Neil v. Biggers Reply Brief to Brief in Opposition to Petition for Writ of Certiorari

    IN T H E

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971 

No. 71-685

WILLIAM S. NEIL, W arden,
T ennessee State Penitentiary ,
N ashville, T ennessee,

P etitioner ,

v .

ARCHIE NATHANIEL BIGGERS,
Respondent.

REPLY BRIEF TO BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

BARTC. DURHAM, III 
A ssistan t Attorney General 

211 Suprem e C ourt Building 
N ashville, T ennessee 37219

Attorney fo r  Petitioner

Of Counsel
DAVID M. PACK 

Attorney General

T E N N E SS E E  LAW P R IN T E R S , P . O. Box 277, Knoxville, T ennessee, Phone 525-4202



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971

No. 71-685

WILLIAM S. NEIL, W arden,
T ennessee State Penitentiary , 
N ashville, T ennessee,

Petitioner,
v.

ARCHIE NATHANIEL BIGGERS,
Respondent.

REPLY BRIEF TO BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

In rep ly  to  the Petition fo r W rit of C e r tio ra r i ,  counsel 
fo r respondent, who has m ade application  to proceed in 
form a p auperis , has filed a th ir ty - th re e  page b rie f. C e r ­
ta in  argum ents a re  m ade in that b rie f to which the p e titioner 
w ishes to  respond.

ARGUMENT
I.

The D istrict Court did not consider any new evidence.

The identification m ade by the v ictim  was supplem ented 
by h e r  testim ony a t the hearing  before the D is tr ic t Judge a t



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which tim e she s ta ted  tha t she had identified M r. Biggers 
at the tr ia l  in the courtroom  (Brief in Opposition a t 10).
The only o ther evidence that the D is tric t Judge heard  that 
had any m ate ria l bearing  on the identification was the e x ­
p e rt testim ony of a p ro fesso r from  the U niversity  of M ich­
igan, D r. Erwin Pollack, who te s tif ied  as to the general 
un re liab ility  of eyew itness identification and identification 
p ro ced u res  employed by the po lice . D r. Pollack 's t e s t i ­
mony is detailed  in the Brief in Opposition a t 9-10.

This is not a c ase  w here the D is tric t Judge h eard  new 
m a te ria l facts which this Court did not h ear when the 
m a tte r  was h e re  before  fo r p lenary  rev iew . The only 
re a lly  new fact that the D is tric t Judge heard  was the r e s o ­
lution of the question ra ise d  by M r. Justice Douglas in his 
d issen t, which was w hether o r not M rs. Beam er identified 
the Defendant in the courtroom , and M rs. Beam er te stified  
a t the federa l habeas corpus hearing  that she had. The 
State has always in s isted  that M rs . Beam er identified the 
Defendant in the C ourtroom . D uring the co u rse  of her 
testim ony the p ro secu to r asked h er, "Is th e re  any doubt 
in your mind today?" She rep lied , "No, th e re  is no doubt."  
M r. Justice  Douglas in his d issen t argued that this m eant 
that M rs . Beam er had no doubt in h e r  mind that th is was 
the pe rso n  tha t she had identified in the previous lineup .
The State in s is ted  that th e re  was no doubt in M rs. B eam er's 
mind at the trial that th is was the perso n  who was the 
ra p is t .

D espite th is testim ony and desp ite  the fact that th is 
Court h eard  p len ary  argum ent on the fa irn e ss  of the iden ­
tification  em ployed, the D is tr ic t Judge ru led  that the s ta -  
tionhouse identification  was im p ro p er.



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The affirm ance by this Court o f the conviction o f p e ti­
tioner a fter  plenary consideration of the stationhouse iden­
tification fo rc lo ses  fu r th e r  consideration o f the very same 
issue between the same parties.

This Court heard  argum ent on the stationhouse id e n ti­
fica tion . By a fou r-fou r decision it affirm ed the judgment 
of the T ennessee Suprem e C ourt. Nowhere in the Brief 
in Opposition is  any m ention made of the fa ilu re  of the 
low er co u rts  to apply to the facts of this case  28 United 
States Code Sec. 2244(c), which says that once the Su­
p rem e  Court of the United S tates has decided an issu e , 
that decision shall be conclusive "unless the applicant 
fo r the w rit of habeas corpus shall plead and the Court 
shall find the ex istence  of a m ate ria l and contro lling  fact 
which did not appear in the  re c o rd  of the proceeding in 
the Suprem e Court and the C ourt shall fu rth e r find that 
the applicant for the w rit of habeas corpus could not have 
caused such fac t to appear in such re c o rd  by the ex erc ise  
of reasonab le  d ilig en ce ."

The D is tr ic t C ourt, Court of A ppeals, and counsel fo r 
respondent have ignored th is s ta tu te . The identification 
question is not a question which did not appear in the 
re c o rd  of the  proceed ing  in the Suprem e C ourt. On the 
c o n tra ry , tha t is  what the argum ent and p lenary  hearing  
in the Suprem e C ourt was all about (see the tra n sc r ip t of 
that o ra l argum ent which was filed as a supplem ent to the 
Petition fo r C e r tio ra r i) .

II.

III.

A fo u r-fo u r  affirm ance is not a "technical" a ffirm ance.

The D is tric t Judge and responden t's  counsel (Brief at 
17) speak of th is C o u rt's  a ffirm ance of the Suprem e Court



4

of T ennessee as a " technical" a ffirm ance. The D is tric t 
Judge even m ade re fe ren ce  in one of his o rd e rs  to a 
"technical affirm ation which re su lts  from  the fortu itous 
c ircu m stan ce  of an equally divided c o u r t ."  (Appendix 
a t 40)

It is tru e , as this C ourt sa id  in Sanders v. United 
S ta tes , 373 U .S . 1, 8 (1963), that "conventional notions 
of finality  of litigation  have no p lace  w here life  o r lib e rty  
is at s take  and infringem ent of constitutional rig h ts  is 
a lle g e d ."  Yet, if  this Court allows the re su lt reached 
in the two to one decision of the Court of Appeals to stand, 
the re s u lt  will fly in the face of 28 United S tates Code Sec. 
2244(c), and the re su lt  reached  by the Suprem e Court of 
T ennessee  and affirm ed by th is C ourt.

CONCLUSION

Because the low er c o u rts ' decisions have not only se t 
aside  an affirm ance by th is Court but because they also  
have had the effect of holding unconstitutional a federal 
s ta tu te , th is Court should g rant c e r tio ra r i  and give p lenary  
consideration  to the issu es  ra ise d .

R espectfully  subm itted ,

BA RTC. DURHAM, III 
A ssis tan t A ttorney G eneral 
State of T ennessee 
211 Suprem e Court Building 
N ashville, T ennessee  37219 
Telephone: (615) 741-2091