The opinion of the court was delivered by: CURRAN
Defendant was indicted for first degree murder in the alleged strangling to death of his wife. He was convicted of manslaughter. Upon appeal the conviction was reversed and the case was remanded to the District Court for a new trial. The Court of Appeals divided on the problem. Four of the appellate judges held, as stated in an opinion, 315 F.2d 241, by Judge Fahy:
Four other appellate judges were of the contrary view. Judge Wright, the ninth judge, filed a separate opinion in which he stated:
'I agree that it is inadmissible, among other reasons, because it was obtained from the accused before he had an opportunity to obtain counsel, who undoubtedly would have advised him to exercise his right of silence. But I also think that confession was inadmissible because it was tainted by the first confession, admittedly obtained in violation of Rule 5(a), as construed in Mallory.'
In respect to this first ground named by Judge Wright (the necessity for counsel), Judge Fahy said:
'* * * nowhere have we said that a post-hearing confession, following one illegally procured before the hearing, must necessarily await the entry of counsel; * * *.'
The other four judges, as I have indicated, would admit the confession. Judge Youngdahl, in the trial court, had held that the meeting between the defendant and Lieutenant Daly at the D.C. Jail on October 26th with defendant's consent and without counsel present was not in violation of the Criminal Rules. In the light of the above quoted language of Judge Fahy, this court concludes that this case was not reversed on the ground that the second, post-arraignment confession is inadmissible because it was obtained from the accused after the warning, but before he had an opportunity to retain counsel.
We turn to the other problem. Judge Wright thinks that the second, post-arraignment, confession in this case was inadmissible because it was tainted by the first confession, but he states:
'If the subsequent confession is an independent act, it cannot be the fruit of the wrongdoing which tainted the first confession.'
He indicates that a second confession can be independent of the first but takes the position that there is a presumption that one is the fruit of the other, this presumption being, of course, a rebut-table one. He uses the expression 'the link can be broken.' Further, in his separate opinion, Judge Wright said:
'* * * I would continue to presume involuntary the subsequent confession of an accused from whom one illegal confession has already been extracted.'
He expresses the view that a warning under Rule 5(b) does not overcome the presumption, but adds: 'But it does not follow that nothing will.'
The four dissenting judges were of the opinion that the purpose of Rule 5(a) was fully met and concluded that a fair and impartial administration of justice required that the conviction be affirmed.
The case is now before this court for a new trial but, previous to the trial, the Government requested a hearing on the defendant's motion to suppress a certain written statement made by the defendant which the Government intends to present as evidence. The purpose of this hearing was to ascertain the circumstances under which the statement was taken so that ...