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CONFESSIONS AND POLICE DETENTION

TUESDAY, MARCH 11, 1958

UNITED STATES SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to recess, at 10:30 a. m., in room 457, Senate Office Building, Senator William Langer presiding. Present: Senator Langer.

Also present: Charles H. Slayman, Jr., chief counsel and staff director; J. Delmas Escoe and Walter H. Maloney, Jr., assistant counsel. Senator LANGER. The committee will come to order.

Mr. Gasch is our first witness. Will you come forward, Mr. Gasch? Do you have a prepared statement, sir?

Mr. GASCH. Yes, sir. I gave it to Mr. Maloney.

Senator LANGER. You may read it or you may summarize it. Go right ahead, sir.

Mr. SLAYMAN. Excuse me, Mr. Gasch.

Mr. Chairman, I want the record to show that Senator Hennings, who is the chairman of the subcommittee, was unable to be here this morning because he developed a bad cold last night. However, we are very happy to have you serving as chairman today, Senator Langer. I would also like to have the record to point out that you have been one of the members of the Constitutional Rights Subcommittee since its formation and carrying forward of a previous subcommittee 3 years ago.

Senator LANGER. It will be good to have a Republican preside for 1 day.

Go ahead, Mr. Gasch.

STATEMENT OF OLIVER GASCH, UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA

Mr. GASCH. Mr. Chairman, if you have no objection, I would simply prefer to give you the gist of my prepared statement because I think it is very dull and deadly to attempt to read what one has written.

At the outset I would like to say that my experience with this rule, the Mallory rule, has been confined to cases in the District of Columbia and I speak as the United States attorney for the District of Columbia. I do not have knowledge of the situation that existed in other Federal jurisdictions. I believe a report is being prepared on that subject by the Department of Justice for submission to the subcommittee.

It was suggested by Mr. Slayman that I bring with me two copies of our experience with the cases both at the district-court level and

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at the appellate-court level for the information of the subcommittee, and I will leave those with Mr. Slayman.

It seems to me, sir, that most important single sentence in the Mallory opinion is the one that is contained at the bottom of page 4, in which the Supreme Court said:

The requirement of rule 5 (a) is a part of the procedure devised by Congress for safeguarding individual rights without hampering effective and intelligent law enforcement.

Now I feel that the interests of justice require us to maintain in balance those two propositions. I don't regard it as being anything inconsistent in those two propositions, but I feel that we must give effect to both those propositions.

Now the interpretation of the Supreme Court on rule 5 (a) has required the exclusion from evidence of a confession

Senator LANGER. Pardon me one moment, please. Would someone call Lyndon Johnson and get permission to sit ?

Mr. SLAYMAN. We have done that, Mr. Chairman.

Senator LANGER. Pardon the interruption.

Go right ahead.

Mr. GASCH. The decision in the Mallory case requires the exclusion from evidence of a confession made in violation of rule 5 (a). Rule 5 (a) states that a person arrested must be arraigned without unnecessary delay.

Now on the question of safeguarding individual rights, I have suggested to the police as recently at last week, when I met with a group of 200 detectives and certain supervisory officials in the Police Department, that a person arrested prior to any interrogation as to the facts and circumstances of the case should be warned that he is not required to make a statement and any statement he makes might be used against him. I understand that is the practice in England; it is the practice in the FBI; it is the practice in the military system, and it is also the practice in some of our States. I believe that basic fairness, the rules of fair play, would indicate that type of warning, and I have advocated that, although the Supreme Court, in the Mallory decision, did not specifically say that that was required, and I believe that from this time henceforth such a suggestion on my part will be adopted by the police.

Now, when we speak of the rights of the individual, I think it is well to recognize in both the Mallory case and in the earlier McNabb case, neither case was decided on a constitutional point, but at least in 2 specific places and probably in 4 places, the Supreme Court, in the Mallory decision, pointed out that the Court was dealing with the interpretation of a Federal procedural rule, rather than with a constitutional issue. However, I think it is well to recognize, and I do recognize, that in this jurisdiction that provision of the fifth amendment which requires or which says in a criminal case that no person shall be compelled to be a witness against himself shall be taken into consideration in whatever legislation comes out of a study of these questions by the Congress. I feel that that provision would be complied with if there were a timely warning prior to interrogation by the police.

There has been some question as to when a constitutional issue has been injected into such a situation. In the Malinski case (Malinski

v. People of the State of New York, 324 U. S. 401 (1945)), which came down from New York and was reversed by the Supreme Court, the Supreme Court felt that the requirements of due process had been violated, and therefore there was a constitutional issue in that case. I would respectfully submit, however, that the character of the detention in a hotel, where the man was stripped to his underwear and interrogated 3 or 4 days-not in a police station or police headquarters, or anywhere where his whereabouts might be known, but in a private hotel that those were circumstances that the Court took into consideration in determining that due process had been violated and respectfully I would like to suggest to the committee that in our local cases I am happy to say that we have had no such factual situations to be confronted with. Here the delays have been for a much less protracted period and there has been no evidence whatsoever of any coercion, psychological or physical. I think that is to the great credit of Chief Murray and his police force.

Passing on, then, to that portion of my presentation which I think probably will be of most assistance to the committee; namely, whether or not this rule does hamper effective and intelligent law enforcement, because that concept, of course, was emphasized by Mr. Justice Frankfurter in his opinion. It seems to me that that is the balance that we must always bear in mind.

In discussing this issue, I would like to point out that we have had experience with the impact of this rule at three levels of our office: First, the intake level; that is to say, when the cases are originally presented to us by the police or complaining citizens. It is at that point that we decide whether or not the case should be submitted to the grand jury. We have adopted a rule in our office that we will take and present to the grand jury only those cases which in our judgment present a reasonable prospect of obtaining a conviction. We are not satisfied purely with cases in which there may be a prima facie case. We try to protect the accused citizen at least to that extent.

Now, the impact of this doctrine has required me to tell my assistants at the grand-jury level to reject those cases in which we feel that the only evidence would be a confession secured in violation of the teachings of the Mallory doctrine. There have been some instances in which we have had to throw out cases in which a fellow admitted that he had done that which he was accused of doing, but we had no substantial additional evidence, and I felt that there was no point in our sending such a case into the grand jury, and I have instructed my assistants in that division of the office not to take such cases to the grand jury.

Now, at the trial level, the interpretations placed on the Mallory doctrine by our several trial judges of the United States district court in this jurisdiction have varied, and, without mentioning names, I think I can indicate generally what the various interpretations have been. Some of our judges have taken a more flexible interpretation of the impact of the Mallory doctrine than others. They have felt that they are not bound by what they consider the dicta of the case, and they have, accordingly, placed a more liberal interpretation on it and have let some confessions go to the jury that would have been excluded by the more strict interpretation of certain of the judges.

Now, I think, sir, you might get an impression of the problem, insofar as its actual details are concerned, if I point out a few of the cases.

For instance, there was the case of United States against Turner. I have given the full description of the case in the note that I will give Mr. Slayman. This matter occurred on the 15th of November 1957. A gentleman by the name of Mr. Kolten, a man about 70 years of age, was yoked and robbed in the 1700 block of New Hampshire Avenue. He was attacked from behind, thrown down. He required hospital attention at the Emergency Hospital for 3 days. He could not identify his assailant, other than to say that he was a dark-skinned Negro, weighing about 170 pounds.

Two days later a Mr. Van Eckhardt, in the same neighborhood, was on his way to buy a newspaper one Sunday morning. He was attacked head on by a man fitting the same general description, but Mr. Van Eckhardt realized that the man had on a gray sweat shirt and khaki pants. He reported the matter to the police, and in about 22 hours they had located Turner.

Now Turner at first denied that he was the man, but within 50 minutes of his arrest he confessed both robberies. He was taken to police headquarters, made a part of a lineup, and the two victims were brought in to see if they could identify anybody in the lineup. Neither of them could. The police then turned to the men in the lineup and they said, "Do any of you fellows recognize either of these two gentlemen?" pointing to Mr. Kolten and Mr. Van Eckhardt. Turner, at that time, said, "Yes; those are the two men I robbed."

Now the trial judge excluded both that evidence and the evidence of the oral confession made 50 minutes after the arrest. Turner went out free in spite of the fact that there was positive, or at least a positive admission by him under those circumstances.

There are two other cases roughly comparable. I won't go into the specific facts. They are set forth in the breakdown on our cases that I am giving Mr. Slayman. One is the case involving Ogelsby and Brannan and the other Hansford and Martin. In each case there were two defendants and in each case the inculpatory statements were made within 30 minutes of the arrest. However, in both those cases the statements were thrown out and in all of these cases the Government failed to sustain its burden of proof and the cases were dismissed.

Now, fortunately, most of our cases, Senator, are cases in which we do not have to rely solely upon a confession. Most of them are cases in which we have other evidence and we are able to go ahead and meet our burden with that other evidence. However, in cases involving violence, yoke robberies, murders, rape, and so forth, it may be expected that there are no witnesses. In few of such cases are there witnesses. Sometimes they have witnesses. But it is in the serious category of cases that we notice or we are most likely to notice the effect of the Mallory doctrine.

At the appellate level, in approximately 20 cases which have been under consideration since the doctrine was enunciated by the Supreme Court on the 24th of June 1957, in approximately 20 cases has the doctrine been raised. In 5 or 6 of those cases the conviction was sustained on the theory that the teaching of the Mallory case did not require reversal or that the doctrine was not appropriately raised at the trial level.

In three important murder cases, the cases were reversed because of the impact of the Mallory doctrine. Those cases are Watson v. United States ((C. C. A., D. C.) 249 F. 2d 106 (1957)), Carter v.

United States ((C. C. A., D. C.) No. 13222 (1957)), and Starr v. United States ((C. C. A., D. C.) No. 13865 (1958)). Now, fortunately for the protection of the public, Watson was previously convicted in another offense and is serving a substantial sentence as a result of which he will not be at liberty, I take it, for many years to come. Carter, on the other hand, who has never made any bones about a rather brutal killing of a 14-year-old schoolgirl, which he admits perpetrating when breaking into her house to steal money, he cannot be retried. The evidence that we have is largely based upon inculpatory statements and articles of clothing that we recovered as a result of statements he made. However, we are presently attempting to follow the advice of the appellate court and to have the district court consider a civil commitment of this man as an incompetent person. However, I must take into consideration, and in fairness admit, that when this case was tried four psychiatrists testified that he was of sound mind at the time he perpetrated the offense. One of these psychiatrists was a defense psychiatrist. Of course, it is possible that his mental condition may have degenerated in the time between the commission of this crime and the present time. In any event, we are now seeking to bring about a civil commitment of this man on the ground that he is dangerous to others and that he is of unsound mind.

Now the Starr case, which is the most recent reversal in a murder case, involved not a confession or an inculpatory statement, but an exculpatory statement in which Starr said, "No, I did not stab my wife; someone else must have done it." That case illustrates the widespread impact of this doctrine. We have sought a rehearing en banc, feeling that there is a possibility that the entire nine-man court might not feel as strongly about the impact of the doctrine as the majority of this panel did.

In that particular case, the exclusion or the reversal was ordered because the Court felt that this statement did cast some light upon the sanity of the defendant and since he pleaded insanity, the Court felt that the Mallory doctrine would require the exclusion of the particular statement.

Now I think it is well and I would like, with your permission, simply to read a sentence from that Starr opinion because it shows you how far the Court may go:

In contending that receiving the statement in evidence was not prejudicial error, the Government argues (a) that the statement was exculpatory; (b) that it was consistent with appellant's testimony at the trial; and (c) that, apart from the statement, there was overwhelming proof that appellant committed the homicide. These arguments, while true, do not persuade us that the error of receiving the statement was not prejudicial. ***

Now I think again those three cases demonstrate the serious impact of the Mallory doctrine in that persons convicted of serious crimes are likely to go free unless there is consideration of remedial legislation. Senator LANGER. Was the opinion in the Starr case unanimous? Mr. GASCH. I beg your pardon?

Senator LANGER. Was there dissenting opinion in the Starr case?
Mr. GASCH. Yes, there was.

Senator LANGER. Whose?

Mr. GASCH. Judge Wilbur Miller dissented without opinion. That matter is still under advisement, sir. The Court hasn't yet ruled on our petition for rehearing en banc.

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