James W. Killough v. United States

KILLOUGH, Appellant, James W. America,

UNITED STATES Appellee. 16398.

No. Appeals

United States Court

District of Columbia Circuit.

Argued June

Decided Oct. Bryant, Washington,

Mr. William B. (appointed Court), D. C. the District with whom William Messrs. C. Gardner Joseph Waddy, C., Washington, C. D. brief, appellant. were for Acheson, Atty., Mr. David C. U. S. with Duncan, whom Messrs. Prin- Charles T. cipal Atty., Asst. U. S. J. Mc- Arthur Laughlin, Atty., Asst. U. and Nathan S. Paulson, Atty., J. Asst. U. time S. argument, brief, were on appellee. McTague, Mr. J. Daniel Asst. Atty., appearance U. also entered an S. appellee. Before Wilbur Chief Miller, K. Judge, Edgerton, Bazelon, Fahy, Washington, Danaher, Bastian, Bur sitting Judges, ger Circuit Wright, en banc. FAHY, Judge, Circuit Cir- with whom Judges EDGERTON, BAZELON

cuit join. and WASHINGTON degree Appellant, indicted for first strangling death, murder wife manslaughter. was convicted of The case of a another conviction brought crime has been about serious given orally aid a confession day after —in this case the soon next —a confession had been obtained in written which rendered it inad- circumstances pre- Other oral confessions had missible. the written one and ceded like it were inadmissible. involving problem cases Three this fairly recently by decided

have been Goldsmith v. court. 277 F.2d cert. denied, 5 L.Ed. 86; Jackson United

2d V.

242 Murray, denied, 675, Counsel] Defense 233, App.D.C. “[Mr. cert. 285 F.2d Q. [Officer], 1666, Mr. I think the Court 941, L.Ed.2d 6 366 81 S.Ct. assumed, and Mr. [Prosecutor] has Mr. Justice Warren Chief noting your Douglas reason has assured us that Mr. Justice going grant certiorari, Naples talk to this v. to the might satisfy 307 defendant what was to United 113 Jackson, requirements in the be the additional application F.2d 618. In Goldsmith Mallory rule, vote, court of this of the divisions a divided reaffirming second, confes correct? held that the sions, dissent admissible. The were That is correct.” “A. ground, not each case was based on the Judge opinion excellent of extenso, repeated the second here Youngdahl present filed when case* directly from the confession stemmed so judg- appellant’s motion for he denied illegally procured first and inadmissible notwithstanding the acquittal ment of inadmissible. confession that it was also trial, for a demonstrates verdict or new pre So to hold was deemed essential during the his exclusion the soundness of Mallory-Up integrity of the serve the and written trial of the earlier oral right protective of the shaw-McNabb rule in stark violation fessions obtained mag an arrestee to be taken before a United See of the accused.1 5(a) required Rule istrate as F.Supp. Killough, States v. which, U.S.C.A., Fed.R.Crim.P., (D.D.C.1961). retained The accused was though Rule, the full effect in form a custody by police hours some statutory law. proc- arrest, time which sitting obtaining pur- Naples this court banc a confession was en ess of upon unnecessary pass found it admissibility sued. confession; yet of the later Supreme Court are that the aware We frankly revealed that was the record exclusionary Mallory placed has not purpose circumvent- obtained for the Constitution, as it has rule ing Mallory rule, appears from a un- exclusion of evidence obtained prosecution colloquy court and seizure. As reasonable search and in the case: counsel Ohio, Mapp see latter L.Ed.2d 1081. But it Now, presume court:] “[The evi- that the rules of nevertheless true attempt reason an was made that the pertaining in a fed- to confessions dence get another statement from the formulated on the trial eral have against as an insurance defendant is background Fifth Amend- of both the Mallory case. the rule provision ment, particularly no its United Assistant States At- “[The compelled person criminal shall be torney:] Yes, Honor, Your there against himself, and case to be a witness question of that. no recognized of an accused the well This was before “[The court:] promptly taken be- when arrested to be case decided the Goldsmith magistrate inquire shall into fore a who * * * held that arrest, for his sufficiency the basis apply post-arraign- did rule rights, and determine him of advise ment statements. to bail and be admitted he shall whether McNabb v. conditions. on what magistrate by taking committing Youngdahl him said: headquarters sup- police in order to car- and concise reason for ‘to direct “The inquiry process ry len[t] pression out the confessions was that designed, itself, precisely to elicit- if not so even did what case support damaging interpreting statements and the cases ” ultimately guilt.’ they delayed ap- 193 F. squarely arrest forbid: person Supp. pearance at 909-910. of an arrested due that our fact brethren who con- majority stituted the the divisions 87 L.Ed. the court which those re- decided cases case, present after the In the degree upon lied to a substantial the fact actually Eule embodied in the law violated case the each accused length of time to sufficient had the advice counsel before the re- appel obtained, enable confessions affirming confession was made. confessing sought lant, who had to avoid requested Thus, opinion states, and on at least two occasions Goldsmith the magistrate. lawyer, was taken before a only appellants “The not re-af- magistrate him he was advised firmed their formal written state- he was entitled obtain counsel and that lawfully ments while were de- required not to make a statement —this tained, but did so in utterances being especially latter caution ironic con plainly spontaneous which were sidering already Ap occurred. what judicial at a time when both the having counsel, pellant not obtained warning and the advice of counsel magistrate desiring so, to do the right as to their to remain silent adjourned the the consent of both sides preliminary hearing were not more than an hour old.” 25 to from October U.S.App.D.C. at 277 F.2d appellant In November 15. the meantime at 341. was committed to the District of Colum opinion states, In Jackson the There, day, bia Jail. next only appellant Monday “Not did counsel, appellant had before obtained [before the oral have confession] the participated princi who had officer counsel, advice of able but obtaining pally in con inadmissible [preliminary] Smith at second day before, an oral fessions obtained hearing observed, appellant’s at- confession which the trial court admitted torney agreed, Sunday that on upon in evidence the basis of our Gold Judge Fielding prelimi- [at first s.2 ap smith and Jackson decision It is nary hearing] appellant had advised however, parent, opinion from the rights.” of his Judge Youngdahl to re which we have Again, ferred, admitting this “reaffirm advantage “He had had the of con- ing” confession he felt bound attorney sultation with his own who entirely decisions of this This court. is right advised him of his to remain court, however, understandable. This silent.” 237-238, sitting now first time en banc to 285 F.2d at 679-680. problem, consider draws a distinc Judge Youngdahl might present case, In said, well tion which as we have completion required preliminary he felt have was to do. enable, present postponed we had been distinction draw between the the accused counsel, case and both Goldsmith and Jackson to obtain he but had not done so 2. The officer testified, alia, possession inter that he the officer came into of a full jail reaffirming ap- went to the to take some articles confession even if the earlier Headquar- pellant appel- had left at Homicide ones were ruled out. Of course ters, repeating was a task it no means neces- lant was what he had al- sary ready perform for the officer himself said when he had been held performance or, it, personally 5(a). in violation of Rule On appellant. said, or talk with to see He cross examination the officer said he had however, he talked with him read a case which about indicated that a con- arraignment, half an hour. He asked him re- fession obtained if he al- anything though good, he had told in it was no membered statement, it was all replied, “My arraignment to which he talk about state- if the just about the ments is same” with an defendant made a ex- reference to it or re- mentioned, ception peated and he then it. went again. way full details In into the not, however, appel We do set oral confession time the at the following day.3 lant free. remand for a We reverse and trial new because of the erroneous admis distinguishes circumstance Another sion in evidence of the oral confession holding this case Goldsmith. given Although jail. question at the pre-arraign- the oral re-affirmation appeal before us for decision on this majority admissible the confessions ment guilty appellant not whether upon, at some outlined relied there length, colloquy convicted, crime of were defendants we to assume truth of the confessions persons robbed and anoth- and one of the required nevertheless be U.S.App.D.C. at person. er See grant necessarily trial, a new for we con 341.4 F.2d at means, cern ourselves not with with alone Accordingly, nor neither Goldsmith including of ends. Under the law— jail requires of the admission

Jackson course the administration of the criminal the situa- in this case. Were law in the federal end courts—a lawful court, otherwise, majority of the tion accomplished by is not the use evidence first time considers the which now for the by rendered inadmissible unlawful means. ready banc, problem be to re- en would Every rule of evidence which excludes those cases. consider from a trial material relevant and evi obtained in suppress The oral confession dence could be said to the truth limiting by so soon after the this case at in the sense of the means illegally procured may Thus, and inadmissible con developed. which the facts be penitent’s must be held inadmissible as the fessions disclosure to his confessor the latter.5 To admit it would fruit of is under a seal not to be broken at a crime, the earlier in substance effect admit trial for however true the con inadmissible, properly ; held confessions fession the doctor in abuse exclusionary thus rule. pa defeat name of truth the confidence of his reality tient, lawyer in would be client, nor the To hold otherwise that of his spouse nor one to be tried without that of The permit accused another.6 imposes upon court, jury rules the law limitations counsel, alone with or obtaining jail. in headquarters the means it will use evi The their by adopted guaranteed been dence have reasons the Constitu public trial outweigh counsel, jury court, need to ex after which use the tion, with hardly evidence. To turn into indictment, cluded the law more than a obtaining already means convictions violat of what for validation form statutory invalidly. accomplished constitutional safe- previously answering question obtained inadmissible court confes- 3. In recognized by argument in sion was court Jack- first oral appeal present Attor- son States pointed ney frankly 273 F.2d decided Mr. Justice out the difference retired, Burton, Judges being and Circuit advised of one’s between Washington actually having and Danaher. counsel’s counsel advice. In Elkins v. United Bayer L.Ed.2d ease referred to the ma- 4. The privileges opinion jority difference these Goldsmith is United Bayer, status of the due to witness and exclu- States 1394, of the evidence because of sion unlawful whore the confes- 91 L.Ed. recognized. police conduct But was made six admissible months held sion recognized also Court assumed exclusion one the Court outweighs on such conduct based violation of the “the been obtained Me- have general need for untrammeled difference between disclosure Nabb rule. competent and relevant obvious. evidence in a this one is case justice.” court authority so to hold when the re- 5. Our independent affirming is not guards greater would in the end cause statute and no Proce- Rule of Criminal encourage interpretation necessary. gain, loss and would dure. No than n deterioration agree All in methods of detection.7 nine members of this court Judge Youngdahl of the District Court ground Appellant also asserts as that the written confession was obtained reversal the admission evidence 5(a). They in violation of Rule also testimony of the coroner. substance agree that in- the written confession was testimony coroner ob- of this is that the McNabb-Upshaw- under admissible place he tained a dead at a described Supreme Court, rule. The brought morgue.8 Ap- and had it 5(a), exclusionary established the pellant contends that testi- the coroner’s 5(a) says nothing rule. Rule about the mony pro- illegally stemmed from the admission or exclusion of evidence. The and, therefore, cured initial confessions question before us is not what Rule .was inadmissible as the “fruit violation, means but whether its conceded poisonous tree.” Since reverse for concededly the written previously the reason necessary set forth it is not inadmissible, fession also made inadmis- pass admissibility upon sible the confession afterwards obtained testimony. Appellant coroner’s jail. at the any is entitled a new trial and event to says holding “goes 2. The dissent our possible may it is not be coroner * * * beyond any prior opinion far testify. called to With confessions * * of this court This to seems question out of case the whether mean that this court has not testimony heretofore coroner’s should be admitted confession, excluded pre- may arise, very made after a arise in a liminary hearing, ground that it different context at a new ingly, Accord- trial. resulted from an inadmissible confession not decide we do it. during period illegal made deten- foregoing While we believe the discus- hearing. just tion before the But that is sion meets the issues we also believe it what this court did in the first Jackson point Judge desirable to out case, 5, supra. see n. there, We held dissenting opinion, unusual BURGER’S here, reaffirming we hold that a confes- Judge in which Chief MILLER and Cir- which, though sion hearing, it followed a Judge join, cuit BASTIAN and which to was made soon after an earlier confes- refer, upon misconceptions. nowwe rests sion obtained unlawful detention says holding “goes 1. The dissent our preceded which hearing, was “a re- beyond purports far the.statute it ‘in- illegality sult” of that and must be ex- ” terpret.’ purport interpret cluded. We no 7. See Elkins v. United any no room for U.S. other course of action. quoting Although great majority pro- n. Di S.Ct. in our Edgar Hoover, long adopted pol- fession rector J. have since “ * * * icy, rights yet entirely proud Civil we violations are cannot be regrettable give justifi- our record. all the more because Incidents which unnecessary. charges rights so Professional stand- cation to are of civil violations provide fight- in law law ards enforcement enforcement officers still occur. * * * intelligence ought rather than This crime state of affairs * * * challenge In matters of scientific be taken as a force. to all of us. Every progressive detection, our FBI crime services of administrator Laboratory every duly everything pow- are available officer must do in his bring improvement er to law enforcement officer in the about such constituted an Full use of these and fa- that our nation. other conduct and our record will con- entirely clusively prove charges make it cilities should unneces- each of these sary officer to feel the need to false.” FBI Law Enforcement Bul- letin, September, 1952, pp. dishonorable methods. use 1-2. rights “Complete protection of civil stipulated morgue It was 8. turned primary every be a concern of should over the to the undertaker to whom These are basic in officer. the law the defendant had released it. obligation uphold our leaves Bayer, the re- United where cites dissent Supreme 1, 69 L.Ed. 131.

affirming which confession six “ Court held admissible * * * says: once 6. The dissent first confession. months after the hearing [preliminary] is held making unusable an Court said Congress But directive of is satisfied.” “perpetually” dis- confession does not hearing satisfy tardy does making a usable able the confessor Congress. re directive of suggest did not one. The Court reaffirming unnecessary quires a “without made within delay.” points And dissent as the itself case, Wright hours, is admissible. our which is out, Supreme emphasized Court has out, points Moreover, as mag that the must to a arrestee be taken Bayer must now be considered quickly possible istrate “as so that light Mallory. rights.” may be advised of his premise implied dissent An of the says opinion 7. The dissent that our exclude relevant is that courts cannot any interrogation practically bars statutory specific au- evidence without judicial accused warning, even thority. so, Mc- If that the entire were lawyer unless he secures in- Nabb-Upshaw-Mallory rule would be ready plead guilty. wide This is rule, valid, hearsay would the so of the mark. The factor in this decisive among many others. day jail that, case is before the n pic- made, says present led fession was a confession The dissent to the by had been obtained ture which is neither nor ade- accurate fact, quate, conduct officers but it cites no unlawful error legal specific rights fact, de- which violated no omitted which bears on the by spelled 5(a). jail question fendant Rule Our the confession is out whether opinion excludes evidence is. admissible. which by police due to a violation the of their suggests opin- 5. The dissent that our duty 5(a). under Rule Absent such vio- ion contains statements inconsistent with relationship opinion lation and such our Judge Youngdahl’s unchallenged finding interrogation. precludes no jail voluntary. the confession was Moreover, problem nowhere have not discussed the in have we said that We post-hearing confession, following see, however, terms of the one voluntariness — concurring Judge Wright— illegally procured opinion hearing, the before of necessarily entry opinion must sel; await the the basis for our of coun- since is that predetermine jail nor do we the confession was the result of the the- passage previous of no of time could re- confessions which amount were invalid- obtained, ly concededly move the taint of a confession obtained inadmissible exclusionary in defiance of the McNabb-Upshaw-Mallory rule. rule. under the prevent this rule from becom- to In order It is said we abandon the balance “mockery,” ing to borrow rights pro- between individual and the jail Wright’s expression, the confession Support public. tection of the for this. This be excluded. basis for must also charge sought Mr. Justice: unnecessary opinion to makes con- our 5(a) Frankfurter’s statement that Rule Judge Youngdahl findings of to sider safeguard should individual “with- the dissent refers. hampering intelligent, out effective by accepts Moreover, But this the dissent uncriti- law enforcement.” statement ruling Judge Youngdahl cally of the McNabb and the author police opinions not,, means that need of law matter voluntary. ruling effectively, the law The fact that this to enforce violate by judge do not abandon the the trial is not We balance thus con- law. adjusted Ziang Sung by Supreme See, g., e. Wan Court. We: clusive. must which enforcement work within jail confession to it. Since adhere carefully formu- proceed now has been previous violation resulted from a good. pre- lated for the common order to it must be excluded being exclusionary rule from by presented serve case problem fails The dissent nullified. mocked and effi- understood in terms cannot be ciency done, how, person unless this to indicate permitting an arrested main- can be to refers interrogated length balance which it he has by nul- maintained tained. It cannot be hearing. preliminary must be con- It rights. lifying change individual sidered terms of the parties relationship status Congress suggests 9. The dissent place Once made. arrest is takes when an legislatively that our decision should be person clothed becomes is arrested he that Con- reversed. This means either gress right basis with the to have the evi- of trial should take the matter magistrate. by inquired arrest into judiciary dence out of hands of the change in status is This fundamental Congress where, exceptions, with rare ob- basis rule for the that a it, else its left wisdom has heretofore recognize tained officialfailure changed (a) Rule 5 itself should be so change admissible abide is not subject an as to authorize the no evidence. Our decision excludes person, their arrested complete alone and in when failure. fession not attributable to such interrogation control, for a goes saying that crime bring period without about sufficient of time goes undetected, and de- legislation sometimes when self-conviction. Such goes unproved under tected sometimes problems Bill under encounter a fair Rights, including the rules evidence essential to requirements Though expect perfec- against process guarantee trial. cannot law, due improve tion the effort to necessary the situation compulsory self-incrimination, and the unending. are, genuine But there by jury, presided to a trial us, approaches to im- seems wiser judge, over counsel, with the assistance of provement system than to make our procedure not a mere secur- justice inquisitorial rather criminal headquarters. self-conviction at thereby one, than change (a) an accusatorial in all Such a in Rule 5 would jury undermine to a trial as the en- method of substance transform our contemplated by forcing and the Constitution the accusa- criminal law from an open inherent in system. the door to other abuses inquisitorial torial to an “Ours change. such a opposed is the in- accusatorial as to the quisitorial system.” Indiana, Watts v. Edgar said, foot- see Mr. Hoover J. 1350, 49, 54, S.Ct. 7, supra, violations are note “Civil system places at times 1801.9 Our they L.Ed. regrettable are because more all the greater upon authorities burden the unnecessary.” join the We do so depend- one, inquisitorial than would an legislation advocating either to dissent in sug- ing upon modify the But the circumstances. rights, a rule civil attenuate gested carefully encoun- innovation would announced and re- of evidence peatedly Supreme Court, ter constitutional difficulties but the affirmed subject of this court temptations a decision or to overrule of abuse integrity brutality society of the is essential to the which a civilized Supreme rule. There would seem Court’s should not countenance.10 frame- 9. McNabb-Mallory Snee, Opinion Frankfurter, Rule: Its of Mr. Justice Rescue, Rise, Murphy Rationale 47 Geo.L.J. which Mr. Justice and Mr. Jus Rutledge joined; tice and see Ashcraft Tennessee, v. analysis thorough 1192; and discus- 10. For 88 L.Ed. Culombe Connecti Barth, problem cut, The Price see of the n. 24 sion Liberty, Hogan 1037; 6 L.Ed.2d Congress Jackson,4 passes upon question. I would it to be no need to call either balancing not. courts, name rights, cur-

community and individual remanding trial, In court for new long rec- tail ognized. the latter as have passes question also admissi- of the nowhere is maintenance Their bility testimony with of the coroner’s Capital important more than in the Again respect of the victim. Nation. body, I me, would not. To findings examining Judge Burger’s dissenting opinion, it, coroner’s be Circuit stitute must which Judge Miller and tainted evidence which Chief importance have join, excluded. Because of the Bastían and which questions, appropriate meet these above, I fails to think it discussed we think namely, length. case, develop my problem the real views at some MeNabb-Upshaw-Mallory rule how the I. if the courts evidence can be maintained admissibility On open permitting issue door to its evasion post-arraignment confessions, are reaffirming there confessions, soon obtained so positions. two extreme The first is after the secured confessions officershave magistrate’s the intervention of a warn law, in violation of admitted be remain the accused that he the dissent evidence. We feel that erasing clean, silent all largely opposition washes the slate attributable to the prior wrongdoing by police, exclusionary clearly so that dis- rule itself dissenting subsequent is at least closed footnote 5 of the presumptively opinion. free of the taint illegally obtained The other admission. Judge Wright reversal concurs position that, absolute “the because judgment stated for the reasons psychological disadvantages practical opinion rea- in this and for the further illegal having confessed” under [once] concurring opin- sons stated in his own wholly conditions can never be overcome ion. good” —since “the secret is out for and remanded. Reversed got] “the cat [can never back in the bag” illegal 5—the extraction of an con permanent fession stands as a bar to the WRIGHT, Judge (concurring). Circuit any subsequent admission of confession. agree ruling second, I with the my view, both of rules un these are - post-arraignment, confession is inadmis They simplici sound. have the virtue of agree inadmissible, sible. ty, enough but that is not to make either among reasons, ob other because was acceptable. from the he had tained accused before counsel, opportunity justified an undoubtedly obtain The second who rule would be if discourage our him concern would have advised were to im- proper police Certainly,- of exercise silence. But also action. that consideration, important think confession is a was inadmissible and a most Indeed, because it was tainted sion, one. it is the first confes a sufficient reason for admittedly excluding illegally obtained in violation of obtained confes- 5(a),1 Mallory.2 wholly voluntary sion. Rule construed in Even suggests might the court obtained in While it be violation of Rule in- is appropriate to so hold and admissible. States, thus over McNabb v. United 332, 608, 318 819; rule our U.S. 63 decisions Goldsmith3 and S.Ct. 87 L.Ed. F.R.Cr.P., 5(a). States, U.S.App. 4. 1. Jackson Rule v. United 109 233, D.C. 285 F.2d 675. Mallory States, 449, 2. v. United 354 U.S. 1356, Bayer, 532, 1 5. United States v. 77 S.Ct. L.Ed.2d 1479. 331 U.S. 540, 1394, 67 S.Ct. States, v. Goldsmith United 107 U.S. App.D.C. 305, 277 F.2d 335.

249 410, subsequent is an in- If the Upshaw it. 335 U.S. act, fruit Mallory dependent of 100; be the v. cannot 170, 69 93 S.Ct. L.Ed. wrongdoing the first 449, tainted which 77 S.Ct. United 354 U.S. assuming Nor, co- absence of confession. 1356, should But we 1 L.Ed.2d 1479. inducements, exclusionary improper forget and other ercion of the rationale this Mallory involuntary. rule, carry can it then The far. it too or 5(a), merely implements Rule doctrine Admittedly, determine it is difficult pre- purposes of one of whether there a connection And, involuntary vent confessions. But, nature be- two confessions. human though penalties appropriate, are harsh ing recognize pre- is, we what it must co- even has not when accused sumption of one fruit is the safety ignore erced, public cannot other. rule of admitted- This connection wrong- attempt in our to correct governs ly confession was where the first suggests doing. be- Thus, no one pre- There is then coerced. a rebuttable illegally suspect detained has been cause a sumption subsequent all confessions free, confessed, let he must be has continuing influence of are tainted prosecution all further immune from Leyra Denno, 347 coercion. U.S. See v. Doubtless, abe the offense. this would 948; 556, 716, 74 L.Ed. Fikes S.Ct. 98 illegal inter- most deterrent effective 281, Alabama, 191, 352 v. 77 S.Ct. U.S. public is rogations, cost to but the 246; Pate, L.Ed.2d Reck U.S. v. policy great. here, So, a sound too while 948; 1541, 433, 81 S.Ct. 6 L.Ed.2d cf. requires of confession obtain- exclusion Lyons Oklahoma, 596, 64 v. S.Ct. voluntary 5(a), Rule ed in violation Note, 1208, also, 88 L.Ed. 1481. See wrong- not, does not follow that such prin- L.J. at Yale n. 3. same doing “perpetually the confessor disables ciple respect should control making a usable [confession].” subsequent reiteration ob- of confession Bayer, v. States U.S. 5(a), since, tained in violation 1394, 1398. here, even the first confession is at least mechanical, presumptively involuntary. rule, equally But other Indeed, it is worse. is no better. finding is, course, true that assumption state- that a commissioner’s coercion or “involuntariness” is unneces- already accused, ment to an who sary exclusionary Mallory under the rule. n confessed, silent, will remain considering be, And that is as it should immediately psychological remove the impossible handicap an accused confronting (cid:127)disadvantage suffers when overwhelming disproving usually tes- secret, officers, know his the same who timony officers that he confessed being .simply so, to al- That unrealistic. freely. Black, dissenting, See Mr. Justice gained police, un- who low the have Gallegos Nebraska, v. knowing illegality advantage, fair S.Ct. 96 L.Ed. Mr. action, reap now full benefit their Douglas, dissenting, Justice in Crooker n mockery it, make is to California, n exclusionary Here, of car- rule.6 instead But, 1287, 2 L.Ed.2d 1448. as al- wrongdoing too rying stricture noted, prime ready reason for exclud- penalty is far, nonexistent. obtained in violation confessions illegal that is detention is agrees Rule so everyone that Apparently now admissibility potentially conducive to coercion governing that the test the true during procured n of an n confession voluntary any that subsequent time otherwise conclusively presumed by be involun- will induced the whether is is tary. supra; McNabb United confession, independent v. illegal or first taking schooled too our Goldsmith- were with concerned the 6. The gloss. admittedly Jackson here were confessions the Mallory. shows The record aware supra; psychological Upshaw helplessness that comes v. United Comment, forever, States, supra. from surrender v.United need not last See Moreover, 53, the I think 54-55. the burden should be Am.U.L.Rev. by cruder unaccompanied even the Government second confes when that a show inducements, physical psychological spring in in which sion did not a mind from terrogation suspect the all stiff lone are mechanisms of resistance by yet apparent who fu has not reassured subdued defeat and the judicial tility silence I officer of of further And do not. combat. “inherently required v. think Ashcraft the bare coercive.” See admonition Tennessee, 154, 5(b) 143, spiritless likely Rule despair U.S. to convert 921, vigilance suspect, 38 L.Ed. 1192. to alert in a According already whose secret is out. pre- question The remains whether ly, presumption I would of' continue continuing sur- sumption can coercion beyond preliminary connection hear hearing magistrate’s at which vive the ing. And, long course, so as it can advised, authoritatively the accused is causally be said to be an related to ad tormentors, presence of during illegal detention, mission secured So may does. remain I think it silent. subsequent confession is itself “the saying, I commission- do not belittle the wrongdoing,” fruit of must be ex importance the state- er’s role or States,, cluded. See McNabb v. United required 5(b). must But it ment Rule supra, 345, 608; 318 U.S. at 63 S.Ct. contem- Rule be remembered that plates Mitchell, 65, United States v. 322 U.S. freshly man, arrested. a whole 70, 896, 1140; Upshaw 64 S.Ct. 88 L.Ed. timely him, For his consti- counsel as to States, supra, 413, against strong tutional police is a shield 69 S.Ct. 170. The efforts to obtain a confession. yielded presumption man, already “broken” who has of connection between- coercion, easily is, however, two confessions so See is not revived. rebuttable. 401, my view, York, 428- link can be Malinski v. New 324 U.S. broken. a. warning (Rut- 5(b) 65 S.Ct. 89 L.Ed. terms does- dissenting ledge, J., part). presumption. not overcome the Even with- But it nothing does not follow out concrete of new coercive evidence will. hearing, preliminary tactics after the suggested influ- has been that the It involuntary presume would continue to illegal be cut ence an confession will subsequent an accused confession of committing magistrate advises off if the illegal one whom hearing any prior at his the accused already been extracted. against, will not be admissible statement 114, p. Evidence, McCormick, said I make too much of the him. § presumption 237; Note, that a 26 Texas L.Rev. confession obtained illegal breathing by Coupled detention reasonable was secured it, emphatic space in coercive tactics.7 But the conclusion that absorb might categorical ruling probably are effect two confessions to this connected entirely unfortunately, But, depend upon does not the as- be sufficient. well magis- law, sumption involuntary present state of the first was give position in no such un- and that the influence of initial coercion trate is For, applica- quote equivocal has continued. For under Justice assurance. again, decisions, every prompted no Jackson matter what ble confession obtain- confession, suspect prior necessarily first who has ed bag” Mitchell, once “let cat out of the See United v. knows tainted. States get LaGay, supra; “he can never v. the cat back in Cicenia bag.” Bayer, supra, United States 2 L.Ed.2d 1523. A warning, S.Ct. 1398. While version of the the watered-down Note,

7. 70 See Yale L.J. present I In prior them. the confession overrule the that to the effect being absolutely case, obviously inadmissible, there no evidence may of little be easy presumption the Indeed, rebut the second help. be to it would then consequence (cid:127)enough police, in- was the the second the on suspect first, terrogation, in mere affirmation of the fact a to convince binding interpret fact, first, is, no prior in there is occasion face, facts. On its the second confession on him. wrongdoing,” and “fruit of so must important Certainly, lapse of time is an be excluded. Bayer, su- factor. See United States v. suggesting long In court should pra. But even interval between adopt post-arraignment rule stricter two confessions will not show them suspect already was, suspect confessions when the be unconnected unless the illegal period enlarged, meantime, confessed deten- least left at ignore tion, regain strength. I do not United States v. alone to The inter- Bayer, supra. peculiar important Under the facts vention of counsel is a most case, notably span lawyer presum- safeguard, of that of six because can confessions, per- ably bring months the two counted home be on to continuing haps forcibly presumption of con- accused his of silence and impress upon nection would have been unrealistic. him the of con- value any event, But, question silence, despite early in tinued an admission. admissibility Yet, too, particular attribu- here must confessions facts through police wrongdoing probed, table to de- be to the extent consistent with Mallory 5(a), attorney-client in privilege. is, tention violation of Rule supersedes Bayer, instance, can- command essential to establish that its by expanding original attorney avoided knew about rule “Fleeting attempted an representation,” earlier case. As I have fession. not- Mallory enough show, requires put record, us to end ed the official is not espoused to the reaffirmation doctrine break the chain causation that normal- ly Goldsmith8 and the second Jackson connects two confessions. See Gold- States, case.9 Cf. Jackson States, supra, smith v. United U.S.App.D.C. 396, (the App.D.C. (dis- 273 F.2d 521 F.2d first at 346 case). senting opinion). also, Jackson See Jackson v. States, supra, United Moreover, Mallory even if does not (dissenting opin- 285 F.2d at 682 should, own, compel us, I think we on our ion). reject adopt doctrine the Goldsmith saying realistic It is clear This boil a more we have down to rule. Indeed, easy power. it is the function of there can be no rule such as to what evi- spontaneity formulate rules of this court “to evidence dence will overcome the District, long presumption appropriate for the so as that a later confession is the statutory one, do not offend fruit of an rules chosen earlier obtained under illegal event, limitations.” or constitutional Griffin conditions. 704, 714, place attempt proper United to fashion course, 93 L.Ed. 993. Of I rule. think sufficient to note S.Ct. such a shows, disagreement holdings my itself we cannot abuse with the now But, precisely because, which, power. “save and Jackson of Goldsmith I egregious deny indulg- exceptional them, propriety situations where read committed,” Supreme ing any presumption or, if error has been such fleeting “policy give recognition, is not interfere” discard it too Court’s relating to law quickly. “reaffirmation doctrine” “matters enforcement District,” is, think, unrealistic, Fisher v. cases those case, second a criticism Jackson 9. For 8. For a criticism Goldsmith Note, case, Note, 47 Va.L.Rev. Harv.L.Rev. 1222. see see 252 1325, 1318, pose 476, suffices to the ease of the murder 463, 66 S.Ct. 328 U.S. weapon our the result to be which is uncovered as 1382, it I conceive 90 L.Ed. rule, illegally of an just without confession. Does- duty even obtained to fashion States, anyone suggest expert- Kelly that the ballistic

prompting. v. United See may freely testify 125, 150. Cf. who has as- F.2d examined 194 it 90 U.S.App.D. findings States, ? the fact that Would Durham v. know, 862, 1430. does not or not that he 45 A.L.R.2d does reveal 228, 214 F.2d C. gun knows, came where the and bullet II. from I make a real difference? would discovery the not Though think so. it assumes po- directly body resulted victim’s It be that the causal connection obtaining wrongdoing in a confession lice original wrongdoing between ul- Rule 5 accused in violation from the timate evidence sometimes “become so- [s] passes (a), court nevertheless dissipate attenuated the taint.” admissibility question of the cor- of the States, 338,. Nardone v. United 341, 308 U.S. testimony. question in Since the oner’s Greg- 266, See, g., 60 S.Ct. 268. e. retrial, probability I recur all will ory States, U.S.App.D.C.. v. United face now. 305, 231 F.2d 258. But this is not such perfectly a case. Here the connection is suggested It is that the Silverthorne10 clear. Even under “attenuation” barring exclusionary rule, Nardone11 doctrine, I assume no one would contend only illegally all the but obtained evidence relating that the evidence to the victim’s- tree,” poisonous does not “fruit[s] body merely was admissible because it- confessions, apply in area coerced came from the coroner rather than from did, if coroner’s tes- and that even participated one of the officerswho in ob- relating timony fall does not taining illegal confession. In deter- (1) its ban because it did not in- within mining sought whether evidence to be (2) appellant; the coroner’s criminate governmental introduced is the fruit of testimony merely evidence that a wrongdoing simply we do not count the committed; (3) since crime had persons interposed. If that were the test way the witness himself appellant no connected easy it would anbe matter to circumvent crime, his neutral tes- with the exclusionary the Silverthorne-Nardone timony was not material on issue of by imparting illegally rule obtained in- guilt of the accused. formation to a series of “neutral” third! agree. I To me the cannot rule is as persons, the last one of whom could then- as it im- unlimited is clear. cannot testify. The extent of the connection prove on the formulation of Mr. Justice judged strength must be “Knowledge gained by Holmes: the Gov- chain, links in the not their number. wrong ernment’s own cannot be used III. it.” Silverthorne Lumber Co. v. United 182, States, S.Ct. will Some tax these views on the admis- nothing in Silverthorne or I find sibility 183. post-arraignment reiteration any subsequent case, Nardone, illegally confession, of an obtained distinguishes more and less rot- through it, other evidence uncovered wrongdoing. I do saying “fruits” ten stricture amount to holding go those cases as is to free not understand criminal because “[t]he which, People blundered.” itself, evidence constable v. De- tainted damning, fore, completely 242 N.Y. 150 N.E. should be treat- J.). Cardozo, phrase (per That Nor does untainted. such a makes a ed as dis- telling And, considering analysis. point. survive realistic its tinction Co. Nardone v. United 10. Silverthorne Lumber 84 L.Ed. 307. L.Ed.

253 analy- prosecution. Moreover, But, gives pause. successful source, on even it one excluding wrongdoing proves too if sis, aphorisms, the fruits of most like police, glib. ignoring slant does reform not “courts them- the artful Even accomplices newa selves not [should become] the indictment—reversal of - free, in willful disobedience of law.” McNabb the “criminal” trial does set States, illegal supra, 345, v. than United 318 more U.S. at detention is good an- 63 S.Ct. at “blunder”-—there are several charge. swers to the me, one, For in cases ex- like this clusionary immediately has a shown rule more has been Pragmatically, it compelling long- effective basis. Whatever the exclusionary are rules range See, wrongdoing. e. of effects our decisions in terms police deterrent 651-653, policy goals, 643, must, case, broad we Ohio, each U.S. Mapp 367 g., v. 1081; particular defendant, v. Elkins determine if the 1684, L.Ed.2d 6 81 S.Ct. 217-218, 206, crime, justly 80 whatever his has been States, treat- U.S. 364 United 1669; And, level, v. ed. Wolf 1437, this basic think 4 L.Ed.2d S.Ct. 41-46, 25, 69 have no S.Ct. choice here but to Colorado, exclude 338 U.S. J., obtained, (Murphy, dissent defendant’s trial evidence 1359, L.Ed. 1782 93 directly indirectly, through reference particular ing). And, violation dealing statutory rights. with of his constitutional United States courts officers, my view, simple it has it is as as A federal that. misdeeds can be fair trial means a trial based on rightly “no distinction evidence said prose fairly obtained. the Government taken judge,” Government cutor and BURGER, 438, Judge, Circuit States, with whom U.S. 277 v. United Olmstead Judge Chief WILBUR K. MILLER 575, L.Ed. 944 564, 72 470, 48 S.Ct. join (dissent- Circuit ing). BASTIAN dissenting), J., (Holmes, the instrument “be cannot court wrong,” preservation of the but, “the majority holding today is one of * * * temple [it purity significant its own reaching the most and far government and the protect itself many years. goes must] this court in far prostitution the criminal beyond from such purports the statute it to “inter- States, 287 U.S. pret” v. United beyond any law.” Sorrells prior and far opinion 210, 218, L.Ed. 456, 457, 77 435, 53 S.Ct. Supreme of this court or the Court. No J.). Roberts, opinion (separate remotely 413 holding. statute authorizes the States, 232 U. also, United v. suggests Weeks any right See No one even un- 652; 341, 383, 392, 58 34 L.Ed. S.Ct. S. Byars der the Constitution is involved. States, 273 U.S. “preview” story A of this crime 520; 248, Olmstead v. L.Ed. 47 S.Ct. Killough strangled beat and shows that States, supra, at 483- 277 U.S. United wife, body then carried after dark J., (Brandeis, dissent 48 S.Ct. city dump to the where he buried it. States, supra, ; ing) United McNabb v. days police later Five told 318 U.S. missing, his wife then left town judges Certainly, keeping appointment give should do what without lawlessness, prevent official for police can to more After another information. spectacle days of Government officers he returned and the breaking five then obviously “missing” con questioned law breeds him about law, or, throughout tempt day as Mr. Justice for the a full woman without succinctly, charging put day “Crime is At him. the end of Brandeis contagious.” following day Olmstead United v. and held. The was booked (dis guided signed supra, 48 S.Ct. 564 senting opinion). judiciary charged least the He At confession. then encourage illegal police prac a United taken before States Commis- should rewarding guilty 5(a). officers under Rule with a sioner tices ings, In Unit- facts. the statute and the plain violation shows a This Bayer, ed States v. under (1947), defend- L.Ed.2d 91 L.Ed. 1654 judge accordingly ant, confinement trial of (1957), while under restraint and pending military written exclude to his base because but to had no choice gave charges, a confes- second obtained. criminal confession so confirming agents, in- an sion to F.B.I. Killough, day However, next on the months made six admissible confession po- and not Jail at the District while met the claim that earlier. The Court giving custody lice and while of the “fruit” the second confession was n officerinstructions disposition as to the saying: first body, the essentials restated of his wife’s course, has after an accused “Of n ofthe crime judge allowed and the trial bag by of the once let the cat out as a vol- in evidence oral confessing, in- what the no matter untary had been made statement after ducement, free he is never thereafter rights (cid:127)duly his warned advised practical psychological and of the 5(a). under Rule having disadvantages of confessed. majority vol- that the now holds get in the He can never the cat back day untary made the after statements good. bag. In The secret is out hearing preliminary ex- are also to be sense, a al- later confession such ways may majority theory cluded. The upon looked fruit essentially it on the rests not clear but But this Court has never the first. made the second confession idea making gone so as to hold far hearing preliminary is the .after the under circumstances hence inde- “fruit” of the first preclude perpetually use, its pendent of it. making a disables confessor from Judge Youngdahl’s comprehensive conditions one after those usable (Emphasis have removed.” memorandum makes it clear that «careful added.) at 1398. laid Id. he was aware of the standards well n down this admissibility by court for distinguish majority The effort of following an earlier a second confession ground greater Bayer case In inadmissible confession. being voluntary addition lapse time two confessions by found it must be analysis. up under Kil- does not stand independent of the trier to be first and lough, the United States Commis- “after time for reflec deliberate warning mind, fresh in his hav- sioner’s tion.” Jackson v. United ing shown awareness of re- App.D.C. 273 F.2d referring peatedly to his “constitutional (1959) case, ap . also same See second volubly rights,” freely, nevertheless even peal, U.S.App.D.C. 233, 285 F.2d 675 shows, for the as the record second time Judge Youngdahl (1960) explicitly . story of told whole crime. found that the second confession was vol picture grasped cannot be The true untary, independent of the confes first precise a more statement of without adequate sion made “after time for majority opinion which the under- facts standably Judge ‘deliberate reflection’.” Danaher’s glosses stating over. n dissentsets forth the finding on this score pic- majority opinion presents a case the separate page in his dissent at 260. The is neither accurate ture which nor ade- majority Youngdahl’s operates to reverse quate. distorts inference that finding by holding sub silentio as a mat department developed Killough’s ter law that second confes using “practice” psychologi- heinous independent sion is not of the first. degree” persons on accused “third aft- cal preliminary sweep extent and of this realize er their face To against unchallenged explicit findings holding, must be viewed the Killough’s Youngdahl Supreme background Court hold- state- person, vol- ments on the second confession were either after hear- before or long untary independent first. es- is not Rule but the majority leaps its conclusion without tablished law statements that on coerced mentioning Judge Youngdahl’s careful controls. findings and the basis of does this on killing I recite the facts both three deci- since the instances and the treatment of the because sion, accused, he had which an psychologi- explanation afford an judicial warning, requisite received the freely cal reactions which tend to induce for a confessed his crime second “confessing” state of mind. These having time. Not the needed facts Killough dispute facts are not in did decides, majority case now reaches repudiate not take the stand to the state- outside the and sets record of this case ments he day following Jail the made at the District Naples case, e., forth facts in another i. hearing. preliminary v. United 18,1960, appellant reported On October why 307 F.2d I can understand police by telephone to that his had wife Naples’ facts of second are re- missing days agreed been for five to- they vastly lied on for are different police meet with to 19th assist Killough’s emphasize those case. investigation. an keep- When he failed to colloquy pages 241- set forth in appointment his or contact on majority opinion 242 of the is from 19th, they proceeded with an inves- Naples case of and has tigation. They neigh- learned from his bearing no on the instant case. Killough bors and friends that had ex- holding majority exhibits the same hibited little or no concern about the dis- they reticence about the statute1 “con- appearance or absence of his wife when strue” as do about the facts to which neighbors inquired, reported, and that he applied. the statute is I can understand disappearance police only her after the- why ignored; recog- it is one would not urging of her brother. nize as the statute construed in the majority opinion. missing Police located the The essence of the woman’s- congressional They command abandoned car. was found what described chem- analysis Mr. opinion: ical Justice Frankfurter showed was human blood on a that once floor mat in arrested the individu- more- Five trunk. days elapsed judicial Killough al is to be taken a without “before officer word from quickly dui’ing possible may the interval so that he interview- rights.” ed, among others, Killough’s friend, advised of his a. Holmes; po- S.Ct. at Miss 1359. But once 24th she called saying Killough Congress is held the lice directive of is satis- was at her home. Congress immediately dealing fied. Officers was not went there and after Killough hearing; events after a headquarters brief conversation its command took to- governs hearing. ques- events at 9:30 a. m. If a He was before previously confession is coerced tioned about the from a circumstances detained “(a) Appearance “(b) before the Statement Commission Commissioner. making er. An officer an arrest under The commissioner shall inform a the de any upon complaint complaint against him, warrant issued a fendant of the person making right to retain arrest without a war his counsel and of his preliminary person rant shall a take the arrested to have with examination. unnecessary delay out before also inform the near He shall he is not the defendant that required any est available commissioner or before make statement nearby empowered other officer and that statement him to com persons charged against against mit with offenses be used him. The commissioner the laws of the United When allow the defendant reasonable States. shall time person opportunity arrested to consult without warrant counsel and. brought pro commissioner or admit the defendant to bail as other shall complaint officer, shall be filed forth vided these rules.” Rule Fed.R. with. Crim.P. re disappear- Squad concerning Jail called at the District reported his wife’s quested appoint- permission who keep see ance and his failure 2 Daly’s writing him. police. evasive consented see His ment to assist the purpose gave help stated was to articles toward locat- return police no answers clothing Killough’s De p. m. Police “missing” At left at the 9:00 woman. partment get as to formally placed night under and to instructions he was body. disposition Killough’s Kil of Mrs. arrest and held. badly lough very told the officer he felt During Kil- day 24th October killing about his wife and gave lawyer. lough Police asked for a listening prisoners in the other directory telephone him classified discussing newspaper cell accounts block any lawyer he to call offered assistance glad they did not crime only one, knew but wanted he said deceased know he the husband he did answer whom not want. woman very their were because comments put as to questions to him some of the Daly complimentary. sowas While Killough said that his wife’s whereabouts engaged Killough, a in conversation with rights” and he knew “constitutional Killough attorney local and known to question that did not have answer to presumably jail business other him. “would incriminate” approached Killough asking was if there following day, and between 12:30 The anything help. Kil he to could do killing p. he wife m. his 1:00 admitted lough arrangements be said other were dump. burying body city and her at a Killough lawyer. made for a then spot and Cor- He officers led to killing Daly story recounted to returning head- oner On to was called. hiding body ap and preciated he and said Killough’s quarters re- statements were police excused the fact signed by writing him. He duced to and staying him his on the scene while United States Com- was then taken to the city body wife’s dump.3 Killough was uncovered at the hearing preliminary for un- missioner Daly he and told der Rule plaint a com- Fed.R.Crim.P. and quarreled his wife had he beat and that charging filed. The homicide was strangled and she her. When he realized United States Commissioner and was dead he covered her blank Killough separately his Clerk advised neigh reported ets and to their and child right right counsel, to his to remain si- night asleep. bors that she was aft That lent, and his to examine witnesses asleep put er the child was his wife’s admonished him that statements could body car, trunk of her and own against hearing be used him. After the then for the started home of his friend Killough was taken to the District Jail. Then, according Miss Holmes. to his Killough’s statement, Holmes, he concludedit be better friend Miss would dispose picked up, body, did, first to home which he whose was attended burying hearing, it under Kil- rubbish and debris at the Commissioner’s visited Mayfair Dump. lough morning jail at the the next He then went to get apartment. agreed lawyer Miss Holmes’ to him. That the course Killough Daly expressed morning, of the conversation same Lt. of the Homicide statutory privilege procedures or which leads to ex- 2. Uncler District Jail it was request privileged necessary Daly Killough’s clusion of revelations of com- to doctor, clergyman Killough signed permission munications to him. or to visit lawyer. privilege Judge Fahy Daly. consenting The refers to see He could a form to out of the arises relation- have refused. confidential ship parties. No such relation- of exists majority equate effort of the to Kil- 3. The police ship and accused lough’s with confessions made persons. original The communication clergymen to a doctor to or statements pastor, lawyer doctor made to or is made herring.’’ lawyer sup- is a “red The or subject condition confidence to a Killough’s pression statement of non-disclosure. comparable law sense to the common surprise Daly Daly some approximately to were to made hearing. preliminary found so much floor of the hours blood on the strangled car trunk since he had Judge Youngdahl ruled that the writ- her and had His ex- not used a knife. ten confession re-enact- and evidence of planation delayed report for his completed ment of the crime which were subsequent disappearance was Killough presented to the upset that he had become in no con- Commissioner, were admissible under dition questions.” to answer “a lot of 5(a), Fed.R.Crim.P., Daly Rule but why is not difficult to a man understand permitted testify to the conversation guilt burdened with the terrible sense of Killough which he had with at the hearing grue- prisoners other discuss day following hearing, Rule some details of his crime feel an being Youngdahl by Judge held urge thereby to talk and himself relieve voluntary have been a statement urge of some of the burden. The con- while was in detention. lawful wrongdoing fess deep is such a seated (D urge natural of man that it has been the subject by psychia- of much research admissibility the second trists; psychiatric least one work fession is not controlled subject has taken title as well any of the cases in the MeNabb-Mal- problem. Reik, matter from this lory series, every for that Rule and case Compulsion (1959). To Confess which has ever construed relates statements made deten- unlawful Daly vigorous response testified in prior preliminary tion and go cross-examination that he did not to judicial warnings.4 Every its case from purpose getting the for the of a con- Mallory prelimi- McNabb to the treats fession confirmation of the earlier or nary hearing point as the terminal under discussed written confession had not and 5(a). holding majority Rule The anyone. Daly possibility that tes- with entirely structs an new “statute” and Squad re- tified Homicide that the step contemplated takes a neither sponsibility disposing of for of the Congress remotely nor warranted the custody homicide victim the Mallory op- Mallory case. The doctrine Morgue duty find that it was to suppress erates to exclude or incriminat- kin out the next of wanted done what statements made “unneces- Killough body; the he testified that sary delay” taking before the arrested “overly talkative,” prompt- needed no committing magistrate. person ato The ing and would have continued the conver- Mallory entire rationale of is that the longer willing Daly if sation had been to statements are barred because made stay. Daly requested also to is unlawful —unlawful while detention The hearing.5 return later to visit. oral admissions prompt for failure to have a say, majority does, 4. To as the that the of elusion evidence considered “tainted” Supreme placed Court has not exclusion because of the means to used secure it McNabb-Mallory compel under of evidence the the means to official grounds compliance pro- on constitutional doctrine under- with such constitutional prohibition the The Court states case. the constitutional visions as affirmative- ly declared that exclusion was ordered of unreasonable searches. That ration- congressional require-’ persisted day. sug- enforce “to this But I ale person Suppression gest ment” take arrested to a Doctrine has magistrate unnecessary delay. objec- totally without failed to achieve its stated ju- at 77 S.Ct. 1356. No members of this court tive. Some share it, imple- decision has ever dicial intimated we see that view. As unless Suppression mented, of for exclusion evidence violation of Rule Doctrine is a 5(a) indignation, was based on the Constitution. of sterile manifestation essentially negative. punishes It is so- Suppression ciety transgressions 5. When the for Doctrine was as a whole of adopted urged badly poorly po- its advocates the ex- trained or motivated holding majority a second is holding, Today’s majority carries coming 20 hours soon doctrine poisonous tree” “fruit of the hearing 5(a) neces- effect, is after the lengths new means sity and not inde- “fruit” first or either statements made after before pendent not inde- In short it is of it. unless are to be excluded say judges pendent it can- four because defend- made with statements are independent judge thinks not be one prac- lawyer For all ant’s his elbow. presumptively independent, any all it is not majority ad- purposes bars tical Youngdahl’s ignoring Judge precise five ad- except accused where the missions application guilty standards plea. our Jackson prepared to enter vised and finding majority does fact enor- which the difficult overstate would be course, sometimes a sec- disturb. Of mity scope “inter- of this incredible might independent Mallory ond confession not be 5(a). pretation” of Rule lapse investiga- anof earlier one time large whether the extent foreclosed days, hearing; was six six weeks months. prior preliminary or six this tion truly interrogation But a holding second could be eliminates independent judicial under Jackson standards an warning had the accused he has after By lawyer. when first. made one hour until secures simply lapse Time delaying refusing one factor under counsel to retain Killough, interrogation. holding, the Jackson but defendant can frustrate all here, majority four of freely, make time the sole Indeed as he did if talks judge light test one re- reaches the same listen! must refuse to by way presumption sult holding which he ironic that finds unrebutted on this record.6 opinion Frankfurter Justice majority part does overrule characterized Rule as “[a] holdings7 by Congress procedure Goldsmith and Jackson but devised Killough’s distinguish safeguarding seeks to situation without individual posture intelligent from the hampering the defendants law effective and ground those cases on the that Goldsmith enforcement.” re-writing and Jackson had of counsel advice This at 1359. an Act Congress truly the second But his confession. in dissent of “weaves solidities out gossamer in Goldsmith of assumptions” the counsel which advice that large Judge Fahy now looms so only was the confessed second time because “fleeting representa- derided as him he confessed the first time. Stewart holdings 1, tion.” Our 20, in the Goldsmith States, v. United 941, (dissenting and Jackson fragile not (1961) cases did rest on so 6 L.Ed.2d 84 duality opinion). a distinction the as of case, U.S.App.D.C. 396, nothing get Jackson 106 273 liceman but does the (1959), granted problem. Something F.2d 521 reversed heart needed; more is of starting point a trial because new the second confes as a of some us— independent minority sion was held the moment —would direct every Court, first. But on retrial in District Gourt that District case suppressed found the confession second was inde where evidence is because of pendent appeal and on or we affirmed. an officer’s violation of a statute U.S.App. provision, copy Jackson of 109 stitutional transcript send (1960). suppress D.C. 285 F.2d 675 Thus th on evi- the motion e holding first Jackson and standards to the es dence Commissioners the Dis- light tablished must be read trict of Columbia other executive of- case, having U.S.App.D.C. responsibility second Jackson ficials for those of- (1960). 285 F.2d ficers whose are found to actions warrant suppression of vital evidence in a crim- States, 107 Goldsmith v. United case. inal App.D.C. denied, F.2d cert. Judge Daily’s 5 L.Ed.2d this effort to answer In confusing (1960); Jackson be a there seems to dissent (1960). opinions 285 F.2d 675 court on Jack of this two In the first confession. son’s second warning magistrate (3) and advice from both important and counsel but on the more attempt dissenting to answer the warning. Killough’s judicial factor of Judge opinions, Fahy says tardy that “a jail confession at the was made after satisfy does not the [Rule 5a] judicial warning while lawful de- Congress.” agree. directive of We How- tention. rest Goldsmith Jackson ever, position the effect of his would be squarely Bayer, on United States v. su- that once an inadmissible was ought pra, arid this court that follow obtained in violation of Rule that holding. clings subsequent taint to all statements. Judge Wright, however, join (2) does not view; position seems to be clear judges opinion evades the of four that second confession in these circum- admissibility of evi- issue critical presumptively stances is “fruit” of the relating body homi- dence independent. first and hence not But un- suggesting by blandly that victim cide separate opinion der his that a rebut- “may on retrial. We are not arise” issue presumption. table case can be told how a homicide Judge Fahy’s proof response some evidence that tried without to the dissent- ing opinions body found to establish also states that the first con- suggest jail fession four “led confession”; death occurred. jail judges an “the reverse have pre- who vote to confession resulted from a obligation inescapable vious 5(a)”; violation of absolute and that “the pass it inevita- on this issue since will pre- the result of the * * bly vious District new trial confessions arise is as though guidance repetition not be left without Court should and incantation are substitutes For such clarifi- on this critical issue. facts and reasons which light possible failure to District upon. cation as is relied No issue, directly repetition amount on should rule be can make sense or dissenting judges soundness “gossamer out of the four noted these as- sumptions.” body The majority opinion while would admit evidence relies generalizations sweeping judges any position; do not state four about our system being judge suppress one all evi- accusatorial rather than body inquisitorial system poison- though “fruit of dence that state- posture problems. ment settles In this clear some ous tree.” seems This famil- holding iar thought in this semantical there no ease evi- device sup- dissenting associate position should be of the victim’s dence pressed the horrors on retrial. of the inquisitions, ancient but we have made it clear that it relating not If indeed the evidence Suppression Doctrine, but its exten- body of homicide to be victim is ex- sion to this kind situation, of as Car- of cluded because the manner of its dis- might, dozo feared it to vigor- which we covery, we will have achieved the distinc- ously protest. fulfilling prophetic of tion Cardozo’s warning that, adopted, Supres- Judge Wright’s separate once opinion rests might day assumption sion Doctrine some be carried on an erroneous with refer- lengths. important fact; ridiculous rejects to these Cardozo did happen; to an ence he really “among believe this could he second because other * * * indulging judicial hy- reasons, a form of was perbole because it was obtained point. [Killough] to make is inconceiva- he had opportunity an * * go judges lengths to ble that such to obtain counsel The record ignoring Killough a reasonable balance between in- that when shows was arrested rights protection pub- already days dividual old, his crime People Defore, jurisdiction v. lic. See 242 N.Y. returned, had fled (1926). days N.E. 585 talked obtaining had for two statutes, engaged it should and to rewrite its counsel, he was while complain. be heard to very which constitutes conversation lawyer himto known guise legiti- second approached protecting Under the offered in his cell him rights majority mate individual Killough rejected. How services, which charged abandons the balance are denied possibly said that he can it maintaining with individual IAs “opportunity obtain counsel”? rights protection public. We Wright confuses the also see it mockery make a Frank- out of Justice McNabb-Mallory holdings line 5(a) furter’s Rule is a statement as confession cases the coerced cases with safeguard procedure to individual suggested to Fikes v. his reference hampering intelli- “without effective and 1 L. Alabama, gent law enforcement.” Cardozo’swarn- on state cases Ed.2d and related go ings Suppression Doc- unheeded as Mallory hold coerced confessions. judicial trine, merely pow- once a tool of any degree

ing invol does not rest er, itself, an end dominat- now becomes narrowly aas or coercion untariness but ing the the criminal administration of compliance judicial mechanism to enforce making law more law enforcement Congress. procedural command of with and more difficult. If it is be the law that the courts (4) voluntary confession, not use a what find difficult I to characterize nearly judicial 24 hours after the warn- To me court does in this ease. preliminary hearing, in a after time judicial power what write an abuse of reflection,” op- for “deliberate full after 5(a) effect, amendment is, portunity to secure counsel and re- Congress did not think some jecting because offers counsel then indeed this ar- enough. that the than go More far court will have converted shield way in a power is exercised rogated Congress Rule clearly into sword. What sense. Some common offends protection intended as a will have might remem- the court members advantage weapon special become a gov- branches of other are that there exclusively ber guilty. for the qualified equally least ernment Judge (dissent- DANAHER, laws, explicitly ordained Circuit frame ing). than that, concerned just less and no do liberty. task Our individual my we are separate- prefer position to state exercised, properly is a nar- judges, ly- faithfully interpret laws one: row about October On or Goldie them, think Congress not as we wrote had been tracked her hus- D. ought provided. Here Congress to have band, appellant, to a house where he completely a stat- majority rewrites engaged suspected in an illicit she generous already most strained ute man. He her with another heard affair interpretation. Cf. laughing upstairs bedroom, in an al- supra; Watson States though occupants of the house denied she 249 F.2d 106 outside, Her car was there. (1957). there, make trouble he rather than left depart judi- give quietly. developing her a chance to to be seems There Congress, husband, assumption home before her that reached an She circles cial great foreign lay and went bed. As and undressed she preoccupied with asleep, there, day, pretending to be her hus- either will our issues domestic talking her, get over to her. around to re- stood She or will band notice ignored opened pocketbook her versing He invasion of boldest him. even ample Congress per- he deemed power. what cor- if found legislative But roborating physical evidence of her “interpretation” mis- judges distort mits presented he Enraged, had been before the Com he her. throttled conduct. strug- woman, opinion, In an Killough, able small missioner. Goldie a (D. Killough Killough, F.Supp. gled while, States v. succeeded a but Judge Youngdahl body developed D.C.1961), strangling her He covered her. hearing evening, placed for us sheet, it the course and that conduct findings passed ed He him. of fact and He trunk of her car. then findings drew girl house, conclusions of law. Those seclud- drove to his friend’s supported by Washington, in are spot substantial evidence of ed Northeast disregarded Killough record un field, under and should not be concealed the clearly pile less shown to erroneous. debris. judge found, The trial Kil- that when Killough testify No witness could that lough brought had been before the Com- things. any did one knew these No deputy missioner, clerk —who now Killough, happened had what to Goldie the United States Commissioner —advis- Killough one and no could know unless Killough right ed that he to re- had should the facts. narrate making any frain statement; from colleagues Killough’s My say that ad- any statement he made could be utilized had missions of such facts after he re- against him; in a trial evidence judicial ceived from the Com- caution counsel; he was entitled to retain missioner utilized as evidence not be hearing preliminary he was entitled to a against him, despite later substantiation attorney which either or his could appellant’s and corroboration dis- cross-examine; and that he was entitled closures. to a continuance in order retain coun- Killough In McNabb United sel. received similar advice 332, 346, 87 L.Ed. 819 from the late United States Commission- (1943), Supreme pointed Splain. er Court out duty of the trial court to previous day, October for the entertain motion exclusion of properly questioned when headquar- unlawfully said to evidence have ters attempting while the were

obtained and to hold a to deter- mystery Killough’s solve the of Goldie mine whether such motion should be disappearance, Killough would neither granted judge or deny denied. The trial killing nor admit his wife. The explicitly judge this case followed that direc- trial found he had then asserted “a giving He excluded a confession made to refrain tive. state- Killough self-incriminatory ments on October of a nature.”1 did knew did not week. There Instead, that lough later, Holmes, called the her. he was officer vestigating. I960, results For “He not have to he knew some -where his to come with made an not admit it. We asked him if he in. Killough’s would not The officer answer at her house. he left officer record charge ten his Killough investigation appointment days police informed that wife’s shows: Constitutional town. About a answer asked if girl them deny question. following morning. body was, on October They friend, that. and told them that headquarters. over the he had killed asked rights, meet question, He been in But he and he week Miss past Kil said he wife’s himself, criminate He would answer when swer that Constitutional wouldn’t answer statement rogation. criminate that would Killough “The Court: “The “The “The Witness: All answer ^[*] questions you brought up whereabouts death Witness: Court: When did he make the he told us that he knew his him him? question.” did not any question ^[*] incriminate and he rights, he didn’t want In the afternoon? it at that Even from the start. certain questions, but testify. ^[*] wife, as to the did ground that he didn’t have harmed her if he not that if he him, time. ^[*] want our inter- possibility to answer might knew to an- ^[*] in- in- any judge following Killough’s appear- not- day time.” The further trial The Commissioner, a minister ed: ance before the jail. Kil- to the went an undertaker asked “The itself Court—which already Holmes, lough’s friend, had Miss Daly questions Lt. an- whose Killough. Kil- She left been lough to see there swers would have laid founda- securing intention of with the charge tion for deliberate [a

lawyer for him. police attempt the Rules] to subvert Killough left -—is 24th satisfied that the lieutenant tes- on October When brought truthfully stating residence, with tified he he Miss Holmes’ go jail did police on to the the 26th to A lieutenant on him a suitcase. up for the secure a the invalid reaffirmation of to clear October 26th desired clerk, disposition confessions and he had not property the matter of spoken Attorney’s a member the U. S. Of- As the suitcase. going.” duty fice squad, also them about it was his homicide arrange Killough to the release to have judge permitted The trial the state- Killough’s body, then undertaker Goldie Killough jail ments made at the morgue. The officer went at the jail accordingly, against 26th received evidence a form filled out which, him. Those are the statements Killough to an his noted consent which sources, estab- corroborated from various brought by Killough interview, and was Killough’s guilt. judge The lished trial There, jailers rotunda. the lawyer light evidence, reached of all of Killough hands shook known to following conclusions: by name, him, and said him with called Killough’s trouble heard about “First, specifically re- defendant lawyer badly add- The about it. felt any phys- claim that was nounces anything he could ed if there was during period ically maltreated glad Killough, to do he would be do for Thus, he did detention. ‘unlawful’ lawyer hands shook with it. significant period require a time presently lieutenant, went his re- after commitment to recover Killough told the about his business. if, indeed, powers, he had flective lawyer. use that not wish to he did officer following Second, lost them. ever hearing preliminary and his Killough signed receipt the meeting for the Daly, necessary signed Lt. defendant with property He clerk. permitted two conversations wife’s release his document Third, present. his Miss Holmes. with friend there the undertaker passed period be- the time which saw the United ever Before preliminary tween he knew what Commissioner States rights confession was over twen- the second additionally warn- are. ty Fourth, defendant’s con- hours. particularly, Thereafter, ed him. prior the lieutenant versation with clerk and the Commis- Commissioner’s making actually second complete him, in sioner advised compliance full that he had been confession indicated requirements reflecting crime. All on his these judge found. the trial support previous- Court’s factors background Against the trial ly expressed conclusion that that there was no judge found further period had a defendant resur- respect to exercised with compulsion feelings guilt gence prompt- Killough. None could statement anew, ed his desire to confess applied under the circumstanc- have been present support conclusion its adding, judge said, es, “Defend- trial adequate confession came such ” end the conversation at free to ant for ‘deliberate time reflection.’ F.Supp. Killough, at 921.

2. United States

263 Judge 5, pertinent, ruled cor- District here I think the short as rectly requires our law.3 with accused be advised of accordance rights. noted, judge, Supreme United States his But the trial Court Killough, throughout, to principle. our statement was well twice refused review has found rights. 26th, By an ac- applicable Once aware of his October caution,” “judicial “judicial moreover, cau- cused has received had received voluntarily freely not. If he tion”—and is free to talk or nevertheless unburden- Supreme crime, the ed admits his said, Court himself officer. Unless “serious citing many yielded cases, his confession execution of the criminal law has against “although him, ghostly phantom to a innocent be received man officers, falsely police convicted,”8 put while in it was made to custody, Hand it, and in answer to examination we should affirm. by them.”4 conducted Killough It should be noted that Goldie colleagues my majority my are, already days A dead five some failing view, Killough, the rule of 18, to follow law on October notified Although missing. Very which should control. she properly, po- here contrary, sought books are filled cases to the lice information, various items logical theory especially Killough their sion, carried to its conclu- since said his wife guil- preclude plea of argument. would even had left on the 13th after an ty by pleads because, Killough one who so took he had where during when, previously parked removing he knows he had wife’s car after period body. of unlawful detention “let the wife’s The officer—but without bag.” anomaly my telling Killough cat out of the then noticed stains —had colleagues striking upon analysis is the more create the car later turn- po- that no appoint- decided their ed case cited for out to be human blood. An Killough sition.5 ment was made for headquarters to come to 19th to discuss the yield proper I to no one in a concern missing persons report. keep He did not for the of the accused. Even be- appointment. No more was heard Mallory, fore I wrote the court in the morning from him until the of the 24th case,6 first Watson where we barred a telephoned when Miss Holmes that he was period confession extracted at her home. unlawful Mallory, detention. After Commencing opinion giving wrote the second Watson day, about 9:30 that Lieu- Daly questioned effect to the rule tenant since the ac- him for about arraigned 2y2 “ju- cused had not been hours. until While was out of 7 town, purpose.” dicial caution had lost its officer had checked out certain States, States, 3. U.S.App. U.S.App. Goldsmith v. 6. United Watson v. United 107 98 305, 335, 221, 226, (1956). 42, D.C. 277 F.2d D.C. 234 cert. denied F.2d 47 States, sub v. nom. Carter United 364 States, U.S.App. v. United 101 Watson 7. 863, 106, U.S. 81 5 L.Ed.2d 86 350, 353, 106, (1957); D.C. F.2d 249 109 (1960); States, Jackson v. United 109 see first Jackson v. United U.S.App.D.C. 233, (1960), 285 F.2d 675 States, U.S.App.D.C. 396, 106 273 F.2d denied, 941, 1666, cert. 366 U.S. 81 S.Ct. again (1959), recognized 521 where (1961). 6 852 L.Ed.2d “judicial importance caution,” Tiang Sung States, compared Wan v. United be States, with Jackson 266 1, 14, 1, (1924); supra Naples U.S. 45 S.Ct. note 3. Cf. v. Carignan, States, U.S.App.D.C. 281, see United States v. United 97, (1951); (1962). 72 S.Ct. 96 L.Ed. 48 F.2d 618 332, v. McNabb United 318 8. Di Carlo 6 F.2d (1943). 63 S.Ct. 87 L.Ed. 819 (2 Cir.), denied, cert. States, supra 5. See (1925). Jackson v. United note L.Ed. 285 F.2d at 264 by Killough, ex- supplied which is the earlier information fession fruit investigation pert speedy car- incorrect, and told him so. had Killough and found it regard day ried to the the out with due told about was that rights suspect.”10 (Empha- the the mat

blood stains found mine.) night over sis think car. He had that the situation.9 Killough whole persuaded I told am that when willingly, done, what he did he had so Killough said had All evidence of what knowledge rights, full of his even with appearance the Com- prior before to his presentment Commis- at the 25th October 3:43 P.M. on by missioner at any event, Thereafter, sioner’s office. although judge, it is the was excluded fully pro- the of the accused were jurisdictions, if much clear that in some I tected. since the am convinced that would have not all such evidence fully met, purpose of the a fair Rule was example, For circuits other received. impartial and administration of crim- limiting gone not as far have justice requires inal the that we affirm prehearing follow- even admissions which conviction. developments in course of reason- ed investigation. that Lieutenant It will be remembered The Circuit able Second day gone jail Daly prece- after reading had applying the after Killough’s appearance case, before the Com- including con- dents, our Goldsmith sign agreed Killough then missioner. : cluded body. Thereupon, of his wife’s a release continu- when a believe that “We Killough testified, he saw an undertaker investigation ing process of essential sign the re- and asked him to at the being expeditiously, carried out might take the remains to that he lease suspect is advised of when the sign home burial. “Did he funeral rights, and when there constitutional Yes, A. release that time? pro- no reason believe Killough body, when the asked did.” being are used followed cedures merely morgue could be at the viewed. It then delay dur- an excuse open stipulated in court ex- can be which morgue turned which the over ‘arrest,’ tracted, detention is not had to the undertaker for coroner viewed ‘unnecessary,’ any event is Killough signed the release. whom ob- uncoerced confession so and an ran Hogan Thus case. The Government’s See & admissible. tained completely properly judge McNabb-Mallory instructed Snee, Rule: jury as to essential elements of Rescue, Rise, 47 Rationale Its homicide, with lesser included Georgetown 1, (1958). 20 Our L.J. manslaughter. jury holding found offense justification for so is the guilty Killough manslaughter. overwhelming public interest and I am affirm that conviction. plain would persuaded unvarnished fact society society power efforts of such without protect helpless itself should be rendered futile find solve itself often fully accused, protect after this rights, advised of his its members. crimes voluntarily policy admitted he in in the law or in is no There gruesome perpetrated compels secret, had us sense common government deprive crime. Vita, following day, 524, By 10. United States v. F.2d 11 A.M. the (2 1961), denied, deputy Cir. cert. minute conversation (1962); killing, chief, L.Ed.2d 788 82 S.Ct. had confessed U.S.App. guided shortly cf. Tillotson v. the of- thereafter 405, 231 F.2d cert. he had concealed D.C. where ficers denied, suggestion body. mis- no There (1956). L.Ed. time. treatment protect hamper law en- that Chief criminals I to state am authorized forcement, against Judges repeat- Judge which I have Bastían and Circuit Miller foregoing. edly protested. Burger concur in system law, Under our of criminal legal rights pro- of a defendant must be Judge (dissenting). BASTIAN, Circuit prejudice tected even if the result is dissenting opinions agree I public. justice require But does not that, my opin- wish to add rights exaggerated those so as grievous ion, today has struck the court protect against the defendant the con- of criminal administration blow at the sequences of his criminal act in a factual justice. pro- situation where ishe not entitled to my judgment opinion, jus- tection. That would be more than viction be affirmed. should defendant, unjustifiable tice to the prejudice public. In our concern MILLER, K. Chief WILBUR criminals, forget we should not (dissenting). people nice have some too. dissenting Judges opinions of shocking upon to me that such fully Burger, Danaher with which I grounds tortured the court reverses the clearly agree, demonstrate the unsound- conviction of this man who has confessed reasoning majority’s ness of to a bizarre and brutal murder. Of unnecessary opinion, so that me again; course he can be tried but ex- But, to discuss the case like in detail. confession, freely clusion of his and vol- Judge Bastían, express my deep I untarily given want to had been told of majority’s disposition concern over the rights, evidently quite which he knew example this case. It is another already, unnecessarily well will make it tendency what think this court’s un- difficult to obtain a conviction at a sec- emphasize duly to technicalities which trial. ond

Case Details

Case Name: James W. Killough v. United States

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

Date Published: Oct 4, 1962

Citation: 315 F.2d 241

Docket Number: 16398

Court Abbreviation: D.C. Cir.