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Many implications of the Supreme Court's decisions have yet to be resolved. The Gideon ruling raised an infinitely complex question: At what precise moment after his arrest is a suspect entitled to counsel? For federal defendants, this issue has been solved. In Mallory v. U.S. (1957), the Supreme Court emphasized that anyone under federal arrest must be taken "without unnecessary delay" before a U.S. commissioner for instruction on his rights to silence and counsel; admissions obtained during an excessive delay must be excluded. The 1964 Criminal Justice Act requires as well that all indigents must be assigned lawyers on appearing before the commissioner.
While such safeguards seem like simple justice, in one case at least they have also led to impassioned criticism of the court. As a result of Mallory, a Washington, D.C., mailman named James Killough was released from prison even though he had confessed on three occasions to strangling his wife and tossing her body on a dump "like a piece of garbage." An appellate court excluded all three confessions because the police had broken the law by grilling the suspect for 15 hours before taking him before a U.S. commissioner. Forced to free Killough for lack of other evidence, U.S. District Judge George L. Hart Jr. bitterly protested: "We know the man is guilty, but we sit here blind, deaf and dumb, and we can't admit we know."
Search for Rational Standards
Despite the furor over Mallory, the Supreme Court last year tackled the interrogation problem at the state level with the now-famous decision in Escobedo v. Illinois. In its most controversial action yet, the court voided Chicago Laborer Danny Escobedo's murder confession because it was made after the police had refused to let him see his lawyer, who was actually waiting in the station house at the time. Though vaguely worded, the court's ruling indicated that the right to counsel begins when police start grilling a prime suspect—a plainly impractical proposition, declared dissenting Justice Byron White "unless police cars are equipped with public defenders."
Because 75% to 80% of all convictions for serious crimes are based on presumably voluntary confessions, police and prosecutors have been in a tailspin ever since. Does Escobedo apply only to precisely similar situations? Or does it mean that police failure to advise a suspect of his rights to counsel and to silence automatically invalidates his confession? If interrogation requires the physical presence of a lawyer, will he not obviously advise his client to say nothing? Worried police officers now fear that as a result even valid confessions will be virtually eliminated. The Supreme Court has let 13 months pass without clarifying Escobedo. Presumably it is waiting to see whether its decision has had the intended effect of forcing police to do more investigating than interrogating. Despite lawmen's bitter criticism of Escobedo, it is a powerful reminder that U.S. judicial processes are theoretically based on accusation, not inquisition.