Biggers v. Tennessee Petition for Rehearing

    I n  the

(Emtrt nf %  Itttfpd &tatp,a
October Term, 1967 

No. 237

Archie Nathaniel B iggers,

v.
Petitioner,

State of Tennessee,
Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  COU RT O F T E N N E S S E E

PETITION FOR REHEARING

J ack Greenberg

Michael Meltsner 
10 Columbus Circle 
New York, New Y7ork

Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pa.

Avon N. W illiams

Z. Alexander L ooby 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

J ohn P. H owland 
Of Counsel



I n  t h e

g>H|tr£m£ (to rt at tfyp States
October Term, 1967

No. 237

Archie Nathaniel Diggers,

v.
Petitioner,

State of Tennessee,
Respondent.

ON W R IT  OF CERTIO RARI TO T H E  S U P R E M E  COU RT O F T E N N E S S E E

PETITION FOR REHEARING

Petitioner prays that the Court grant rehearing of its 
March 18, 1968 decision affirming, by an equally divided 
Court, petitioner’s conviction and sentence to twenty years 
in prison.

R easons for  Granting Rehearing  

I

Subsequent to the Court’s ruling in petitioner’s case, 
certiorari has been granted to consider, in the case of 
another state prisoner, those circumstances which result 
in an identification procedure violating the Due Process



2

Clause of the Fourteenth Amendment, Foster v. California, 
No. 638 Misc., 36 U. S. L. Week 3374 (3/25/68). Foster 
involves a lineup which is alleged to have been unconstitu­
tionally conducted. As petitioner was not accorded the ele­
mentary protection of a lineup—and the record is barren 
of evidence justifying the failure to hold one—reversal in 
Foster would, a fortiori, affect, if not determine, final 
resolution of petitioner’s constitutional claim. An interven­
ing circumstance such as “the fact that the same or a 
related issue has come before the court in other cases 
still pending” is a common ground for grant of rehear­
ing. Stern and Gtressman, Supreme Court Practice, 3rd 
Ed. 389; see Pickett v. Union Terminal Co., 313 U. S. 591 
(1941); 314 U. S. 704 (1941); 315 U. S. 386, 389, 394 (1942). 
It is plainly appropriate and just that the results in these 
two cases conform. Unless it is beyond doubt that princi­
ples announced in Foster will not bear upon petitioner’s 
claim, this petition should be granted.

That affirmance is the product of an equally divided 
Court further supports granting of this petition. The 
Court has granted rehearing most often in cases such as 
this where it could not, initially, agree on a decision. Stern 
and Gressman, supra, at 387. The present result works 
a harsh penalty on a minor without articulate decision of, 
or agreement as to, two substantial federal claims. It 
may be that over the years some few men will have to 
go to prison because this Court may upon occasion be 
unable to reach a decision, but such a manner of reaching 
a result has always been avoided except where absolutely 
necessary and it is not absolutely necessary where re­
view has been granted with respect to what may be a con­
trolling principle of law.



3

II

The Court in Simmons v. United States, No. 55, 0. T. 1967 re­
affirmed the approval of Palmer v. Peyton, 359 F. 2d 199 (4th Cir., 
1966), given in Stovall v. Denno, 388 U. S. 293, 301, 302 (1967). Peti­
tioner submits that the facts of his case are simply not sufficiently 
distinguishable from Palmer to support a difference in result:

Critical
Circumstances Palmer Biggers

Gap between crime 
and identification

1 day 7 months

Time during which 
victim could observe 
criminal

15-30 minutes 10-30 minutes

Initial opportunity to 
observe

a s s a i l a n t ’s head 
covered by paper bag

opportunity limited 
by darkness

Voice identification spoke words used by 
assailant

spoke words used by 
assailant

Physical identifica­
tion

none attempted yes

Lineup none none
Justification for no 
lineup

none none

Evidence corroborat­
ing guilt

assailant was wear­
ing an orange shirt 
and Palmer was wear­
ing a similar shirt 
when arrested; wit­
ness stated that Palm-

none: an eyewitness 
failed to identify Big­
gers

er confessed to the
crime



4

Significantly, recent decisions of the New York Court 
of Appeals and the California Supreme Court read Palmer 
and Stovall v. Denno, supra, in a way which would require 
a reversal here, and which suggest (when the grant of 
certiorari in Foster is considered) that Archie Nathaniel 
Biggers may, fortuitously, be only the hapless victim of a 
short-lived restrictive interpretation of the due process 
obligation of the states to provide for fair identification 
procedures. In State v. Ballott, 233 N. E. 2d 103 (1967) 
for example, the facts surrounding the identification are 
strikingly similar to petitioner’s case:

Miriam Seidman and Rose Scipone worked for the 
M. N. Axim Lumber Company in Queens County. It 
was the task of those employees, each Friday, to drive 
to the bank and pick up the company payroll of about 
$5,000 and then return to the company’s offices with 
the money in an envelope. On the Friday in question, 
January 18, 1963, as they were about to alight from 
their car, a Negro, wearing a hat and a heavy over­
coat, with turned up collar, appeared at the window 
and demanded the envelope, threatening to shoot if it 
was not turned over to him. Frightened, Mrs. Seidman 
handed him the envelope and Mrs. Scipone gave him 
her purse containing $27. The robber then fled.

The defendant was arrested a year later, having 
been implicated in the robbery by a man named Doyle. 
The latter, questioned a short time after the robbery, 
declared that, having learned of the payroll procedure 
from one of the lumber company’s employees, he and 
the defendant Ballott had planned the commission 
of the crime. Doyle pleaded guilty to conspiracy to 
commit larceny, a misdemeanor, and subsequently 
testified against the defendant.



5

Mrs. Scipone testified upon the trial that she had 
not seen the face of the robber and only Mrs. Seidman 
identified the defendant as the man who had held them 
up. It was disclosed, during the course of her testi­
mony, that in January, 1964, a year after the robbery, 
the police had exhibited to her the defendant, alone 
in a room in the station house, and that she had then 
stated that he was the person who committed the rob­
bery. It also appeared that she had identified the 
defendant only after he had, at her request, donned a 
hat and a heavy coat—similar to those worn by the 
robber—and uttered the words—somewhat like those 
spoken—“give me the money, give me the envelope.” 
Mrs. Seidman acknowledged that she made her iden­
tification only after she had heard the defendant speak.

In the California case, the court reversed the conviction
even though a lineup was held, People v. Caruso, -----Cal.
2d ----- , 2 Crim. L. Rptr. 3135 (1/26/68) :

But the uncontradicted testimony of all those who 
viewed the lineup demonstrates that it was conducted 
under circumstances which could only have suggested 
to Butkus and Seeley that defendant was the man to 
be charged with the offense. Defendant is of imposing 
stature, being 6 feet 1 inch tall, and weighing 238 
pounds. He is of Italian descent, with a very dark 
complexion, and has dark wavy hair. The two vic­
tims, the officer in charge of the investigation, Sergeant 
Allen, and defendant all testified that the other line­
up participants did not physically resemble defendant. 
They were not his size, not one had his dark com­
plexion, and none had dark wavy hair. During the 
robbery both Seeley and Butkus had noted the driver’s



6

large size and dark complexion, and, if they were to 
choose anyone in the lineup, defendant was singularly 
marked for identification. We can only conclude that 
the lineup was “unnecessarily suggestive and con­
ducive to irreparable mistaken identification” (Stovall 
v. Denno (1967) supra, 388 U. S. 293, 302), and we hold 
that its grossly unfair makeup deprived defendant of 
due process of law. (Stovall v. Denno, supra).

Of course, nothing decided in these cases binds this 
Court. But the ready, and we submit convincing, applica­
tion of Stovall by the highest courts of New York and Cali­
fornia supports a serious re-examination of petitioner’s 
claim. While this Court’s precedents are not always capable 
of mechanical application to subsequent cases, surely it is 
no accident that both state courts have applied Stovall to 
identification procedures which under no reasonable con­
struction were significantly more likely to produce “irrep­
arable mistaken identification” than those employed by 
the Nashville police to suggest the guilt of a sixteen year 
old boy.

In addition, as the Supreme Court of California found 
in People v. Caruso, supra, the due process infirmity of 
suggestive identification procedures is enhanced where 
the record shows a serious doubt as to the reliability of the 
judgment of guilt. In State v. Ballott, supra, and Palmer v. 
Peyton, supra, there was independent evidence connect­
ing the defendants with the crime; in Biggers’ case, how­
ever, a questionable identification of one with no criminal 
record stands uncorroborated. The state, moreover, treated 
the jury in a manner which substantially impaired its 
capacity to appraise that identification objectively: news­
papers were used as a forum for grossly prejudicial com­
ment on the case (R. 196, 197); then the jury selected



7

from those exposed to the papers was reminded of the 
harmful stories by the prosecution on voir dire (R. 58, 59, 
175, 215) and at trial (B. 17); police officers were permitted 
to testify again and again to the facts of identification 
although they were not controverted; finally, the jury was 
subjected to a summation which the Supreme Court of 
Tennessee characterized as “appealing to racial prejudice” 
and which the court found to be error—but non-reversible 
(R. 183, 209, 210). Petitioner respectfully submits that 
an uncorroborated identification so frail requires a guilt 
finding process of greater integrity than shown by this 
record.

CONCLUSION

For the forego ing  reasons petitioner requests that the  
Court grant rehearing and reverse the judgm ent below .

Respectfully submitted,

J ack Greenberg

Michael Meltsner

10 Columbus Circle 
New York, New York

Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pa.

Avon N. W illiams

Z. Alexander L ooby 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

J ohn P. H owland 
Of Counsel



8

Certificate

I, Michael Meltsner, a member of the Bar of this Court 
and counsel for petitioner herein, hereby certify that the 
foregoing Petition for Rehearing is presented in good 
faith and not for purposes of delay.

Attorney for Petitioner



RECORD PRESS —  N. Y. C. 38