(dissenting).
The victims of the robbery, which was committed April 11, 1959, were unable to identify the robbers, who were masked and appeared to be young men. In connection with another matter a young man named Coley was arrested the late afternoon of April 12, 1959. A newspaper clipping in his possession gave an account of the robbery. On being questioned about the clipping he said he had been informed by a brother of appellant Carter that Carter and Carter’s cousin, appellant Goldsmith, had committed the robbery. Appellants were arrested April 13,1959, at about 12:30 p. m. They were taken before a committing magistrate about five o’clock the same afternoon, after a written confession had been obtained from each of them. The confessions resulted from intermittent interrogation at police headquarters conducted by officers of the robbery squad. I disregard the claim by appellants of police brutality in obtaining the confessions. Nevertheless the trial judge I think properly held that any statements given before the arraignments were inadmissible under Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356. They were secured while appellants were detained in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, which provides that the arresting officer,
“shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. * * * ”
The following explanation of this Rule by the Supreme Court in Mallory is peculiarly applicable to the facts of the present case :
“The police may not arrest upon mere suspicion but only on ‘probable cause.’ The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be ‘booked’ by the police. But he is not to be taken to police *346headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.”
354 U.S. 449, 454, 77 S.Ct. 1356, 1359. It is quite apparent, and the officers do not deny, that appellants were taken to police headquarters to carry out a process of inquiry to support the arrests and ultimately the guilt of appellants. The situation might well be termed a classic illustration of a violation of Rule 5(a). The officers twice left their headquarters where the questioning was being conducted and went to court on other business, each time returning to the questioning. They could just as well have taken appellants along to be arraigned in obedience to the command of Rule 5(a). They delayed doing so until the confessions had been obtained, using the time after the arrests and before the arraignments to obtain no additional information except the confessions.
Our court now holds that the trial court properly admitted the confessions because, after appellants had been arraigned, accompanied by the usual warning given by the committing magistrate, they were confronted with the written confessions and admitted their truth. This transpired less than an hour after the arraignments and when appellants, instead of being committed to the custody of the United States Marshal or his Deputy, were committed to the joint custody of the Deputy Marshal and two members of the Metropolitan Police Department. This occurred under the terms of a written instrument signed by the committing magistrate and stating that appellants were,
“to remain in the custody of these officers and Deputy U. S. Marshal for a period not to exceed three hours, commencing at 6:15 PM and not to exceed until 9:15 PM, for the purpose of obtaining certain pieces of evidence, for the purpose of confronting them with the complainant and for the further purpose of having them re-enact the offense.”
In other words, the appellants were in all substance to be tried then and there. Cf. Spano v. New York, 360 U.S. 315, 324-327, 79 S.Ct. 1202, 3 L.Ed.2d. 1265 (concurring opinions). The admission of the written confessions in these circumstances is inconsistent it seems to me with any acceptable method of administering the criminal law in light of the Mallory rule, or otherwise. While counsel had been appointed just prior to the arraignments — apparently an attorney who happened to be in the courtroom —and while he conferred briefly with appellants, he quickly vanished from the scene. The attorney does not appear to have been even aware of the written confessions or their inadmissible character and he did not accompany the appellants when they were taken away. Though the attorney perhaps did all that might be expected of him in the circumstances, I am unable to ascribe to the fleeting representation which occurred any significance on the question of the admissibility of the confessions. Even were it established that the attorney gave some sort of knowledgeable consent to the continued custody of appellants by the police “for the purpose of obtaining certain pieces of evidence, for the purpose of confronting them with the complainant and for the further purpose of having them re-enact the offense,” followed almost immediately by eliciting from appellants statements that the confessions which had been illegally obtained were true, it would make no difference. Nor, considering realistically the continuity and proximity in time between the confessions and their reaffirmation, can the magistrate’s advice to the defendant concerning his rights be given crucial significance in cleansing the confessions of illegality. I find no case indicating that these facts would do so. On the contrary, the majority decision seems inconsistent with the recent decision of this court in Jackson v. United States, 106 U.S.App. D.C. 396, 273 F.2d 521, 523. There oral admissions made before preliminary hearing were held inadmissible under Mallory. To the Government’s conten*347tion that a written confession signed after judicial caution nevertheless was competent, Mr. Justice Burton, retired, and Circuit Judges Washington and Danaher unanimously replied that the signing of the document “cannot in any way be considered an independent act based upon proper counsel or as occurring after time for deliberate reflection.” In United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654, cited by the majority, six months had intervened to erase the alleged involuntariness of the confession. The case is not comparable to the one before us.1
My brethren point to the strong evidence of guilt other than the written confessions, including appellants’ post-arraignment colloquies with Mrs. Kaplan and Mr. Jones, characterized by the majority opinion as “highly incriminating.” I would have no problem had appellants been convicted on the admissible evidence. But when evidence obtained in violation of an important rule established by the Supreme Court is pressed upon the jury to obtain a conviction, the error in permitting this is not rendered harmless by the existence of other evidence which supports the conviction. I need not labor the point, for the Supreme Court, as it seems to me, has settled it in a situation sufficiently analogous.
In Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975, the Court said,
“But where, as here, a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the E)ue Process Clause of the Fourteenth Amendment.”
In Spano v. New York, supra, 360 U.S. at page 324, 79 S.Ct. 1202, the Court also said that it had rejected the argument that the introduction of an involuntary confession is immaterial where other evidence establishes guilt or corroborates the confession. And see Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242. While Blackburn and these other cases dealt with involuntary confessions, the seriousness of error in admitting confessions obtained by a violation of Rule 5(a) calls for the same standard to govern reversibility. And see Watson v. United States, 98 U.S.App. D.C. 221, 227, 234 F.2d 42, 48.
In a very literal sense the error is not harmless when it seriously impairs the fairness of a trial. Unless this position is maintained the legislatures and the courts as a practical matter will lose control over the rules of evidence.2 Were it to be established that the admission of damaging evidence, incompetent under established rules, would make no difference should appellate judges later conclude the jury would have reached the same result anyhow, the proper trial of cases would be seriously affected. Jury verdicts based on incompetent evidence intertwined with competent evidence would be upheld if the latter were thought by the judges to show guilt though the jury had not so determined. I think we must maintain the position that error is not harmless when it constitutes a serious infraction of the rules of evidence which have long endured *348under our jurisprudence or which, if of more recent origin, have come to fruition only after long and revealing experience.
I would reverse and remand for new trials.
. Aside from the incompetence of the confessions under the Mallory rule, the procedure subsequent to arraignment under which the prisoners were turned over to the police for the purpose stated, a purpose which was accomplished, probably rendered the confessions inadmissible as well on the ground of involuntariness as matter of law.
. In McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608. 615, 87 L.Ed. 819, the Court said: “But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.”