. with ran out the back who color at least some ument would offer outside. remained North Carolina which the climbing house basis fence in rear might caught pris- their Raleigh release state authorities police officers when the O’Bryant. custody of deputies in their oner him. The with Short Zebulon, by radio notified the cruiser charg- was, the more serious So it Carolina, arrest. North authorities O’Bryant pending here, asked es in- time then for the first The latter ascertain North Carolina officers Kelly formed was wanted proceedings could whether or not removal Washington. teletype A files check North Carolina was a be waived. Short finally headquarters revealed various au- prisoner, consent of the state so that Met- name of Lieutenant they prerequisite. If thorities awas ropolitan Au- Police as author of willing yield prisoner gust request teletype for assist- step Columbia, next in- District of locating Meanwhile ance Short. he were consent. Unless volved Short’s on the Zebulon Short had been booked agree removal, have charge jail in been committed complaint, required to swear out a default of bail. Rule and to serve a warrant Kelly telephoned Deputy day Short, next of Rule to be executed arrest O’Bryant by to and that Lieutenant learned “by other officer a marshal or some charge 4(c). law,” Short was still here on a by wanted Then authorized Rule robbery. O’Bryant of procedure prescribed armed asked follow deputy or 40(b).1 procedures to find out whether not Short Rule Resort to such willing unnecessary, however, was District. to be returned for Short became September 14,1962, a waiver on executed hap- what had next turn We which read as follows: Washington ear- or so pened month in- to be believed was then lier. Short “State North Carolina of Dis- cases in least two volved in at County of Wake July 28, On of Columbia. trict day September, appellant of to be who turned out man hereby shotgun Jr., I, Short, Short, Willie Lee sawed-off with a armed agree voluntarily Johnson, freely ac- accompanied David up company oth- or Det. O’Briant [sic] had held Arthur Jones and Jones Short, prisoner, August 3, as a from liquor er officer On store. County of North and accom- of Wake and State a revolver armed with then Jones, Washington, Carolina, had D. C. panied David Johnson and answering grocery purpose to the attempted up store. of to hold charge Robbery fingerprints had been Armed of This time Short’s against grocery pending cans which me. from recovered O’Bryant Furthermore, hereby I all waive Lieutenant handled. willing August 10, formality, thereafter, 1962 to be ex- and am return on Municipal Washington, act, D. said C. from had obtained requi- of Short. Officer without for the arrest Governor’s Court a warrant any sition, legally “may papers executed or the other Such warrant necessary cases, any of exoner- part in such the District member ** including concerned, (Emphasis ate all Robert J. force any blame, Pleasants, added.) That Sheriff from D.C.Code 4-138 § foregoing (and Federal not here involved Note), see Reviser’s references Because of Procedure. Rules Criminal waiver, (1958) is § U.S.C. O’Bryant Short, compulsion in this or interference when interviewed any rights, was advised connection. signed might certify used for or that the above statement he made agree- my him, presence, and that Short answered and that compul- voluntarily, ment been made without without has without coercion and Indeed, here, any promises sion of the authorities or inducements. shows, myself, O’Bryant Willie record told free desire also Short, anything Lee “he me Jr. didn’t have to tell

Signed: Short, me, I wasn’t Willie Jr. if he Lee didn’t want to tell going request me Witnesses: that he tell even Kelly, something W. L. D.S. if he did to tell me.” not want Turner, J. T. D.S.” minutes, Within Short be- two three gan answering questions about four dif- by telephone Informed that Short ferent crimes. signed waiver, O’Bryant Sep- O’Bryant arranged to have Short’s Washington tember flew jail. gave family come to the He each Raleigh. copy of He them a Short’s statements. colleagues my Some of have decided family. He read the statements jailers that when the in Nоrth Carolina asked if there word Short, allowed to see the latter reading that was different from the prisoner “became” the of the District copies. words on their He asked Short They say of Columbia officer. that from true, said the confession were and he the time made a notation wife, was. Short’s his sister and Municipal “arrested” on the Court war- fiance, McCloud, latter’s ac- heard Short August 10, period rant knowledge of unneces- the truth of the statements. sary began delay Thus, they to run. con- All testified to hear- the same at the effect clude, subsequent in- ing. confession was however, Short, O’Bry- denied that validly lawfully extracted could not ant had read to him in the confession be used Short. presence. their my might just record, view the lieutenant Such was the in but much greater well detail, experi- have writen “arrested” on a laun- which the dry magistrate’s rulings. judge check. The local war- enced trial his He based validity Raleigh. rant had no whatever said: O’Bryant could not serve authorize testimony. “I do not believe Short’s to take Short before nearest federal beyond He made it clear shadow anywhere or commissioner or else. doubt, my mind, he that It could “prisoner” not make Short the telling simply not the truth about it. O’Bryant. My colleagues observe of anything I didn’t he believe lieutenant, “He well knew that Short said. even He contradicted his own was to authority be held. He no wife. He contradicted his own sis- release him.” Of course he did not. And, measure, ter. in some he con- jail Short subject remained in the to its say, tradicted McCloud. And then to discipline following day until when when asked on cross-examination the state authorities released Short for testimony grand about his before the Washington. his return to such Under jury, gave that he answers which are applica- circumstances Rule 40 had no exactly opposite of the answers tion to simple this case for the reason grand jury minutes, which so agreed that Short had to come back here him, much of it as was read O’Bryant. On that account Rule shоwed did —he when he said ‘no’ predicate can not exclusion of the con- ‘yes,’ the record shows that he said fession. ‘yes’ or he said when the record rights. advised just Short of his shows that he said ‘no’—I don’t deputy A presence sheriff testified his believe it.” any arising specious trial matter that contentions before out here, other mat- were demolished we talk about Court you that ? the conclusions ters. Do facts outlined and understand judge. The obvi- reached latter “A. Yes. wary ously perceived him so- before “Q. Knowing you still want phisticate precisely he knew what who testify ? to come in here and doing as he advanced his various “A. Yes.” judge correctly claims. ruled Thus the Short Court testified at the District suppress motion to confes- hearing go that he had wanted sion should be denied. grand jury.6 I I “Because know This was not situation where anything.” ques hadn’t did next arrangement working “was a between the tions and tran answers disclosed sheriff,” federal An- officers and the as in script read: derson On con- v. United States.2 “Q. Well, now, you did tell them trary, the state case had connection you anything you had done when charges robbery in the whatever with the testified ? O’Bryant simply District of Columbia. No, “A. I didn’t. confronted Short with the “Q. everything You denied him and the when confession followed. you Coppola As did testified ? States,3 we should affirm.4 right.” “A. That’s It is transcript obvious from the judge re- above, trial As noted Raleigh prosecutor and the perceived He Short. believe fused particularly before the testified, so when had lied Short help might give interested in what Short every foregoing respects as in in the clearing up certain crimes here But Short’s instance. contested Perhaps predi- considered. testimony of record testimony sort provides the cated Perhaps the indictment of others. they colleagues rest. So my upon which as to offenses, hoped such other Short taking him think “We are able to exculpate himself; indeed for all we con- without his before the shown, may have done so.5 When anything asking violates him sеnt appeared jury, added.) The (Emphasis privilege.” Attorney Assistant United States opposite. exactly transcript Else- said: “Moreover, in view our they where add: * * * gave no consent “Q. Short, you want Mr. grand jury on October you taken before know that are before the Grand irrelevant, mind Jury going 2. His actual state and that we are to ask expressed is not you mind that you since a state of questions. some I want no implied by conduct has or words you anything. don’t have to know legal are stuff dreams anything your Of such you effect.” If do tell us state- colleagues My state —as being made. even taken down and can ment they do—that Lieutenant against you any are bound to be future used robbery August 3, robbery 350, 356, and the 2. 318 U.S. 63 S.Ct. attempt, pretrial plea guilty (1943). entered a L.Ed. 829 Government. One testified 3. U.S. L.Ed.2d 79 naming Johnson was then dis- indictment (1961); Papworth and see v. United missed. (5 Cir.), cert. certainly 6. He Rule 5 advice denied, had received L.Ed. committing magistrate, and, no from the 2d 88 doubt, attorney similar from the caution Morgan 4. Cf. v. United 111 U.S. appeared preliminary who him at the App.D.C. 127, 294 F.2d 911 hearing. Johnson, participated who had with Short July herein named others resulting grand jury, he whether had “asked Short grand great jury testify delay be indeed. would wanted to result of such a rule would be that denied said he did. Short and Short testimony. O’Bryant’s accept before trial on the merits defend- this. We always But, claimed, a kind of ant could insist on he did not know if as Short grand was, may preliminary jury have trial well determine what thought * ** competency jury.” of the evi- meant trial grand jury. (Emphasis dence before This is added.) rec- Not a shred required not supports the Fifth Amend- ord evidence entitled credence any conclusion; position ment.” such taken my colleagues no foundation has more judge properly The trial ruled that willingness to in this than their case motion to dismiss must the indictment they write want it to read. record denied, rul- and we should affirm Only predicate they can thus de- their ing. sire to reach the conclusion that Short’s many When one realizes how thou- appearance bеfore the sands of criminal cases have reached “compelled.” findings If the of a Dis- again, many federal courts and how Judge trict who has heard all the wit- those in turn have reached the nesses and observed their demeanor Court, strange only it seems greater now significance my to have no than “right does the colleagues to counsel” turn take the here, pre- accord them my colleagues give Speaking of it. liminary hearings become a mere exer- having said that he wanted futility. cise testify grand jury, my before the col- pronouncements of some of the leagues willingness say, any case, “In on majority upon so a scale sound September willingness 16 is on Octo- vacuity. any event, sheer after nothing ber 2. There is show everything said, plain has been fact anyone thought on even October 2 that given is that testimony be- Short willing Short was then to be taken grand jury

fore at trial. offered grand jury interrogated.” (Em- judge hearing actually recessed the phasis added.) The Assistant United early might so that defense counsel ex- thought so; Attorney States he even grand jury amine the minutes it, supra. asked Short about prepared to indicate therefrom basis thought so; he told the possible prejudice. proffer No such testify (text supra). wanted to followed. The had made it clear meantime, ap- But in the that he was not interested in the mass peared magistrate committing before the testimony toas He crimes. September 17, on attorney 1962. An only wanted such material as had a bear- appointed represent then been him at ing on this case. hearing. preliminary Notwithstand- The indictment was valid even without ing, my colleagues say “Short’s Sixth only Short’s confession and even if based Amendment ‘to have Assist- O’Bryant’s testimony. The trial ance of Counsel for his defense’ was judge correctly followed what the Su- Apparently they withheld.” mean to im- preme Court had said in v. Unit- Costello ply right by that was “withheld” ed States7: my point Government. At another col- leagues failing say “By to inform coun- open “If hеld indictments were to be challenge ground impending examination, sel of the on the that there * * * incompetent prosecution deprived Short of his as- 359, 363, 406, 408, (1958); 7. 350 U.S. 76 S.Ct. 2 L.Ed.2d 321 Holt v. Unit- (1956); States, 245, 247, L.Ed. and see v. United Lawn ed 218 U.S. 31 S.Ct. States, 339, 349, 350, 355 U.S. 54 L.Ed. Here, greatly course, that Short it was clear at crucial time sistance compelled not to incriminate prejudice.” had been Short’s my noted col- himself. Let it be that may appears counsel So far as Short’s leagues not decided have that his best him that well have advised involuntary; rather, they confession ultimate consideration to secure chance sought admissibility its resolve have prosecution or the at the hands of the alleged noncompliance with Rule 40. on sentencing judge depended upon de- my may, not find Be that as it we do might gree cooperation extend in colleagues saying that Short’s Sixth connection with other crimes then right had “withheld” Amendment been investigation. advice is not under Such sought had de- because he had been Granting my is unusual. that deduction support attorney. They nied an seek to speculation sheer in view of the state totally by ref- their artificial conclusion record, as valid as it is at least let erence to Escobedo v. Illinois.10 But colleagues supposition by my voiced us what said: see the Court there “unlikely that is that Short repeated his former confessions have where, therefore, hold, “We that there if had counseled.” do been long- investigation here, agree attorney general inquiry not that would have un- er into an begun voluntary to focus solved crime but has told Short confession suspect suspect, particular on Following “illegally obtained.” custody, police has been taken into majority law, present least at carry police process of out a opinion, “The he would have said con- interrogations lends itself fession trial. Your be offered at eliciting incriminating statements, cooperate John- best bet is to —like suspect requested and been has 8a son.” оpportunity consult denied an lawyer, police as late Mr. Justice Brennan observed with his and the have June, effectively as this him of not warned re- absolute constitutional “[T]oday admissibility of a con- silent, has been main the accused prosecu- fession in a state criminal of Counsel' denied ‘the Assistance same standard tion is tested Amendment violation of Sixth applied prosecutions since federal * * * to the Constitution 1897, when, Bram by the no statement elicited States, S.Ct. [18 during interrogation may 568], 42 L.Ed. held that the Court used him at a criminal trials, ‘In criminal in the courts added.) (Emphasis trial.” ques- the United wherever Judges tion confession is under- arises whether a If seek to the District colleagues incompetent voluntary, opinion my because stand por- terms United States11 issue controlled of Massiah v. my point colleagues, tion Amendment of the Fifth cited let me Constitution of the United fundamental there from variances commanding person case, “shall Mas- that no situation here shown. compelled indicted, criminal case to counsel and siah ’ Id., liberty himself.” as the Government be a witness was at bail acting so, well Even 183].” authorities knew. [18 (Emphasis added.) in concert with who with- a co-defendant 478, 490-491, mine. Italics disposition 5, supra, 8a. note as to the See 201, 1199, 11. U.S. 12 L.Ed.2d of Johnson. 377 84 S.Ct. (1964). Malloy Hogan, 1, 7, 9. v. 378 U.S. 84 S. 1489, p. 1493, (1964). 12 L.Ed.2d 653 Ct. knowledge agreed require- out Massiah’s there is no constitutional Government, represented for become a witness the ment the accused be preliminary hearing a deliberate authorities concocted counsel at the a where subterfuge. They pleads guilty. But so Short was surreptitious planted represented in car broad- the co-defendant’s in this case. This also court casting pointed equipment pick up Clemmer, Massiah’s out in that Rule 44 receiving conversation. Then Federal Rules Criminal Procedure following car, they equipment providing representation by in over- coun- say every stage” apply heard whatever had to sel “at Massiah when is intended to being only prоceedings court, not aware that he was victimized and Short plot proceedings. Government-conceived had counsel in all court interrogation. put had not been He suggested respectfully saying on notice that he was what no Sixth Amendment was “with- being agents. recorded federal Short, by anybody. held” from Much Even Powell Alabama12 does not v. appear prosecution less does it colleagues. help my They point negated rights way guid- reading, requires sentence “He by “failing” to inform after the counsel every step hand of counsel at in the hearing preliminary that Short had proceedings against him.” But in Pow- appear jury, wanted to before the ell, prisoners arraigned had been willingly appeared. and thereafter had immediately upon without counsel the Again loudly speak in this case facts days return of indictment. Six clearly for Short said so himself. commenced, thereafter the trials were Perhaps colleagues point, my at this do representing counsel defend- not believe him! appeared ants when case called recapitulation, majority find we our Thus, saying, for trial. Court was colleagues unable to that some auto- during period critical most of the matic proceedings rule of exclusion must bar Short’s “from time of their ar- raignment beginning voluntary trial, until confession in North Carolina. investigation preparation when theory apply So a fashioned vitally important, defendants did not completely where on a inde- state officers have the aid of counsel.”13 Those were pendent charge state arrest their wanted steps proceedings which the point accused at miles more than 100 obviously Court so had mind. Washington. prison- If that state agrees pro- have We it clear if an dispense made ac- er with removal ceedings prelim- cused be without counsel return to inary hearing, guilty plea fugitive, Metropolitan made whence warning goes get without or advice can not be officer mаn Police who My permit voluntarily used him.14 col- must not the accused leagues do not so much as mention our until confess his crime after the officer man, complaint, own well established or the rule case swears ar- out a has the stated, which it is presented Council v. Clemmer.15 rested and then before a feder- specifically There a unanimous court held al or commissioner. so to Failure 45, 69, 55, 64, U.S.App.D.C. 12. 287 U.S. 53 S.Ct. L. 14. Wood v. United (1932). 274, 287, 265, 278, Ed. 158 128 F.2d 141 A.L.R. (1942); Rutledge Mr. Justice Johnston, 260, (9 Price 13. 144 F.2d many prob- reviewed facets of the counsel Cir.), denied, cert. 323 U.S. 65 S.Ct. opinion lem in a elassie which underlies (1944), rehearing 89 L.Ed. 629 de- part language ap- in substantial now nied, 65 S.Ct. 89 L.Ed. pearing in Fed.R.Crim.P. (1945); interpreted we have so U.S.App.D.C. 74, Powell dictum. Edwards v. United cert. 226, 228, U.S.App.D.C. denied, 139 F. L. (1943), denied, 2d cert. 321 Ed. 88 L.Ed. 1064 events, position. 40(b) comply con- tain his At I would will bar the all with Eule here, my colleagues say. More- affirm. fession over, only will conviction I am that Senior authorized state co-defendants but those of all reversed Judge Prettyman Circuit Circuit and receive like treatment. Judges Wilbur K. Bastían Miller and join in this dissent. colleagues my take a of Some working “right up to coun- new tack BUEGEE, Judge: They record Circuit sel” bar. realized that willing- expressed could not belie Short’s agree large part I with what grand jury, testify and ness to Judge Prettyman expressed. has Com- committing magistrate, po- pare Spriggs v. United At- lice United States and the Assistant App.D.C. 248, p. 252, 283, p. 335 F.2d torney had self- warned (dissenting opinion). 287 n. 1 How- They knew, law as our incrimination. ever, points I desire to make several requires, had counsel at the that Short separately seeming because internal again hearing preliminary at trial. and operative conflicts in what is hold- they indictment So conclude that majority I under Part VI. the Govern- must be dismissed because Judge Edgerton’s opinion do not read consulting “prevented” ment holding that an indictment cannot attorney. some To that result achieve simply rest on a confession because that attorney they had to reason that confession would be inadmissible at they ap- had in mind was one first 5(a) Mallory trial under Eule pearing for Short! United 1 L.Ed.2d syntheses, As I part read such some In to bolster it, colleagues my the remand should be construed as Lee v. cite meaning that part the District Court is note in what was States.16 Let me Hutcheson, now to Judge determine what evidence the there said Circuit Jury dissenting.17 Grand “personal spoke other than Short’s own He testimony. sum, In majority judges” the written state- and others views adequate ments of change Short could an principles afford who wish to settled basis governing for an indictment without refer- a criminal trial and error trial; strange admissibility ence to their by “introducing case new and majority it, has not view, put decided otherwise. doctrines.” as he their testimony is Short’s uncounseled regarded “a convicted defendant is Jury, Grand rather than written con- appellate personal as a ward of fession, majority objects. to which the compel- being courts instead agree However, Judge Prettyman I with led, provide, as statute and rules accomplish that a remand to the stated show reversal his trial for objectives pointless and that basis prejudicial error, attended with appel- such remand was waived required only invoke and enlist lant Short’s counsel in the District supposed super- his behalf (See discussion, VI, opin- Court. Point visory powers personal interest Judge Prettyman.) ion enough Appeals, of the Court of prepared un- If we are day judges carry of its taken be- is not to be counseled accused original.) (Italics him.” being Jury af- without first fore a Grand (if appointed in- counsel after all are the forded court The facts this case colleagues— ought majority digent), this as my we declare

best answer to powers majority. requirement; supervisory they points where are a join agree Judge Prettyman Court over this court and the District doing justice my broad opinion will sus- administration of so where 1963). (5 17. Id. at Cir.

enough Moreover, objec- to do so. our fundamental tive should fairness negative

an accused rather than added

techniques frustrate which the adminis- justice produce multiple

tration of until

retrials at last the court dismisses speedy ‍‌‌​​​​‌​‌‌‌‌‌​​​​‌‌‌​​​​‌‌​​‌‌‌‌​‌‌‌‌​​‌‌‌‌‌‌‌‌​‍the indictment of a for denial See, g.,

trial. e. Marshall v. United U.S.App.D.C. -, F.2d

119. BLUE, Appellant,

William D. America,

UNITED STATES of Appellee.

No. 18401. Appeals

United States Court of

District of Columbia Circuit.

Argued May 1964.

Decided Oct.

Certiorari Denied March See 85 S.Ct. 1029. Bazelon, Judge, Chief concurred in

part part. dissented

Case Details

Case Name: David R. Jones v. United States of America, Willie L. Short, Jr. v. United States of America, Arthur L. Jones v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 16, 1964

Citation: 342 F.2d 863

Docket Number: 17692_1

Court Abbreviation: D.C. Cir.