Kirby v. Illinois – Oral Reargument – March 21, 1972

Media for Kirby v. Illinois

Audio Transcription for Oral Reargument – March 20, 1972 in Kirby v. Illinois
Audio Transcription for Oral Argument – November 11, 1971 in Kirby v. Illinois

Audio Transcription for Oral Reargument – March 21, 1972 in Kirby v. Illinois

Warren E. Burger:

We will resume arguments in Kirby against Illinois, you have eight minutes remaining.

Michael P. Seng:

Mr. Chief Justice, and if please the court, if it is satisfactory with the court, I would like to like to reserve the remainder of my time for response to the State of Illinois and the State of California.

Warren E. Burger:

Very well.

Mr. Zagel.

James B. Zagel:

Mr. Chief Justice, may it please the court.

We are here today to ask for the overruling of the United States versus Wade and Gilbert versus California, insofar as they established a right to counsel at lineups.

It should be made clear that we do not ask for the overruling of Stovall versus Denno.

Insofar as it established or affirmed a due process right of an accused to have a fair or non-suggested lineup.

We do not propose therefore that a person agreed by an unnecessarily suggested lineup should be deprived of law, state and Federal remittance.

With respect to the petitioner’s oral argument, there are at least four or five points that I would like to clarify, if I may briefly.

Petitioner in his oral argument has claimed that this particular case can be resolved on Stovall grounds, he assumes without any basis that we concede this.

In fact, point one of the certiorari petition directly raised the Stovall’s point and that point of the certiorari petition was not taken by this Court.

The Stovall issue was decided in the appellate court below.

It is available on habeas corpus.

If the petitioner should fail in this court but it is not available, I think, to be raised here and now.

In fact, if you look at the appendix, you will note that the motion is suppressed the trial.

The only issue abstract is the issue of denial of counsel.

The only testimony abstracted is the statements of Bean and Kerby that they were not advised the right to counsel.

The other point with respect to Stovall is that the witness Shard was not told of the fact that traveler’s checks had been recovered from Bean and Kerby.

The Appendix page 27 makes it quite clear.

It is also quite clear from the record of Appendix 31 and 36 that the identification by Shard was instantaneous and that at the time, Shard was brought to the police station, he was accompanied by an officer who knew nothing of the facts of the case, had not seen the suspects and did not know who was suspect.

The last point that I want to make generally with respect to petitioner’s argument on the eyewitness identification generally is, the petitioners argue that the eyewitness identification, the testimony in court is perhaps the most potent of all evidence.

They said, at least there is some element of irony in that argument when this case was initially argued, was argued on November 11th and it was immediately preceded by argument in another Illinois case, Lega versus Tumi (ph), which involved the burden of proof volunteering this little confession.

I can clearly recall, petitioner’s counsel in that case pointing out that confessions were by far the most potent evidence far off distancing eyewitness identification and therefore subject to increasing safeguards.

In fact, petitioner’s argument that the trial identification is so crucial and so inherently suggestive, is essentially an argument that there’s a constitutional right that would lineup in the court room.

It has nothing to do with the constitutional right to have a counsel at a pre-trial confrontation.

Petitioner also assumes, and I really assume as perhaps too weak a word I would say, (Inaudible) for a supposed concession by the respondent that the arrest in this case was illegal.

Again, I want to point out that this issue, the legality of the arrest was raised again at Point 3 of the certiorari petition, that was not taken by this Court.

I would also point that there seems to be a fundamental misconception in petitioner’s reasoning with respect to this issue and that is, he assumes that as soon as we say that a confrontation was investigatory in nature that represents a concession that probable clause did not exist.

Now, this dichotomy that as soon as probable clause exists, investigation must stop or procedures can no longer be classified as investigative in nature.

James B. Zagel:

That was raised once before and explicitly rejected by this court in Hoffa versus United States, 385 U.S., Page 309-310, in which the court clearly held that there was no duty to call a halt to investigation.

The moment that the police have probable cause, a quantum of evidence which may fall far short of that necessary to convict.

Finally as one clarifying, and the ast clarifying point with respect to the reversal of the conviction of the code offended Bean, the reason that there was an absolute reversal in that case was because since the arrest of Bean was thought to be illegal and it should be clear that Bean was not in possession of Shard’s traveler’s checks and did not give the patently false and contradictory explanations of how he came into possession of those traveler’s checks.

Since, Bean’s arrest being substantially different from Kirby’s, since that arrest was declared illegal, not only was the resulting identification suppressed by the appellate court but so too was that evidence of Shard’s cards and identification materials which was found on Bean’s purse subsequent to the arrest.

In effect, all of the evidence, both physical evidence and identification evidence, was suppressed in Bean’s case and that is substantially different from the case before the court.

That seems to me that petitioner seeks to avoid the issue in this case which is whether the admission of evidence of the pre-trial confrontation without counsel violated the per se Exclusion Rule of Wade Gilbert, indeed his oral argument thus far has been devoid of any defense of the Wade-Gilbert doctrine.

I am concerned with the right to counsel at lineups, the Wade-Gilbert doctrine is too prong.

First we think that the theoretical underpinning is unsound.

Wade and Gilbert had, that a lineup a critical stage requiring counsel because the presence of counsel might serve to enhance the reliability of the lineup procedure.

The concept of counsel as a surety for reliable investigation of crime represented a shift in the critical stage rational previously used by this Court.

This reliable investigation theory, I think carries too far, if it is applied seriously, it would require the presence of counsel at every stage of an investigation.

In our brief we discussed several common instances in which the courts have routinely refused to apply, right to counsel, among these are non-custodial confrontations, viewing of photographs of suspects, confrontations occurring shortly after the crime.

It seems to me that counsel can be as useful in these cases as it can that the lineups involved in Wade and Gilbert, in one area of particular interest, that to which, I think, the amicus curiae will also go is that of the argument that counsel ought to be present when the police interview eyewitnesses.

Frankly, if Wade and Gilbert’s premises are accepted it seems to me a persuasive argument because that is the time when police presumably can engage and suggest the practices which were definitely a concern of instant need, the lineup cases.

That is the time when suggestions and other evidence can be planted in the witnesses’ mind and indeed one court, the California Court, the Supreme Court has decided that in fact, counsel has to be present at interviews of eyewitnesses.

Now, I think that under Wade’s rationale, the right to counsel probably could be extended to grand jury proceedings and even frankly to scientific tests.

Now, it is true, for example, that in Wade and Gilbert, scientific testing was accepted.

The court said, we are not going to insist on the right to counsel to be present when scientific testing of the evidence goes on.

But the fact of the matter is, the court against the concern in the lineup cases with deliberate suggestion on the part of the police, a deliberate suggestion that amounts to tampering with evidence and that possibility exists in scientific testing as well.

Now, we have made this argument, frankly.

Our core that the rationale, at great length in our brief and I have no wish to deliver it here since we would not ask this Court to overrule the decision merely because its rationale seems unpersuasive.

Our principal objection, is that promulgating a right to counsel at lineups, is singularly inappropriate as the solution to lineup problems.

So as far as we have been able to discovering the reported decisions, the purpose of counsel at a lineup is to act as a witness, and by his presence to deter unfairness.

The problems with his functioning, in this manner are manifest.

But the one point that I ought to make clear is, it’s seem to me obvious, that no other function can be served by counsel at a lineup other than that of witness.

He cannot of course be placed in-charge of the lineup, under the decisions in Wade and Gilbert, he cannot prevent the line up and that this incidentally is a significant difference between lineup problems and those involving interrogation where defense counsel can effectively prevent the police from interrogation.

He cannot prevent the lineup.

His sole purpose is, that as a witness indeed, I doubt that interest of counsel is such that he would want to promote a fair lineup.

It seems to me that the purpose of counsel, is to secure a lineup that is unfair, as unfair as possible, in favor of his own client.

His suggestions that he gives to the police, need not be accepted.

James B. Zagel:

The police of course can, I think have just concerns to whether counsel is interested in fairness, or interested in protecting his client, and I think a reasonable police officer could conclude that the primary purpose of counsel suggestions is not to secure fairness, but to secure some advantage for his client.

And of course, counsel is in a terribly difficult tactical position.

If his client is guilty, and I think it can be fairly stated that this is the case in most situations, he will be slow to attempt to if he sees for example, deficiencies in the line up.

He is going to be slow to attempt to clean this up.

I don’t think counsel wants to validate the police lineup that maybe his only point, his only legal recourse to try.

And so far as we are aware there is no contemporaneous objection with respect to what counsel has to do with lineup.

We know of no court that has required counsel, police present at the lineup to make objections to the lineup, at the time of the lineup, or forever waive his objections.

It seems to me that the law is clear that even if counsel is at the lineup, he can raise objections to its fairness at trial.

So it is really very much, not in the interest of counsel to make objections, to make suggestions.

First of all, or rather next with respect to its effectiveness as a witnesses, it was thought I think in the opinion that counsel would be particularly effective and his client would not be particularly effective as a witness.

I think perhaps, it is a somewhat of a misjudgment.

I do not think that counsel for a party will be regarded by a jury, or by a court as essentially more neutral, than his client.

He is not necessarily an expert in lineup procedure, in what is fair and what is not fair in a lineup.

Since all he does, his witness to lineup itself, he will not have the occasion for example, to witness outside influence.

He will not for example, if he want to assume a horrible case, counsel may be present at the lineup, as the police lead the witness in.

The policeman might say before the witness where he gets into the lineup room.

That the man we think did it, or the man on whom stolen property was found, is the man standing second from the left.

Now, counsel will not witness that, and that kind of suggestion can be brought out only in cross examination.

And I assume that cross examination will be effective indeed, it was not difficult for counsel in Wade, or counsel in Gilbert, or counsel in Stovall, to recreate the circumstances of the lineup.

Even though counsel in none of those cases was present at lineup.

Warren E. Burger:

Is that the practice in Illinois in or is it required to take photographs of lineups?

James B. Zagel:

It is not required in Illinois to take photographs of lineups.

It is a practice of varying prevalence.

There are photographs of some lineups, there are not photographs of others.

I have never been able to determine a live photographs taken in particular cases or not in others.

It’s been my experience in the lineups where at a central police headquarters or when lineups were conducted in a more deliberate fashion, that photographs have been taken.

I would be extremely surprised if a routine station has line up led to a photograph.

Although, I understand that there were some regulations under consideration.

I really cannot speak with authority and there are not a large number of cases involving photographs of lineups in Illinois.

It is our contention of course that —

Thurgood Marshall:

Mr. Zagel, it wasn’t lineup in this case.

James B. Zagel:

No, it was not a lineup, it was a show up.

And I again reiterate in this case, particularly as an illustration that a counsel for Kirby seemed to have no difficulty in reconstructing the circumstances of this particular show up.

Thurgood Marshall:

But, if he had been there, he might have asked a very simple question, are these two men under arrest or not, if so for what?

James B. Zagel:

Well, I don’t think that, that would have had any bearing whatsoever in the lineup.

Thurgood Marshall:

But they could have asked it, couldn’t they?

James B. Zagel:

I am certain he could have, I am certain he could have, I don’t know —

Thurgood Marshall:

They could have said, he hasn’t got any charge, they try him loose and then get a writ, didn’t he?

James B. Zagel:

He probably could have said that, but I very much doubt that that would have been affected but this is a case in which the police could have arrested in fact, I think probably did arrest and probably could have charged.

Thurgood Marshall:

But you think, could have in all, I mean we would at least have had that question settled.

I don’t know yet whether they were under arrest or not.

James B. Zagel:

I think it’s clear that they were under arrest, they had not been formally charged.

Thurgood Marshall:

Alright, an investigatory arrest.

James B. Zagel:

I think that they were properly arrested under Illinois law exercising unauthorized control of the property.

Thurgood Marshall:

But I thought you said it was an investigatory?

James B. Zagel:

I might, I think it is my contention that investigation and investigatory steps are not inconsistent with the post-arrest precedence.

In this case, you had a valid arrest for exercising unauthorized control over the property of another.

You had an investigatory proceeding with respect to whether they should be charged with robbery.

Thurgood Marshall:

Were they booked?

James B. Zagel:

I don’t know, it’s not clear in the record.

Thurgood Marshall:

I mean those are the problems I would be interested.

James B. Zagel:

Well, I would suggest that those problems and I don’t mean to minimize, are not particularly relevant to the issues before the court.

I think they have nothing to do with — now the question of the lineup and of counsel’s role at the lineup and I think they also again that they will not take advice for.

Thurgood Marshall:

Two police can just pick two men up and take them in, and hold them without any — I hate to use the word ceremony.

James B. Zagel:

I think that, I would not contend that that is the case, that police can do that but I would say that, that is not the case here.

Warren E. Burger:

In point of time Mr. Zagel, when did the police telephone Shard and find that traveler’s checks and credit cards had been stolen from him?

James B. Zagel:

I think they brought the petitioner back to the police station, I don’t know if they called Shard, they might have just gone through, there is a way you can call the central files and find out if a crime has been reported, the traveler’s checks had been stolen and that is what they did in this case I think.

Warren E. Burger:

Well, at that time, would you say that they had a basis for arrest and custody for the possession of recently stolen property?

James B. Zagel:

Yes, I think that they —

I think what they had at that time was the basis for arresting for what an Illinois is called exercising and unauthorized control over the property.

James B. Zagel:

Well, now that the reason they had that the basis was because they had, in this case, in somewhat unusual clearly identifiable property.

It had an owner whose name was Willie Shard and he was in the possession of a man named Kirby and the man named Kirby had given two conflicting explanations as to how he had come in to possession of the property.

I tend to think that might possibly be sufficient evidence to convict for exercising unauthorized control over the property over in Illinois.

Thurgood Marshall:

I thought petitioner agreed that it wasn’t too long a time, from the time he was picked up until the time he was —

James B. Zagel:

Oh no, it wasn’t a very long time, at least perhaps and I think maybe an hour or two before they knew that the property had been stolen from Shard but of course, they still didn’t know that this man had committed the robbery.

Even so they would still only have the basis to believe that they were exercising unauthorized control over the property of (Inaudible).

Byron R. White:

So far Mr. Zagel, you’ve indicated that in your view the Wade- Gilbert rule isn’t very effective to solve the problem at which it was aimed but is having counsel lineup harmful to defendants or not?

James B. Zagel:

Well, I think it is.

If all it were, were ineffective I suppose it could survive.

There are two problems that I have, two general areas of concern.

The first is of course, it does present a severe strain on legal resources, if you pick counsel for this you could deprive other people of these legal resources that maybe the minor point.

The more significant one is that the study in the District of Columbia which was done by Professor Reid in the UCLA Law Review, indicated that there were incidents of intimidation of witnesses, there were incidents of deliberate altering of the suspect’s appearance.

Once counsel had entered the case, and more significantly, if counsel for example, does attend the lineup, that is perfectly fair.

He is going to be in a very difficult position of being subject to being called as a witness, and not on his own behalf or not on his client’s behalf but on behalf of the prosecution.

What he sees that the lineup is not privileged, fairly strong line of cases which are cited in our brief on that point.

Byron R. White:

Well, do you have any information about what impact Wade and Gilbert had in Illinois on police practices, identification practices, maybe true that the counsel has a limited role of the lineup but he is there and have the cases had an impact on the lineup practices?

Are there fewer show ups, are there more?

What you would call fair lineups or fewer what somebody might claim or unfair lineups or what?

James B. Zagel:

There is no evidence on that.

There are two things I can say and that the first is that since the Illinois Supreme Court has given a relatively narrow interpretation for the applicability of Wade and Gilbert that is to say is to find the post indictment, the confrontations.

I doubt that there ever would be any great evidences to their particular effect.

Byron R. White:

Are you taking that alternative ground that in any event it isn’t applicable to pre-indictment lineups?

James B. Zagel:

That ground is argued, they are fully in our brief.

Byron R. White:

And you stand on it.

James B. Zagel:

And we stand on that as well.

Stand on that as well.

It is I think a very interesting example of what happens when counsel do attempt or the bar attempts to fulfill the mandate of Wade and Gilbert, is illustrated of course in Professor Reid’s article in which at least from his interviews with defense counsel, we found that they felt kind of impotent and useless at the lineups.

I think what’s even more significant is that the kind of an odd case, United States versus Randolph which is cited in our brief, which a legal aid attorney was called to testify on his client’s behalf, and he was the man who was assigned to the police station to be present at the time that these lineups occured.

And not only could he not remember the circumstances of the lineup, he had to go back to his notes to determine whether he had represented Randolph and return the next day and said that he’d represented Randolph and then testified essentially from his notes.

I think that that would be the general experience in any jurisdiction which is attempted to comply with Wade and Gilbert.

William J. Brennan, Jr.:

And that probably would have been a pre-indictment lineup.

James B. Zagel:

That was a pre-indictment lineup.

William J. Brennan, Jr.:

Because after indictment, an individual defendant would presumably have a lawyer.

James B. Zagel:

Yes, after indictment, defendant, now today, I suppose after preliminary hearing, a defendant would have an individual lawyer, one of the significant differences between the ordinary case such as this one and the post indictment or post preliminary hearing lineup.

So usually at that stage, the later stage, you have counsel who has some idea of what the case is about.

William O. Douglas:

As I remember the Sixth Amendment provides for counsel at all criminal prosecutions.

Is that right?

James B. Zagel:

Yes.

William O. Douglas:

How can you say that post-indictment lineups are not a part of criminal prosecution?

James B. Zagel:

I understand criminal prosecution to main proceedings in the Court.

That is my understanding from the prosecution.

William O. Douglas:

The Court has never so held.

Has it?

James B. Zagel:

I think that that has been a clear implication and besides if that rationale were to be extended further, or were to be accepted, I think that you would be in the position of having a right to have counsel.

For example, when the prosecutor interviews witnesses.

William O. Douglas:

Well, we have to have but counsel before the trial -– so the counsel can be prepared.

James B. Zagel:

I understand that, but there is still, even in the ordinary context of the criminal trial, there are large number of instances in which steps are taken towards successful prosecution of which defense counsel was not present.

Fingerprint comparisons are made, the witnesses are interviewed by prosecutors, evidence is sometimes discovered long after indictment.

In none of these cases is defense counsel customarily present nor has this Court ever held that he has to be present.

William O. Douglas:

But it marks an important phase of the prosecution we have.

Haven’t we?

James B. Zagel:

I don’t —

I can not imagine, for example, any —

William O. Douglas:

Arraignments?

James B. Zagel:

Yes.

William O. Douglas:

Wade and Gilbert are in that category?

James B. Zagel:

Yes, but I think that Wade and Gilbert were wrongly decided as far as arraignments are concerned.

I have no —

William O. Douglas:

I don’t know why you’re worried about Wade and Gilbert here because this is all pre-indictment.

James B. Zagel:

Well, I was merely being responsive to your questions Mr. Justice Douglas, as to what criminal prosecution meant after indictment.

William O. Douglas:

Yes, but I don’t see in this case why you’re worried —

why you’re bothered with Wade and Gilbert.

James B. Zagel:

Well I think that Wade and Gilbert in particular is a —

if anything a barrier toward effective improvement in the process of criminal justice.

I tend to think that what Wade and Gilbert did and the thing that it particularly concerns me, is the right to counsel in Wade and Gilbert and the right to counsel in lineup seems to me more of the total than an effective remedy.

It’s a way of saying, well these are difficult problems and instead of attempting to regulate the process we’ll appoint counsel and he’ll regulate.

I don’t think that —

William O. Douglas:

Where a criminal prosecution has not even started.

I don’t see how you would get into the problems of the Sixth Amendment.

James B. Zagel:

Well, I tend to think that that is what underlay the basis of the Illinois Supreme Court’s holding, which limited Wade and Gilbert post-indictment lineups and should that limitation be adopted that will decide this case.

Thurgood Marshall:

Court upholds your position without overruling Wade and Gilbert?

James B. Zagel:

This Court could, this Court could.

Thurgood Marshall:

But why do we have to get to it?

James B. Zagel:

You do not have to get to it.

Byron R. White:

Well, if a majority of the Court felt that Wade and Gilbert applied to pre-indictment lineups, then we do have to reach your position of Wade and Gilbert.

Should we reconsider?

James B. Zagel:

Yes you would.

Byron R. White:

Not otherwise?

James B. Zagel:

Not otherwise.

If the pre-indictment, post-indictment distinction in the Illinois Supreme Court were considered correct then Wade and Gilbert would not have to be reached in this case.

It was considered incorrect and it would have to be reached.

The net effect, I think, of forcing counsel into a role as a witness, or impartial arbiter, the fairness of the lineup is essentially to put counsel into a position that he cannot successfully within the canons of ethics sustain.

He’s no more qualified in the Court to solve these problems and to solve them, he has to depart from the accepted roles of a counsel.

Now the one final minor point that I would like to raise and that is that it might be contended and replied that the State of Illinois could have solved these problems by providing for administrative procedures to regulate lineups in accordance with the opinion in Wade.

I point out that that opinion and the language is contained in the majority of opinions was expressly disavowed by four of the six justices who joined in the opinion, that it is hardly reasonable to expect the states to rely and tell the police department yes adopt administrative regulations, deny a man the right to counsel and then wait two or three years to determine whether what has been done is constitutional or not.

The one existing case in which there was attempted is a California case, People versus Fowler, in which California police department attempted to adopt regulations and the California Supreme Court said that, yes administrative regulations might render lineups, non-critical, but only when such regulations were of such a nature to ensure that a lineup would be as accurate as ballistics or fingerprint identification.

Under that standard, I doubt that anybody could ever draft the administrative regulations sufficient to make the lineup a non-critical stage.

We ask that Wade and Gilbert be overruled, and we ask that the judgment hearing be affirmed.

Warren E. Burger:

Mr. George.

Ronald M. George:

Mr. Chief Justice and may it please the court.

Ronald M. George:

California co- heartedly supports the State of Illinois and its contentions in this case that the rules established by the Wade and Gilbert decision should be reconsidered and that if not reconsidered, these decisions should at least be limited to the pre-indictment, rather post-indictment, post-information stage, such as was involved in the Wade and Gilbert cases themselves.

Now, the California Supreme Court in People v. Fowler did in fact extend the Wade-Gilbert rules to the pre-indictment, pre-information stage.

Great many states have done so and that is why we have a particularly acute interest in urging that Wade and Gilbert be reconsidered.

Now, rather than reiterate all of the arguments so forcefully made by the State of Illinois, we are going to undertake to support these arguments by references to various decisions of the California Supreme Court which illustrate the problems inherent in the application of the Wade and Gilbert rules to the post-indictment or pre-indictment stage.

Citations to these California cases are given in our amicus curiae brief and at the outset we want to make it clear too that we do not in any way question or urge any reconsideration of the Stovall decision which affords basic Due Process protection for a defendant regardless of the time of lineup.

California in fact has its own decisions establishing those very same safeguards.

William O. Douglas:

Well Stovall, isn’t it within the scope of granted certiorari?

Ronald M. George:

It’s my understanding that Stovall was raised in the petition for writ of certiorari and was not and cert was not granted or issue.

But we want to make it clear, the limited nature of our attack on existing law.

In People v. Fowler case, as previously indicated, the California Supreme Court did extend the Wade- Gilbert rule at pre-indictment and pre-information stage and did so despite the following circumstances.

The defendant had surrendered himself to the police upon learning of an outstanding warrant for his arrest.

The lineup took place on the same day as the arrest.

It wasn’t a situation such as Wade and Gilbert where you have lineup maybe 12 or 15 days after appointment of counsel.

The defendant had been asked prior to the lineup whether or not he had an attorney.

Although he was not told that he could have an attorney appointed.

The lineup was fair.

There is no question of that all of the persons in the lineup were male Negroes of approximately the same age and height and there was also identification by voice.

But perhaps also significantly the lineup was conducted in complete compliance with a six page set of regulations developed by the Oakland Police Department to ensure fair lineups.

That six page set of regulations is set forth as one of the appendices to the UCLA Law Review article which we cite and which respondent, State of Illinois cites.

Potter Stewart:

Had there been any arraignment or preliminary hearing of any kind in the Weaver case?

Ronald M. George:

No.

In the Fowler case, no.

Potter Stewart:

In the Fowler case.

Ronald M. George:

No.

Potter Stewart:

No, he had not appeared before a magistrate, no.

Ronald M. George:

No, no.

Nothing at all.

The Court there plainly rejected Mr. Justice Brennan’s suggestion in Wade that certain regulations could ensure a fair lineup that there was no constitutional straitjacket, that this was just a method of implementing the constitutional rights of the defendant.

They said in effect that the only thing that would substitute would be something such as a video tape, that would be a complete reproduction of the lineup.

Now in People versus Martin, the Wade-Gilbert rules were extended by the California Supreme Court to the pre-arrest stage, and it was a voluntary pre-arrest show up.

Ronald M. George:

The defendant was stopped and voluntarily accompanied the police to the station for the expressed purpose of a viewing by the robbery victim.

And there the victim viewed the defendant alone with an officer through a one way mirror, made an identification, and then after that the defendant was arrested and despite that Wade, Gilbert was held to apply.

Potter Stewart:

Well that doesn’t sound — that sounds more like a Stovall situation as you describe it.

Not a lineup, but a show up.

Ronald M. George:

Well yes but there the rules were applied as far as the right to counsel rather than an mere attack on unfairness.

The Court held that there was a need of advice and waiver of counsel.

And in regard to that problem of waiver there are some interesting decisions from the California Supreme Court which to me do not appear entirely consistent, in People versus Banks —

Warren E. Burger:

Mr. George, can I interrupt you?

Ronald M. George:

Certainly.

Warren E. Burger:

In Marion and Fowler, the Supreme Court of California decision were those grounded on the Federal constitutional principles?

Ronald M. George:

Yes, all of the decisions that I called at the Court’s attention are grounded squarely on the Sixth Amendment.

Warren E. Burger:

(Inaudible) California, unanimous in those cases?

Ronald M. George:

No it was not.

Most of these decisions were divided decisions, but as not always closely divided, but I don’t think any of them were unanimous.

In this problem of waiver we have the Banks, People versus Banks decision where the California Supreme Court held that an effective waiver of Miranda rights upon interrogation did not waive the right to counsel at a lineup that was conducted the same day.

Even though at that line up, the defendant was asked, was told that he had the right to meet an attorney, but he wasn’t given a full Miranda type warning at that lineup, the same day.

He wasn’t told that an attorney would be appointed at the lineup, but he was given the Miranda warning earlier, and told that he had the right to attorney at the lineup but that wasn’t sufficient.

And yet in People versus Tribble the California Supreme Court held that in order for a waiver to be effective, the defendant need not be informed that the purpose of the lineup is possible identification by the victim, but utmost troubling at all —

Warren E. Burger:

Did the court suggest any hypothesis as to what other purpose of the lineup suppose would be fought?

Ronald M. George:

No, it did not suggest, we weren’t favored with any sort of guidance from the Court on that.

In fact that’s the most striking thing in Fowler opinion and some of these other decisions that the Court explicitly states there is so many troubling and vague areas under Wade and Gilbert, but it is for some future time for us to know what to do, and they don’t give you any guidelines that’s the problem.

I think that’s symptomatic that a lot of the uncertainty which Wade and Gilbert have caused upon the lower courts, and this is upon the California Supreme Court one can imagine it upon the trial court level, a fortiori.

But most troubling of all is this problem of the role of an effective attorney at the lineup, and as Mr. Zagel indicated this People versus Williams case is a graphic illustration.

There the attorney did take the stand, and testify that the lineup was arranged fairly and with no suggestiveness as to the identity of the suspect.

However the attorney wanted to accompany the police officers into the interrogation room at which time the witnesses to the crime would be further interrogated as to identification, and the defendant was not to be present at that confrontation.

But the California Supreme Court, said that not withstanding the submittedly fair lineup, the police failure to allow the attorney into the interrogation room required reversal of the judgment because of right to counsel being denied.

Warren E. Burger:

Which of the cases was that?

Ronald M. George:

People versus Williams that is fully cited in our —

Potter Stewart:

Now did they rely on the Wade and Gilbert for the holding?

Ronald M. George:

Yes, they did.

Byron R. White:

You mean after the counsel wasn’t allowed in to listen to what the witnesses said after they looked at the lineup?

Ronald M. George:

That’s right, the attorney saw the lineup which he testified was completely fair and then the witnesses were taken into a room, and were to be questioned by the officer about various things including the identification of the suspect.

And the attorney felt that he has the right to be in their and that was the basis for the reversal of the judgment in fact that with request was denied.

Thurgood Marshall:

Do you think Wade and Gilbert says that?

Ronald M. George:

Well, I think Wade and Gilbert says that he has a right to go in there.

I certainly would argue that it doesn’t but the point is that the decisions frankly provide so little guidance that courts are free to reach.

Thurgood Marshall:

But suppose we say that Wade-Gilbert doesn’t involve the right of the man, we go in interrogation would you be satisfied?

Ronald M. George:

I would be pleased, or I wouldn’t be satisfied, I think —

Thurgood Marshall:

You wouldn’t be satisfied unless Wade and Gilbert is overruled in a case which doesn’t involve the lineup.

Ronald M. George:

Well I think that this is an appropriate time for the Court to —

Thurgood Marshall:

But this case doesn’t involve the lineup.

Ronald M. George:

But if Wade and Gilbert don’t apply to the pre-indictment or post-indictment level, then of course it —

Thurgood Marshall:

But this isn’t a lineup case?

Ronald M. George:

Well they show up though, there have been instances where Wade and Gilbert are applied by lower courts to show up.

It doesn’t have to be five men in a row apparently for the lower courts to feel that Wade and Gilbert must be invoked, and I don’t think those decisions expressively limit themselves to any particular format of lineup or show up or other identification.

And what I think is so important to ask is what would the presence of the attorney due to ensured fairness of the trial that would not be accomplished by effective cross examination of the witnesses of trial.

You can imagine the next extension of this Williams rationale to have the attorney in the squad room, in the squad car, or at the on the scene confrontation hindering possible police investigation.

Byron R. White:

Mr. George in Williams, had they prosecuting witness made some statement as to identification at the time of the lineup and then the further statements were to be taken afterwards?

Ronald M. George:

I believe there was no such identification.

In fact most of the commentators who suggest rules of fairness suggest that the witness not make an identification in the presence of other witnesses and that this be left later.

So I think that what’s so important here is to realize the vast difference between the function of counsel at a lineup, and its function at an interrogation.

In a Miranda situation at least, the attorney can do something effective with respect to the defendant’s rights.

He can tell him be quite, we have a privilege against self-incrimination.

He can’t do anything of that sort at a lineup because as Schmerber and Wade teach us, there is no right to withhold oneself from display for identification purposes.

And that were not to be sold and indeed, one would have to think that counsel would have to be present at a blood test, at all sorts of various pre-identification procedures.

Now counsel has no right to assume the role of a stage director, and casting the parts to be played or the stances to be assumed, or the phrases to be uttered in this lineup production.

He can’t stop the conduct of an unfair lineup, all he can do is be an observer and a very poor witness, a contrary to professional ethics which indicate he should not be a witness for his plan.

Warren E. Burger:

But it wouldn’t violate professional ethics as he retired from the case, would it?

Ronald M. George:

No, but of course this would cause great complication, what if it’s a post-indictment client, he is representing his client who really have to higher somebody else to be there.

It certainly is a cumbersome method, I think without any great advantage to the defendant and in Williams, the attorney did have to take the stand.

Ronald M. George:

As Mr. Zagel indicated what can counsel do to effectively serve the purpose of obtaining its client’s acquittal, and by preventing identification he can urge the defendant to alter his physical appearance, the UCLA Article there indicates instances in which a mustache was shaved off, the hair was cut, voice was disguised.

He can do these things which are suggestive as far as other person is in the lineup and which may in fact be unfair to the other persons by representing his client and he can intimidate other witnesses who have appeared to identify the defendant.

And this of course uses up a lot of time and energies of the police having the attorney there without really doing anything for the defendant.

Now what I would like to indicate to is we’ve talked about the effect of the Wade and Gilbert rules on guilty suspects but let’s consider what is the effect on innocent suspects.

The innocent suspect in particular has a common non-adversary interest with the police.

He wants to have an expeditiously conducted lineup which may bring about his release from custody.

If somebody has to delay a lineup like here it was one or two hours after the arrest.

Well, where are they going to get a lawyer?

So to mean that perhaps the innocence suspect is kept in custody for another day or two while they hunt around for a lawyer and then it’s released when he is not identified.

Potter Stewart:

Mr. George what procedures have the police in the law enforcement facilities in California worked out in response to these Supreme Court of California decisions, first in response to, primarily in response to the holding that Wade and Gilbert are applicable to pre-indictment situation.

Do they have this legal aid lawyers on duty all the time at the station, or what do they do?

Ronald M. George:

Well, there is some movement in Los Angles to have public defenders available on call but this is the thing that varies very much from city to city.

There isn’t any statewide policy.

In fact, I don’t think you could have a statewide policy.

It’s matter of each jurisdiction.

Potter Stewart:

Well, it varies and what are some of the devices that have been with them?

How —

Ronald M. George:

They had some attorneys who will show up at the lineup and see that perhaps certain procedures are called and if they are not then take the witness stand but they can —

Potter Stewart:

No lawyer has been appointed to represent anybody in that lineup so far?

You’re just a lawyer operating at large so to speak.

Ronald M. George:

Yes, that’s my understanding that they are sort of as an observer which points out of course the curious role of counsel, a very uncustomary —

Potter Stewart:

I suppose as they are representing all 12 people in the lineup if there are 12 of them.

Ronald M. George:

Yes, he would in that sense I don’t —

I haven’t heard of them since where they will send somebody to represent each person.

Potter Stewart:

No, one lawyer, one — the practice is to not have more than one lawyer.

Ronald M. George:

That’s been my understanding but I don’t want to —

Potter Stewart:

But how many people are on the lineup?

Ronald M. George:

That’s been my understanding but I just have this on what I have been told.

Potter Stewart:

And presumably, just inherently the people in the lineup would have adversary interest to each other.

Ronald M. George:

Yes.

Potter Stewart:

Assuming.

Ronald M. George:

Certainly and one can imagine if the Court remembers the line up in Gilbert case where there was an auditorium formed.

There was a parade after parade, if there had to be one attorney for every man put on the stagethere, it would be mammoth production indeed which would drain the resources of the county bar in the public defender’s office.

The way you described that one situation, the counsel would be quasi-magistrate, would he not?

Yes, in effect he would.

He wouldn’t be performing as traditional task of representing one client that he’d be trying to perhaps evaluate the competing interest of the various persons under suspicion at that time.

While all of this is being arranged of course counsel, the counsel is there, this is being obtained, the guilty suspect might be putting more time and distance between himself and the police when they think that they have a probable suspect.

Thurgood Marshall:

I have one little problem, you keep saying it’s not the usual duty of the lawyer.

What about paid lawyers, aren’t they there?

Ronald M. George:

Paid lawyers?

Thurgood Marshall:

Yeah.

Ronald M. George:

Well,paid lawyers might be there but —

Thurgood Marshall:

You don’t mean that it’s never done.

Ronald M. George:

No, there are paid lawyers but I think in this situation you so often have the man who does not have an attorney.

Thurgood Marshall:

And your point would be that the paid lawyer couldn’t do any more than the public defender.

Ronald M. George:

No, nobody could do very much I think.

Thurgood Marshall:

That’s right though.

Ronald M. George:

And certainly this isn’t the type of thing, few people find it easy to employ an attorney for their trial as it is, if you have to hire your attorney to sit around at a big show up all day, there are going to be more people who meet the standards of indigency I think.

Warren E. Burger:

Your time is consuming counsel.

Ronald M. George:

May I have an extra minute or two to wrap up in detail.

Warren E. Burger:

Well, we will give you two minutes and enlarge your friend’s time the same amount.

Ronald M. George:

Thank you.

Now, I would like to indicate too that what can an attorney’s presence accomplish that could not be accomplished well or better by cross examination in conjunction with a photograph, perhaps with a tape recording or video tape of the whole processes.

Then in People versus Lawrence, the California Supreme Court did uphold the showing of a photograph of a lineup to the victim in the absence of counsel even though the defendant had previously retained counsel.

On the theory that had the police cut out the faces from this photograph of the line up that these mug shots could have been used.

But that here there was no confrontation between the suspect directly and his accuser.

So this shows some of the conflicts because if confrontation is really the basic issue then why did the court in Williams say that the attorney had the right to go into the squad room when the defendant wasn’t even there with the witness.

Now, basically if petitioner Kirby had the right to have appointed counsel at the show up in a couple of hours after his arrest.

I think trial courts and appellate courts in the states would be very hard pressed to decide to draw any recent distinction as to when counsel can be had when if it can not be had at beyond the scene confrontation or whatever.

Well, perhaps attractive on a purely theoretical level, the rules requiring counsel at identification confrontations have presented these numerous practical difficulties in their application.

Ronald M. George:

Difficulties which were perhaps unforeseeable at the time Wade and Gilbert came down.

In light of the present experience, we submit that this Court should overrule its experiment of four years the Wade and Gilbert rules.

You have to ask in the end, what could counsel have done for Kirby?

What difference would there have been?

I think when you ask those questions it’s clear that counsel accomplished nothing.

So we urge the overruling of Wade and Gilbert on those grounds.

Warren E. Burger:

Thank you Mr. George.

Mr. Solovy.

Jerold S. Solovy:

Mr. Chief Justice, may it please the court.

Mr George makes the argument that if there were counsel present the four innocent suspect would have to stay in custody for an extra few hours.

Now bear in mind that in this case Mr. Kirby received a sentence of 5 to 12 years.

So that when you weigh that as against a possible delay of an hour in order to obtain counsel, that is hardly a prejudice.

Further in this case Mr. Kirby and Mr. Bean were in custody for a period of several hours while they waited for the arrival of Mr. Shard.

So that there were no compelling circumstances in this case where the state —

Warren E. Burger:

Would you think that at the time police learned that the travelers checks and credit cards of the two confining witness had been stolen and were in the possession of these two men that they had probable cause to arrest them?

Jerold S. Solovy:

Mr. Chief Justice, I think that I am very confused as to why these people were arrested in the first place.

I think that when they got —

Warren E. Burger:

When they got into the police station —

Jerold S. Solovy:

Once they got to the police station, they found that these checks were stolen, they did have probable cause in my judgment clearly.

That is why at that stage they had probable cause to arrest them, they had probable cause to charge you and they did charge you.

That is why for State of Illinois to argue to this Court that this was in the investigatory stage is preposterous, this stage because I had the probable cause was in a critical stage.

As Justice Brennan said in his decision the prosecution had focused on these two defendants and at their juncture they were —

Warren E. Burger:

Prosecution, you mean the investigation?

Jerold S. Solovy:

I do not mean the investigation Mr. Chief Justice.

I mean the prosecution because they had probable cause to arrest him.

They had probable cause to believe that they had committed a crime.

Therefore, it was no longer investigatory, it was accusatory.

They were bringing Mr. Shard in to nail down their case.

Warren E. Burger:

What about the policemen out on the beach when he found these travelers checks in the name of another person and got conflicting answers as to how they happened to be in possession.

Do you say that that was not reasonable grounds on which to think that the crime had been committed?

Jerold S. Solovy:

I think —

Warren E. Burger:

That perhaps he had committed it.

Jerold S. Solovy:

I think he had reasonable grounds.

If you believe the police for this case, he had reasonable grounds to arrest Mr. Kirby because he thought he was Alfanso Hemptom(ph) wanted not for confidence gain.

So if you believe that he had reasonable grounds to arrest him, he also had reasonable grounds to arrest them.

As the Illinois Appellate court found because of the conflicting stories.

Therefore, when he got to the police station and found that in fact a robbery had been committed, this case is fully covered by Wade and Gilbert because the focus of the police had shifted from an investigatory to accusatory.

This was now in the critical stage and this whole trial was going to be determined not in the courtroom but when Mr. Shard was brought into the squad room.

Warren E. Burger:

But then do you say that we could not affirm this conviction of Kirby without overruling Wade and Gilbert.

Jerold S. Solovy:

I do.

Mr. Chief Justice, and the State of Illinois does, the State of California does, otherwise, they won’t be standing before this Court in arguing that this Court should overrule a decision only four years old.

Potter Stewart:

Well the Supreme Court of Illinois doesn’t agree with you?

Jerold S. Solovy:

The Supreme Court —

Potter Stewart:

In this very case, it thought it was following Wade and Gilbert in affirming conviction in this case.

Did it not?

Jerold S. Solovy:

That is correct Mr. Justice Stewart, but in answer to Mr. Justice Rehnquist’s question the State of California does not agree in 6-1 decision.

Potter Stewart:

Well, we have an Illinois case here and we are reviewing the judgment of the Supreme Court of Illinois which was very aware of Wade and Gilbert and thought it was following Wade and Gilbert in affirming this conviction.

Jerold S. Solovy:

Yes, but Mr. Justice Stewart, all of the federal courts who have considered, which have considered this question, the majority of the states which have considered this question.

Potter Stewart:

Like there is a conflict of authority and that presumably may have been why we granted a petition for certiorari in this case.

Jerold S. Solovy:

And it is our petition Mr. Justice Stewart that when you look at the philosophy of Wade and Gilbert, that clue, Wade and Gilbert must cover pre-indictment situations that those are critical stages of the prosecution and that the defendant cannot be allowed to standalone with the deck stack against him without counsel.

William H. Rehnquist:

Mr. Solovy, it was my understanding Mr. Zagel had answered to the question of Mr. Justice White, said that although Illinois wanted the way decision overruled, they also took the position that it could be limited to the post-indictment situation which as I understand were the facts of the Wade and Gilbert.

Jerold S. Solovy:

That is correct Mr. Justice Rehnquist and it is our position that when they retreat, when Illinois and California retreats from an overruling of Wade and Gilbert, and state that Wade and Gilbert should be limited to post-indictment cases that we say that the State of California, Supreme Court decisions 6-1 and following apply in Wade and Gilbert to pre-indictment situations is correct.

That all of the federal court should consider this case, applying Wade and Gilbert to pre-indictment situations are correct because after all 99.9% of the lineup cases happen prior to indictment.

Now you take this case, for example, these men were not appointed counsel for eight weeks.

Their right to counsel at a preliminary hearing was violated.

Let us assume there was a lineup right before after the preliminary hearing but still no indictment.

Now under the rationale of California and Illinois, Mr. Kirby would not have the protection of Wade and Gilbert.

In this case, the man will arrest.

You would had a waiting in the police station for several hours.

The State of Illinois could show no prejudice to having an attorney present.

Jerold S. Solovy:

They say an attorney would be harmful.

I don’t believe that the attorney would help in the search for the truth.

Now these two gentleman, two Negroes were seated in the squad rooms between two white police officers.

And the State of Illinois says, that this was an instantaneous identification when the record says they asked if the two Negroes were his assailants and Mr. Wall(ph) in his book and identification which the court cites in Wade says this is the most grossly suggested procedure, now known or ever known to the police.

Now what could have a lawyer done in this case?

He could have said to the police, please have the lineup, please let’s get at least four or five other Negroes into the room, and let them try and pick from five or six Negroes, not from two white police officers and two Negroes, what type of justice is that?

Potter Stewart:

Well, you are getting into a different argument, you are getting into the Stovall argument, i.e, you are telling us that with or without a lawyer this particular identification procedure was fundamentally unfair, and that’s a different question, is it not?

Jerold S. Solovy:

That is correct.

Potter Stewart:

It was question other than the one on which we granted certiorari on these cases.

Jerold S. Solovy:

Well, Mr. Justice Stewart, it seems to me without complaining that I would be unfairly treated for, that is Mr. Kirby would be unfairly treated for the State of Illinois to say and the State of California, you do not need Wade and Gilbert to protect the defendant because you have Stovall but poor Mr. Kirby doesn’t have the benefit of Stovall because the grant of certiorari did not carry that far.

That would indeed be an anomalous result.

If you do not apply Wade and Gilbert and say if the gentleman and the attorney, because there was no compelling circumstances here to provide him an attorney, then at very least, the Court must apply Stovall otherwise it would be the most rank form of injustice.

Warren E. Burger:

Well, when you talked about Wade and Stovall before, I didn’t understand you to argue that Wade and Stovall literally required this result that only that the philosophy underlying those cases called for an extension to the pre-indictment period.

Jerold S. Solovy:

Mr. Chief Justice, the strict holding as we have learned in law school, that Wade and Gilbert are limited to post-indictment cases because that was the fact of the case.

My position Mr. Chief Justice, is that when you read the broad language of Wade and Gilbert, the rationale for the decision, the reasons underlying the decision and the language itself, brings you to the conclusion that the Supreme Court of California reached and all the Federal Courts have reached, and that is that the philosophy of that decision is that it applies to pre-indictment cases.

Thank you very much.

Warren E. Burger:

Thank you, Mr. Solovy.

Thank you gentleman.

The case is submitted.