# Kirby v. Illinois/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Burger Powell
* Dissenting Opinions Brennan White
[p691] MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
After petitioner and Ralph Bean were arrested, police officers brought Willie Shard, the robbery victim, to a room in a police station where petitioner and Bean were seated at a table with two other police officers. Shard testified at trial that the officers who brought him to the [p692] room asked him if petitioner and Bean were the robbers and that he indicated they were. The prosecutor asked him, "And you positively identified him at the police station, is that correct?" Shard answered, "Yes." Consequently, the question in this case is whether, under Gilbert v. California, 388 U.S. 263 (1967), it was constitutional error to admit Shard's testimony that he identified petitioner at the pretrial station-house showup when that showup was conducted by the police without advising petitioner that he might have counsel present. Gilbert held, in the context of a post-indictment lineup, that "[o]nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Id., at 273. I would apply Gilbert and the principles of its companion case, United States v. Wade, 388 U.S. 218 (1967), and reverse.
In Wade, after concluding that the lineup conducted in that case did not violate the accused's right against self-incrimination, id., at 221-223, the Court addressed [p693] the argument "that the assistance of counsel at the lineup was indispensable to protect Wade's most basic right as a criminal defendant—his right to a fair trial at which the witnesses against him might be meaningfully cross-examined," id., at 223-224. The Court began by emphasizing that the Sixth Amendment guarantee "encompasses counsel's assistance whenever necessary to assure a meaningful 'defence.'" Id., at 225. After reviewing Powell v. Alabama, 287 U.S. 45 (1932); Hamilton v. Alabama, 368 U.S. 52 (1961); and Massiah v. United States, 377 U.S. 201 (1964), the Court, 388 U.S., at 225, focused upon two cases that involved the right against self-incrimination:
   "In Escobedo v. Illinois, 378 U.S. 478, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to presence a defense at the trial itself...." United States v. Wade, 388 U.S., at 225-226.
   [p694] "[I]n Miranda v. Arizona, 384 U.S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation." Id., at 226.
The Court then pointed out that "nothing decided or said in the opinions in [Escobedo and Miranda] links the right to counsel only to protection of Fifth Amendment rights." Ibid. To the contrary, the Court said, those decisions simply reflected the constitutional
   "principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment...." Id., at 226-227.
This analysis led to the Court's formulation of the controlling principle for pretrial confrontations:
   "In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Id., at 227 (emphasis in original).
[p695] It was that constitutional principle that the Court applied in Wade to pretrial confrontations for identification purposes. The Court first met the Government's contention that a confrontation for identification is "a mere preparatory step in the gathering of the prosecution's evidence," much like the scientific examination of fingerprints and blood samples. The Court responded that in the latter instances "the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." The accused thus has no right to have counsel present at such examinations: "they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." Id., at 227-228.
In contrast, the Court said, "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Id., at 228. Most importantly, "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." Id., at 231-232. The Court's analysis of pretrial confrontations for identification purposes produced the following conclusion:
   "Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of [p696] cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as a solute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness—'that's the man.'" Id., at 235-236.
The Court then applied that conclusion to the specific facts of the case. "Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel]... as at the trial itself.'" Id., at 236-237.
While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that Wade did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words "criminal prosecutions" in the Sixth Amendment. Counsel is required at those confrontations because "the [p697] dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification," id., at 235, mean that protection must be afforded to the "most basic right [of] a criminal defendant—his right to a fair trial at which the witnesses against him might be meaingfully cross-examined," id., at 224. Indeed, the Court expressly stated that "[l]egislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as 'critical.'" Id., at 239; see id., at 239 n. 30; Gilbert v. California, 388 U.S., at 273. Hence, "the initiation of adversary judicial criminal proceedings," ante, at 689, is completely irrelevant to whether counsel is necessary at a pretrial confrontation for identification in order to safeguard the accused's constitutional rights to confrontation and the effective assistance of counsel at his trial.
In view of Wade, it is plain, and the plurality today does not attempt to dispute it, that there inhere in a [p698] confrontation for identification conducted after arrest the identical hazards to a fair trial that inhere in such a confrontation conducted "after the onset of formal prosecutorial proceedings." Id., at 690. The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of "a routine police investigation," ibid., and thus not "the starting point of our whole system of adversary criminal justice," id., at 689. An arrest, according to the plurality, does not face the accused "with the prosecutorial forces of organized society," nor immerse him "in the intricacies of substantive and procedural criminal law." Those consequences ensue, says the plurality, only with "[t]he initiation of judicial criminal proceedings," "[f]or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified." Ibid. If these propositions do not amount to [p699] "mere formalism," ibid., it is difficult to know how to characterize them. An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not "a mere preparatory step in the gathering of the prosecution's evidence." Wade, supra, at 227. A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those "critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." Id., at 224.
The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken [p700] identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard's understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed the robbers. "It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police." Id., at 234. The State had no case without Shard's identification testimony, and safeguards against that consequence were therefore of critical importance. Shard's testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation, quoted by the Court in Wade, 388 U.S., at 229, that "[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trail." Williams & Hammelmann, Identification Parades, Part I, [1963] Crim. L. Rev. 479, 482.
The plurality today "decline[s] to depart from [the] rationale" of Wade and Gilbert. Ante, at 690. The plurality discovers that "rationale" not by consulting those decisions themselves, which would seem to be the appropriate course, but by reading one sentence in Simmons v. United States, 390 U.S. 377, 382-383 (1968), where no right-to-counsel claim was either asserted or considered. The "rationale" the plurality discovers is, [p701] apparently, that a post-indictment confrontation for identification is part of the prosecution. The plurality might have discovered a different "rationale" by reading one sentence in Foster v. California, 394 U.S. 440, 442 (1969), a case decided after Simmons, where the Court explained that in Wade and Gilbert "this Court held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a 'critical stage' in the prosecution, at which the accused must be given the opportunity to be represented by counsel." In Foster, moreover, although the Court mentioned that the lineups took place after the accused's arrest, it did not say whether they were also after the information was filed against him. Instead, the Court simply pointed out that under Stovall v. Denno, 388 U.S. 293 (1967), Wade and Gilbert were "applicable only to lineups conducted after those cases were decided." 394 U.S., at 442. Similarly, in Coleman v. Alabama, 399 U.S. 1 (1970), another case involving a pre-Wade lineup, no member of the Court saw any significance in whether the accused had been formally charged with a crime before the lineup was held.
[p702] The plurality might also have discovered a different "rationale" for Wade and Gilbert had it examined Stovall v. Denno, supra, decided the same day. In Stovall, the confrontation for identification took place one day after the accused's arrest. Although the accused was first brought to an arraignment, it "was postponed until [he] could retain counsel." 388 U.S., at 295. Hence, in the plurality's terms today, the confrontation was held "before the commencement of any prosecution." Ante, at 690. Yet in that circumstance the Court in Stovall [p703] stated that the accused raised "the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us" in Wade and Gilbert. The Court therefore found that the case "provide[d] a vehicle for deciding the extent to which the rules announced in Wade and Gilbert—requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counsel—are to be applied retroactively." 388 U.S., at 294. Indeed, the Court's explicit holding was "that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of Wade and Gilbert are therefore inapplicable in the present case." Id., at 296. Hence, the accused in Stovall did not receive the benefit of the new exclusionary rules because they were not applied retroactively; he was not denied their benefit because his confrontation took place before he had "been formally charged with a criminal offense." Ante, at 691. Moreover, in the course of its retroactivity discussion, 388 U.S., at 296-301, the Court repeated the phrase "pretrial confrontations for identification" or its equivalent no less than 10 times. Not once did the Court so much as hint that Wade and Gilbert applied only to confrontations after the accused "had been indicted or otherwise formally charged with [a] criminal offense." Ante, at 684. In fact, at one point the Court summarized Wade as holding "that the confrontation [for identification] is a 'critical stage,' and that counsel [p704] is required at all confrontations." 388 U.S., at 298 (emphasis added).
Wade and Gilbert, of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance. In short, it is fair to conclude that rather than "declin[ing] to depart from [the] rationale" of Wade and Gilbert, ante, at 690, the plurality today, albeit purporting to be engaged in "principled constitutional adjudication," id., at 688, refuses even to recognize that "rationale." For my part, I do not agree that we "extend" Wade and Gilbert, id., at 684, by holding that the principles of those cases apply to confrontations for identification conducted after arrest. Because Shard testified at trial [p705] about his identification of petitioner at the police station showup, the exclusionary rule of Gilbert, 388 U.S., at 272-274, requires reversal.

## Notes

* ↑ There is no room here for the application of the harmless-error doctrine. Because the admission of Shard's testimony about his showup identification thus requires reversal, there is no need for me to consider whether a remand would otherwise be necessary to afford the State an opportunity to demonstrate that Shard's in-court identification of petitioner, if that is what it was, see ante, at 686 n. 3, had an independent source. See United States v. Wade, 388 U.S. 218, 239-242 (1967); Gilbert v. California, 388 U.S. 263, 272 (1967).
* ↑ The plurality asserts that in view of that holding in Wade, "the doctrine of Miranda v. Arizona, 384 U.S. 436, has no applicability whatever to the issue before us." Ante, at 688. That assertion is necessary for the plurality because Miranda requires the presence of counsel before "the time that adversary judicial proceedings have been initiated against" the accused. Ibid. The assertion is nonetheless erroneous, for Wade specifically relied upon Miranda in establishing the constitutional principle that controls the applicability of the Sixth Amendment guarantee of the right to counsel at pretrial confrontations. See 388 U.S., at 226-227.
* ↑ The plurality asserts that "Escobedo is not apposite here." Ante, at 689. It was, of course, "apposite" in Wade. Hence, to say that Johnson v. New Jersey, 384 U.S. 719, 733-734 (1966), a case decided before Wade, "limited the holding of Escobedo to its own facts," ante, at 689, even if true, is to say nothing at all that is relevant to the present case. The plurality also utilizes Johnson for the proposition "that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda,'to guarantee full effectuation of the privilege against self-incrimination....'" Ibid. In view of Wade's specific reliance upon Escobedo and Miranda, that, obviously, is no distinction either. Moreover, it implies that the purpose of Wade was "to vindicate the constitutional right to counsel as such." That was not the purpose of Wade, as my extended summary of the opinion demonstrates.
* ↑ The plurality refers to "occasions during the course of a criminal investigation when the police do abuse identification procedures" and asserts that "[s]uch abuses are not beyond the reach of the Constitution." Ante, at 690. The constitutional principles established in Wade, however, are not addressed solely to police "abuses," as Wade explicitly pointed out: "The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification." 388 U.S., at 234-235.
* ↑ This case does not require me to consider confrontations that take place before custody, see, e.g., Bratten v. Delaware, 307 F. Supp. 643 (Del. 1969); People v. Cesarz, 44 Ill. 2d 180, 255 N.E. 2d 1 (1969); State v. Moore, 111 N.J. Super. 528, 269 A. 2d 534 (1970), nor accidental confrontations not arranged by the police, see, e.g., United States v. Pollack, 427 F. 2d 1168 (CA5 1970); State v. Bibbs, 461 S.W. 2d 755 (Mo. 1970), nor on-the-scene encounters shortly after the crime, see, e.g., Russell v. United States, 133 U.S. App. D.C. 77, 408 F. 2d 1280 (1969); United States v. Davis, 399 F. 2d 948 (CA2 1968).
* ↑ Cf. Miranda v. Arizona, 384 U.S. 436, 477 (1966) (emphasis added): "The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries."
* ↑ The plurality concludes that "[i]t is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Ante, at 690. This Court has taken the contrary position with respect to the speedy-trial guarantee of the Sixth Amendment: "Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest." "In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, which transformed the appellees into 'accused' defendants who are subject to the speedy trial protections of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 321, 325 (1971).
* ↑ As the California Supreme Court pointed out, with an eye toward the real world, "the establishment of the date of formal accusation as the time wherein the right to counsel at lineup attaches could only lead to a situation wherein substantially all lineups would be conducted prior to indictment or information." People v. Fowler, 1 Cal. 3d 335, 344, 461 P. 2d 643, 650 (1969).
* ↑ Bean took the stand and testified that he and petitioner found Shard's traveler's checks and Social Security card two hours before their arrest strewn upon the ground in an alley.
* ↑ In fact, the lineups in Foster took place before the information was filed. The crime occurred on January 25, 1966. After the accused was arrested, he was exhibited to the witness in two lineups, both conducted within two weeks of January 25. The information was not filed until March 17. Foster v. California, No. 47, 0.T. 1968, Brief for Respondent 3-8.
* ↑ In fact, the lineup in Coleman took place before the accused were formally charged. The crime occurred on July 24, 1966. The accused were arrested on September 29, and the lineup was held on October 1. The preliminary hearing was not until October 14, and the indictments were not returned until November 11. Coleman v. Alabama, No. 72, 0.T. 1969, Brief for Petitioners 5-7; App. 84; see 399 U. S., at 26 (STEWART, J., joined by BURGER, C. J., dissenting). On those facts, the plurality opinion adverted to the timing of the lineup only to the extent of pointing out that it was held "about two months after the assault and seven months before petitioners' trial." Id., at 3 (BRENNAN, J., joined by DOUGLAS, WHITE, and MARSHALL, JJ.). The plurality opinion then simply noted that "[p]etitioners concede that since the lineup occurred before [Wade and Gilbert] were decided..., they cannot invoke the holding of those cases requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel." Id., at 3-4. Mr. Justice Black in his concurring opinion took no notice at all of when the lineup was conducted. Instead, reiterating his view that Wade "should be held fully retroactive," he insisted "that petitioners in this pre-Wade case were entitled to court-appointed counsel at the time of the lineup in which they participated and that Alabama's failure to provide such counsel violated petitioners' rights under the Sixth and Fourteenth Amendments." Id., at 13. Nor did Mr. Justice Harlan refer to the timing of the lineup in expressing his "dissent from the refusal to accord petitioners the benefit of the Wade holding, neither petitioner having been afforded counsel at the police 'lineup' identification." Mr. Justice Harlan's summary of Wade, like that of the prevailing opinion, did not limit its "rationale" to post-charge confrontations: "The Wade rule requires the exclusion of any in-court identification preceded by a pre-trial lineup where the accused was not represented by counsel, unless the in-court identification is found to be derived from a source 'independent' of the tainted pretrial viewing." Id., at 21.
* ↑ The chain of events in Stovall was as follows: The crime occurred on the night of August 23, 1961. The accused was arrested on the afternoon of August 24 and appeared for arraignment on the morning of August 25. The arraignment was postponed until August 31 so that he could retain counsel. The confrontation with the witness took place about noon on August 25. At the arraignment on August 31, the committing magistrate appointed counsel for the accused and set the felony examination for September 1. That examination was never held, for on August 31 the indictment was returned. Stovall v. Denno, No. 254, 0.T. 1966, Brief for Respondent 34.
* ↑ The Wade dissenters found no such limitation: "The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information." United States v. Wade, 388 U.S., at 251 (WHITE, J., joined by Harlan and STEWART, JJ., dissenting in part and concurring in part).
* ↑ The plurality rather surprisingly asserts that "[t]he issue of the applicability of Wade and Gilbert to pre-indictment confrontation has severely divided the courts." Ante, at 687 n. 5 (emphasis added). As the plurality's citations reveal, there are decisions from five States, including Illinois, that have refused to apply Wade and Gilbert to pre-indictment confrontations for identification. Ranged against those five, however, are decisions from at least 13 States. See People v. Fowler, 1 Cal. 3d 335, 461 P. 2d 643 (1969); State v. Singleton, 253 La. 18, 215 So. 2d 838 (1968); Commonwealth v. Guillory, 356 Mass. 591, 254 N.E. 2d 427 (1970); Palmer v. State, 5 Md. App. 691, 249 A. 2d 482 (1969); People v. Hutton, 21 Mich. App. 312, 175 N.W. 2d 860 (1970); Thompson v. State, 85 Nev. 134, 451 P. 2d 704 (1969); State v. Wright, 274 N.C. 84, 161 S.E. 2d 581 (1968); State v. Isaacs, 24 Ohio App. 2d 115, 265 N.E. 2d 327 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A. 2d 738 (1970); In re Holley, 107 R.I. 615, 268 A. 2d 723 (1970); Martinez v. State, 437 S.W. 2d 842 (Tex. Ct. Crim. App. 1969); State v. Hicks, 76 Wash. 2d 80, 455 P. 2d 943 (1969); Hayes v. State, 46 Wis. 2d 93, 175 N.W. 2d 625 (1970). In addition, every United States Court of Appeals that has confronted the question has applied Wade and Gilbert to pre-indictment confrontations. See United States v. Greene, 139 U.S. App. D.C. 9, 429 F. 2d 193 (1970); Cooper v. Picard, 428 F. 2d 1351 (CA1 1970); United States v. Ayers, 426 F. 2d 524 (CA2 1970); Government of Virgin Islands v. Caliwood, 440 F. 2d 1206 (CA3 1971); Rivers v. United States, 400 F. 2d 935 (CA5 1968); United States v. Broadhead, 413 F. 2d 1351 (CA7 1969); United States v. Phillips, 427 F. 2d 1035 (CA9 1970); Wilson v. Gaffney, 454 F. 2d 142 (CA10 1972). As Chief Judge Lewis, speaking for the Court of Appeals for the Tenth Circuit, put it in the last-cited case: "In both Wade and Gilbert the lineups were conducted after indictments had been returned; in the case at bar, the lineup occurred before petitioner had been formally charged. But surely the assistance of counsel, now established as an absolute post-indictment right does not arise or attach because of the return of an indictment. The confrontation of a lineup... cannot have a constitutional distinction based upon the lodging of a formal charge. Every reason set forth by the Supreme Court in Wade... for the assistance of counsel post-indictment has equal or more impact when projected against a pre-indictment atmosphere. We hold that petitioner had a right to counsel at the lineup here considered." Id., at 144.