*1 “blankets refer to as the I competent incident to stand trial and was was in our briefly described incident chains” mental or defect both without disease this opinion. I now think Since alleged the Wilson time of crime and propor- of constitutional matter was be of the examination. time er- apply harmless tions, I would urged days re that at was low least might be which otherwise examination, criterion ror quired adequate an to make remand I applicable. would reverse pe appeal and now on some contends that trial. actually for a new longer thirty days riod than the necessary proper ex afforded was for a period

amination. But no set there is

required examination; for a mental appear

the examination have does not inadequate for other reason. for

He moved a second examination. The denial of his motion was not an abuse judge’s Perry

the trial discretion. Cf. U.S.App.D.C.-, F.2d 813 cert. denied Dec. Appellant, CEPHUS, R. Earl 1965, 86 438. Young and Simmons v. United America, Appellee. STATES of UNITED No. 18669. we had occasion to criti judge cize the trial for his interfer Appeals United States deroga ence with the Circuit. defense and his of Columbia District tory concerning court-ap remarks Argued Jan. pointed attorney defending who was 21, 1965. accused. The Decided June conduct there condemned reversing was basis for the convic Rehearing En Banc Petition unnecessary judicial tion. Some inter Denied Oct. vention criticism occurred 4,1965. Dismissed Nov. Certiorari present case, regard but we do not it as depriving trial, of a fair and we have re concluded we should not

verse on account of it. points haveWe considered all raised

appellant and found them without merit.

The conviction is

Affirmed.

FAHY, dissenting: Judge,

Appellant was tried with Louis Y. Wil robbery. son for Wilson’s conviction was

affirmed, 344 F. joining 2d 166. After in the affirmance

I rehearing, which, however, for a voted My voting

was denied. reason for so

that on further consideration after present case concluded Wilson, Ias now conclude with re spect appellant, tried in manner process

which violated his to due grows

of law. This conclusion out *2 court), C., ap- Washington, this D. for

pellant. Palmer, Atty., Mr. M. Allan U. S. Asst. Acheson, with whom Messrs. David C. Q. Atty., U. S. Frank Nebeker and Victor Caputy, Attys., W. Asst. U. S. on brief, appellee. Washington, Before Danaher Judges. Burger, Circuit Judge, Washington, dissent- Circuit ed. BURGER, Judge: Appel case

This arises out of lant’s convictions on two counts of un authorized use aof motor vehicle.1 Aft Appellant preliminary er arrest had a ju on October 1963 and was dicially advised and warned silent, to remain to counsel possibility and the use of his hostile lodged statements. While D.C. Jail on November more than two weeks after his Rule 5 hear ing, request writing he made a Captain Squad. Williams of Auto day The next Williams Detective Horrigan Appellant came to see who again writing consented to see them. interview, At the admitted three auto thefts, including charged, the one pleading guilty asked to a mis about charge. Ap demeanor officers told pellant request the latter be re would Attorney. ferred to the United States rely On trial the Government did not of its Appellant case in chief. But when testi- fied on his own behalf and cross exam- ination all denied car thefts and three making Cap- denied admissions to ever Horrigan, tain Williams or Detective testimony of the Government introduced two officers toas the statements made prelimi- two weeks after the Kindleberger nary hearing. point David Messrs. W. At this the District Kohl, (both appointed jury Victor P. Jr. held a without a error, Apparently judgment acquittal because of a clerical teved the close judgment the District Court’s reflects of the Government’s case in chief. We one conviction of count of unauthorized remand to the District Court under 28 grand larceny. judgment use and one count 2106 to have cor- § U.S.C. grand larceny indictment contained a rected to reflect two that count use, grand larceny. count and an additional unauthorized use unauthorized count, as to both of which Court en- * * * present develop solely obtain to the cir- tinued evidence as surrounding police nipped counsel. But the cumstances statements. virtually opportunity in the bud of Williams and Horri- heels, upon from Ricks’ gan was admitted in over evidence ob- hearing room Commissioner’s jections and no made then into the continue their cellblock to *3 any limiting cautionary or later than or interrogation. given jury. Appellant instruction be urges receipt U.S.App.D.C. now mony that the of this testi- F.2d at cautionary without this instructions is 969. Two of a division of members “plain 52(b). error” under statements thus Rule court excluded Ricks’ Fed. rely upon obtained, purporting which no- this we are bound to to R.Crim.P., though Appellant “supervisory power” the ad- tice even made no court’s over request. justice in criminal ministration of of Ricks District Columbia. Even The contention is also made that the panel properly exercise this assumed to must be ex- statement supervisory power some be- function —a cluded under Massiah United v. sitting lieve left to en best the court 12 L.Ed.2d distinguishable banc—the instant case is (1964), and Escobedo v. from Ricks its facts. on (1964), agree Appellant the dis because coun- cannot We either senting present dis sel at the cases are not time. But those view that the rendering resembling police anything to be read as inadmissible all closes uncounseled an ac- United utterances made v. conduct revealed States, Long person. U.S.App.D.C. cused or Unit- 335 F.2d arrested States, D.C.Cir., ed Johnson and Stewart -, holding U.S.App.D.C. The Escobedo light must be read especially (1964). of of is no its facts and 344 showing there F.2d 161 Here purposeful interrogating Appellant’s police an un exclusion of wait- ing lawyer during opportunity from an to coun- the course counseled defendant pursued police sel his client their while a continuance of the securing interrogation. There, Massiah, granted purpose af- for police preventing firmative action existed counsel. when, counsel and advice after the time Here, cases to the in marked contrast Supreme as the on the decided dissent, Ap- was the it relied cases, facts in those to consult writing pellant to see who Nothing re- with counsel had attached. sembling newspaper concerning article a is here. Jack- shown subject arrest. When son v. United not for cell was went 337 F.2d 136 Nor does the Appellant, purposes, for what their present significant case resem- bear not, correctly in his to be or conceived States, 118 blance to Ricks v. United unconvincing the dis- find interest. We Appel- emphasis the fact that sent’s where charged only up them had been lant jail pending vehicle.2 Ricks was use of one committed to with unauthorized concerning cause, probable speculate the determination of We need not which and the con- the news article about thereon was content of Appellant independent Two of the four found statement of counts basis Appellant witness, himself with after the interview shown it difficult to were dismissed the trial court. Of the interview. We find remaining two, charge anything in these cir- the Chevrolet unconscionable already been made before interview cumstances. charge already Chrysler and the had an chief, or cautionary concerned about his it follows that no in- asking police; motives necessary.3 According- to see the structions were Appellant’s ly own reveals that affirm we conviction sub- ject he knew at the time of arrest to the above noted correction to be upon were interested in more than one made remand. automobile: Remanded with directions. I So stated officer that I didn’t thing know a about this car Chev- [a DANAHER, (concur- So he said rolet]. there had been ring) : * * recent thefts the area *. Judge Burger’s opinion. concur And he looked over to the Ford and up point sharply I wish bit more tags. it had dealer’s And he told my rejection additional reasons for partner, said, “I bet *4 dissenting theory opinion. Per- looking another car that we’re for.” haps approach, mine is an old-fashioned It cannot have come as much of a sur- Supreme I think that when we cite prise Appellant to the officers who precedents, Court should look —not to we response came to the cell-block in to his precisely dictum —but to what request were interested in Ford as has held. Chevrolet, well as the as to which he had example, For in Escobedo v. already charged. been im- Nor was it 478, 1758, 490-491, 84 S.Ct. proper police to their evi- reveal (1964), 1765, the Court 12 L.Ed.2d 977 (a statement) Appel- dence witness’ to that an de- announced accused has been concerning Chrysler, lant use of a later rights nied his Sixth Amendment under subject of count one of the indict- circumstances: ment —of which he stands convicted. where, hold, therefore, “We willing- Appellant Once had indicated a long- here, investigation as is no bargain surely ness to the disclosure to general inquiry er a into an un- opponent’s him of his hand should not begun solved has to focus crime but objection support his here. particular suspect, suspect on a simple Appellant is that fact custody, police has into been taken gambled lost, “have and now seeks to police carry process in- out a cake and eat too.” Unless we are terrogations lends itself to prepared police to must hold that officers eliciting incriminating statements, custody any person refuse to listen to suspect has and been “bargain” possibility as soon as the of a opportunity an consult with denied to is mentioned or a defendant otherwise lawyer, and the have spontaneously a discussion of initiates effectively him ab- warned of his charges against him, we must hold remain solute constitutional to permissible. action here We silent, the accused has denied been record, say, cannot on this the offi ‘the Assistance of Counsel’ in viola- way deprive cers behaved such a as to tion of the Amendment Sixth as that obligatory up- Constitution as ‘made right has so far been defined. by on the Fourteenth States statements were admissible as Since we conclude Government’s against Appellant’s case-in- him Amendment,’ U.S. 9 L.Ed.2d ^[335] Gideon v. at 342 799], [83 Wainwright, and that S.Ct. 792, no against 3. We make no determination as admissible him in chief. Nor do portions, any, might plain statements ever we decide whether error by analogy give cautionary would have been admissible in a in- inhere failure to concerning Walder v. United U.S. structions Escobedo-Massiah 74 S.Ct. 98 L.Ed. 503 in chief but of- inadmissible impeachment, impeachment. in- his statements been fered as dur- not even where had no statement elicited the accused ing interrogation attorney may be used had received Rule 5 ‘judicial him at a criminal trial.” caution.’ United States (Emphasis supplied.) Mitchell, U.S. 88 L.Ed. 1140 saidWe case, In that same Escobedo a dissent ago only as much month ourselves

was written He Mr. Justice Stewart. Ramey U.S. explained precisely held what had been App.D.C. 355, in Massiah v. United 840], denied [379 L.Ed.2d [13 L.Ed.2d 47] (1964). He was the author of Mas- Carignan, United States v. opinion. fairly may siah It be assumed (1951) exactly that he knew he had what been where Rule 5 advice had im trying say. So, pointed out the parted. If there were a that a rule following: may confession not be received if “Massiah v. United made an coun accused without [84 S.Ct. 12 L.Ed.2d sel, that end of this would be the point 246] not in here. In that (Em case—and of scores like it.” grand jury case a in- federal phasis original.) U.S. dicted Massiah. He had retained a App.D.C. 337 F.2d at 140. lawyer plea entered formal Supreme Court refused to take that *5 guilty. system not Under our of denied, case. Certiorari was justice federal an ar- indictment and (1965). 13 822 L.Ed.2d raignment by trial, are a followed Here, Judge Burger pointed which the Amendment Sixth has guarantees Cephus out, the the as- himself sent for the officers. defendant sistance He counsel. wanted But Massiah to make a “deal.” The record of bail, shows, was effectively released on and thereafter and not the least be- agents of testimony, cause of Federal Government his own discredited deliberately wary totally elicited he was a who individual sought exculpate statements from him in the absence himself. He had re- lawyer. “judicial We held that the use ceived his Rule 5 His caution.” against these statements him statements to the officers were received of by way pro- impeachment his trial only denied him the of basic after he had tections Amendment testified Sixth had not consented to see of guarantee.” (Emphasis supplied.) and that had no recollection (Footnote omitted.) “requesting of Escobedo v. to talk to officers.” then, judge 378 84 Even U.S. trial excused the S.Ct. jury (1964). 1766 and held a in order to as- certain the circumstances under So it was that in Jackson v. United inculpatory admissions had occurred. 119 F.2d 337 judge I think the trial err. did not we noted Esco- that neither barring bedo nor Massiah can be read as When an accused in criminal case very use of Jackson’s takes the confession. We stand and carefully framed issue as the ma- “testifies in his own his defense jority viewed contrasted credibility may impeached and be position dissenting taken our col- his assailed like that of league. majority said: any witness, other and the breadth “Many, law, deeply learned of his waiver is determined scope believe that no should accused be relevant cross-examination. right convicted out of his own mouth. has no to set forth ‘[H]e Supreme jury But has never all the facts which tend proposition— laying announced such favor without himself open upon impeachment to a cross-examination admitted for Fitzpatrick those facts.’ admissible the Government’s case [20 chief. Hence conviction 1078]; 44 L.Ed. should be reversed. Reagan charging Cephus An indictment 610, 611, 39 304-305 [15 S.Ct. three counts of of a unauthorized use L.Ed. 709].”1 grand motor vehicle and one count of letting justify larceny courts do not “de- was returned on December affirmatively perjurious fendant testimony resort to 1963. He on was convicted two counts trial; jury reliance on Govern- of unauthorized use after a challenge disability judge ment’s bility.” his credi- the trial dismissed the other two prosecu- Walder v. United at the counts conclusion of the 62, 65, 98 L.Ed. tor’s case in chief. (1954). was arrested on October appellant brought This was in lawful detent the United before subject properly ion.2 He to cross- States Commissioner persuaded morning alleging examination. complaint am not unau dissenting colleague’s upon our reliance use one car—a Chevrolet. thorized States,4 proceedings prelimi Johnson and Stewart v. United first, distinguishable in that on its nary it is shows that facts, importantly, given warnings because in but more in routine my view, wrongly the case was decided. formed to retain counsel. Except technicality U.S.App. for the as to sen Cf. Blue v. United tence, I would affirm the conviction. D.C. denied, 1029, 13 WASHINGTON, (dis- sugges L.Ed. There is senting) : tion the record that he was told that appointed he had a to have counsel On the in this basis of recent cases *6 intelligently” “freely or that he Supreme Court, court it seems waived his to counsel. Cf. Blue v. incriminating clear that States, supra 319, 320, F.2d United 342 at statements would have been inadmissible at de 898-899. The record shows that in the case in chief. Ricks Government’s hearing. prompt fendant 216, States, U.S.App.D.C. v. United 118 prob The Commissioner concluded that (1964); 334 964 United F.2d v. ap able cause was shown and committed 262, States, U.S.App.D.C. 118 335 F.2d pellant Jail District of Columbia (1964); 297 Johnson and Stewart v. grand appearance to await an jury. before States, U.S.App.D.C. United 120 69 at 70, (1964); 344 F.2d at 164 see also 163 States, 201, Jail, Massiah v. United 377 U.S. While in the D. C. November 1199, (1964);

84 17, 1963, indictment, appel- S.Ct. 12 L.Ed.2d 246 before Illinois, 478, Cap- Escobedo 84 v. 378 U.S. lant filed a written to see 1758, (1964). S.Ct. 12 The L.Ed.2d 977 tain or one of his aides Williams argument Squad Government conceded oral Auto an article “about properly paper that the statements were not the stand which involved me.” On States, 148, supra; States, text, Brown v. United Raffel v. v. United 154-155, 622, 626, States, 494, 497, 2 L.Ed.2d 589 78 S.Ct. 46 S.Ct. 271 United U.S. (1958). Long 566, (1926); States, U.S.App.D.C. 209, 338 119 United Bailey U.S.App. States, 2. Cf. v. United 117 (1964). F.2d 549 denied, D.C. 328 F.2d cert. 377 12 L.Ed.2d 741 U.S.App.D.C. 344 F.2d 163 120 (1964). (1964), K. Senior Circuit Wilbur Houser, U.S.App.D.C. dissenting. 3. Radio Cab v. 76 Miller (1942); Walder

669 quently indicted; appellant remem- that he did not he stated that asked what requesting Captain plead “his to see Williams. chances were ber to to a mis- writing appellant to demeanor rather consented felonies than to these suggestion counts.” the officers on November 18. There is no appellant sponta- record that confessed during 50-minute What went on neously.2 Since confession was ob- appellant disputed.1 The interview is through process interroga- tained “a to testified he neither confessed eliciting tions that lends itself to in- four for which he tried nor crimes criminating statements,” Escobedo v. guilty plead offered to misdemeanor 378 U.S. at 84 charges. policemen The two stated that 1765, in the absence of counsel while they questioned and con- held preliminary hearing, fronted him with evi- sug- Appellee’s not admissible.3 brief dence; committing admitted gests that the “instant four crimes for which was subse- facts are not Long F.2d 338 dealing at 550. The court in noted that: This court has “ * * * spontaneous with a concern utterance of conflicts excepted coverage ing actually the kind from the said what is and done Mallory Naples privacy prior rule. to ar v. United detention States, U.S.App.D.C. 281, raignment 113 307 F.2d seem almost inevitable. This 1962); (en Veney 5(a) problems 618 banc Rule v. United is one of the cf. U.S.App.D.C. 157, 120 was intended to obviate.” Seals United F.2d (1965) (concurring opinion). 81 n. Harling denied, also F.2d 1008 n. 4 cert. App.D.C. 174, 177, (en 295 F.2d 11 L.Ed.2d 1961). (1964). bane On the facts of this case we need not consider the relevance of the In Lee v. spontaneity exception (5th 1963), court looked Cir. ques scepticism cases. on the statements of the noting tioning officers, See also Jackson v. United the lack of major objection reliable is a to all denied, parte interrogations ew prisoner. 13 L.Ed.2d 822 of an court its brief in uncounseled appellee this case *7 for which he was not even There would have been assurance at that some time; apparent purpose accuracy agent’s it is that their of the recital incriminating reputedly was to elicit an of what Lee statement. admitted. See Wong The fact States, 1963, that the confession Sun v. United was elicited might bargaining in what have been a con 9 L.Ed.2d 441. police text is irrelevant. If the Here we have a narrative of oral en con- gaged clusory in statements, accuracy “the conscious elicitation of of dependent upon memory confession” from an uncounseled which is accused circumstances, in inquisitor.” these such a confession conscience of the cannot Ap be used as direct F.2d at evidence. pellee argues that “the touchstone in Long 2. Contrast v. United quest these cases is the for a confession App.D.C. 209, by police.” quest But it finds no such Long lay the court refused to down a agree sug here. I with the “touchstone” excluding blanket rule all ad- uncounseled gested by appellee; disagree only with police custody. missions made while application its in this case. spontane- But there the defendant had ously “volunteered the admissibility statement that he 3. The of confes- had shot the decedent” in a corridor of police sion does not turn on whether police activity station “even before “improper” the officers or “unconsciona- identify Supra could themselves.” policy at ble.” The behind Escobedo is to qualitatively longer from” a different situation “There is doubt loudly “Appellant in which exclaimed his the confession obtained from guilt jail Johnson, from the cell and this was over- circumstances, under such guard.” analogy heard This seems was inadmissible as of the Gov- wholly policemen’s inconsistent with the ernment’s case in chief. Ricks v. testimony describing the interview. U.S.App.D.C 216, 334 F.2d very decided June The instant case is on its close also, Queen v. United facts Johnson and Stewart v. United U.S.App.D.C. supra. 335 F.2d In that case Johnson decided June Cf. Escobedo made an uncounseled confession in the interrogation jail course of nineteen days (1964).” L.Ed.2d preliminary after his had at permit been at continued to him to obtain and consult He consented counsel. had to see the officer of time the inter- The court ruled confession was though rogation, even had obtain- impeachment pur inadmissible even for ed counsel. The United States Commis- poses, and reversed of because the use of they sioner told the defendants that the confession. See also Ricks United required were not to make a statement States, supra;4 Queen they right and that had a to retain coun- supra. interrogating policeman sel. The testi- admissibility Insofar as the of an un- again fied informed the defend- concerned, counseled confession is rights beginning ants of their at the of Johnson and Stewart case is indistin- the interview. The confession ad- guishable from the instant The case.5 purposes impeachment. mitted for of majority argues that the instant case appeal, On we reversed the conviction. distinguishable is from and John- pointing After out Johnson and son and Stewart because Stewart were then confined in the Dis- hearings had been continued to allow the Jail, of trict Columbia and were inter- procure defendants to together those police officer,

viewed there cases.6 Their we stated: statements give meaning with the real facts of Johnson and Stewart. constitutional majority guarantee counsel, light reads “in Escobedo facts,” especially ap- its assure that the “exclusion of at trial not be- does * * pellant’s waiting lawyer meaningless. come lawyer primary purpose fact that a S.Ct. at 1763. The not even re- “police police,” tained in Johnson rule is not to and Stewart was not but majority assure a considered relevant. The defendant of the assistance of states points there was counsel at all essential “affirmative action” the crim- process. inal Massiah and Escobedo. But John- bargain son action, can and Stewart continue to there was no affirmative questioning by uncounseled other than cannot defendants: police; precisely use their uncounseled this is the kind of why action them a trial. representation taken There no reason instant (It why police question- pre- case. is unclear the accused would *8 ing bargaining; might clude not itself it well facilitate “affirmative ac- tion.”) it. 4. While the decision in distinguishing Ricks rested on 6. In the Ricks decision the supervisory power, the exercise of majority our significance seems to attach some Queen the later case reached the same police quickly pursued to the fact that the relying result on Massiah and Escobedo. the defendant from the room to States, The Fifth Circuit in Lee v. United speed pursuit his cell. But the factor 322 F.2d 770 recognized reached a similar has been in be irrelevant supervisory in result the (2-week exercise of its lapse original between power. subsequent questioning) compare majority’s lapse). (19-day 5. It is useful in Johnson and the Stewart distinctions of Escobedo and Massiah

671 they Zerbst, were made before had Johnson v. 304 obtained counsel, least, or 58 L.Ed. 1461 at the absence 82 counsel, 357], after those had ex- A.L.R. 332 F.2d at 777.3” [146 defendants pressed represented a desire to be out, pointed As fail “3. one court has a hearing. preliminary In counsel at the request significance ure to only counsel has calling differ- attention to this factual amounts to a waiver of that every right; indulge the courts will ence, majority to focus on the seems presumption reasonable such a appellant requested fact a that had not waiver and one not be found unless will lawyer prior to his interview with unequivocal it is made clear and terms police. not But the to counsel .does fully an accused aware of its conse quences. depend Rhay, request by on a defendant.7 Griffith v. 282 denied, (9th 1960), 717 Cir. agree expressed with the views 5 L.Ed.2d 373 Judge Fahy’s dissent in Unit- Jackson v. “ ‘Further, request the mere failure to States, supra, U.S.App.D.C. ed at presence appoint- of a retained or an 337 F.2d at 144: ed counsel should not be deemed an intel- waiver, ligent particular since defend- significance “And it is of no request probably ant who does not has aid appellant requested had not counsel as much or more need of effective assist- making before his confession. request.’ ance than one so who does Note, (1961).” 61 Colum.L.Rev. Lee v. United (5th 1963), Cir. in which use at majority argues appel- also trial of a from confession obtained object lant cannot to the admission of op the accused before sought his confession out since portunity to consult with counsel police. However, interview with the process, was held violative of due Cap- request written the court stated: does ‘The record sought tain Williams indicates that he not show whether Lee the interview in order to discuss a news- counsel or at time his inter paper published article that had been rogators appeared or before testimony police- about him. The * * * opened his “But cell door. men indicates that it was their confront- it is settled that where assist ing appellant damaging evidence ance of counsel is a constitutional questioning him which diverted requisite, to be furnished interview admissions and elicited the depend counsel does not on a re appellant from that he had taken the quest.” Carnley Cochran, 1962, v. four automobiles. While 506, 513, 884, 889, indicating of the officers could be read as

8 L.Ed.2d 70. Nor can there abe appellant took the initiative presumption suggesting plea waiver of counsel. to a misdemeanor concurring opinion In his supra; in Williams v. Blue v. United Green cf. well v. United (filed April 1, 1965), Judge (1964); F.2d 733 ger Bur- Peo request ple Dorado, Cal.Rptr. does not list for counsel 398 P.2d prerequisites (1965); Dufour, accused as one of the A.2d State operation (R.I.1965). of the Escobedo exclusion- ary Supra hearings rule. 345 F.2d at 734. The fact that supra completed Queen, Contrast Jackson v. United had not been John- Stewart, Rides, 337 F.2d at 140-141. See son and is of no' Escobedo, significance. pre- Justice White’s dissent The records of the liminary hearings U.S. at 84 S.Ct. 1758. in those cases indicate failure to the defendants had been informed right, rights cannot be taken as a waiver of the of their to the same extent as had' Zerbst, pre- Johnson v. 1019, herein. The fact (1938), especially liminary hearing completed has *9 hardly since he had not been informed instant case could divest die appointed. to have counsel defendant of his to counsel. charge felony charges drop- if the were INC., Petitioner, TOURS, HOLIDAY ped, it is hard to see how could proposal have made this when there only charge against him at the time one AREA WASHINGTON METROPOLITAN case, Respondent, COMMISSION, TRANSIT of the In it is clear interview. high- police questioning elicited the Gray Company, A.B. & W. Transit Line, Inc., Washington, Virginia ly specific & damaging confessions Maryland Inc., Company, Coach of Ar- one offense then and the three lington, Virginia, System, D. C. Transit charged. were offenses that later Inc., Washington, C., D. Intervenors. Ricks, Johnson defendants in No. 18561. Queen compelled Stewart not Appeals United States Court of speak they police; freely con District of Columbia Circuit. though sented to do so even present. Argued Their free consent was not Jan. objection held to their to the use bar July 14, Decided confessions; of their uncounseled strong there is a indication that those they defendants knew that were con senting interrogation by police.

Here there is indication

that the defendant knew that

for an interview and his consent thereto questioning.

were an invitation to and Johnson Stewart they testified that warned the de

fendants a statement could used be them; case, in the instant they testified that not warn did appellant. People Stewart, Cf. 43 Cal.

Rptr. (1665); P.2d Jersey,

States ex Russo rel. v. New No. May 20, 1965, 351 F.2d 429 decided (3d Cir.). light Queen, Ricks, In the John- Stewart, Escobedo,

son and and Massiah

cases, statements they if

would have been inadmissible Government’s offered as case in chief.8 And the con- Government prop- ceded that the statements were not

erly impeachment admitted

were not admissible as direct evidence. objection The denial of defense counsel’s error; preju- to their admission was impact statements,

dicial of these ad- instruction, cautionary

mitted without

cannot be doubted. convic-

tion should be reversed. against appellant apparently to be ted two counts Government counsel at trial ap- putting dropped risk rather than had sufficient doubts admissibil- about the ity pellant’s they permit- case in chief. its of the confessions that notes Jackson stated: “spontaneously fully salt, defendant “Even if not may worth his we confessed.” police presence lawyer] “Absent was a aimed be sure that he [a would conscious elicitation of a confession.” have insisted that would admission The same cannot be said in about have to be statement, the form of a written signed approved stant case. conceded or questioned appellant and or confronted him accused a record of some kind made implicating with evidence reporter. him in and attested a crime a court