Warren E. Burger: First case on for argument this morning is number 76-5344, Moore against Illinois. Mr. Hughes you may proceed whenever you are ready.
Patrick J. Hughes, Jr.: Mr. Chief Justice and may it please the Court. The petitioner here is challenging the validity of his Illinois rape conviction, a conviction based on the witness identification testimony of the one and only eyewitness to the crime. The victim is a white woman who was sleeping in a darkened room when she was awaken by a noise. She then had at most a 10-15 second opportunity to observe the face and the figure of her masked, black assailant, I am sorry, unmasked, black assailant, subsequently he was masked during the course of the commission of the -- of the crime. A conviction for which the petitioner is presently serving a 50 -- 30 to 50 years sentence of imprisonment. The crime occurred on December 14th, 1967. In the week after the crime occurred, this witness had two opportunities to view various photographs, but made no identification of anyone from those photographs. Seven days after the assault, without any showing of existent circumstances, without any showing of necessity, the police brought this sole eyewitness to a courtroom where the petitioner was scheduled to appear, charged with the crime that was committed upon her. The witness was brought to that courtroom specifically for the purpose of making an identification. That identification proceeding was to be her first opportunity to view any person since the date of the -- of the crime, since the time of the assault, she had viewed no suspect prior to that time. When she arrived at that courtroom over her objection and before she viewed the suspect, she was asked to sign the formal charge that are already been placed against the petitioner in that Courtroom. She was then placed in that courtroom to wait and while she was waiting there she saw other cases. In the course of seeing those cases as the defendants’ name in those cases was called, the defendants were brought out from the lockup, the defendants in custody were brought out from the lockup and she observed that happening for some period of time before the petitioner’s case was called. The petitioner’s name was then called, a name she recognized because she had seen it on the complaint that the police had asked her to sign a few minutes time earlier, a complaint she did not want to sign without making an identification, but which nonetheless at the urging she did. The petitioner was then brought out from the lockup and stood before the bench, before the Judge. The complainant, the sole eyewitness was then asked by the clerk, her name was called by the clerk and she was asked to come up. She was brought up to stay and seven or eight feet from the place where the defendant, petitioner was standing in front of that same judge. At the time that the petitioner stood there, not only was he an indigent without counsel, but in violation of an Illinois statute which specifically required that the judge advise him of his right to have counsel, he was not so advised.
William H. Rehnquist: Mr. Hughes. Where -- the appendix at page 43 and 44 has a apparent transcript of that proceeding, what -- is that the entire proceeding?
Patrick J. Hughes, Jr.: Well, no sir. I believe that you will find that the entire proceeding is reported on pages 48 and 49 of the appendix.
William H. Rehnquist: So this is just an excerpt on report?
Patrick J. Hughes, Jr.: Yes sir, yes sir. The entire proceeding is -- is found at pages 48 and 49. The witness then -- this sole eyewitness then heard the prosecutor to tell the judge that certain items taken from her home at the time of the assault, at the time the crime had committed upon -- -- had been committed upon her, were recovered from the petitioner’s apartment when he was arrested. That statement was wholly untrue. The prosecutor’s next statement was that the clothing of her assailant was recovered from the petitioner’s apartment when he was arrested. None of that clothing was ever introduced in evidence in course of the trial of this case. These statements were then immediately followed by the prosecutor asking the witness to identify the petitioner as her assailant which she did. The critical nature of this proceeding in this case, the identification procedure in this case is emphasized by what we believe just the lack of other reliable evidence. For example, at the time subsequent to the assault, the complainant victim advised the police to look on a file box that was in the apartment for fingerprints. They did in fact find a fingerprint. They compared that fingerprint with that of the petitioner and it was not his. The clothing, certain clothing taken from him at the time of his arrest and that -- that clothing included a pair of trousers. The fly area as well as the rest of that area was tested by a Chicago Police Department lab technician and that technician testified that he found no semen, no female cells, no matching hairs or fibers and no blood in the trousers, even though at the time of the assault, an examination by doctor a few hours later disclosed that she was menstruating. Our major contentions are; first, that this indigent petitioner had an absolute right to counsel at that initial court proceeding. At least the state we believe concedes in its brief that she had a right to counsel of that proceeding.
William H. Rehnquist: You think your first contention was treated by the Supreme Court of Illinois in its opinion?
Patrick J. Hughes, Jr.: No, we do not think that was treated sir.
William H. Rehnquist: Was it ever treated in any other state court proceeding?
Patrick J. Hughes, Jr.: It -- it was not treated -- there was -- there were only two. There was the trial and then the appeal in the Illinois Supreme Court.
William H. Rehnquist: And that was not treated into those proceedings?
Patrick J. Hughes, Jr.: No. Well, the defense lawyer raised it during the motion to suppress the trial and in his argument as grounds for his alleged -- his argument that the line up was -- the show up was so suggested that it violated the principles of Wade, Gilbert and Stovall. It was alleged in that sense.
William H. Rehnquist: But was it pursued in the Supreme Court of Illinois?
Patrick J. Hughes, Jr.: It was not pursued as such in the Supreme Court of Illinois in terms of right to counsel, no sir.
William H. Rehnquist: What do you do about the exhausting requirement of habeas?
Patrick J. Hughes, Jr.: We are -- clearly the issue of violation of Wade, Stovall and Gilbert is -- was raised in the state -- in the Illinois Supreme Court. The suggestivity of right to counsel was raised. I mean, the suggestivity of the confrontation was raised. Although the -- and as a matter of fact during the trial of the proceeding as I said in the state court, the issue of lack -- absence of right -- lack of right to counsel was -- was brought out by the -- by the defense lawyer. When the case got to the Federal District Court, it got there because the petitioner filed his pro se habeas corpus petition and in that petition, he alleged, suggesting this, he alleged that the show up was conducted in violation of the principles of Wade, Gilbert and Stovall and he also alleged that his -- the conviction was tainted by the prosecution’s untrue statements which were not available to his counsel at the time because his counsel was denied a transcript of that initial court proceeding and the Seventh -- the District Judge dismissed the case on the grounds he had not exhausted his state remedies and not filed Illinois habeas on post convenient -- post conviction proceeding petition. The Seventh Circuit said we believe that the -- that the petitioner has made sufficient allegations to make it clear that he is now entitled to have a hearing in the District Court or at least a decision in the District Court with respect of all the events which led up to his conviction in terms of the ideas of suggestibility, the ideas of violation of Wade, Gilbert and Stovall.
Potter Stewart: Prior -- prior to this courtroom episode, there have been at least two, I guess there were two opportunities for her -- exhibits to her various photographs, have they not?
Patrick J. Hughes, Jr.: Yes sir.
Potter Stewart: And what happened to those?
Patrick J. Hughes, Jr.: The first one was a group of about 200 from which she selected people who had the general -- physical characteristics of -- of the person that she -- that she described as her assailant. It was not intended to pick out any person and she clearly did not. The second show up --
Potter Stewart: What was its purpose?
Patrick J. Hughes, Jr.: The purpose apparently was to narrow down as much as possible, the number of possible suspects.
Potter Stewart: And she did not, was -- did not have as its purpose any effort for her to identify her assailant?
Patrick J. Hughes, Jr.: Well, I presume that one of the police’s interest -- one of the police interest was to have her make an identification if possible, but it was clear in her mind and I think clear on the detective’s testimony because they testified at the hearing on the motion to suppress the identification at trial that essentially that viewing was of a large number, it was almost like the police folder book which in some jurisdictions is kept in the police’s station. It was a folder or -- mug book -- mug shot book.
Potter Stewart: Some 200 pictures --
Patrick J. Hughes, Jr.: Some 200 yes.
Potter Stewart: of 200 different people?
Patrick J. Hughes, Jr.: 200, probably 200 different people, yes sir. Although the record does not indicate, but probably to --
Potter Stewart: And then the second one?
Patrick J. Hughes, Jr.: Then the second one she was shown approximately between 9 and 12. The record I think would indicate that there were not. At that time. I think the record makes it clear that she never identified any one person. She did pick out three which she said had similar physical characteristics to her assailant, but I think her testimony ultimately was, I did not make an identification of any person from a photograph.
Speaker: What was his -- the petitioner’s -- was his photograph included?
Patrick J. Hughes, Jr.: This photograph --
Speaker: (Voice Overlap) or on the smaller number 9 to 12?
Patrick J. Hughes, Jr.: The Police Sargent, I mean, the detective investigating the case said that it was so included; however --
Speaker: In both?
Patrick J. Hughes, Jr.: Only in the subsequent as far as we know, Your Honor.
Speaker: In 9 to 12?
Patrick J. Hughes, Jr.: Yes, sir. However, we do not know which 9 to 12 were shown to her because the Police Department did not mark them in anyway at the time they were shown. So when the case, the hearing on the motion to suppress the identification came up in the trial court, the police -- the detective said to the best of my recollection, I am pretty sure, I am reasonably sure that some of these or these are the photographs that were shown to her when we were showing her --
Speaker: But in any event what you are saying I gather is that his photograph was in that small -- among that smaller number. She did not pick it out -- that picture as her assailant?
Patrick J. Hughes, Jr.: She picked out three of the nine or so then she said --
Speaker: And was his one of the three?
Patrick J. Hughes, Jr.: Parson me sir?
Speaker: Was his one of the three?
Patrick J. Hughes, Jr.: His was one of the three.
Speaker: I see.
Potter Stewart: There seems to be some difference in understanding as to whether those 9 to 12 photos there was only one picture of a person with a beard. You say that somewhere in your briefs that only the picture of the petitioner depicted a person with a beard and on page 5 of the respondent's brief, they say that 9 to 12 photos, all of which were male Negroes, several of whom were bearded. Now that is a matter of fact, but you apparently differ as to what the facts were?
Patrick J. Hughes, Jr.: Well, I would -- I believe that -- although we cannot be sure which ones she was shown because the detectives were not sure. Detectives were reasonably sure that she had seen three of those before. The other six they were unsure. She was not sure which one she had seen before. As a matter of fact, she was not even sure with the one that she -- she had then -- that was shown her at the time of the hearing on the motion to suppress, the one that did in fact have the petitioner’s picture on it, she was not certain whether or not that was the photograph she had been shown by the detective previously in the police station during that week. It is possible that one or more of those 12 had beards. Of the three that she picked out, persons having similar physical characteristics narrowed it down to three as having similar characteristics without saying any of those three were one.
Potter Stewart: Well, you say three and again in the respondent's brief they say one or two on page 5 of the brief?
Patrick J. Hughes, Jr.: Your Honor I -- I would -- I -- my best recollection of the record is that of those of nine or so perhaps one or more had some facial hair. We do not know, but perhaps one or more. Of the --
Potter Stewart: There is a little point and she picked out one or two. She picked out one or two as was said on page 5 referring to the record at page 232?
Patrick J. Hughes, Jr.: If you -- if you read the record, including her testimony, both at the hearing on the motion to suppress and during the trial and finally including a portion of the testimony and redirect examination by the state’s attorney, she makes it clear that she was not identifying any person when she picked out those three photographs.
Potter Stewart: But you say three, they say here there is one or two. Now again it is helpful to us if we -- we get together at least on the facts?
Patrick J. Hughes, Jr.: I believe that of the 9 she saw at the second viewing. She did in fact state that she picked out three of those 9 as having similar physical --
Potter Stewart: As resembling her assailant?
Patrick J. Hughes, Jr.: That is correct. Only one of which had a beard, the other two did not.
Thurgood Marshall: Mr. Hughes, admitting that her testimony was confused and the state’s testimony was confused, the record is not confused, is it? Now, what does the record show?
Patrick J. Hughes, Jr.: Your Honor --
Thurgood Marshall: Does the record show that the three had beards or one had beard or none had beard or two had beard?
Patrick J. Hughes, Jr.: The record shows of the three that she picked out as being persons of similar physical characteristics, one of those three had beard.
Thurgood Marshall: And that was who?
Patrick J. Hughes, Jr.: That was this petitioner.
Thurgood Marshall: That was him?
Patrick J. Hughes, Jr.: Yes, sir.
Thurgood Marshall: And that the others did not have?
Patrick J. Hughes, Jr.: The other two did not have beard, that is correct sir.
Speaker: What about detective Wazlowski's testimony at 88 of the appendix? She selected the photograph, this I gather as the examination of the nine, is it? She selected the photograph of the defendant as being the man who had attacked her. She also selected one more over the same principle characteristics as the man?
Patrick J. Hughes, Jr.: That was his testimony, her testimony is to the contrary, Your Honor.
Warren E. Burger: How many courts have reviewed this case now, four; two state courts and two federal courts?
Patrick J. Hughes, Jr.: Two state courts and two federal courts, yes sir.
Warren E. Burger: Did they found any errors that occurred in the trial to be harmless beyond a reasonable doubt, is that correct?
Patrick J. Hughes, Jr.: Well, but the record that they based it on was the record that we are here arguing has constitutional significance of the issues. In other words, we do not think their finding of fact is necessarily entitled to any more or less -- they did not make any findings of fact, let me put it that way, and the record -- the District Court made its findings based on the record, the same record that was available to the Illinois Supreme Court.
Warren E. Burger: On the day of the trial in the courtroom, did she identify this defendant, the appellant here as the attacker?
Patrick J. Hughes, Jr.: In the course of the trial, before the jury she did so identify, yes Your Honor, but I would like to talk about that with respect to my -- my second and third points. As I stated, we believe that at that proceeding, as far as point number one is concerned, that formal, initial -- initial formal criminal judicial proceedings had in fact been instituted and under Kirby, Wade versus United States and Gilbert versus California that our petitioner was entitled to counsel at that initial contention.
Byron R. White: You say the state concedes that point now?
Patrick J. Hughes, Jr.: We believe they have, but I am not sure that brief --
Byron R. White: Well, as part of your contention that assuming that you did have a right to counsel that the -- that the testimony -- that the in-court testimony about the out of court pretrial identification was per se excludable?
Patrick J. Hughes, Jr.: We believe that is right.
Byron R. White: But and there has been no -- let us assume that that testimony about the out of court identification was automatically excludable without showing any taint or any undue suggestion that suggests the fact that there was no counsel. Assume that there has been no finding of harmless error in this case with respect to that evidence, has there? There has been no -- I -- if there is a finding of harmless error, I would like to know about it?
Patrick J. Hughes, Jr.: No, not specifically respect to -- with respect to that evidence, there has not been and that evidence, the evidence of that confrontation, in fact went into evidence in the state’s case. The identification unless that it was not merely, Ms. witness, do you see the person in-court that committed the crime upon you or words to that effect, but the state also in its direct examination of the witness dwelled at length upon this initial in-court confrontation and identification.
Potter Stewart: Your basic claim is that this is the violation of United States against Wade, is it not?
Patrick J. Hughes, Jr.: That is one of our claims, but we would say independently of that judge -- Your Honor, independently of that, that when -- when we are talking about identification, eyewitness identification, the linchpin I think this Court called it , of that is its reliability.
Potter Stewart: But is not -- does not the role of United States against Wade a per se rule?
Patrick J. Hughes, Jr.: Yes sir, we believe that it is, yes sir.
Potter Stewart: And if there is -- was a violation of that doctrine here that is the end of it, unless Wade is going to be reexamined, is that not right?
Patrick J. Hughes, Jr.: We think that that is so because the right to counsel is such an integral part of the fact finding process.
Potter Stewart: But you say that -- the criminal proceedings have begun against this person?
Patrick J. Hughes, Jr.: We suggest there is just no doubt or question at all --
Potter Stewart: So that under the Kirby qualification or clarification of Wade, it violates the rule of United States against Wade?
Patrick J. Hughes, Jr.: That is correct Your Honor. We think that is clear. Although Kirby uses the word indictment. We think --
Potter Stewart: Kirby said the initiation of criminal proceedings?
Patrick J. Hughes, Jr.: That is right and that is our position.
Potter Stewart: Uses the word indictment among other -- other words?
Patrick J. Hughes, Jr.: That is our position. If I just make it back a little bit to the concept of reliability because that is what we are talking about in identification. I think, the thing this Court should keep in mind is that defense counsel never knew about that (Voice Overlap).
Potter Stewart: But to serve as the right to counsel, it is relevant whether it was a -- in so far as the in-court testimony about the out of Court identification is concerned, a reliability is irrelevant, is it not?
Patrick J. Hughes, Jr.: We think so, yes sir.
Speaker: Well, is that not what Gilbert held?
Patrick J. Hughes, Jr.: We think that that is what Gilbert held, yes sir.
Potter Stewart: Wade or Gilbert?
Patrick J. Hughes, Jr.: Yes sir.
Lewis F. Powell, Jr.: Mr. Hughes, may I come back to initial -- back to the -- was suggested by a statement, I think you made it to the effect that the missing musical instruments were not found in the defendant's quarters. Were they ever accounted for?
Patrick J. Hughes, Jr.: As far as we know, no sir.
Lewis F. Powell, Jr.: There was no evidence with respect to where they were?
Patrick J. Hughes, Jr.: No sir. They were never found as far as we know.
Lewis F. Powell, Jr.: Any explanation on the statement made at the preliminary hearing that they had been found in defendant's apartment?
Patrick J. Hughes, Jr.: The -- in the Seventh Circuit Court of Appeals, the assistant state attorney who made those statements said in substance in an affidavit which the Court apparently considered in terms of arriving at its decision and in its opinion that if the statements were untrue, they were -- they were not made with any intent -- with knowledge of their falsity and that if he made them -- that at the time he made them, he made them thinking they were true, because apparently what happened was very simply, they recovered two musical instruments from the petitioner at the time of his arrest -- a guitar and a flute. It happened that the -- the victim of the crime had a guitar and a flute taken from her, but they were not the same items.
Potter Stewart: They both just happened to be music lovers?
Patrick J. Hughes, Jr.: They both happen to possess musical instruments, yes sir.
Potter Stewart: Was any of that statement to which my brother Powell referred was not in any way brought to the attention of the triers of the fact on the trial of his innocence or guilt, was it?
Patrick J. Hughes, Jr.: No sir, he was not brought the attention of the triers.
Potter Stewart: So what relevance does it have? I mean, what -- what bearing does it have?
Patrick J. Hughes, Jr.: Well, our position was that it has a great bearing on reliability because the triers of the fact are the ones who determine the reliability.
Potter Stewart: Yes, but they did not know anything about this statement that was made, you have just told me?
Patrick J. Hughes, Jr.: That is right, and therefore, they could not calculate into their cons -- their evaluation of the witness' reliability. The very suggestive and impressive confrontation which was never brought to their attention, as was never brought to the attention of the trial judge during the hearing on the motion to suppress and it was not brought to their attention because the defense lawyer had been denied the -- the transcript. So he did not know that those statements have been made and he at no time was able to plum into to bring to the attention of the -- of the trial judge or the jury, their suggestibility to ask the witness whether or not they in fact had affected her -- her ability to make a fair eye witness identification.
Potter Stewart: Now at the time of this courtroom confrontation as you call it, what was the status of the criminal proceedings against you client?
Patrick J. Hughes, Jr.: A complaint which is the way 99 and nine-tenths percents of criminal cases commence in the –
Potter Stewart: And had been signed by the victim?
Patrick J. Hughes, Jr.: Yes sir and filed in the court and he was in custody, not of the Chicago police department anymore, but in the custody of the bailiff.
Potter Stewart: On this charge?
Patrick J. Hughes, Jr.: On this charge.
Potter Stewart: And under Illinois procedure, what was the purpose of his being there and being brought before the court?
Patrick J. Hughes, Jr.: It was I guess at best, his initial court appearance would be -- Illinois as far as I know has no formal term for that. It is the first time a person is brought into court. In Illinois if you are arrested and cannot make bail because of felony case bail is always -- it is almost always set unless you are arrested within a few hours of the court time. You are brought to court the next morning. If you make bail at the police station, you are released and a court date is set for you sometime in the future.
Potter Stewart: And had he would been arrested and a complaint had been filed, signed by the victim and he was brought before the judge and that was at that time, that this confrontation took place? The purpose of that proceeding was to find whether or not there was probable cause to binding over to the Grand Jury?
Patrick J. Hughes, Jr.: That was -- a finding of probable cause could well have been made that day. The Judge asked the defense lawyer, I mean, the defendant I am sorry, there was no defense lawyer, if he was ready for hearing and before the petitioner could answer the state’s attorney then make the statement –
Thurgood Marshall: Is there anything in the record to show who arrested him and why?
Patrick J. Hughes, Jr.: I think that the record indicates he was arrested because they -- they found a -- a letter which they believe tied him in to the --
Thurgood Marshall: Well who signed -- you mean you can pick up man without anybody signing the complaint in Illinois?
Patrick J. Hughes, Jr.: It is unclear whether or not there was --
Thurgood Marshall: Well, is it normal in Illinois, you just walk out and pick a man up?
Patrick J. Hughes, Jr.: It is not normal. What will happen -- there is some question as to whether in this case an arrest warrant was issued by a Judge. The state's attorney said there was.
Thurgood Marshall: Well, is it in the record?
Patrick J. Hughes, Jr.: Seven years -- eight -- nine years later, Judge when we got the case, we subpoenaed the police records and the clerk’s records.
Thurgood Marshall: Was there anything in the record to show why he was originally picked up?
Patrick J. Hughes, Jr.: Except for some language of the state's attorney’s office the record is bare in that regard.
Potter Stewart: But did not they find some sort of letter or address book or something?
Patrick J. Hughes, Jr.: They found a letter, yes sir --
Potter Stewart: But you do not claim that there was an probable cause to arrest him, do you?
Patrick J. Hughes, Jr.: I do not think it is not an issue.
Potter Stewart: That is a not an issue here.
Patrick J. Hughes, Jr.: I do not think it is an issue. I do not think we have to admit it or deny it.
Thurgood Marshall: Well, do not you think this is a matter of -- if this guy -- man ended up in custody? Well, I am interested if nobody else is?
Patrick J. Hughes, Jr.: Well, Your Honor --
Thurgood Marshall: I want to know why this man was in custody. The woman had not signed the complaint and she had refused to sign it and yet he is in custody and I would like to know why. If you do not it is alright, but --?
Patrick J. Hughes, Jr.: No, what -- we tried to find out Your Honor, when we got in the case because we did not represent him in the trial.
Thurgood Marshall: You did not by now?
Patrick J. Hughes, Jr.: And we subpoenaed all the records and we -- there were no record available of any arrest warrant issued for him and we had sketchy and excerpts from the police reports. The rest of the materials or police documents had already been destroyed and a search by the clerk’s office pursuant to subpoena came up with no arrest warrant.
Warren E. Burger: I have got difficulty focusing or finding a focus on this matter of the address book. Can you shed some light on that?
Patrick J. Hughes, Jr.: During the -- at the trial, there was not admitted into evidence. A checkbook like document and checkbook I guess would be the best description, although apparently it did not have any checks in it.
Warren E. Burger: No pocket checkbooks type?
Patrick J. Hughes, Jr.: I would be think it would be the size like most people carry that carries checks. In that book was a letter from a woman to her psychiatrist. That book was found in the -- in the apartment of the victim. The police -- when she got -- after the assault, she went to pick up that book thinking it was hers and when she looked in she expected to find $60 or perhaps she thought that maybe the assailant had taken her $60, she looked at it, saw the letter and determined it was not her checkbook. So she turned that checkbook over to the police. The police in turn contacted apparently the woman whose letter it was and made some association between that woman and the petitioner and that is how they came to arrest the petitioner. I believe, but I am not sure because the record does not contain all of the issues with respect to probable cause.
Warren E. Burger: But how was the -- what was the linkage between that book and Moore, the petitioner here?
Patrick J. Hughes, Jr.: Mr. Moore -- that the woman who wrote the letter had been his girlfriend up until a day or so before the alleged rape.
Warren E. Burger: There is some reference in the brief if not in the record, that on the following day or shortly after the attack, he went to the bar inquiring about the existence whether that checkbook had been found in the bar, is that correct?
Patrick J. Hughes, Jr.: That is correct, yes sir –-
Warren E. Burger: Is that not some linkage between him and his possible presence in that room, that night?
Patrick J. Hughes, Jr.: I think, it maybe Your Honor, but two things; number one --
Warren E. Burger: Well, I will put it this way. Do you think the jury hearing that, could reasonably infer that he had been in that room at sometime and had dropped that checkbook?
Patrick J. Hughes, Jr.: The Jury could infer that, but if I just may recite the evidence; the petitioner introduced evidence indicating he had lost that book the night before in a bar, a bar where he had concededly met and talked briefly with the victim in this case. When she woke up -- I mean, sorry not woke up -- after the assault when she went to pick it up, she thought it was hers. She might well have picked it up that night he lost it and brought it home thinking it was hers, but --
Warren E. Burger: But we are confronted now with what the jury would reasonably had a right to believe. Would the jury, I think you have indicated that jury would have the right to infer from that evidence that if his property was found in the room of the victim, that perhaps he too had been there. Would they have a right to assume to --?
Patrick J. Hughes, Jr.: Certainly, they would have the right to assume that, but I think Your Honor, again when we are talking about reliability, we are not talking about it in terms of other collaborating evidence in order to determine whether somebody committed a crime. Reliability of an identification means, the circumstances surrounding the identification and that is all. For example, the same way as right to counsel does not mean, even when somebody -- when the -- the evidence is overwhelming that we can convict them without a lawyer, if they do not intelligently waive the right to a lawyer and I think the same analogy applies here.
Lewis F. Powell, Jr.: Mr, Hughes before you sit down, your brief and your opponent's brief were both filed before our decision last spring in Manson v. Brathwaite. Do you think that case has any bearing on this one?
Patrick J. Hughes, Jr.: I think ours is the right to counsel and that is suggestive confrontation only, due process for -- and I think they are different.
Lewis F. Powell, Jr.: That is your explanation?
Patrick J. Hughes, Jr.: Yes, but even if it -- if it did, we think on the -- in the record in this case, we would still survive any examination in light of the fact Mason. Thank you.
Warren E. Burger: Thank you Mr. Hughes. Mr. Levad?
Charles H. Levad: Mr. Chief Justice and may it please the Court. If I may, I would like to address myself initially, some of the factual allegations that were made by Mr. Hughes and maybe I can clear up some of the factual problems that are in the record at this point. First of all, with regard to the purpose of the hearing, it was held on December 21st 1967. I think it -- it appears from the record and under Illinois law, the first time an individual appears before the Court is for setting a bond and as a matter of fact, that is what happened in this case.
Potter Stewart: Now why was he there, at all? He has been arrested as a result of what and a complaint has been filed against him?
Charles H. Levad: Complaint was filed prior to arrest, Your Honor.
Potter Stewart: Or does this happen just if he has been arrested, even if no complaint has been filed?
Charles H. Levad: It happens even if no complaint has been filed.
Potter Stewart: Anybody --
Charles H. Levad: -- generally a complaint is filed --
Potter Stewart: Anybody who has been arrested is brought before the Court rather promptly and the purpose is to set bond?
Charles H. Levad: Purpose is to set bond. On a complaint filed prior to the arrest, a tentative bond is set, but you are still brought before the Court to -- for a bond hearing.
Thurgood Marshall: But this complaint was not filed before the arrest?
Charles H. Levad: Apparently it was not Your Honor, no.
Thurgood Marshall: Apparently the record shows that it was not?
Charles H. Levad: That is correct Your Honor, I am sorry.
Thurgood Marshall: Well, why was he arrested, stick to the record?
Charles H. Levad: I will Your Honor.
Thurgood Marshall: If you can.
Charles H. Levad: I do not, I can Your Honor to the best of my ability. I do not think it is entirely clear from the record as to whether there was an arrest warrant in that, but I think the record does any indicate that there was probable cause for the arrest, whether there was a warrant at that time or not. Prior to the arrest, the detectives, the police detectives had the ladder, which was explained by Mr. Hughes and if I may amplify on that a little bit, I -- there was -- it was stipulated at trial, that the suspect, Mr. Moore had obtained that letter from the girl's apartment and I think and it appeared on Miss Miller's floor immediately after the rape. I think the jury and the police officers, the jury later and the police officers at that time could -- could infer and use that as the basis for probable cause for the arrest.
Thurgood Marshall: I am not -- I am not a being critical, but on that basis you say it is unimportant as to who did actually lead the arrest?
Charles H. Levad: No, I am not saying it is unimportant, Your Honor.
Potter Stewart: It is not an issue in this case?
Charles H. Levad: It is not an issue in this case.
Thurgood Marshall: Right, right, right, right.
Charles H. Levad: It is never -- the probable cause for the arrest has never been shown below in a state courts or in the federal court.
Thurgood Marshall: May that be --
Charles H. Levad: That is correct.
Thurgood Marshall: Getting her to sign the complaint, after he was arrested was just an abundance of (Inaudible).
Charles H. Levad: No, it was necessary to file a complaint, anyway.
Thurgood Marshall: Oh! It was, okay, but under Illinois law at some time, they had to file the complaint?
Charles H. Levad: Yes Your Honor and when a arrest is made prior to filing complaint, Illinois law requires it to be filed as fast as possible.
Potter Stewart: Sometimes as I suppose is filed by the -- by the police, by the arresting officer, is it not?
Charles H. Levad: Yes it is, yes it is. I might address myself to the issue of whether there were other -- other individuals, strike that. The further identification that was made in which Mr. Hughes discussed, I maintain was an identification prior to this -- this bond hearing. The record indicates, primarily during the motion to suppress that Ms. Miller indicated that she did identify one individual from the 9 that were shown to her that -- that testimony is on page 155 of the record, the --
Potter Stewart: It is in the appendix?
Charles H. Levad: Pardon?
Potter Stewart: You are talking about, it is the appendix?
Charles H. Levad: Yes, it is Your Honor. It is page 68 of the Appendix.
Potter Stewart: 68, thank you.
Charles H. Levad: Yes. That was presented by Detective Joseph Wazlowski who apparently was present when she did pick out that photograph of the defendant. However, indicative I think of what happened during this identification process, Ms. Miller when she picked up that photograph, did not say that is the man, she did not say that is the man who raped me.
Potter Stewart: Looked like the man?
Charles H. Levad: She said, it looks like the man, but I would like to see him in person and I think did indicate that she was using some care in the identification. I think the first photo, photo spread that were shown to Ms. Miller, the spread of 200 also indicated that they were using great care in going about this identification. The -- I might point out that the Illinois Supreme Court in its opinion after reviewing the record, saw the identification made at the December 21st hearing as merely a confirmation of a previous identification that she -- that Ms. Miller had made during the photographic process when she was shown the photographic spread. Now, it should be noted and I think perhaps where some of the confusion has come up during this or with regard to this question is that Ms. Miller apparently isolated three photographs from the 9 initially. There was testimony that the defendant's photograph was the only one with a beard, but on page -- well strike that -- but there is testimony in the record and I believe that is the same page 155 of the record, 68 of the abstract that the defendant's -- the defendant's photograph was not the only photograph in that spread of 9 that had a beard. He was the only of the 3 which she initially isolated that had a beard. Mr. Hughes indicated also that no finger prints or any finger print was found at the scene of the crime and it was not that of the defendant and there was nothing in the defendant's pants when they were examined. I might point out that this does negate his guilt, but merely indicates that -- that the evidence was absent or any evidence -- any evidence that may have been there was not at the time that it was checked.
Potter Stewart: Does this case really not parse down to this question? In the Wade and Gilbert case cases, it was held by this Court that at a lineup a -- there is an absolute right to Counsel and no evidence of a lineup identification can be introduced in the subsequent criminal trial as that right has not been accorded. I think that is more or less a correct summary of the Wade and Gilbert rule and here concededly there was no counsel present and no advice that he had the right to counsel and is not the question whether or not this was a lineup or it is equivalent because if it was then does not the Wade and Gilbert rule require that your opponent prevail?
Charles H. Levad: That is correct. I think that is the issue and I might point out that Gilbert has decided back in 1967 by this Court and at that time the Court stated -- stated the balancing test that has been used by this Court on number of occasions. Most recently in identification cases in Neil versus Biggers and Manson versus Brathwaite and the Court stated if I may quote two lines; “the desirability of detouring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence.” That rule in Gilbert was annunciated that time without any comment of the factors that Court was weighing about the alternatives that the Court was rejecting at that time. I think that -- that rule was a mistake.
Byron R. White: Your comments are -- seem to be premised on the assertion that there was a right to counsel at this hearing that took place and I take it your brief indicates that you or at least you assume there is a right to counsel. What do you think the right to counsel dead attach in this case?
Charles H. Levad: I do not think there is any doubt in this case, Your Honor that the confrontation that occurred on December 21st, 1967 was in the midst or after the institution of a criminal charge.
Byron R. White: So you think there was a right to counsel under Wade or Gilbert, you think the right to counsel that did -- had attached and that there was a violation of it and you just argue about whether what the consequences are.
Charles H. Levad: If Wade and Gilbert apply to this case, as this is lineup as --
Byron R. White: Well, how about -- what is -- what is your position? Let us say what is your position?
Charles H. Levad: My position, Your Honor is this that there was a prior identification in this case. The -- the photographs, the photographic identification was one in which the victim in the case picked out a particular individual, using a great deal of care --
Potter Stewart: You are going to argue now about -- about whether the identification was reliable, then how about the right to counsel at the hearing right?
Charles H. Levad: If Wade and Gilbert and I maintain it that they do not, if they apply to this type of situation where an individual was --
Byron R. White: What is your position about whether they apply or not?
Charles H. Levad: This is -- I am getting to that Your Honor. There was a prior identification. Individual is identified. There was other evidence against him. Based upon that a criminal complaint was filed and he was brought into court and at some point during the -- during the legal proceedings against him, the defendant would be confronted by his accuser. He has perfect right to that and -- and in this case it happened on his initial appearance in-court. The -- the proceeding itself as a bond hearing. It is common to show some evidence against the defendant in a bond hearing from purpose of setting bond and I suggest that that is all this warrants.
Thurgood Marshall: Well, is it true that she did not want to sign a complaint?
Charles H. Levad: I do not recall that from the record, Your Honor.
Thurgood Marshall: Well, she did not sign it until that day, did she?
Charles H. Levad: She did sign on that day, yes.
Thurgood Marshall: Well, is it not normal that after she identifies somebody you sign the complaint, is that not normal?
Charles H. Levad: It is normal --
Thurgood Marshall: Why is that she did not sign until that day?
Charles H. Levad: I do not know, Your Honor. I do not think that the record indicates why she did not sign until that day.
Byron R. White: Your argument is that that -- that at this hearing no right to counsel had attached at all and so Wade and Gilbert had not -- had no applicability at all, is that your position now?
Charles H. Levad: That is one of my arguments, Your Honor. I do not think the right to counsel --
Byron R. White: Well, you did not make that argument in the brief. You seem to concede the right to counsel, at least assume --
Charles H. Levad: Well, I conceded Your Honor. I think and what meant by the concession and if I have gone farther than that, I apologize that a criminal proceeding had -- had been instituted. I do not think there can be any question of that.
Potter Stewart: So that if this was a lineup --
Charles H. Levad: If this was a lineup Your Honor --
Potter Stewart: -- then Wade would not apply, but your claim is that --
Charles H. Levad: Yes.
Potter Stewart: -- was not a lineup or nothing equivalent to a lineup?
Charles H. Levad: I do not think it is anything near a lineup or what ordinarily one would call a lineup.
Warren E. Burger: Are you arguing that this identification that you have in case, the same kind of an identification as is made -- as was as made in open court at the trial?
Charles H. Levad: Yes Your Honor, I believe --
Warren E. Burger: In other words, your argument is that it was not a lineup at all?
Charles H. Levad: No it is not.
Potter Stewart: At the trial for certiorari had the right to counsel?
Charles H. Levad: Yes it is correct.
Potter Stewart: Has the right to counsel?
Charles H. Levad: That is correct.
Potter Stewart: Long before Wade and Gilbert?
Charles H. Levad: That is correct Your Honor. Primarily what I am asking this Court is to reexamine the Gilbert versus California. I think a recent decision in Manson versus Brathwaite does have a very -- very definite impact on this case. In that case, this Court held that the approach to pretrial identification testimony was challenged on due process grounds is to be subjected to the test of its reliability and what we are dealing with is the same situation --
Lewis F. Powell, Jr.: You have not -- you have not argued this in your brief, have you?
Charles H. Levad: No, I have not Your Honor.
Speaker: If you lose on the Wade-Gilbert point, are you relegated to an argument that this is harmless error?
Charles H. Levad: I think we would have that opportunity to. Yes, I am arguing also that was harmless error Your Honor, alternatively --
Byron R. White: But no lower court has ever addressed that question?
Charles H. Levad: The harmless error issue? Not as such Your Honor because the rulings were in favor of the State in each case below, in each of the four courts. Pardon?
Potter Stewart: Well, it is not error. You do not have a finding of harmless error until you first have a finding of error?
Charles H. Levad: That is correct Your Honor.
Harry A. Blackmun: Mr. Levad?
Charles H. Levad: Yes sir.
Harry A. Blackmun: In the Footnote on Page 8 of the state's brief, as I read it, you state that despite Wade reservations and then Wade-Gilbert, you go on to say respondent will concede to the purposes of this appeal that a Wade-Gilbert violation occurred at this preliminary proceedings. Now, is that your present position?
Charles H. Levad: Essentially Your Honor to the extent that this was a -- a lineup which would fall under Wade-Gilbert.
Harry A. Blackmun: I do not quite understand that. Are you -- are you taking the position in argument here today a contrary to the footnote that Wade-Gilbert does not apply?
Charles H. Levad: Well, I am -- what I am saying is I think Wade-Gilbert does apply to the extent that if this was a lineup -- a lineup or an identification proceeding as covered by Wade-Gilbert then a Wade-Gilbert violation does occur. I do not think I am taking the contrary position.
Harry A. Blackmun: Well, does not that footnote concession to which Mr. Justice Powell has referred drive you to a harmless error position?
Charles H. Levad: No it does not that Your Honor.
Lewis F. Powell, Jr.: That is the -- that is the next question I was going to ask. Where do you go from there?
Charles H. Levad: First of all, the Wade-Gilbert, Wade-Gilbert rules and remedy that Gilbert applied to the in-court identification were applied in that case to a post indictment situation. In Kirby versus Illinois, the Court rejected that rule and that remedy for -- for the situation where the confrontation occurs prior to institution of any criminal charge, indicating by dicta that the right accrues after institution of a criminal charge. This Court has never held that Gilbert applies to a pre-indictment situation. I am not arguing, I am urging the Court not the extend the Gilbert rule to cover any more situations and as a matter of fact to reexamine that rule because it is inconsistent with the reasoning of the Court in Manson versus Brathwaite and Neil versus Biggers. In both those cases, the Court was dealing with exactly the same testimony, testimony of a pretrial identification. The Court --
Potter Stewart: And neither of those cases involved a lineup, Wade-Gilbert is applicable -- that rule was applicable to a lineup and only to a lineup?
Charles H. Levad: That is true.
Potter Stewart: Or it is equivalent?
Charles H. Levad: That is true.
Potter Stewart: And I suppose your submission is that this case like Manson against Brathwaite and against and like the Biggers case and unlike Wade and Gilbert did not involve a lineup, is not that your claim?
Charles H. Levad: That is true. That is my first claim Your Honor. Alternatively, if this is a lineup that the Court would hold except in Wade-Gilbert --
Potter Stewart: If this is a lineup or it is functionally equivalent than as a concession pointed out by brother Powell indicates you concede there was a violation of Wade and Gilbert?
Charles H. Levad: That is correct Your Honor. That is correct.
Lewis F. Powell, Jr.: Would you elaborate on why you think this was not a lineup? What is the difference, practically speaking between an accused facing -- in the circumstances of this defendant and one in the circumstances where you would concede that was a lineup?
Charles H. Levad: The purpose of a lineup and I think the purpose of the proceedings that the Wade-Gilbert-Stovall trilogy would concerned with were proceedings during which evidence was to be obtained to be used in the trial, identification evidence in which there was some doubt as to whether that evidence would accrue out of that -- those proceedings. In this case, we already had an identification. As a matter of fact, the Illinois Supreme Court specifically said this only confirmed a prior identification and it was -- it was introduced as evidence going to the -- going to the amount of bond that should be set, it was like a mini preliminary hearing, but it was part of a judicial proceeding and it was -- it was -- there was not a doubt I do not think prior to this that there would be -- or not great doubt that there would be an identification. The other evidence had been -- had been obtained.
Thurgood Marshall: Was it for the purpose of identification?
Charles H. Levad: It was for the purpose of setting bond Your Honor, the proceeding itself.
Thurgood Marshall: You have said for the identification, that were your words just a second ago. Was she not brought there for the express purpose of identifying him?
Charles H. Levad: As testimony and as evidence to be introduced in a bond hearing Your Honor, yes sir.
Thurgood Marshall: But she was brought -- the purpose was to identify him?
Charles H. Levad: That was her purpose for being there, yes.
Thurgood Marshall: What is the purpose of a lineup, to identify?
Charles H. Levad: The purpose of the lineup --
Thurgood Marshall: Is to identify?
Charles H. Levad: Is to identify, that is right Your Honor.
Thurgood Marshall: The difference is what?
Charles H. Levad: The difference is that prior -- lineups prior to -- prior to trial, have as their purpose of the obtaining of the evidence against the defendant to be used at trial and to be used at judicial proceedings prior to trial and this was the use of that evidence. That was the difference.
Thurgood Marshall: If you had a lineup in the Magistrate's office, it is your position that you would need a lawyer under Wade and Gilbert?
Charles H. Levad: I am not quite sure understand the question. A lineup --
Thurgood Marshall: Yeah.
Charles H. Levad: -- in a Magistrate's office?
Warren E. Burger: Yeah.
Warren E. Burger: A typical lineup with ten people for example?
Charles H. Levad: I would -- no I do not contend that you would not -- that it would not be subject to Wade-Gilbert and there would not be a right to counsel. However --
Thurgood Marshall: Well, if you do -- if you do I think you are in trouble here?
Charles H. Levad: This is after charge or prior to charge, Your Honor?
Thurgood Marshall: Well, the charge that the woman made was made after the start of the hearing, correct?
Charles H. Levad: I do not believe so Your Honor. I believe the -- the record indicates that she filed -- she signed a complaint and was filed prior to the hearing.
Thurgood Marshall: She signed it in the office right then and there, did not she?
Charles H. Levad: Just prior to the hearing, I believe Your Honor, yes.
Thurgood Marshall: Well, she was brought there to identify and you admit that?
Charles H. Levad: As part of that hearing, yes Your Honor.
Thurgood Marshall: Well, she was brought to identify?
Charles H. Levad: Yes.
Thurgood Marshall: And there was no lawyer present?
Charles H. Levad: There was no lawyer present, Your Honor.
Harry A. Blackmun: Mr. Levad?
Charles H. Levad: Yes, sir.
Harry A. Blackmun: Let me ask you a question about the trial itself. The prosecutor testified at the trial that she had previously identified this defendant at this preliminary hearing, however you may characterize it, did she not?
Charles H. Levad: Yes, she did Your Honor.
Harry A. Blackmun: Would your case be any stronger or any different, if she had not referred back to that prior identification, but had merely confined herself to am in-court identification?
Charles H. Levad: To the extent that Gilbert versus California may apply to this case, Your Honor, yes it would -- it would directly fall under U.S. Versus Wade in which the only testimony that is used in the trial is the in-court identification and even --
Harry A. Blackmun: Then -- then you have an obligation to try to prove some independent source, would you not?
Charles H. Levad: That is correct Your Honor.
Harry A. Blackmun: So your problem stems primarily from Gilbert?
Charles H. Levad: That is correct, Your Honor.
Harry A. Blackmun: Which laid down the per se rule?
Charles H. Levad: That is correct, Your Honor.
Potter Stewart: The evidence with the trial, was it a jury trial?
Charles H. Levad: It was a jury trial.
Potter Stewart: The evidence of the trial starts on page -- that is excerpt, 53 of the appendix and goes from there on to 69 or longer. I am just trying to find the transcript of introduction of this evidence of the prior identification because that is really is critical, is not it?
Charles H. Levad: Yes, it is Your Honor.
Potter Stewart: Testimony as to this confrontation at the bail hearing, where did that -- that did come in at the trial, you told us?
Charles H. Levad: It did come in at the trial, yes Your Honor.
Potter Stewart: And somewhere in --
Charles H. Levad: It is -- part of it is on page 75 of the abstract where it indicates, record page 234, did you know at that -- at the time realm that he stepped out of that door that he was James Moore. Jesus I knew, he was the man that raped me and that --
Potter Stewart: I see.
Charles H. Levad: -- referring to that.
Potter Stewart: I see at that time he stepped out of that door that is not during the time of the rape, that is down in the courtroom?
Charles H. Levad: That is.
Potter Stewart: I see, I see, I see on this let me handle that.
Warren E. Burger: Mr. Levad, if as Mr. Justice Blackmun suggested to you, the question to the position of line on harmless error, which has not been treated by the other courts, reviewing courts, then is it harmless error because Moore's property was found in her room and the jury has resolved that issue, is that -- is there anything else beside that that would link him with the crime other than taking the identification out?
Charles H. Levad: The conviction does not stand alone on the identification, Your Honor.
Warren E. Burger: But you -- you do not suggest that the jury did not rely on the fact to some extent that his checkbook was found in the victim's room, do you?
Charles H. Levad: I suggest that that they -- they could have and probably did rely on that two equivalent step?
Warren E. Burger: If this is a harmless error case which none of the hearing courts said it was, is there any other evidence that it is harmless or better evidence than that? What else would you rely on to -- to make a harmless error case, if that is really what you have here?
Charles H. Levad: The only other evidence than the identification Your Honor is the letter to my -- to my recollection of the record.
Warren E. Burger: Well, the letter is part of the -- tied in with the checkbook, is it not?
Charles H. Levad: Yes it is. The letter apparently was inside the checkbook. Maybe I will clear that up a little bit. The letter was a letter that was written by the girl that testified, who testified that she had gone with the defendant and it was written to her doctor and was kept in that checkbook and the last time she saw it was two days prior to the -- to this incident on December 12th, 1967 and on that day she gave Mr. Moore the keys to her apartment to remove some of his possessions. The next time that letter showed up was in Miss Miller's apartment, right after the rape, on the floor, beside the bed.
Warren E. Burger: Well, if are leaning, if not rely on harmless error, is that not the most important factual element in this case, assuming you are in a position to raise harmless error now?
Charles H. Levad: Is the letter the most important factual element?
Warren E. Burger: And the checkbook?
Charles H. Levad: I think -- I think it is a very --
Byron R. White: Mr. Levad, I do not quite understand that. It seems to me that -- that the per se rule, the automatic exclusionary rule of Wade and Gilbert applies only to the testimony about the out of court identification?
Potter Stewart: Right.
Byron R. White: This certainly does not apply to the in-court identification?
Charles H. Levad: That is true.
Byron R. White: And the Court of Appeals here found that there is an independent basis and I take it that that is equivalent to finding no taint on the -- in connection with the in-court identification caused by the out of court. So as you are talking about the harmless error rule, unless we are going to review and overturn the Court of Appeals' decision that there was an independent basis, it leaves the in-court identification as -- as perhaps the most important piece of the evidence that -- that is advancing the petitioner to the crime and -- the only thing is going to be reversed is the -- if anything is going to be reversed, if is the only thing going to be reversed is the testimony about the out of court identification, it would leave a major part of your case?
Charles H. Levad: That is correct Your Honor. I -- I believe that that in-court identification is important to that determination --
Thurgood Marshall: Mr. Levad?
Charles H. Levad: Yes sir.
Thurgood Marshall: Excuse me, you may finish.
Charles H. Levad: -- is important to that determination and especially in view of the fact that that identification and that determination has been reviewed by three separate courts below. Yes, Mr. Justice Marshall.
Thurgood Marshall: On page 59 of the record, in middle of the case, “Did you know that when your name is called, the suspect you were to view would be brought out? Yes. So when Mr. Moore approached the bench, did you know that he was the the suspect, that you were to view? No, not until with name was called. And once his name was given did you know that was the suspect? Well, how could she picked him out in a lineup, if his name was not given?
Charles H. Levad: She picked him out of a line and she picked him out as he walked in the courtroom. As she testified --
Thurgood Marshall: She picked him out because of his name, not until his name was given and once his name was given, did you know, yes?
Charles H. Levad: She knew that it was the individual that had been charged in the case, but she also testified that that was not a fact of contributing to -- to her identification. She said when he walked through the door, I knew that was the man that raped me.
Thurgood Marshall: And how many other Negroes were in the room that day, the record shows there was one?
Charles H. Levad: At least one.
Thurgood Marshall: And one woman, but they was only neighbor man in the joint?
Charles H. Levad: That is correct Your Honor. I would ask the court to affirm the decision of the Seventh Circuit Court of Appeals. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.