Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-02-07
LET'S Not Be ShriII

Lei 5 moi De 9nFW
It has been said that there Is real
danger" that Congress twill be panicked
by the shrill cries of policemen and
prosecutors" into adopting bill to upset
the Supreme Courts ruling in the
Mallory case. It would be most unfor-
tunate If Congress were to be panicked
by anyone'S shrill cries. So let's not be
shrill. Let's try to look at the facts.
The essential fact is that Mallory
has been freed although he is a guilty
man. He committed rape, he con-
feSsed, physical evidence corroborating
the confession was produced. Mallory
was duly tried and convicted. The con-
viction was approved by the trial Judge.
It was upheld in a majority opinion by
the Court OF Appeals. It is not correct
to say that the procedures followed by
the police in Mallory's case were clearly
improper under the rule laid down by
the Supreme Court in the McNabb deci-
sion some Is years ago. Able and honest
judges In the trial and appellate courts
did not find that the police had violated
that rule.
In reversing the conviction the SUI
preme Court did not hold that any of
Mallory'S constitutional rights had been
violated. The Fourth, Fifth and Sixth
Amendments were not involved. What
was involved was an Interpretation of
Rule (a) Of the Federal Rules Of Grim
nal Procedure, as approved by Congress.
This distinction is Of some Importance.
II the question were q constitutional
one Congress could not upset" the
courts decision by adopting new legis-
lation. The real question involved a
judicial Interpretation Of the intent of
Congress. What was that intent? If
this Intent has been miSinterpreted,
Congress should enact a law making
clear its real intent, even though this
would upset the Mallory ruling.
Rule (a) requires that an arrested
person be arraigned without unneces-
sary delay" In speaking for the court
In the Mallory case. Justice Frankfurter
said: "The requirement of Rule S (a) is
part OF the procedure devised by Con-
gresS for safeguarding individual rights
WITHOUT hdmperfng (italics Supplied)
effective and intelligent law enforce
ment."
1t is right here, we think, that the
ruling in the Mallory case breaks down.
1t Is hampering effective and intelligent
law enforcement. For the judges, the
prosecutors and the police are finding
In the Mallory opinion far greater re-
strictions on police procedures than they
found in the McNabb or subsequent
decisions. And unless Congress acts
to modify the impact of the rule, law
enforcement is going to be seriously
hampered. That view is shared by many
judges, lawyers and Congressman, not
to mention the policemen and prose-
cutors.
Another important fact is that the
Mallory rule can be modified by Con-
gress to serve the real interests of JUS
tice without creating police state"
or reviving the terrors Of the rack.
Mallorys was not coerced or false
confession. A deputy coroner was called
In to examine him after he had con-
fessed. That official found Mallory to
be In good physical condition. And
Mallory told this doctor that he had not
been struck or threatened and that no
promises had been made to him. No
such allegations Influenced the Supreme
Court opinion. The sole basis for strik-
Ing down the Mallory conviction, re-
sulting in the release Of a dangerous
criminal, seems to have been the delay
IN his arraignment. We do not believe
Congress intended that mere delay in
arraignment, while police investigate
and question an arrested suspect, pro-
vided the delay is not unreasonable,
should serve to invalidate an otherwise
voluntary confession. If this is correct,
Congress, without succumbing to panic,
surely can revise the law to permit rea-.
sonable detention without sacrificing the
rights OF suspects or shooting holes
through the Bill of Rights
There is one more thing which
might be mentioned-the right of the
public to protection from the depreda-
tons of criminals. This is an important
right, but one which sometimes seems
to carry less weight than the rights of
those suspected Of crime. A problem
facing Congress and the courts is that
OF balancing and reconciling both of
these rights-although they may appear
at times to conflict. We doubt that there
necessarily is conflict in the case of
the Mallory ruling. II there is, 1t can
be reconciled And 1t should be recon-
ciled-unleSs Washington is to become
haven for criminals who have Squirmed
thoir NAV 10 froodo,,. &k.rourt. n,n lnraI