United States v. Ash

PETITIONER: United States
RESPONDENT: Charles J. Ash Jr.
LOCATION: American Trust & Security Company

DOCKET NO.: 71-1255
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 413 US 300 (1973)
ARGUED: Jan 10, 1973
DECIDED: Jun 21, 1973

ADVOCATES:
Edward R. Korman - for petitioner
Sherman L. Cohn - for respondent

Facts of the case

Charles J. Ash Jr. was indicted for robbing the American Trust & Security Company in Washington, D.C. Before his trial, almost three years after the robbery, an FBI agent and a prosecutor showed five color mug shot photographs to potential witnesses to make sure they would be able to make an in court identification of Ash. Ash’s counsel was not present for this process. Some of these witnesses then made in court identifications of Ash. Ash was convicted. The U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that Ash’s Sixth Amendment right to counsel was violated because his attorney was not given the opportunity to be present for the photo identifications before trial. The court of appeals opinion expressed doubt that the in court identifications could have happened without the prior photo identifications.

Question

Does the Sixth Amendment require the presence of defendant’s counsel at a pretrial showing of photographs to prospective witnesses?

Media for United States v. Ash

Audio Transcription for Oral Argument - January 10, 1973 in United States v. Ash

Warren E. Burger:

We'll hear arguments next in 71-1255, United States against Ash.

Mr. Korman you may proceed whenever you are ready.

Edward R. Korman:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the District of Columbia to review a five to four en banc decision of that court which held that under the Sixth Amendment, a defendant in criminal case is entitled to the presence of counsel at a pretrial showing of photographs to witnesses to the crime of which he is accused of committing.

This case arises out of an armed bank robbery of branch office of the American Security and Trust Company in the District of Columbia on the 25th day of August, 1965.

A lone gunman entered the bank and he now put a stocking mask over a portion of his face, announced his intentions and told everyone not to move.

Immediately thereafter, a second man entered the bank, ran behind the Teller’s cages, scooped up the money and run out of the bank followed by the gunman who had initially entered the bank.

As the bandits ran from the bank they again removed the stocking masks which covered their faces up to the bottom of their noses and at this point they were both seen with their faces uncovered by a woman who was seated in a car outside of the bank.

The two robbers, however, made good their escape and it was not until some five months after the robbery had occurred that a convicted felon concededly seeking consideration from the authorities told them that one Charles Ash had asked him, the informant, to participate in the bank robbery and had on the day following the robbery admitted his participation to the informant.

On the basis of this information police gathered five photographs, one each of the defendant Ash, one of Bailey who is accomplice which the informant had told the authorities, Ash had implicated as the second man in the robbery and three other photographs.

These are all black and white and they were shown to four witnesses to that robbery.

Two of them were bank tellers and both of them selected photographs of Ash as the gunman.

Neither was positive in their identification.

The third witness who was shown these photographs was a customer at the bank who had seen the gunman enter the bank and put the mask on.

He also selected the photograph of Ash, his identification was likewise inconclusive.

The fourth witness was the woman who had seen the two running from the bank.

She also picked out a photograph of Ash as being one of the two whom she had seen running from the bank.

Her identification was likewise uncertain.

The case for a number of reasons was not scheduled for trial until May 8, 1965 some two-and-half years after the showing of the initial photographs and some three years, almost three years after the date that the crime was committed.

The Assistant United States Attorney in charge of the case, no doubt wondering whether any of the eyewitnesses would be able to make any kind of identification at this stage of the proceeding, had five color photographs displayed to each of the four witnesses.

The five photographs included one each of Bailey, one of Ash and three others.

The two defendants --

Warren E. Burger:

The photographs were unconnected with the --

Edward R. Korman:

Unconnected with the robbery.

The two photographs of the perspective of the defendants who would go on trial the following day, what is known as I believe called “full length FBI case photographs” indicating their height and their build.

The three other photographs were not full length, but were cut at some point above and below the chest.

At this point the results of the photograph at display were again inconclusive.

Three of the witnesses picked out Ash’s photograph and said that he looked like him or words to that effect, their identification was uncertain.

A fourth witness the gentleman who was a customer at the bank could not pick out any photograph.

Again, as in the first instance none of the witnesses were able to pick out the photograph of the codefendant Bailey.