Evening star., 1962-10-08
Shocking Is the Word

worked adjective But there is no ex-
aggeration in applying it to last weeks
majority ruling by the United States
Court of Appeals in the case OF James
w. Killough. This is not only our view.
Listen to Chief Judge Wilbur Miller:
'In our concern for criminals, we should
not forget that nice people have some
rights too 1t is shocking to me that
upon such tortured grounds the court
reverses the conviction of this man who
has confessed to a bizarre and brutal
murder"
Listen to Judge Bastian: "In my
opinion, the court today has struck a
grievouS blow at the administration of
criminal justice"
Listen to Judge Danaher: IT am not
persuaded that the efforts of society
to protect itself should be rendered
futile after this accused, fully advised
of his rights, voluntarily admitted that
he, in secret, had perpetrated this grue-
some crime"
And listen to Judge Burger: "It
1.-THE majority rulingl goes far beyond
the statute it purports to interpret and
far beyond any prior opinion OF this
court or the Supreme Court. But
if Congress permits judges to distort
by interpretation and to rewrite its
statutes, it should not be heard to
complain"
These, of course, are views Of the
four dissenting judges. The majority
opinion was written by Judge Fahy,
with Judges Edgerton, Washington and
Bazelon joining him. Judge Wright,
newly appointed, concurred in a separate
opinion which went somewhat farther
than Judge Fahy.
The majority opinion CLOSED over
the facts. But these are made abun-
dainty clear in the diSSentS by Judges
Burger and Danaher.
Essentially, the facts are that Kill
Tough Strangled his wife and buried her
body at the city dump. He made two
confessions. The first was inadmiSSible
under the Mallory rule, which calls for
arraignment of an arrested person
without unnecessary delay. The second
confession, made orally at the District
Jail, was also struck down by the ma
jority, their view apparently being that
it was hopelessly tainted by the prior
inadmissible confession.
We do no think this view Is sup
ported by the undisputed facts. After
the illegal confession, Killough was ar
raigned before the United States Com
missioner, advised Of his right to counsel
and to remain silent, and warned that
any statement he made might be used
against him. Killough had ample op-
portunity to retain counsel and, prior
to the second confession, rejected an
offer by one lawyer to represent him.
Some 20 hours after the arraign-
ment, a police lieutenant went to see
Killough at the jail, where he was being
held under continuance Of his hearing
before the commissioner. The officer
wanted to see Killough about the dis
position of his wife's body and some
clothing. Kil1ough, although he could
have refused, consented to the inter-
view, and could have terminated it at
any time Instead, he freely, fully and
voluntarily repeated his confession
after he had been arraigned, informed
of his rights and had opportunity to
retain counsel.
Yet the court majority says this
is an illegal confession, obtained in
violation of the Mallory rule. Small
wonder that Chief Judge Miller found it
shocking and that Judge Burger called
it one of the most significant and far
reaching rulings in many years.
One of the majority opinions pays
lip service to the proposition that the
court is not holding that Killough must
be '1et free," immune from future
prosecution for his crime. But this is
blind justice at its blindest. We have
no doubt that the United States attorney
will try again to convict Killough. But
the fact is that, without the confession,
no evidence remains upon which he can
be convicted. If this ruling stands,
Killough, appellate court disclaimers to
the contrary, almost surely will be "let
free"
Congress could remedy the situation
by specifying that confessions, If other
wise valid, shall not be inadmisSible
merely because Of delay in arraign-
ment. This would modify the Mallory
rule, and Judge Burger implicitly urged
Congress, to modify it. After fighting
this battle for some years, however, we
are afraid that the situation in Wash
ington, as bad as it is, will have to get
worse before Congress does anything
to make it better.