Evening star., 1943-11-30

Society Burglar Case
Goes Before Supreme
Court for Review
A District of Columbia case today
was before the Supreme Court for
review as the Government sought
more light on the now celebrated
McNabb decision, which has COM
plicated Federal criminal prosecu-
tions all over the country by intro
ducing an element of uncertainty
as to admissibility in evidence of
confessions obtained from de-
PENDANTS whose arraignment is
delayed.
Petitioning the Supreme Court
yesterday for a review in the case
of James P. Mitchell, so-called
Washington society burglar" whose
conviction was set aside by the
Court of Appeals because he had
been held eight days without ar
raignment, the Justice Department
said that the appellate decision,
which was based on the Supreme
Court ruling in the McNabb case
last March, amounts either to
holding that a confession lawfully
obtained may be invalidated by sub
Sequent unlawful action on the part
of the arresting officers or to hold
ing that no confession Is admissible
if secured during the interval be-
tween arrest and arraignment. how
ever short and within the bounds
of legality that interval may be-"
Conflict Of Understanding.
The departments petition, filed
by Solicitor General Charles Fahy,
said it did not believe the Supreme
Court so intended its ruling to be
interpreted. but that the Appeals
Court opinion shows the existence
of conflict of understanding as to
the scope of that CMcNabb) rule re-
quiring resolution by this court"
Meanwhile, House Judiciary
Subcommittee was planning to re-
sumo hearings on a bill by Rep
resentative Hobbs, Democrat, OF
Alabama which would eliminate the
time of of-arraignment element as
factor to be considered in deter
mining the admissibility of evidence.
Another session of the subcommit-
tee headed by Representative
Weaver, Democrat, OF North Caro-
lima is scheduled tentatively for to-
morrow and it is possible that At
torney General Biddle will be
witness. At any rate, Mr. Biddle
eventually will give his views on the
entire matter to the subcommittee
History Of Decision.
In the controversial decision, the
Supreme Court, with Justice Reed
alone dissenting, reversed the con-
viction Of three youthful Tennessee
mountaineers named McNabb, ac-
cused of participation in the killing
of revenue agent. The youths
were said to have confessed while
in custody of arresting officers for
varying periods up to 48 hours, and
the court ruled that they had not
been arraigned with the reason
able promptness" required by law,
and that their confessions could
not be used.
Following the McNabb rule, the
Court of Appeals here said that
Mitchell had not been arraigned
Immediately and without delay" as
prescribed by the District code. Sew
eral other cases since have been
thrown out of the local courts on
the same ground.
Delay in Arraignment.
Mitchell was apprehended early
in the evening of October IL, when
property stolen from the home of
Harry G.. Meem was traced to him,
and, according to the police, he i'm
mediately admitted that burglary
and one other, and directed police
to his home, where the loot Of more
than 80 other thefts was discov-
cred. He was subsequently held
eight days "for investigation" while
the other burglaries were investi-
gated, then was arraigned.
An arraignment early on the
morning after his arrest, the JUS
tice Department petition said,
would have constituted, we believe,
a sufficiently prompt arraignment.
Admittedly, the subsequent deten-
ton of respondent for a period of
seven days without arraignment
was unlawful. But it was not dur
ing that period that the confess
sions were given. The subsequent
delay in arraignment could not
possibly have had a causative rela-
ton to the confession, and, there
fore, all basis for resumption of
such a relationship as applied to
the McNabb case, where the con-
LESSONS were given both in response
to interrogation and during the
period of unlawful detention, is
lacking here"
Two Questions Posed.
The Mitchell decision OF the ap-
pellate court, the department says,
poses two major questions involving
Interpretation Of the McNabb rul-
ing:
First, whether subsequent delay
in arraignment precludes the admis-
sion of a confession made while
detention without arraignment was
proper and which was not in re-
sponse to interrogation, and to which
the delay in arraignment bore no
causative relationship" and
Second, whether the ruling would
permit the use in evidence of prop
erty secured without a search war
rant, but pursuant to the consent of
the defendant, given while in GUS
tody.
The department explained in this
connection that cit would appear