(concurring):
I concur in Judge Leventhal’s opinion. In my opinion the dissent fails to recognize the extent to which the questioned colloquy between the clerk and the juror might have been caused by the difficulty of the juror in hearing or understanding the clerk. The confusion at that time could have been caused by tone, enunciation, lack of volume or some other factor. The record reflects the judge as stating: “I don’t think she can hear you, because I can’t hear.” Thus presented were factors that were within the peculiar province of the trial judge to note, judge and act upon. I consider that he properly discharged this responsibility.
The dissent also comments on the fact that at the outset of the jury poll one juror stated three times that Coleman was not guilty. I feel consideration is also required to be given to the fact that the same juror immediately thereafter responded five times that Coleman was guilty or that the punishment was prison ; since all of said replies indicate that the juror considered that defendant guilty.
J. SKELLY WRIGHT, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINS.ON, III, join (dissenting in part and concurring in part):
I
In Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the Supreme Court, under its supervisory powers, implemented Rule 5(a) of the Federal Rules of Criminal Procedure by holding that confessions obtained by police interrogation prior to presentment of the defendant before a magistrate *748could not be admitted into evidence at trial. The Court stated that after arrest the defendant must be arraigned “as quickly as possible.” 354 U.S. at 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The concerns behind the Mallory rule were most recently stated by this court in Adams v. United States, 130 U.S.App.D.C. 203, 208, 399 F.2d 574, 579 (1968):
“* * * [W]e emphasize that what the defendant acquires by that presentment is, first, judicial advice of his rights, including the provision of counsel; and, second, the opportunity to regain his freedom forthwith by persuading the magistrate that there is no probable cause to hold him for the crime for which he was arrested. These are important legal rights which Rule 5(a) was designed to secure — so important, indeed, that the Supreme Court has ruled that the exclusion of otherwise admissible evidence is not too high a price to pay to assure their availability to all persons.”
(Emphasis in original.)
Prior to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), this court had not applied the Mallory rule to a lineup situation. Several cases denied such a claim.1 Instead the court focused on police interrogation as the object of the Mallory exclusionary rule. Still, the practice of unnecessarily delaying presentment of a defendant while lineup evidence is collected did not escape unfavorable comment. For example, in Payne v. United States, 111 U.S.App.D.C. 94, 98, 294 F.2d 723, 727, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961), we said:
“ * * * [W] e do not condone lengthy detention for the purpose of rounding up complaining witnesses so that they may view a suspect * *
This court repeated its disapproval in Gatlin v. United States, 117 U.S.App. D.C. 123, 128 n. 9, 326 F.2d 666, 671 n. 9 (1963), stating: “We thought we had made it clear in Payne” that delayed presentment in order to hold a lineup is not condoned.
In the recent decision in Adams v. United States, swpra, a post Wade-Gilbert-Stovall case, the Mallory rule was applied to a lineup situation. There Mallory was held applicable to a lineup identification made while the defendant was in custody for one charge and the lineup was held for, and used at trial on, another charge, for which no lawful arrest had been made.
After they arrest a person, the police, of course, have a right to continue collecting evidence against him. Nothing in the Mallory rationale requires that the investigative process come to a stop once an arrest is made. I view the purpose of the Mallory rule, however, as requiring the police promptly to present the defendant to a magistrate so he can be judicially advised of his rights, including the right to counsel and, if requested, be provided with counsel to protect him during any “critical” stage in the prosecution against him.
The teaching of United States v. Wade, supra, is that the lineup is just such a stage. In holding the right to counsel applicable to lineups the Supreme Court stated:
“ * * * [T] he confrontation compelled by the State between the accused *749and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. * * *»
388 U.S. at 228, 87 S.Ct. at 1933, 18 L.Ed. 2d 1149. (Footnote omitted.) The Court concluded:
“Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution * * * * * *»
388 U.S. at 236-237, 87 S.Ct. at 1937, 18 L.Ed.2d 1149. (Footnote omitted.)
The view that Mallory applies to lineups is not novel doctrine. It was taken by Judge Burger (now Chief Justice Burger) in his concurrence in Adams, swpra. Judge Burger, the author of four of the five opinions in which, prior to Wade, Mallory was not applied to lineups,2 stated:
“ * * * The reason our earlier holdings do not apply is that the Supreme Court’s decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), has made the underlying rationale of those cases irrelevant. * * * It was natural for the cases following Mallory to concentrate on the exclusion of utterances, but not other forms of evidence. But Wade has changed this. Now that the right to counsel is an integral part of the lineup procedure, the warnings that are given at presentment and the opportunity to have counsel appointed are highly relevant to the lineup situation. See Fed.R.Crim.P. 5(b); 18 U.S.C. § 3006A(b) (1964). Since the Mallory rule was a response to the protections afforded by prompt presentment, it is appropriately applied to the lineup situation in the wake of Wade.”3
130 U.S.App.D.C. at 209, 399 F.2d at 580.
In the present case, Williams was arrested at 10:00 P.M. on June 21, 1965. The following morning, around 9:30, he was placed in the lineup at which Mrs. Neal identified him. Immediately following the lineup, and some 12 hours after his arrest, he was presented to a magistrate. At the trial Mrs. Neal identified Williams in court, and testified on direct examination to having identified him at the lineup. There were no exigent circumstances which required that Williams be immediately shown to witnesses prior to presenting him. Compare Stovall v. Denno, supra. Nor does any other reason appear why he should have been detained and subjected to a lineup before *750his right to counsel was implemented by the United States Commissioner as required by law. 18 U.S.C. § 3006A(b) (1964); 2 D.C.Code § 2202 (1967). Therefore, in my judgment, it was error to allow Mrs. Neal’s testimony about the lineup.
II
A jury can return a verdict of guilty in a criminal case only if that verdict is freely given and unanimous. Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948). Thus courts are alert to situations where there is a likelihood that one or more jurors has been coerced or confused in rendering his verdict.
There are two main situations where juror coercion has been a sufficiently real possibility that new trials have been required. The first is where the judge, in his communications to the jury, is unduly coercive. The cases usually arise in the context of the Alien charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) — the jury, having been unable to agree, is sent back by the judge for further deliberations. If the judge’s instruction in sending the jury back had a “possibly coercive effect” the conviction is reversed. Williams v. United States, 119 U.S.App.D.C. 190, 193, 338 F.2d 530, 533 (1964). See Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); Green v. United States, 5 Cir., 309 F.2d 852 (1962).
The second situation, often entwined with the first, arises when a jury returns unable to agree, and the numerical division of the jury is revealed in court. Sending the jury back under such circumstances is coercive. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926); Williams v. United States, supra. In Brasfield ,the Supreme Court, describing a procedure whereby the trial judge inquired of the jury its numerical division before sending it back, noted:
“ * * * Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. * * * ”
272 U.S. at 450, 47 S.Ct. at 135, 71 L.Ed. 345. Further, even where the division is inadvertently revealed to the court by the foreman, the coercion is the same. Mul-lin v. United States, 123 U.S.App.D.C. 29, 356 F.2d 368 (1966).
A salutary device for insuring that a jury’s verdict is freely given is the jury poll. The object of the poll
“is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented. [Citing cases.] * * * ”
Miranda v. United States, 1 Cir., 255 F.2d 9, 17 (1958). The right to a jury poll is stated in Rule 31(d), Fed.R.Crim.P. Refusal to allow a poll when timely requested is a ground for a new trial. Miranda v. United States, supra; Mackett v. United States, 7 Cir., 90 F.2d 462 (1937). In some cases a poll can clear up apparent confusion on the part of the jury. Slocum v. United States, 8 Cir., 325 F.2d 465 (1965).
Unfortunately, however, sometimes the polling procedure itself creates a coercive or confusing situation. Thus in Bruce v. Chestnut Farms-Chevy Chase Dairy, 75 U.S.App.D.C. 192, 126 F.2d 224 (1942), a civil ease, the jury returned a verdict for the defendant. When polled, two jurors stated their verdicts to be for the plaintiff. The court repeatedly *751questioned them, and eventually they declared their verdict to be for the defendant. The judge then accepted the verdict. The Court of Appeals held that accepting the verdict was error because there was strong indication that the jury was not unanimous and the repeated efforts of the judge to obtain a unanimous verdict had a coercive effect.
A recent case illustrating this court’s concern over potentially prejudicial jury polls is Jackson v. United States, 128 U.S. App.D.C. 214, 386 F.2d 641 (1967). There in response to a jury poll one juror replied, “I went along with the majority-guilty.” The conviction in that case was affirmed because no objection was made at the time of the poll. However, in upholding the conviction the court warned of the necessity for the trial judge to “exhaust the solicitude appropriate to a situation of this kind.” 128 U.S.App.D.C. at 216, 386 F.2d at 643. As to the need for certainty in a juror’s vote, this court has stated:
“* * * [E]ach juror’s response to the poll must be sufficiently complete as to ‘be unmistakable in meaning and clearly indicate his assent to the verdict announced by the foreman,’ thus ‘eliminating any uncertainty.’ ”
Frady v. United States, 121 U.S.App.D.C. 78, 83 n. 7, 348 F.2d 84, 89 n. 7 (en banc), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965).
With this background, I set out fully the events of the jury poll in this case. I think that even a reading of the “cold print” makes it apparent that a most unfortunate, confused and potentially coercive situation took place in the trial of this capital case.
The foreman announced the jury’s verdict and the defense requested that the jury be polled. When the first juror, Mrs. Lillian Ansher, was polled as to Williams she replied that he was guilty on Count 1, the murder count; asked “What is the punishment ?” she replied, “Death — no. Life.” As the next juror was polled, Mrs. Ansher interjected the comment, “Life.” The Williams poll was then completed.
After the Williams poll the jury was polled as to Coleman, Mrs. Ansher again being polled first. The following colloquy took place:
MR. NOONE [Defense Counsel]: May I ask that the jury be polled as to Mr. Coleman?
THE COURT: Let the jury be polled as to Gerald Coleman.
THE DEPUTY CLERK: Lillian Ansher, what say you as to the defendant Gerald Coleman on Count 1 ?
MRS. ANSHER: Innocent.
THE DEPUTY CLERK: I didn’t hear what you said. Mrs. Lillian An-sher — .
MRS. ANSHER: Not guilty.
THE DEPUTY CLERK: What was that?
MRS. ANSHER: Not guilty.
THE COURT: Repeat the question to the juror.
THE DEPUTY CLERK: Mrs. An-sher, what say you as to the defendant Gerald Coleman on Count 1?
MRS. ANSHER: Guilty.
THE DEPUTY CLERK: What is the recommendation for punishment?
MRS. ANSHER: Prison.
THE DEPUTY CLERK: What was that?
THE COURT: Did you hear the question?
MRS. ANSHER: No.
THE COURT: Repeat the question, Mr. Clerk.
THE DEPUTY CLERK: What is your recommendation for punishment as to Gerald Coleman on Count 1?
MRS. ANSHER: Guilty.
*752THE DEPUTY CLERK: I say what is your recommendation for punishment?
******
MRS. ANSHER: I am confused right now.
******
THE DEPUTY CLERK: Mrs. An-sher, what is your recommendation—
THE COURT: I don’t think she can hear you, because I can’t hear.
THE DEPUTY CLERK: Mrs. An-sher, Lillian Ansher, what is your recommendation for punishment as to the defendant Gerald Coleman on Count 1 ?
MRS. ANSHER: To be convicted, I guess.
THE COURT: I can’t hear you.
THE DEPUTY MARSHAL: Can you understand the Clerk?
MRS. ANSHER: Yes, I can.
THE DEPUTY CLERK: What is your recommendation for punishment of Gerald Coleman on Count 1 ?
MRS. ANSHER: Guilty.
THE COURT: You may step back. (Juror No. 1 returns to place in line of jurors.)
******
THE COURT: Continue the poll.
THE DEPUTY CLERK: Richard B. Sladen—
THE COURT: No. With respect to Count 3 [robbery count].
THE DEPUTY CLERK: Mrs. Lillian Ansher, what say you as to the defendant Gerald Coleman on Count 3 ?
MRS. ANSHER: Robbery, and killing.
(Emphasis added.)
The other jurors were then polled. The defense moved for a mistrial on the ground that Mrs. Ansher was incompetent. The court sent the jury back to the jury room and told them to “determine what is in fact their unanimous verdict * * * » Twenty-two minutes later the jury returned and the foreman announced a unanimous verdict for each defendant, Williams and Coleman being found guilty on both the murder and robbery counts. The defense did not request a further poll and none was conducted. The court accepted the verdict.
When the Coleman poll began with Mrs. Ansher’s thrice-repeated statement that Coleman was not guilty, the possibility, if not the probability, of dissension within the jury became obvious. The judge should have immediately sent the jury back for further deliberations. Instead, Mrs. Ansher was asked once again her verdict, and this time she answered “guilty.” I think that having the question repeated four times until she answered “guilty” raised a possibility of coercion. Further, the poll was continued and Mrs. Ansher heard the other 11 jurors respond “guilty.” Only after this was the jury sent back to reconsider its verdict. Thus Mrs. Ansher was publicly exposed as the one juror keeping the jury from convicting Coleman of this horrible crime. The possible coercive effect of this exposure is obvious.
This clearly was not an open-and-shut ease. At a prior trial the jury had been unable to agree on a verdict. Before bringing in its verdict the second jury had deliberated three days, despite the fairly straightforward fact situation. The judge was considering using the Allen charge sua sponte when he was notified that the jury had reached agreement. Thus the trial court was on notice that there may have been deep and substantial doubt on the part of one or more jurors as to the guilt of the defendants. Under these circumstances, particularly the almost unbelievable first jury poll, when the jury returned its verdict the second time, in the interest of justice a poll was indicated. See Rule 31(d), Fed.R.Crim.P. Had another poll been taken when the jury returned less than half an hour later, *753at least the nagging doubts raised by the first poll might have disappeared.4
The majority attémpts to explain away Mrs. Ansher’s statements that Coleman was not guilty on the murder count by relating them to Bland. The majority speculates that Mrs. Ansher may have been laboring under the impression that she was being asked about Bland when she answered “not guilty” as to Coleman. Before the Coleman poll began, she was advised three times that it was the Coleman poll.5 Under the circumstances the speculation that Mrs. Ansher did not really mean it when she answered the poll three times that Coleman was not guilty, even if permissible, is not credible.
The unanimous verdict of a jury is the vehicle our law has chosen to determine guilt and authorize punishment for crime. Perhaps in a case like this, in which one jury failed to agree and another has been out three days deliberating, some impatience with a dissenting or confused juror when the other 11 are clear as to their verdict is understandable. But such impatience should not be allowed to affect the verdict, particularly in a capital case as close as this one.
Ill
Given the result reached in Parts I and II of the majority opinion, I concur in Part III.
. Kennedy v. United States, 122 U.S.App. D.C. 291, 353 F.2d 462 (1965); Williams v. United States, 120 U.S.App.D.C. 244, 247, 345 F.2d 733, 736 (1965) (concurring opinion of Judge Burger), cert. denied, 386 U.S. 1010, 87 S.Ct. 1354, 18 B.Ed.2d 438 (1967) ; Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.23 287 (1964); Mitchell v. United States, 114 U.S.App.D.C. 353, 357 n. 9, 316 F.2d 354, 358 n. 9 (1963); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959).
. See Note 1, supra. The fifth opinion, Mitchell v. United States, by Chief Judge Bazelon, contains only a one-sentence discussion of of the problem in a footnote. One of the four opinions by Judge Burger was a concurring opinion — Williams v. United States.
. As in Adams, the lineup in the instant case was held prior to Wade. In Stovall the Supreme Court, in holding the new principle announced in Wade non-retroactive, placed great emphasis on “the unusual force” of the consideration that “retroactive application of Wade and Gilbert ‘would seriously disrupt the administration of our criminal laws.’ ” 388 U.S. at 299, 300, 87 S.Ct. at 1971. This was because of the large number of cases which would otherwise require new trials. This consideration is to a large degree absent here. The police, since the decision in Mallory 11 years ago, have known that defendants should be presented to a committing magistrate “as quickly as possible.” 354 U.S. at 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479. We have no reason to believe that this dictate has been widely ignored.
Eor a discussion of retroactivity and Wade in another context, see Judge Faliy’s dissenting opinion in the panel decision in Fuller v. United States, filed November 20, 1967, affirmed, 132 U.S. App.D.C. 264, 407 F.2d 1199 (1968) (en banc).
. Rule 31(d), Fed.R.Crim.P., reads:
“Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. * * * ”
Thus the judge has the power, and the duty where the interests of justice so indicate, to order a poll on his own motion. Here such a poll should have been taken, regardless of whether defense counsel, for tactical reasons or otherwise, failed to request one.
. The transcript reads:
THE DEPUTY CLERK: The jury has now been polled as to Robert E. Williams.
MR. NOONS [Defense counsel]: May I ask the jury be polled as to Mr. Coleman.
THE COURT: Let the jury be polled as to Gerald Coleman.
THE DEPUTY CLERK: Lillian Ansher, what say you as to the defendant Gerald Coleman on Count 1?
MRS. ANSHER: Innocent.
* * * * #
(Emphasis added.)