Brief for Respondent — Neil v. Biggers

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AUG 25 1972

Supreme Court of the United States. cx

OCTOBER TERM, 1972 *

No. 71-586

WILLIAM S. NEIL, Warden

Tennessee State Penitentiary

Nashville, Tennessee,

Petitioner,

ARCHIE NATHANIEL BIGGERS,

. Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT

JACK GREENBERG MICHAEL MELTSNER

10 Columbus Circle Columbia University

Suite 2030 School of Law

New York, New York 10019 435 West 116th Street

New York, New York 10027

ANTHONY G. AMSTERDAM

Stanford University AVON N. WILLIAMS, JR.

Law School Z. ALEXANDER LOOBY

Stanford, California 94305 404 James Robertson Parkway

Suite 1414, Parkway Towers

Nashville, Tennessee 37217

Attorneys for Respondent

Wastungtoe OC e@ THIEL PRESS © 1202) 393 0625

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................

STATEMENT:

Bi TIO hii cc ccc ccc ccc cece cc cccns 2

B. Proceedings in the District Court ................ 3

C. Proceedings in the Court of Appeals .............. 7

D. The Facts Surrounding the Biggers’ Arrest,

Identification and Trial ......................

ARGUMENT:

I. The Affirmance by This Court of Respondent’s

Conviction by an Equally Divided Court Did Not

Foreclose Consideration of the Merits of His

Claim of Denial of Due Process of Law by _

Petition for A Writ of Habeas Corpus ............. 19

II. The Courts Below Correctly Decided That The

Pre-Trial Identification Proceeding Shown by the

Record in This Case Violated the Due Process

Clause of the Fourteenth Amendment ............

A. The Absence of Any hes Necessity”

ot a aC

ooeoeewawee eee eee owe eee es eeneeee

2. Considerations of Fairness to the Suspect ,

Did Not Require a ““Showup” ............. 40

B. The Absence of Any External Indicia of

1. No Good or Sustained Opportunity To

Observe Assailant .....................

(ii)

3. Absence of Any Other Independent Indi-

cationsof Accuracy /............:.. ss

C. Additional Grounds Supporting Relief ........ .. &

aati gees gt RO he tee eet ee 50

TABLE OF AUTHORITIES

Cases:

Albany Bridge Case, 69 US. 403 (1864).............. 20 .

Anderson v. Johnson, 390 U.S. 456 CHORD on noic ap cncce. 21

Bates v. United States, 405 F.2d 1104 (D.C. Cir.,

WN ie Oks bi vee oS ees are 38, 43, 44

Bowen v. Johnston, 306 U.S. 19(1939) ............... 34

Clark v. United States, 408 F.2d 1230 (D.C. Cir. 1968)... .. 44

Clemons v. United States, 408 F.2d 1230 (D.C. Cir.

uoead BCE re OE ek yi wa a Aa eee a 42

Cline v. United States, 395 F.2d 138 (8th Cir. 1968) ...... 43, 44

Coleman v. Alabama, 399 US. 1 i. 2 re 42, 47

Crume v. Beto, 383 F.2d 36 (Sth Cir. 1967) ............ 44

Dandridge v. Williams, 397 U.S.471(1970)............ 48

Darr v. Burford, 339 U.S. 200 ( _ ee 34

Davis v. Mississippi, 394 U.S.721 (1969) .............. 49

Durant v. Essex Co., 74 U.S. (7 Wall.) 107 (1868) ...... 20, 22

Epton v. Nenna, 318 F. Supp. 899 (S.D.N.Y., 1970)

aff'd 446 F.2d 363 (2d Cir. 1971) 2.0.2... 29

Etting v. Bank of United States, 24 U.S. (11 Wheat.)

I a cic bic th cc ccn coc ccceuee 19, 20, 28

Fay v. Noia, 372 U.S. 391 (1963) ............ 25, 30, 31, 32

Foster v. California, 394 U.S. 440(1969) .............. 45

Frank v. Mangum, 237 U.S. 309(1915)’............... 19

(iii)

Gregory v. United States, 410 F.2d 1016 (D.C. Cir.

Hanks v. United States, 388 F.2d 171 (10th Cir. 1968) . . .

Hertz v. Woodman, 218 U.S. 205 (1910)

Jones v. Cunningham, 371 U.S. 236 (1963)

Kirby v. Illinois, ___ U.S.__(1972)

Lambros v. Young, 145 F.2d 341 (D.C. Cir. 1944)

McDowell v. Ciccone, 275 F. Supp. 957 (D.C. Mo.

1967), aff'd 407 F.2d 257

Mackey v. United States, 401 U.S. 668 (1971)

Macklin v. United States, 409 F.2d 174 (DC. Cir.,

Moore v. Dempsey, 261 U.S. 86 (1923)

Miller v. Carter, 434 F.2d 824 (9th Cir. 1970), cert.

den., 402 U.S. 972 (1970)

Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960)

Papachistou v. City of Jacksonville, 402 US. 156

Parker v. Ross, 330 F. Supp. 13 (E.D. N.Y. 1971)

Radich v. Criminal Court, 459 F.2d 745 (2d Cir.

Russell v. United States, 408 F.2d 1280 (D.C. Cir.),

cert. den., 395 U.S. 928 (1969)

Salinger v. Loisel, 265 U.S. 224 (1924)

Sanders v. United States, 373 US. 1 (1963)

Simmons v. United States, 390 U.S. 377(1967) 39, 40, 41, 42, 43

Smith v. Bennet, 365 U.S. 708 (1961)

Stewart v. United States, 418 F.2d 1110 (D.C. Cir.

1969)

(iv)

Thompson v. City of Louisville, 362 U.S. 199 (1960)

Townsend v. Sain, 372 US. 293 (1963)

cere eee

ee, ete aes cee

United States ex rel. Anderson v. Mancusi, 413 F.2d

PTR OD ot i 42, 43,44

United States ex rel. Garcia v. Follette, 417 F.2d 709

OB TIE iis Sk sew akeasa.s....... 43, 44

United States ex rel. Phipps v. Follette, 428 F.2d 912

- aciieende onc HT a ae cha 47, 48

United States ex rel. Rutherford v. Deegan, 406 F.2d

NOE II oe Bo te 43

United States ex rel. Tyler v. Henderson, 322 F. Supp.

142 (E.D. La. 1971)

United States ex rel. Williams v. LaVallee, 415 F.2d

643 (2d Cir. 1969)

United States v. Davis, 399 F.2d 948 (2d Cir. 1968) ....... 39

United States v. Kemper, 433 F.2d 1153 (DC. Cir.

1970)

United States v. Mackey, 401 US.667(1971) .......... 27

United States v. Sanchez, 422 F.2d 1198 (2d Cir.

1970)

TACEMES COR CG be eRe Hel eb ae eee Cl. ee S 40

United States v. Terry, 422 F.2d 704 (D.C. Cir. 1970)... ... 47

United States v. Thompson, 417 F.2d 196 (4th Cir.

ovine Md EAA Ree pee ree 44

United States v. Venere, 416 F.2d 144 (Sth Cir. 1969) ..... 43

United States v. Wade, 388 U.S. 218 ( oceans AOE PET TE 3, 46

Wise v. United States, 383 F.2d 206 (D.C. Cir. 1967) . 38, 40,44

Wong Doo v. United States, 265 U.S. 239 (1923)

Wong Sun v. United States, 371 U.S. 471 | Sn 49

Young v. United States, 407 F.2d 720 (DC. Cir.,

1969)

ree pret te) Cae ew Ae RMD h SOM BE A BOS Os 6.9 b 608k

Statutes:

BUS. §2109

BUS.C. §2243

BUS.C. §2244

28 US.C. $2255

Miscellaneous:

Criminal Investigation and Interrogation, Gerber and

Schroeder ed., (1962)

Criminal Investigations, Jackson ed. (Sth ed. 1962)

Developments in the Law—Res Judicata, 65 Harv. L.

Rev. 818 (1952)

Paul, “a of Accused Persons, 12 Australian

LJ. 42 (1938)

Sen. Rep. No. 1797, 89th Cong., 2d Sess. (1966)

Sokol, Federal Habeas Corpus (1969)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-586

WILLIAM S. NEIL, Warden

Tennessee State Penitentiary

Nashville, Tennessee,

Petitioner,

ARCHIE NATHANIEL BIGGERS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT

QUESTIONS PRESENTED

1, Whether this Court’s equally-divided affirmance of

a state court conviction constitutes an actual adjudication

sufficient to foreclose relief by habeas corpus of respond-

ent’s claim that he was denied due process of law.

2. Whether the courts below erred in deciding that

fespondent’s conviction must be set aside because it

_ fests solely on evidence of an unreliable and unnecessary

ET ee

“showup” identification which was obtained by means

that suggested to the witness that respondent was the

criminal.

STATEMENT

A. Introduction

Respondent, a 16 year old black youth, was indicted

for the rape of Mrs. Margaret Beamer on October 1, 1965

and tried two months later (R. 1, 6).* Mrs. Beamer

testified at trial that she had identified respondent

Biggers at a police station “showup” at which he had

been instructed to repeat tlie words spoken by the rapist

seven months earlier: “You tell her to shut up or I'll kill

you” (R. 10, 18). Her thirteen year old daughter testified

to what she saw at the time of the crime but was unable

to identify Biggers as the rapist (R. 83). Four of the five

police officers who were present at the pre-trial identifi-

cation described Mrs. Beamer’s identification of Biggers

at the police station ' (R. 39, 48, 66, 75).

Biggers testified in his own behalf, denying that he

committed the act charged. Biggers’ mother, stepfather,

and seven friends and neighbors testified that he was an

obedient and truthful young man of good reputation who

had nevef before been in “trouble” (R. 116-74).

*(R. ) citations are to the printed record as prepared for use in

this Court in 1968. (A. ) citations are to the Appendix in the

present case.

' "At one point Biggers’ counsel strenously objected that this

testimony served to bolster the impact of the identification on the

jury but the objection was overruled (R. 75, 76). “Mr. Williams:

... it is immaterial, to try to build it up by having about three or

four police officers come in here and say, Why, yeah, | saw her

identify him. That is not evidentiary your Honor.” (R. 75)

In his summation, the prosecuting attorney told the

jury that the case involved a single, overriding issue:

identification (R. 177, 181). The jury. found Biggers

guilty and he was sentenced to the State Vocational

Training School for Boys for twenty years (R. 4,

193-195). On appeal, the Supreme Court of Tennessee

rejected inter alia, petitioner’s claim that his identifica-

tion was “so fundamentally unfair and oppressive as to

invalidate all evidence flowing therefrom,” 219 Tenn.

553, 411 S.W.2d 696 (1967). (R. 200, 204-06).

A petition for certiorari was granted by this Court and

the judgment of the Supreme Court of Tennessee

affirmed by an equally divided Court, 390 U.S. 404

(1968).2 No opinion of the Court was published; how-

ever, Mr. Justice Douglas filed a dissent.

B. Proceedings In The District Court

On August 1, 1968, Biggers filed a petition for a writ of

habeas corpus in the district court alleging that his

conviction violated rights guaranteed by the Due Process

Clause of the Fourteenth Amendment, in that he was

presented for identification under impermissably sugges-

tive circumstances, such as to give rise to a very

substantial likelihood of irreparable misidentification. In

addition to the “showup” identification procedure

* This Court heard argument and considered briefs with respect.

to whether Biggers’ rights had been abridged in that (1) his

identification violated the Due Process Clause under the totality of

Gicumstances test adopted in Stovall v. Denno, 388 US. 293

(1967) and (2) the use at cial of words which Biggers was

compelled to speak solely for the purposes of facilitating a pre-trial

‘Wice identification violated the Fifth Amen4ment as incorporated

‘in the Fourteenth. The latter question hac been reserved by the

Court in United States v. Wade, 388 US. 218. at 223 (1967).

ee)

Bons

employed by the police, the following circumstances

were alleged as supporting Biggers’ claim that he was

denied due process of law: ?

(1) Mrs. Beamer’s identification of petitioner was

uncorroborated.

(2) Her thirteen year old daughter was unable to

identify petitioner.

(3) Mrs. Beamer’s opportunity to observe her

assailant had been conceded by the State to have

been “limited.” She never saw him in direct light

and could observe him for only 10 to 30 minutes.

(4) Petitioner was described to Mrs. Beamer as a

“suspect” by the police.

(5) 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 identifica-

tion was seven months.

(7) The state treated the jury in a manner which

substantially impaired its capacity to appraise the

identification 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 prosecution on voir dire and at trial;

3The petition for a writ of habeas corpus also alleged violations of

Biggers’ federal constitutional rights in that (1) his identification

was obtained as a result of a pre-trial confrontation held

subsequent to an unlawful arrest; (2) the state refused to defray

the costs of a transcript of evidence despite Biggers’ indigency; (3)

the prosecuting attorney made inflammatory and prejudicial

remarks in his summation to the jury; and (4) the totality of

circumstances surrounding the conviction denied a fair trial.

police officers were permitted to testify again and

again to the fact of identification although it was

not controverted. Finally, the jury was subjected to

a summation which the Supreme Court of Tennessee

characterized as appealing to racial prejudice and

which that court found to be error, albeit non-

reversible.

On August 6, 1968, the warden moved to dismiss the

petition on the ground that Biggers’ challenge to the

identification procedure employed in his case had been

“fully considered and decided adversely” by the Tennes-

see Supreme Court and by this Court (A. 17). After

receiving briefs from the parties, the district court held

that this Court “did not settle the merits of this case and

affirmed only through an equal split in opinion” (A. 19)

and denied the motion. On July 29, 1970, the district

_ court decided that an “evidentiary hearing is required to

determine the issue in this cause” (A. 31).

The evidentiary hearing was held on November 4,

1969. The court received into evidence affidavits from

Biggers, his mother (Mrs. Flora Marie Hammonds), his

counsel (attorney Avon N. Williams, Jr.) and heard oral

testimony from several witnesses, including one qualified

as an expert on the reliability of identification procedure.

In an opinion filed April 7, 1970, the district court

concluded that. the application for the writ should be

granted. Biggers’ conviction “‘was based almost exclu;

sively” upon a stationhouse “showup” (or ‘“‘one-on-one”)

identification procedure. The -court concluded that

“there is considerable doubt on reading the trial record as

to whether or not Mrs. Beamer made a positive in-court

Mentification of petitioner at the time of the trial” (A.

34).

After reviewing the authorities, the court “looked

carefully at the factual situation surrounding the showup

to determine whether or not the procedure was con-

ducted in such a manner as to violate due process

requirements” (A. 39). On this basis the court discussed

the facts surrounding the identification proceeding—as

shown by both the state record and the evidentiary

hearing—and concluded that the identification was

conducted in a manner which “tended unnecessarily to

maximize the possibility of misidentification.”* The.

district court also rejected a claim by the warden that a

lineup would not have been fair to Biggers:

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 had certain similar characteristics but,

““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 showup rather than a much

more reliable lineup. Furthermore, none of the other circumstances

... [which] justify a showup existed in the instant case. The

evidence clearly shows that the complaining witness did not get an

opportunity to obtain a good view of the suspect .. . the showup

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 description of her assailant. The nature of the showup as

conducted in this case—with the great lapse of time between the

crime and the identification, the hesitancy of the witness in

identifying the petitioner, the circumstances of the stationhouse

confrontation coupled with Mrs. Beamer’s knowledge that peti-

tioner was thought by police to be’ her assailant,—tended to

maximize the possibility of misidentification of the petitioner” (A.

41-42).

"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

identification. Furthermore, there is no indication

that a truly concerted effort was made to produce

suitable conditions for a line-up (A. 41).

On April 24, 1970, the warden filed a motion to

reconsider, again urging that the court had no power to

determine the issues presented by the petition because of

this Court’s affirmance. In an opinion, filed May 4, 1970,

the district court again rejected this contention holding

that: (1) the fact that Biggers’ conviction was technically

affirmed by reason of this Court’s division did not bar

relief since the merits of the constitutional claims were

not actually adjudicated; (2) even if they had been

adjudicated, under Sanders v. United States, 373 US. |

(1962) those claims would still not have been auto-

matically barred from consideration on habeas corpus;

(3) as the instant petition was Biggers’ initial federal

habeas corpus petition, res judicata did not apply; and (4)

under all the circumstances, it was in the interests of

justice to reach the merits (A. 45-51).

C. Proceedings In The Court of Appeals

On appeal, the court of appeals reviewed the state

fecord, and the transcript of the hearing before the,

district court and concluded that the district court’s

findings of fact were not clearly erroneous; that the court

correctly applied the Due Process Clause to the facts

found; and that Biggers was not barred from federal

- habeas relief by viture of this Court’s 4-4 affirmance. The

_ court of appeals agreed with the district court’s reasoning

‘Telative to the effect of the 4-4 affirmance, and also set

forth an additional, ground for affirmance: that the

district court had decided a different issue than the issue

presented to this Court. The district court did not

consider the effect of voice identification on the reli-

ability of the identification, whereas this Court—based on

the question presented to it on certiorari—may have

relied “solely on the voice identification issue” presented

by the application for certiorari.” 448 F.2d 91, 96. Judge

Brooks dissented, concluding that the petition for a writ

of habeas corpus was barred because this Court had

finally adjudicated the constitutionality of the identi-

fication. Judge Brooks conceded, however, that if the

district court were authorized to reach the merits its

decision to grant the writ was not erroneous, 448 F.2d at

95, 99.

D. The Facts Surrounding The Biggers Arrest,

Identification, And Trial

On the night of January 22, 1965, Mrs. Margaret

Beamer, a 39-year old Negro woman, was raped by an

intruder. 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 (R.

9, 10). Mrs. Beamer’s attention was drawn to the

attacker’s knife, but she later said that the rapist was

large, had a youthful voice, soft skin, and “sort of bushy”

hair (R. 14, 17, 18, 50). The state record does not show

whether Mrs. Beamer reported these characteristics to the

police immediately following the crime—only that she

testified at trial to identifying petitioner on the basis of

them at a police station “showup” seven months later (R.

14, 17). After hearing Mrs. Beamer describe what she had

told the police (A. 125), the district court found that she

“could give only a very general description ‘of her

assailant” (A. 33).

Hearing her mother shout, Mrs. Beamer’s 13-year old

daughter ran into the hallway (R. 83). She approached

within a foot of the intruder, whose face was turned

toward her, before being ordered back into her bedroom

(R. 90, 91). The intruder then took Mrs. Beamer out of

the house through an unlit kitchen to a nearby patch of

woods where he raped her. The events surrounding the

crime lasted some 10 to 30 minutes (R. 26, 85).

Seven months later, on August 17, 1965, Biggers was

arrested for loitering while he was receiving treatment at

a Nashville hospital at 1:30 a.m. for several cuts and

bruises. His mother was present. After his arrest, ° Biggers

was lodged in a juvenile detention facility. Later he was

transferred to the custody of the police department in

order to be confronted by Mrs. Beamer.

An August 17th edition of the Nashville Tennessean, a

morning newspaper, carried a front page story of an assault that

took place earlier in the evening and Biggers’ arrest (R. 196).

Biggers, although not named, was described 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

Biggers entering jail and stated that he had confessed to attacking ,

the white woman, Mrs. Carrie Silverman; that Mrs. Beamer had

identified him as her attacker; and that two other attempted rape

“‘Yictims could not identify him. Biggers’ mother was said to have

tained an attorney soon after he was arrested (R. 196, 46, 47).

Be ‘Mf the State trial, the State initiated reference to newspapers

-@eounts of Biggers’ arrest in order to establish that Mrs. Beamer

‘Vad identified Biggers before his photograph appeared on August

ABth (R. 17).

—

On the morning of Biggers’ arrest the police went to

Mrs. Beamer’s home and brought her to the police

station—as an officer told her—to “look at the suspect”

(R. 24, 25, 39, 65, 77, 78). The police brought Biggers

into the doorway of one of the rooms in the detective

division in which the prosecutrix was seated (R. 40, 66,

80). The record made in the state courts reveals that Mrs.

Beamer saw Biggers in the doorway in the presence of

“quite a few”—at least five—policemen (R. 39, 48, 65,

73, 79). Neither his parents nor attorney were present or

had been notified of the identification. Mrs. Beamer

asked the police to have Biggers 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” or

similar words (R. 18, 66, 68, 69, 78, 79). According to

her trial testimony, only after she heard him speak the

rapist’s words did Mrs. Beamer identify Archie Biggers as

the man who had raped her (R. 17), and the district

court found that “the ‘first thing’ that made her think he

might be her assailant was his voice” (A. 34)”

The district court received additional evidence with

respect to the character of the pre-trial identification and

why this method of identification was used in the instant

One officer present testified that Mrs. Beamer identified

Biggers before he spoke (R. 80), but Mrs. Beamer herself stated

reliance on his voice for identification (R. 17). Another officer and

petitioner also testified that she requested him to speak prior to

naming him as the rapist (R. 66, 107, 108).

TIn the district court, Mrs. Beamer testified that she had

identified him before he was compelled to speak but she also

conceded that she was more certain of his identity after he spoke

(A. 129).

case. Biggers described how while on his way home in the

evening of August 16, 1965, he was attacked by dogs at

18th and Scovel Streets in Nashville and cut his arm while

trying to elude them. When he reached home, he was

taken to the Hubbard Hospital by his mother and while

receiving medical attention was accosted by policemen

who questioned him about his injury. He was then taken

to the Bordeaux area of Nashville where he was sub-

mitted alone to a Mrs. Silverman for identification.

According to Biggers, after Mrs. Silverman could not

identify him, he was taken first to the juvenile detention

facility and at about 7:30 a.m., after being questioned by

police, to the Metropolitan Police Headquarters where he

was placed in a cell. Later that day he was submitted

alone to Mrs. Margaret Beamer for identification. This

evidence was not contradicted by the state (A. 29-30).

Biggers’ mother described her son’s return home with

his injury and how she took him to a hospital. While

receiving treatment, a detective asked permission to take

the boy to the place where he had fallen, and she

consented after extracting the detective’s promise to

bring him home immediately. When Biggers had not been

returned home and she was unable to learn more about

the case by telephone—at about 2:00 or 3:00 a.m.—she

went to the juvenile court building and found that her

son was in custody. She unsuccessfully sought his release

from the police. After other unavailing efforts to obtain

his release, she retained an attorney. The attorney later

told her that he had been informed that she could obtain

her son’s release because he was only held for loitering.

However, sometime in the late morning or early after-

‘noon of the 17th of August, she was told by the police

that Biggers had been identified as a rapist. This evidence

was not controverted by the state (A. 26-28).

Attorney Williams, one of the counsel of record for

respondent, stated that he had examined his Juvenile

Court record and that-it stated, Biggers was “arrested at

5:25 a.m., 8-17-65 on a technical charge of loitering,

issued from the Juvenile Court.’’ This evidence was not

controverted by the state (A. 24-25).

Captain William McDaniel of the Nashville Police

Department, one of the officers who had conducted the

1965 investigation of the crime for which Biggers was

convicted, testified at the hearing that a lineup was

recognized as the fairest and most reliable police

procedure to ascertain the identity of a criminal (A. 68,

72), but that a lineup had not been held in Biggers’ case

~ because persons who combined both his size and age

could not be found in custody (A. 71, 72). He conceded

that there were two jail facilities in Nashville lodging at

least one hundred persons, but it was his belief that no

inmate combined all of Biggers’ physical traits (A. 68,

69). He did not make any attempt to find citizens who

would participate in a lineup (A. 75); nor were inmates

sought from the Tennessee State Penitentiary which is

located in Nashville (A. 69). The district court concluded

that the police did not make a satisfactory attempt to

arrange a lineup (A. 41).

Captain McDaniel set the time of the “‘one-on-one” or

“showup” confrontation between Biggers and Mrs.

Beamer at noon or early afternoon on August 17, 1965

(A, 72), He testified that Biggers had been arrested at the

Hubbard Hospital the previous night at about 11:30 p.m.,

while he was receiving medical treatment and candidly

conceded that petitioner had been arrested on the basis

of a “technical” charge and that there was no evidence of

loitering (A. 76).

Regarding the identification proceeding itself, he testi-

fied that Mrs. Beamer had identified Biggers while he was

in the custody of the two officers who had brought her to

the station house. Biggers was required to stand in front

of an open door in the presence of the officers. She then

had stated that he was the criminal (A.80). Immediately

thereafter, she had asked that he speak and he was told to

say the words used by the rapist, “Shut up or I'll kill

you.” After he spoke these words, she confirmed the

identification (A. 81). McDaniel also testified that Mrs.

Beamer had viewed a number of suspects both at police

headquarters and at her home, in person and by

photograph, during the 7 months prior to petitioner’s

arrest. She had been cooperative and was continuously

available if the police wanted to speak to her during this

period (A. 83).

Mrs. Beamer also testified at the hearing. She described

some of the events surrounding the crime, and how she

had identified Biggers at police headquarters as he stood

in.an open doorway. She said she then had asked that he

speak the words used by the rapist, “Shut up or I'll kill

you.” (A. 124). After hearing him speak, she had felt

more confident of her identification. Although she

conceded the dim lighting conditions at the time of the

crime, she testified there was no doubt in her mind that

Biggers was the criminal (A. 125, 127). In the months

after the crime Mrs. Beamer had been asked to identify

several suspects, some of whom had been brought

individually to her home for “one-on-one” identification

while other were presented to her in lineups of “four or

five men” at police headquarters (A. 124, 130).

Detective Bailey of the Nashville Police Department

briefly described the identification procedure in this case

and generally corroborated the testimony of Captain

McDaniel and Mrs. Beamer as to the manner in which

Biggers had been presented for identification (A. 134).

Dr. Irwin Pollack of the University of Michigan

testified as to the reliability of the identification pro-

cedures employed by the police. Dr. Pollack concluded

that the procedures used in Biggers’ identification had

prejudiced an unbiased indentification and suggested to

Mrs. Beamer that Biggers was guilty (A. 92, 93).® He

identified several factors which led him to this conclu-

sion.

First. He placed great emphasis on the fact that a

“yesno”, as he called it, procedure such as a “‘one-on-

one” or “showup” identification did not test the

witnesses’ ability to make a selective judgment. If the

person presented for identification is similar in appear-

ance to the criminal, procedures which do not require

picking one person out of a group have an inherent

tendency to suggest he is the guilty one (A. 93, 94).

Second. He characterized reliance on voice identi-

fication as an extremely unreliable identification

procedure especially when (a) the words spoken had

*Dr. Pollack stated that he did not in any sense mean his

testimony to be a comment on the reliability of Mrs. Beamer as an

individual, but rather restricted his criticism to the prejudicial

character of the procedures employed by the police (A. 109). He

agreed that Mrs. Beamer’s failure to identify the first person she

was shown supported the conclusion that those procedures did not

absolutely compel her to identify petitioner, but he concluded that

her failure to identify others had to be weighed along with the

prejudicial nature of the identification procedures employed, the

seven month delay, and the poor lighting conditions under which

the rapist was initially observed (A. 112).

emotional connotation (A. 93), and (b) there was no

opportunity for comparison of voices (A. 98).

Third. He believed that certain other~ circumstances

present in the record of trial aggravated the prejudice

already caused by the “one-on-one” or “showup”

identification procedure and the reliance on voice

identification. He mentioned, specifically: (a) the seven

month gap between the crime and the identification (A.

95, 101); (b) the poor opportunity for initial observation

of the criminal caused by the lighting conditions

prevailing at the time of the crime (A. 116); and (c) the

fact that Biggers had been described to Mrs. Beamer as a

“suspect” prior to being presented for identification (A.

99, 101).

Dr. Pollack also agreed with several statements in a

treatise and judicial opinions to the effect that the

general fallibility of human perception and memory make

extremely prejudicial identification procedures that

aggravate difficulties encountered in recalling past events

(A. 99). He took the position that even a lineup in which

there were differences between the participants, but also

some similarities, was a superior identification device to a

“showup” (A. 118). The district court expressly relied on

this testimony (A. 41).

Even if Mrs. Beamer had not identified Biggers by his

voice, Dr. Pollack still maintained that the procedures

used were unsatisfactory (A. 98).9 “My opinion with

*Dr. Pollack characterized voice identification as being an

extremely unreliable identification procedure because there are so

few cues available to the complainant (A. 97). He thought that the

seven month time lapse may have had a serious effect on the

teliability of the voice identification:

respect to such factors as the length of time between the

act and the identification, the one-on-one confrontation,

the identification of the particular individual as a suspect,

all of these might lead the complainant to identify a

particular person under these circumstances.” (A. 101).

He explained that he had concluded froni reading the

transcript of the statement that the primary mode of

identification was auditory, but that even if the identi-

fication was purely visual, his opinion remained that the

identification procedures employed were unduly sug-

gestive (A. 105).

SUMMARY OF ARGUMENT

This Court’s equally divided affirmance of respond-

ent’s state court conviction does not foreclose collateral

federal relief by habeas corpus. A uniform line of cases

establishes that an equally-divided affirmance merely

ends the process of direct review but settles no issues of

law. The policies denying precedential status to such

affirmances apply as logically to respondent’s habeas

corpus petition as to other litigants.

The only possible limitation on the district court's power

to grant the writ is 28 U.S.C.§ 2244(c), but the statute’s

prohibition of claims “actually adjudicated” does not

“I’m concerned that in effect the subject's auditory memory of

what was said changes with time. . . . Our subjective memory of

a particular auditory event does indeed decay with time so if:

you ask me what is it about the voice that relates to this

long-term memory, it’s the impermanence, if you will, of the

mental copy of what was said, ... and we know from

experiments that the fallibilities of identification will indeed

increase with time.” (A. 96)

reach an affirmance necessitated by equal division. The

questions of law presented to this Court in 1968 were not

decided; the judgment in respondent’s case was affirmed

by operation of a technical rule of necessity. The

legislative history surrounding §2244(c) bears not the

slightest suggestion that» Congress considered equally-

divided affirmances tantamount ‘to actual adjudication.

28 U.S.C. §2109 draws a parrallel between equally-

divided dispositions and the administrative affirmances

made of necessity when the Court lacks a quorum. In

both situations, the Court disposes of a case on direct

review but does. not actually adjudicate questions of law

or fact.

Other considerations " present in this case ‘re-enforce

the conclusion that the full federal adjudication below

was in order. This was an initial habeas corpus petition;

no question of abuse of the writ is present. The absence

of an opinion from this Court left in doubt which of

respondent’s arguments produced the division, and the

fuller record made at the habeas hearing provided bases

for relief not apparent on direct appeal. The opportunity,

inherent in habeas, to make a full and searching

re-evaluation of the circumstances of respondent’s claim

of a denial of due process of law was properly taken by

the district court.

The courts below correctly applied the Due Process

Clause to the facts of this case. The State trial turned on

the question of identification. The sole, evidence con-

necting respondent with the crime was the complaining

witness’s report of a “showup” held seven months after

the event, at which respondent had been displayed to her

as a “suspect.” She did not finally identify the defendant

until after a “voice test” at which he alone spoke the

inflammatory words used by the attacker: the district

court found that she failed to identify him at trial: and

the other witness to the crime could not identify him

altogether.

A one-man “showup” is inherently suggestive, and its

operation in the present case made it more 0.

Nonetheless, such identifications may be constitutional

under certain circumstances; but this case involved none

of them. There was nothing analogous to a compelling

necessity as in Stovall v. Denno, 388 U.S. 293 (1967).

Seven months after the crime a hurried ““showup” was

not crucial to an ongoing police investigation; the police

in this case had full opportunity to assemble a lineup, a

procedure they conceded to be more reliable. The

omission of a lineup was not. excused by external

guarantees that the identification was reliable. The

complaining witness had no good or sustained oppor-

tunity to observe her attacker; the inflammatory effect of

the “voice test” deprived the proceedings of trust-

worthiness; the time lapse between event and identi-

fication deepened the unreliability; and there was no

other evidence at all implicating the defendant. The

further fact that the respondent’s production at the

“showup” was the result of a patently illegal arrest

contributes to the invalidity of his conviction.

ARGUMENT

THE AFFIRMANCE BY THIS COURT OF

RESPONDENT'S CONVICTION BY AN EQUALLY

DIVIDED COURT DID NOT FORECLOSE CON.

SIDERATION OF THE MERITS OF HIS CLAIM OF

DENIAL OF DUE PROCESS OF LAW BY PETITION

FOR A WRIT OF HABEAS CORPUS.

Petitioner urges that this Court’s equally divided

affirmance of Biggers’ state conviction for rape, 390 U.S.

404 (1968); not only concluded adjudication of Biggers’

constitutional claim of denial of due process on direct

review, but also operated as an absolute bar to subse-

quent litigation of his claim in a federal habeas corpus

court. Such a result, however, would be inconsistent with

the policy behind denying precedential status to such

affirmances, contrary to settled principles governing

access to federal habeas corpus relief, productive of

confusion, and, as this case strikingly shows, capable of

causing gross injustice. It would, we submit, exalt form

over substance, contrary to the very essence of habeas

corpus as a remedial device which, in Justice Holmes’

celebrated words, “cuts through all forms and goes to the

very tissue of the structure,” Frank y. Mangum, 237 USS.

309, 346 (1915) (dissenting opinion).

This Court has never treated an equally divided,

affirmance as entitled to such weight as could bar

litigation of a claim otherwise cognizable on habeas

corpus. To do so would be inconsistent with the nature

of an equally divided affirmance as a long line of

decisions has characterized it. In Etting v. Bank of United

States, 24 U.S. (11 Wheat.) 59, 77 (1826), for example,

_ the Court made no attempt to analyze the cases cited to

it or to decide their application “because the judges are

divided respecting it. Consequently, the principles of law

which have been argued cannot be settled: but the

judgment is affirmed, the court being divided in Opinion

upon it.” (Emphasis added.) No decision of the Court

since Etting suggests that such an affirmance is suf.

ficiently conclusive to settle the merits of a case. To the

contrary, affirmance by an equal division has been

repeatedly characterized as a technical affirmance of the

judgment below for lack of sufficient votes to do

anything else rather than a determination on the merits:

...no affirmative action can be had in a cause

where the judges are equally divided in opinion. ...

If the affirmative action sought is to set aside . . . an

existing judgment...the division operates as a

denial of the application, and the judg-

ment ...stands in full force. ...If the judges are

divided, the reversal cannot be had, for no order

can be made . . . . It is, indeed, the settled practice

in such cases to enter a judgment of affirmance; but

that is only the most convenient mode of expressing

the fact that the cause is finally disposed of in

conformity with the action of the court

below. . . . The legal effect would be the same if the

appeal, or writ. of error, were dismissed. Durant v.

‘ Essex Co.,:74 U.S. (7 Wall.) 107, 110, 112 (1868).

The technical, indeed automatic, operation of an

equally divided affirmance is demonstrated by the

language of two cases over a hundred years apart. In the

Albany Bridge Case, 69 U.S. (2 Wall.) 403 (1864), the

Court stated that “...the Court being equally divided,

no opinion on any point was given and the decree so

stood a decree affirmed of necessity,” (emphasis

supplied). More recently, a per curiam opinion in

Anderson v. Johnson, 390 U.S. 456 (1968), stated:

“Four members of this Court would reverse; four

members of this Court would dismiss the writ as

improvidently granted. Consequently, the judgment of

the United States Court of Appeals for the 6th Circuit

remains in effect’? (emphasis supplied).'° An equally

divided affirmance, therefore, is a judgment routinely

entered to close out a case in which the Court can do

nothing else. It does not place this Court’s imprimatur or

the decision of a state court. That decision stands

unaffected: because it if anreviewed."'

Despite the fact that no decision has been rendered on

the merits of Biggers’ claims-sufficient to be considered

10 The difference between a decision on the merits and technical

affirmance of a judgment is well stated in Lambros v. Young, 145

F.2d 341, 343 (D.C. Cir. 1944):

A decision involves reaching a conclusion. Where no conclusion

is reached, nothing is decided. Even in judicial proceedings the

action of a divided court is not a decision. It does not affirm the

decision of the court below. Instead it affirms the order or

judgment or decree of the court below. This is not because the

appellate court has decided the case. It is, rather, because the

appellate court has been unable to decide the case and therefore

cannot reverse the lower court’s judgment or decree. But this

kind of affirmance is not a decision on the facts or law.

(Emphasis in original.)

'lIn Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264 (1960),

criminal charges had been-brought against the appellant for failing

to admit inspectors to his home. A separate opinion by Justice

Brennan, Warren, Black and Douglas stated:

Four of the Justices participating are of the opinion that the

judgment should be affirmed, while we four think it should be

reversed. Accordingly, the judgment is without force as prece-

dent. ... In such circumstances . .. the usual practice is not to

express any opinion, for such an expression is unnecessary

where nothing is settled.

See also Hertz v. Woodman, 218 U.S. 205, 213 (1910).

precedent, the warden argues that an affirmance by an

equally divided court amounts to a conclusive adjudi-

cation of the questions of law and fact presented to the

Court so that Biggers cannot raise in a federal habeas

corpus proceeding the critical factual and legal issues on

_which any other state prisoner would be heard. |

Respondent concedes that affirmance by an equally

divided court is a final adjudication to the extent that it

marks the end of direct review . It is not, how-

ever, a precedent with stare decisis effect. This con-

clusion follows inescapably from the fact that a 44

affirmance takes its character solely from the character of

the judgement of the court below.'? If such an affirmance

cannot be taken as settling a principle of law, it cannot be

considered a bar to issuance of the writ of habeas corpus.

The policy behind withholding precedential status is

based on, at least, two considerations: (1) that a majority

of the sitting Justices of this Court have not agreed ona

result and (2) that it would be confusing, and potentially

mischievous, for lower courts to have to scrutinize a

decision by this Court—one that is conventionally

121n a civil case, affirmance of a lower court decision merely

refuses to open a door that had already been closed by the lower

court. But an equally divided affirmance by this Court of a state

criminal conviction goes a step beyond that, petitioner argues and

closes off federal habeas corpus. But the Supreme Court of Tennessee

could not have closed that route to Biggers, so if habeas is

unavailable it must be due to the positive action of this Court. Yet

to say that such a result follows from a 4-4 decision is almost a

contradiction in terms. The essence of a 4-4 affirmance is the

Court’s passivity and acquiescence because it is incapable of taking

action. As Justice Field said in Durant, supra, 74 US. at 110,

no affirmative action can be had in a cause where the judges are

equally divided in opinion.

reached without opinion—in order to determine what has

been settled. Both considerations apply as much to the

litigant whose conviction was fortuitously affirmed as

they do to future litigants.'*

In conventional civil litigation affirmance by an

equally divided court marks the end of litigation only

because affirmance ends the process of direct review.

Collateral remedies are not generally available. But where

collateral attack through habeas corpus, an independent,

separate proceeding has been made available by Congress,

there is no reason to distinguish among litigants raising

the same constitutional claim because some raised that

claim in this Court—unless, of course, this Court author-

itatively resolved the legal issue. When a man’s liberty

hangs in the balance: “...the protection... from

13s an alternative ground for affirmance the majority of the

court of appeals also thought that the issue presented to this Court

on certiorari from the Supreme Court of Tennessee was not the same

question considered by the district court on petition for writ of

habeas corpus. In short, the court of appeals seemed to believe that

this Court may have denied relief to Biggers because some members

of the Court only considered the voice identification issue,

separately briefed and argued to the Court, and did not pass on ‘the

issue as posed by the district court, Whether or not the court of

appeals was correct in this regard, its conclusion demonstrates the

potential confusion of the result sought by petitioner in this case,

for that result puts lower courts to the delicate and difficult task of

determining issues adjudicated by this Court without the benefit of

an opinion of the Court. Cf. Epton v. Nenna, 446 F.2d 363 (2d

Cir. 1971).

unconstitutional interference, which is the subject of

inquiry in these [habeas corpus] proceedings, overrides

the less important interest of finalizing litigation.”

Sanders v. United States, 373 U.S. at 1, 7-8; Fay v. Noia,

372 US. 391, 423; Salinger v. Loisel, 265 U.S. 224,

230-31 (1924).

There should, therefore, be no difficulty in distin-

guishing between finality in the sense of giving effect to

the judgment of a court below in order—ex necissitate-

to bring the process of direct review to a close, and

finality in the sense of uttering the last, decisive, word on

the legal merits of a dispute over unconstitutional

detention. It would be a gross injustice to deny any

remedy to a man imprisoned for 20 years in violation of

the Due Process Clause on the basis of a judgment so

tenuous that it settled no principle of law and laid down

no precedent. The injustice here is magnified by the fact

that if Biggers had proceeded directly to a federal habeas

court, his right to petition for the writ would be

unquestioned. To bar habeas relief to this one prisoner

alone would be to give free reign to an element of chance

in a process where chance has no place.

The Court is confronted in this case with a record

made on federal habeas corpus that dramatically demon-

strates the mischief that petitioner’s submission would

produce. The district court held a hearing, received

material evidence, and decided that the evidence estab-

lished a denial of due process under the totality of the

circumstances doctrine. If a 44 affirmance of a due

process claim bars federal habeas corpus, such a rule

operates to foreclose opportunity to present supple-

mental facts—not before the courts on direct review—

even though they make out a claim of fundamental

unfairness. This result cannot be squared with the historic

office of the federal -habeas corpus jurisdiction, e.g.,

Moore v. Dempsey, 261 U.S. 86 (1923).

The highly formal nature of an affirmance by simply

virtue of there not having been a majority of Justices who

would vote for reversal, combined with the absence of an

opinion of the court, strongly suggests that the Court’s

action should be compared to, and given no more weight

than, a denial of certiorari. A denial of certiorari is, of

course, without substantive significance for subsequent

habeas corpus proceedings. Fay v. Noia, 372 U.S. 391

(1963). See also Miller v. Carter, 434 F.2d 824, 826 (9th

Cir. 1970), cert. den., 402 U.S. 972 (1970); Radich vy.

Criminal Court, 459 F.2d 745 (2nd Cir. 1972) (certiorari

pending sub nom. Ross v. Radich, (O.T. 1971, No.

71-1510).

Congress has recognized that an affirmance by an

equally divided court is nothing more than a pro forma

disposition. The statute governing disposition of cases by

this Court in the absence of a quorum, 28 U.S.C. §2109,

explicitly equates lack of a quorum with an affirmance

by an equally divided court:

In any other case brought to the Supreme Court

for review [all cases except those which involve ’

direct appeal from a district court], which cannot

be heard and determined because of the absence of a

quorum of qualified justices, if a majority of the

qualified justices shall be of opinion that the case

cannot be heard and determined at the next ensuing

term, the court shall enter its order affirming the

judgment of the court from which the case was

brought for review with the same effect as upon

affirmance by an equally divided court. (Emphasis

added)

But a court without a quorum cannot consider or decide

any case before it for a quorum is the number “legally

competent to transact business.” (Webster’s International

Dictionary, 2d Ed. 2046.) Hence the statute merely

provides for an acquiescence in the result reached by the

lower court. Obviously Congress believed that this Court’s

decisions gave an affirmance by an equally divided court

no more effect than that.

Petitioner argues that 28 U.S.C. §2244(c) dealing with

the finality of determinations by federal courts in habeas

corpus proceedings barred consideration of the petition

for a writ of habeas corpus. This statute prohibits

reconsideration of claims “actually adjudicated” by this

Court except when material and controlling facts could

not have been presented previously. As an “actual

adjudication” establishes a precedent which is binding

upon federal courts, under Section $ 2244(c) habeas

corpus petitions raising issues which have already been

decided adversely to the petitioner must be dismissed.

The legislative history of §2244(c), however, reveals

no intention to deal with the effect of equally divided

affirmances; only an intention on the part of Congress to

eliminate repetitive and frivolous habeas corpus writs,

which were clogging the calendars'* of federal courts,

'*H should be noted that in entertaining habeas corpus

petitions challenging a criminal conviction after a divided affirm-

ance in the Supreme Court, the federal district courts would not

subject themselves to a flood of new litigation. Divided affirmances

in the Supreme Court are rare, and divided affirmances in criminal

matters are rarer still.

iia 27

without unconstitutionally suspending the writ.'5.

According to Judge Orie Phillips, Chairman of the

pertinent Judicial Conference Committee, the purpose of

the 1966 Amendments were “to prevent the abuse of the

writ of habeas corpus by persons in custody under

judgments of state courts in habeas corpus proceeding in

Federal courts, and to expedite the disposition of

non-meritorious and repetitious applications for the writ in

Federal courts by State prisoners.” Sen. Rep. No. 1797,

89th Cong., 2d Sess., 4 (1966).

The intent of Congress in passing §2244(c) would

appear, therefore, to have been to ease the administrative

burden of federal courts, without depriving state pris-

oners of their established right to habeas corpus review of

their convictions, by screening out plainly repetitious and

non-meritorious habeas corpus suits through an extremely

narrow application of principles of finality to those

actual determinations of fact and law made after actual

consideration of the merits.'®

In light of 28 U.S.C. § 2109, it does not seem likely

that Congress intended that an affirmance by an equally

divided court would have any limiting effect on a

'$See Sen. Rep. No. 1797, 89th Cong., 2d Sess. 2, 6 (1966).

The Judiciary Committee of the House of Representatives con-

curred in this opinion:

It is the opinion of your committee that the bill... provides

adequate remedies by habeas corpus to state prisoners and

thereby safeguards the constitutional rights of such prisoners. H.

Rep. No. 1892, 89th Cong., 2d Sess. 9 (1966).

In his concurring opinion in United States v. Mackey, 401

US. 668, 687 n. 5 (1971), Justice Harlan considered the “sparse”

‘legislative history of the statute and concluded, inter alia, that

‘where due process claims were at issue, even the narrow application

of finality principles provided by § 2244(c) might be inapprop-

subsequent federal habeas corpus action. If it were

otherwise, then an affirmance because of the lack of a

quorum would also come within the limits of 28 U.S.C.

§2244(c) even though a court with a quorum is incapable

of undertaking even consideration of a case. Neither sort

of affirmance fits the statutory concept of a case

“actually adjudicated”—a concept by which Congress

seems plainly to have recognized that preclusion from

habeas corpus is justifiable only when there has already

been a determination of a federal question by a federal

court, notably this Court. To the extent that the issue

involved here is a matter of statutory interpretation of 28

U.S.C. § 2244(c), it is particularly relevant that Congress,

as shown by 28 U.S.C. § 2109, considers an affirmance

by an equally divided court to be a procedural disposition

and not an actual adjudication of a case before this

Court.

With respect to direct appeals from district courts, 28

U.S.C. §2109 also provides that, if this Court lacks a

quorum, the Chief Justice

may order it [the case] remitted to the court of

appeals for the circuit including the district in which

the case arose, to be heard and determined by that

court....

This statute evinces a Congressional aim that federal

appellate review not be precluded by an_ internal

disability of this Court, especially one over which the

parties have no control. Like a court which lacks a

quorum, an equally divided court is a hamstrung body

which cannot decide the issue in the case before it. Etting

v. Bank of the United States, 24 U.S. (11 Wheat.) 59

(1826). Fortunately, in criminal cases where this Court is

equally divided, habeas corpus provides an analogous and

singularly appropriate way to have those issues resolved

by a federal forum. Because this procedure provides

federal resolution of issues which this Court had left

undecided, resort to it in these circumstances should

clearly be approved.

Those courts that have been called upon to rule on

cases involving the 1966 amendments to § 2244 have

invariably construed them in a fashion inconsistent with

petitioner’s argument here. In McDowell v. Ciccone, 275

F. Supp. 957, (D.C. Mo. 1967), aff'd 407 F.2d 257, the

court held res judicata principles inapplicable as a basis

for barring habeas corpus relief sought after a denial of a

motion to vacate sentence. In Miller v. Carter, 434 F.2d

824 (9th Cir.) cert. denied, 402 U.S. 972 (1970), the

court of appeals held that by enacting §2244(c) “Con-

gress intended to give a conclusive presumption only to

actual adjudications” and that dismissing the writ with-

out opinion did not constitute an actual adjudication. In

United States ex rel. Tyler v. Henderson, 322 F. Supp.

142 (E.D. La. 1971), the district court stated that the

“doctrine of res judicata has no place in habeas corpus

proceedings, especially where there is reason to reappraise

either the facts or the law in order to do substantial

justice. This rule applies equally to appropriate cases

where a writ has been granted as well as those wherein a

writ was denied.” In Epton v. Nenna, 318 F. Supp. 899

(S.D. N.Y. 1970), aff'd, 446 F.2d 363 (2d Cir., 1971),

the court held a dismissal of an appeal an adjudication on

the merits, but, significantly, the decision to dismiss was

reached by a majority of this Court. In Parker v. Ross,

330 F. Supp. 13 (E.D. N.Y. 1971), it was held that this

Court’s affirmance of a state appellate court based on an

adequate state law ground of decision was not an “actual

adjudication” of the issue. The court in Radich vy

Ct Court, supra, agreed with the decision of the

Sixth Circuit and the district court in this case.

In any event, § 2244(c) does not apply to Biggers’

habeas corpus petition because the district court received

evidence not before this Court or the state courts on

direct review. The statute itself provides that the

admission of new material facts is a circumstance

sufficient to permit a habeas court to grant relief. In this

case, the additional evidence received also changed the

character of the legal issue before the district court for

that court applied a due process totality of the cir-

cumstances test to circumstances which were not

developed in the state court record. Significantly, the

district court expressly relied on this new evidence in its

opinion granting relief. There are, however, additional

considerations supporting a construction of 28 U.S.C.

§2244(c) that does not restrict the jurisdiction of a

federal habeas corpus court subsequent to an equally

divided affirmance by this Court.

First. This Court has stated explicitly and repeatedly

that the doctrine of res judicata is inapplicable to habeas

corpus proceeding. Salinger v. Loisel, 265 U.S. 224, 230

(1924); Wong Doo v. United States, 265 U.S. 239 (1924).

In Fay v. Noia (372 U.S. at 422-424), it was said that the

inapplicability of res judicata “stems from the very

nature of the writ.” And the principle was restated with

force in Sanders v. United States, 373 U.S., at 7-8."

"at common law, the denial by a court or judge of an

application for habeas corpus was not res judicata. ... That this

was a principle of our law of habeas corpus as well as the English

law was assumed to be the case from the earliest days of federal

habeas corpus jurisdiction. . . . Since then, it has been settled in an

unbroken line of decisions ... [citations] ... Conventional

notions of finality of litigation have no place where life or liberty is

at stake and infringement of constitutional rights is alleged. If

‘government ... [is] always [to] be accountable to the judiciary

for a man’s imprisonment,’ Fay v. Noia, 372 US. at 402, access to

Since the remedy of habeas corpus is “‘an original civil

remedy for the enforcement of the right to personal

liberty,” Fay v. Noia (372 U.S. at 423), and involves a

separate proceeding to challenge detention that does not

conform to fundamental requirements of law, the “very

nature of the writ” does not easily admit to restrictions

based solely on the circumstances of the judgment

rendered upon review. Habeas does not revise that

judgment or depend upon it; rather it acts upon the

present status of the petitioner’s detention.

Second. It is well established that successive petitions

for habeas corpus are not barred by the doctrine of res

judicata, Sanders v. United States, supra. “Indeed, some

courts have allowed successive petitions even when

dismissal would be justified. This kind of fair-minded

leniency is in full accord with the tradition of the writ,”

SOKOL, F EDERAL HABEAS CorPus 192 (1969). If

successive petitions for the writ are not barred by res

judicata, a fortiori, a petition for habeas corpus ought not

to be prohibited when the only consideration of the

constitutional claim on direct review resulted in a divided

affirmance. There is, moreover, no question of abuse of

the writ in such a context (cf. Sanders, supra, at 373 U.S.

12) and it was abuse that Congress was concerned with

when it enacted § 2244(c).

Third. The federal habeas jurisdiction empowers a

district court to “dispose of the matter as law and justice’

require,” 28 U.S.C. §2243. Biggers’ claim of a violation

of due process was of such magnitude that principles of

prospectivity do not apply to it, Stovall v. Denno, 388

the courts on habeas must not be thus impeded. The inapplicability

Of res judicata to habeas, then, is inherent in the very role and

_ famction of the writ.” (Emphasis added.)

BS ‘

U.S. 293 (1967). The district court expressly found that

“jt would amount to a travesty on justice” (A. 47) not to

entertain and to grant the petition. Nothing in the

legislative history of 28 U.S.C. §2244(c) reveals an

attempt to restrict district court discretion in this regard.

Fourth. The right to the writ of habeas corpus stems

from the Constitution itself"® and a construction of 28

U.S.C. §2244(c), that foreclosed a prisoner’s first

opportunity to obtain the writ—despite his assertion of a

valid claim of denial of due process—would raise grave

constitutional doubts. In Jones v. Cunningham, 371 USS.

236, 238 (1963), the court observed that “The habeas

corpus jurisdictional statute implements the consti-

tutional command that the writ of habeas be made

available.” The constitutional roots of hab

recurring theme in the Fay and Sanders decisions.'®

'Sarticle 1, §9, cl. 2: “The privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Rebellion

or Invasion if the public safety may require it.”

The principle stated in Fay v. Noia, supra, that “...

conventional notions of finality in criminal litigation cannot be

permitted to defeat the manifest federal policy that federal

constitutional rights of personal liberty shall not be denied without

the fullest opportunity for plenary, federal judicial review,” (372

U.S. at 424), clearly implicates Article 1, §9, cl. 2:

We need not pause to consider whether it was the Farmers’

understanding that congressional refusal to permit the federal

courts to accord the writ its full common law scope as we have

described it might constitute an unconstitutional suspension of

the privileges of the writ. There have been some intimations of

support for such a proposition in decisions of this Court . . . [T]he

Constitution invites, if it does not compel ... a generous

construction of the power of the federal courts to dispense the

writ conformably with common-law practice. (/d. at 400-406.)

The constitutional basis of habeas corpus received its

most explicit formulation in Sanders v. United States,

supra, where the court held that the then existing

language of 28 U.S.C. § 2244, dealing with successive

habeas corpus petitions, “plainly was not intended to

change the law as judicially evolved... [L]anguage in

the original bill which would have injected res judicata

into federal habeas corpus was deliberately elimin-

ated.... Moreover, if construed to derogate from the

traditional liberality of the writ of habeas corpus...

§ 2244 might raise serious constitutional questions,”

(373 U.S. at 11).

In discussing 28 U.S.C. § 2255, which contains a

parallel provision to § 2244 for successive motions to

vacate sentence, the opinion of the Court warned:

... this language might seem to empower the

sentencing court to apply res judicata virtually at

will... . But the language cannot be taken literally.

In United States v. Hayman, 342 U.S. 205... [t]he

Court avoided the constitutional question by hold-

ing that § 2255 was as broad as habeas corpus... .

Plainly, were the prisoner invoking § 2255 faced

with the bar of res judicata, he would not enjoy the

“same rights” as the habeas corpus applicant... .

Indeed, if he were subject to any substantial

procedural hurdles which made his remedy under

§ 2255 less swift and imperative than fedefal habeas

corpus, the gravest constitutional doubts would be: ’

engendered. (/d. at 13-14.)

Even the dissent in Sanders conceded that “strict

doctrine of res judicata do not apply in this field. The

consequences of injustice—loss of liberty and sometimes

loss of life—are far too great. . .”

(

tse ee

Rog)

Fifth. Habeas corpus, in light of its basic nature and

role, has been liberally construed and kept unhampered

by procedural niceties of the sort contended for by

petitioner in this case. Like the precious rights of the

First Amendment, the writ too needs “breathing space”

if it is to function effectively. In Darr v. Burford, 339

U.S. 200, 203-204 (1950), for example the court stressed

that a “favorable attitude toward procedural difficulties”

accorded with the scope of federal habeas corpus and

observed that “federal courts have long disregarded

legalistic requirements in examining applications for the

writ.”” See also Smith v. Bennet, 365 U.S. 708, 712

(1961): “We repeat what has been so truly said of the

federal writ: ‘there is no higher duty than to maintain it

unimpaired,’ Bowen v. Johnston, 306 U.S. 19, 26 (1939),

and unsuspended, save only in the cases specified in our

Constitution.”?°

We submit, therefore, that both policies and principles

which have guided this Court’s supervision of the federal

habeas corpus jurisdiction compel consideration of

Biggers’ claim that he was denied due process of law.

“[T] echnical rules whose primary purpose lies in the area

of civil litigation,” as the dissent in Sanders (/d. at 24)

characterized the rules of res judicata, should not control.

Rules designed to assure finality in civil litigation simply

do not apply to a petition seeking release from unconsti-

tutional detention for such cases have “‘always stood ona

different footing.”’ Radich v. Criminal Court, supra, 459

F.2d at 751.

since “the objective of conclusiveness of judgments must be

qualified by the desire for fundamental fairness ... [s]ince the

writ is an extraordinary remedy designed to safeguard individual

liberties and since the interests protected by res judicata are not

paramount . . . . rigid adherence to pririciples of res judicata would

considerably reduce the protection ‘which [the] proceedings are

intended to afford,” Developments in the Law—Res Judicata, 65

Harv. L. Rev. 818, 851, 878 (1952).

THE COURTS BELOW CORRECTLY DECIDED

THAT THE PRE-TRIAL IDENTIFICATION

PROCEEDING SHOWN BY THE RECORD IN THIS

CASE VIOLATED THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT

Examination of the full circumstances now shown to

surround Biggers’ pre-trial identification persuaded both

the district court and the court of appeals that Biggers

was the victim of an overly suggestive, highly prejudicial,

and totally unnecessary “showup”’ identification. Consis-

tent with its obligation under Townsend v. Sain, 372 U.S.

293 (1963), the district court found that “an evidentiary

hearing is required to determine the factual issues.” (A.

20) The court, therefore, received supplementary

affidavits and held a hearing. It observed testimony from

several witnesses including the complaining witness, the

highest ranking police officer involved in the case, and an

expert in the field of human perception and memory.

On the basis of the evidence received at the evidentiary

hearing, together with it consideration of the state court

record, the district court found the following essential

facts: 1 ) The entire episode surrounding the rape took

place under very poor lighting conditions;

(2) The complaining witness did not give the a. a

good physical description of her assailant;

(3) During the seven-month period between the crime

- and her identification of .Biggers, the complaining

_- Witness attended several lineups and “‘showups’”’;

~ (4 Seven months after the crime, the complaining

_ witness was told to come to police headquarters to

~ “fook at a suspect”;

(5) The complaining witness changed her story of the

“‘showup” between the original trial and the federal

habeas hearing: At trial, she testified that she had

initially identified Biggers on the basis of his voice but

in the federal hearing, she testified that she identified

him before he was forced to speak the words “shut up

or I'll kill you” (A. 34);

(6) It was unnecessary for the police and prejudicial to

Biggers for the police to use the “showup” procedure,

rather than a lineup.?! .

(7) Biggers’ indictment and conviction were based

almost exclusively on the stationhouse identification.

On these facts, the district court found that the “show

up” in this case violated the Due Process Clause. The

court emphasized that there had been no serious effort to

arrange a lineup, even though there was no pressing need

for a speedy identification; that both parties admitted

that a lineup was more reliable than a “‘showup” ; that

the crime was already seven months stale at the time of

the “showup” was staged; that the complaining witness

was “unable to give either an independent photographic

identification of the suspect or a good physical des

cription of her assailant” (A. 42); and that the chronic

uncertainties and inherent deficiencies of the “‘showup”

procedure were further aggravated by the witnesses’

21 T] here is no indication that a truly concerted effort was

made to produce suitable subjects for a line-up. Aside from a

phone call 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.” (A. 41, 42),

éf

“knowledge that petitioner was thought by the police to

be her assailant’’. (A. 42)

The court of appeals, after reviewing testimony given

in both state and federal courts found no error either in

the district court’s findings of fact or in its application of

the principles of due process?* to the pre-trial “show

9 23

Both counts below, therefore, properly applied the

teachings of Stovall v. Denno, 388 U.S. 293, 302 (1967)

and Foster v. California, 394 U.S. 440 (1969). Stovall

makes clear that an identification procedure may be “so

unnecessarily suggestive and conducive to irreparable

mistaken identification” that due process of law is denied

when testimony concerning the identification is intro-

duced, as it was here, at trial. See also Kirby v. Illinois

U.S. (1972). Such a claim must be evaluated in the

light of the “totality of the surrounding circumstances”

with careful consideration devoted to both the necessity

for the procedures used and the likelihood that the

procedures induced a misidentification.

Following Stovall the lower courts, while acknow-

ledging the notorious unreliability and the innate sug-

gestiveness of “‘showup”’ identifications, 4 have refused

22We too have reviewed the state trial court record and the

appellate record above that, as well as the somewhat different

transcript developed in the testimony before the District Judge. We

believe the record does not allow us to find that the conclusions of

fact of the District Judge are clearly erroneous. In addition, we

find no error in the District Judge’s understanding of the principles

of due process of law as they apply to identification proceedings

prior to decision of the Wade, Gilbert, cases.” (448 F.2d 91,95)

3 Judge Brooks dissented only on the ground that the district

court was not authorized to grant habeas corpus relief because of

this Court’s 4-4 affirmance.

Se *The courts, legal scholars and experts in the field (see e.g. , the

Metimony of Dr. Irwin Pollack at (A. 89) ) have recognized that

to brand as per se unconstitutional all “showup” con-

frontations. The presence of special circumstances, they

have ruled, may justify an improperly conducted identi-

fication or rebut the presumption that the defendant was

prejudiced by such an identification. These decisions

suggest that there are several types of situations in which

otherwise suggestive pre-trial identification confron-

tations may not deprive the suspect of due process of

law. But many of the factors that have prompted the

courts to validate “showups” in these other cases

the “show up” is the most grossly suggestive identification

procedure now or ever used by the police ...”, Wall, Eyewitness

Identification in Criminal Cases, 28, and that its use “brings us to

the threshold of an issue of fairness.” Wise v. United States, 383

F.2d 206, 209 (D.C. Cir., 1967). See also, Stovall v. Denno, supra,

at 302; Paul, /dentification of Accused Persons, 12 Australian LJ.

42, 44 (1938); Bates v. United States, 405 F.2d 1104 (D.C. Cir.,

1968).

In United States v. Wade, 388 U.S. 218 (1967) this Court

quoted with approval Justice Frankfurter’s observation that:

“The identification of strangers is proverbially untrustworthy.

The hazards of such testimony are established by a formid-

able number of instances in the records of English and

American trials.” (The Case of Sacco and Vanzetti 30)

If this characterization applies to an identification by line up,

where comparison and selectivity are greatest and suggestion

minimal, it applies with far greater force to the “show up” in this

case, where Mrs. Beamer could only accept or reject police

suspicion that Archie Biggers was the rapist, and where the “show

up” identification was the sole evidence of guilt. As one court has

noted of showups:

“Whatever the police actually say to the viewer it must be

apparent to him that they think they have caught the villain.

Doubtless a man seen in handcuffs or through the grill of a

police wagon looks more like a crook than the man standing

at ease and at liberty. There may also be unconscious or

overt pressures on the witness to cooperate with the police

by confirming their suspicion.” (Russell v. United States , 408

F.2d 1280, 1284 (D.C. Cir.) cert. den. 395 U.S. 928 (1969) ).

described infra, are conspicious by their absence here.

The courts below were on solid ground in concluding

that this particular ‘“‘showup” constituted a denial of due

process of law.

A. The Absence of Any “Compelling Necessity”

’ In This Case

“Showups” have been held legally justified and consti-

tutionally acceptable where there is an urgent need for

rapid identification, and the use of fairer procedures

would entail risks to important societal interests dis-

proportionate to any prejudice that the suspect might

suffer. Thus, a ‘“‘showup” has been tolerated where

compelling circumstances existed which rendered impos-

sible the employment of a line up without the unaccept-

able sacrifice of an expeditious identification. There

was, however, no necessity in this case to present Archie

Biggers to Mrs. Beamer in a hastily contrived “showup”’,,

and the district court so found after hearing evidence on

the question.

(1) No Stovall Death-Bed Situation Is Presented

The accused in Stovall v. Denno, supra, was identified

without a line up, but due process was not violated solely

because the victim was in danger of death. If an

identification was to be made at all, “an immediate .

hospital confrontation was imperative” Jd. at 302. The

need for an immediate identification present in Stovall is

completely absent here. On the contrary, Biggers was in

US. 377 (1967); United States v. Davis, 399 F.2d 948 (2d Cir.

1968).

police custody at the time ofthe identification on an

unrelated—although patently illegal—charge, and was

continuously available for identification. Mrs. Beamer

was, and had been for seven months continuously,

available to the police. Her health was unimpaired and—as

the district court specifically found—no other factors

required an immediate identification without a line up.

- (2) Considerations Of Fairness To The Suspect

Did Not Require A “Show Up”’

It has also been held that when a suspect is

arrested near the scene of a crime and soon after its

commission, it is imperative that the police immediately

ascertain the correctness of their selection of suspects, so

that an innocent man may be expeditiously released and

so that the authorities may resume their search when the

real culprit is close and the trial still fresh. Accordingly,

where the challenged pre-trial identification con-

frontation occurs proximate to the scene and time of the

offense, the use of a “showup” procedure does not

necessarily “diverge from the rudiments of fair play that

govern the due balance of pertinent interests that

suspects be treated fairly while the state pursues its

responsibility of apprehending criminals.”’** In Simmons,

supra, a photographic identification was held not to

exceed the bounds of due process because of the

compelling necessity for a prompt identification—the

perpetrators of a serious felony were still at large, and it

was essential to determine expeditioysly the identity of

26 Wise v. United States, supra, at 210. See also United States

ex rel. Williams v. LaVallee, 415 F.2d 643 (2d Cir. 1969); United

States v. Sanchez, 422 F.2d 1198 (2d Cir. 1970); Stewart v. United

States, 418 F.2d 1110 (D.C: Cir. 1969).

the criminals so that the police investigation could be

resumed and redirected if the suspects were exonerated

by the identification.

Biggers, however, was not arrested near the scene of

the crime or at the approximate time of its commission.

It is now conceded that there was no evidence supporting

his arrest for loitering, but even the police interest behind

the pretext that he was loitering did not pertain to the

rape of Mrs. Beamer. Considerations of fairness to the

suspect certainly did not require that he be presented to

the witness in a “show up” rather than in a conventional

line up.?” Although the state claimed that a “show up”

was both fairer and necessary in this case, the trial court

rejected both claims after hearing evidence particularly

directed towards them.

The failure to provide Biggers with the protection of a

lineup in this rape case, considering his youth, the

seven-month period since the crime, and all the other

circumstances surrounding the case, was constitutionally

inexcusable. The time lapse alone, well-known to the

police, should have been sufficient to require that

officials seeking an impartial, dispassionate identification

hold a lineup. This is especially true because the record

reveals that the Nashville Police Department recognized

the superiority of the lineup to a “showup” and had held

lineups in other cases. Held without any exigent or

compelling circumstances, and in the face of strong’

Teasons to provide the acknowledged protections of a

lineup, Biggers’ “showup” identification violated due

process under the reasoning of both Stovall v. Denno,

supra, and Simmons v. United States, supra.

*~ **See Criminal Investigation and Interrogation, Gerber and

i der ed., § 22.20 (1962); Criminal Investigations , Jackson ed.

ed. 1962) at 41-42.

B. The Absence of Any External

Indicia of Accuracy

In yet another series of decisions, the use of

questionable identification procedures has been upheld

where factors external to the confrontation strongly

suggested that the witnesses’ identification were accurate.

The courts have attempted to evaluate the accuracy ofa

“showup” identification by examining several factors

whose presence might substantially increase the likeli

hood of an accurate identification and minimize the

possibility of an induced misidentification. In this case,

however, the district court found that there was an

intolerably great likelihood that the suggestive ‘“‘showup”

confrontation actually prompted the identification by

Mrs. Beamer, and that independent or external factors

did not verify the accuracy of her recognition sufficiently

to avoid a lineup. Aside from Mrs. Beamer’s identi-

fication (not supported by the testimony of her daughter,

the only other witness to the crime) no other evidence

pointed to guilt. Thus even a broad view of the external

factors which might be considered (cf. Clemons v. United

States, 408 F.2d 1230, 1250 (D.C. Cir. 1969) (Leventhal,

J. and Burger, J., concurring ) ) cannot validate the “‘show-

up”’ in this case.

(1) No Good or Sustained Opportunity

to Observe Assailant

The courts have generally sanctioned “‘showups”’ where

the witness enjoyed an unusually good and sustained

opportunity to view the perpetrators of the crime,”® since

Supreme Court: Coleman v, Alabama, 399 U.S. 1 (1970);

Simmons v. United States, supra, (broad daylight and prolonged

opportunity to observe perpetrator),/2d Cir: United States ex rel.

Anderson v. Mancusi, 413 F.2d 1012 (1969), (broad daylight);

United States ex rel. Garcia v. Follette, 417 F.2d 709 (1969); and

this sort of exposure could minimize the possibility that

even a suggestive “showup” would culminate in a

misidentification. In this case, of course, the evidence

clearly shows that the complaining witness did not get an

opportunity to obtain either a good or a prolonged view

of her assailant. She had been grabbed from behind in an

unlit hallway, and then taken out of the house into the

night through a similarly unlit kitchen to a nearby patch

of woods where the rape was committed. The events

surrounding the crime lasted from 10 to 30 minutes and

available indicators—Mrs. Beamer’s failure to describe her

assailant closely to the police and subsequent incon-

sistencies in her testimony—point inexorably to the

conclusion that she-had no clear mental impression of the

man who assaulted her.

(2) Excessive Time Lapse Before

Staging the “Showup”’

The courts have also sanctioned “showups” where the

witness-suspect confrontation occurred so soon after the

commission of the crime that the chances of misidenti-

fication were minimal.?? The probative value of an

United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (1969)

(where the victim made a deliberate attempt to study the face of

her attacker). 8th Cir.: Cline v. United States, 395 F.2d 138 (1968)

{where the witness observed the maskless robbers in a well-lit room

“for three hours). 10th Cir.: Hanks v. United States, 388 F.2d 171

(1968). D.C. Cir.: Bates v. United States, supra (where the witness

had an excellent and prolonged opportunity to observe her

tmailant in a well-illuminated room); Gregory v. United States, 410

F.2d 1016 (1969) (well-lit room); Macklin v. United States, 409

F.2d 174 (1969); and Stewart v. United States, supra.

= identification one day after crime). 2d Cir.: United States

m rel. Anderson v. Mancusi, supra, (one hour); United States ex

t Garcia v. Follette, supra, (five weeks); United States ex rel.

- "

= supreme Court: Simmons v. United States, supra, (photo- -

identification made while the witnesses’ memory is stil]

fresh promotes fairness and reliability and outweighs any

prejudicial suggestiveness which might otherwise inhere in

the confrontation. The lengths of time held permissible

ranged from a few hours to several weeks—but have

apparently never extended to a period of seven months.

(3) Absence of Independent Indications

of Accuracy

Finally, the courts have tended to uphold “showups”

where the “one-on-one” confrontation was conducted

after some other independent identification had been

obtained from the witness (e.g., photographic identi-

fication) or after the witness gave the police an extremely

accurate description of the perpetrator.°° But here the

Rutherford v. Deegan, supra, (11 days). Sth Cir.: United States v.

Venere, 416 F.2d 144 (1969). D.C. Cir.: Bates v. United States,

supra, (30 minutes); Gregory v. United States, supra, (3 weeks);

Macklin v. United States, supra; Young v. United States, 407 F.2d

720 (1969); (within minutes); Stewart v. United States, supra , (two

hours); Russell v. United States, supra, (minutes); Wise v. United

States, supra, (minutes); and Clark v. United States, 408 F.2d 1230

(1968), (few weeks).

32d Cir.: United States ex rel. Anderson v. Mancusi, supra,

(accurate description); United States ex rel. Garcia v. Follette,

supra, (suspects identified themselves to witness by threats at

luncheonette showup). 4th Cir.: United States v. Thompson, 417

F.2d 196 (1969), (accurate description and prior photographic

identification). Sth Cir.: Crume v. Beto, 383 F.2d 36 (1967),

(witness tentatively identified defendant in a prior line up). 8th

Cir.: Cline v, United States, supra, (witness positively identified

two others as intruders, and both parties subsequently admitted

their guilt). 10th Cir.: Hanks v. United States, supra, (previous

photographic identification). D.C. cir.: Bates v. United States,

supra, (accurate description); Gregory v. United States, supra,

(good description); and, Stewart v. United States, supra , (accurate

description),

district court characterized Mrs. Beamer’s description as

“general.” There was no independent photographic

identification. The only other witness to the attack, Mrs.

Beamer’s daughter, was unable to identify respondent.

Although identifications have been deemed con-

stitutionally acceptable within the carefully limited

contexts described above, the courts have vindicated the

rights of suspects prejudiced by a pre-trial identification

confrontation which was unduly Suggestive and

conducive to misidentification without any persuasive

justification for its use. Biggers’ claim in this regard is at

least as strong as the one recognized by this Court in

Foster v. California, 394 U.S. 440 (1969), where the

suggestive element in the repeated confrontations staged

by the authorities caused a lineup identification pro-

cedure to approximate the unreliability of a ““showup.”

As in Foster, the state could have employed procedures

to safeguard the fairness of the identification but failed

to do so. Such safeguards were established—by expert

testimony—to be more likely productive of reliable

identification. Mrs. Beamer need not have been told that

Biggers was a suspect. When forced to speak as a test of

wice, Biggers was told to repeat the precise language,

inflammatory as it was, used by the criminal. Parents and

counsel were available and could have been present and a

lineup could and should have been employed.

_ Although the state claimed that a line up would not. '

have been fair to respondent because no prisoners were

feadily available who matched his general description, the

district court expressly concluded there was no practical

impediment to a lineup. The court pointed out that there

Mas no need for speed and that no “concerted effort was

‘Made to produce suitable subjects.” Relying in part of its

‘Mowledge of local conditions the court concluded that

Bes,

no canvas was made of several nearby prison facilities,

Nor did the police claim that there were not persons in

custody who shared certain of respondent’s traits, such as

size, age and voice, in custody. Their claim was only the

casuistical one that they could not find persons who

combined all of these traits. But as respondent’s expert

witness testified, even a lineup which is far from ideal

provides more check on a witness than none at all, see A.

42.

It is even dubious that Mrs. Beamer identified Biggers

in court at trial. The state contends that she did; but as

the district court found:

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. 34)

Even assuming, however, that Mrs. Beamer did make an

in-court identification, that identification would be

neither corroborative nor constitutionally admissible for

the state has not shown—as it must—that such an in-court

identification had a source independent of the questioned

“showup.”’ 32

Opportunity to observe the alleged criminal act,

has been the one factor considered most frequently by

31 Biggers was in custody approximately twelve and one half

hours when the “show up” was staged. Most of this period was at

night. Thus, it took about four business hours for the police to

“exhaust” the available opportunities for a line up. This is hardly

sufficient time for the exigent circumstances doctrine of Stovall,

supra , to be legitimately invoked.

32In United States v. Wade, 388,U.S. 218, 240 (1967), the

Court said that there must be “clear and convincing evidence” that

the courtroom identificatiqgn had an independent origin if there

had been an unconstitutional lineup proceeding.

lower courts and given the most weight in determining

independent source. See Note, 55 Minnesota Law Review

779 (1971); United States ex rel. Phipps v. Follette, 428

F.2d 912, 915 (2d Cir. 1970). In the present case, the

district court judge found that:

The entire episode occurred in very dim light and

the rape itself 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. (A. 33)

Where courts have upheld in-court identifications,

there has been a much clearer prior Opportunity to

observe the alleged assailant. In Coleman v. Alabama, 399

U.S. 1 (1969), for example, this Court said that the lower

court could have found that the identification by the

victim was based on observation at time of the assault.

The victim testified he saw one of the defendants “‘in the

car lights while looking straight at him” and that he saw

another defendant “face to face,” that he “looked into

his face,” and “‘got a real good look at him.” In contrast,

the district court here found:

The evidence clearly shows that the complaining

witness did not get an opportunity to obtain a good

view of the suspect during the commission of the

crime. (A. 42) 33

Lower court opinions frequently refer to the lighting at the

time of the crime as an important consideration in determining if

i in-court identification was untainted. E.G. United States v.

dary, 422 F.2d 704 (D.C. Cir. 1970); United States v. Kemper,

@3 F.2d 1153 (D.C. Cir. 1970). The crime in the present case,

er, occurred in “very dim light.”

Additionally, lapse of time between the alleged act and

the identification reduces the likelihood that the in-court

identification, if made, had an independent source.

None of the cases that have found an independent source

for an in-court identification have involved such a lengthy

delay as in this case. Rather, the more typical situation

involved an impermissable “‘showup” or lineup within a

short period of time after the crime was committed.

C. Additional Grounds Supporting Relief

An additional consideration supports the grant of the

writ in this case. *5 By admitting into evidence the

identification of respondent obtained as a result of a

pre-trial confrontation held while he was unlawfully

arrested, the state violated rights guaranteed to him by

the Fourth and Fourteenth Amendments to the Consti-

tution. Biggers was seized at a hospital where he had gone

with his mother to seek treatment, although the police

lacked the requisite probable cause to arrest him. The

police apparently recognized their lack of probable cause,

for the only charge lodged against Biggers prior to the

“showup” was the admittedly “technical” accusation of

34As Judge Friendly (in United States ex rel. Phipps v. Follette,

supra, at 915) has written:

“Lapse of time between the crime and the confrontation is

also important; the longer the interval, the greater the

dangers that the initial image will have dimmed and that the

second image will play a significant role. Also, a long interval

between the initial observation and the trial coupled with an

improper confrontation a comparatively short time before

the witness appears in court enhances the danger that he may

be relying on his most recent encounter.”

35A prevailing party “may, of course, assert in a reviewing

court any ground in support of his judgment, whether or not that

ground was relied upon or even’ considered by the [lower]

... court,” Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970).

loitering (A. 76). The loitering charge, therefore, was

merely a pretext used to hold Biggers in the absence of an

adequate rationale for detention; it is clear, moreover,

that the loitering charge was absolutely lacking in

substance, see Thompson v. City of Louisville, 362 U.S.

199 (1960), inasmuch as the youth was in the company

of his mother and was receiving hospital treatment at the

time of arrest. Cf. Papachistou v. City of Jacksonville,

405 U.S. 156 (1972). Neither the baseless and unconsti-

tutional loitering charge, nor information then available

to the police concerning the rape, or any other crimes so

far as the record shows, justified the warrantless arrest

and detention of respondent.

In Davis v. Mississippi, 394 U.S. 721 (1969) this Court

examined the problems associated with investigatory

detention and concluded that any such detention must

satisfy the strictures of the Fourth Amendment. The

Davis Court ordered the exclusion of extremely reliable

fingerprint evidence taken from a defendant who had

been held without a.warrant for investigation.>* In the

instant case, the illegal arrest of respondent resulted in

the production of the unreliable “‘showup” evidence.

Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Certainly, the constitutional protection which was

applied to the production of highly reliable evidence such

as fingerprints applies with at least as much vigor to the

circumstances of respondent's arrest and “showup.”

*Detention for fingerprinting may constitute a much less

trious intrusion upon personal security than other types of police

warches and detentions . . . [F] ingerprinting is an inherently more

tlable and effective crime-solving tool than eyewitness identifica-

fons or confessions and is not subject to such abuses as the

lineup and the ‘third degree.’ (395 US. at 95)

CONCLUSION

WHEREFORE, respondent prays that the judgment of

the court below be affirmed.

Respectfully submitted,

MICHAEL MELTSNER

Columbia University Law School

+ 435 West 116th Street

New York, New York 10027

JACK GREENBERG

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

AVON N. WILLIAMS, JR.

Z. ALEXANDER LOOBY

404 James Robertson Parkway

Suite 1414, Parkway Towers

Nashville, Tennessee 37217

Attorneys for Respondent

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