# Appendix — Neil v. Biggers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0075%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 409 U.S. 188 ## Text INDEX In the United States District Court Middle District of Tennessee Nashville Division Archie Nathaniel Biggers, Petitioner, ee } Civil Action No. 5120 Lake F. Russell, Warden, Tennessee State Penitentiary, é Respondent. te et ty As 4” ee ee : NON Re hoe Orne ak ov te Ae vieis 6'6's's'p.6 bine: AS Petition for a Writ of Habeas Corpus and for Leave to Proceed in Forma Pauperis, WOE AGA ON we ie sheds bes pahesiewae 6-666 A. 6 Motion to Dismiss, August 6, 1968 ............ A; 37 Co ae Oe fo eae Affidavit of Avon N. Williams, Jr., fine 17, 1969 Affidavit of Mrs. Flora Marie Hammonds, Se SE! oo! Dae ne eer ee eee A. 26 Affidavit of Archie Nathaniel Biggers, je Si RN re ee A. 29 | PE) ga) RR 6) SUN ag ae A. $1 Order, April 17, 1970 ....... Renee oes eas eee cis A. 32 Motion to Reconsider, April 24, 1970 pace es cite A. 44 Order, @May 4, 1970 .......00. saueiclsinigte so 'e.8 5/6) A. 45 motice of Appeal, May 11,1970 cscccecccicceecce INDEX (Continued) TRANSCRIPT OF PROCEEDINGS Appearances CCC CSOT ESE ETE DEE OSE EEE EE EOE Oe PE 06 iS vases bobsde ones eesecece eeesesesecce Opening Statement of Respondent . Testimony of William A. McDaniel, r— Direct Examination ........cccccccccccccce Cross-Examination ..........ccccccccccees Redirect Examination ............. jeneeeon Testimony of Dr. Irwin Pollack— Direct Examination ......... TrereTee cc rere Cross-Examination ...........ccccccceuce Redirect Examination .............ccceece Testimony of Flora Marie Hammonds — Direct Examination .............. $tevenes Cross-Examination ...........ccccccecece Testimony of Margaret Frances Beamer — Direct Examination ................. cbse Cross-Examination ............cccccccece Testimony of Floyd Bailey — Direct Examination ...... écneseas esenee i. Cross-Examination ............cccceuce oi Curriculum Vita, Irwin Pollack ............ : Proceedings —Opening Statement of Petitioner .. | SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1971 No. 71-586 \ - WILLIAM S, NEI WARDEN, aes os Petitioner, ARCHIE NATHANIEL BIGGERS, Respondent. a ON WRIT OF CERTIORARI TO THE UNITED STATES ) COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR CERTIORARI FILED OCTOBER 27, 1971 CERTIORARI GRANTED FEBRUARY 28, 1971 A. 2 Introductory Statement May it Please the Court: By Order of February 28, 1971, this Court granted the motion of Petitioner to use the record in No. 237, October Term, 1967. That record may be found in Volume Si, Transcripts of Records and File Copies of Briefs, Nos. 232- 237, Supreme Court of the United States, October Term, 1967, in the library of the United States Supreme Court. The transcript of the record-used in 1967 together with the file copies of the briefs found in said Volume 51 is complete with the exception of the transcript of oral argu- ment when this case was heard January 15, 1968. That oral argument has been transcribed and filed in this cause as Appendix J (found in "Motion for Leave to Supplement Appendix to Petition for Writ of Certiorari") (in blue cover, ) Also a part of the record in No. 237, October Term, 1967, was the order of this Court granting certiorari (Appendix H at page A67 in the petition for certiorari), per curiam opinion affirming the judgment below (Appendix G in the petition for certiorari, at A61) and the order of this Court denying a petition to rehear (Appendix F to the peti- tion for certiorari, at A60). This Appendix contains all the relevant items, opinions and judgments except as above stated and except the opinion of the United States Court of Appeals for the Sixth Circuit which is found in the appendix to the petition for writ of Y? certiorari as Appendix A at pages Al-A38, * * The Sixth Circuit Opinion (Appendix A) and the transcript of oral argument in 1968 (Appendix J) (in blue cover), have not been reprinted in this single appendix in accordance with the Clerk's memorandum to counsel which ad- vises that these need not be reprinted where they were previously included in a printed petition for certiorari. A. 3 In The UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION . ARCHIE NATHANIEL BIGGERS, Petitioner, v . LAKE F. RUSSELL, Warden Tennessee State Penitentiary Nashville, Tennessee, > Civil Action No. 5120 Respondent. 7 RELEVANT DOCKET ENTRIES July 1, 1968 Order entered by Judge William E. Miller directing Clerk to file petition for writ of habeas corpus in forma pauperis; Copy to be served on the At- ‘tomey General, State of Tennessee; Respondent to filé his answer within the time allowed by law; respondent will submit affidavits in support of his position, and peti- tioner shall have 15 days thereafter to file his own affi- davit in support of the allegations in his petition and to propound written interrogatories to the respondent's af- fiants. After the affidavits and interrogatories have been filed, the Court will determine what further action is re- quired. August 6, 1968 Motion to Dismiss filed by A. 4 Docket Entries - defendant, with Exhibits A & B. Certificate of service attached. . May 12, 1969 Order Entered: Respondent's Motion to Dismiss is denied; Evidentiary Hearing required to determine factual issues; Clerk to set hearing; Merits of Petitioner's contentions will be deferred until after hear- ing (Att. copy to Petitioner, to Hon. Avon Williams and Hon. James C. Dale). May 28, 1969 Filed: ANSWER of Respondent, c/s attached. June 9, 1969 Filed: Brief of Petitioner, c/s attached. June 17, 1969 Filed: Affidavit of Avon N. Williams, Jr. on behalf of plaintiff. June 17, 1969 Filed: Affidavit of Mrs. Marie Hammons - on behalf of plaintiff, June 17, 1969 Filed: Affidavit of Archie Nathaniel Biggers, Petitioner. July 29, 1969 Order Entered: Evidentiary hearing - confined to issues set forth in order - to be set by Clerk. Attested copy to attomeys of record and to petitioner, Archie Nathaniel Biggers. April 17, 1970 Order entered granting peti- tion for writ of habeas corpus, and discharging the peti- tioner from custody after the state has had a reasonable time to retry him upon the same charge. Copy to at- torneys of record and to the petitioner.’ April 24, 1970 Motion to reconsider filed by respondent, with brief in support thereof. Certificate of service attached. May 4, 1970 Order entered denying respond- ent'’s motion to rehear. Copy to attomeys of record. May 11, 1970 Filed: Respondent's Notice of Appeal from Order entered April 17, Att. copy mailed to attorneys for Petitioner, Avon N. Williams and Nichael Meltsner. A.,5 In The United States District Court Middle District of Tennessee, Nashville Division [Title Omitted in Printing] . ORDER (Received for Entry 2:30 P.M., July 1, 1968) The Clerk is directed to file in forma pauperis the peti- tion of Archie Nathaniel Biggers for writ of habeas corpus. A copy of the petition and order will be forwarded to the Attorney General, State of Tennessee, Nashville. The Respondent is directed to file his answer within the time allowed by law to show cause why the writ of habeas corpus should not issue. Respondent will submit affidavits in support of his position on all factual issues, and Petitioner shall have fifteen days thereafter to file his own affidavit in support of the allegations in his petition and to propound written interrogatories to the Respondent's affiants, or to file answering affidavits of other affiants. After such affidavits and any interrogatories have been filed with the Clerk, the Court will determine what further action is required. /s/ Wm. E. Miller UNITED STATES DISTRICT JUDGE A. 6 {fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division (Title omitted in printing] PETITION FOR A WRIT OF HABEAS CORPUS AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Filed July 1, 1968) TO: The Honorable William E. Miller United States District Judge I (jurisdiction) This is an application for a writ of habeas corpus to relieve the petitioner of restraint under a conviction im- posed upon him by the State of Tennessee in violation of the Constitution of the United States. A United States District Court is authorized to entertain the application by 28 U.S.C. §2241(a) (1964). II (Petitioner) (A) Petitioner is a citizen of the United States and is a resident of the State of Tennessee. He is a pauper and because of his poverty, he is unable to pay the (fol. 2] cost of this action and is unable to give security for same. Petitioner is currently imprisoned at the Tennessee State Penitentiary. (B) Petitioner, a Negro, was found guilty of rape and sentenced to twenty years in prison in the Criminal Court of Davidson County, Tennessee on December 3, 1965. His conviction and sentence were affirmed by the Tennes- see Supreme Court on January 12, 1967, 411S.W.2d 6%. Petition for rehearing was denied on March 1, 1967. A petition for a writ of certiorari in the Supreme Court of the United States was granted and the judgment affirmed Ay? Petition for Writ of Habeas Corpus, Etc. by an equally divided court, _,, U.S. _,,, 19 L. Ed. 2d 1267, 88S. Ct., on March 18, 1968. A petition for re- hearing was denied April 22, 1968. III (Respondent) The respondent in this action is Lake F. Russell, Warden of the Tennessee State Penitentiary, who has cus- tody of petitioner. IV (Circumstances of the Offense, Arrest, Identification, and Trial) (A) On the night of January 22, 1965, Mrs. Margaret Beamer, a 39-year old Negro woman, was raped by an in- truder. Brandishing a large butcher knife the assailant entered her house through a rear door, grabbed her from behind in an unlit hallway and threw her to the floor. Mrs. Beamer's attention was drawn to the attacker's knife and she was in fear for her life. (B) Hearing her mother shout, Mrs. Beamer's 13- year old daughter ran into the hallway. She approached within a foot of the intruder, whose face was tumed to- ward her, before being ordered back into her bedroom. The intruder then took Mrs. Beamer out of the house through an unlit kitchen up a railroad embank - (fol. 3] ment to a nearby patch of woods there he raped her. The events surrounding the crime lasted from 10 to a maximum of 30 minutes. (C) During the following seven months, the police re- quested Mrs. Beamer to look at police photographs on several occasions and although she identified the picture of one man who was not petitioner as “having features" like the rapist, the case lay dormant. A. 8 Petition for Writ of Habeas Corpus, Etc. (D) During the evening of August 16, 1965 petitioner, a 16-year old Negro male, with no criminal record, was receiving medical treatment at Hubbard Hospital in Nash- ville, Tennessee where he had gone with his mother. They were accosted by a police officer who mentioned that a woman (Mrs. Silverman) had been assaulted in the Bor- deaux area of Nashville, and sought to take Biggers to her home for attempted identification. On the officer's promise to return petitioner home immediately thereafter, his mother reluctantly agreed. The officer then took pe- titioner to Mrs. Silverman's home where she attempted to but could not identify him. (E) Instead of taking petitioner home, the officer then took him to the Juvenile Court Building where he was kept outside in the car and questioned by officers for some time. Thereafter the officers charged him with the offense of loitering, took him into the Juvenile Court Building, and left him there with the night attendant. By this time it was dawn. He slept there until morning, when the police picked him up and took him to the Metropolitan Jail. There they questioned him about two hours, then put him in a cell. (F) In the afternoon of August 17, petitioner was brought into the presence of Mrs. Margaret Beamer who identified him as the person that had raped her seven months earlier. Petitioner's mother and counsel retained by his mother after his arrest were not notified of or present (fol. 4] at the identification proceeding. The circum- stances of the identification were as follows: (G) On August 17th the police went to Mrs. Beamer's home and brought her to the police station, telling her that they wanted her to “look at a suspect" in one of the rooms in the detective division, The police brought petitioner into the adjoining hall and then to the doorway of the room A.9 Petition for Writ of Habeas Corpus, Etc. in which Mrs. Beamer was seated. Mrs. Beamer was shown petitioner in the doorway in the presence of at least five policemen. Although a lineup could easily have been assembled, petitioner was presented as the only sus- pect. Mrs. Beamer asked the police to have petitioner speak, and the police instructed him to repeat words spoken by the rapist at the time of the offense: ‘Shut-up, or I'll kill you."" Only after she heard him speak the rapist's words did Mrs. Beamer identify Archie Biggers as the man who had raped her. (H) An August 17th edition of the Nashville Tennes- sean, carried a front page story of the Silverman assault and petitioner's arrest. Although not named, petitioner was described therein as a "burly-16-year old Negro." According to the article, he had been identified by the victim; the police were questioning him in connection with similar incidents and would confront him with victims of these earlier incidents. An August 18th edition of the paper showed a picture of petitioner entering jail and stated that he had confessed to attacking Mrs. Silverman; that Mrs. Margaret Beamer had identified him as her at- tacker, and that two other attempted rape victims could not identify him. (I) At petitioner's trial the state initiated reference to newspapers accounts of petitioner's arrest in order to establish that Mrs. Beamer had identified petitioner be- fore his photograph appeared on August 18th. The trial record does not show whether Mrs. Beamer had seen the first story in the Tennessean published on the {fol. 5] morning of the 17th. On information and be- lief, she saw that story. (J) Petitioner was indicted for the rape of Mrs. Beamer on October 1, 1965 and tried two months later. At trial, A. 10 Petition for Writ of Habeas Corpus, Etc. the only evidence connecting him with the rape was Mrs. Beamer's identification. Her thirteen-year old daughter testified to what she saw but was unable to identify peti- tioner as the rapist. (K) On direct examination four of the five police of- ficers who were present at the pre-trial identification de- scribed Mrs. Beamer's identification of Biggers at the police station. Petitioner's counsel objected that this testimony served to bolster the impact of the identifica- tion on the jury but the objection was overruled. (L) Petitioner testified in his own behalf and denied that he committed the act charged. He also told the jury that the police directed him to speak the words of the rapist and that Mrs. Beamer did not identify him until after he had spoken. Petitioner's mother, stepfather, and seven friends and neighbors testified that petitioner was an obedient and truthful young man of good reputation who had never before been in "trouble." (M) In his summation, the prosecuting attomey char- acterized the issue in the case as one of identification. He repeated Mrs. Beamer's identification testimony and related a story concerning a case that he had tried, the point of which was that violence and terror result in ac- curate identification: (fol. 6] In many parts of our United States, Gentle- men of the Jury, a case of this nature would 1 Mr. Williams; ——that it is immaterial, — that I objected to on the other— it is immaterial and incompetent. She has already testified with regard to how identification — and that identification has to be weighed by the Jury on the basis of what she has testified, not on the basis of what— of this happened— a test to try to build it up by having about three or four police officers come in here and say, Why, yeah, I saw her identify him. That is not evidentiary, Your Honor. ye | Petition for Writ of Habeas Corpus, Etc. never go to trial, and I'm sorry to say, it's all south of the State of Tennessee, and that is because of this fine woman, Mrs. Beamer's environment, economic circumstances, and situation, she's not considered in those states to.have any more rights than a dog and her reproductive organs —. On the basis of Mrs. Beamer's identification the only evi- dence linking petitioner to the rape, the jury found Archie Biggers guilty and he was sentenced to the State Vocational Training School for Boys for twenty years 2 (N) The trial of the case began on November 29, 1965 and ended December 3, 1965. The selection of a jury en- tailed a voir dire of well over one hundred veniremen, and a special venire of one hundred-eleven prospective jurors had to be subpoenaed by the Court for December 1, 1965 in order to complete the selection of the jury. The ma- jority of the veniremen admitted on voir dire that they had read newspaper reports about the arrest of petitioner on several charges of rape in the Fall of 1965. Some of those seated on the jury which tried the case admitted that they had read such news stories. (O) At the time of trial petitioner had no real estate or other valuable property, and was unemployed, having been confined to jail since his arrest on August 17, 1965. His mother, Mrs. Flora Marie Hammons, likewise had and has no valuable property, and is and has been for many years a domestic servant earning approximately $37.50 per week. Petitioner has no father, having been bom out of wedlock. Although petitioner was originally sentenced to an institution for youth- ful offenders, he has been placed in the Tennessee State prison, a facility for adults, A. 12 Petition for Writ of Habeas Corpus, Etc. (P) These facts relating to the indigency of Biggers were stated, in substance, to the trial judge upon the hear - ing of the motion for new trial in the case and also upon the hearing of a post-trial motion seeking a re- (fol. 7] consideration of the trial court's action in deny- ing a state-furnished transcript of the evidence. The voir dire examination of prospective jurors alone would have required several hundred pages to be tran- scribed. Petitioner and his mother were unable even to pay for a transcript of the evidence itself, so that petition - er's counsel was compelled to advance payment for a transcript of the evidence. Counsel were unable to ad- vance the sum necessary for transcription of the extensive voir dire and were therefore obstructed in the preparation of the motion for new trial and the appeal in this case, and forced to forego presentation of all issues of State and fed- eral constitutional law arising out of the selection of the jury. V (First Claim) By presenting petitioner for identification without a line- up and without notifying his parents or retained counsel, and by making him speak the words of the rapist in the absence of circumstances justifying such a procedure, the State violated his rights under the Due Process Clause of the Fourteenth Amendment. This "showup" method of procedure was so impermissively suggestive as to give rise to a very substantial likelihood of irreparable mis- identification as shown, in part, by the following circum- stances: (1) Mrs. Beamer's identification of petitioner was un- corroborated. A. 13 - Petition for Writ of Habeas Corpus, Etc. (2) Her thirteen year old daughter was unable to iden- tify petitioner. (fol. 8] (3) Mrs. Beamer's opportunity to observe her assailant has been conceded by the State to have been “limited."" She never saw him in direct light and could only observe him for from 10 to 30 minutes. (4) Petitioner was described to Mrs. Beamer as a "suspect" by the police. (S) He was compelled to speak the inflammatory words used by the rapist without opportunity being afforded for comparison. (6) The gap between the crime and the identification was seven months. (7) The State treated the jury in a manner which sub- stantially impaired its capacity to appraise the identifica- tion objectively: newspapers were used as a forum for grossly prejudicial comment on the case; the jury was selected from persons exposed to this comment; the jurors were reminded of the harmful stories by the prose- cution or voir dire and at trial; police officers were per- mitted to testify again and again to the fact of identifica - tion although it was not controverted; finally, the jury was subjected to a summation which the Supreme Court of Tennessee characterized as appealing to racial preju- dice and which that aia ec to be error, albeit non- reversible. VI (Second Claim) By compelling petitioner to speak the words used by the rapist and by introducing his speech as evidence of peti - tioner's guilt on direct examination, the State denied peti - A, 14 Petition for Writ of Habeas Corpus, Etc. tioner's privilege against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the Constitution. VII (Third Claim) By admitting in evidence the identification of petitioner, obtained as a result of a pre-trial confrontation (fol. 9] held while petitioner was unlawfully arrested, the state violated rights guaranteed to him by the Fourth and Fourteenth Amendments to the Constitution . VOI (Fourth Claim) By refusing to require the state to defray the costs of preparation of the transcript of evidence despite his plain indigency the state denied petitioner's rights under the Due Process Clause and Equal Protection Clause of the Constitution. IX (Fifth Claim) By affirming petitioner's conviction despite the inflam- matory and prejudicial remarks of the prosecuting attorney in his summation to the jury suggesting that because prose- cutrix was a Negro woman he would not have been brought to trial in states south of the State of Tennessee and re- lating her reproductive organs to those of a dog, Tennes- see violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This argument was mani- festly improper and calculated to unduly inflame and preju- dice the jury and unduly motivate its conviction of defend - ant on bases other than evidence introduced in the case and on racial grounds. A. 15 Petition for Writ of Habeas Corpus, Etc. X (Sixth Claim) The totality of circumstances surrounding petitioners conviction especially, that there was absolutely no evi- dence connecting defendant with the offense except the in- substantial identification made by the prosecutrix and the prejudicial evidence to which the jury was exposed violated petitioner's right to a fair trial as protected by the Due Process Clause of the Fourteenth Amendment. {fol. 10) ~ XI Petitioner has exhausted all available state remedies and no previous petition for writ of habeas corpus has been filed in this matter. WHEREFORE, petitioner respectfully requests: ~ 1) That a writ of habeas corpus be directed to re- spondent; 2) That respondent be required to appear and answer the allegations of this petition; 3) That petitioner be accorded an evidentiary hearing on the allegations of this petition; 4) That after a full and complete hearing petitioner be relieved of the unconstitutional conviction and sentence imposed upon him; 5) That petitioner be allowed such other, further and alternative relief as may seem just, equitable and proper under the circumstances; 6) That petitioner be allowed to file this petition with- out pre-payment of cost and that this proceeding be allowed in forma pauperis. A. 16 Petition for Writ of Habeas Corpus, Etc. pi ee ee ee Respectfully submitted, AVON N. WILLIAMS Charlotte at Fourth Nashville, Tennessee JACK GREENBERG MICHAEL MELTSNER 10 Columbus Circle . New York, New York 10019 ANTHONY G. AMSTERDAM 3400 Chestnut Street Philadelphia, Pa. 19104 Attorneys for Petitioner VERIFICATION State of Tennessee _ ) ) SS. County of Davidson ) Archie Nathaniel Biggers being first duly sworn upon oath according to law, deposes and says that he has read the foregoing petition, and that he knows the contents thereof to be true except as to such matters as are stated upon information and belief and these he verily believes to be true and that he believes he is entitled to the relief sought therein. /s/ Archie Nathaniel Biggers Sworn to and subscribed before me this 18th day of June, 1968 /s/ Signature Ilegible A. 17 (fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] MOTION TO DISMISS (Filed August 6, 1968) The petitioner was convicted in Davidson County for the offense of rape on December 3, 1965 and received a twenty (20) year sentence. Certified copies of the technical record and bill of ex- ceptions are attached hereto as Exhibits A and B respec - tively. This judgment of conviction was duly appealed to the Tennessee Supreme Court and was confirmed by that Court in the reported decision of Biggers v. State, 219 Tenn. 553, 411S.W.2d 696 (1967). The United States Supreme Court granted certiorari and affirmed by an equally divided court. Biggers v. State of Tennessee, 390 U.S. 404 (1968). (fol. 2] The crux of the instant petition is that the petitioner was denied his Fifth, Sixth and Four- teenth Amendment rights regarding the circumstances of his identification by the victim, This issue has been | fully considered and decided adversely to the petitioner by both the Tennessee Supreme Court and the Supreme Court of the United States. It is further submitted that the petitioner's last three contentions, under the facts and circumstances of the in- stant case, simply do not rise to the dignity of a denial of constitutional due process. For the foregoing reasons, the respondent respectfully moves that the petition for writ of habeas corpus filed in this case be dismissed and denied A. 18 Mution to Dismiss /s/ David W. McMackin DAVID W. McMACKIN, Assistant Attorney General, Supreme Court Building, Nashville, Tennessee. [Certificate of Service Omitted] A. 19 [fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] ORDER (Received for Entry 4:15 P.M., May 12, 1969) This action involves a motion by the respondent to dis - miss the petition for writ of habeas corpus filed by Archie Nathaniel Biggers. The petitioner was convicted of rape in the Criminal Court of Davidson County, Tennessee, in 1965. The judgment was affirmed by the Supreme Court of Tennessee and then by an equally divided Supreme Court of the United States early in 1968. Biggers has now peti- tioned the Court for a hearing on his writ of habeas corpus, pursuant to 28 U.S.C. 82241. Respondent maintains that the constitutional questions here raised by the petitioner have been fully considered and decided adversely to him by the United States Supreme Court. It is the position of the respondent that the Court should not, therefore, redetermine the same issues. Though the present case has been argued before the Supreme Court, the decision of that Court is without force as precedent. When the Supreme Court is [fol. 2] equally divided as to the outcome of a case, the judgment is automatically affirmed without ‘ opinion. Etting v. Bank of the United States, 24 U.S. 59 (1826). Had there been a more conclusive decision re- garding the legal questions in the present case, the Court could easily decline any further review. There would be little reason for the Court to rehear arguments previously rejected by the highest judicial authority. But the Supreme Court did not settle the merits of this case, and affirmed only through an equal split in opinion. The Court there- fore concludes that it is not precluded from hearing evi- A. 20 Order, 5/12/69 dence on- the petitioner's allegations, and the respondent's motion to dismiss is hereby denied. The Court being of the opinion that an evidentiary hear - ing is required to determine the factual issues in this cause, it is ORDERED that a hearing be set by the Clerk at the earliest time consonant_with the Court Calendar. Ary analysis of the merits of the petitioner's contentions will be deferred until after the evidentiary hearing. /s/ Wm. E. Miller UNITED STATES DISTRICT JUDGE A, 21 [fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] ANSWER (Filed May 28, 1969) The Respondent, Lake F. Russell, Warden, Tennessee State Penitentiary, for answer to the Petition for a writ of habeas corpus, filed against him in the above cause, says: L Respondent admits that he is the duly appointed and qualified warden of the Tennessee State Penitentiary at Nashville, Tennessee, and that Petitioner, Archie Nathaniel Biggers, is presently therein confined, having been convicted of the crime of rape in the Criminal Court of Davidson County, Tennessee, on December 3, 1965, and having been sentenced to a term of twenty (20) years in prison. Petitioner's conviction was affirmed by the Tennessee Supreme Court on January 12, 1967, the opinion of such Court appearing in 411S.W.2d 696. Subsequent to the denial by the Tennessee Supreme Court of a Petition for rehearing, a Petition for a writ of certiorari was granted by the Supreme Court of the United States and the judgment of the Tennessee Supreme Court affirmed by an equally divided Court, 19 L. Ed. 2d 1267, on March 18, 1968, after which decision a Petition for rehearing was denied. 4 (fol. 2] Il. Respondent denies that any rights of Petitioner were violated by the procedures employed by the Metropolitan Police Department in presenting Petitioner, then a suspect, to the victim of his crime. Petitioner here seeks to attack A, 22 Answer of Warden the sufficiency of the identification evidence, a matter not appropriate for inquiry on Petition for writ of habeas corpus. Ill. Respondent denies that Petitioner's privilege against self-incrimination was in any way violated by his being asked to speak the words used by the rapist, and Respond - ent further denies that “such speech" was introduced on direct examination with the exception of the victim's tes- - tifying as to the words that the rapist spoke. IV. Respondent denies that the refusal of the trial judge to require the State to defray the cost of preparation of the transcript of evidence in any way denied any right of Peti- tioner since a hearing was held and it was determined that Petitioner was not an indigent. V. Respondent denies that any right of Petitioner was vio- lated by alleged inflammatory and prejudicial remarks made by the prosecuting attomey since such remarks were immediately objected to by defense counsel, the trial judge just as immediately sustained the yobjection, and the prose- cuting attorney forthwith abandoned that line of comment. Wis Respondent denies that Petitioner was denied a fair trial and again would point out to the Court that (fol. 3] the entire thrust of the petition for habeas corpus filed herein is an attack upon the sufficiency of the evidence adduced at the trial of Petitioner. A, 23 Answer of Warden VII. Respondent admits that Petitioner has exhausted all available state remedies but submits to the Court that for the reasons stated in the motion to dismiss hereinbefore filed that the petition for writ of habeas corpus should be dismissed. Respondent further denies generally all things not here- inbefore specifically denied and having fully answered asks the Court to dismiss the petition for habeas corpus and to require the Petitioner to complete the service of his time. /s/ James C. Dale, Il James C. Dale, III Special Counsel State of Tennessee 709 Nashville Bank & Trust Bldg. Nashville, Tennessee 37201 [Certificate of Service Omitted] A. 24 (fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] AFFIDAVIT OF AVON N. WILLIAMS, JR. (Filed June 17, 1969) STATE OF TENNESSEE DAVIDSON COUNTY Avoa N. Williams, Jr., after being duly sworn accord- ing to law, deposes and says: That deponent is one of the counsel of record for the petitioner, Archie Nathaniel Biggers, in the above case and is a member of the Bar of the State of Massachusetts and Tennessee, the United States District Courts for the Eastern, Middle and Western Districts of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Supreme Court of the United States, and has been practicing lawyer in the State of Tennessee since 1948. That the document attached hereto marked Exhibit "A" is a true and correct copy of the transcript of the record in the above case filed in the Supreme Court of the United States during its October Term, 1967, as Case No. 237 on Writ of Certiorari to the Supreme Court of Tennessee, Middle Division, and that said transcript of the record contains a true and correct transcript of the record of trial in the above case before the Criminal Court of David- son County, Tennessee, Division I, and of the proceedings on appeal in the Supreme Court of Tennessee. That the deponent has examined the petitioner's personnel record in the Juvenile Court of Davidson County, Tennessee, and that the said record shows he was arrested at 5:25 A. M. 8-17-65 on a technical charge of lottering issued from the Juvenile Court after (according to the affidavits of Mrs. A, 25 Affidavit of Avon N. Williams, Jr. Flora Marie Hammonds and petitioner) having been seized about 11:00 P.M. at Hubbard Hospital by Metropolitan De- tectives, submitted to Mrs. Carrie B. Silverman for an unsuccessful identification, and questioned at [fol. 2] some length and for several hours in a car out- side the Juvenile Court Building in the early morning hours of said day, before being turned over to the Juvenile Court at 5:25 A.M. FURTHER DEPONENT SAITH NOT. /s/ Avon N. Williams, Jr. Sworn to and subscribed before me this 16th day of June, 1969. /s/ Mrs. Mavis W. Donnelly Notary Public Commission Expires: 7-29-69 .S A. 26 [fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] AFFIDAVIT OF MRS. FLORA MARIE HAMMONDS (Filed June 17, 1969) STATE OF TENNESSEE DAVIDSON COUNTY Mrs. Flora Marie Hammonds, after being duly sworn according to law, deposes and says: That she is 38 years of age and resides at 2106-A Scovel Street, Nashville, Tennessee, and is the mother of Archie Nathaniel Biggers, the petitioner in the above case. On 16 August 1965 said petitioner, then a 16 year old child, arrived home at approximately 10:00 P.M. with acuton his arm. The deponent took him to Hubbard Hospital, Nashville, Tennessee, for treatment of same reaching the hospital at about 10:30 P.M. Upon her ar- rival, she noticed Metropolitan Police were already there in connection with another case. A Negro detective in- quired how petitioner got his arm cut. The petitioner then told the detective about the dog chasing incident at 18th and Scovel wherein he fell and hurt his arm. The Negro detective asked deponent for permission to take petitioner back to 18th and Scovel at that time. Deponent agreed to this upon the detective's promise to bring the petitioner home immediately afterward. Deponent then went home and, when the policeman did not return the petitioner home, telephoned the Metropolitan Police Sta- tion where the Police personnel to whom she talked seemed to know nothing about the case. Finally, about 2:00 or 3:00 A.M., 17 August 1965, being extremely concerned, a oe A. 27 Affidavit of Mrs. Flora Marie Hammonds deponent went to the Metropolitan Police Station and was there advised by the Police that petitioner was across town at the Juvenile Court Building, 2nd and Lindsley, Nashville, Teanessee. She immediately went to the Juvenile Court Building where she found the petitioner in the custody of Metropolitan Police Officers who refused to release the petitioner to his parent, the deponent, al- though to the best of the petitioner's knowledge, [fol. 2] said police officers had no warrant for the peti- tioner's arrest or detention at that time. The police officers advised deponent that petitioner had stated he wanted to take a lie detector test the next morning be- cause he had nothing to hide. Later that morning, 17 August 1965, deponent was telephoned by the Metropolitan Police and requested to come down and take petitioner to a State building for the lie detector test. She arrived at the Juvenile Court Building about 8:00 A.M. that morning to find that the Metropolitan Police had already taken the boy from the Juvenile Court Building across town to the Metropolitan Police Station. At this time, deponent tele- phoned and engaged Mr. Z. Alexander Looby as attomey for the petitioner. Mr. Looby advised her not to have the child submit to a lie detector test. Deponent then immediately stated to the Metropolitan Police that petitioner was not to have a lie detector test on advice of his counsel and that the petitioner was being represented by Mr. Looby. Later that morning, deponent received a phone call from Mr. Looby advising her to return to Juvenile Court and pick up the petitioner since Mr. Looby had been informed the only charge against the child was a warrant for lotter- ing. However, when deponent reached the Juvenile Court sometime late morning or early afternoon, the probation officer there informed her that the petitioner had been re- turned to the Police Station. When deponent returned to A, 28 Affidavit of Mrs. Flora Marie Hammonds the Police Station that afternoon (17 August 1965) she was informed by the Police that the petitioner had now been identified by a lady in Bordeaux on the charge of assault with intent to ravish and also by a Negro woman on a charge of rape and that he could not be released. Depon - ent was not at any time advised or informed by the Metro- politan Police or anyone else that the petitioner was being subjected or submitted to a show-up or any other identifi - cation procedures on 17 August 1965. Although the de- ponent was continuously seeking to obtain the release of the petitioner from the time when she first became con- cerned and called the Metropolitan Police Station about midnight or shortly thereafter on 16 August 1965, on to the afternoon of 17 August 1965, she was never informed by the Metropolitan Police of any charge against said minor child and that the only information that she received in that regard was that from her attorney about (fol. 3) the lottering charge sometime after 8:00 A.M. 17 August 1965. FURTHER DEPONENT SAITH NOT. /s/ Mrs. Flora Marie Hammonds Sworn to and subscribed before me this 16th day of June, 1969. /s/ Avon N. Williams, Jr. Notary Public Commission Expires: 8-7-71 _PLAINTIFF ‘'S EXHIBIT NO. 1 “FILED: November 4, 1969 CASE NO. 5120 BRANDON LEWIS, CLERK BY /s/ Guy W. Cooper, D.C. A, 29 [fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] AFFIDAVIT OF ARCHIE NATHANIEL BIGGERS (Filed June 17, 1969) STATE OF TENNESSEE DAVIDSON COUNTY Archie Nathaniel Biggers, after being duly sworn ac- cording to law, deposes and says: That he is petitioner in the above case and is now twenty years of age, having been born 14 January 1949. On 16 August 1965, he was on his way home in the evening be- tween 9:00 and 10:00 P.M. when he was attacked by dogs at 18th and Scovel Street, Nashville, Tennessee, and cut his arm when he fell to the ground in process of chasing them off. On reaching home, he was taken to Hubbard Hospital by his mother, Mrs. Flora Hammonds, and there they were accosted by a policeman who asked how he had received his injury. The petitioner told the police- man about the incident at 18th and Scovel, whereupon the policeman and deponent's mother held a conversation which resulted in the policeman being allowed to take the petitioner with them. The Metropolitan Police Officers then put the petitioner in their car and took him to an area of Nashville known as Bordeaux and to the home of a Mrs. Carrie D. Silverman where they submitted him alone to Mrs. Silver- man for identification. Mrs. Silverman attempted but could not identify the petitioner. However, instead of taking the petitioner home, the Metropolitan Police Officers took the petitioner to the Juvenile Court Building where they kept him outside in the car questioning him for a long time. A. 30 Affidavit of Archie N. Biggers Thereafter the officers took him into the Juvenile Court Building and left him there with the night attendant. By this time, it was dawn. Petitioner slept there until morn- ing and had breakfast about 7:30 A.M., after which the Metropolitan Police Officers picked him up and took him to the Metropolitan Jail where they questioned him about two hours and then put him in a cell. Later on that day they brought him down from his cell and submitted him alone to Mrs. Margaret Beamer, the prosecutrix {fol. 2] in the above case, and to other women for identi- fication. FURTHER DEPONENT SAITH NOT. /s/ Archie Nathaniel Biggers Sworn to and subscribed before me this 16th day of June, 1969, /s/ Avon N. Williams, Jr. Notary Public Commission Expires: 8-7-71 A. 31 [fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] ORDER (Received for Entry 12:30 P.M., July 29, 1969) In this habeas corpus proceeding, the Court remains of the opinion, expressed in its Order entered on May 12, 1969, that an evidentiary hearing is required to determine the issues in this cause. After reviewing the transcript and briefs, the Court desires open court testimony on the following matters: the nature of the "“show-up” identifi - cation process as opposed to the "line-up" identification process, and why the former process was employed in the instant case; and, the general reliability of voice identification procedures, and their relative importance compared with other methods of identification in linking the petitioner to the offense alleged in the instant action. It is ORDERED that an evidentiary hearing, confined to these issues, be set by the Clerk at the earliest time consonant with the Court calendar. /s/ Wm. E. Miller UNITED STATES DISTRICT JUDGE A. 32 (fol. 1] ty ‘The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] ORDER (Received for Entry 8:30 A.M., April 17, 1970) In this habeas corpus proceeding, the Court issued an order on July 29, 1969, to the effect that an evidentiary hearing should be held to determine whether or not there were unconstitutional irregularities in the identification process employed by the police in the instant case. This identification procedure was the primary basis for peti- tioner's indictment. In ordering such a hearing, the Court was particularly concemed with the validity of the so-called "show-up" identification method as it was used by police and, also, the reliability and validity of voice identification procedures utilized in the instant case. A hearing on these issues was held on October 30, 1969, and supplemental briefs were filed by both parties to the action several weeks later. Before reaching the merits of petitioner's claims, a brief statement of the facts is in order. Petitioner, Archie Nathaniel Biggers, when 16 years of age, was con- victed on a charge of rape in a jury trial and sentenced to 20 years in prison. On appeal to the Supreme (fol. 2] Court of Tennessee, the conviction was affirmed. Biggers v. State, _.. Tenn. __, 411S.W.2d 696 (1967). The case was then accepted for review by the Supreme Court of the United States on a writ of certiorari. Biggers v.Tennessee, 390 U.S. 404 (1968). Again, the conviction was affirmed. However, the af- firmation was the result of an equally divided court and, therefore, did not amount to an adjudication of the merits of petitioner's claims so as to prevent him from bringing the instant habeas corpus action. [See the May 12, 1969 A. 33 Order, 4/17/70 Order entered by this Court in the instant case; and also see, Etting v. Bank of the United States, 24U.S. 59 (1826). ] The pertinent operative facts in light ef the issues raised in the current proceeding are as follows. On the evening of January 22, 1965, Mrs. Margaret Beamer was attacked at knife-point by an intruder who broke into her home. Mrs. Beamer's screams aroused her thirteen-year old daughter who rushed to the scene and also began to scream. At this point, the intruder is alleged to have said to Mrs. Beamer, "You tell her to shut up, or I'll kill you both." This Mrs. Beamer did, whereupon she was taken from the house to a spot two blocks away and raped, The en- tire episode occurred in very dim light and the rape it- self occurred in moonlight. As a result, Mrs. Beamer could give only a very general description of her assailant, describing him as being fat and flabby with smooth skin, bushy hair and a youthful voice. [fol. 3] Over a seven month period following the crime the police showed Mrs. Beamer various police photographs and had her attend several "line-ups" and "show-ups." However, the victim was unable to identify any of the persons shown to her as being her as- sailant. Finally, on August 17, 1965, petitioner was arrested as a suspect in the rape of another woman. While petitioner was being detained in connection with that case the police asked Mrs. Beamer to come to the police station to "look at a suspect." The identification process employed at this point was called a show-up. In this type of identification procedure, the suspect appears before the victim alone rather than in the company of others. The victim therefore does not have to attempt to choose one person from a group of persons presented to him, as in a line-up, but rather the victim knows that A. 34 Order, 4/17/70 the person presented to him for identification is one whom the police suspect of having committed the crime. At the instant show-up Mrs. Beamer identified petitioner as being her assailant, As to what transpired at the show-up, there is some conflict between the testimony given by Mrs. Beamer at the trial and that given by her at the evi- dentiary hearing held in this court on October 30, 1969. In testimony given at the trial, Mrs. Beamer testified that on viewing the petitioner the "first thing" that made her think he might be her assailant was his voice. How- ever, at the October hearing, Mrs. Beamer testified that she identified petitioner positively prior to having him speak the words spoken by Mrs. Beamer's attacker more than seven months earlier during the crime —"You tell her to shut up or I'll kill you both." There is (fol. 4] also conflict between the testimony given by police officers at the trial and that given by them at the October hearing as to whether or not identifi- cation of petitioner was made before or after he was asked to speak these words. At any rate, petitioner was identified at this show-up as being Mrs. Beamer's attacker, and the subsequent in- dictment and conviction of petitioner was based almost exclusively upon this station house identification.! Turning now to a consideration of the legal consequences attaching to the identification process described above, the basic issue to be dealt with may be defined as follows: was petitioner subjected to a type of identification procedure, namely the show-up confrontation, which was so unneces - sarily suggestive and conducive to irreparably mistaken 1 ‘There is considerable doubt on reading the trial record as to whether or not Mrs, Beamer made a positive in-court identification of petitioner at the time of the trial. . A. 35 Order, 4/17/70 identification as to have the effect of denying due process of law to the petitioner? There are relatively few cases dealing with this issue and the validity of the show-up identification process in the light of due process considera - tions. However, the teachings of this small body of law point the way for decision of the issue now before the Court. It is well settled that in the absence of exceptional cir- cumstances any identification procedure, whether in the nature of a show-up or a line-up, employed without giving the suspect the right to have counsel present constitutes a denial of due process. United States v. Wade, 388 U.S. 218 (1967); and, Gilbert v. California, 388 [fol. 5] U.S. 263 (1967). Though petitioner in the in- stant case was not provided with the advice of counsel, the rule-of Gilbert and Wade has no application here since that rule was not given retroactive effect. Stovall v. Denno, 388 U.S. 293 (1967). The Stovall de- cision makes it clear, however, that aside from the right to counsel, a suspect also has the right not to be subjected to police identification procedures which are so unfair, given the "totality of the surrounding circumstances, " as to present a significant possibility of irreparably mis- taken identification. Where such faulty procedures are employed, theypresent a "recognized ground for attack upon a conviction. ..." See, Stovall v. Denno, supra, at 302; Simmons v. United States, 390U.S. 377 at 383 (1967); and Palmer v. Peyton, 359 F.2d 199 (4th Cir., 1966). In light of these general principles, Mr. Justice Douglas succinctly stated the issue involved here in his dissenting opinion in the earlier consideration of petition - er's case by the Supreme Court of the United States. He pointed out that whether or not the procedure by which Mrs. Beamer identified petitioner denied him due process of law "must be evaluated in light of the totality of the A. 36 Order, 4/17/70 surrounding circumstances" with the view of determining if the procedure in petitioner's case "was so unduly preju- dicial as fatally to taint his conviction." Biggers v. Ten- nessee, 390U.S. 404 at 406 (1967). The show-up identification process is, as the expert witness for petitioner testified, a far less re- (fol. 6] liable method of identification than the line-up method. The fact that this is so has been given judicial recognition. In Wise v. United States, 383 F.2d 206 (D.C. Cir., 1967); and, Wright v. United States, 404 F.2d 1256 (D.C. Cir., 1968), it was stated that "the presentation of only one suspect in the custody of the ce raises problems of suggestibility that brings us to the threshold of an issue of fairness." See also, Biggers v. Tennessee, supra at 407-408; and, Stovall v. Denno, supra at 302. See also, Wall, Eye Witness Identification in Criminal Cases 26-40, and Paul, "Identification of Accused Persons," 12 Austl. L. J. 42, 44 (1938) (as cited by Mr. Justice Brennan in the majority opinion in Stovall v. Denno, supra.) The problem intrinsic in the show-up identification pro- cess is perhaps best stated as follows: Whatever may be said of lineups, showing a suspect singly to a victim is pregnant with prejudice. The message is clear: the police suspect this man. That carries a powerfully suggestive thought. Even in a lineup the ability to identify the criminal is severely limited by normal human fallibilities of memory and perception. When the subject is shown singly, havoc is more likely to be played with the best-intended recollections. Biggers v. Tennessee, supra at 407 (Justice Douglas’ dissent. ) A. 37 Order, 4/17/70 However, the use of the show-up process is not per se unconstitutional. Where special circumstances such as an urgent need for rapid identification are present, show- ups are allowable. For example, in Stovall, the Court found that the show-up was permissible and {fol. 7] within the bounds of due process where the pro- cedure was conducted in the hospital room of the victim who was at the point of death following a stabbing attack. Clearly, in that case, there was no time to con- duct a line-up and the urgency of the situation demanded that if any eye-witmess identification was to be obtained at all it had to be obtained by the show-up method. The “totality of surrounding circumstances" was such that the show-up was found to be permissible. Aside from the urgent sort of deathbed situation which occurred in the Stovall case, thorough analysis of case law in the area reveals certain other sets of circumstances in which a show-up has been held permissible. For ex- ample, courts have upheld the constitutionality of the show- up where the witness had an unusually good and sustained opportunity to view the participants in the commission of the crime. The theory of the courts is that this particular circumstance makes it unlikely that a show-up would lead to misidentification. See, United States ex rel. Gracia v. Follette, 417 F.2d 709 (2d Cir., 1969); Macklin v. United States, 409 F.2d 174 (D.C. Cir., 1969); United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir., 1969); Cline v. United States, 395 F.2d 138 (8th Cir., 1968); and Hanks v. United States, 388 F.2d 171 (10th Cir., 1968). Show-ups have also been given court approval where the confrontation between the witness and the accused occurs "so near the time when the alleged crime was committed" that the chance of misidentification A. 38 Order, 4/17/70 (fol. 8] is minimal. The time period within which the show-up may be permissible ranges from a few hours to a few weeks. See, United States ex rel. Williams v. LaValle, 415 F.2d 643 (2d Cir., 1969); Stewart v. United States, 418 F.2d 1110 (D.C. Cir., 1969); United States ex rel. Anderson v. Mancusi, 413 F.2d 1012 (2d Cir., 1969) (suspect identified within hours of crime); Clark v. United States, 408 F.2d 1230 (D.C .Cir., 1968) (suspect identified within a few weeks and a “very positive spontaneous identification" by the witness); and, Bates v. United States, 405 F.2d 1104 (D.C. Cir., 1968). Also, where the show-up was conducted following other independ- ent identification by the witness (i.e., photographic identi - fication), or a particularly good description of the partici- pant in the criminal act, courts have tended to approve the procedure. See, United States v. Thompson, 417 F.2d 197 (4th Cir., 1969). While the show-up has been approved within the con- text of the four situations déscribed above, the courts have zealously guarded the rights of the accused where the show-up procedure was conducted in a manner so sug- gestive and conducive to irreparably mistaken identifica- tion as to amount to a denial of due process. For ex- ample, a show-up was expressly disapproved where a witness was shown a lone suspect and asked, "Is this the man?" In this situation, the court stated that the words and actions of the police in contriving the show-up clearly indicated to the witness that the police thought this suspect had committed the crime, thereby contributing (fol. 9] toa “mutual reinforcement of opinion" likely to lead to mistaken identification. See, Clark v. United States, 294 F. Supp. 44 (D.D.C., 1968). In another case, a Circuit Court of Appeals upheld the hold- ing of a federal district judge that a cell block confrontation A. 39 Order, 4/17/70 between a witness and a suspect was unnecessarily sugges - tive and therefore the identification obtained from the show- up could not be introduced at the trial. That show-up was objectionable on due process grounds because the suspect had been presented alone to the witness in a screened-off portion of the jail and the witness knew beforehand that the suspect was considered by police to be the culprit. See, Clemons v. United States, 408 F.2d 1230 (D.C. Cir., 1968); and see also, United States v. Gregg, 414 F.2d 943 (7th Cir., 1969). In yet another case, a show-up identification was dis - allowed because the identifying witness did not have the opportunity to obtain a good view of the pargicipants in the crime. See, United States v. Gilmore, 398 F.2d 679 (7th Cir., 1968). The hesitancy of a wimess to make a positive identification in a show-up has also been said to indicate the type of misidentification danger which would contravene constitutional requirements of due process. These cases make it quite clear that while a show-up is constitutionally acceptable in certain situations, courts will look carefully at the factual situation surrounding the show-up to determine whether or not the procedure was conducted in such a manner as to violate due [fol. 10] process requirements. Courts also have looked to the surrounding circumstances to deterntine whether or not a line-up should have been conducted rather than the show-up with its attendant dangers of misidentifi- cation. For example, where police custody is involved, it has been held that the need for a formal line-up may not be circumvented by keeping a suspect away from the stationhouse until an informal show-up confrontation can be contrived. See, United States v. Venere, 416 F.2d 144 (Sth Cir., 1969). A. 40 Order, 4/17/70 The Stovall case and the cases discussed immediately above make it clear that while the practice of showing sus - pects singly to witnesses for identification is widely con- demned, each case of this type must be judged on its own facts and that convictions based on show-up identifications will be overturmed only if the identification procedure was so impermissibly suggestive as to give rise to a very sub- . stantial likelihood of irreparable misidentification. See, Simmons v. United States, 390 U.S. 377 at 384 (1967). Though the show-up is clearly a less reliable method of identification than the line-up, it is necessary in some circumstances and this Court does not subscribe to a rule that would prohibit its-use as a matter of constitutional requirement. However, the “totality of surrounding cir - cumstances" must be examined closely in this case to determine whether special circumstances or exigencies such as those described above existed which would war- rant the use of the show-up instead of the more reliable line-up procedure, (fol. 11] On this basis the Court must conclude that the circumstances here present are not such as to warrant the show-up procedure and, consequently, that its use at petitioner's trial denied him due process of law. Respondent, arguing in support of the use of the show-up procedure, relies chiefly on the contention that a show-up was actually fairer to petitioner than a line-up would have been since no prisoners were readily available in either the Metro Jail or the juvenile home whose general descrip- tion matched that of petitioner. To have conducted a line- up under these circumstances, contends respondent, would have had a greater tendency to cause a misidentification because in a dissimilar group the physical characteristics of petitioner, whose general description matched that of A, 41 Order, 4/17/70 Mrs. Beamer's assailant, would have been unduly ac- centuated. This argument has perhaps some value but it is at best debatable. According to expert testimony produced by petitioner's attorneys, a line-up where no one had physical characteristics similar to petitioner would have been less preferable than one where members of the group all had certain similar characteristics but, in any event, would be preferable to a show-up. This conclusion is derived from the belief that any line-up would be a better test of the victim's memory since it would demand the exercise of some selectivity in identi- fication. Furthermore, there is no indication that a truly concerted effort was made to produce suitable sub- jects for a line-up. Aside from a phone call [fol. 12] to the juvenile home and a screening of Metro Jail inmates no other efforts were made. There are several other prison facilities in the area and there is no evidence that any effort was made to screen them for subjects. The Court sees no reason why this could not have been done in order to maximize the fairness of the identification process. Here, there was no evidence of any deathbed urgency as in Stoval which would have precluded the police from delaying the identification pro- cedure until a suitable line-up could have been arranged. The crime was seven months old, the victim was fully recovered and well, and there are no other indications that the ends of justice demanded an immediate show-up rather than a much more reliable line-up. Furthermore, none of the other circumstances which the above discussed cases indicate may justify a show-up existed in the instant case. The evidence clearly shows that the complaining witness did not get an opportunity to obtain a good view A, 42 Order, 4/17/770 of the suspect during the commission of the crime” Also, the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its commission.* Finally the witness in the instant case was unable to give either an independent photographic identification of the suspect or a good physical (fol. 13] description of her assailant.* The nature of the show-up as conducted in this case —with the great lapse of time between the crime and the identifi- cation, the hesitancy of the witness in identifying the peti- tioner,’ the circumstances of the stationhouse confronta - tion coupled with Mrs. Beamer's knowledge that petitioner was thought by police to be her assailant —tended to maxi- mize the possibility of misidentification of the petitioner. True, it may have been more convenient for the police to have a show-up. However, in matters of constitutional due process where police convenience is balanced against the need to extend basic fairness to the suspect in a crimi- nal case, the latter value should always outweigh the form- er. In this case it appears to the Court that a line-up, which both sides admit is generally more reliable than a show-up, could have been arranged. The fact that this was not done tended needlessly to decrease the fairness of the identification process to which petitioner was sub- jected. 2 The only other eye-witness, Mrs. Beamer's daughter could not identify Biggers. And see, the case of United States ex rel. Garcia v. Follette, supra and accompanying text and cases. 3 See the case of United States ex rel. Williams v. LaVallee, supra, and accompanying text and cases. 4 See the case of United States v. Thompson, supra, and accompanying text and cases. 5 See United States v. Gilmore, supra, and accompanying text. A. 43 Order, 4/17/70 Due process of law and basic fairness demand that the most reliable method of identification possible be used in acriminal case. See, Simmons v. United [fol. 14] States, supra, at 383-384. The conduct of the show-up in this case created an atmosphere which was so suggestive as to enhance the chance of mis- identification and hence constituted a violation of due pro- cess. Clearly, this identification did not amount to a harmless error, since the victim's identification of petitioner was virtually the only evidence upon which the conviction was founded. See, Chapman v. California, 386 U.S. 18 (1966). In view of this conclusion, the Court finds it unneces - sary to reach the issue of whether voice identification as used here amounted in itself to a violation of due process. It may be that the validity of such identification should normally be left to the jury. Since the voice identifica - tion took place during the show-up and the show-up pro- cedure itself is unconstitutional as employed in this case, there is no reason to reach the specific issue raised con- cerning voice identification. Accordingly, judgment will be entered granting the ap- plication of Archie Nathaniel Biggers for a writ of habeas corpus, voiding the conviction obtained in the state coyrt, and discharging the petitioner from custody after the state has had a reasonable time to retry him upon the same charge, any such new trial to be “unaffected by Mrs. Beamer's station -house identification and the testimony of the police officers who were present when it took place." Biggers v. Tennessee, supra at 409. /s/ Wm. E. Miller UNITED STATES DISTRICT JUDGE A. 44 (fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] MOTION TO RECONSIDER (Filed April 24, 1970) Comes the Respondent, Lake F. Russell, and moves the Court to reconsider its Order of April 17, 1970, in the above captioned matter insofar as such Order holds that the affirmance of Petitioner's conviction by an equally divided United States Supreme Court was not an adjudica- tion on the merits of his claims so as to prevent him from bringing the instant habeas corpus action for the reasons Stated in the accompanying memorandum brief. /s/ James C. Dale, III JAMES C. DALE, III Special Counsel State of Tennessee 706 Nashville Bank ahd Trust Building Nashville, Teunessee 37201 (Certificate of Service Omitted] A, 45 (fol. 1] 1) The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] ORDER (Received for Entry 9:00 A.M., May 4, 1970) Respondent in the instant case has filed with the Court a Motion to Reconsider. In so doing, respondent alleges that the Court erred in accepting jurisdiction over the in- stant habeas corpus matter and in deciding on the merits of petitioner's claims. Respondent's allegation of error rests on the proposition that the affirmation of petitioner's conviction by reason of the equal division of opinion of the United States Supreme Court when it heard petitioner's case in Biggers v. Tennessee, 390 U.S. 404 (1968), was an adjudication that “is as conclusive and binding upon the parties as if rendered upon the concurrence of all partici- pating judges upon every question involved in the case." Respondent further contends that since the issues raised in this case have been thus "adjudicated" by the Supreme Court, the doctrine of res judicata should apply and the instant petition should have been dismissed by the Court. The issue raised by respondent's present {fol. 2] ~ motion may be stated thusly: In a habeas corpus proceeding, does an affirmation by reason of an equal division of opinion among the Justices of the Supreme Court amount to an adjudication between the parties which, even though no decision was rendered as to the merits of petitioner's claim, must be considered final in that the doctrine of res judicata would bar petitioner from raising the same constitutional claims in a subsequent habeas corpus petition? After a thorough consideration of the case law relevant to the issue, the Court remains of the opinion expressed A. 46 Order, 5/4/70 in its Order of May 12, 1969, that the merits of petitioner's constitutional claims were left undecided by the equally divided Supreme Court and that the doctrine of res judicata does not operate in such a manner as to bar petitioner from raising those constitutional claims again as presented in his habeas corpus petition. It is generally true that when the Supreme Court is equally divided as to the out- come of a case, the judgment is automatically affirmed without opinion. Etting v. Bank of the United States, 24 U.S. 59 (1826). Furthermore, as respondent points out, there is a general rule to the effect that "an affirm- ance by an equally divided court is, as between the parties, a conclusive determination and adjudication of the matter adjudged ...." Hertz v. Woodman, 218U.S. 205 (1910); and see United States v. Pink, 315 U.S. 203 (1942); Durant v. Essex Co., 74 U.S. 107 (1868); and, Kaku Nagana v. Brownwell, 212 F.2d 262 (7th Cir. 1954). However, the Court is of the view that the general rule espoused in the above cited cases cannot be (fol. 3] taken to stand for the proposition that a technical affirmation which results from the fortutious circumstance of an equally divided court and which makes no pronouncement, either pro or con, on the merits of the constitutional claims of a habeas corpus petitioner, must be protected by the doctrine of res judicata. The cases cited by respondent in support of his argument are unconvincing since they deal wholly with litigation concern- ing property rights! rather than the right of a criminal 1 In cases involving contract rights, various property rights, tax liability questions, etc., there are overriding economic and administrative interests in seeing that finality is achieved in litigation so that “business can pro- ceed as normal." The cases cited by respondent make this very clear. In Hertz v. Woodman, 218 U.S. 205 (1910) the Court was concerned with deciding who was entitled to the possession and enjoyment of a distributive (Continued on following page) A. 47 Order, 5/4/70 defendant to due process of law where there is a possibility that his liberty or even his life may be forfeit. As the leading cases on the effect of affirmation due to an evenly divided court make clear, the principles of law which are argued in such a case are not decided but, rather, are left unsettled. In such a circumstance, the Court affirms out of necessity since, in its evenly divided state, it cannot overturn the lower court ruling. Such an affirmation is a technicality only, growing out of the policy of judicial administration that there must at some point [fol. 4] bean end to litigation. See, Etting v. Bank of the United States, 24 U.S. 59 (1826). It is inconceivable that a technical rule such as this, born to serve the needs of judicial administration, could be employed to deny a criminal defendant the right to ob- tain a full judicial determination of his constitutional claims in the federal courts. Certainly, it would amount to a travesty on justice if such a result were permitted. In the circumstances surrounding this case that travesty would be compounded by the fact that the even split of opinion occurred because of the necessity of Mr. Justice Marshall having to recuse himself apparently due to past professional association with petitioner's attorneys. The liberty of petitioner and others like him should not be left to the mercy of mere fortuity. (Continued from preceding page) share of an estate for tax purposes; in Durrant v. Essex Co., 740 U.S. 107 (1868) the question involved rights in certain realty; in United States v. Pink, 315 U.S. 203 (1941) the Court was concerned with the disposition of surplus funds of a Russian insurance company; and in Kaku Nagana v. Brownwell, 212 F.2d 262 (7th Cir. 1954) suit was brought to recover stock vested by an alien property custodian pursuant to the Trading with the Enemy Act. A. 48 Order, 5/4/70 Fortunately, it has been recognized from early common law days to the present that such technicalities cannot be used to thwart the right of the criminal defendant to have the merits of his constitutional claim fully adjudicated. As the United States Supreme Court has recently stated: “Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of con- stitutional rights is alleged." Sanders.v. United States, 373 U.S. 1 at 8 (1962).2 Indeed, it has long (fol. 5] been recognized as a “familiar principle that res judicata is inapplicable in habeas proceed- ings." Fay v. Noia, 372 U.S. 391 at 423 (1962). If government is always to be accountable to the judiciary for a man's imprisonment, then access to the courts by way of habeas corpus must not be thus impeded. "The inapplicability of res judicata to habeas, then, as inherent in the very role and function of the writ." Sanders v. United States, supra at 8; and see e.g. Fay v. Noia, supra at 402; King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (K.B. 1801); and, Cox v. Hakes, 15 A.C. 506 (H.L., 1890). The Court is not persuaded by respondeht's proposed interpretation of 28 U.S.C.A. §2244(c) dealing with the finality of determinations by federal courts in habeas corpus proceedings. As Sanders makes clear, §2244(c) was “not intended to change the law as judically evolved." Furthermore, "if construed to derogate from the tradi- tional liberality of the writ of habeas corpus, ... §2244 might raise serious constitutional questions."° Sanders S See Note 1 supra. 3 See U. S. Const. Art. 1§9, cl. 2 which provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it. " A. 49 Order, 5/4/70 v. United States, supra at 11-12 and see, Fay v. Noia, supra at 406. It should be made clear that while ves judicata is in- applicable in habeas corpus proceedings, it is proper for a judge to deny subsequent applications for habeas corpus. relief on the ground that the first denial had followed a full hearing on the merits. However, it should also be made clear that a judge is permitted to dismiss on such grounds and not required to order a dismissal [fol. 6] by reason of any considerations of res judicata. See, Salinger v. Loisel, 265 U.S. 224 (1960); and, Sanders v. United States, supra. The Sanders case is instructive as to the types of situa- tions in which a judge may correctly elect to dismiss a habeas corpus petition on the ground that a previous hear- ing has disposed of the petitioner's claims on their merits. Sanders states that: “Controlling weight may be given to denial of a prior application for federal habeas corpus of §2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders, supra at 15. and further that: "No matter how many prior applications for federal collateral relief a prisoner has made, [controlling weight may not be given to denial of prior application] if a different ground is presented by the new applica- tion [or] if the same ground was earlier presented but not adjudicated on the merits.'' [Emphasis added]. Sanders, supra at 17. A. 50 Order, 5/4/70 Looking to the facts here presented in light of the Sanders rule and the foregoing reasoning, the Court con- cludes that the prior hearing of petitioner's appeal by the United States Supreme Court did not determine the merits of petitioner's constitutional claim. Further, as the memorandum opinion issued by the Court on April 17, 1970, makes clear, the ends of justice have (fol. 7] been served by this Court in hearing petitioner's case and reaching the merits of the constitutional claims presented. The fact that petitioner's conviction was technically affirmed by reason of the United States Supreme Court's even division of opinion is of no conse- quence here since the merits of the claim were not ad- judicated. Even if they had been adjudicated, Sanders shows that those claims would not have been automatically barred from consideration by this Court in a habeas corpus proceeding. It occurs to the Court that there is yet another logical reason to support its decision to consider petitioner's claim. The United States Supreme Court hearing in the Biggers case followed the acceptance by the Court of a writ of certiorari to review the affirmation of petitioner's conviction by the Tennessee Supreme Court. The fortutous circumstance of an equally divided United States Supreme Court simply had the effect of leaving undisturbed without opinion the ruling of the State Supreme Court. Therefore, the instant habeas corpus petition is, in effect, an initial federal habeas corpus petition alleging error in a state criminal conviction. This being the case, the Supreme Court of the United States has recently established the > proposition that notions of finality, such as res judicata, forfeiture, or waiver, cannot be applied so as to preclude the intial consideration of federal constitutional claims in a federal court. Fay v. Noia, supra at 428. A. 5l Order, 5/4/70 [fol. 8] Finally, it should be readily apparent that the situation presented in the instant case is highly analagous to the situation where a criminal defend- ant, after appealing his case to the highest state court, has had his conviction affirmed by that court and has sub- sequently sought relief by way of habeas corpus petition in a federal district court. The analogy may be drawn as follows. Due to the equal division of opinion among the Justices, the United States Supreme Court did not de- cide this case on its merits. Therefore, the Tennessee State Supreme Court is the highest court to have expressed an opinion as to the merits of petitioner's claim. That being the case, the Court is of the view that petitioner Biggers stands in essentially the same position as a crimi- nal defendant who, having exhausted his state court remedies pursuant to 28 U.S.C.A. 82254, makes application for habeas corpus relief in federal district court. In such a situation, and in the instant situation, this Court has juris- diction to fully adjudicate petitioner's constitutional claims since it is an unchallengable principle of law that in habeas corpus cases the ruling of the highest court of a state on a constitutional claim never bars consideration of the same constitutional issue by a federal district court. Principles of res judicata simply have no application in this situation. Accordingly, for the foregoing reasons the Court con- cludes that the technical affirmation of petitioner {fol. 9] Biggers' state convittion by reason of the equally divided court does not foreclose this Court from disposing of the petitioner's constitutional claim on its merits.. Therefore, respondent's Motion to Rehear should be, and the same is hereby, dismissed. /s/ Wm. E. Miller UNITED STATES DISTRICT JUDGE A. 52 (fol. 1] In The United States District Court Middle District of Tennessee, Nashville Division [Title omitted in printing] NOTICE OF APPEAL (Filed May 11, 1970) Notice is hereby given that William S. Neil, Warden, Respondent above named, hereby appeals to the United States Court of Appeals for the Sixth Circuit from the order sustaining the petition for the writ of habeas corpus, entered in this action on the 17th day of April, 1970. May 7, 1970. /s/ James C. Dale, Ill ° James C. Dale, II Special Counsel . State of Tennessee 706 Nashville Bank and Trust Building Nashville, Tennessee 37201 A. 53 TRANSCRIPT OF PROCEEDINGS IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ' ARCHIE NATHANIEL BIGGERS, Petitioner Vs. LAKE F. RUSSELL, Warden, Tennessee State Penitentiary, Respondent 7 \ FILED JUN 15 1970 BRANDON LEWIS, Clerk By L. M, Edwards, DC CIVIL ACTION No. 5120 BEFORE: The Honorable William E. Miller, Judge TRANSCRIPT OF PROCEEDINGS Nashville, Tennessee November 4, 1969 [2] APPEARANCES: FOR THE PETITIONER: Mr. Michael Meltsner Suite 2030 : 10 Columbus Circle New York, New York, 10019 FOR THE RESPONDENT: Mr. James C. Dale, III Bailey, Ewing and Dale Nashville Bank and Trust Building Nashville, Tennessee [3] » INDEX WITNESS Direct Cross Redirect Recross Opening Statements: Mr. Meltsner > Mr. Dale 13 William A. McDaniel, Jr. 17 32339 Dr. Irwin Pollack 47 62 83 Flora Marie Hammonds 85 87 Petitioner rests 88 Margaret Frances Beamer 88 97 Floyd Bailey 101 104 Respondent rests 104 PETITIONER'S EXHIBITS % NUMBER Description Ident. Filed 1 Affidavits of Petitioner, Mrs. Flora Hammonds, Mr. Avon M. Williams, Jr., and Transcript of Record, Supreme Court of the United States 1] ll 2 Curriculum Vita, Irwin Pollack, September, 1968 A. 55 [4] TRANSCRIPT OF PROCEEDINGS THE COURT: Call the case, Mr. Clerk, THE CLERK: Case No. 5120, Archie Nathaniel Biggers v. Lake F. Russell, Warden. MR. DALE: If the Court please, I think Mr. Meltsner has been introduced to the Court informally, but I thought I would take this opportunity to request his admission to practice before this Court. He is a member of the Bar of the State of New York, of the Supreme Court of the United States, of the Fourth, Fifth and Eighth Circuit Courts of Appeals, and I request his admission to practice before .-this Court, THE COURT: All right, sir, glad to have you to parti- cipate in the case, MR. MELTSNER: Thank you, sir. THE COURT: We're glad to have you to participate in the case, and you will begin by giving me a short history of the case and a statement of the issues involved. MR. DALE: Mr. Meltsner, do you think we better have our witnesses step outside? THE COURT: How many witnesses are there? MR, DALE: We have one in the courtroom, if Your Honor please. THE COURT: Well, let the witnesses be excused [5] to the witness room, retire to the witness room, (Whereupon, the witnesses were excused from the courtroom under the rule of exclusion. ) MR, MELTSNER: Briefly, Your Honor, this case was tried in the Criminal Court of Davidson County, in A, 56 Proceedings 1965. The evidence at that time showed that there had been a rape occurring in Nashville in January, 1965. The victim had been a Mrs. Margaret Beamer, THE COURT: What's the name? MR. MELTSNER: Beamer, B-e-a-m-e-r. THE COURT: All right. ~.MR. MELTSNER: Some seven months subsequent to that rape, a police officer at the Hubbard Hospital saw a young man receiving medical attention for a cut on his arm, and the young man who is the Petitioner here, Archie Nathaniel Biggers, was with his mother at the hospital at that time. The date is August 16, 1965, The officer then asked the boy's mother if he could take him back to the place on Scovel Street in Nashville where the young man had said that he had fallen while chased by dogs and been cut, The young man was taken away \ by the police and sub- sequently lodged in the Juvenile Deténtion facilities here in Nashville for the rest of that night and sometime during the following day, the 17th of August, he was taken across [6] town to the Metropolitan Police headquarters, and there was walked into a room in the homicide division where Mrs, Beamer was seated, There were also four or five police officers present. One of the police officers told Biggers to say, ‘Shut up or I'll kill you", words which had been spoken by the rapist seven months earlier. He spoke those words, and Mrs, Beamer identified him as the rapist. At trial, her identification of him was the only evidence of Biggers' guilt. The only other state's witnesses, aside from a doctor who testified that there had indeed been a rape, were four or five of the police officers who had been — A. 57 Petitioner's Opening Statement present, and they merely corroborated that Mrs. Beamer had in fact identified Biggers at police headquarters. An appeal was taken from the conviction to the Supreme Court of Tennessee, and in that appeal, the character and circumstances of the identification were challenged on federal constitutional grounds. The Supreme Court of Tennessee affirmed, and the petition for writ of certiorari was granted by the Supreme Court of the United States. As Your Honor knows, that Court affirmed by an equal di- vision of the eight sitting Justices, Mr. Justice Douglas writing a dissenting opinion. Shortly thereafter, this petition was filed in this Court, but I do think it appropriate at this point to mention that subsequent to the affirmance by an equally -divided [7] Court in Petitioner's case, the Supreme Court granted review in a case raising very similar issues, that being Foster v. California, and decided by a vote of five to four some of the circumstances which make an identifi- cation of this sort violative of the due process clause of the Fourteenth Amendment. The claims presented to Your Honor by the petition and the answer are primarily whether the identification herein, under the totality of the circumstances doctrine, did in fact violate the Fourteenth Amendment; whethér, and here I want to draw a rather fine distinction, but one I think is explicitly merited by the Supreme Court decision in Wade v. United States, whether the state use of what Biggers was required to say for purposes of identifica - tion at trial violated the Fifth Amendment as incorporated in the Fourteenth, in other words, whether the state is able to put on a witness who can say, as Mrs, Beamer did, he said, "Shut up or I'll kill you, " at the pre-trial A. 58 Petitioner's Opening Statement identification proceeding when that testimony is compelled at the pre-trial identification proceeding. * THE COURT: Now at the actual trial elf, she did testify? MR. MELTSNER: Mrs. Beamer? THE COURT: Yes. : MR. MELTSNER: Yes, she did testify. THE COURT: And did she identify the defendant at that time, or did she—was her testimony substantially [8] the same as her statement at the pre-trial identification here? MR, MELTSNER: As I read her testimony, Your Honor, it's quite plain that what she did was describe lier pre- trial identification. At no time during the trial did she point him out in the courtroom, At no time did she say, it's that man over there, it's the second man from the right at the table, nothing of that sort occurred, and I be- lieve Mr. Justice Douglas, in his opinion, drew the same conclusion from the record. THE COURT: She identified him, in other words, from— on the basis of what he had said at the lineup? MR. MELTSNER: On the basis of what he had said and also his physical appearance at the showup, at it's — THE COURT: Showup? MR. MELTSNER: As it's generally called, THE COURT: Yes. ' MR. MELTSNER: She told the jury what had happened in effect. She never identified him in the courtroom. THE COURT: Now what is the distinction between a showup and a lineup? MR. MELTSNER: Well, the literature generally draws the distinction that when a suspect! is presented individually A. 59 Petitioner's Opening Statement for identification, that is called showup; when he is pre- sented with additional persons so that there can be some comparison of sizes, shapes, voice and the like, that is [9] called a linemp. There are’two other claims which are before the Court briefed in our trial memorandum which we filed sometime ago. One is that the identification of the Petitioner was the fruit of an unlawful arrest, and the last is that some prejudicial remarks made by the prosecuting attorney was reversible error. The primary claims relate to the consti- tutionality of these identification procedures in the circum - stance of this case. Now on the basis of the petition and the answer, I think it's fair to state that there are no substantial differences between the parties as to the facts. Rather the parties. differ as to the constitutional application of generally- agreed upon facts. Thus today the Petitioner seeks to the extent possible { to amplify and explore the meaning of the facts in this case as was described in this Court's order of July 29, 1969, where the Court states a desire to receive testi- mony on the following matters, and I quote: "The nature of the ‘show-up' identification process as opposed to the ‘line-up’ identification process, and why the former process was employed in the instant case; and, the general reliability of voice identifica - tion procedures, and their relative importance com- pared with other methods of identification in linking [10] the petitioner to the offense alleged in the instant action, " : — A. 60 Petitioner's Opening Statement We have two witnesses who we would like to present with respect to these questions, but first I would like to move the admission of the transcript of record of the state court proceedings as reproduced before the Supreme Court of the United States and the affidavits of Petitioner, his mother, Mrs, Hammonds, and Attorney Williams, which are on file and which were authorized to be filed by this Court's order of July 1, 1968. I think that will shorten the— THE COURT: Let's see, July Ist? MR. MELTSNER: Yes, Your Honor entered an order at that time authorizing that affidavits be filed on behalf of the parties. THE COURT: All right. MR. MELTSNER: And in response to that, I believe we filed those three affidavits and the transcript of record. THE COURT: All right. There's no objection to that? MR, DALE: Not at all, if Your Honor please. I think the transcript, although I'm not certain that it is the one prepared for the Supreme Court, is already an exhibit in the answer of the Respondent in this case, THE COURT: Well, as long as it is a full and [11] complete transcript of the state trial procedures. You have one that you've tendered to the Clerk? MR. MELTSNER: Yes, I believe one was tendered along with those affidavits, if I may look. THE COURT: Well, let it be filed and file the affidavits. MR, MELTSNER: May I have just a moment, Your Honor? THE COURT: Yes. MR. MELTSNER: I had thought that we had forwarded to the Clerk a copy of this which is the Supreme Court A. 61 Petitioner's Opening Statement transcript. Perhaps it's in the envelope. THE COURT: Yes, might be in the envelope. (MR. MELTSNER:] One of my witnesses has a copy of this. THE COURT: Yes. MR, MELTSNER: And I would appreciate, when he comes back, I would place that in evidence with the Clerk. THE COURT: All right. MR, MELTSNER: It's probable that what the Clerk has is the same, but as I am certain that the contents of this represents the entire record— THE COURT: Well, let it be filed, the Supreme Court record— MR, MELTSNER: Thank you. THE COURT: —of the trial and these affidavits, [12] Mr. Clerk. THE CLERK: All right, sir. Exhibit 1 to the peti- tioner. (PETITIONER'S EXHIBIT NO, 1 was marked for identification and filed. ) THE COURT: Now let's see exactly what posture we're in. The Supreme Court of the United States divided four to four, is that right? : MR. MELTSNER: ‘That's correct. THE COURT: And it was affirmed? MR, MELTSNER: That's right, it was affirmed, but— THE COURT: Now what are we examining here that has not already been adjudicated by the Supreme Court? MR, MELTSNER: Well, the law has recognized, I believe, in one of Your Honor's previous orders in this case, that is—I can't quote the latin particularly well, A. 62 Petitioner's Opening Statement but that is an affirmance by a split decision is of no prece- dential value even in Petitioner's case. THE COURT: All right. MR, MELTSNER: Thus we are trying the constitutional issues here much as in any other habeas corpus petition, as if the Petitioner had never gone to the Supreme Court of the United States. THE COURT: Yes. In other words, the hearing {13] before the Supreme Court of the United States was from an appellate review from the highest court of the state? MR. MELTSNER: That' S correct, it was a review. THE COURT: And this is an original application for habeas corpus in this Court? MR. MELTSNER: Correct. THE COURT: All right. Well, let's see what Mr. Dale has to say in response, MR, DALE: If Your Honor please, I would like to take issue with two of the statements relating to the facts of this case, that Mr. Meltsner has presented, In the first place, the State will show, and I think the transcript amply indicates, that Mrs. Beamer did not identify Biggers, the Petitioner in this case, until after — or she did identify him prior to his speaking the words that he was requested to speak, Now he was in fact requested to speak the words to the effect, "Shutup, or I will kill you", but it is our position, and the transcript shows and the witnesses that the State has here today will show to the Court that in fact she identi- fied him before he was compelled to speak those words. _ In addition—this relates to an inference to be drawn from what is contained in the transcript —in no less than two places within the transcript during Mrs. Beamer's A- 63 Respondent's Opening Statement testimony, she was asked first by the prosecutor, is there any [14] doubt in your mind, she said, there is no doubt. She was asked later on in the same testimony pertaining to her identi- fication of Mr. Biggers, is there any doubt in your mind today? She said, no, there is no doubt, So these are factual differences. I think that by and large Mr. Meltsner is accurate when he,.says that we agree on the facts, but I will not stipulate any fact that he wishes to—that we do not—we will prove our case today, if Your Honor please. Now I would also like to state that I think that the major issue before us is the issue stated in Stovall v. Denno, after the Supreme Court indicated that Wade and Gilbert would not be retroactively applied. The Court there said that the issue was, or their area of inquiry was whether the confrontation conducted in this case was so unneces- sarily suggestive and conducive to mistaken identification, that he was denied due process of law. I think that's the sole issue in the case. I think requir- ing him to speak is, as in Schmerber, characteristic of identification. He was not required to say, "Iam guilty". He was required to speak or asked to speak simply so that the tone or timber of his voice, if you will, if possible — THE COURT: Were these the words that were alleged to have been uttered at the time of the rape? MR. DALE: That's my understanding, some words [15] similar to those, ~ THE COURT: And your proof will be directed to show- ing why this kind of lineup was used? A. 64 Respondent's Opening Statement MR. DALE: We will get into that, yes, sir. THE COURT: Showup instead of a lineup? MR, DALE: Yes, sir, we will show, and I will state to the Court what our proof will show, this man, the Pe- titioner in this case, was sixteen years old. He was sub- stantially larger, I believe, than he is now. I think he must have lost some weight, but in any event, he was about two hundred, two ten, over two hundred pounds, and over six feet tall at that time. He was sixteen years old. If you put him ina lineup with juveniles, and of course he stands out because of his size; if you put him in a lineup with adults, he stands out because of his youth, so there was really no way a lineup could be held, and our proof will show that, but again, I don't think—I do believe that the only issue of constitu- tional proportions is the question of whether or not the confrontation was unduly suggestive. THE COURT: Well, what was this—lI haven't recently looked at the Supreme Court decision, but what was the split between the Court caused by? What was the issue? MR, DALE: There is no—you mean in the Biggers case? [16] THE COURT: Yes. MR, DALE: ~ There was no opinion. THE COURT: No amplification or elaboration? MR. DALE: The only elaboration was Mr. Justice Douglas’ dissent, THE COURT: And what was his dissent? MR, DALE: His dissent, if Your Honor please, I read the case yesterday, but as best I recall, he simply said that lineups and showups, where not conducted superfairly, to coin a phrase, are unduly suggestive and violate due A, 65 Respondent's Opening Statement process, and he would, of course, have reversed the con- viction. I can't recall exactly what he said. THE COURT: Well, something similar. MR. DALE: But there was no opinion on the part of the four who voted to affirm, so we have no way of knowing what the actual split was. Mr. Justice Marshall did not participate, which accounts for the lack of an odd vote. I guess that is the State's position. THE COURT: All right. Well, let's——suppose you call your first witness then. A. 67 William A. McDaniel, Jr. - Direct A Fou; otf. Q Did you have a number of officers working under [19] A Yes, sir. Q_ And in the investigation of this case? A Yes, sir. Q Now want you to answer this from your experience as a police officer, when a suspect is shown alone to a wit- ness for identification, that is generally called a showup, isn't it? A Well, we don't use that term "showup". We-—if we are going to have someone, we usually prefer a lineup. Q You call it a lineup even if there is only one person? A No, no. This particular case, we did not have a lineup. This is not what I consider as a lineup. Q__ What would you call the kind of identification pro- cedure employed in this case? Is there some police term for it? A No. Q___ The one-on-one identification? A Not that I know of, sir, just under the circumstances, it was the only means that I could see that we could use. Q_ Well, let me just ask you this, have you ever heard of the word "showup" before? A I've heard of it, yes, sir. Q And what did you understand it to mean? [20] A Well, just like I say, some use showup; I use lineup. Q You thought showup meant the same as lineup? A That's my interpretation, yes, sir. A. 68 William A, McDaniel, Jr. - Direct. Q___But you do recognize there is something different between an identification procedure where one person is shown to a victim, and an identification where a number of persons are shown to the victim? A There's a difference, yes, sir. Q Let me ask you this, were lineups, and by lineups I mean a number of persons are shown to the victim, were they in use in Nashville in 1965? A Yes, sir. Q_ They were? A Yes, sir. Q But there was none in this case? A No, sir. Q_ Are you aware that many lawyers and scientists who have studied the matter in regard to lineup consider it a much fairer and less suggestive identification proce - dure than the showing of one man to a victim? A Yes, sir, that's why I chose— Q_ Would you speak up, please? — -~A This iswhy that—I understand the fairness of a lineup, and this is why I did not have a lineup for there (21) could not be fairness given to this person. Q_ You didn't have a lineup because a lineup would have been unfair? A You, oft. Q_ And you think what you did was fairer than a lineup? ah Fe oe Q___Now let me ask you this, what is the approximate population of the Metropolitan jail, inmate population? A Well, there's differences, Its capacity, I would say, could hold approximately four to five hundred people. Q_ How many is that? A. 69 William A. McDaniel, Jr. - Direct A Four to five hundred, that's my guess. I don't really know. Well, how many are in there on an average day? Well, that's different also. : Your best estimate? Around a hundred, I'd say. And was that about true in 1965? I couldn't say. Well now, how about the Juvenile Detention facility here in Nashville, what's the approximate — A It's entirely different today than it was at that time. Q_ Well, what was the approximate population of [22] DFO PAPO that facility at that time? A Well, it was very small, because they didn't have large quarters, and again, as far as number, I would have to more or less guess. oe Q_ Well, give me your best guess. * A I'd say with girls and boys both, would be fifty, would be their maximum, : i Q Now Nashville is the home of the Tennessee State Penitentiary, is it not? A Yes, sir. Q So that you had a number of persons who you could have selected for a lineup in this case in 1965? MR, DALE: If Your Honor please, this is direct examination. I will object to leading. MR. MELTSNER: Well, I think under Rule 43(b), Your Honor, I'm perfectly authorized to use leading ques- tions. THE COURT: All right, go ahead. THE WITNESS: I didn't think so at the time, no, sir. BY MR, MELTSNER: A. 70 William A. McDaniel, Jr. - Direct Q___But did you go through the Juvenile Detention facility on August 16, 19657 A We-—yes, we conferred with the judge, and as far as trying to get someone of this young man's stature, which [23] there wasn't any available, — Q_ What judge? A At that time, it was Judge Tatum. Q_ Was any order entered of any kind in Judge Tatum's Court in this case concerning this matter? A Of the lineup procedures? Q_ That's correct. A No, sir, there wasn't any order. Q_ Did you ever inform Petitioner's attorneys that you had gone to Judge Tatum concerning the lineup? The District Attorney, no, sir. Petitioner's attorneys? I didn't understand that, sir. Did you ever inform Petitioner's attorneys in 1965— At that time— —that you had gone — At that time, I don't think that he had an attorney, at the time we're speaking of. Q Did you ever inform the attorneys that he had at trial? He was represented by Mr. Looby and Mr. Williams at trial? - A That was at the trial. Q_ And you know Mr. Williams and Mr. Looby? [24] rFOPrPO PO > A Yes, sir. Q__ Did you ever inform them at any time that you had A. 78 William A. McDaniel, Jr. - Direct gone to Judge Tatum? A No, not that Ican recall; they never asked me. Q Did you testify at trial that you had gone to Judge Tatum? A No, sir, never was asked, Q__ And your testimony here today is that you went to Judge Tatum for the purpose of trying to find out if you could hold the lineup in this case? A No. That's not what I said. Q Would you thentell me what your testimony is? A You asked me if at that time were we using a line- up procedure, which we were in 1965, and prior to that. We checked with the facilities of our Metropolitan jail trying to find, as far as, best, as far as stature, appear- ance, there weren't any available. We also tried Juvenile Court, which that is where if we have a lineup, this is where we participate in the lineup is at the Juvenile Detention quarters, not at the police headquarters, so there was none available at Juvenile Court as far as appearance, This is what we believe in. We try to get at least two people looking as much alike as possible. Q_ So you recognized the lineup as a much fairer [25] procedure? A Yes, but at this point, we— Q___ That's my question. MR, DALE: May it please the Court, I don't care what Rule 43(b) says, he can't argue with this witness, and he has to let him answer, THE COURT: He has to let him finish if he has a further explanation. THE WITNESS: In my opinion, we could not have a A. 72 William A. McDaniel, Jr. - Direct fair lineup by having a person with young features and yet a large body, we could not have given him a fair lineup. In the jail would have been older features, and at the Juvenile Detention would have been way smaller people. BY MR, MELTSNER: . Q Did you try and enlist any citizens to appear in this lineup? A Sir? Q__ Did you try and enlist any citizens to appear ina lineup? A No, sir. Q_ Now, captain, let me ask you this, Petitioner was arrested on the night of the 16th of August, or the early morning hours of the 17th, am I not correct? A Yes, sir. Q_ And the lineup was held on the morning of the [26] 17th, is that correct? A If you want to call it a lineup, yes, sir. Q_ Or the identification procedures? A Yes, sir. Q__ So that your canvas of the jails took place the morning of the 17th? A That's correct, sir, Q__ And you do recognize that a full lineup would have been a fairer method of identification? A Yes, sir. Q _siIn this case? A If we can get a fair lineup, it is best. . Q That is standard operating procedure? A Yes, sir, that is standard procedure, Q__Now, do you recall testifying at the trial in 1965 that an Officer Harold Woods told Biggers to say certain A. 7 William A. McDaniel, Jr. - Direct words? A Yes, sir. Q Do you remember what those words were? A Ican vaguely remember, but I believe, shut up or I'll kill you. : Q_._ And these words were spoken so that the victim, Mrs. Beamer, could hear his voice? A Yes, eir. Q___ So that she could decide whether or not he was [27] the man? A _ She could identify his voice, yes, sir, Q_ Let me ask you this. Why, asa police officer, with your many years of experience, why do you feel that the lineup is a more reliable procedure for identification than the sort of procedure which was used here? MR, DALE: If Your Honor please, I'll object to that as—well, it's a question asking Mr. McDaniel what he feels, It also callsfor a conclusion of some sort on his part. I think probably if rephrased, it— THE COURT: Yes, BY MR, MELTSNER: ~ Q_ Well, perhaps I can ask you on what basis you be- lieve that the lineup is a superior and more reliable iden- tification procedure than the one employed in this case, drawing upon your experience as a police officer? A Well, let me—may I give an example, sir? Q Surely. A Say that we have a suspect that's redheaded, light features, light complexion. If we could have someone either in the build or a person that we know that looks— that's redheaded and also light complexioned, then we might put in blonde headed people, we will not mix—if this suspect is redheaded, we will not mix black, dark A. 74 William A. McDaniel, Jr. - Direct brown haired people with redheaded. [28] When the person to identify says that the person that she wants to make a complaint about was redheaded, if we find two, three or four redheaded people who are there, approximately the same height, same build and all, and when you put them in a lineup, why then to me that is the true and fairest of all lineup procedures, Q__ Now this crime had taken place about seven months before the identification, had it not? A It happened in January, yes, sir. Q_ AndasI recall, it was at night? A: Yes, sir. Q_ And there was a dimly lit hallway where the victim had been grabbed? A That I do not know, sir. Q_ Well, do you recall that the victim had identified the assailant as having a teenage voice, a young person's voice? A I would have to look up her description; I can't recall it, Q_ Do you recall how she described him physically, your best recollection? A I would have to go to my notes, yes, sir. Q Well, would you refer to your notes, please? A All right, sir. All right, sir, says his height was six feet [29] tall, a hundred and eighty poinds, he was dark hair, medium or— medium to dark brown complexion, Q_ Now are you willing to tell the Court today that there was no one in custody in the city of Nashville on -_ A. 75 William A. McDaniel, Jr. - Direct August 17, 1965, in the morning, who had any of those traits? eh : A I'm saying that there wasn't. What I'm saying, we didn't have one at Juvenile Detention quarters that looked young in face with a big stature. We probably had one big in jail, but not young features. Q_ And you probably had some people whose features were young, but who weren't that big, is that correct? A I'm not saying that, no, sir. Q Well, is that possible? A Our interest— Q Is that possible that you had someone with young features? A No, I'm not saying it was possible. Q_ Are you saying it was not possible? A I'm not saying it wasn't possible, I would not know about it, but whether we had a large man with young fea - tures, I know we didn't have that, Q___ Did you go to every person in the cell blocks? Did you look at every person? A I called back to the officer or superior officer who- ever was in charge at this time, I do not recall, and asked [30] them would they check their jail for a person of this descrip- tion, which I do every time we have a lineup. , Q_ And you— A Tell them what we want. Q__ And you made no attempt to try to find someone in the community? A No, I did not go outside of our building. Q Let me ask you just one final question at this time. Mr. Biggers was arrested for the crime of loitering, as I recall, is that correct? A. 76 William A. McDaniel, Jr. - Direct A Yes, sir, technical charge of loitering. Q_ What was the character of the evidence against him for the technical charge of loitering? A We had another complaint which he had already reenacted, and the loitering charge was more or less placed on him as a hold, Q_ Isee. Now this other complaint, was this a rape complaint also? A Attempt, Q_._ And in other words, he was taken from the hospital where he was taken into custody to reenact the crime in front of another rape victim? A No, Q__sIn front of a female who was claiming that she had been assaulted? [31] A No, sir. Q_ Could you explain it then for me, because I'm not quite sure. A This other victim was in the hospital, had been ad- mitted to Baptist Hospital some two hours before Mr. Biggers arrived at the hospital himself, Q__‘This is the Hubbard Hospital? A Hubbard Hospital, which he had multiple lacerations of arms and hands, Q__Now did you bring him to her for identification in the hospital? A No, sir. Q_. Well, how did he reenact the crime? _ A .He took the officers back to the home of this vic - tim and showed them exactly what took place, where the woman) was standing, how his arm went through the door, and so forth. The woman was not present. a. TF William A. McDaniel, Jr. - Cross Q The woman was not present? A No, sir. Q Nowhas the defendant ever been charged on this crime? A Yes, sir. Q Has he ever been tried on this charge? A Nd, sir. MR, MELTSNER: That's all I have. [32] CROSS -EXAMINATION BY MR. DALE: Q Captain McDaniel, why in the course of preparing a lineup do you not go outside of the jail or outside of Juvenile Detention to get people’ to stand in as members of the lineup? A This is something that, as long as I've been an officer, it just never has been done. We never have put off anything as—on the nature of this which we'll have to, either by news media of some type, request somebody to come in, We've never done this. Q Isn't it because you can't account for the where- abouts of the people in the community, and one of them might just as well be the guilty party as the person who is the suspect? A I never thought of it that way. Q___ But isn't that a possibility? A \ It'sa sibility Q_. And so therefore you use people whose whereabouts you can account for? | That's more so, if they do pick out other than the suspect, then we do know that this subject waé in custody. Q_ A lineup or a showup, as Mr. Meltsner has “ae | | A, 78 William A. McDaniel, Jr. - Cross it, can also be beneficial to an accused, can it not? A Oh, yes. [33] MR. MELTSNER: Now, Your Horor, I'm going to ob- ject to the leading questions at this point, MR, DALE: Now, may it please the Court — THE COURT: I think I'll permit him to cross-examine him, MR, DALE: Thank you, Your Honor, BY MR, DALE: Q_ Now, Captain McDaniel, you were in charge more or less of the identification procedures, the examination if you will, of Mrs. Beamer, is that— A. Yes, sir. Q_sIs that an accurate statement? A Yes, sir. Q_ When Mrs, Beamer was brought to the jail, did the police suggest to her that this is the man who did it, we want your identification of him, we've got to have it to ' make a case? Was there anything of that nature said to Mrs. Beamer during the course of that identification pro- - cedure? A No, sir. Q_ Would you describe for the Court, please, exactly what took place that night to the best of your—on that after- noon, I believe it was, to the best of your recollection? A Mr. Biggers ‘was in custody and at police head- quarters. He was located in the detective bureau, in the office of Dr. W. J. Core, who is now deceased. When Mrs. [34] | Beamer was brought to headquarters, she was placed in the office now occupied by the sergeant of the detectives, ; \ \ | oe A Te William A. McDaniel, Jr. - Cross which Dr.—as far as directions, I will say Dr. Core's ‘office is on the east side of the building, the sergeant's ‘office on the west side of the building, which is not di- orectly across from the office, but across the hall, but jit's across the hall and a room dow. Q Would you say it's diagonally across the hall from — A Yes, but you cannot stand and look in one office ito the other; it's that far down. Q_ Isee, A Mrs. Beamer, which there was another woman talso in the room, plus myself. Q Excuse me, captain, was this other woman also a ‘victim of somebody? A I've been trying—I didn't make any notes of it, ‘and I can't truthfully say. Q Can you answer this, do you recall her having said «anything during the course of the identification that Mrs. Beamer made of Mr. Biggers? A itouarm Q Okay, if you can't. A Ido not know who she was or —but I do know she was in there, [35] Q Okay. Excuse me, you were at the point—you had Mrs. Beamer and this other woman unidentified in that room. Now, if you will, proceed from there, please, sir. A That is when I instructed Mrs. Beamer what was to take place. told her that there would be a person to walk down the bal . If she could identify this person when he walked by the door and then proceeded back through again, which one side and down, and then when he come . back, she could see the other side, that way he was led by two deecive which — | | 2) A. 80 William A. McDaniel, Jr. - Cross Q_ You say led by two detectives, you mean preceded, held on the arm, handcuffed to, or what do you mean by that? A No, had one in front of Mr. Biggers and then one detective in the rear. Were both of these gentlemen— Just like three men, one behind each other. Were both of these detectives in civilian clothes? Yes, sir. Were they both colored? Yes, sir, Go ahead, sir. Which, as they passed, and they come back, pro- ceeded back to the room, then the officers come—Sergeant [36] Woods and Officer Bailey come back to the office where Mrs. Beamer was, and Mrs, Beamer—and then we asked her did you recognize anybody, and she said, yes, that was the person, the one, the biggest one was the one that had raped her, Q_ Now is Sergeant Woods a fairly good-sized individual? A. Yes, sir. Q_ How about Officer Bailey? A Bailey is a medium—he's tall, but he's not quite as big. Q Okay. Now you say Mrs. Beamer said, yes, I >O>O>O>O recognize the biggest one? A Yes. Q_ All right. Now did she say anything else at tha point? A She said, I would also like for him to Tepeat these | words, which I think, shut up or I'll kill you, to try to see if I could identify his voice. I walked out of the office and \ ' \ | [ \ \ ae ' ’ A. 81 William A. McDaniel, Jr. - Cross go and tell Sergeant Willis to bring Mr. Biggers to the doorway and have him repeat this. Then I step back into the room where Mrs. Beamer is, and when he comes to the door, he's facing her, facing both of us, and which Sergeant Woods then instructs him to repeat these words, which he did. ‘Then he goes back to the room that he had just come out of, and Mrs. Beamer says, yes, she identi- fied the voice also. [37] Q Now there was also a chance,’ I suppose, in this type of identification procedure that she could also say that was not the man, is that not possible? A That's possible. Q Has that been done on occasions in your experience? A Yes, I've had procedures like this before, and no identification. Q Do you know of your knowledge whether Mrs. Beamer failed to identify a number of people that were brought before her or before whom she was brought? A Yes, sir. Q_ Had she ever identified another person? A No, sir. Q_ Now on this loitering charge, if I understand your testimony correctly, this was simply a technical charge to enable you to hold Mr. Biggers pending the investiga - tion of the Beamer case? A No. Q Oh, excuse me. Go ahead and explain it. A No, at the time the loitering was placed against him, which was placed at the Hubbard Hospital, this was a technical car to hold him pending the complaint that happened that night, August the 16th. Q_ The very night that he was brought in? i A. 82 William A. McDaniel, Jr. - Cross [38] A Yes, sir. Q_ And the night preceding the morning or the day that Mrs. Beamer identified him? A And then the next day, by him being the description, general description that we had had several complaints, that is why we started calling these people in to view Mr. Biggers, Q_ On what basis, Captain McDaniel, would you say it was fairer in this case to have—and I'll use Mr. Melts- ner's texm—to have a showup as compared to a lineup? In other words, a showup where you have one person? A Well, this was strictly my —I say—well, my de- cision, which I couldn't—to me, this was the most fair - est—I couldn't have put him in the Juvenile Detention quarters with small boys, to me that would not have been fair, Q_ Can you say without qualification that you in fact considered the fairness of the lineup procedure in this particular case? A As long as I've been in the detective department, which is 1955, I have never tried to make any suggestive matter, either orally nor by any lineup, -I do not— Q Now—excuse me, A I do not like that, I want to be fair either way. Q Can you then say—I'm sorry, I keep interrupting [39] you, | A I'd rather see them tell me, no, is not the pers than put in some ive matter Q_ |Did you vary from that tice in case involv- ing the |State of Tennessee v. thie Nathaniel Biggers? A No, sir. Ly ee | | ie eee |" \ \ A. 83 William A, McDaniel, Jr. - Redirect MR. DALE: I think that will be all, if Your Honor please. REDIRECT EXAMINATION BY MR. MELTSNER: Q_ Captain, you are being very tolerant of all of these badgering lawyers, especially me. I have just a few more questions here. First of all, you mentioned that Mrs. Beamer had been shown other suspects in the several months after the rape. A Yes, sir, several suspects. Q___ Had you brought her down to the police headquart- ers? A Yes, sir, she's come to police headquarters, and we've carried mug shots to her on numerous times, and I'm sure at some occasions, investigators have just picked up a suspect off of the street and carried to her, her home. Q__ And showed them to her? A Yes, sir. [40] Q There? A Fee, Oe. Q So she is a permanent resident of Nashville, is that not correct? A Yes, she's—as far as I know. Q__sAnd she's been freely available to the police de- partment and cooperative in this case? A Yes, sir, real cooperative. , Q Now you mentioned the techni al charge of loitering and I'm not cue clear about what oa eans. Is ita fair statement 0 say that he really was 't loitering, but this was a charge put on to hold him? | e ! A. & William A. McDaniel, Jr. - Redirect A That's a charge at that time—which we do not use it today —but in that year, why we were just like a vagrancy, on juveniles, we would use the term of loitering, and on the adult, we would use the charge of vagrancy. Q_ And you used a charge of loitering even though he was taken into custody while he was receiving medical treatment? A That's right. We could have charged him with the curfew law, which we had at that time, but we did not. Q You could have charged him with a violation even though he was with his mother? A He wasn't with his mother. Q Did you pick him up at the hospital? [41] A _ No, I didn't personally. Q__Now let me ask you this, you stated that you made this decision about holding the kind of identification pro- ceeding that was held in this case. Were you guided by any rules or regulations of the department which specifi- cally deal with this matter? A No, sir. We have—like I said, we've used this method before, and we've used lineup procedures which I've always stated was to me the most fairest, if we can get the general build, and I've had it both ways. I've had * them Say, yes, this is the person; no, this is not the per- son, and especially in checks, bad check writing, we've used one person showup, as you refer to it, very success- fully. Q_ So you use a great number of showups? A During that time, yes, sir. Not today. Q_ Would you ~ that showups were used more often, than lineups? A_ No, sir. A. 85 William A. McDaniel, Jr. - Redirect Q__ Lineups were used about the same as showups? A More, I would say. Q___ Let me ask you this. Do your notes reflect the time of this identification? A This identification was —I don't have it down, but it was made —I'd say right in the afternoon, early after- noon. [42] Q___ Around noon o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0075%3A01. Public record. Not legal advice.