Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-02-10
'Mockery of Justice


Mockery of Justice
District Court Judge Alexander
Holtzoff has written very interesting
opinion in which he holds that the
Supreme Courts decision in the NAL
lory case does not invalidate confessions
obtained by the police in recent rob-
berry. Actually, Judge Holtzoff deals with
three questions which merit separate
consideration.
The Mallory Rule
In Judge Holtzoff's belief, the "ac-
tual rule" announced by the Supreme
Court in the Mallory case is that delay
by the police of 7la hours between arrest
and arraignment is too long, and there
fore violates the requirement that sus-
poets be arraigned without unnecessary
delay" He argues that other statements
in the opinion written by Justice Frank
furter, while entitled to respect, are
not necessarily controlling in subsequent
cases.
In the robbery case with which
Judge Holtzoff was dealing one suspect
voluntarily confessed within 10 to is
minutes after being taken to police
headquarters. The second defendant at
first denied his guilt. He was ques-
toned by police and confronted with his
codefendant, who had already confessed.
Within some 80 to As minutes, the Sec
ond man also confessed. Both men were
arraigned within 70 to IS minutes after
the police took custody Of them.
Judge Holtzoff permitted the con-
LESSONS to be used at the trial, contend
ing that the "delay" in arraignment was
not Of such duration as to require their
exclusion. In the Mallory opinion, JUS
tice Frankfurter said: 1.-THE arrested
person may, of course, be booked by the
police But he is not to be taken to
police headquarters in order to carry out
a process Of inquiry that lends itself,
even If not so designed, to eliciting dam
aging statements to support the arrest
and ultimately his guilt" He also said
circumstances might justify brief de-
lay, "but the delay must not be Of a
nature to give opportunity for the ex-
traction Of confession"
Perhaps these statements in the
Mallory opinion were not controlling in
Judge Holtzoff's robbery case. If so, it
follows that some questioning by police,
even though it results in a confession,
is permissible. An appeal from the rob-
berry conviction may decide the matter.
Invalidating Confessions
Judge Holtzoff was member and
the secretary Of the Advisory Committee
appointed by the Supreme Court to draft
the new Federal Rules of Criminal Pro-
cedure. These included Rule 5 (a) re-
quiring arraignment without unneces-
sary delay. The interesting point which
Judge Holtzoff discloses is that there
was proposal to adopt an additional
rule providing for the exclusion of any
confession obtained in violation Of Rule
(a). This was rejected by the Advisory
Committee on the grounds that it was
too drastic and would be unfair to the
public. BY process of Interpretation,
the Supreme Court now has done what
its Advisory Committee was unwilling
to do.
Philosophy of the Law
Finally, Judge Holtzoff discussed the
philosophy Of the criminal law and its
obligation to protect the public. He
quoted the late Supreme Court Justice
Cardozo as saying: Justice, though due
to the accused, is due to the accuser also.
The concept Of fairness must not be
strained till 1t is narrowed to a filament.
We are to keep the balance true" He
quoted the eminent Judge Learned Hand
to this effect: q. Every member of the
community has constitutional right to
be protected in the safety of his per-
son and his property. The victim of
the crime must not become forgotten
man. His rights are much greater than
those Of the criminal. When the GRIM
inal law ceases to protect the public, it
has failed Of its purpose" Speaking for
himself, Judge Holtzoff said one some
times get feeling that criminal trials
are conducted in remote artificial world
that may be depicted by Dean Swift or
Lewis Carroll. ut is mockery of JUS
tice," he added, "to permit trials to be
detected to point where the question
Of the guilt or innocence of the defend
ant is almost forgotten"
These are pertinent, even eloquent,
observations. They should be Of con-
siderable interest to Congress as it con-
siders what, If anything, should be done
to modify the Mallory rule.
Worth StockDiIino?
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