315 F.2d 241 (D.C. Cir. 1962), 16398, Killough v. United States

Docket Nº:16398.
Citation:315 F.2d 241
Party Name:James W. KILLOUGH, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 04, 1962
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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315 F.2d 241 (D.C. Cir. 1962)

James W. KILLOUGH, Appellant,


UNITED STATES of America, Appellee.

No. 16398.

United States Court of Appeals, District of Columbia Circuit.

October 4, 1962

Argued June 11, 1962.

Mr. William B. Bryant, Washington, D.C. (appointed by the District Court), with whom Messrs. William C. Gardner and Joseph C. Waddy, Washington, D.C., were on the brief, for appellant.

Mr. David C. Acheson, U.S. Atty., with whom Messrs. Charles T. Duncan, Principal Asst. U.S. Atty., Arthur J. McLaughlin, Asst. U.S. Atty., and Nathan J. Paulson, Asst. U.S. Atty., at the time of argument, were on the brief, for appellee. Mr. Daniel J. McTague, Asst. U.S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER and WRIGHT, Circuit Judges, sitting en banc.

FAHY, Circuit Judge, with whom Circuit Judges EDGERTON, BAZELON and WASHINGTON join.

Appellant, indicted for first degree murder in strangling his wife to death, was convicted of manslaughter. The case is another in which a conviction of a serious crime has been brought about with the aid of a confession orally given soon after-- in this case the next day-- a written confession had been obtained in circumstances which rendered it inadmissible. Other oral confessions had preceded the written one and like it were inadmissible.

Three cases involving this problem have been decided fairly recently by this court. Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335, cert. denied, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86; Jackson v. United States, 109 U.S.App.D.C.

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233, 285 F.2d 675, cert. denied, 366 U.S. 941, 81 S.Ct. 1666, 6 L.Ed.2d 852, with Mr. Chief Justice Warren and Mr. Justice Douglas noting that they would grant certiorari, and Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618. In Goldsmith and Jackson, by a divided vote, divisions of this court held that the second, reaffirming confessions, were admissible. The dissent in each case was based on the ground, not here repeated in extenso, that the second confession stemmed so directly from the illegally procured and inadmissible first confession that it was also inadmissible. So to hold was deemed essential to preserve the integrity of the Mallory-Upshaw-McNabb rule protective of the right of an arrestee to be taken before a magistrate as required by Rule 5(a) of the Fed.R.Crim.P., 18 U.S.C.A., which, though in form a Rule, has the full effect of statutory law.

In Naples this court sitting en banc found it unnecessary to pass upon the admissibility of the later confession; yet the record frankly revealed that it was obtained for the purpose of circumventing the Mallory rule, as appears from a colloquy between court and prosecution counsel in the case:

'(The court:) Now, I presume that the reason an attempt was made to get another statement from the defendant is as an insurance against the rule of the Mallory case.

'(The Assistant United States Attorney:) yes, Your Honor, there is no question of that.

'(The Court:) This was before the Goldsmith case was decided * * * which held that the Mallory rule did not apply to post-arraignment statements.

'(Mr. Murray, Defense Counsel)

Q. Mr. (Officer), I think the Court has assumed, and Mr. (Prosecutor) has assured us that your only reason for going to the jail to talk to this defendant was to satisfy what might be the additional requirements in the application of the Mallory rule, is that correct?

'A. That is correct.'

The excellent opinion of Judge Youngdahl in the present case, filed when he denied appellant's motion for a judgment of acquittal notwithstanding the verdict or for a new trial, demonstrates the soundness of his exclusion during the trial of the earlier oral and written confessions obtained in stark violation of the rights of the accused. 1See United States v. Killough, 193 F.Supp. 905 (D.D.C.1961). The accused was retained in custody by the police some 34 hours after arrest, during which time the process of obtaining a confession was pursued.

We are aware that the Supreme Court has not placed the Mallory exclusionary rule on the Constitution, as it has the exclusion of evidence obtained by an unreasonable search and seizure. As to the latter see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. But it is nevertheless true that the rules of evidence pertaining to confessions in a federal trial have been formulated on the background of both the Fifth Amendment, particularly its provision that no person shall be compelled in any criminal case to be a witness against himself, and the well recognized right of an accused when arrested to be promptly taken before a magistrate who shall inquire into the sufficiency of the basis for his arrest, advise him of his rights, and determine whether he shall be admitted to bail and on what conditions.

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McNabb v. United States, 318 U.S. 332, 342, 63 S.Ct. 608, 87 L.Ed. 819.

In the present case, after the police had violated the law embodied in Rule 5(a) for a sufficient length of time to enable confessions to be obtained, appellant, who had sought to avoid confessing and on at least two occasions requested a lawyer, was taken before a magistrate. The magistrate advised him that he was entitled to obtain counsel and that he was not required to make a statement-- this latter caution being especially ironic considering what had already occurred. Appellant not having obtained counsel, and desiring to do so, the magistrate with the consent of both sides adjourned the preliminary hearing from October 25 to November 15. In the meantime appellant was committed to the District of Columbia Jail. There, on the next day, and before appellant had obtained counsel, the officer who had participated principally in obtaining the inadmissible confessions the day before, obtained an oral confession which the trial court admitted in evidence upon the basis of our Goldsmith and Jackson decisions. 2 It is apparent, however, from the opinion of Judge Youngdahl to which we have referred, that in admitting this 'reaffirming' confession he felt bound by the decisions of this court. This is entirely understandable. This court, however, sitting now for the first time en banc to consider the problem, draws a distinction which Judge Youngdahl might well have felt he was not required to do. The distinction we draw between the present case and both Goldsmith and Jackson is due to the fact that our brethren who constituted the majority of the divisions of the court which decided those cases relied to a substantial degree upon the fact that in each case the accused actually had the advice of counsel before the reaffirming confession was made.

Thus, in Goldsmith the opinion states,

'The appellants not only re-affirmed their formal written statements while they were lawfully detained, but did so in utterances which were plainly spontaneous and at a time when both the judicial warning and the advice of counsel as to their right to remain silent were not more than an hour old.' 107 U.S.App.D.C. at 311, 277 F.2d at 341.

In Jackson the opinion states,

'Not only did appellant on Monday (before the oral confession) have the advice of able counsel, but Judge Smith at the second (preliminary) hearing observed, and appellant's attorney agreed, that on Sunday Judge Fickling (at the first preliminary hearing) had advised appellant of his rights.'


'He had had the advantage of consultation with his own attorney who advised him of his right to remain silent.' 109 U.S.App.D.C. at 235, 237-238, 285 F.2d at 677, 679-680.

In the present case, as we have said, completion of the preliminary hearing had been postponed to enable the accused to obtain counsel, but he had not done so

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at the time the oral confession was made at the jail the following day. 3

Another circumstance distinguishes this case from Goldsmith. In holding the oral re-affirmation of the pre-arraignment confessions admissible the majority there relied upon, and outlined at some length, a colloquy between the defendants and one of the persons robbed and another person. See 107 U.S.App.D.C. at 311, 277 F.2d at 341. 4

Accordingly, neither Goldsmith nor Jackson requires admission of the jail confession in this case. Were the situation otherwise, a majority of the court, which now for the first time considers the problem en banc, would be ready to reconsider those cases.

The oral confession obtained in this case at the jail so soon after the illegally procured and inadmissible confessions must be held inadmissible as the fruit of the latter. 5 To admit it would in substance and effect admit the earlier confessions properly held inadmissible, and thus defeat the exclusionary rule. To hold otherwise would be in reality to permit an accused to be tried without counsel, jury or court, alone with police at their headquarters or at jail. The public trial guaranteed by the Constitution, with counsel, jury and court, after indictment, would be hardly more than a form for validation of what had already been accomplished invalidly.

We do not, however, set appellant free. We reverse and remand for a new trial because of the erroneous admission in evidence of the oral confession given at the jail. Although the question before us for decision on this appeal is not whether appellant is guilty of the crime of which he was convicted, were we to assume the truth of the confessions we would nevertheless be required to grant a new trial, for we necessarily concern ourselves with means, not alone with ends. Under the law-- including of...

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