Biggers v. Tennessee Reply Brief for Petitioner

    I n  t h e

#uprenu> (Emtrt at f c  llinttb States
October Term, 1967 

No. 237

A b c h ie  N a t h a n ie l  B iggers, 

v.
Petitioner,

S tate of T e n n e s s e e ,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TENNESSEE

REPLY BRIEF FOR PETITIONER

J ack  G reenberg

M ic h a e l  M eltsn er

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

A von N. W illia m s

Z. A lexander  L ooby

Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner
J o h n  P. H owland 

11 Hillcrest Road 
Port Washington, New York

Of Counsel



I n  t h e

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October Term, 1967

No. 237

A b c h ie  N a t h a n ie l  B iggebs,

v.
Petitioner,

S tate oe T e n n e s s e e ,
Respondent.

ON WBIT OE CEETIOEAEI TO THE SUPEEME COTJET OP TENNESSEE

REPLY BRIEF FOR PETITIONER

By leave of Court, respondent has filed a Supplemental 
Brief. Pursuant to Rule 41(3), petitioner files this brief 
in reply.

1. Respondent contends that Mrs. Beamer, in addition 
to testifying at length as to her out-of-court identification, 
identified petitioner in the courtroom. This is true, says 
respondent because she spoke of the “defendant” and 
“There was but one defendant in the courtroom” (Supp. 
Br. p. 3).

Such a contention fundamentally misconceives the char­
acter of physical identification. The act of identification 
is not a matter of speaking a name or knowing a status. 
Rather it is locating a particular physical presence, a body, 
among other physical presences. It is no accident that 
the standard means of identification in the courtroom em-



2

ployed by trial lawyers is to ask a witness whether the 
person to be identified is present in the courtroom and, 
if so, to point him out. Although represented by ex­
perienced counsel, the state failed to follow the standard 
procedure in this case. Mrs. Beamer was never asked 
to locate Mr. Biggers or the “defendant” in the courtroom.

There are important policy reasons, moreover, why a 
courtroom identification should not be inferred. It would 
be unwise to reduce the extent to which a witness must 
commit himself or herself in locating the person named 
the criminal, for reasonable explicitness in pointing out 
the person identified makes the witness expressly respon­
sible for his or her judgment. This sense of personal 
responsibility enhances the degree of caution a witness 
will exercise in making a decision which involves a grave 
potential for prejudice.

Of course, even if the record in this case did establish 
an in-court identification, petitioner’s conviction would still 
have to be set aside by reason of the fact that the major 
portion of Mrs. Beamer’s testimony was a description of 
her tainted pre-trial identification, see Gilbert v. California, 
388 U.S. 263, 272-73 (1967).

2. Respondent appears to believe that petitioner con­
tends Mrs. Beamer did not identify him until his picture 
appeared in the Nashville Tennessean on the morning of 
August 18, 1965. Petitioner makes no such claim. What 
he does urge as a factor to be considered in appraising 
the totality of circumstances is that Mrs. Beamer may 
have been influenced by a story in the previous day’s 
Tennessean, August 17, 1965 describing the arrest of a 
Negro youth who would be questioned about a series of 
rapes (R. 196; Pet. Br., p. 14, n. 12) and, more signif-



3

icantly, that a factor contributing to the fundamental 
unfairness of the proceedings below was the state’s totally 
unwarranted and prejudicial interjection of the existence 
of the August 18, 1965, newspaper photograph.

At the beginning of the trial, the prosecuting attorney, 
over objection, asked Mrs. Beamer whether she had identi­
fied Biggers “before or after something appeared in the 
newspaper” (R. 17). She answered

“It was before the picture was published, the next 
morning.”

The record reveals that it took some three or four days 
to select a jury in this case in part because several jurors 
had seen newspaper stories about Biggers (R. 58, 59, 175). 
Thus, the state’s initial reference to the newspaper photo­
graph presented a dilemma for petitioner’s trial counsel. 
They could let the reference go unexplained and hope that 
the jury would disregard it, or they could attempt to test 
the credibility of Mrs. Beamer’s testimony. In either event 
the foreign and prejudicial element had been placed before 
the trial jury. Counsel attempted the latter course with the 
result that, while one police officer was uncertain whether 
the picture appeared prior to or subsequent to the iden­
tification, the state introduced cumulative testimony to 
establish that the identification took place prior to the 
day the photograph appeared in the newspaper (R. 47, 
66, 97-103; cf. 182). This testimony detracted from the 
fairness of trial not only because it was irrelevant to the 
question of guilt but because it was calculated to arouse 
juror’s memories of newspaper accounts and photographs 
describing Biggers as a confessed rapist, making impos­
sible any objective assessment of Mrs. Beamer’s identifica­
tion testimony. Thus, by bringing up the matter of the



4

photograph, the state significantly impaired the integrity 
of the guilt finding process.

3. The Supplemental Brief asserts that Mrs. Beamer 
“had looked at suspects and photographs of suspects for 
a period of nearly seven months and had made no er­
roneous identification of any of them” (p. 5). The record, 
however, is totally silent with respect to times, dates, 
character and circumstances of Mrs. Beamer’s viewing of 
photographs and suspects. Such viewings may have taken 
place within a day or week of the crime. They may have 
been line-ups or show-ups. Rogues gallery photographs 
may have been employed. Pictures may have been presented 
individually or in groups. Suggestion may have been 
directed to her or the viewings may have been arranged 
with scrupulous regard for fairness. To the extent the 
highly unreliable procedures employed in presenting peti­
tioner to Mrs. Beamer seven months after the crime are 
sought to be explained away by the supposed reliability 
of Mrs. Beamer’s failure to identify anyone prior to 
August, it is respondent’s burden to show the facts and 
circumstances which make reliable an otherwise unreliable 
manner of proceeding, Cf. United States v. Wade, 388* 
U.S. 218, 240, n. 31, 241 (1967). Otherwise petitioner would 
be presented with an impossible task of negating any 
factor possibly enhancing reliability where the proof of 
such factors, if they exist, is within the exclusive knowl­
edge of the state. Whatever its potential application to 
some other case, it does not serve the state well here to 
assert that “exhibiting suspects to a witness separately 
over a long period of time could very well be a greater 
safety measure for a not guilty person than placing them 
all in one line on one occasion” because the state never 
proved that suspects were exhibited to Mrs. Beamer “over 
a long period of time” (Supp. Br. p. 5).



5

The state also contends that “An investigation extending 
over several months cannot as a practical matter be done 
with all the safeguards and finesse that may be employed 
when only one ‘hot’ prospect and one investigation is 
involved” (Supp. Br. p. 7). This assertion is likewise 
unsupported by the record. A lineup was not difficult or 
even inconvenient to arrange. The identification took place 
at police headquarters; Biggers was brought there from a 
juvenile detention facility. There was no shortage of per­
sons to compose a lineup. The many other police failures 
to safeguard the fairness of the identification proceeding 
were equally unnecessary, see Pet. Br. pp. 17, 18.1

4. The Supplemental Brief asserts (p. 6) that Mrs. 
Beamer’s identification was reliable, although she had a 
“limited opportunity” to see the petitioner before the 
crime, because there was a “lack of any discrepancy be­
tween her description of him and his actual appearance.” 
This statement erroneously suggests that Mrs. Beamer 
gave a detailed description of the assailant at the time of 
her arrest, that such description matched the features of 
petitioner, and that similarity between the original descrip­
tion and Biggers’ appearance bolsters the reliability of 
Mrs. Beamer’s identification. The only problem with this 
reasoning is that the state never showed the character of 
any description Mrs. Beamer gave to the police at the 
time of the crime. At trial, she was asked which char­
acteristics of petitioner enabled her to identify him at the 
pre-trial identification, but she never testified, nor did 
any police officer, that she had given any particular descrip-

1 In addition, the state seems to be saying that where there is evidence 
tying a suspect to a crime procedural safeguards will be followed but where 
the evidence is slight and no “hot” prospect is involved safeguards should 
be abandoned. Such a rule is calculated to conviet the innocent because it 
maximizes suggestion in the case where evidence of guilt is slightest.



6

tion at the time she reported the crime, or shortly there­
after.

In fact, the only reference in the record to such a descrip­
tion hardly gives one a feeling of great confidence in Mrs. 
Beamer’s ability to observe precisely during the crime 
(and the state now concedes her opportunity to observe 
was “limited” (Supp. Br. p. 6)). One of the officers ini­
tially assigned to the case was asked “what if anything 
else did you do in the course of your investigation.” He 
answered: “We had the plaintiff go to the homicide office 
and give a statement as to what happened and also we got 
a description as best she could describe the subject and 
it was taken down. . .” (R. 50). Thus Mrs. Beamer gave 
a description characterized “as best she could.” This 
description was “taken down” by the police but was never 
offered at trial to bolster Mrs. Beamer’s reliability. Under 
established principles, the character of the description she 
gave must be deemed to have hindered rather than helped 
the state’s case for Mrs. Beamer’s reliability.

5. Finally, the state finds moment in the fact that Mrs. 
Beamer “exhibited an attitude of coolness and clearness 
of mind” (Supp. Br. p. 5) at the out-of-court identification. 
But it would be surprising indeed if she were not relatively 
less emotional seven months after the offense. On the 
other hand, as the state concedes, such coolness was not 
possible on January 22, 1967 “due to her being emotionally 
upset at the time or immediately after the incident oc­
curred” (Supp. Br. p. 5). It was, however, at the time, 
the incident occurred that the original perception upon 
which recollection is based took place. If the initial oppor­
tunity to observe was “limited” and the witness “emo­
tionally upset,” a seven month subsequent identification,



7

rendered under the influence of suggestion from the police 
is not rendered reliable because emotions have cooled.

Respectfully submitted,

J o h n  P. H owland  
11 Hillcrest Road

J ack  G reenberg

M ic h a e l  M eltsn er

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

A von N. W illia m s

Z. A lexander  L ooby 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

Port Washington, New York 
Of Counsel



MEILEN PRESS IN C . —  N . Y. 219