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April 20, 1961

UNITED STATES of America, Plaintiff,
James W. KILLOUGH, Defendant

The opinion of the court was delivered by: YOUNGDAHL

Following a trial by jury which resulted in his conviction of manslaughter, *fn1" defendant here moves for judgment of acquittal notwithstanding the verdict or for a new trial. Principally at issue is whether the Court correctly admitted into evidence a confession without which the jury's verdict cannot be sustained.

 For purposes of this motion, the preliminary facts may be stated as follows: On October 18, 1960, in response to a report to the police that defendant Killough's wife had been missing for five days, Lieutenant Daly of the Homicide Squad went to defendant's home and conversed with him for about an hour. At the conclusion of this interview, the Lieutenant asked defendant to come to police headquarters the following day to discuss the matter further. Defendant agreed to the request, but did not keep the appointment or otherwise contact the police the next day or the four following days.

 Early on the morning of October 24, Lieutenant Daly was telephoned by a friend of the defendant, a Miss Holmes, who informed him that defendant was at her residence. The Lieutenant and Detective Bell went there immediately, arriving about 9:00 a.m. On arrival they spoke briefly with defendant, arrested him, and asked him to accompany them to police headquarters to discuss the reported 'disappearance.' No statement of a specific crime with which he was charged was made to defendant when he was thus arrested.

 The group arrived at headquarters about 9:30 a.m. and went to the office of the homicide squad on the third floor, where Lieutenant Daly and Detectives Bell and Preston questioned defendant, apparently uninterruptedly, until about noon -- the interrogation centering on defendant's whereabouts on the day his wife disappeared. About noon, lunch was brought into the homicide office and the group ate and conversed generally for about an hour.

 After lunch questioning resumed, becoming more accusatory in nature. Defendant was informed that some of his morning answers had been found false by police investigation and that blood had been found in the trunk of his wife's car, and questioning began in earnest on whether he had killed his wife and on where he had disposed of her body. According to Lt. Daly and Detective Preston, defendant would neither deny nor admit killing his wife, asserting a right to refrain from giving statements of a self-incriminatory nature. His only formal statement during this period was an exculpatory one -- given in both written and oral form. He also (at least twice, by police testimony) made general requests for an attorney. On each occasion the interrogators offered to call any lawyer he named, asking him first if he wanted any particular lawyer, to which he replied in the negative, and then offering him a telephone directory to look for one, which he refused -- contending that he could not make a rational choice under these circumstances. The questioning continued until 10:00 p.m., when defendant asked for its cessation because he was tired. He was then placed in the police headquarters cell block -- charged with 'investigation.'

 About 9:00 a.m. the next day, October 25, defendant was again brought to the homicide office -- without breakfast -- and questioned for about an hour. *fn2" Still refusing to make any statement about possible involvement in his wife's disappearance, he was then taken to the office of Deputy Chief of Police Scott. There -- during a session lasting about an hour -- he confessed that in mid-afternoon of October 13, in a fit of rage at his wife's failure to answer his accusations of marital infidelity, he had choked her to death, and that during that evening he had carried her body to the trunk of her car and driven around with it for several hours before finally burying it in a wooded spot near the Anacostia River. Defendant agreed to lead the police to this location. Following these statements, the charge against defendant was formally changed to homicide.

 Then, between 1:45 a.m. and 12:30 p.m. on the 25th, defendant was taken to the spot where he had placed his wife's body. Upon return to police headquarters, a written statement was taken from him, completion of which came at approximately 2:00 p.m.

 For reasons detailed below, *fn3" the Court -- prior to trial and after a full hearing -- suppressed these detention-produced confessions, *fn4" as well as defendant's on-the-scene identification of his wife's body, and they are not at issue in this motion.

 Finally, at 3:43 p.m. on October 25 -- over thirty hours after defendant's arrest -- he was brought before a United States Commissioner for the preliminary proceedings which Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., requires 'without unnecessary delay' after an arrest. He was advised -- both by the Deputy Clerk and by the Commissioner himself -- that he had the right to refrain from making any statement; that any statement he made could be utilized as evidence in a trial against him; that he was entitled to retain counsel; that he was entitled to a preliminary hearing at which either he or his attorney could cross-examine; and that he was entitled to a continuance in order to retain counsel.

 Because the defendant said he was undecided on possible representation by counsel, and because the Government had no witnesses available, both sides consented to an adjournment of the proceedings until November 15. Pending this hearing, defendant was ordered committed, without bail, to the D.C. Jail, the charge against him then being first degree murder. *fn5"

 About 1:00 p.m. the next afternoon, October 26, Lt. Daly, the officer in charge of the investigation in this case and one of those to whom defendant had confessed the day previously, went to the D.C. Jail and filled out a form indicating a desire to see defendant in order to return some articles of clothing which defendant had brought to police headquarters on his arrest and to ascertain his wishes concerning disposition of his wife's body. *fn6"

 Defendant agreed to see the lieutenant and the pair conversed at a table in the rotunda of the jail for about an hour. According to the lieutenant, the conversation in substance and order consisted of defendant's agreeing to release the body of his wife to an undertaker; his statements that he had read of the finding of the body in the newspapers, heard other inmates talking about it, and felt glad they did not know who he was; his claim that he would not have killed his wife unless she had been 'cheating on him'; an account of his activities on the day of the murder, including the details of its perpetration and of his disposal of the body; and defendant's request that the lieutenant call a finance company to tell them where his car could be found. In addition, at some time early in the conversation -- before defendant gave the 'confession' -- a lawyer came to the table where the two men were sitting, greeted defendant by name, and offered to assist him in any way he desired. After the lawyer departed, the lieutenant asked defendant whether he yet had an attorney and was told that he did not, but that he had sent Miss Holmes to get one for him.

 The lieutenant testified that although he is familiar with the Mallory *fn7" rule's bar against confessions obtained during a period of illegal detention, and with the Goldsmith *fn8" decision of the Court of Appeals (which held that in some circumstances after proceedings before a committing magistrate, an invalid, illegaldetention confession can become validated through reaffirmation), he did not go to the jail on the 26th with any intention other than to return the indicated articles and to secure release of defendant's wife's body. Lt. Daly further testified that before going he had not talked to anyone in the United States Attorney's Office about the confessions of the 25th, nor did he have with him at the jail a copy of those confessions.

 This is the third time in this proceeding in which admissibility of the post-commitment confession has been argued. The first review was by the Court subsequent to assignment of the case for trial but prior to empaneling a jury. At that time the Court heard testimony from the officers who arrested defendant; from those who interrogated him prior to appearance before the Commissioner, and secured the invalidated first confessions; from the present Commissioner, who, as Deputy Clerk, participated in the preliminary proceeding; and from the officer who procured the post commitment confession. *fn9" Invalidation of the first confessions followed that hearing.

 The second challenge to the post-commitment confession came at trial, outside the presence of the jury, when the Court determined that it was not, as a matter of law, involuntary.

 In addition, after testimony as to giving of this confession had been repeated to the jury *fn10" along with the other evidence against the defendant, the Court instructed that the confession could not be considered unless the Government had proved beyond a reasonable doubt (1) that the defendant had, in fact, given it as testified; (2) that it was voluntary; and (3) that it was corroborated sufficiently to be trustworthy. *fn11" The Court also instructed the jury that a confession by one in custody should be considered with caution and scrutinized with care. Implicit in the jury's verdict was its finding that the Government had proved the three enumerated essentials beyond a reasonable doubt; for the Court also instructed that as a matter of law, the evidence other than the confession was insufficient to convict defendant.


 Although admissibility of the confessions secured from defendant during the thirty-hour period between his arrest and his appearance before the Commissioner is not at issue in this post-trial motion, the Court would like to indicate why it had no doubt of their inadmissibility -- and why defendant's pre-commitment identification of his wife's body was also excluded.

 The direct and concise reason for suppression of the confessions was that in this case the police did precisely what Rule 5(a) and the cases interpreting it squarely forbid: they delayed the appearance of an arrested person before a committing magistrate by taking him

 'to police headquarters in order to carry out a process of inquiry that len(t) itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.' *fn12"

 Detention for this purpose being 'unnecessary' and therefore illegal, any confessions which result from it -- no matter how voluntary or trustworthy -- are excluded as evidence.

 An additional reason for suppression of the oral confessions which preceded defendant's being charged with homicide is that they occurred while he was 'booked' and being held on the 'charge' of 'suspicion.' This was, in legal effect, no charge at all; 'the police may not arrest upon mere suspicion but only on 'probable cause " *fn13" and for a legally-punishable crime.

 If the police did, in fact, have probable cause to arrest defendant for homicide on the morning of the 24th of October, that is the charge which should have been lodged against him. The charge being an illegal one, the custody was illegal, and there is great probability that a confession procured from one in unlawful custody -- even where there is no delay in arraignment -- is equally to be suppressed as a confession procured during a period of unlawful delay from one legally arrested. Goldsmith v. United States, 1960, 107 U.S.App.D.C. 305, 311, note 6, 277 F.2d 335; Trilling v. United States, 1958, 104 U.S.App.D.C. 159, 176, 260 F.2d 677 (concurring opinion). But see Tyler v. United States, 1951, 90 U.S.App.D.C. 2, 7, 193 F.2d 24; and cf. United States v. Carignan, 1951, 342 U.S. 36, 45, 72 S. Ct. 97, 96 L. Ed. 48. *fn14"

 There having been a period of unnecessary delay in violation of Rule 5(a), the Court of Appeals' ruling in Bynum v. United States, *fn15" and similar decisions, *fn16" also required exclusion of testimony recounting defendant's identification of his wife's body during this period. As the Court said in Bynum:

 'In these situations it is deemed a matter of overriding concern that effective sanctions be imposed against illegal arrest and detention and the risks of overreaching inherent in such action. Even though highly probative and seemingly trustworthy evidence is excluded in the process, this loss is thought to be more than counterbalanced by the salutary effect of a forthright and comprehensive rule that illegal detention shall yield the prosecution no * * * advantage in building a case against the accused. * * * If one such product of illegal detention is proscribed, by the same token all should be proscribed.' *fn17"


 The admissibility of defendant's post-commitment confession is, however, a more difficult matter. Basically, the issue presented is whether an accused who, prior to delayed appearance before a committing magistrate, has made a confession which is ruled invalid can -- after such appearance and after being advised of his privilege against self-incrimination -- make a valid confession without having consulted counsel and/or without counsel's presence.

 Several basic principles regarding confessions which are relevant and binding on this court should ...

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