James W. Killough v. United States

J. SKELLY WRIGHT, Circuit Judge

(concurring in part and dissenting in part).

I concur in Parts I and II of the court’s excellent opinion. For the reasons stated in Part II of my concurrence 1 in the first Killough case, 114 U.S.App.D.C. 305, 316 , 315 F.2d 241, 252 (1962), I am unable to join in Part III of the court’s opinion and respectfully dissent therefrom. To the reasons given in Part II of the court’s opinion for the exclusion of the confession made to the Prison Classification Intern, I would add the following: The confession was inadmissible because it was the tainted fruit of the illegally obtained confessions extracted by the police from Killough the day before. Killough v. United States, supra, 114 U.S.App.D.C. at 309 , 315 F.2d at 245 . Without the illegally obtained confessions, it is clear beyond cavil that no admissions of any kind would have been made to the Intern by Killough.

As I said in my prior Killough concurrence, 2 the prime reason for excluding confessions obtained in violation of Rule 5(a), F.R.Cr.P., is that illegal detention is so potentially conducive to coercion that any confession procured during that time will be conclusively presumed in *936 voluntary. There is then a rebuttable presumption that all subsequent confessions are tainted by the continuing influence of coercion. Killough v. United States, supra, 114 U.S.App.D.C. at 312-317 , 315 F.2d at 248-253 (concurring opinion). The reason for this rule is obvious. A prisoner, finally broken by persistent police interrogation, has, in his own mind at least, already committed himself to the tender mercies of a sentencing court through a plea of guilty. A prisoner whose mechanisms of resistance are subdued by defeat and the apparent futility of further combat is in no position to exercise any rights he may have with respect to further interrogation by Government functionaries, particularly when he does not even know that an illegally abstracted confession is not admissible against him and that the law, in spite of the confession, still offers him protection against further self-incrimination.

This then was the situation which presented itself to Killough when he was interviewed by the Prison Classification Intern. Having already confessed twice within a period of 24 hours, he was ready to confess some more. As far as Kil-lough knew, the Intern may have been another policeman obtaining still another confession. In the less than 24 hours since his last confessions, he had not been released on bail, nor did he have the benefit of counsel who would have told him that his prior confessions, being illegally obtained, were inadmissible in evidence. Under these circumstances it is obvious, to me at least, that to say that the confession to the Intern was unrelated to, not the result of, or not tainted by the immediately prior illegally obtained confessions is pure fantasy.

It seems to me that this court should clearly state that where a confession is illegally obtained in violation of Rule 5 (a), F.R.Cr.P., subsequent confessions, however or by whom abstracted, are likewise inadmissible unless the Government convincingly demonstrates the absence of connection with the prior illegal confession. In presenting this proof, the following considerations, among others, are most important: (1) Did the defendant have the advice of counsel subsequent to the illegally obtained confession? (2) What was the time interval between the confessions? 3 (3) Was the defendant admitted to bail during that interval ? 4 While, as indicated, these considerations are not exclusive, they certainly provide the primary avenues of inquiry in determining whether the subsequent confession resulted from the illegally obtained one.

Applying these criteria, I would hold that Killough’s confession to the Intern resulted directly from the illegally obtained confessions and that, being the fruit of illegal activity of Government functionaries, it must be excluded from his trial. Otherwise “the courts themselves [become accomplices in willful disobedience of law,” McNabb v. United States, 318 U.S. 332, 345 , 63 S.Ct. 608, 615 , 87 L.Ed. 819 (1943).

. Since the first Killough case the Supreme Court has held, in Fahy v. Connecticut, 375 U.S. 85, 89 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963), that opinion testimony based on evidence illegally obtained is poisonous fruit under the Silverthorne doctrine. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920).

. 114 U.S.App.D.C. at 312-316 , 315 F.2d at 248-252 .

. Compare United States v. Bayer, 331 U.S. 532, 540-541 , 67 S.Ct. 1394 , (1947), in which the Court approved the admission oí a second confession made six months after the first was illegally obtained.

. Compare Wong Sun v. United States, 371 U.S. 471, 491 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), where the Court approved the admission of a second confession made after the defendant had been admitted to bail, the first confession having been made while he was being illegally detained.