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one ' bacut of the public's right te— ' defense of basic’ Constitutions! . Wight ee. The opposing views on the - Mallory decision are presented here in articles written especially . for The Star by Mr. Gasch, United States Attorney for the _ District of Columbia, and Mr. Wiltiams, a leading Washington _ lawyer. . e ‘at the time of arrest that arraign- ment before a commissioner or udge would have had no signif- itcance to him. When he was ober the following morning and hen confronted with the charge gainst him, he admitted his guilt within five minutes. Under these circumstances it does not appear that the Court of Appeals has changed or liberal- Justice Calls fer Action We have had ‘many conferences With the chief of police and his supervisory officiais, We have met with the detective force on three occasions to lecture them on the principles of this decision and to answer as accurately aa possible their questions. Certaln practices formerly considered essential to efficient police work have been abandoned, Legislation which requires warn- ing the individual before ques- tioning by the police but which would authorize the admission of eonfecctane chou ta he upluntare PUL C UE OFF Wa br VLU and trustworthy would be in the interests of justice. It would serve both to safeguard the rights of the accused and prevent the hamper- ing of effective and Intelligent law enforcement. ; RASC ERR TR THE RULE INVOLVED ized the Andrew Mallory doctrine. of the hottest legal ¢ean- wersieg in recent years Was > off iast year when the Sbpreme Court reversed Andree Mafkory rule is bad law, but they have “been repeatedly told that. ory is a bad man ang they . are Violently opposed to any rule. which may block his conviction. Mallory was 19-year-old col- ored boy of limited intelligence who had been charged with a brutal and unwitnessed rape. He was arrested at 2 o'clock on the afternoon of April § 1954, and questioned by the police until he sonfensed to the crime some eight hours later. He was hot taken before a United States Commis- sioner until the next morning. The Supreme Court reversed his con- viction, holding that this confes- sion could not be used against him ‘because it had been obtained dur- ing an unlawful delay between ar- rest and arraignment. The Mallory case was a unani- .. Maltory "a Tape conviction. Most: .. ‘~peopie are not sure whether the — mous decision by what I believe . to be the gteatest Supreme Court of our generation, It is significant that four of the Justices who joined in this opinion are former prosecutors. It is also significant that the present Attorney General of the United States says that he is not at all convinced that the de- cision needs to be changed by legislation. Based on Rule Under the law no other decision was rationally possible. Rule §& of the Federal Rules of Criminal Procedure provides that the police shall take an arrested person “without unnecessary ‘ delay before the nearest available com- missioner" or other committing magistrate, who must inform. the accused of the complaint against him, of his right to retain ceunsel, and of his right to a preliminary examination. . He must also inform the ac- [eusea that he is not required to Foe The Mallory decision hinged on the application. of, Rule 5 (a) of the Federal Rules of Criminal Procedure, This is the rule: 5 APPEARANCE BEFORE THE COMMIS- (@) SIONER. An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any nearb fenses against the Iaw of the United States. aUSSSD SS Da seestoe sesh wes SSeS SAL wee Sh When a person arrested without a warrant is brought befote a commissioner or other officer, a complaint shall be | fled forthwith. — officer empowered to commit persons charged with of- . Tete £ ia tee loam af Bic 9 45 Wic sw in, the is Tf a police officer ficuts ita ments, he is flouting the law af. / e land. It has long been settled - & t Federal officers use the feults of thelr own wrongdoings ’ to secure convictions. Evidence se- , cured by physical coercion, un- lawful search and sefzure, and In the celebrated McNabb case, decided in 1943, the defendants. were questioned for an inordinate length of time before they were taken before d commissioner and informed of their rights. The Supreme Court reversed their can- victions on the ground that con- fessions secured during such un- lawful detention could not be used against them. The Mallory rule, therefore, is nothing more than the application of a 15-year-vid “principle in a new case. Faulty | naie 7 maw wy The principal argument ad- vanced against\the Mallory rule ls . -aetualiy, the most cogent evidence of the necessity for it. The police | and the prosecutors point out that the commissioner must release an arrested person unless there is “probable cause” to believe that he has committed a crime. They then urge that they are often un- able to show “probable cause” unt they have secured a confes- sion. This logic has one fatal flaw. ’ Under Rule 4 of the Federal Rules — of Criminal Procedure, a police of- ficer cannot secure an arrest War- rant unless there is “probable cause” to believe that the arrested person has committed a crime. This requirement is dictated by the Fourth Amendment, which provides that an arrest warrant shall not issue except upon “prob- able cause.” The same requires ment of “probable cause” has al- ways applied to arrests without a warrant, If an arrest is lawful under Rule 4 and the Fourth Amendment, therefore, there is al- ready “probable cause” and no confession is necessary in order to. hold the accused for action by the, grand jury. “rk a — If, on the-other hand, there fh no “probable cause” at the time” of the arrest, the accused snould not have been arrested to beg. with, and he should be prompt] taken before @ commissioner an released as the law requires.