KIRBY v. ILLINOIS

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Argument of Michael P. Seng

Chief Justice Warren E. Burger: We will hear arguments next in 5061, Kirby against Illinois.

Mr. Seng, you may proceed.

Mr. Michael P. Seng: Thank you Mr. Chief Justice and may it please the Court.

The issue presented in this case is narrow.

This Court granted cert on whether Due Process require that an accused be advised of his Sixth Amendment right to counsel, prior to a pre-indictment show-up, held at a police station.

Several hours after the accused arrest and some 48 hours after the alleged crime occurred.

Illinois has held that counsel is not required at any pre-indictment show-up.

Unknown Speaker: (Inaudible)

Mr. Michael P. Seng: We submit that this rule is too broad and that under the narrow facts of this case, counsel should have been provided.

The facts in this case are not complicated.

On February 20th, 1968, at about 4:30 in the afternoon, Willie Shard was walking down a street in Chicago, when he noticed two men following about 15 feet behind him.

He however, paid no particular attention to them.

As he turned to enter a restaurant, a man grabbed him from behind, while another man took from his pocket, $30 or $35 in cash, $145 in traveler’s checks, his wallet and all his Identification papers.

The men then went one way and Shard went another.

Unknown Speaker: (Inaudible)

Mr. Michael P. Seng: It was not until the next day that Shard notified the police and gave them a general description of the height, weight and complexion of the two men. Two days later, on February 22nd, at about 11 in the morning, Thomas Kirby, the petitioner in this action, and Ralph Bean were walking down on a street in Chicago.

At the same time two Chicago police officers, the Isaac Panapinto and James Reesy (ph) were cruising in a unmarked squad car.

Officer Panapinto (ph) remarked to his partner that Kirby resembled Alfonso Hampton, a man supposedly wanted by the Chicago Police for perpetrating a crap game.

The officers then stopped the two men.

When asked for his identification, Kirby pulled out his wallet and as he pulled out his wallet, the officers noticed traveler’s check bearing the name Willie Shard.

When asked to whom these checks belonged, Kirby responded that they were play money or that he had won them in a crap game, the officers then searched Bean and found identification papers bearing the name Willie Shard.

Unknown Speaker: Did these arresting officers at the time of the arrest know about the Willie Shard robbery?

Mr. Michael P. Seng: No, they did not Your Honor.

It was not until after they returned to the police station and had checked police records that the officers first learned that this robbery and that fact is I think it is incontestable in this matter.

Unknown Speaker: So, is finding the traveler’s checks of the Willie Shard, but was not in any way incriminating from in view of the officers, their knowledge.

Is that true?

I am just trying to piece together this thing.

I mean one of these people arrested, the petitioner might have been named Willie Shard, is that not correct?

Mr. Michael P. Seng: That is possible Your Honor.

We argued probable cause for arrest in the Illinois appellate court --(Voice Overlap)

When the men were taken to the police station, the officer, after learning that Willie Shard had been robbed, telephoned Shard and told them that they had the two suspects, whom they wanted him to look at.

Another officer was sent to pick up Shard.

When Shard arrived at the police station, Kirby and Bean being, who happened to be black proceeded between officers Panapinto and Reesy in a large squad room.

When Shard enter the room, the officers asked him if these were the two men.

Shard responded affirmatively.

No lineup was ever held in this case, this was the only identification that took place before trial.

At no time prior to this identification show-up was either Kirby or being advised of his right to counsel.

In fact, the public defender was not appointed until approximately 7 weeks after their arrest and 8 days after indictment was returned.

Prior to trial, Kirby’s counsel filed a pretrial motion to suppress the identification testimony.

This motion was denied.

At trial, Shard testified that the men in the Courtroom on that date were the men whom he identified at the police station.

Bean waived his privilege against self-incrimination and took the stand and testified that he and Kirby found the traveler’s check, screwing in an alley way, several hours prior to the time of their arrest.

We respectfully submit the fifth case that is directly controlled by this Court’s decisions in United States versus Wade and Gilbert versus California.

The State, at least in its brief, appeared to recognize no meaningful distinction between these decisions and case at bar, and therefore, urged that Wade and Gilbert be overruled.

It is certainly our position that Wade and Gilbert were rightly decided.

Petitioner should have been advised of its right to counsel in this case.

He had been at the police station, several hours, the alleged crime had occurred two days previously.

The state points no evidence or to no prejudice that it would suffered had counsel been appointed.

Indeed, Illinois statute provides that an accused is entitled to counsel -- to consult with counsel immediately after being arrested.

Beginning with Powell versus Alabama, this court has consistently held that counsel is required at all criminal stages and the criminal process.

In Wade, this Court reviewed the espy of the Sixth Amendment and found that counsel is necessary to assure the accused a meaningful defense, so that the accused shall not be required to stand alone at any critical stage in the criminal process.

Recognizing the vagaries of identification testimony, the Court realized that for all practical purposes that accused guilt maybe determined prior to trial.

The Court therefore, held an identification confrontation is a critical stage and that the accused is as much entitled to counsel at that stage, as he is at the trial itself.

Now, the Supreme Court of Illinois has held that counsel is only required at post indictment lineups.

We submit that this rule exults form over substance and makes an accused rights depend upon the timing of the identification confrontation.

Furthermore, we think the Illinois rule allows the police to circumvent Wade by holding all identification confrontations prior to indictment.

I think this Court would probably be in good company if it decided to overrule the Illinois rule, in fact all of the Federal Courts -- Lower Federal Courts and the majority except five -- the State Court that held that the pre-indictment, post-indictment distinction is meaningless.

This Court recognized that identification confrontation maybe surrounded with suggested influences and we submit that these suggestive influences may occur either prior or after indictment.

The return of an indictment has really no relationship to the problems with which this Court was involved with in Wade.

Unknown Speaker: But Illinois wants us to overrule as Wade against the United States?

Mr. Michael P. Seng: That is right Your Honor, the state makes no arguments, so far as I can see that Wade is impossible to apply.

It makes -- this argument basically is the fact that counsel performs no meaningful function at the identification confrontation.

This Court held in Wade that counsel’s presents will avert prejudice and will assure a meaningful confrontation at the trial.

I think just taking the facts of this case, one can readily see that counsel would have had a function.

First of all, counsel probably would have objected to the fact that these men were seated between two police officers, but when the victim came into the room that he was directly asked to point out the accused.

Unknown Speaker: The accused were Negros?

Mr. Michael P. Seng: Yes, that is right.

Unknown Speaker: And, the police officers are Caucasians?

Mr. Michael P. Seng: Yes Your Honors.

Unknown Speaker: And, in uniform?

Chief Justice Warren E. Burger: I am not sure that the record states that exactly, but I think that is --

Unknown Speaker: I meant that Gilbert against California is the applicable case here does --

Mr. Michael P. Seng: Right.

This is the state --

Unknown Speaker: Right.

Mr. Michael P. Seng: Counsel, probably had he been there, would have requested that the men be put in a lineup.

Now, the state argues that the police will not cooperate with counsel or even if counsel is present, the police will employ suggestive procedures outside the presence of counsel.

It is our position that after all the police have no interest in convicting an innocent man that if counsel is present and suggest their procedures that the police probably will cooperate.

Even if counsel’s presence is restricted to a passive role, we think that his mere presence will induce the police to be more careful and specially, in this case, there was some conflicting testimony at the trial, as to what actually happened whether indeed Shard even recognized the men when he first entered the room --

Unknown Speaker: (Inaudible) Chicago police officers?

Mr. Michael P. Seng: That is right Your Honor, is that --

Unknown Speaker: Has that police department adopted any regulation if there were line up procedure?

Mr. Michael P. Seng: No Your Honor.

The state in its brief at least seems to argue that this Court should concentrate more on procedures than on the right to counsel, but Illinois has adopted no procedures, which would bring your statements in Wade into affect that.

Unknown Speaker: Is it Gilbert or Wade?

Mr. Michael P. Seng: This is on Gilbert; it is a state case --

Unknown Speaker: When there was reference to the prior information that --

Mr. Michael P. Seng: Right, in fact, in the direct testimony the witness was directly asked by the prosecutor, “Are these the men you identified at the police station?”

Unknown Speaker: So, it would not be the question of obtained or anything.

It is the exclusion?

Mr. Michael P. Seng: Right Your Honor.

Unknown Speaker: Perfect.

Mr. Michael P. Seng: Right.

Unknown Speaker: And I gather the only the ground that which Gilbert could not apply was that this was a pre-indictment show-up to where --

Mr. Michael P. Seng: That is the only ground, Your Honor.

And before this case was argued in the --

Unknown Speaker: Were there any suggestion in the Illinois court that what for that fact, Gilbert would have been applied?

Mr. Michael P. Seng: This case was decided by the Illinois Appellate Court and prior to this case, the Illinois Supreme Court had ruled on People versus Palmer, the counsel had not required that the pre-indictment lineup, so that Illinois Appellate Court mainly relied upon the Illinois Supreme Court’s judgment.

The Illinois Supreme Court’s opinion is very brief in this case.

It is just simply states that they are going to hold Wade and Gilbert to its narrow aspect and that is to post indictment situation --

Unknown Speaker: -- What is the procedure in Illinois, you arrest someone that you file a charge against them?

Mr. Michael P. Seng: Normally, yes.

The complaint, it is --

Unknown Speaker: The complaint is filed and then there is an indictment later.

Mr. Michael P. Seng: Right.

Unknown Speaker: And this was post arrest in custody post charge.

Mr. Michael P. Seng: Yes.

Well, I do not think from the record that probably a complaint had been filed yet.

There is no evidence --

Unknown Speaker: They were supposed to arrest and there is no challenge by anyone that there was a probable cause to arrest.

Mr. Michael P. Seng: This was argued in the Illinois Appellate Court.

Now, I think it is significant that in the State’s brief in this Court, State, for the first time state that Kirby was arrested on suspicion.

Now, with our position in the Illinois Appellate Court that if he was arrested on suspicion, that that would not be a probable cause and I think if the state had taken that position in the Illinois Appellate Court, the Appellate Court might have done the same thing that it did in the companion case of being whether it was held there was no probable cause for the arrest of peddlers the identification on that ground.

It is our position that function of counsel, FB Identification will aid in the administration of Justice.

If the accused is innocent, it will aid in establishing his innocence.

If he is guilty by having counsel at the identification at the earliest opportunity, it will -- I think as this Court recognized in Wade it will help remove the taint from the prosecution's evidence and maybe foreclose many of the arguments at trial and post-trial motions that were brought up in this case.

Furthermore, I do not think requiring counsel at pre-indictment show-ups, in any way will be laid at confrontation. The state points no empirical evidence, that this is so in any of the majority of jurisdictions, which require counsel.

Unknown Speaker: You are not urging a rule of those, prior to arrest in custody, are you?

Mr. Michael P. Seng: That is not involved in this case Your Honor.

Unknown Speaker: But, are you urging the rule that it would?

Mr. Michael P. Seng: No.

The majority of states have recognized an exception for immediate on-the-scene confrontations, but that really is not involved in this case.

Unknown Speaker: And, you are not urging a rule that would reach those?

Mr. Michael P. Seng: Not on the facts of this case Your Honor.

No.

I do not want to preclude in argument an another case, so the Court, the distinction the majority of Courts have made is the preempt immediate on-the-scene confrontation that any other counsel maybe accused in that situation but beyond that, then counsel is required.

Unknown Speaker: But the police here picked these phones five minutes after.

Mr. Michael P. Seng: Right.

Unknown Speaker: And to that effect, had brought them back and said to Shard this -- at least they and that is a --

Mr. Michael P. Seng: In this case, they had been arrested.

They were at the police station.

The crime had occurred two days previously.

Unknown Speaker: Or if there had not been any arrest and they had taken the witness around to where Shard was working and walking?

Mr. Michael P. Seng: I think in this case that, that would be improper to where the crime had occurred several days, previously and where there were no compelling circumstances --

Unknown Speaker: But he has not been arrested?

Assuming that he had not been arrested and he just had work and they are trying to find out who did it, they take a witness around on that location.

Mr. Michael P. Seng: That would create some problems in my mind.(Voice Overlap)

Unknown Speaker: You really are pressing to a rule to these reach this pre-custody cases then?

Mr. Michael P. Seng: Well, I do no think that has to be decided in this case, but I think my own feeling is that if the police had done this, this would be a situation where probably they should call the man to the police station and give him the procedures around --

Chief Justice Warren E. Burger: In other words, you are going to require him to have a lawyer?

Let us take not the case of the police station, let us take it, just the way, Justice White gave it to you.

Asked the witness to walk with a plain posed man and view this man while he is cutting his lawn or shopping in supermarket, whatever.

I have to go up to him and say, “Sir, we are about to have some witnesses look at you and it is our duty to warn you that you are entitled to counsel before they look at you,” is that the procedure?

Mr. Michael P. Seng: I do not really see a great deal of difficulty in a procedure like that, unless there are compelling circumstances or something like that.

I think very possibly that the police could inform the accused that he had a right to counsel in that situation.

The Court in Wade seems to indicate that an accused, can waive the right to counsel too and I would imagine that would be a question in their state procedures as to how he would waive, but I am not sure but --

Chief Justice Warren E. Burger: I suggest that to you that most innocent people would resent the idea of the policeman approaching them while they are cutting their lawn or at their work for some of such place.

They are telling you get a lawyer for they had some witnesses look at them.

Mr. Michael P. Seng: Well, I do not think the rule would go and that they would be required to get a Lawyer or anything like that.

I think it is just that --

Chief Justice Warren E. Burger: When a policeman gives of warning to anyone, this puts him in a rather special kind of a class, does it not?

Mr. Michael P. Seng: Yes Your Honor, but I think the Court is --

Chief Justice Warren E. Burger: I submitted a suspect plans, in the sense that we use that term here.

Justice Thurgood Marshall: Are you not saying that Chief Justice’s case has come up with the two witnesses and they say they give them all of the Miranda and all of other warnings and he says, “I would not do anything until I see my lawyer”.

Those two witnesses had to get to disown him?

The man is out on his lawn and three people come up.

The detective and two witnesses, and the detective says, “I have two witnesses that I would like to identify you or not identify you or what have you.

But you do not have to submit to this, unless you have a lawyer,” and he says, “Well, I would not submit that -- I would have.”

Those two witnesses cannot testify?

Mr. Michael P. Seng: Well, I would suggest that probably in a situation like that, that maybe the police should have not taken the witnesses right to that man initially.

There is a --

Justice Thurgood Marshall: And, they get two demerits, what else?

Mr. Michael P. Seng: Under this Court's ruling in Wade, if direct evidence of the confrontation was not admitted in trial, I think there would have to be a hearing that this identification confrontation was by independent evidence of the identification.

Justice Thurgood Marshall: -- because this case, they were under arrest.

Mr. Michael P. Seng: That is right Your Honor.

Justice Thurgood Marshall: For what?

Is there anything in the record to show what they were arrested for?

Mr. Michael P. Seng: Not really Your Honor, they were stopped because they resembled another man between the times they were stopped and the times they were taken to the Police Station, the officers found these traveler’s checks and identifications --

Justice Thurgood Marshall: But, they were not -- if he was not the other man that they were looking for.

Unknown Speaker: Not the con man?

Mr. Michael P. Seng: No and that there is no issue made of that in this case that they had any belief.

Justice Thurgood Marshall: But the does the record show what they were arrested for?

Mr. Michael P. Seng: No.

Justice Thurgood Marshall: But the record does show clearly that they were in custody and were --

Mr. Michael P. Seng: That is right Your Honor.

And I think that is really all that this Court has to decide in this case, really.

Because if they were in custody, they had been there for several hours and the crime had occurred two days previously.

I would just like to summarize by stating that it is our position that Wade is rightly decided that these are very -- the right to counsel is a fundamental right that the Illinois pre-indictment post -indictment distinction really is not a meaningful rule when your are considering the rationale for this Court’s decision in Wade and therefore, we would respectfully urge that this decision be reversed.

Chief Justice Warren E. Burger: Thank you Mr. Seng.

Mr. Zagel, will now ask you to start now for a lunch.

In the meantime I would like to indicate the counsel in number 70 Federal Trade Commission and Sperry Hutchinson that case will not be reached today and they maybe excused if present and if they are not present in the Court room.

The clerk communication with counsel and release them.

Mr. Zagel, you may proceed.

Argument of James B. Zagel

Mr. James B. Zagel: Mr. Chief Justice, may it please the Court.

Before discussing the merits on the legal principles involved, I would like to clarify two or three -- the factual situations involved in this case.

The arrest occurred as counsel of the petitioner indicated, because two police officers thought that the petitioner here look like a man wanted for con gang (ph) a man named Hampton (ph).

Two police officers stopped the two people, petitioner and his partner.

They asked petitioner if he was Hampton he said no, he was not Hampton.

The police asked if he had any identification, when the petitioner pulled out his wallet the officer noted traveler’s checks in the petitioner’s wallet he said who do the checks belonged to? At which time the petitioner said “Oh that is play money” after that the officers said, “Let me see them” and the petitioner handed the wallet to the officer who looked at the traveler’s checks, which had the name Willie Shard on them and said, “Who is Willie Shard?”

To which the petitioner responded, “I won them in a crap game.”

The appellate Court of Illinois upheld that initial arrest on the grounds of the contradictory explanations for the possession of the property, plus the absence of any identification that this man was in fact Willie Shard.

Now during the course of our brief, we discussed several rules of application for United States versus Wade and when I refer to United States versus Wade, I of course include Gilbert versus California, but for convenience sake referred in the brief and will refer in the argument to Wade.

We point out that there is one exception at least the Second Circuit has recognized for investigatory show-ups or investigatory confrontations, when that argument was advanced the petitioners replied that -- well this means that my client or the petitioner was arrested on grounds of suspicion that in investigatory -- the stop of this nature was not based on probable cause and if that position had been taken below, then this case will not be hear today.

I have to differ with petitioner’s counsel.

It seems to me that Hoffa versus United States in 385 US definitely rejected the proposition that investigatory -- investigative steps cannot be set to occur after probable cause existed, I think in this case that there was probable cause.

And that, as far as this show-up was concerned that it still constituted in investigatory show-up.

I would also point out, with respect to this case, we raise two points: the first is that we do defend, despite the petitioner’s assertion to the contrary, the limitation of Wade to post-indictment cases, that is point one of our Brief.

We also attack this is our right since we are defending a judgment; we also raise the broader ground of the overruling in Wade.

I would address myself first to the question of overruling.

I would also point out that when we ask for the overruling of Wade, we are not asking for the overruling of Stovall v. Denno, which recognized explicitly a Due Process right under the Due Process clause to attack unnecessarily suggest that a pre-trial confrontations.

If United States versus Wade is overruled by this Court, it does not put out of the reach of the Federal Courts and of this Court, questions of suggested confrontations.

Those of course, can still be reviewed under the Due Process clause, insofar as that right was recognized under Stovall versus Denno.

Unknown Speaker: You are really asking or more precisely asking for the overruling of Gilbert v. California, are you not?

Mr. James B. Zagel: Yes more precisely.

The reason, I cite Wade of course, is that --

Unknown Speaker: It was the first case.

Mr. James B. Zagel: It was the first case.

Unknown Speaker: Yes.

Mr. James B. Zagel: And if United States versus Wade is the right to counsels to be continued as a Federal requirement under supervisory power of this Court of course, had no standing--

Unknown Speaker: Wade was based directly on the Sixth Amendment?

Mr. James B. Zagel: Yes.

Unknown Speaker: And Gilbert against California was necessarily based on the Fourteenth Amendment.

Mr. James B. Zagel: Yes, yes it was but it incorporated the requirements of Wade and ask as I am asking --

Unknown Speaker: Wade established the right of counsel?

Mr. James B. Zagel: Yes.

Unknown Speaker: At the length of --

Mr. James B. Zagel: Yes it did, Your Honor.

Unknown Speaker: And Gilbert has had the consequences.

Mr. James B. Zagel: Yes it did.

Unknown Speaker: But you want Gideon overruled also?

Mr. James B. Zagel: No I do not.

And in any event, it would be -- I am not -- position of the State of Illinois asked for the overruling Gideon’s since long -- prior to Gideon -- Illinois provided counsel --

Unknown Speaker: But that was a matter of state law?

Mr. James B. Zagel: Yes and of course, if the state requires that I would not be in the position to ask.

Justice William O. Douglas: I just wanted where you draw the line under the Sixth Amendment as applicable by Fourteenth--?

Mr. James B. Zagel: Well I would -- it is at that point Mr. Justice Douglas that I wish to address myself, but direct the Wade case, Wade-Gilbert doctrine adopted right to counsel at lineups under a critical stage, which of course is familiar, at least the language is familiar.

The essential basis of the opinion was that --

Unknown Speaker: You maybe getting --

Mr. James B. Zagel: Where the absence of counsel might affect the reliability of the fact-finding procedure.

That is a critical stage and the right to counsel attaches.

Now, our first submission is that is tightly too broad a standard, because the presence of counsel, at least if you assume that counsel’s interest is in a fair investigation and I think there is some doubt of that.

But even if you assume that presence of counsel reduces a danger of unreliable evidence at every stage, in which evidence is gathered and all of the well recognized exceptions to -- Lower Court exceptions to the application of Wade would come under this reason.

The prompt identification immediately occurring shortly after the crime, photographic identification, non-custodial identification procedures, interviews by police with eye witnesses, appearance of witnesses before grand juries.

All of these cases are -- present instances in which the presence of counsel might reduce dangers to the fact-finding process and I think that counsel for the petitioner is quite correct in its reluctance to state that he would not contend that the right to counsel attaches to these points.

He does not wish to reach these issues, because frankly under the critical stage reasoning of Wade he would have to concede that the right to counsel attaches at all of these points.

Yet, nearly every Court that has ruled on these questions has held no, there is no right to counsel.

Further --

Justice Potter Stewart: That is, these questions, photographic identification and immediately after the offense identification --

Mr. James B. Zagel: Yes.

Justice Potter Stewart: And, what were the others defending?

Mr. James B. Zagel: Non custodial identification cases, which where thehypothetical --

Justice Potter Stewart: (Voice Overlap)

Mr. James B. Zagel: Yes and the one California case, which holds that there is a right to have a counsel present when the police interview eye witnesses.

Chief Justice Warren E. Burger: The Supreme Court of California?

Mr. James B. Zagel: Supreme Court of California, very narrow holding.

It was a holding in which the lineup was conducted with the presence of counsel; the witnesses then left the lineup room to state their impressions for the lineup.

Counsel asked could he go along at that the time and the police said, “No you cannot,” and the California Supreme Court said, “Well, since counsel was there and it would not have caused any disruption or any inconvenience counsel can sit there while the police ask witnesses the question.”

However --

Unknown Speaker: Did the Court reversed the conviction on that basis?

Mr. James B. Zagel: A Court I believe remanded the cause.

Unknown Speaker: And was it based on the United States Constitution?

Mr. James B. Zagel: It was based on the United States Constitution.

Justice Thurgood Marshall: Kirby when -- Mr. Kirby, excuse me.

Mr. Zagel when do you state Kirby reach the “critical stage?”

Mr. James B. Zagel: Well, in my opinion for purposes of right to counsel, eye witness identification never presents a critical stage.

I think that the right to counsel at a lineup is an inappropriate right and that is why I am asking for the overruling of -- there is a secondary position I take --

Justice Thurgood Marshall: When do you think Kirby was entitled to counsel?

Mr. James B. Zagel: I think Kirby was entitled to counsel under the Coleman versus Alabama at that time of this preliminary hearing.

Justice Thurgood Marshall: That was how many days later?

Mr. James B. Zagel: I do not know how many days later it was, but it was after the identification.

Justice Thurgood Marshall: When was he charged with robbery?

Mr. James B. Zagel: I think he was charged with robbery after the identification by Shard.

I do not think there was a formal charge entered and --

Justice Thurgood Marshall: What they were holding him on?

Mr. James B. Zagel: I think they were holding him, because they had probable cause to believe he had stolen the traveler’s checks, but of course they did not know until Shard made the identification --

Justice Thurgood Marshall: So, so far as this record is concerned, we do not know why he was arrested?

Mr. James B. Zagel: Well, we do know why Mr. Justice Marshall we know --

Justice Thurgood Marshall: What would the record show?

Mr. James B. Zagel: That -- well, we know that he had traveler’s checks in a name which he did not prove to be his own and we know that he gave two totally inconsistent explanations for his possession of those checks.

Justice Thurgood Marshall: And what crime was that?

Mr. James B. Zagel: Well, I think it gives probable cause to believe that he may have stolen those checks.

Justice Thurgood Marshall: That he may have?

Mr. James B. Zagel: Yes, but you do not have to --

Justice Thurgood Marshall: Probable cause that he may have.

Mr. James B. Zagel: No it is probable cause to believe that --

Justice Thurgood Marshall: He may have.

Mr. James B. Zagel: Well in the sense, yes of course you do not have to establish guilty under reasonable doubt.

Justice Thurgood Marshall: This man is arrested?

Mr. James B. Zagel: Yes.

Justice Thurgood Marshall: And assume nobody could identify the traveler’s check what would happen to him then?

In Illinois?

Mr. James B. Zagel: I think that he would probably have been released, although unless he could show that he was Willie Shard and the traveler’s checks were his, the police might keep the traveler’s checks.

Justice Thurgood Marshall: On what basis?

Mr. James B. Zagel: That seems to be a police practice, I do not -- when a man cannot prove the property is his and especially when he gives conflicting explanations.

And, his responses were rather incredible, his first response was, “Oh, it is play money.”

And, the second response, “I won in a crap game.”

Justice Thurgood Marshall: Well, was he charged for giving this information?

Mr. James B. Zagel: I do not think he was charged at all -- so I do not think he is charged --

Justice Thurgood Marshall: You do not know what he was arrested for do you?

Mr. James B. Zagel: I would assume that he was arrested.

Justice Thurgood Marshall: What I mean that you were assuming means you do not know does it not?

Mr. James B. Zagel: There is nothing in the record to indicate that?

Justice Thurgood Marshall: And there is nothing in the record that tells me what charge he was being held on when he was subjected to being identified by a witness, I do not know, do I?

Mr. James B. Zagel: No, although I think you can make reasonable assumptions based on facts in the records.

Justice Thurgood Marshall: But, I do know that he was under arrest.

Mr. James B. Zagel: Yes he was under arrest.

Justice Thurgood Marshall: And so, the cases you give about -- immediately after the crime, they do not apply.

Was it two days after the crime?

Mr. James B. Zagel: Well except my point is that I do not think you can draw distinction based on the fact that the man is under arrest.

If it is possible -- if identifying a man who is under arrest in a single show-up standing with two police officers standing on either side of them is critical, has potentiality for suggestiveness, which requires the right to counsel.

It is no different if it occurs shortly after the crime.

It is no different -- the same potential for suggestion exists.

The same potential for suggestion exists when a man who was not in custody, say a man is working at gas station and the police suspect him of the crime and bring a couple of witnesses by and point him out.

Now, I am not saying that the Court --

Justice Thurgood Marshall: But, it is true they did not have the slightest idea about crime when they are arrested.

Mr. James B. Zagel: In a sense, they did not know that Willie Shard had been robbed, but it would be a very dense police officer who faced with these two conflicting explanations plus the lack of any identification of the person in possession of the check is Willie Shard, that would be a very dense police officer who would not have a pretty good reason, at least legally sufficient reason to suspect that this man had stolen that property or at least was in the possession of stolen property.

Now, I do not know perhaps if only one of the explanations had been given, although the play money one seems incredible.

That there maybe the officer might not have had probable cause.

Unknown Speaker: Petitioner has not challenged the arrest here has he?

Mr. James B. Zagel: He has not challenge the arrest here.

Now, I point also that in Wade, the Court was concerned with the potential for deliberate police suggestion, deliberate police misconduct, but yet the Court in Wade said that we are not going the hold at the taking of a blood test or the taking of a hand writing exemplars is a critical stage.

I would point out that this almost, although not quite the same, potential for abuse in those cases are requiring the presence of counsels as there is in the eye witness identification case.

At least, theoretically possible that the police -- if they were malicious might use improper methods of taking blood or they might just say that the blood taken from the -- that they justified was taken the defendant, it was never taken from the defendant and counsel of course had he witnessed, the taking of blood that would be in a position to ensure the reliability, the fact finding procedure.

The final point made I think with respect to the rationale within Wade is that the petitioner in a lineup -- when he challenges the lineup, has a terrible problem reconstructing what occurred.

Now, I do not know that the problem exists, for example, there did not seem to be a great deal of difficulty in reconstructing what occurred in Wade or what occurred in Gilbert or what occurred in Stovall, there does not seem to have been -- all others minor disagreement does not seem to have been much difficulty reconstructing what occurred in this case.

And furthermore, that problem of reconstruction exists in every one of the accepted cases under Wade.

The same problem of reconstruction of prompt identification, the same problem of reconstruction photographic identification, all exists.

The theory, the critical stage theory of Wade, I submit is without rational limitations.

Unknown Speaker: We do not suggest the (Inaudible)?

Mr. James B. Zagel: No I do not suggest.

Unknown Speaker: You would.

Mr. James B. Zagel: Well, I would -- as I recall Schmerber, I am not incidentally suggesting that this Court overrule that aspect of Gilbert and Schmerber that dealt with the Fifth Amendment.

I am dealing --

Unknown Speaker: (Inaudible)

Mr. James B. Zagel: No I am dealing solely with those portions of the case dealt with the --

Unknown Speaker: -- Sixth?

Mr. James B. Zagel: Sixth.

The more important and I think it is --

Unknown Speaker: It seems to me one possible reason for construing the Sixth and Fourteenth Amendments, as requiring the presence of counsel in a lineup is the sort of preventive reason with counsel there, even though he may never have to testify or never have to say anything about the lineup or he may never come out.

But, just his very presence may serve to assure a fair lineup, is not that -- have you considered that possibility?

I do not notice that in your brief.

Mr. James B. Zagel: Yes, we have considered that, we have considered that -- we consider that expressly in the brief and our concern with that point is, is that you have a difficult problem, if you assume that -- if either assumption is taken and the fact that counsel is present and he does not effectuate a fair lineup of counsels present and he does.

If he does not effectuate a fair lineup, he is in a position where he must testify as a witness, which may disqualify him from representing the defendant, his counsel.

Furthermore, as Professor Reed (ph), points out in his article, there really is no reason to believe that the attorney, on behalf of the defendant is likely to be viewed as anymore impartial, when he testifies then the defendant himself is.

So, I think that --

Unknown Speaker: I am assuming, in my question that he will never testify or never need to testify, he will never need to refer to the lineup, because the line up was fairly conducted, because of his presence?

Mr. James B. Zagel: Well, that is the alternative, which is to say that is the remedy is affected.

The problem with that is you may still have to testify, not as the defendant's witness, but the prosecutions.

Because what he sees at that lineup is not privilege, it does not involve communications from his client.

He may be called by the prosecution.

Justice Thurgood Marshall: What is wrong with him testifying to the truth?

Mr. James B. Zagel: Well, that brings the next point.

If he is successful and he either has to testify against this client or he says to his client.

No, I am not going to challenge the identification, no; I am not going to cross examine these witnesses, because I was there and it was a fair lineup.

You create a serious breach in his relationship with his client, not only that you are undoubtedly going to the subject to attacks for being unfaithful to this client.

That the client is going to say when the lawyer says “No, we are not going to take this lineup.”

Justice Thurgood Marshall: I assume that Kirby does not care about that point or he would not be here?

Mr. James B. Zagel: Well, I do not know that is a fair assumption.

I tend to think that if Mr. Kirby’s counsel-

Justice Thurgood Marshall: But you have asked you to make all of that of assumption, why can not I make that one?

Mr. James B. Zagel: Well, I would ask you to make a different assumption, I would ask you to assumed that if Mr. Kirby had counsel and Mr. Kirby’s counsel ensured that there was a fair line up although that is not his job to ensure that this is a fair lineup.

It is his job to ensure that there is a lineup weighted in favor of this client. Assume that he succeeded --

Justice Thurgood Marshall: I do not agree with that at all.

Mr. James B. Zagel: Well, I think that maybe Mr. Justice Marshall let us --

Justice Thurgood Marshall: I thought that both sides were looking for the truth?

Mr. James B. Zagel: I very much disagree with that role of defense counsel.

I was defense counsel myself and my role is to see within the law that I can get, if I can get an acquittal from my client and it is not in my interest, if I am representing a guilty client to see that there is a perfectly fair lineup.

In fact, if I were a defense counsel I find it difficult to make a decision whether to object to an unfair lineup.

Justice Thurgood Marshall: Can I assume sir that since you say you were a defense counsel you only want to get your man acquitted that even if he is guilty that as prosaically you want him convicted even though he is innocent?

Mr. James B. Zagel: No.

Justice Thurgood Marshall: Certainly you do not mean that?

Mr. James B. Zagel: No, I do not.

But, there is a difference standard of doing on prosecutors than there is in defense counsel.

There is no equivalent to Brady and Maryland for defense counsel.

But, it is an obligation that --

Justice Thurgood Marshall: Except the cannons (ph).

Mr. James B. Zagel: Except the cannons, which are unenforcible and I do not that the Cannons, --

Chief Justice Warren E. Burger: Believe in the cannons, the newest standards, the American bar required the defense counsel to protect all confidentiality of his client?

Mr. James B. Zagel: That is correct, that is correct, Mr. Chief Justice.

Chief Justice Warren E. Burger: True?

Mr. James B. Zagel: But if the counsel succeeds by his presence in securing a fair identification.

He is going to have difficulties with his client, because he is in -- he is not--he is supposed to defend his client’s interest, and he is supposed to advocate his client cause.

He is not supposed to be a witness.

He is not supposed to assume the role of an impartial witness.

It is not a mere technicality that the cannon say that a man should not both lawyer and witness, it is the very sound reason and the sound reason is as witness his testimony may damage his client’s case.

And that is why I think counsel is particularly inappropriate vehicle with the regulation of lineup procedures.

We point out that the regulation of lineups can be accomplished under the Due Process clause under Stovall.

If it is thought that there is a sufficient danger of improper identification procedures, but counsel is not the appropriate technique to use.

Justice Thurgood Marshall: But you did not have to -- you would not have to call in, would you?

Mr. James B. Zagel: Would you repeat your question (Voice Overlap)

Justice Thurgood Marshall: You would not have call the defense counsel as a witness, would you?

You are so interested in protecting the defendant’s rights.

He could only be a witness if the prosecutor calls.

Mr. James B. Zagel: Yes.

Justice Thurgood Marshall: And the prosecutor might not call?

Mr. James B. Zagel: Yes, that is true, the prosecutor might not call, but the risk exists.

And that risk might influence defense counsel’s tactics.

Defense it may be very well be that a defense counsel will be present at a line, he will think that the lineup is fair, it will tell his client, “No, I am not going to raise any question, as the lineup,” and the trial will go on smooth and calm and nothing will happen except later in the state or Federal proceeding the defendant is going to say --

Justice Potter Stewart: Ineffective assistance of counsel.

Mr. James B. Zagel: Ineffective assistant of counsel, or to put it in a vernacular of a client, as he once addressed it to me one, I said I was not going to raise a search and seizure, the question is, he said, who’s side you are?

And that is not going to benefit the administration of criminal justice.

I might also add that this has to be viewed in context of the fact, that there is very little in a way of legal resources, that is to say lawyers who meet the problem of counsel at lineups.

In fact, in one case, Randolph (ph) care which is cited in our brief.

The District of Colombia, which has a provision, Legal Aid Agency apparently provides counsel.

Counsel was called to testify at a motion to suppress.

At his testimony, he could not remember whether he represented the defendant Randolph, he came back the next day and said well, he had thought it over very carefully and he had a vague recollection that he represented Randolph.

And, then they said, “What happened?

He said, “Well, I will have to look at my notes,”.

In effect what counsel did is he testified from his notes.

Now, I do not know why his notes are going to be better than a photograph of a lineup.

Unknown Speaker: Is not the photograph of a lineup a practical way of assuring fairness?

Mr. James B. Zagel: I think it is a practical way of assuring all of the fairness that the presence of counsel is supposed to assure.

There are some questions of fairness that admittedly not even counsel can assure.

For example, before the lineup, the police can say to a man, to the witness, the man who is the 3rd one from the left, we found his stolen property, your stolen property in his house and he has got a record that as long as your armed and he has done it many times and several people who saw him come out of your house have identified him.

Now, that clearly suggest the practice, but that is not something that is reached under the right to counsel in any event that is reached under the due process aspect.

Unknown Speaker: I was really going to ask -- is photography of lineups in practice in many places within your knowledge?

Mr. James B. Zagel: No, it is not.

There was language in the opinion in Wade that suggested that perhaps administrative regulations would all be the necessity for counsel.

The problem with that language and problem with asking the state to rely on that language is that three of the justices, who concurred with the majority opinion explicitly, rejected that.

The Fourth Justice, who concurred, said nothing on the point, and so far as I know the only case which is dealt with administrator regulations is to file of (ph) case in Supreme Court in California, where they just simply said that the regulations would have to be so strong as to ensure that there no suggestive --

Unknown Speaker: Incidentally, has the Chicago Police Department adopted any kind of regulations to ensure fairness of lineup?

Mr. James B. Zagel: Yes, but there is an existing regulation, which existed before the time of Wade, Gilbert or Stovall, which prescribed certain procedures for lineups, strangely enough defense counsel have not used it.

I do not know why they have not, they never called the police in and used the regulations in cross examining police officers --

Unknown Speaker: Some police departments after the decision on Wade and Gilbert, notably, the New York City Police Department promulgated regulation.

Mr. James B. Zagel: Yes.

Unknown Speaker: Elaborate regulations, which were given wide publicity in which under the regulations themselves provide methods for assuring that the regulation is the confinement but, Chicago has not done anything—

Mr. James B. Zagel: No, no there was a prior to the time of the Palmer decision, there were some draft regulations concerning right to counsel and many police officers of course, were aware of the decision and there are fair number of cases involving warnings to the right to counsel and even a few in which counsel was present in the lineup, but there have been no formal regulations, promulgated as a result of those decisions.

I point out -- (Voice Overlap)

Justice William J. Brennan: I think, I think the opinion in Wade suggested that the prescriptions of that opinion might be supplanted by equally effective regulations or statutory requirements --

Mr. James B. Zagel: Yes, but I would submit that it would be difficult for me, for example, advising a police to say that, that aspect of the opinion was the holding the Court.

So far as I can understand -- So, far as I could infer Mr. Justice Brennan, you were the only Justice in the Court who definitely a committed himself to that proposition.

Although, perhaps Mr. Justice Clark did, as well.

But three of those who were to join with you in the opinion did not adhere to that.

That is why if it had been a little more clear cut perhaps we might be arguing a different issue today and that I think is responsible for the reluctance the California Supreme Court to prove the regulations in the Fowler Case.

Justice Thurgood Marshall: (Inaudible) arrest.

I mean I am trying to get -- there were no problem with the two arrest, but for the purpose of holding him on this robbery charge, not the purpose of convicting, do you make any point on that?

Mr. James B. Zagel: No, I think that it was investigatory in the sense that I think if Shard had said, “No, that is not the man,” they would have been released.

Unknown Speaker: (Inaudible)

Mr. James B. Zagel: I think it was investigatory in nature.

Justice Thurgood Marshall: That takes it out of Wade and Gilbert.

Mr. James B. Zagel: I think that is an additional reason for taking out of Wade and Gilbert, if Wade and Gilbert is the stand.

In conclusion, I simply state that as far as Wade is concerned, and Gilbert involves the insertion of counsel and to a role in which he has needed the capacity, authority or ethical obligation to fulfill and fulfill adequately and that insertion counsel in to that situation ought to end and Wade and Gilbert to the extent that they required ought to be overruled.

Chief Justice Warren E. Burger: Thank you Mr. Zagel.

Mr. William, you have about nine minutes.

Argument of William

Mr. William: Thank you Your Honor.

I just want to make several points in my closing and that is, that this case is a very narrow case.

The identification occurred several hours after the arrest.

The accused was in custody, the crime had occurred two days previously, there is no contention in this case, but that the police had plenty of time to advise petitioner of his rights and to secure counsel for him.

Now, the sole factor in Illinois, which makes the right to counsel attached is the presence of the indictment.

I do not think that this is a proper rule.

Now, counsel for the state has cited several rules in other jurisdiction.

The immediate on-the-scene confrontation.

The leading decision in that area, I think is Russel v. United States in the D.C. Circuit, where the Court distinguishes that situation from a later confrontation on the grounds that in that case the witness’s memory is fresh and that makes the identification at that stage very critical and very necessary.

In this case, I think in reading the record you have to say that the focus of guilt has attached to the accused.

He was under arrest, the police had searched police records, learned of the robbery, they called Shard to come down to the police station, I think it had passed from the investigatory stage in to a specific focus of guilt upon these two men that they commit this robbery and I think that is the reason why Shard was called down to the police station.

Chief Justice Warren E. Burger: What if -- as your friend had suggested, Shard had said, “No, these are not the men.”

Mr. William: Well, Your Honor I think that points to the critical nature of the identification in this case that was really what the state was relying upon to convict these men and if Shard had not been able to identify --

Chief Justice Warren E. Burger: And in getting ahead of yourself, they were going to determine whether he should be charged.

Mr. William: I think in this case, Your Honor.

Chief Justice Warren E. Burger: What would have happened if Shard had said, no, these are not the men, your friend said they would have been released, do you agree with that likely result?

Mr. William: It is hard to speculate Your Honor, but, they did have the -- you know, the identification papers, the traveler’s checks on that person.

Now, whether the police would have immediately released them, I really do not know.

Chief Justice Warren E. Burger: Would they probably or possibly have been subject to a charge for possession of recently stolen property?

Mr. William: It is possible that the police might have charged them with some other crime -- But, I think in this case where they were being held down there, whether police had checked records, learned of the robbery, specifically telephoned Shard, told him to come down to identify two suspects, that I think, the focus is definitely attached to these individual there at that time.

Justice Thurgood Marshall: What about the Illinois claim that the two-day period is not that important, be much the same,as it would have been the same day?

Mr. William: I think on the basis of human memory, human frailties, as to observation that and I am not myself arguing really specifically, I did not give my personal impressions on the immediate, on-the-scene confrontation, but it seems to me that in that situation that -- where you see somebody a few minutes after the robbery, that your memory is pretty fresh this is the man.

Justice Thurgood Marshall: Would you have any complaint if they had picked Kirby two days before under the exact same circumstances?

Would you make the same argument?

Mr. William: Two days before?

Justice Thurgood Marshall: At the day he was robbed.

Mr. William: I think not to a certain extent, but that would make a difference as to where he was picked up whether it was in the vicinity or --

Justice Thurgood Marshall: Under the exact same circumstance.

Mr. William: I think under the exact same circumstances, the way I see them, that probably, they should have taken them down to the police station and advised him of his right to counsel.

Assuming that it was not immediately after the robbery and he was found, say within a block or so running away or something like that.

I do not think this Court has to reach this issue in this case.

He was under arrest, he was at the police station and that a crime in fact, had it occurred two years previously.

The state has not adopted alternatives to Wade.

The mention was made of photographs, there is no indication in this case.

The police had made photographs of -- I think that -- under this Court’s decision in Wade and Gilbert, the counsel should have been provided in this case under the mere facts given here.

Chief Justice Warren E. Burger: Thank you Mr. Seng.

Thank you Mr. Zagel.

The case is submitted.