NEIL v. BIGGERS

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Argument of Michael Meltsner

Chief Justice Warren E. Burger: I think, you have 19 minutes remaining.

Mr. Michael Meltsner: Thank you Mr. Chief Justice, may it please the Court.

In the time remaining, I would like to discuss petitioner’s challenge to the factual findings made by the district court with respect to the due process issue.

Findings which were affirmed by the entire Court of Appeals below, that court dividing solely over the question of the consequence of the prior four to four affirmance in this case.

But first, I would like to reply briefly to a question asked yesterday by Mr. Justice Rehnquist which I had either misheard or misunderstood.

Justice Rehnquist asked me whether if this Court had in this case previously decided seven to two or nine to nothing against the respondent’s claim or whether res judicata would in that event had barred a subsequent federal habeas corpus petition and I answered yes, but I don’t think I gave a sufficiently distinct answer.

I think, the answer is plainly with the statute involved in this case, 2244 (c) would in that event bar re-litigation and that is indeed the very situation, a very abuse of the writ which Congress was addressing itself to --

Justice William H. Rehnquist: You are addressing yourself yet, I suppose to the situation before the statute --

Mr. Michael Meltsner: Yes, I was.

Justice William H. Rehnquist: -- where you said the bill would have no equity but it’s not technically --

Mr. Michael Meltsner: That’s correct.

I was answering you in terms of the Sanders' opinion, which was, of course, the backdrop against which 2244 (c) was drafted.

Now, as I read the petitioner’s brief here and understand its argument yesterday, the state does not seriously contend that the district court define the standard of law which it had applied in this case incorrectly.

What the district court did, was treat the showup as a suggestive and potentially dangerous identification device, but not one which was per se unconstitutional.

It waived the showup and aggravating circumstances in this case against its necessity in this case and external indicia of reliability, whether there was anything which justified the use of the showup.

And I think this conforms to what the Court in Curvy last term called weighing the prejudice to a defendant against society’s interest in law enforcement and it conforms almost identically to the analytic process which the Court itself used in Simmons versus the United States several terms ago nor do -- as I understand the State’s argument yesterday and its brief, nor does the state seriously challenge the application of this standard to the facts found by the district court and I will have hopefully something to say about that later.

The state concentrates its attack here on the findings of fact made by the district court and as this Court generally does not reverse findings of historical fact, it seems to me quite plain that the state has a very heavy burden to carry.

Chief Justice Warren E. Burger: We do -- we do not hesitate to reverse them if they're clearly erroneous, do we?

Mr. Michael Meltsner: Correct Mr. Chief Justice and my -- a good deal of what I hope to say is --

Chief Justice Warren E. Burger: You are going to deal with ultimately rather glaring inconsistencies here?

Mr. Michael Meltsner: And then that -- the question of support for the district court’s findings of fact is what I intend to turn to now.

A preliminary matter, however, as I understood Mr. Durham yesterday, he said or implied that the district court’s findings were based on a cold record.

They were based on the record made on direct review.

That is simply not the case.

The district court heard testimony from two police officers, including the police officer who is in-charge of the investigation of this case.

He heard testimony from the prosecutors.

He heard testimony from respondent’s mother and he heard expert testimony directed to the procedures used in this case.

The testimony -- it appears in the appendix from pages 66 to 134.

It amplified the record made on direct review, but it did more than that.

It supplied the answers to many questions which this Court asked me in 1968 and I think that’s apparent from a reading of that section of the appendix.

For example, the officer who was in-charge of the investigation, Captain McDaniel, testified to the efforts he used to put together a lineup in the four or so hours that he tried to do that.

District court, after hearing his testimony which was directed to showing that he could not put a lineup together, rejected it.

The testimony before the district judge dealt with the initial description given by the prosecutrix to the police shortly after the crime.

That appears on page A-74.

It deals with the question of voice identification where the prosecutrix according to the district judge, and as I will indicate later, or I hope to show later, there was a conflict between what she had testified to at trial and testified to before the district court.

Finally, the expert witness gave us opinion of the procedures used in this case and clearly indicated that even an imperfect lineup, one where every trait of the person who was to be seen by the witness was not identical, was thought preferable in a showup.

The district court relied on a good deal of this evidence and that appears on pages A-41 and A-42 of the record.

So that there can be no question that the district court here was not of hearing oral testimony in weighing credibility.

Now, before again talking about the factual findings that the state challenges, I think, I have to put it in perspective by indicating simply what the state does not challenge.

The state does not challenge most of the factual conclusions reached by the district court.

The state does not dispute that the evidence of the showup identification was admitted at trial that the showup took place between six and seven months after the crime that the police described respondent to the prosecutrix as a suspect before the identification, that the respondent was alone made to speak inflammatory words which was spoken by the assailant at the time of the crime, “Shut up or I’ll kill you” and that the prosecutrix relied to some extent on this voice identification.

He testified before the district court that she identified him first before he spoke.

But even she conceded that her identification was made more certain by what he said.

At trial, of course, she said, in the state court, she said that the first thing that made her identify respondent was his voice, and this appears on page 17 of the record which was before this Court in 1968.

It is also undisputed that there was no other evidence of guilt and identification evidence that the only other eyewitness to the events could not identify the respondent and that there was no independent photo identification in this case.

So we come to the particular matters the state has concentrated its fire at.

And as I read the brief and understand the argument, they are basically three.

One; whether a truly concerted effort was made to hold the lineup in this case; secondly, the quality of the initial description given by the prosecutrix to the police shortly after the crime, and finally, the opportunity to observe at the time of the crime.

And it is my submission that in each of these instances, there is sufficient evidence in the record so that no appellate tribunal can say that the district court -- district court’s findings as to these matters was clearly erroneous.

For example, with respect to the holding in the district court that there was no truly concerted effort to hold the lineup in this case and no need for speed, the record shows that what this police officer did over the course of a morning in trying to rind -- round up a lineup was to check one jail facility and phone another, but not to go to visit.

He did not try several other penal institutions that were located in the Nashville area, including the State Penitentiary and that there was absolutely no need for speed in this case.

The crime was seven months old and the complaining witness had been perfectly cooperative in the past with the police.

The district court had a good deal of knowledge about local conditions.

He heard the police officer testify in explanation of why he did not put together a lineup and concluded that there was no need for such a prompt showup in this case.

Secondly, with respect to the initial opportunity to observe at the time of the crime, district court held, and this appears on A-41 of the appendix that the prosecutrix clearly did not have a good opportunity.

Well, she, in fact, testified that she saw the rapist, but the objective circumstances certainly support the district court’s conclusion.

She was grabbed from behind in an unlit hallway, marched out through an unlit kitchen, up on some railroad tracks where there was some light from the moon and some overhead lights from the nearby street, but she marched along these railroad tracks at the point of a knife.

And she was marched along those tracks for a block or two and then pushed into some overgrowth where the crime was -- where the crime took place and then the assailant fled.

Now, given those circumstances, and the prosecutrix’s admission before the district court on page A-125 that the lighting in her house was dim, it seems to me that this is not a matter where this Court can possibly substitute its judgment as to the opportunity to view the assailant for the district courts.

The third issue has to do with the quality of the initial description given to the police at the time of the crime by the woman who had been raped.

And here, the evidence before the district court is quite clear, although at the time of trial, Mrs. Beamer, the woman who’d been raped, listed a number of traits.

She described them as the traits which led her to identify the man which she identified, the respondent, at the time of the pretrial identification.

There was no evidence in the record which told us what sort of a description she’d given seven months earlier to the police.

Well, before the district court on page A-74, Captain McDaniel, the chief officer involved in the case was asked about this specifically and he testified referring to his notes, “Alright, sir, says, his height was six feet tall, 180 pounds, he was dark hair, medium or medium to dark complexion.”

That was the description given by the prosecutrix to the police according to this officer’s notes.

Now in light of that, again it seems to me that it cannot be said that the district court’s holding that the initial description was general can anyway be off set as clearly erroneous.

That brings me to a last issue which is merely the application of a standard which I take not to be seriously disputed to facts which I do not think this Court properly sets aside and, I think, any examination of what lower courts have done with Stovall and any examination of the decision of this Court which goes into application of Stovall in most detail that being Simmons will demonstrate that the district court properly applied the standard to the facts.

I think, looking at Simmons is quite constructive.

In that case, the identification procedure which was a photo identification was upheld, but looking at the factors used in Justice Harlan’s analysis in that case, we find that they are almost identical to the factors used in analyzing this case by the district court and inferentially by the Court of Appeals.

In Simmons, the Court’s opinion talks about the necessity for a prompt photo identification.

Here, there was absolutely no necessity for a showup, roughly seven months after the crime with the cooperative witness.

In Simmons, the Court talks about the initial opportunity to observe a well-lighted bank.

Here, we have a dark house, woods and moonlight.

In Simmons, the Court talks about fresh memories.

Here, we have a stale memory and a stale memory in part at least of a voice.

In Simmons, there was no suggestion whatsoever by the FBI agents that the man whose photo they showed along with other photos was under suspicion.

Here, the police described Biggers to the prosecutrix as a suspect reinforcing with an official finger of what the showup itself did which was to point that the respondent as a person who the police thought may will have been guilty.

And finally, in Simmons, there were five eyewitnesses who all identified the defendant.

Here the only other witness to the crime did not and the only evidence of guilt was the identification which we would assert is tainted.

Now, four years ago, Mr. Justice White asked me if I was merely asking the Court to rule that there was no evidence before the jury in this case.

Since that argument, the Court in Simmons and in Foster has clearly indicated that the procedures employed by the state in taking identification evidence can be so defective as to bar their admission as a matter of law.

This is the principle we rely upon here today and submit it was properly applied by the courts below.

Chief Justice Warren E. Burger: Mr. Meltsner, at page 18 of your brief you have a statement, “she did not identify the defendant until after the voice test.”

Now, what's the record on that?

Mr. Michael Meltsner: Page 18?

Chief Justice Warren E. Burger: On page 18, yes.

Mr. Michael Meltsner: “She did not finally identify the defendant until after a voice test.”

That is at page 129 of the appendix Mr. Chief Justice and if I may just direct myself to that in more detail, in making that assertion we are giving the state’s arguments as much weight as it will bear.

Our contention is -- and the district court did not resolve this conflict, that much of the evidence at trial suggested that she identified him only after he spoke.

She said so herself on page A-17, in a statement on page R-17 and the statement by a police officer on R-66 confirms this and the respondent himself said that she did not identify him until after he spoke.

Four years later, she was certain that she had identified him -- she did -- certain that she identified him before he spoke not after he spoke.

But I then asked her, “Well after he said, 'Shut up or I’ll kill you,' were you more certain of your identification?”

And she said, “Yes.”

Chief Justice Warren E. Burger: Then this is followed by the statement, “The district court found that she failed to identify him at the trial.”

Mr. Michael Meltsner: That’s correct.

The district court --

Chief Justice Warren E. Burger: Did she make --

Mr. Michael Meltsner: The district court said there was great doubt that there was an in-court identification in this case.

Chief Justice Warren E. Burger: But what do you think the record -- the appendix of the trial court shows on that?

Mr. Michael Meltsner: The appendix at -- before the district court should testify that she did identify him four years earlier at trial, all the record of the trial shows is that she was asked, “Is there any doubt in your mind today?”

And she said, “No.

There's no doubt in my mind today.”

No, that is not the way --

Chief Justice Warren E. Burger: Isn't that a -- is that a good identification?

Mr. Michael Meltsner: No, because I think -- because identifying someone in a courtroom is a question of kicking them out from the group, I am not saying that there is no doubt.

But in any event, this case must be reversed because the -- almost the entire state’s case was the out-of-court identification and testimony about it, not the in-court identification.

And Foster versus California is a decision of the court which reverses on that basis even though there was an in-court identification.

Justice William H. Rehnquist: Mr. Meltsner, going back to the relevance of this Court’s earlier action for a moment, would you agree that in view of the statute, the earlier decisions of this Court such as United States against Pink and the Durham case which makes some comment on the effect of four to four affirmance in non-habeas corpus situations are perhaps relevant in construing the meaning that Congress intended to use when it said actually adjudicate even though they -- those cases didn’t deal with habeas corpus?

Mr. Michael Meltsner: Well, to the -- to the extent that they indicate that the process of direct review is over, I suppose they're relevant.

But I think the -- there's nothing in the legislative history or anything in those cases or anything that I can immediately think of in logic that would alter the scope of the writ in this case.

And in anyway, act conclusively, to bar federal habeas corpus.

Justice William H. Rehnquist: Well, except you’ve conceded in effect that the statute has changed the situation at least after a seven to two affirmance by this Court, so the statute did alter the scope of the writ in that sense.

Mr. Michael Meltsner: In that sense, it did.

Justice William J. Brennan: Well, Mr. Meltsner, would the situation had been any different on the seven to two affirmance if we never had a statute?

Mr. Michael Meltsner: If we didn’t have a statute?

Justice William J. Brennan: Yes.

Mr. Michael Meltsner: My -- that brings me back to the answer to Mr. Justice Rehnquist’s question yesterday.

In that event, I think a district judge clearly would have the power not to entertain the writ.

Justice William J. Brennan: Right.

So it has a presidential [Attempt to Laughter] -- has presidential value.

So in that sense, the statute adds nothing to the situation as regards the impact of an affirmance here, nine to nothing or seven to two--

Mr. Michael Meltsner: I --

Justice William J. Brennan: -- that disposes adversely to the state prisoner his constitutional claim.

Mr. Michael Meltsner: I think the real meaning of statute is in its definition of when in that instance, one can still go back --

Justice William J. Brennan: This is not a problem of res judicata?

Mr. Michael Meltsner: Thank you.

Chief Justice Warren E. Burger: Mr. Durham, you have about 16 minutes left.

Argument of Bart C. Durham Iii

Mr. Bart C. Durham Iii: I’ll try not to use all of those Your Honor.

Thank you.

Mr. Chief Justice, may it please the Court.

I will go directly to the Court -- about the dispute – the factual dispute between my adversary and me all along.

We seem to read these records differently.

I just amended to a go Mr. Meltsner said on page 17 of the original trial record which unfortunately Your Honors don’t have, there's only one copy in the Supreme Court library.

We were allowed to use the original record that -- this says that the lady was identified first by voice and I’m reading here on page 17, “What physical characteristics, if any, caused you to be able to identify him?”

The answer --

Justice Potter Stewart: This is -- as at the trial -- at the original trial in the state court?

Mr. Bart C. Durham Iii: Yes.

Counsel referred to this just a moment ago and the answer to that question is, “First of all, his size; next, I could remember his voice.”

Then counsel cited Your Honors to page 66 of the same record which he says that this was her identification of him first by his voice, was confirmed by the policeman, at that particular time Lt. McDaniel.

I’m looking at page 66, said -- the question of the police officer was, “And when did that take place?”

Right at that time when she, damn, and he doesn’t get to finish that word, he says, “Saw him, she asked us to have him repeat the question which he repeated, that, and she also by voice.”

Yes sir, well, that’s ambiguous, as I point on my brief.

The three offices testified about the identification whether or not it was voice first or after, didn’t make any constitutional difference in 1965; two, he said she identified him first and this one man whose testimony is so ambiguous, it doesn’t even make a grammatical sentence in the English language, they seize on certain words of that, at this page 66, and try to say that this officer said that she identified him first by voice.

We respectfully disagree.

Justice Potter Stewart: I think the basic point as I understood it that your Brother was making was that all his testimony went to the circumstances under which she identified him at the lineup prior to, he is talking about the showup, prior to the trial and that she did not identify him at the trial independently.

I think, that was the basic point your Brother was making, perhaps, I misunderstood it.

Mr. Bart C. Durham Iii: I respectfully disagree, Your Honor.

Justice Potter Stewart: You disagree that’s the point he was making?

Mr. Bart C. Durham Iii: I disagree if that was the point.

I understood the point to be that he’s trying to show that this was a weak identification and the voice wasn’t heard as a mode of identification.

Justice Potter Stewart: Yes, he said that.

But I thought -- I understood his--

Mr. Bart C. Durham Iii: I also -- I understand and I agree with you Your Honor --

Justice Potter Stewart: -- basic point to be that there was not an independent identification in the courtroom at the time of the trial and all of this testimony went to the identification prior to the trial at the -- during the procedures that he says were constitutionally invalid.

Mr. Bart C. Durham Iii: Now, my colleague says that the -- I have said that the district court made findings on a cold record and he disagrees with this.

What I am saying, and I want this to be clear, is that take the cold record of this trial in 1965 here and take -- supplement that with the very limited evidentiary hearing in which the two police officers testified adversely to Mr. Meltsner’s position and no one testified that I know of to his position.

And Mrs. Beamer testified adversely to his position, but just doesn't believe them entirely and just go on the cold record.

In other words, believe all of his witnesses before the district -- United States’ district judge, disbelieved all of my witnesses before the United States’ district judge and my assertion is that the record is still un-contradicted as to (a) the lady did not change her testimony between the time of the trial and the time of the habeas corpus hearing nor did the police officers.

The point being that they -- the constitutional point that they are anxious to convey is that it puts them in a better constitutional posture if they can have it so that she identified him first by voice and then by recognition of the person and made no constitutional difference back then -- back in that time.

So, the district judge found that the police officer and the lady changed their testimony.

Now, I’m saying that that is un-contradicted in the record that district judge errs there.

Now, counsel mentioned the finding according to appendix 41 of the district judge’s order, there's no indication that a truly concerted effort was made to produce suitable subjects for a lineup aside from a phone call to the juvenile home and a screening of metro jail inmates, no other efforts were made.

All the testimony at the habeas corpus hearing went into that and the district judge, we say, just ignored that.

Now, I suppose, you would have to not disbelieve that or perhaps that finding would stand.

Their only testimonial was that this police officer said, “I consulted with a juvenile court judge and his superior to jail and it wasn’t possible to find anyone of that size.”

The picture of Mr. Biggers, all of them have introduced into evidence is a part of the original trial record.

He’s a large boy, he was only three days past his 16th birthday but he’s a giant, sort of young man, and the state argued that it was -- that -- they -- extremely difficult to get young people that large or people that large who would be that young.

He’s -- he stand that up -- they’d stand that in -- either because of their age or because of their size.

He’s a giant, 16-year-old, whose -- who has a very distinctive appearance.

Counsel cited you to a statement that Mrs. -- that the victim, Mrs. Beamer made, cite you to page 125 of the record where she says that her lighting in the house was dim.

Well, if you want to just go through this thing and -- on cross-examination and say well, was your light kind of dim, or something like that, you can find that, but take the thing as a whole.

Take the testimony as a whole, in many other places and at the trial, she said that it was -- the house was, “Well lighted.”

And then went into that in some degree.

We think that the argument of course is that the jury’s verdict has to a great degree settled that.

The -- I realize we do have a burden here that -- not an easy one to overturn factual findings.

The findings were as counsel stated affirmed by the Sixth Circuit but to seek -- they would -- were done out of hand as I’ve argued earlier, first reason, the state didn’t raise much of an issue about the findings of the fact in the Sixth Circuit.

We’ve reserved it but we didn’t go -- I wouldn’t counsel then.

Frankly, we didn’t argue that as strenuously as we did the legal argument.

All the Sixth Circuit said it was, we’re not able to say that this was clearly erroneous.

We are, I am able to tell Your Honors that the finding of the district judge is clearly erroneous in seven aspects, and I’ve listed them in my brief.

Counsel has analogized Biggers to Stovall, Simmons and some of the other identification cases which this Court has decided and I frankly believe that there's little profit in there.

I think that the -- and counsel said that, I had no dispute with the district judge’s interpretation of what the law leads and that’s probably true.

I think, the district judge just as every judge and as this Court in light of Stovall says, “Was the man prejudiced by this identification?

Was it an improper identification?

Was it unfair that basically it’s what it boils down to?”

If it’s unfair, so unfair as to deny him a fair trial, let’s give him a new trial.

And the state respectfully contends that the totality of the testimony, the undisputed testimony that he did get a fair trial.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.