show-ups

On the morning of August 26, 1965, two men wearing stocking masks robbed the American Security and Trust Co. bank in Washington, D.C. The robbery lasted three or four minutes. A government informer, Clarence McFarland, later told authorities that he had discussed the robbery with respondent Charles J. Ash, Jr. In February 1966, an FBI agent showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses who had been present during the robbery. All four made uncertain identifications of Ash's picture. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to the bank robbery. Trial was finally set for May 1968. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were positive of their identifications. The fourth witness, who had been in a car outside the bank, made positive in-court identifications of both Ash and Bailey. The color photographs were admitted into evidence. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The United States Court of Appeals for the District of Columbia Circuit, sitting en banc, reversed Ash's conviction by a 5-to-4 vote. The majority held that Ash's right to counsel was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. Dissenting opinions joined by four judges disagreed with the decision that the photographic identification was a critical stage requiring counsel. The Supreme Court granted certiorari to resolve the conflict with decisions of the courts of appeals of nine other circuits.

In 2008 defendant William White, leader of the American National Socialist Workers Party, operated the website Overthrow.com. On September 11, 2008, White posted an article titled "Hale Seeks To Have Sentence Overturned" with the sub-headline "Gay Jewish Anti-Racist Led Jury." The post included a photograph of Mark Hoffman, who had served as foreperson on the jury that convicted Matthew Hale in 2004, along with Hoffman's date of birth, address at 6915 Hamilton #A Chicago IL 60645, cell phone number, home phone number, and office number, and described Hoffman as living with his "gay black lover" and cat "homeboy." The posts appeared the same day a Chicago Sun-Times article discussed Hale's post-conviction motion challenging Hoffman's jury service on grounds including Hoffman's sexual orientation and race of his partner. White posted a virtually identical version on the blog section of the site and, after Northwestern University removed Hoffman's photo, posted an update the next day noting the block and repeating the same personal information. The site at the time also displayed links to other articles including one titled "Kill Richard Warman" and a magazine cover image showing crosshairs over Barack Obama's head titled "Kill This Nigger?" Hoffman received a harassing phone call from a Virginia number on September 11, 2008, asking about his jury service, followed by text messages containing offensive content. Hoffman contacted Northwestern security and FBI Agent Sara Lopez. FBI agents later executed search warrants at properties associated with White in Roanoke, Virginia, seizing the server used to run Overthrow.com and confirming through forensic analysis that White created the Hoffman posts. The government charged White with one count of violating 18 U.S.C. § 373 by soliciting or endeavoring to persuade another person to injure Hoffman based on his jury service in the Hale case. A prior district judge dismissed the superseding indictment, the Seventh Circuit reversed and remanded for trial, and an anonymous jury returned a guilty verdict. White moved for judgment of acquittal under Fed. R. Crim. P. 29. At trial the evidence revealed that all of the information in the posts was in the public domain. Former ANSWP members Philip Anderson and Michael Burks testified about the organization's structure, conference calls, and their interactions with White, including White's post-arrest instructions to Anderson to contact other white supremacists to determine whether anyone planned to harm Hoffman. The government introduced dozens of prior Overthrow.com posts in which White had published addresses and expressed violent wishes toward other individuals.

On August 15, 2008, around 3 a.m., Joffre Ullon reported to the Nashua, New Hampshire, Police Department that an African-American male was attempting to break into cars in the parking lot of his apartment building. Officer Nicole Clay responded and observed petitioner Barion Perry standing between two cars holding two car-stereo amplifiers, with a metal bat on the ground nearby. Perry stated that he had found the amplifiers on the ground. Nubia Blandón, Ullon's wife, had woken her neighbor Alex Clavijo and informed him that she had seen someone break into his car. Clavijo inspected his vehicle and found a shattered rear window along with missing speakers, amplifiers, a bat, and a wrench. Blandón later described to Clay and Clavijo from her fourth-floor apartment hallway that she had seen from her kitchen window a tall African-American man roaming the parking lot, circling Clavijo's car, opening the trunk, and removing a large box. When asked for a more specific description, Blandón pointed out the window to Perry, who was standing in the parking lot next to a police officer. Perry's arrest followed this identification. Approximately one month later, police presented Blandón with a photographic array including Perry's picture, but she was unable to identify him. Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress Blandón’s identification on the ground that admitting it at trial would violate due process. Blandón witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. The New Hampshire Superior Court denied the motion after finding that the identification did not stem from an unnecessarily suggestive procedure manufactured by the police, as Blandón pointed to Perry spontaneously without inducement. At trial, Blandón and Clay testified regarding the out-of-court identification, and the jury convicted Perry of theft while acquitting him of criminal mischief. On appeal, the New Hampshire Supreme Court affirmed the conviction, holding that the Due Process Clause requires a trial court to assess the reliability of identification evidence before permitting a jury to consider it only where the police employ suggestive identification techniques. The United States Supreme Court granted certiorari. The question presented was whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.

In January 1964 two armed men robbed the Mutual Savings and Loan Association of Alhambra and a police officer who entered during the robbery was killed. Petitioner Gilbert was convicted in the Superior Court of California of the armed robbery and the murder. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed the judgment. Gilbert was arrested in Philadelphia by an FBI agent and later provided handwriting exemplars to another agent during questioning about Philadelphia robberies in which the robber used a handwritten note. The exemplars were admitted in evidence at his California trial over objection. Officers entered Gilbert's apartment without a search warrant after receiving information from an accomplice that led them to believe a suspect might be inside. They found and seized photographs of Gilbert in an envelope on the top of a bedroom dresser. Eyewitnesses viewed the photographs within hours after the crime. Sixteen days after his indictment and the appointment of counsel, Gilbert was exhibited at a lineup conducted without notice to his counsel in a Los Angeles auditorium. Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage had observed him at the lineup. The manager of the apartment house in which incriminating evidence was found also identified Gilbert in the courtroom and testified to her prior lineup identification. Eight witnesses at the penalty stage who were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by Gilbert likewise identified him both in court and at the same lineup. The California Supreme Court affirmed the conviction in 63 Cal. 2d 690. The United States Supreme Court granted certiorari and set the case for argument with related matters.