# Petition — Saler v. Kreiger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0754%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 946 ## Text Supreme U. K F J ED | rs 1975 MICHAEL RODAK, — Supreme Court of the United States October Term, 1974 No. 7521 1 2 JAMES SALER, Petitioner, vs. RALPH KRE!GER, Sheriff, Cuyahoga County, Respondent. | PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Sixth Circuit BERNARD A. BERKMAN HAROLD L. LEVEY BERKMAN, GORDON AND KANCELBAUM 2121 The Illuminating Building Cleveland, Ohio 44113 Counsel for Petitioner THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647 TABLE OF CONTENTS Opinions Below Jurisdiction Questions Presented . Statutory Provisions Involved Statement of the Case Reasons for Granting the Writ I. The Decision Below Conflicts With the Decisions of Other Courts of Appeals as to the Interpreta- tion of This Court’s Opinion in Neil v. Biggers, 409 U.S. 188 (1972) ... 9 II. The Court Below Has Decided an Important Question of Federal Law Which Has Not Been or ww Ww Wh But Should Be Settled by This Court 14 III. The Decisions Below Conflict in Principle With Applicable Decisions of This Court 16 A. The Decision Below Conflicts in Principle With the Court’s Decision in Townsend v. Sain, 372 U.S. 293 (1963) 17 B. The Decision Below Conflicts in Principle With the Court’s Decision in Neil v. Biggers, 409 U.S. 188 (1972) ; 18 Conclusion 19 APPENDIX: A. Journal Entry of the Cuyahoga County Juvenile Court Al B. Opinion of the Court of Common Pleas ................ A3 C. Opinion and Journal Entry of the Court of Ap- peals . N D. Entry Denying Motion for Reconsideration by the Court of Appeals A K Ge of Gecteaa Coun & Chis Daaie 2 Leave to Appeal — 1 1. Order of Supreme Court ot Obfo Denying Mo- tion for Reconsideration AIS * Order ot the United States Supreme Court ; - Denying Stay Pending Petition for Certiorari __.A16 es OR a ee ee , Court All L Order af the United States Court of Appeals for the Sixth Circuit ....... A35 J. Title 28, United States Code, Section sade) ..A36 TABLE OF AUTHORITIES Cases Commissioner v. Bilder, 369 U.S. 499 (1962) ................ 13 Cooper v. Picard, 428 F.2d 1351 (Ist Cir. 1970) ............ 18 Crooker v. California, 357 U.S. 433 (1958) 17 - Federal Trade Commission v. Travelers Health Asso- ciation, 362 U.S. 293 (1960) — 16 Gilbert v. California, 388 U.S. 263 (1907) 14, 15 Kirby v. Illinois, 406 U.S. 682 (1972) 14, 15, 16, 18 Linkletter v. Walker, 381 U.S. 618 (1965) 13 Neil v. Biggers, 409 U.S. 188 (1972) ........3, 9, 10, 12, 13, 18, 19 People v. Anderson, 389 Mich. 155 (1973) 15 People v. Hallaway, 389 Mich. 265 (1973) dines ae Securities and Exchange Commission v. United Benefit Life Insurance Company, 387 U.S. 202 (1967) 16 Smith v. Coiner, 473 F.2d 877 (4th Cir. 1973), cert. den., 414 US. 1115 11,13 Speiser v. Randall, 357 U.S. 513 (1058) 13 Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973), cert. den., 416 U.S. 958 li State v. Lathan, 30 Ohio St. 2d 92, 282 N.E.2d 574 (1972) 18 Stovall v. Denno, 388 U.S. 293 (1967) --, 10, 11, 12, 13, 19 Thompson v. Louisville, 362 U.S. 199 (1960) 17 Townsend v. Sain, 372 U.S. 293 (1963) 17 United States v. Calamaro, 354 U.S. 351 (1957) ....... 13 United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), cert. den. U.S. 12 United States ex rel. Thomas v. New Jersey, 472 F. ad 735 (3rd Cir. 1973), cert. den., 414 U.S. 878 United States ex rel. Trignani v. Russell, 405 F. 2d 1119 (3rd Cir. 1968) 18 United States v. Wade, 388 U.S. 218 (1967) ...........14, 15, 16 ‘ Upshaw v. United States, 335 U.S. 410 (1948) .......... 17 Wilkinson v. United States, 365 U.S. 399 (1961). 17 Statutes and Rules Ohio Revised Code: Section 2901.13 Section 2905.01 Section 2905.44 4 Rules of the Supreme Court of the United States: Rule 19(1) United States Code, Title 28: Section 1254(1) Section 2254 4 8 Section 2254 (d) — — 13, 16, 17 on & We ST ES ig Nee MAAR To the United States Court of Appeals for the Sixth Circuit The petitioner, James Saler, prays that a Writ of Cer- tiorari issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit en- tered in the above entitled case on April 23, 1975. At the time of the initiation of the instant habeas corpus proceeding in the Federal District Court, petitioner was in the constructive custody of Ralph Kreiger, Sheriff of Cuyahoga County, State of Ohio. Pursuant to the order of the District Court, petitioner was admitted to the Ohio by thie ide ia court ta the , l de, — of the Ohio State Reformatory. Peii- tioner has remained in such custody to the present time. OPINIONS BELOW The opinion of the Court of Appeals for the Sixth Circuit, not reported, appears as Appendix I. The memo- randum, opinion and order of the United States District Court, Northern District of Ohio, Eastern Division, is re- produced as Appendix H. The orders of the Supreme Court of Ohio appear as Appendices E and F. The opinion and orders of the Court of Appeals, Cuyahoga County, Ohio, are reproduced as Appendices C and D. The opinion of the Cuyahoga County, Ohio, Court of Common Pleas, appears as Appendix B. The order of the Cuyahoga County, Ohio, Juvenile Court is reproduced as Appendix A. JURISDICTION the judgment of the Court of Appeals for the Sixth Circuit was entered on April 23, 1975, and this Petition for a Writ of Certiorari was filed timely within ninety (90) days of that date. This Court’s jurisdiction is invoked under 28 U.S.C. §1254 (1). Code, 52284 (d), are reproduced as Appendix J. nn n Basis of Federal Jurisdiction - Petitioner, pursuant to Title 28, United Ststes Code, 6 — Be sera: fg United States District Court, Northern District of Ohio, Eastern Division, challenging his state court convictions for armed robbery, sodomy and rape. The petitioner prays this Court to issue a Writ of Certiorari to review the decision of the United States Court of Appeals, for the Sixth Circuit, affirming the District Court’s denial of the petition for writ of habeas corpus. History of Proceedings , On April 13, 1972, petitioner was convicted in the Court of Common Pleas, County of Cuyahoga, State of Ohio, for violation of Ohio Revised Code Sections 2901.13, 2905.01, and 2905.44, prohibiting, respectively, armed rob- bery, rape and sodomy. Petitioner was sentenced to the Ohio State Reformatory for terms in accordance with the relevant statutes, all sentences to run concurrently (Docket entry of May 8, 1972). Ohio Revised Code Sections 2901.13 (armed robbery), 2905.01 (rape) and 2905.44 (sodomy) provide the following respective sentences: 10-25 years, 3-20 years, and 1-20 years. The Court of Appeals for Cuyahoga County affirmed the conviction and sentence, and the Supreme Court of Ohio dismissed petitioner’s appeal on the ground that it raised no substantial constitutional question. The peti- tioner is of tender years and frail physical characteristics. Because his commitment to a penal institution pending ultimate reversal of his convictions would have resulted in irreparable harm, petitioner applied to Mr. Justice Stew- art for an indefinite stay of execution of sentence pending the timely filing and determination of a petition for writ of certiorari. On November 13, 1973, Mr. Justice Stewart denied petitioner’s application, and pata bien ne eageem toe sera e eee : in November, 1973, petitioner filed bus petition for writ of habeas corpus in the United States District Court, Northern District of Ohio, Eastern Division. On June 20, 1974, without a hearing, the District Court issued its memo- randum opinion and order denying the writ of habeas corpus, and the District Court, on July 8, 1974, denied petitioner’s application for a certificate of probable cause. ‘Petitioner, on July 3. 1974, filed his “Notice of Ap- Circuit Court of granted petitioner’s motion for a certificate of probable’ cause on August 14, 1974. That court entered its affirming the judgment of the Statement of Facts At about 5:30 pm., on July 30, 1971 (Tr. 179), peti- tioner, a minor fifteet years of age, rt i F to hit them with a long pipe that he held unless. the youths accompanied him to the Sunoco gas station at the top of the path (Tr. 326). 0 . | ‘Upon arriving at the gas station, a second man (Tr. 328), Mr. Ferren (Tr. 174), searched each youth, and forci- bly seized a pocket knife and several photographs from Patton (Tr. 175, 327). Though the youths inquired why they were being detained, no explanation was forthcoming (Tr. 329). Ferren called the police (Tr. 168), and two patrolmen arrived in response to the call (Tr. 169). Upon arrival, the police found the youths to be nervous and frightened (Tr. 227-228). The police searched the youths (Tr. 334), and then transported them to Central Police Station (Tr. 335). After arriving at the station, the patrolmen con- ferred with two policewomen (Tr. 234), and then placed the youths in Room 108 of Central Police Station (Tr. 237, 288, 335), where they sat for some time (Tr. 337). ‘ The police telephoned the victim of a rape, sodomy, and armed robbery that had occurred July 16, 1971 in the same area where the boys were accosted on July 30, 1971 (Tr. 208, 238). Policewoman Bilinovich told the victim, Miss Margaret Hill, that the police “had two sus- pects in custody” (Tr. 137, 208, 238), and asked Miss Hill to come down to Central Police Station (Tr. 139). Upon arriving at the police station, Miss Hill first saw the two patrolmen who had rendered her assistance two weeks earlier, after the criminal acts had occurred (Tr. 139). Miss Hill was then met by Policewoman Bilino- vich (Tr. 289), who told Hill that they had two suspects in custody, and wanted her to “walk by” and “look at them” to see “if she could identify them” (Tr. 142, 208, 238, 257). 7 nto Room 108 (Tr. 143, 237, 239, 258). In addition boys, the only other persons present in the employees (Tr. 238, 239, 258, 290). Peti- or counsel present (Tr. E E pitt 1171 ie F 1 38 1 11 ti ; ; f 1785 F | i After conducting this identification in Room 108, both patrolmen and the two policewomen took Hill and the petitioner, but not Patton, to the Detective Bureau located in the Police Station (Tr. 145, 339). The petitioner’s mother arrived and was also taken to the Detective Bureau (Tr. 340). The petitioner and his mother were seated at a long table (Tr. 146, 340). While face to face with the defendant, Hill recounted the rape, sodomy, and armed robbery episode that occurred on July 16 (Tr. 261, 340). After about an hour of being together with the petitioner, and in the midst of the police in the Detective Bureau, Hill became “emphatic about her identification of Saler” (Tr. 262), as one of her assailants (Tr. 55-62). At trial, when policewoman Bilinovich was asked why no lineup was arranged, she testified that she was “aware : ‘The criminal conduct complained of took place be- itil ben Be 15 p.m. and 5:45 p.m. (Tr. 121), in the area of the Cleveland flats near the same, previously recited, (Tr. 55-56). In fear of her life, Margaret Hill was the victim of rape, sodomy and armed robbery (Tr. 61, 100). Miss Hill was so emotionally upset (Tr. 212) that she was uncertain as to what exactly each of her assailants was saying or doing (Tr. 94, 98, 100, 112, 120). Following the . — where the treating physician ordered Miss Hill a males, between 12 and 15 years of age, one was dark- haired and the other blond-haired (Tr. 113-115, 205, 214- 215). Even though Miss Hill had been very emotionally up- set, and unable to give a detailed description of either of her assailants, she positively identified the assailant in open court (Tr. 58), and in answer to the court’s question, stated that such identification was based upon her observa- tions of July 16th, and not the out-of-court confrontations of July 30th (Tr. 160). However, the prosecution made no effort to establish that the in-court identification was inde- pendent of the pre-trial confrontation. During the trial Miss Hill testified that the petitioner was the same height and weight as was her assailant on July 16, 1971 (Tr. 149). However, the defendant was three inches taller and almost 40 pounds heavier at the trial than he was at the time the crimes were committed (Tr. 554, Exhibits G and H). * N 1 on - ; 1 * ay mu ad - ; - . bs REASONS FOR GRANTING THE WRIT ij I Ai Decent Welw CONbLICts Wit un DECISIONS OF OTHER COURTS OF APPEALS AS TO THE INTERPRETATION OF THIS COURT’S OPINION IN NEIL V. BIGGERS, 409 U.S. 188 (1972). In Neil v. Biggers, 409 U.S. 188, 198-199 (1972) this Court stated: What is less clear from our cases is whether, as inti- mated by the District Court, unnecessary suggestive- ness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to petitioner, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of un- necessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, not be- cause in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S. App. D.C. 27, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S. Ct. 1951, 1957, 18 L. Ed. 2d 1178 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Such a rule would have no place in the present case, since both the con- frontation and the’ trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestive- ness of confrontation procedures was anything other than a matter to be argued to the jury.” 10 _ The District Court in the instant case properly ruled that the pre-trial identification procedures were unneces- sarily suggestive. Appendix H, pp. A29-A30, A34. Fur- thermore, such procedures and petitioner’s trial (both oc- curring during 1972) post-dated the decision in Stovall v. Denno, 388 U. S. 293 (1967). Notwithstanding such findings, the District Court assessed the unnecessary pre-trial proce- dures in light of the totality of circumstances to determine whether the procedures were conducive to a very substan- tial likelihood of irreparable misidentification. Appendix H, page A31. The Appellate Court below held that the decision of the District Court is in accord with this Court’s ruling in Neil v. Biggers, supra. Appendix I. Thus, the Court of Appeals rejected petitioner’s argument to the contrary, namely, if pre-trial suggestive identification procedures and the trial of the defendant occur after the date Stovall was decided, then due process requires the exclusion of testimony concerning the out-of-court identification: whether a defendant can prove that, notwithstanding such procedures, the identification is “reliable” under the total- ity of circumstances is irrelevant. The Sixth Circuit’s decision below is in conflict with the decision on the same matter of the United States Court of Appeals, for the Fourth Circuit: “The recent decision of the Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972), in our view, has no application to this case. In Neil, the rule was stated that the admissibility of an identification obtained as a result of a suggestive con- frontation was to be determined by the likelihood of misidentification, in short, by its reliability, taking into account the totality of the circumstances surround- ing the making of the identification. The Neil rule, 11 2s the opinion makes clear (at 198, 93 S.Ct. 375), ap- _ plies to pre-Stovall cases since police officers, prosecu- tors and other law enforcement officers were not them aware that ‘suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury. (at 199, 93 S.Ct. at 382). In contrast, in post- _ Stovall cases, of which the instant case is one, the rule to be applied is the Stovall rule, i.e., whether the con- frontation was so unnecessarily suggestive and con- ducive to irreparable mistaken identification as to amount to a denial of due process of law. In post- Stovall cases, ‘[s]uggestive confrontations are disap- proved because they increase the likelihood of mis- identification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.’ (at 198, 93 ~ S.Ct. at 382). The shift in emphasis from unneces- sarily suggestive confrontations (post-Stovall cases) to reliability of identification (pre-Stovall cases) is explained by the need, once Stovall was decided, ‘to deter the police from using a less reliable procedure where a more reliable one may be available.” (At 199, 93 S.Ct. at 382).” Smith v. Coiner, 473 F.2d 877, 882 (4th Cir. 1973), cert. den., 414 US. 1115. n supplied). Thus, the Fourth Circuit has decided that in post- Stovall cases, the occurrence of unnecessarily suggestive pre-trial identification procedures compels the exclusion of testimony concerning the out-of-court identification.” 416 ös 958, the Fourth Neuen e a 2 Was e e eee — — crores”) ahd, there Coiner, — 2 was not to be excluded, from 12 The foregoing decision of the Fourth Circuit also is in conflict with the decision of the Circuit Court of Appeals for the Seventh Circuit. That court, in United States ex rel. Kirby v. Sturges, 510 F.2d 397 (7th Cir. 1975), cert. den., — US. — as did the appellate court below, con- cluded that the Neil test of reliability was the applicable constitutional standard notwithstanding that unnecessarily suggestive pre-trial identification procedures were con- ducted subsequent to this Court’s decision in Stovall. The Seventh Circuit reached such decision notwithstanding its conclusion that the arguments in favor of an exclusionary rule, which would deter the police from conducting a show- up when a line-up is feasible, carry substantial force: The reliability of the trial process “in its search for truth” would be enhanced; the danger of convicting the in- nocent and the serious risk of a miscarriage of justice would be minimized; the burden of judicial review of the particular circumstances of each of the multitude of cases in which eyewitness identifications are challenged may be lessened significantly; and the room left for considerable judicial disagreement aue to the somewhat illusive stan- dards for determining when an identification is sufficiently reliable would be greatly diminished. United States ex rel. Kirby v. Sturges, supra, 510 F.2d at 405-406. The finder of fact at trial is apt to reach different verdicts depending on whether the Neil or Stovall rule is applicable to a given case. For application of the Stovall rule requires consideration of the totality of circum- stances surrounding only the pre-trial, out-of-court con- frontation procedures, and a determination of whether such procedures are unnecessarily suggestive. Considera- tion of the circumstances surrounding the identification of the witness at the time the criminal conduct occurred, and a determination of the reliability of the identification, 13 though relevant under the Neil rule, are irrelevant under e ag egg Smith v. Coiner, supra. ‘the ‘exclusion of testimony concerning the out-of-court identification requires the exclusion of testimony of an in-court identification unless the state proves by clear and convincing evidence that such in-court testimony is of a source independent of the unlawful pre- trial procedures. See, e.g., United States ex rel, Thomas v. New Jersey, 472 F.2d 735, 739 (3rd Cir. 1973), cert. den, 414 US. 878. Thus, under the Neil rule the defendant is required to prove that the pre-trial procedures were conducive to an unreliable identification, notwithstanding the suggestive pre-trial procedures. However, under the Stovall rule the burden is on the state to prove by clear and convincing evidence that the in-court identification was of a source independent of the pre-trial procedures; and, “where the burden of proof lies may be decisive of the outcome.” Speiser v. Randall, 357 U.S. 513, 525 (1958). The granting of the writ of certiorari would enable this Court to settle the direct conflict that has developed over a most troublesome question in the administration of justice, and to ensure that a defendant receives equal justice through application of the same standards of con- stitutional law regardless of his place of trial. Title 28 US. C., Rules of the Supreme Court of the United States, Rule 19 (1). See, e.g., Linkletter v. Walker, 381 US. 618, 620 (1965); Commissioner v. Bilder, 369 US. 499, 501 (1962); United States v. Calamaro, 354 U.S. 351, 354 (1957). accordance with this Court’s decisions in United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 US. 263 (1967); and Kirby v. Illinois, 406 US. 682 (1972), the petitioner was denied his right to counsel at the pre-trial identification procedures. In United States v. Wade, 388 U.S. 218, 240 (1967), this the courtroom identification is of an independent source. The Court then held in Gilbert v. California, 388 U.S. 263, 273 (1967), that testimony at trial of the illegal out-of- court confrontation is per se inadmissible, and the state is not entitled to prove that such testimony has an inde- pendent source. Following its decision in Gilbert, the Court concluded that the right to counsel attaches only at the time that judicial adversary proceedings have been initiated. Kirby v. IIlinois, 406 US. 682 (1972). Although the plurality decision in Kirby refers to the initiation of “judicial” pro- ceedings, this court further noted that it is the commence- ment of the adversary process that gives rise to the right to counsel: “The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself been initiated. Id. at 690. The decision does not appear to encompass or limit specifically the Court’s holding in Wade. For Wade is designed to insure the reliability of identifications; the per se Gilbert rule is designed to con- trol police conduct without regard to the reliability of identifications. See, People v. Hallaway, 389 Mich. 265 (1973); People v. Anderson, 389 Mich. 155 (1973). Petitioner urges this Court to settle and clarify the answers to the questions of federal law left unsettled by its decision in Kirby v. Illinois, supra, namely, the nature of the criminal adversary process to which a defendant’s constitutional right to counsel attaches; and the mitation, if any, that the decision in Kirby places upon the right to counsel as set forth in the Court’s holding in Wade. Title 28 U.S.C., Rules of the Supreme Court of the United States, Rule 19(1). See, e.g., Federal Trade Commission v. Trav- elers Health Association, 362 U.S. 293, 297 (1960); Securi- ties and Exchange Commission v. United Benefit Life In- surance Company, 387 U.S. 202, 207 (1967). Such questions are directly presented in the instant case. The police arrested the defendant and obtained a positive identification from the victim-witness that the police had the right boy. However, the police proceeded to subject the petitioner to a-further face-to-face confron- tation for one hour with the victim-witness, and had the victim relive the criminal conduct and reinforce her iden- tification. The instant pre-trial procedures were a police effort to insure successful prosecution; not one of mere investigation. The adverse positions of the state and boy solidified, and the petitioner was entitled to the presence of counsel at the time the police determined to proceed with the hour-long ordeal. Moreover, the failure of the state to prove that the in-court identification was of a source independent of the pre-trial confrontation rendered the receipt into evidence of the in-court identification a violation of due process. THE DECISIONS BELOW CONFLICT IN PRINCIPLE WITH APPLICABLE DECISIONS OF THIS COURT. To prevent gross miscarriages of justice, this Court has granted review where the federal court below has de- cided substantial due process questions “in a way in con- flict with applicable decisions of this Court.” ‘Title 28 U.S. C., Rules of the Supreme Court of the United States, 17 Rule 19(1); Crooker v. California; 357 US. 433, 434 (1958); Thompson v. Louisville, 362 U.S. 199, 203 (1960); Upshaw v, United States, 335 US. 410 (1948); Wilkinson 1 | The court below misapplied applicable de- cisions of this Court to the instant case in failing to grant the petitioner an evidentiary hearing and in concluding that ‘the’ identification testimony was reliable. A. ‘The Decision Below Conflicts in Principle With the Court’s Decision in Townsend v. Sain, 372 In affirming the District Court's denial of the writ for habeas corpus, the Court of Appeals below rejected peti- tioner’s contentions that an evidentiary hearing was com- pelled in the habeas proceeding, although the court did not specifically address itself to such contentions. In Town- send v. Sain, 372 U.S. 293 (1963) the Court held that if it is unclear whether the state trial court applied the correct constitutional standards in disposing of a defendant's claims, an evidentiary hearing is compelled. For, under such circumstances the federal district court cannot ascer- tain whether the state court found the law or the facts cision of the state trial court may rest upon an error of ae. is compelled. « Tow state tal Get MAE Gal Rh teatend teerert identification’ was “independent” of the suggestive con- frontation (Tr. 729-730). However, the transcript of pro- ceedings had in the state trial court fails to indicate dard of federal law, to-wit:. Whether the state proved by clear and convincing evidence the independence of the 18 in- court identification. Thus, an evidentiary hearing is compelled. i Furthermore, the decision of the state trial court pre- dated this Court’s decisions in Kirby v. Illinois, 406 U.S. 682 (1972) and Neil v. Biggers, 409 U.S. 188 (1972). At F ˙ Oe ee See oe Qhio criminal proceeding had the right to the of counsel at a pre-trial confrontation whether or not such confrontation preceded formal judicial proceedings. See, e.g, State v. Lathan, 30 Ohio St. 2d 92, 282 N.E.2d 574 (1072). Thus, in concluding that the in- court testimony was “independent” of the pre-trial procedures (Tr. 730), the state trial court may have limited its conclusion solely to the issue of petitioner’s right to counsel. Therefore, re- gardless of the test applicable to determine the admissibility of in-court identification testimony, the state trial court may have never ruled upon petitioner’s claims of violations of due process grounded upon the unnecessarily suggestive pre-trial procedures. See Cooper v. Picard, 428 F.2d 1351, n.2 (ist Cir. 1970); United States ex rel. Trignani v. Rus- sell, 405 F.2d 1119 (3rd Cir. 1968). Petitioner is entitled to an evidentiary hearing on the issue of whether the state trial court erred in receiving into evidence the in-court identification testimony—the only evidence legally sufficient to connect the petitioner to the crimes charged. Appendix H, pp. A21-A22. B. The Decision Below Conflicts in Principle With the Court's Decision in Neil v. Biggers, 409 U.S. 188 (1972). Even assuming, although petitioner denies, that the admissibility of the in-court identification evidence is to be assessed in terms of the “reliability” of such identifica- tion, ante, p. 9, the Court of Appeals below erroneously - affirmed the District Court’s conclusion that the identifica- tion was reliable. The decisions of the Court of Appeals for the Sixth and Seventh Circuits are in direct conflict with the decisions of the Fourth Circuit as to the interpretation of this Court’s decisions in Stovall v. Denno, 388 U.S. 293 (1967) and Neil v. Biggers, 409 US. 188 (1972). Uniform appli- cation of constitutionally compelled standards of due pro- cess of law is necessary to prevent inequality of justice based upon the situs of the courthouse. The appellate court below also has decided that an accused is not entitled to the assistance of counsel with the onset of the adversary criminal process but before the commencement of any formal judicial proceeding: an important issue which has not been but should be settled by this Court. Furthermore, in conflict with principles established by this Court, the appellate court below wrongfully denied petitioner an evi- dentiary hearing and concluded that evidence essential to the state’s case was properly received into evidence. For the foregoing reasons, petitioner prays this Court to issue the writ of certiorari. Respectfully submitted, Beawarp A. BerkMAN Hancto L. Levey Counsel for Petitioner Al APPENDIX A Journal Entry of the Cuyahoga County Juvenile Court (Dated December 7, 1971) No. 273060 THE JUVENILE COURT OF CUYAHOGA COUNTY State of Ohio, County of Cuyahoga IN THE MATTER OF JAMES SALER, Delinquent Child This cause ame on for hearing this seventh day of December, 1971, before the Honorable John J. Toner upon the complaint of Margaret Hill alleging that James Saler a child about the age of fifteen years is a delinquent child in this: That on or about July 16th 1971 about 5:00 P.M. he did unlawfully with another now unknown in the gen- eral vicinity of the rear of Jim’s Steak House, at the East end of the Detroit Superior Bridge, Cleveland, Ohio, did forcibly with a knife and against her will commit rape upon the person of one Margaret Hill, a female person, age 19 years, in violation of Section 2905.01, of the O.R.C. (2) That on or about July 16th 1971 about 5:00 P.M. with another now unknown, in the general vicinity of the East end of the Detroit Superior Bridge in the rear of Jim’s Steak House, Cleveland, Ohio, with a knife force carnal copulation against nature with a certain female person age 19 years, to wit: one Margaret Hill, in an opening of the body of the said Margaret Hill other than sexual parts, in violation of Section 2905.44 of the ORC. (3) That on or about July 16th, 1971 about 5:00 PM. with another now unknown, in the general vicinity of the East end of person, age 19 years, cash in the amount of $90.00 or $100.00, the personal property of the said Margaret Hill, in violation of Sevtion 2901.241 of the O.R.C. On Novem- ber 5, 1971 notice in writing having been given to the child’s mother at least three days prior to hearing on No- vember 5, 1971 and after such hearing the Court finds that there was probable cause to believe that the child com- mitted the act alleged, which act constitutes a felony if committed by an adult. The Court further finds that the child was fifteen years of age at the time of the conduct charged. The Court further finds after full investigation, including a mental and physical examination of such child made by the psychiatric clinic of the Court that there are reasonable grounds to believe that the child is not com- mitable to an institution for the mentally retarded or men- tally ill; that he is not amendable to care or rehabilitation in any facility designed for the care, supervision, and re- habilitation of delinquent children; and that the safety of the community requires that he be placed under legal re- straint including, if necessary, for the period extending beyond his majority. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that under the provisions of Section 2151.26 Ohio Revised Code, said child, James Saler, is bound over for further proceedings according to law. It is further ordered that said child be remanded to County Jail pending furnishing a One Thousand Dollars cash or surety or Two Thousand Dollars real estate appearance bond. Whereupon James Saler furnished bond in the amount of One Thousand Dollars surety with Allegheny Mutual Insurance Company, by Chuck Harden, 1601 East 21st Street, Cleveland, Ohio, Attorney-in-Fact, sureties i mmm 7 1 A3 conditioned for child’s appearance before the Common Pleas Court of Cuyahoga County, which said bond is ap- proved by the Court. /s/ Jom J. Toner Judge APPENDIX B Opinion of the Court of Common Pleas (From Transcript of Proceedings, April 13, 1972) No. CR-2552 IN THE COURT OF COMMON PLEAS State of Ohio, Cuyahoga County STATE OF OHIO, Plaintiff, vs. JAMES SALER, Defendant. [729] The Court: The Court has heard the evidence in this particular case, and in a unique situation such as this sits in a dual capacity both as the trier of the facts and as the trier of the law. Although no formal motion was made and without attempting to weigh the evidence, one of the questions of law this Court was required to rule on in determining this case was the suggested identification of the Defendant. A The question was: War mes tainted so'as to preciide any iti-court Wentifiestion? In this case the Court is not overly fond of the con- frontation method used by the police in their desire to either implicate or let go, and it therefore becomes my duty to determine and look behind the confrontation to the circumstances that the witness had in identifying the individuals who perpetrated this alleged assault upon her. In weighing the testimony, the Court finds that the witness testified and the Court so finds that the alleged assault took [730] approximately a half hour, that it hap- pened around 5:15 or 5:30 in the evening, that it was daylight, in July. The Court will take judicial notice of the fact that it is bright at that time. That the person or persons who perpetrated this as- sault or alleged assault were less than—she testified at least a foot from her for a period of time, about a half hour. The Court finds that the witness had an ample oppor- tunity to observe the people who perpetrated this par- ticular act on her and finds beyond a reasonable question that Miss Hill had a great opportunity to identify the perpetrator of the crime, and that, therefore, the in-court identification is not tainted by the confrontation, that the identification was independent of the confrontation caused by the police department. In weighing now the facts of this particular case and sitting as a jury in this particular case, the Court, of course, realizes, as a jury would that the burden of proof is on the State of Ohio to prove its case beyond a reason- able doubt, and that the Court is [731] required to weigh that reasonable doubt in favor of the Defendant. AS The Court must, as the trier of the facts, weigh the testimony of the witnesses who have testified here in this case. The Court realizes that the burden of proof is on the State of Ohio to ‘establish each and every one of the elements of the crime of rape, sodomy snd shacet sotmety- I think it is well established that no corroboration is necessary in establishing a rape. The testimony of Mar- geret Hill was sufficient in and of ‘itself ‘to establish the elements of rape. Dr. Eisenstadt, however, did corroborate to a certain abrasion of the temple, and a his testimony [732] was that there was some prior sexual activity. He could tell by the examination that he conducted. The Court is mindful of 1.17 of our section of our Code which is referred to as the aider and abettor section „FEE hae bien: CAI Gunna: ihe in his behalf, and that alibi is not a defense and no burden of proof is placed upon the Defendant to establish an alibi, but rather the burden is on the State of Ohio to prove its case by evidence beyond a reasonable doubt. The Court would also like to point out that certain witnesses testified here this morning, Mr. John Douglas and Miss Rosezita Chromek, and these witnesses were permitted only to rebut the evidence given by the Defen- dant himself and were limited solely, in this Court’s mind anyway, to the evidence given by the Defendant that he had only been down to this section of the flats on the day of arrest, that of July 30, 1971, and as he testified some five months before. [734] In weighing all the testimony, that of Margaret Rill, defense witnesses, and the limited purpose of the rebuttal evidence, the Court can come to but one conclu- sion, and the Court finds that the State has established its case by proof beyond a reasonable doubt and will find the Defendant guilty of the crimes charged. | 4 A7 The Court, before passing sentence on this matter, must remand James Saler and order an investigation per Revised Code Section 2947.25, and when that investigation is completed, the Court will pass judgment at that time. APPENDIX C Opinion and Journal Entry of the Court of Appeals (Dated April 19, 1973) No. 31942 COURT OF APPEALS OF OHIO E1icutu Districr, Country or CUYAHOGA STATE OF OHIO, Plaintiff-Appellee vs JAMES SALER, a minor Defendant-Appellant JOURNAL ENTRY This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and was argued by counsel for the parties; and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made: As The defendant-appellant was convicted of rape (R.C. 2905.01), sodomy (R.C. 2905.44), and armed robbery (R.C. 2901.241) at a trial before a judge in Common Pleas Court, a jury trial having been waived. On appeal the appellant assigns five errors: 1. The Court of Common Pleas erred in its verdict in view of the Defendant being subjected to an out-of-court identification without the benefit of counsel being present, in violation of due process. 2. The Court of Common Pleas erred in its verdict in view of the Defendant being subjected to an out-of-court identification on a single basis and not as part of a lineup, in violation of due process. 3. The Court of Common Pleas erred in its verdict in that the State did not establish its case beyond a reasonable doubt. 4. The Court of Common Pleas erred in the method used to examine a witness, constituting an abuse of discretion. 5. For other errors apparent on the face of the record. We find none of the assignments of error to be with merit. Assignments 1-2 During the trial, the following facts regarding the out-of-court identification of the defendant were testified to: Shortly after she had been raped and robbed the prose- cutrix told the police her assailants were two white boys around age 15, one with dark hair and the other with lighter hair, without other distinguishing characteristics. A9 Two weeks after the rape the prosecutrix was called to the police station and taken into a room by s police- light hair and the other with dark hair. Upon being asked if she recognized anyone, she responded immediately by identifying decisively the defendant as one of her assailants but she did not recognize the other boy. The defendant’s mother was then called to the police station and in another room in the presence of the defen- dant, the defendant’s mother and a policewoman, the prose- cutrix again identified the defendant as one of her as- sailants. All of the above events took place before the defen- dant’s indictment and without counsel present. The defendant contends that the out-of-court identifi- cation procedure in this case violated due process of law because the identification was on a single basis and his lawyer was not present, and therefore all testimony con- cerning the confrontations should have been excluded at the trial. The defendant's contention is not well taken. The Ohio Courts and the United States Supreme Court uave never required the presence of counsel at a pre- indictment identification procedure. The exclusionary rule of United States v. Wade (1967), 388 US. 218, and Gil- bert v. California (1967), 388 U.S. 263, applies only to post-indictment pretrial lineups in absence of counsel.’ Nor has a one-on-one confrontation been held to be office next to another boy whom she did not recognize. Further, though the out-of-court identification was re- ferred to by the prosecutor in his opening remarks to the court, no objection was then made by the defendant and it was the defendant who first introduced testimony at the trial concerning the identification. Testimony was elicited at the trial to support the finding of guilty beyond a reasonable doubt on each of the charges either as a principal or a principal by aiding and abetting. committed upon her and her money was taken. All _ The defendant attempted to establish an alibi through witnesses all of whom were either related to him or close friends of the family. The trier of facts may accept all, part, or none of what a witness testifies to. We are not permitted to invade the province of the trier of facts. Assignment 4 At the conclusion of the prosecutrix’s testimony, the following colloquy took place between the court and the The Court: I just have one question or a few questions of you. Your identification in this courtroom, is it based upon your observations at the police station, or is it based upon your observations as to what occurred on July 16, 1971? che Witness: What occurred on July 16th. The Court: How long were you with these in- dividuals on July 16, 1971? The Witness: About a half an hour. The Court: What were the lighting conditions at that time? The Witness: It was very light out. The Court: What time of the day or night was it? The Witness: About quarter after 5:00 until quarter to 6: 00. The Court: You say very light. Do you mean that the sun was still out? The Witness: Yes. ee — — Al2 The Court: And how dose were youl to ‘these individuals? The Witness: About a foot away. The Court: For the entire half hour? The Witness: Yes. The questions put to the witness by the court and the answers elicited were admissible under the law. No other errors apparent on the face of the record, the judgment of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the man- date pursuant to Rule 27 of the Rules of Appellate Proce- dure. Exceptions. /s/ Jom M. Manos Presiding Judge Manos, C.J., Jackson, J., Comnican, J., Concur. — — — ——— ——— — — ⏑ 0 Al4 APPENDIX E Orders of Supreme Court of Ohie Denying Leave to Appeal | (September 20, 1973) No. 73-579 THE SUPREME COURT OF THE STATE OF OHIO Tux Stare or Ono, Crry or CoLumsBus. — Appellee, Vs. JAMES SALER, a Minor, Appellant. APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY This cause, here on appeal as of right from the Court of Appeals for Cuyahoga County, was heard in the manner prescribed by law, and, no motion to dismiss such appeal having been filed, the Court sua sponte dismisses the ap- peal for the reason that no substantial constitutional ques- tion exists herein. (Caption as above) It is ordered by the Court that this motion is overruled. Als — A for Reconsideration (Dated October 18, 1973) No. 73-579 THE SUPREME COURT OF THE STATE OF OHIO Tue State or Omo, Crry or Col unmus. THE STATE OF OHIO, Appellee, Vs. JAMES SALER, Appellant. REHEARING It is ordered by the court that rehearing in this case is denied. _ _ OO es Al APPENDIX G Order of the United States Supreme Court Decaying (November 13, 1973) SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK Washington, D. C. 20543 November 13, 1973 Bernard A. Berkman, Esquire Berkman, Gordon & Kancelbaum 2121 The Illuminating Building Cleveland, Ohio 44113 Re: James Saler, a minor v. Ohio, A-474 Dear Mr. Berkman: Your application for stay in the above-entitled case was presented to Mr. Justice Stewart, who has endorsed thereon the following: “Application denied. November 13, 1973 Potter Stewart” lab cc: John T. Corrigan, Prosecuting Attorney Atten: Robert R. Feighan, Asst. Pros. Att. of Cuyahoga County, Ohio 1560 East 21st Street Cleveland, Ohio No. C 73-1230 UNITED STATES DISTRICT COURT NorrHErn District or Onto Tara Drvistron JAMES SALER, a minor, ; I etitio ner, V. RALPH KRIEGER, et al., Respondents. MEMORANDUM OPINION AND ORDER Barrier, CJ. This is a petition for a writ of habeas corpus. The petitioner, James Saler, is only eighteen years old. He submits that he was convicted of crimes in violation of basic constitutional rights. He advances, in his petition, three closely interrelated contentions relating to in-court and pre-trial identifications of him, made by a rape victim. They are: () “The totality of circumstances surrounding the out-of-court confrontation was suggestive of a sub- stantial likelihood of irreparable misidentification.” (2) “The out-of-court, one-on-one confrontation, conducted without any necessity for avoiding the cus- F . ⁵Äa0̃ é . · NVA = Als tomary line-up procedure with the presence of counsel, is an unnecessarily suggestive process and a per se violation of due process.” tioner’s Sixth Amendment rights in that it was con- ducted in the absence of counsel.” L Petitioner was indicted for the crimes of armed rob- bery, rape, and sodomy, in violation of Sections 2901.13, 2905.01, and 2905.44 respectively of the Ohio Revised Code. After a bench trial, beginning on April 7, 1972, he was found guilty of each of the charges in the indictment, and sentenced to the Ohio State Reformatory for an inde- terminate period according to law on each count, the sen- tences to run concurrently. The Court of Appeals for Cuyahoga County affirmed the conviction and sentence, and the Supreme Court of Ohio dismissed petitioner’s appeal on the ground that it raised no substantia! constitutional question. On Novem- ber 13, 1973, Mr. Justice Stewart denied petitioner's appli- cation for an indefinite stay of execution of sentence pend- ing the timely filing and determination of a petition for writ of certiorari. Thereafter, no such petition was filed. On December 4, 1973, this Court, upon agreement of the respondent, granted petitioner’s application for bail pending determination of his habeas corpus petition. At trial, the victim testified to the circumstances of the crimes, and positively identified petitioner as one of her assailants. This was done as part of the State’s direct case. No objection was made to this identification, nor were there any pre-trial motions to suppress the identifica- tion. Instead, petitioner’s counsel elicited on cross-exam- Alꝰ identifications of petitioner made by the victim. Two police officers ers subsequently came to the witness stand. Both testified extensively as to the pre-trial con- frontations. The petitioner and his mother also presented their respective views of these events as part of the de- fense’s case. Although never formally asked,’ the state trial judge, who was sitting in the dual capacity of finder of fact go,” and that, accordingly, it was his “duty to determine and look behind the confrontation to the circumstances that the witness had in identifying the individuals who of Appeals dealt, in essence, with the three contentions violation uf petitioner’s constitutional right to counsel. Re- as recognized in United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967) to pre- trial identifications made at or after the time that ad- The record here fully confirms the Court of Appeal's holding on this issue. There is no dispute that petitioner was without counsel at the time of the pre-trial identifica- tions. It is clear, however, that these identifications took place almost immediately after petitioner’s arrest, and be- fore any formal charges were made against him. Accord- ingly, there is no merit to petitioner’s third contention. See also Hastings v. Cardwell, 480 F.2d 1202 (6th Cir. 1973). The Court of Appeals also concluded, citing Stovall v. Denno, 388 US. 293 (1967), that the confrontations were not either unnecessarily suggestive or conducive to irreparable mistaken identification. The Court recognized that petitioner was subjected to what was in essence, a one-on-one confrontation with the victim. At the same time, it was concluded in view of “the totality of the surrounding circumstances” that the confrontation was not such as to undermine the essential reliability of the eye- witness identifications, or require exclusion of such testi- mony at trial. II. As indicated previously, the victim did not, as part of her direct examination, allude to her pre- trial identifica- tions of petitioner. The prosecutor, however, referred to them in his opening statement (Tr. 25), and the direct testimony of one of the police officers included corrobora- tion of these identifications. No objections were ever en- tered, however, either to the prosecutor’s remarks, or the police officer’s testimony. Petitioner’s counsel, to the con- committed in permitting the victim’s in-court identifica- tion of petitioner. The State’s case did not rest solely on the victim’s in-court identification. Circumstantial evidence was ad- duced linking petitioner to the crimes. William Patton, petitioner’ companion at the time of his arrest, testified, in addition, that petitioner had told him, approximately one week after the crimes were committed, that he had had “sex with some girl in the flats and had taken some money from her.” (Tr. 191-192). There is no doubt, how- ever, that the crucial evidence offered by the State con- 2. In his “Traverse and Memorandum,” filed 22 F bs identification evidence requires the issuance of a writ. argument is not made that any consideration which the state to the evidence of the pre-trial identifications testimony was tainted by unlawful identification proce- dures, the error in not suppressing it could not be viewed as harmless. | The material basic facts, as adduced at the state court trial, may be summarized as follows. On July 16, 1971 the victim, aged ninetzen and a high school graduate was employed as a receptionist for a company located in the Leader Building at Sixth and Superior Street, in downtown Cleveland. According to her testimony at trial she left work on that day at approximately 4:45 pm. and did some quick shopping. The weather was clear, bright, and warm. She arrived at the east end of the Detroit-Superior Bridge at about 5:15 p.m. She proceeded down a concrete path that winds to an area commonly known as the “flats.” While walking down the path, she noticed a boy behind her, but continued on her way. A few seconds later, an arm was around her neck, and a knife was at her throat. Another boy was standing nearby with a broken bottle in his hand. The victim said: I it’s money you want you can have it.” (Tr. 60) The response from one of the two boys was: “That’s not what we want.” (Tr. 60). tioner as the boy who committed only the rape. Thereafter, according to the victim's testimony, the boys got up, took approximately eighty dollars from the victim's purse, and told her to stay at the spot for ten minutes or “we will kill you.” (Tr. 61) The boys then fled. The assault took approximately fifteen minutes to A23 ane-half hour, and occurred around 5:15 p.m. or 5:30 p.m. in broad daylight. The juvenile assailants wore no masks, „ The victim did not wait ten minut:s, but got dressed and started back up the path. She came across a man proceeding down the path, and asked for help. This man unidentified at trial, took her down to a restaurant in the “flats” called “Diamond Jim's,” where the police were The record is not clear as to the exact sequence of (Tr. 214-215) 3. This is s0 because the police officers who testi- — * to 7 with the titer ‘Conant they entirely from memory On July 30, 1971, at approximately 5:40 pm., Miss Rosezita Chromak came running up the same path, out of breath and apprehensive. Miss Chromak, a secretary working for the Republic Steel Corporation, used the path regularly to get to and from work. She was aware of the incident of July 16, and had been warned to watch out for two boys, one dark haired, and the other light haired. As she testified,‘ she first perceived two boys on the path matching the description previously given her on July 29 at approximately 5:40 pm. Thinking that these boys might be the two assailants, she backtracked up the path to await others. Four or five people arrived, and behind her. She noticed the boys following her, and solic- ited the aid of a man to chase them away. Upon reaching the top of the path on July 30, Miss Chromak approached two people from her company who were standing by the gas station near the entrance to the path. She asked them if she could walk down the path with them as she was “deathly afraid to go down by myself because of two boys down there.” (Tr. 654) She had again seen the same two boys on the path. Miss Chromak’s remarks were either partially di- rected at or overheard by Mr. Andrew Farren, one of the gas station attendants who had previously been asked by the police to keep his eye out for the boys. Subsequently, Mr. Farren’s brother, the other attendant, went down the path and returned with petitioner and a companion, Wil- liam Patton, in his custody.’ The boys were placed in the gas station, and the police were called. A knife described to be of “fairly decent” size (Tr. 180) was taken from Patton by Mr. Farren.* The police officers who responded to Mr. Farren’s call were the same two who had initially investigated the inci- dent of July 16. They conferred briefly with Mr. Farren, arrested the boys, and conveyed them to Central Police 6. Miss Chromak was not able positively to iden peti- St Seah. Set Os A See So. oo, Se (Tr. nnen ant’s Office” (Tr. 237). It was large, with an open arch- way as anentrance. (Tr. 253) It was used as headquarters for the Third District police, as an information center, and for juvenile bookings. It was filled with desks, chairs, and a counter; and had a sitting area. The two police officers then conferred with two police- women who had participated in the investigations under- taken on July 16, and who had been summoned to assis‘ that evening. The police proceeded to notify the victim and the parents of the two boys by telephone. Although it is not entirely clear from the record, it appears that one of the policewomen, Officer Bilinovich, called the victim. As the victim testified, she was told that the police had picked up “two suspects,” and was asked to come down to the station (Tr. 137). This was the first contact she had had with the police since July 16. The victim arrived at Central Police Headquarters at approximately 8:00 p.m. (Tr. 139, 289), and before the parents. She met the policemen who aided her on July 16, and the policewomen. She was told to walk into room 108 and see if she could recognize anyone (Tr. 140-143). It is not clear whether she was told anything else by the police. Both officers Bilinovich and Roche testified that nothing else was said. (See e.g. Tr. 208, 258-59) Yet the victim herself testified that she had been informed prior to viewing the boys, probably by policewoman Bilinovich, of the circumstances of the boy’s arrest (Tr. 158-59) The victim entered the room in the company of the police officers. She positively identified petitioner as her dark haired assailant (See Tr. 143, 240, 258), but was unable to identify with certainty William Patton (Tr. 144). longer than ten minutes. (Tr. 338) Thereafter, the scene shifted to the Detective’s Bu- reau on the third floor of the police station. Petitioner was placed at one end of a long table beside his mother who had finally arrived. The victim was seated at the other end of the table, next to Officer Bilinovich, facing pe- titioner and his mother. Others in the room included sev- eral police officers. William Patton and his parents may also have been present (Tr. 243), but it appears that they were not (Tr. 147-260, 340, 476). At this confrontation, petitioner was given Miranda warnings in the presence of his mother and the victim. (Tr. 242, 260). At the prompting of the police, the victim related to petitioner and his mother the nature of the crimes, and accused petitioner to his face of being one of the assailants. (Tr. 147). Petitioner denied any involve- ment (Tr. 240), but the victim never waivered in her cer- tainty (Tr. 294). This second confrontation lasted ap- proximately one hour. (Tr. 262). At its conclusion, ac- cording to the testimony of officer Bilinovich, the victim was “emphatic” about her identification. (Tr. 262) Peti- tioner was detained as a consequence. 9. butt e the n ine ean, warnings were given petitioner but it was the first time it was done in presence of III. The test to be applied in passing on whether the ad- mission of the victim’s in- court identification amounted to a denial of due process may best be seen as two-pronged. As was said by Judge Friendly in United States ex rel. Phipps v. Follette, 428 F.2d 912 (2nd Cir.), cert denied 400 US. 908 (1970) at 914-15: “The first question is whether the initial identification procedure was ‘unnecessarily’ . . . or ‘impermissibly’ . . . Suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘im- permissibly’ suggestive was so ‘conducive to irrepar- able mistaken identification . . or had such a ten- dency’ to give use to a very substantial likelihood of misidentification . . that allowing the witness to make an in-court identification would be a denial of due process.” See also United States ex rel. Bisordi v. LaVallee, 461 F.2d 1020 (2nd Cir. 1972). Respondent argues that the pre-trial identification pro- cedures here involved may not be viewed as “show-ups.” It is emphasized that the victim was shown two boys and not just one, particularly during the first encounter. This argument is specious. The victim was presented at the police station with two “suspects,” each matching the de- scription of only one of her assailants. Her viewing of the boys may not be categorized as being similar to that of a “lineup” procedure, where she would have been required to select from a group of persons of substantially similar appearance. The victim obviously v.2ewed each of the boys separately and distinctly. Accordingly, what took place here was in the nature of a “show-up,” wherein a “witness is presented with an individual and asked if he can make A29 an identification,” United States ex rel. Raymond v. Illi- nois, 455 F.2d 62, 63 n.1 (7th Cir.), cert. denied 409 U.S. 885 (1972). One man “show-ups” have been harshly criticized by the courts. See e.g. Stovall v. Denno, supra, at 302. At the same time, there is no per se rule declaring them violative of due process or requiring exclusion of testimony relating to them. See Neils v. Biggers, 409 U.S. 188, 198 (1972) (“But as Stovall makes clear, the admission of evidence of a show-up without more does not violate due process.“); See also Stidham v. Wingo, 482 F.2d 817 (6th Cir. 1973); Hastings v. Cardwell, supra; Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973); Roper v. Beto, 454 F.2d 499 (5th Cir.) cert denied 406 U.S. 948 (1972) (O’Sullivan J.). As was said in United States v. Davis, 407 F.2d 846, 847 (4th Cir. 1969): [D]ue process does not require that every pre-trial identification of a witness must be conducted under laboratory conditions of an approved lineup.” “Show-ups” however, are inherently suggestive, and in this case there are present certain aggravating factors. Petitioner, it is true, was not in handcuffs at the time he was viewed by the victim. But he was clearly in custody, sitting in one of the offices used for bookings in the police station. At the initial “show-up”, the victim was sur- rounded by police officers who she knew to be familiar with the crimes she endured, and who had invited her to view “suspects.” The victim, moreover, according to her own testimony at trial, had been informed by the police of the suspicious circumstances of the boys’ arrest. Signifi- cant, too, is the fact that the telephone call summoning her to the station on the evening of July 30, was the first contact she had had with the police since the date of the assault, two weeks earlier. A30 The second confrontation was clearly conducive to a hardening of the victim’s identification. This time, the victim’s attention was on petitioner alone for nearly one hour, and she heard him deny her word. Emotions must have been running high. Indeed, according to the testi- mony of petitioner’s mother, at one point both petitioner and the victim offered to take lie detector tests. (Tr. 474). Any vengeful motives or outrage that the victim may have felt were given full rein for development. United States v. Wade, supra at 230. The Court perceives little if any justification for these procedures. These were not confrontations occurring promptly after the crimes. See eg. Stidham v. Wingo, supra; Hastings v. Cardwell, supra; Mock v. Ross, 472 F.2d 619 (6th Cir.), cert denied 411 U.S. 971 (1972); Bates v. United States, 405 F.2d 1104 (D.C. Cir. 1968) (Burger J.) Nor was there any urgency or emergency necessitating them. See e.g. Stovall v. Denno, supra. Rather they were deliberate encounters, neatly orchestrated by the police. Contrast Mock v. Rose, supra. At trial, when policewoman Bilinovich was asked why no lineup was arranged, she testified that she was “aware of the policy of the Juvenile Court that they do not hold lineups for children when you bring them in off the street” (Tr. 290). This explanation may only be taken as extraor- dinarily lame, when one considers the serious nature of the crimes involved, and the importance of a proper and reliable identification. Significantly, Officer Bilinovich testified that when three other children were picked up as possible suspects prior to June 30, she at least took the precaution of checking their alibis, before proceeding fur- ther. Finding these alibis to be firmly established, these three children were released without more. A31 Notwithstanding the “unnecessary suggestiveness” of the pre-trial. identification procedures, a. claimed violation of due process must be assessed in light of the totality of the circumstances. In Neils v. Biggers, supra at 198 the Supreme Court reaffirmed: “the primary evil to be avoided is ‘a very substantial likelihood of irreparable mis- identification.’ Simmons v. United States, 390 U.S. at 384.” The record here is replete with indicia that the victim was not overborne by the suggestiveness of the procedures used, and that her in-court identification had a definite independent basis. First, it is clear that the victim spent approximately fifteen minutes to one-half hour with her unmasked assail- ants at extremely close range, and under well lighted conditions. The victim, in consequence, had ample oppor- tunity to fix petitioner’s image in her mind. Second, the victim was “no casual observer, but rather the victim of one of the most personally humiliating of all crimes” Neils v. Biggers, supra at 200. Third, the victim did give the police a description of petitioner which, although seem- ingly somewhat general, was entirely consistent with peti- tioner’s appearance. Fourth, and perhaps most significant, the victim immediately and firmly identified petitioner at the police station, but was unable to do the same with regard to his companion. This circumstance goes far to indicate that the victim was careful, and not influenced by the suggestiveness of the “show-ups.” - The “show-ups” here took place two weeks after the crime, and there is no denying that “the longer the interval between the crime and the confrontation the greater the likelihood that the second image will play an important role in the in-court identification.” United States ex rel. Bisordi v. LaVallee, supra at 1024. The factors listed above, however, firmly militate against this having oc- curred. Other cases, moreover, have not found in-court identifications proceeded by “show-up” vicwings taking place after equivalent relatively short intervals to be viola- tive of due process where the record provides strong, coun- tervailing indicia that the identifications were essentially reliable, and not the product of police suggestion. e.g. Johnson v. Salisbury, 448 F.2d 374 (6th Cir.), cert denied 405 U.S. 928 (1971); Hancock v. Tollett, 447 F.2d 1323 (6th Cir. 1971); United States ex rel. Bisordi v. LaVallee, supra; United States ex rel. Rutherford v. Deegon, 406 F.2d 217 (2nd Cir.), cert denied 395 U.S. 983 (1969). See also Neils v. Biggers, supra. Petitioner contends that the victim, immediately subse- quent to the incident “was so emotionally upset that she was uncertain as to what exactly was happening to her, and who was saying or doing what.” There is no basis for this in the record. There is testimony that the vic- tim was very upset, and was crying (Tr. 126, 210, 212), and that she received sedation upon being taken to the hospital. Officer Billinovich testified, however, that the victim was “coherent” when she interviewed her at the hospital (Tr. 267), and it is clear that the victim had enough control to give the police an account of what had happened, and a description of her assailants. Under cross-examination, the victim never faltered in her unequivocal and positive identification of petitioner.” Petitioner emphasizes that when the victim was asked A33 petitioner asserts, demonstrates the unreliability of her identification, as objective evidence introduced at trial indi- cated that at that time petitioner was substantially taller and weighed far more. This apparent discrepancy, as well as other alleged infirmities in the victim’s testimony, are matters essentially going to the weight to be given such evidence. Their relevance to the inquiry being made here is marginal. As was said in United States v. Casscles, 358 F. Supp. 517 (E.D. N.Y. 1973) reversed on other grounds 489 F.2d 20 (2nd Cir. 1973): “The court is not concerned with the reliabil- ity of properly admitted identification testimony, but only whether the procedures leading to the identifica- mn ee constitutionally inadmissible. . . A factor to be emphasized is that the victim was subjected to extensive cross-examination at trial. All facts concerning possible misidentification were before the state trial court, and were forcefully argued in closing arguments (Tr. 683-689). See United States ex rel. Rutherford v. Deegon, supra. The state trial court, however, who saw and heard all the witnesses, gave credence to the victim’s identification, notwithstanding any alleged infirmities, and rejected petitioner’s alibi defense, which was developed through his own testimony and that of several relatives, and one close friend of his family. This is not a case like Foster v. California, 394 U.S. 440 (1969) where the pre-trial confrontation procedures utilized by the police were such as to lead almost inexo- rably to a defective identification. Rather it is much more analogous to cases where, at the very least, in-court identi- fications were found to be constitutionally permissible. A34 See e.g. Neils v. Biggers, supra; Hancock v. Tollett, supra; United States ex rel Carnegie v. MacDougall, 422 F.2d 353 (2nd Cir.), cert denied 398 U.S. 912 (1970). The Court concludes that even though the pre-trial confrontations were “unnecessarily suggestive,” they did not give rise to such a danger of “irreparable mistaken identification” as to require the exclusion of the victim’s eye-witness testimony. Accordingly, the victim’s in-court identification was properly admitted in evidence. The peti- tion for writ of habeas corpus is denied. The petitioner is ordered to surrender himself to the appropriate authorities within ten days of entry of this order. If he does not voluntarily surrender within ten days, it is ordered that he be taken into custody by the proper authorities, unless otherwise ordered by a court of competent jurisdiction. IT IS SO ORDERED. /s/ Franx J. Barrier Chief Judge A35 APPENDIX I Order of the Court of Appeals for the Sixth Circuit _ Filed April 23, 1975) No. 74-2130 UNITED STATES COURT OF APPEALS For Tue Srxrs Cmcurr bens JAMES SALER, Petitioner-Appellant, v. RALPH KREIGER, et al., Respondents-Appellees. ORDER Before: CELEBREZZE, MILLER and ENGEL, Circuit Judges. The petitioner, James Saler, appeals the denial by the district court of his petition for habeas corpus, challeng- ing his conviction in an Ohio state court on various criminal chargés of a serious nature, including rape. The sole ground on which the petitioner challenges the validity of his conviction in the state court is that the state used illegal pretrial showup procedures for the purpose of hav- ing the victim of the alleged crimes identify the petitioner as one of her assailants. The district court, relying upon the facts developed at the state court trial; found that although the procedures were unnecessarily suggestive, the suggestion under the totality of the circumstances was Ax not so conducive to irreparable misidentification as to con- stitute a denial of due process of law. We have examined the record and we find that this conclusion of the district judge is fully supported by the state court record and is in accord with the ruling of the Supreme Court of the United States in Neil v. Biggers, 409 U.S. 188 (1972). It is therefore ORDERED and ADJUDGED that the judgment of the district court be and the same is hereby affirmed. Entered by Order of the Court. /s/ Jom P. Huna Clerk APPENDIX J Title 28, United States Code, Section 2254(d) (relevant provisions) “In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant, for the writ and the State or an officer or agent thereof were parties, evi- denced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (1) that the merits of the factual dispute were not resolved in the State court hearing; A37 (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determina- tion has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0754%3A1. Public record. Not legal advice.