Mallory v. United States

PETITIONER:Mallory
RESPONDENT:United States
LOCATION: Washington Asylum and Jail

DOCKET NO.: 521
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 354 US 449 (1957)
ARGUED: Apr 01, 1957
DECIDED: Jun 24, 1957

Facts of the case

Andrew Mallory was arrested by federal officers on charges of rape. Upon arresting Mallory, the officers questioned him until he confessed roughly seven hours later. After the confession, the police officers sought to reach a United States Commissioner for the purpose of arraigning Mallory.

Question

Did the questioning of Mallory prior to his appearance before a commissioner violate Due Process and the Federal Rules of Criminal Procedure?

Earl Warren:

Number 521, Andrew R.Mallory versus United States of America.

Mr. Bryant.

William B. Bryant:

Mr. Chief Justice, Associate Justices, may it please the Court.

The case for the Court, Andrew Mallory versus United States, we believe presents three important questions.

The first, whether or not the lower courts in the District of Columbia Circuit properly adhered to the pronouncements of this Court in McNabb versus United States and reiterated in Upshaw versus United States relative to alleged confessions of the petition.

Number two, I believe that the important question is whether or not the consent allegedly given to the police by the petitioner herein for the search of his home for certain items of clothing while he was arrested and then the police headquarters measured up to that standard of voluntariness which the federal jurisdiction has adopted for itself.

And thirdly, whether or not the trial court’s comment in answer to a question by the jury after deliberating some four or four and a half hours about the fate of the petitioner in the event that the jury did not impose a death penalty, was proper under the circumstances.

Now, the factual picture which — out of which these questions arises is briefly as follows.

On April 7th, 1954, a woman was allegedly raped in the 1200 Block of 12th Street Northwest in the District of Columbia in the basement of an apartment house in which she lived.

The next day, at about 2:30, the petitioner was arrested in the Northeast section of Washington D.C. and taken to police headquarters at 13 Indiana Avenue, Northwest.

Immediately upon his arrival at the police headquarters, he was interrogated in the so-called identification room at the police headquarters.

The arrival was pitched at about 3 o’clock in the afternoon.

Here, the petitioner was questioned by at least seven or eight officers of the Sex Squad between 3 o’clock and shortly after 4:00 that he — and then some times between 4:00 and 5:00 during that questioning, the petitioner denied any implication in the crime.

Some times between 4 and 5 o’clock, the police inquired of the petitioner and his two nephews, the children of his half brother who was a janitor of the apartment which the alleged crime occurred and who also in custody.

The police inquired as to whether or not they would take the lie detector test.

Petitioner is alleged to have agreed to take a lie detector test along with the other two suspects.

The man who was an expert at giving the examination was not immediately available and there was a waiting period of — from about some time between 4 and 5 to about 7 o’clock.

The officer eventually arrived, and after exposing the other two men who were in custody to the lie detector apparatus and the testing that goes on with it, the petitioner was called into the room some 120 feet away from the room in which he had been all the time.

And there, in the lie detector room, which is a small room about the size enough to accommodate the machinery and the examiner and the — and the subject, he was given the so-called “lie detector test.”

His questioning immediately before — questioning during the — during the examination at which time he was attached to the machinery by various wires and hoses and other attachments.

After the examination on the machine, he was subjected to still more questioning and some time between 9:30 and 9:45 p.m., according to the examining officer, he made certain oral admissions which implicated him in the crime.

Thereupon, the examining officer called the two officers of the Sex Squad who were in charge of the case so to speak and indicated to those officers that the petitioner wanted to make a statement to them.

At that time, the oral admission originally made to the examiner, speaking of the lie detector machine technician, were allegedly repeated to officers (Inaudible) I believe.

After the admissions were made, one officer to another said, “Try to get a hold of the Commissioner” having reference to the United States Commissioner and then for the District of Columbia.

A call was put through to the commissioner at his home and he was at that time unavailable, that was sometimes after 10 o’clock p.m., the first mention of the commission.

Thereupon, the petitioner set out under police supervision a written statement embodying what’s he had said to the officers are.

And immediately following the written statement, there was also a written consent to the officers to go to the premises and search certain areas and take from that area items or clothing.

The confessions are — unwritten were introduced an evidence over objection.

The items of clothing which had been procured as the result of the so-called “consent to search” and which had been subjected to certain analysis by the Federal Bureau of Investigation and which should be — reveal certain culminating characteristics were introduced to the evidence.

The jury was instructed, when he took the case, in the usual fashion except that when it got down to the point of the verdicts by virtue of the peculiar characteristic of the District of Columbia statute which allows the jury to add to the verdict of guilty if they so find the defendant who’s charged with rape, guilty.

William B. Bryant:

He might add the words with the death penalty.

Because of that, Judge Holtzoff read to them the following, and I — I think that in these circumstances, I should read the charge because it is critical.

Beginning on page 5 — page 105 of the record, if the Court please, the fourth paragraph beginning with “If you find the defendant guilty, you still have one more punishment”, the punishment provided by law for the crime of rape is either a death penalty or imprisonment for a term of years.

The decision, whether the death penalty should be inflicted, is made by the jury.

The jury has the right in the function of determining whether or not the death penalty should be inflicted on a rape case.

Consequently, if you find the defendant guilty as charged, you must then decide also whether the death penalty should be imposed.

If you unanimously reached the conclusion that the death penalty should be inflicted, then you may add to your verdict of guilty the words “with the death penalty”.

In such case, and such as your verdict, it will then be mandatory on the Court to impose the death penalty.

The Court will have no discretion under that.

On the other hand, if you find the defendant guilty but you do not unanimously reach the conclusion that the death penalty should be inflicted, then your verdict should be simply guilty as charged without any addition to it.

In that event, the defendant will be subject to imprisonment which the Court will impose but will not be subject to the death penalty.

Whether the death penalty, should or should not be imposed, in case you find the defendant guilty is entirely within your discretion and you have a right to consider any circumstances or weigh in his considerations in reaching the conclusion on that point.

That is the critical part of the Court’s charge in the light of the question we raised here.

If the Court please, after deliberating for something over four hours, we’ve indicated, the jury indicated that it wanted some explanation or some instructions from the Court and sent the Court a note which asks several questions.

The Court deals with this note on page 106 of the record, the Court called counsel to the bench and showed there’s a note indicating that the jury had asked one, “Have we other choice of verdicts than this four?”

Felix Frankfurter:

Before — may I?

William B. Bryant:

Yes, Your Honor.

Felix Frankfurter:

Excuse me for interrupting you —

William B. Bryant:

Yes sir.

Felix Frankfurter:

— but if we had no more than that what you read on page 105 Mr. Bryant, have you or have you not a quarrel with that — that portion of the initial charge made by the Court?

William B. Bryant:

I have no quarrel with the general brief.

Felix Frankfurter:

All right, that’s — that’s not all right, difficulty arises on the response to the subsequent questions.

William B. Bryant:

Yes sir.

The subsequent questions, I believe, were outlined on page 106 of the record, have we other choice of verdicts than these four.

One, guilty with death penalty.

Two, guilty as charged.

Three, not guilty by reason of insanity.

Four, not guilty.

Now, the Court answered that question.

Now, those four are the only possible verdicts, no other verdict is possible.

William B. Bryant:

Then the Court dealt with question number two.

Question number two was, on number two above having reference to guilty as charged, “Can we the jury be assured that the defendant legally be imprisoned for the remainder of his natural life?

No possibility of release – in his sentence.”

The Court in response to that question said, “I can give you no such assurance.

I think I might explain to you that the maximum term the Court may impose is 30 years, but even if the Court imposes the maximum, and of course I can, even if the Court imposes the maximum, the Court also has to impose a minimum sentence.

So that the longest term that the Court can impose would be an indeterminate sentence of 10 to 30 years.

The minimum has to be not more than a third of the maximum.

Then at the end of the minimum sentence, the Parole Board would have to decide whether the maximum should be served, or anything less than the maximum.

So that I can give you no assurance that the defendant would legally be imprisoned for the remainder of his natural life if he’s found guilty as charged.

William J. Brennan, Jr.:

May I ask you Mr. Bryant?

William B. Bryant:

Yes, sir.

William J. Brennan, Jr.:

As a statement of what the law is in that regard, do you need to quarrel with it?

William B. Bryant:

No, sir, as a statement of what the law is, if Your Honor please, I have no quarrel with it.

William J. Brennan, Jr.:

Now, what would you suggest should have been Judge Holtzoff’s answer to that question?

William B. Bryant:

I think his answer in the circumstances here should have been that is a matter which is not properly before you jurors for your consideration and I will not answer that question.

Felix Frankfurter:

You mean — do I infer from your answer to Justice Brennan that you imply or that you — you — we should carry the meaning of what you say that in as much as — as the amount of the — in as much as the way in which the judge exercises the discretion other than capital in the sentence that the jury tells particularly.

William B. Bryant:

Yes, sir.

Felix Frankfurter:

He shouldn’t tell him what will influence them because that may influence them in bringing in one sentence rather than another?

William B. Bryant:

Positively, Your Honor.

Felix Frankfurter:

That’s your problem?

William B. Bryant:

That’s my position.

This isn’t a case where the jury is charged with the duty of fixing punishment in terms of fixing death or fixing life or fixing a term of years.

This is a case where their sole consideration is to determine guilt or innocence on the one hand and then if they determine that he is guilty, whether or not he should be — his life should be fought.

If they decide that it shouldn’t be, what happens to him in the alternative is not any — any area in which they can make any consideration.

It’s sheer speculation.

Felix Frankfurter:

Well, in as much as they have that awful power which they have under statute in various mistakes of deciding whether a man should go to his death or not, are they themselves on how they — how that should be put to them — are they themselves entitled to consider suppose a jury brought in a verdict saying we find the defendant guilty and we think and we recommend death because of inevitable speech —

William B. Bryant:

Yes, sir.

Felix Frankfurter:

— or they shall because we think that you ought not to be alleged inside the community very soon as he will might be but — what will you say to that kind of a verdict.

Now, that is a —

William B. Bryant:

I think if he —

Felix Frankfurter:

— illegal verdict?

They gave their reasons from closing, for qualifying the — or adding to their finding of guilty, the reason for recommending for opposing death as the power —

William B. Bryant:

I would say this, if Your Honor please, that that would be a positive determination of death.

Felix Frankfurter:

Now, can’t they — your argument must imply that they cannot get some guidance from the Court for consideration that they may as a perfectly conscientious jury take into account in the privacy of the jury?

William B. Bryant:

That’s right Your Honor.

Felix Frankfurter:

Isn’t that right?

William B. Bryant:

That’s right sir.

That — that’s my position.

Then the Court —

Felix Frankfurter:

The answer they got from the judge, what the judge said is something that they could discuss among themselves.

William B. Bryant:

That’s right, Your Honor.

Felix Frankfurter:

In the secrecy and privacy of the — the jury.

William B. Bryant:

That’s right.

Felix Frankfurter:

But your proposition — you stand on the proposition that the judge has no business to help from defining — expounding this.

William B. Bryant:

I — I think that —

Felix Frankfurter:

Isn’t that right?

William B. Bryant:

May I take that position, if Your Honor please.

Felix Frankfurter:

I — I understand it.

William J. Brennan, Jr.:

Mr. —

Felix Frankfurter:

If I may say so, that is the position to take but I just want to know if that’s it.

William B. Bryant:

That is my position, if Your Honor please.

William J. Brennan, Jr.:

Mr. Bryant, I — I gather then that you would probably distinguish in a state statute as I think as the case in some states where the verdict of guilty carries automatically the death penalty unless there’s an affirmative recommendation of life imprisonment.

William B. Bryant:

That’s right.

William J. Brennan, Jr.:

Is that it?

And the —

William B. Bryant:

That’s right.

William J. Brennan, Jr.:

— distinction you draw here is that a verdict without the appendage with the death penalty automatically leaves to the judge a determination of what the sentence shall be, is that it?

William B. Bryant:

That’s right Your Honor.

In other words, you take the position in — in the that case that Your Honor cites and I believe that is so in several Ohio —

William J. Brennan, Jr.:

Well, there’s some in New Jersey I know.

William B. Bryant:

That’s right, sir, if Your Honor please.

Well, in that particular case, the jury is charged with fixing punishment as a matter of fact in the alternative and they aren’t here and another distinction is this, in the wisdom of Congress, what happens to a man if the death penalty isn’t imposed at the term of years per years, so they aren’t be a meaningfully beginning embedding an area which is fraught with speculation from the very beginning.

Then they asked for reading of the rape statute and the Court at that time reads the rape statute too and reads the penalty.

The Court stated, may the jury have a reading of the D.C. Code, it reads this way, whoever has come knowledge of the female force have been against their will shall be imprisoned for not more than 30 years provided any case of rape the jury may add to their verdict.

If he’d be guilty, the words would be death penalty.

In which case, punishment shall be death by electrocution provided further that the jury fails to agrees to the punishment, the verdict shall be received and the punishment shall be imprisoned — imprisonment as provided in this section.

Now, as the Court’s pleases, I complained of any answer at all to the question.

Felix Frankfurter:

But now, forgive me for this question because I have a great deal of sympathy —

William B. Bryant:

Sir?

Felix Frankfurter:

I — will you forgive my question because I have a great deal of sympathy —

William B. Bryant:

Certainly.

Felix Frankfurter:

— from your point of views.

It comes from a friendly source.

Suppose — suppose the jury instead of having asked the question they did asked had specifically trained this question, we are honored to tell us whether it is a fact that even though you impose the maximum sentence under the existing parole legislation or whatever an existing laws, it doesn’t follow that the defendant will have to serve the maximum sentence.

He may serve a much less sentence in view of — he could behave inside.

Couldn’t he be allowed to answer that question?

William B. Bryant:

No, sir.

Beyond the place, I think the prohibition is against that even in cases where juries have the right to determine punishment, let’s say, in lesser offenses like driving while drunk, for instance, where the range of punishment might be from a $100 to $1000 fine and maybe from 30 days to a year in jail.

The function of the parole authorities is a distinct — the executive functions, it’s another branch of the Government.

And what the — what — what — confidence the Congress has reposed in the wisdom of those persons, people who may be even unborn should not be frustrated or thwarted by somebody anticipating what might be done.

The Court properly should say that that is not —

Felix Frankfurter:

None of your business.

William B. Bryant:

None of your business, Your Honor.

Felix Frankfurter:

On the other hand, the jurors are trying conscientiously to discharge their duty.

William B. Bryant:

That’s right, sir.

Felix Frankfurter:

They have the power of bringing in a death penalty.

William B. Bryant:

That’s right, sir.

Felix Frankfurter:

Or let’s view the — and they want to know by what consideration.

It’s not a consideration in harm and reflection should guide them in making that awful judgment.

And — and if they — I wonder if they merely ask that there isn’t a difference between asking a specific fact which can be answered in a specific way in making a little speech like this old speech as to which is calculated as you argue, is calculated to make them realize this fellow may observe law.

Felix Frankfurter:

Isn’t there a difference?

You were raising a very — you were raising a very — to my point of view a very far-reaching question as administration of formal justice.

William B. Bryant:

If Your Honor please, I think this.

I think that this Court about — gave the answer to the question a long time ago in the Winston cases which arose in the District of Columbia.

And in that — in those cases, we have that federal statute which said that the penalty for murder in the first degree would be death except if the jury should bring back a verdict of guilty without capital punishment.

And then at the first few cases that arose under that statute, a judge told the jury that in — if they came to any conclusion that these — that these defendants should not be — should not receive the death penalty or if they came to the conclusion that the verdict should be without capital punishment that they must find some mitigating circumstances and have some objective credited for him.

And this Court said that’s not so.

This Court uses the term and the total evidence in light of all the evidence.

I think that’s a cue here, if Your Honor please.

I don’t believe that punishment in the alternative from the death sentence can be properly construed as evidence in the case.

I —

Felix Frankfurter:

The Winston — the Winston case really was a strong into measuring or at least, hence in a murder case anything that the trial court judge said that to my point of view is strong and important, anything than — everything that resorts at great length.

But in the Winston case, this Court said in effect, and if I may say, just quite right to — but the judge practically told them, “You ought to bring a death sentence unless you got a good reason for not doing so.”

That — that will be effectuating this.

William B. Bryant:

That’s right.

If Your Honor please —

Felix Frankfurter:

If you can’t do that, this isn’t quite right, this isn’t that the crime.

William B. Bryant:

If Your Honor please, I have the — I take the position that it was then.

Felix Frankfurter:

That the effect was the same.

William B. Bryant:

The effect was the same, particularly, in the light of these circumstances, if Your Honor please.

If not death, then there was no life imprisonment that was 30 years.

And then with the imposition of 30 years, the indeterminate sentence law is no part of the statute on rape.

It’s a separate part of the code, and then when Judge Holtzoff mentioned the indeterminate sentence law and then went to the point of the Parole Board having the authority to determine that the end of the minimum period it need not to serve anymore unless they see — was in effect emphasizing.

Now, the possibilities and probabilities that this young — young man would be out in no time, so that was the effect of it that they could not be escaped and that’s why I — I said at one point that the arrow was sort of progressive arrow.

Felix Frankfurter:

What you really think is that they cut there deep into the whole conception went out to the jury, what you really think is that the contradiction or deny what I’ve put to you earlier, can’t they get some rational guidance from the judges to how they should exercise, what is their power maybe to them before the death sentence that what you’re really saying is this had better be lasting all in what you will, the feeling, the hunch, the — the — some total human feeling of these 12 people, men and women whether this fellowship goes to a death or not.

William B. Bryant:

That’s right, Your Honor.

Felix Frankfurter:

You better not have any inclusion of any kind of enlightenment from the Court on that subject.

William B. Bryant:

That’s right, Your Honor.

Charles E. Whittaker:

Mr. Bryant.

William B. Bryant:

To the purpose.

William B. Bryant:

Excuse me, sir.

Charles E. Whittaker:

Does it not really get down to this whether the question — the question number two with 107 of the record was proper to be answered in any circumstances?

Do you say that if it was to be answered at all that Judge Holtzoff could have done better or anyone else than he did?

William B. Bryant:

Yes, Your Honor.

Charles E. Whittaker:

If it was to be answered at all, you think it could have been answered better than Judge Holtzoff did answer?

William B. Bryant:

Yes, Your Honor.

Charles E. Whittaker:

You do?

William B. Bryant:

I assert that this is fiduciary and I think it shouldn’t have been answered at all.

Charles E. Whittaker:

It shouldn’t have been asked?

William B. Bryant:

It shouldn’t have been asked either, if Your Honor please.

It shouldn’t have been answered at all and the only federal cases we had Your Honor, the Lovely versus United States.

Now, in the Lovely case, it’s true that Judge Parker pointed out or it was pointed out by someone that this answer that — that the Court’s charge relative to the parole possibilities on a life term were — were gratuitously offered by the Court and not in response to an inquiry.

But the language of Judge Parker was to this effect.

That’s something with which the jury has nothing to do.

I think that’s —

Charles E. Whittaker:

Well, that’s — that thing I will answer.

William B. Bryant:

That’s right.

Now, specifically as to your question about Judge Holtzoff’s correctness or incorrectness in answer to the question, it seems to me, if Your Honor please, that in the circumstances of this case and in the light of the law which had governs in the District of Columbia, death isn’t imposed, that if he answered at all, his answer should have been confined to a straight unequivocal, unelaborated upon no.

I’m saying this that when he went beyond and gave the jury the range of what might happen to this man, they didn’t asked for that.

And the extent to which he went almost forward on advocacy, he came to the point where he’s injecting himself into that jury room.

The emphasis upon the possibilities that at the end of 10 years, this man would be in the street.

The jury didn’t ask for that, if Your Honor please, and I think that it would (Inaudible) to — to tell her that.

Felix Frankfurter:

I’m a — I’m a little troubled.

Didn’t the jury ask the question that the — on — in quote on top of page 107?

William B. Bryant:

Can we, the jury be assured that —

Felix Frankfurter:

Didn’t they ask that?

William B. Bryant:

They asked —

Felix Frankfurter:

Wasn’t that there a question?

Was there not that question?

Did they not put those very words to the judgment?

Charles E. Whittaker:

The jury?

Felix Frankfurter:

The jury, isn’t it?

Under the jury verdict?

William B. Bryant:

Yes.

Yes, sir, that’s — that’s what they asked.

Felix Frankfurter:

Was an evidence covered by your answer to Justice Whittaker that the jury didn’t ask for that?

William B. Bryant:

No, I don’t mean that.

Felix Frankfurter:

Then I misunderstood you.

William B. Bryant:

I don’t mean that, if Your Honor please.

The jury was not asking about alternative sentences.

They were asking about an assurance of something that didn’t exist.

They were asking the —

Felix Frankfurter:

In the evidence, supposing he answered, just said no.

Can we be — the jury be assured defendant legally be imprisoned for the remainder of his natural life?

Supposing he’d said no, you would have the same — you would object to that, wouldn’t you?

William B. Bryant:

I was complained about that, if Your Honor please.

Felix Frankfurter:

Yes, you complained but this is different.

William B. Bryant:

This is different.

This is worse.

This is aggravated.

Felix Frankfurter:

Is the answer which the judge gave technically are not — not with reference to your problem.

Is it technically correct —

William B. Bryant:

It is but —

Felix Frankfurter:

— at the situation of the law?

William B. Bryant:

That is right but it’s not responsive, if Your Honor please.

Felix Frankfurter:

As I understand it.

But I mean this is technically correct.

William B. Bryant:

Yes, Your Honor.

Felix Frankfurter:

Of course, if it was technically wrong, I wouldn’t bother along with it.

William B. Bryant:

That’s right, sir.

William B. Bryant:

It would technically be correct, if Your Honor please.

As far as it went, I’m saying that he shouldn’t have gone as far as he did.

Felix Frankfurter:

In that I follow you.

William B. Bryant:

Now, some cases have —

Felix Frankfurter:

May I — except one more thing.

William B. Bryant:

Yes, sir.

Felix Frankfurter:

Suppose — suppose one should find that he — that one should agree with you speaking of consequences, it would have to go back for — it wasn’t tried, wasn’t it?

William B. Bryant:

Yes, Your Honor.

Felix Frankfurter:

He couldn’t impose the sentence, of course, and the old jury couldn’t be called back.

And it — well, could it — I don’t know what do you suggest or either by you or by the Government that could — that the case suddenly sends back to vacate the death sentence and impose the life sentence.

I don’t know what the Government (Inaudible)

William B. Bryant:

Your Honor, I — I would want to venture to the answer on that.

Felix Frankfurter:

I suppose one might have to face that question if one agreed with you, wouldn’t one?

William B. Bryant:

That’s right, sir.

William J. Brennan, Jr.:

Well, the only thing that bothers me about that, Mr. Bryant.

If I understand your position, it’s a jury determination and I suppose is an integral part of the judgment of conviction that the death sentence should be imposed, isn’t it here?

William B. Bryant:

As it is now, yes, Your Honor.

The death sentence has become a part of the verdict.

William J. Brennan, Jr.:

Well then, how — how can any but the jury (Voice Overlap) —

William B. Bryant:

I participate some difficulty in that area, Your Honor.

I — I can understand what’s troubling you.

Felix Frankfurter:

Well, except that’s a difficult question for me was when I — it doesn’t seem irrational to me to say the death sentence was improperly imposed?

The death sentence is vacated to the finding of guilty that you do the best you can.(Voice Overlap) —

William B. Bryant:

That’s right.

In the finding of guilty, I don’t think there’s any equivocation about that.

Felix Frankfurter:

If they said nothing that the jury brought in guilty then — then it wouldn’t be death?

William B. Bryant:

That’s right.

I noticed —

Earl Warren:

Mr. Bryant, Oh, pardon me, just go right ahead.

William B. Bryant:

Thank you, sir.

I noticed that the last question that the jury asked was, “May the jury have a reading of the D.C. Code rewrite?”

That was one of their questions.

William B. Bryant:

That’s right, Your Honor.

And then the Court proceeded to read the statute.

William B. Bryant:

That’s right.

Now, did he say anything more in his preliminary explanation than was contained in the reading of the statute?

William B. Bryant:

In the — you mean there is no charge.

The part that we’ve been talking about.

Now, the part on his — it’s a part of his answer to the jury’s earlier question that you objected to.

That simply is summarization of the statute, isn’t it?

William B. Bryant:

That — that’s right, if Your Honor please.

Now, do you object to the view — supposing the Court had said, “I will not answer your question except to say that I — to read you the statute in response to your last question,” would you — objected to that?

William B. Bryant:

No, if he read the — the statute as he did in his original charge.

The safe way that judges usually adopt is to say I’ve already instructed you on that matter and that’s the end of it.

If he had said no and then read the statute without regard to the punishment, I would have been satisfied.

But I don’t think that that was an area for the jury to be concerned with whether or not he got 30 years or 10 to 30 or 9 to 27.

Earl Warren:

Mr. Bryant, I suppose implicit in your argument is the — is the fact that the colloquy of this kind is — there’s a vise in it because it — it’s likely to produce a compromised verdict and that that being true, any — any verdict that — that was brought about as a result of such a colloquy is subject to the — the criticism that it might be — it might be a compromised verdict.

William B. Bryant:

I think so, if Your Honor please.

That’s my position.

William J. Brennan, Jr.:

Well, excuse me, Mr. Bryant, I don’t follow that.

How could there be a compromised verdict?

As I understand it, unless unanimously they attach the death penalty to the verdict, automatically he gets only imprisonment.

William B. Bryant:

That’s right.

William J. Brennan, Jr.:

There couldn’t be a compromise.

William B. Bryant:

That’s right.

William J. Brennan, Jr.:

It didn’t — it didn’t result in a compromise.

I gather your position is that it was an intrusion in the sense that it led the jury unanimously to the finding of death penalty that — but for what he said that — at least there may have been a disagreement upon in which he fairly could not have had more than imprisonment, isn’t that it?

William B. Bryant:

Well, I don’t mean compromise in those terms, if Your Honor please.

Earl Warren:

I was talking about compromise in this — in this sense.

Some of the jurors might have been for the death penalty.

Earl Warren:

Some of them might have been for — for life imprisonment.

And — and those who were for the death penalty might have said, “Well, if we could — if we could be sure that he would stay in jail for the rest of his life, we will — we would find him guilty of — of the offense punishable less than death.

But unless we can be assured of that fact, we will go with the other group.”

William B. Bryant:

That’s right.

That’s a deal so to speak.

Earl Warren:

It’s a deal, it’s a compromise.

William B. Bryant:

I mean — in fact the jury say it’s — it’s —

Earl Warren:

In that sense —

William B. Bryant:

That’s right.

Earl Warren:

— that’s — that’s the sense I used to deal.

William B. Bryant:

That’s right.

And I think —

Felix Frankfurter:

It may go even further than that.

They go even further than that.

One doesn’t have to know much about juries to know that there may be jurors on that jury who would say, “I’m ready to find him guilty if he isn’t sentenced to death.”

William B. Bryant:

That’s right.

Felix Frankfurter:

“But I’d hold out against the verdict of guilty.”

William B. Bryant:

That’s right, Your Honor.

Felix Frankfurter:

Was to insist on technically trying there is alternative, he may be switched over from voting for acquittal to guilt?

William B. Bryant:

That’s right.

Felix Frankfurter:

That’s not an unknown.

William B. Bryant:

So that this — this I think this — I think in specific, the answer to your question Your Honor that — that a jury in arriving in the determination is great as this.

It shouldn’t impose the death penalty in terms of negative reaction.

In other words, the death penalty should reflect the heinousness of the crime in certain things in which it was committed and not any disapproval of anything that the Congress in its wisdom has adopted as alternative.

If that isn’t their business, strictly isn’t their business to say this to them.

If it would be improper — if it were improper — we’ll put another way I should say that the Court’s original charge relative to the law and the jury response was the extent to which they should have been informed.

William J. Brennan, Jr.:

In other words, what was done is an official, improper — if that’s a good English, intrusion under the function of the jury which vitiates because of its prejudice to the verdict of death.

William B. Bryant:

That’s right, if Your Honor please.

I think —

I understood you to say that you objected to the answer that the Court gave to this in — but I don’t find that.

Where is it?

William B. Bryant:

I — I — if Your Honor please, I didn’t — I didn’t — I don’t think I said that as to the objective of the introduction of the evidence.

Oh, I misunderstood you.

William B. Bryant:

But as to the —

And if I did say that, I don’t mean that.

But I did make it the basis for — in a motion for a new trial, if Your Honor please.

When — when the questions first came in and as the record says, I want to show you gentlemen, meaning counsel —

William B. Bryant:

Yes, sir.

— a note that I received from the jury.

I think as to the question they asked on number two.

I shall have to say that I cannot give them any such assurance, Mr. McLaughlin, that’s the District Attorney.

William B. Bryant:

That’s correct.

That is right and nothing further appears.

William B. Bryant:

That’s right.

Well, if Your Honor please, I might say this.

That I was in an unfamiliar situation at that point and I said nothing as the record reflects.

But I assure Your Honot that had I had any idea that the judge is going to say what he did say, I would have just objected spontaneously.

He said, I’m going to tell him, I can give him the no, the answer is no.

I can give no such assurance.

I had in my mind at that time that that wasn’t a proper thing to do.

But certainly if I had any idea in the world —

Well, he gave but you didn’t say anything?

William B. Bryant:

If Your Honor please, I — I felt helpless under the —

I’m not saying that you’re bound by that —

William B. Bryant:

I understand that.

— I’m just trying to find out.

William B. Bryant:

I thought about that to some extent but I can imagine nothing that could have been done in those circumstances that could have protected — that could have obviated it or at least affected it.

Charles E. Whittaker:

That is the jury’s reaction but it might have put your record in a little better position?

William B. Bryant:

Yes, Your Honor, I agree.

Earl Warren:

Mr. Bryant, are you going to find time to discuss the first question, the question of the detention?

William B. Bryant:

Yes, if Your Honor please, I would like to complement.

If Your Honor please, I think that the confessions in this case fall within the prohibitions of the McNabb doctrine for this reason.

At the time this man was taken to the headquarters building in question, he was literally taken down a car on one side across the street for 15 or so judges of the District Court and nine of the Court of Appeals and the United States Commissioner, the width of the street.

A block away was the Municipal Court for the District of Columbia, all of the judges on which are empowered to act as committee magistrates.

Now, the delay between time of arrest and the time that the Commissioner was sought was not a delay which arose out of expensive circumstances or which the police had no control, it was a delay which was chosen by the police for the purpose of interrogation.

And I think, if Your Honor pleases, that the McNabb and Upshaw mean what I’m certain that the Court have said that — that they mean and who file was to be observed at all that the delay in this particular case were such as to invalidate the confessions.

Felix Frankfurter:

You said that the delay was chosen.

It was designed —

William B. Bryant:

Delay was chosen.

Felix Frankfurter:

The design delay.

William B. Bryant:

That’s right, Your Honor.

Felix Frankfurter:

Would you please refer us or quickly state what the evidence in the record is for that statement?

What is the —

On what do you based that statement?

William B. Bryant:

Well, I had based that statement, if Your Honor please, on the fact that on — at — in the record on page 52, I believe.

The police — I am reading down near the — well, the third question from the bottom.

If Your Honor please.

Earl Warren:

On what page?

William B. Bryant:

On page 52 of the record where the — Mr. McLaughlin said, “We’re calling your attention after the defendant stated to you that he’d made a verbal statement.

You stated he made a verbal statement.

Was there any attempt at that time to get in touch with the United States Commissioner?”

Answer, “Yes, sir.

Sergeant Elliot made a call to the home of the United States Commissioner.

Commissioner was unavailable.”

“And that was approximately what time?”

“It was some time after 10 o’clock.”

Now, I say that the record reflects that this was a matter of choice for this reason, that he was interrogated then they waited for the lie detector man to come to interrogate him some more.

There was absolutely no reason indicated by the record why he should not have been arraigned.

I say that a test is not the time that —

Felix Frankfurter:

What — what time was he arrested?

Felix Frankfurter:

When was he convicted?

William B. Bryant:

He was arrested about 2:30 and arrived at the police headquarters, if Your Honor please, which was across the street from these people and about 3 o’clock, shortly before 3 o’clock.

Felix Frankfurter:

Where is the Commissioner —

William B. Bryant:

The Commissioner —

Felix Frankfurter:

(Voice Overlap), what’s the geography of the Commissioner’s home?

William B. Bryant:

These buildings, if Your Honor please, are directly across the street one from the other directly across the street.

The interrogation took place on the fourth floor of this building over here.

In third, it seems to be South and Northwest.

The United States Commissioner’s office is in the Northwest corner of the New United States District Court building, a third is on market-based, and coincidentally, it was about the closest office to the police headquarters.

Felix Frankfurter:

Is the Commissioner that we know — whether the commissioner sitting in his office, is he there particularly available?

William B. Bryant:

If Your Honor please, I don’t know what he was —

Felix Frankfurter:

No —

William B. Bryant:

The assumption is that during the business hours that he was.

We know —

Felix Frankfurter:

The position of the district have a good deal of business or that he — did he get a full time job

William B. Bryant:

He has full time job, if Your Honor please, on a yearly salary.

And I’ll say that my experience both as with the commissioner, I spent a lot of time with him that he was aware of the fact that he should be on duty at least until the judges were on duty about 4:30.

I know that that was a fact that that was the practice there.

Felix Frankfurter:

Well, if he’s on a full time on a yearly salary —

William B. Bryant:

About 95 —

Felix Frankfurter:

I don’t know nothing about this but I should think Washington is big enough to have a commissioner who’s there on full time?

William B. Bryant:

That’s right, Your Honor.

His salary was $9500.

I think he was furnished a staff.

Felix Frankfurter:

Do you suggest that he should be presumably there until 4:30 anyhow?

William B. Bryant:

Oh certainly.

Felix Frankfurter:

That’s not a wild assumption, is it?

William B. Bryant:

Not — not a wild assumption.

I think that at least they should have attempted to get in touch with him in his office some time before 4:30 rather than waiting until after 10.

Felix Frankfurter:

What is the exact time when — when this defendant was brought into police headquarters?

William B. Bryant:

3 o’clock, if Your Honor please.

Felix Frankfurter:

3 o’clock?

William B. Bryant:

3 o’clock.

Earl Warren:

But they also have taken him, did you say, to the municipal judges?

William B. Bryant:

They — they could have taken him to the municipal — municipal judges who I know are in session until after 4 o’clock.

They could have taken him to any one of the District Court judges, there’s always one on duty at least until the time.

Felix Frankfurter:

How many district judges are there?

William B. Bryant:

Sir?

Felix Frankfurter:

How many district judges are there at the district?

William B. Bryant:

There are 13.

There were 13 of —

Felix Frankfurter:

They’re all in that building over there?

William B. Bryant:

All in that building, the United States Courthouse, nine of the Court of Appeals judges and 13 district judges and the United States Commissioner.

Felix Frankfurter:

Are — are defendants ever taken before at the District Court arraigned?

William B. Bryant:

Yes, sir.

Felix Frankfurter:

The District Court’s — the district judges take arraignments —

William B. Bryant:

Yes, sir, I’ve done it, if Your Honor please, personally for the very purpose of — of eliminating this contention and I would say this that the municipal court judges are utilized fully as much as the United States Commissioner.

Felix Frankfurter:

You mean you can break in toward a particular case?

I mean there’s an arrest at 3 o’clock and a conscientious district attorney could take him to even the Commissioner or he isn’t, for some reason, there or busy, you could take him to the municipal court as such —

William B. Bryant:

Oh, yes, sir.

Felix Frankfurter:

— and say, “Your Honor, I have a case.”

Is that all right?

William B. Bryant:

Yes, sir.

Felix Frankfurter:

No trouble about that?

William B. Bryant:

No trouble and the municipal court judges will make themselves available.

They will wait for you, late in the evenings, sometimes after 5:00.

Felix Frankfurter:

How many municipal court judges are there?

William B. Bryant:

There are 11, if Your Honor please.

Felix Frankfurter:

One more question, Mr. Bryant.

William B. Bryant:

Yes, sir.

Felix Frankfurter:

Did you — on this Court — on this aspect of your case, unlawful illegal detention, the McNabb one part.

William B. Bryant:

Yes, sir.

Felix Frankfurter:

Did you properly, technically preserve your — your claim of error as to that?

William B. Bryant:

If Your Honor please, I think I did throughout.

Felix Frankfurter:

Raise it early?

William B. Bryant:

I raised it early, yes, sir.

Felix Frankfurter:

When?

William B. Bryant:

When Mr. — at that trial court when Mr. McLaughlin mentioned to the Court that this is a confession case, if Your Honor pleases.

And I was —

William J. Brennan, Jr.:

Can you point to the place in the record where you first did, Mr. Bryant, without too much trouble or — don’t use your time doing it now if you can.

William B. Bryant:

Well, I can’t.

I need to put my finger —

William J. Brennan, Jr.:

It’s all right.

I get it, you have provided it.

William B. Bryant:

I will need to put my finger on —

Earl Warren:

Has the Government challenged the fact as to whether you did bring it to the attention of the Court?

William B. Bryant:

No, sir.

They haven’t challenged it, Your Honor.

Felix Frankfurter:

Have they challenged the other question?

Have they said, you haven’t — the question that Justice Harlan put that you did not object to the answer by the trial judge?

Did the Government raise that?

William B. Bryant:

Some references made within the Government’s brief but not a formal challenge, I believe in the footnote —

Felix Frankfurter:

All right.

William B. Bryant:

— if Your Honor please.

Harold Burton:

Until after the lie detector test, did they have enough to arraign him for?

William B. Bryant:

Well, if Your Honor please, they had enough to arraign him when they arrested him.

Now, if Your Honor means if did they have enough for the commissioner to hold him, I think it’s a different question.

I think that purposes of arraignment is to determine whether or not there’s enough to hold him.

I don’t think the police — that was the Upshaw rape case.

The police said it didn’t they take him there because we didn’t have enough for the commission at a holding and that was the fact here, so that —

Felix Frankfurter:

That’s what you mean by saying the failure to arraign was designed in order to enable him to get the evidence.

William B. Bryant:

That’s right, the sole purpose of the delay.

And I say to Your Honor that when the Commissioner is available and the arresting authority has failed to take advantage of his availability for the purpose of arraigning, then that detention is illegal and —

Hugo L. Black:

I understand the Government doesn’t argue there as I — as I gather from their brief.

What they say is, they had him there along with two others investigating a crime?

William B. Bryant:

That’s right.

Hugo L. Black:

There was enough — enough evidence to get anybody?

William B. Bryant:

That’s right, sir.

Hugo L. Black:

And that they claim they had a right to investigate and interrogate witnesses and they recommend an injustice to him to arraign him or charge him with the murder when they didn’t have the evidence?

William B. Bryant:

That’s right.

Hugo L. Black:

Your issue is drawn on whether that’s a sufficient reasoning.

William B. Bryant:

Well, I don’t think there’s any reason, if Your Honor please.

And when the — when —

Hugo L. Black:

But I mean that that’s the argument between —

William B. Bryant:

That’s the argument of the Government.

Hugo L. Black:

No, I do not read in the arguments and in the brief of the Government, any challenge to the fact.

William B. Bryant:

No, no.

Hugo L. Black:

But he could have been taken to a commissioner much earlier?

William B. Bryant:

They — they are saying this that the reasons that they didn’t take him were logical reasons and made the delay necessary.

I say to Your Honor that the only necessary delay is the delay in which the police are not in the position of choosing.

Felix Frankfurter:

What you’re saying is that if there is cause for arrest, there must some cause for arrest and there is the question of — is that sufficient cause for detention?

William B. Bryant:

That’s right, sir.

Felix Frankfurter:

And soon as the — there is cause for arrest, to justify the arrest, he should be brought before a magistrate and then the Government could say, “Your Honor, we want this witness at all events detained until we can ascertain if anybody is guilty of a crime.”

At least sufficient evidence to prosecute him and further whether there is sufficient evidence to — to prosecute these fellows —

William B. Bryant:

We ask the —

Felix Frankfurter:

— and therefore, we want him detained.

But you were saying, the essence of the McNabb rule is that you can’t hold him until you find out whether you’ve got enough on the fellow.

That’s your position.

William B. Bryant:

Well — well, I say that that’s police’s position.

That’s not mine —

Felix Frankfurter:

Well, I’m saying that you say you reject — you — you challenge that.

That’s right, I challenge that.

That’s the whole point.

William B. Bryant:

That’s right, sir.

Felix Frankfurter:

That you can’t just arrest a fellow with sufficient expectation or suspicion or — or feeling, knowledge, probable cause to arrest him and then keep him there until you get out of him what you want and make out a case.

That’s your case, isn’t it?

William B. Bryant:

That’s right, Your Honor.

Earl Warren:

We’ll recess now.