(dissenting).
When this case was here before, Jackson v. United States, 106 U.S.App.D.C. 396, 273 F.2d 521, the court, relying upon Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, and other decisions, held that the conviction must be reversed because of error of the District Court in admitting in evidence a written confession which this court found had been obtained by a police officer as a result of illegal detention, that is, detention in violation of Fed.R. Crim.P. 5(a).
Appellant had been arrested at 5 A.M. on the morning of December 14, 1958, and was immediately taken to Police Headquarters. He was questioned shortly thereafter and again for some length of time in the afternoon until he made certain admissions of guilt around 3 P.M. At this point, appellant was accorded a preliminary hearing in the Municipal Court, and was then returned to headquarters to sign a typewritten statement which contained the admissions previously made. To the contention that the signature of appellant had made competent the otherwise illegally obtained admissions because appellant had signed after having received the prescribed preliminary hearing and advice as to his rights, this court stated that the position was “untenable.” As was further said:
“Jackson’s 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. [5] Rather, the signature was obtained as a result of a purposeful process of inquiry undertaken during a period of unlawful detention. Therefore, the challenged confession should have been excluded.” 1
The case was retried in the District Court and the same written confession was again admitted in evidence. The new evidence upon the basis of which this ruling was made consisted of testimony of the officer, who on December 14, 1958, had obtained the written confession, that on December 16, the second day following his first appearance before *681the magistrate, Jackson reaffirmed the truth of the confession in an interview with the officer at the jail. Pursuant to a request from the Buffalo, New York, Police Department the officer inquired at this interview about a robbery in Buffalo in an effort to find out from Jackson whether he was involved. Jackson’s counsel was not present. With respect to our case the following excerpt from the officer’s testimony sufficiently shows what occurred:
“Q. What did you [the officer] do with regard to 13 ? [13 is the exhibit number of the written confession.] A. I read that statement in its entirety to Lester Lorenzo Jackson.
“Q. Other than reading the statement to him, sir, did you question him or take any other action regarding this statement? A. I did, yes, sir.
“Q. What was that ? A. I asked him if the initials on the bottom of the first page, ‘L.J.,’ were his initials. He stated that they were. I asked him if two corrections that ’ were made on the first page of that statement were made at his direction and instruction, and he said they were. I asked him if the name, ‘Lester L. Jackson,’ on the second page of that statement was his signature, and he stated that it was.
“Q. Did he say, sir, anything to you as to whether or not the facts embodied in Government Exhibit 13 for identification were true or not?
A. He stated they were true.
“Mr. Smithson: Your Honor, the Government offers 13 under the basis heretofore—
“Mr. Bryant: Well, of course I object.
“The Court: The objection is overruled. It may be received in evidence.
“Mr. Smithson: Your Honor, may I then read this ?
“The Court: You may.”
In my view this did not transform the invalidly obtained and inadmissible confession into a validly obtained and admissible one. It is quite clear the written statement — the confession this court held to be inadmissible — was used as the leverage to obtain its affirmation two days after it was signed. The acknowledgment of the signature then, and of the truth of its contents, cannot be said to have been independent of the illegal detention which had rendered the confession inadmissible. The statement previously signed, the inadmissible character of which could not have been known to Jackson when the interview at the jail occurred, was definitely and overtly used at that interview to obtain its acknowledgment.
The admission in evidence of the written confession which was inadmissible when made, by obtaining its acknowledgment at the jail two days later, seems to me to nullify in this case the McNabb-Upshaw-Mallory exclusionary rule of evidence. This is the second case to reach this court in recent months in which a comparable procedure has come before us, see Goldsmith v. United States, 107 U.S. App.D.C. 305, 277 F.2d 335, certiorari denied, Carter v. United States, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 168, indicative of a pattern of conduct which, should we continue to approve it, would go far to destroy the substance of the rule which excludes a confession obtained during a violation by the arresting officials of the law as embodied in Rule 5(a).
My conclusion is not affected by the circumstances now to be referred to, but the majority opinion mentions several times, and thus emphasizes, that on Sunday, which was the 14th, Judge Fickling, advised Jackson of his rights. This advice, however, was after the oral admissions had been made. This being so, the fact that the advice preceded the written confession did not preclude this court in its previous decision from holding the-written confession inadmissible, and P do not understand that the majority repudiates the earlier decision.
*682As to the reference to advice of counsel on Monday, and the two references to the hearing on Monday before Judge Smith, the record as to what occurred in this regard is as follows:
“The Court: The complaint indicates that the defendant has been advised of his rights, and I assume you have advised him too, Mr. Gray.
“Mr. Bryant: Yes, your Honor. I believe the complaint indicated he has been advised.
“The Court: Yes.”
No advice as to his rights appears to have been given to Jackson by Judge Smith and it does not appear when or in what terms counsel advised him. We do know, however, that Jackson did not have counsel and was given no advice as to his rights until after the oral admissions which led to the written confession, and that he did not have counsel until after the written confession was obtained.
I would reverse for a new trial.
. 106 U.S.App.D.C. at page 398, 273 F.2d at page 523.