United States v. Charles J. Ash, Jr.

461 F.2d 92

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 12, 1972
• Docket: 22340
• Status: Published

Opinions

LEVENTHAL, Circuit Judge:

On April 1, 1966, appellant Charles J. Ash, Jr., and a co-defendant, John L. Bailey, were indicted on five counts relating to an armed robbery of the American Security and Trust Company, East Capitol Street Branch.¹ Ash was convicted by a jury on May 13, 1968, and in due course was sentenced to an effective term of five to fifteen years. The principal question presented by his appeal is whether his constitutional rights were violated by the introduction of certain pretrial photographic identifications obtained after arrest, and indeed after indictment, without notice to or presence of his counsel. It is fortunate for appellant that the issues concerning identification were raised in the brief filed by his appointed counsel before appellant sought and was granted leave to continue pro se. The points raised by appellant pro se have no merit.² But we find merit in the issues as to identification raised in the brief filed by counsel, continued by this court on an amicus curiae basis. We reverse the conviction and remand for further proceedings not inconsistent with this opinion.

I. FACTUAL BACKGROUND

On August 26, 1965, a gunman entered the bank, waved his gun in the air, and ordered everyone in the bank not to move. A few seconds later another man dashed through the lobby of the bank to the tellers’ cages, scooped up some money and ran out again, followed by the gunman. The robbery took place in about three or four minutes. At trial Ash was identified as the gunman. A bank teller, Mrs. Ruby Paugh, said Ash looked similar to the gunman, but she could not be certain because she could not see his face in view of the stocking mask. Another teller, Mrs. Jean Major, who likewise was unable to see the gunman’s face, said she believed Ash was the gunman, but was not absolutely certain. A bank customer, Joseph Taylor, said Ash “looks sort of like” the gunman but he could not be certain. This witness had observed the gunman for a few seconds as he entered the bank, before he donned his mask. There was also an identification of Ash by Betty Apple, who was seated in an automobile outside, and said that outside the bank neither man wore a mask. She admitted she only got a “fleeting glimpse” of them and was not able to see their full faces.

It may be interjected that although Bailey was also identified in court by Mrs. Apple, there was a hung jury as to him. The trial judge granted his motion for acquittal.

Since the only other proof against Ash was the testimony of an informer who was under indictment for other offenses, it becomes material to consider carefully issues pertaining to the identification testimony.

The trial began May 8, 1968.³ In the morning the court held a pre-trial hearing to determine whether the showing of photographs to the witnesses rendered their testimony inadmissible.

At this hearing it developed that at the time of the crime none of the four identification witnesses was able to give the police a description of the gunman’s facial characteristics. The description given to police at the time of the robbery was not in terms of facial features but rather, e. g., by height and weight — that the gunman was tall and slim. The police call for the gunman described him only as Negro male, 19 years old, six feet tall, 165 pounds, thin build.

At the hearing FBI Special Agent Patrick Markowvich testified that on February 3, 1966, some 5 months after the crime, he interviewed Mrs. Paugh, Mrs. Major, Mrs. Apple and Mr. Taylor concerning the robbery in order “[t]o attempt to effect an identification.” The agent showed each of them a group of black and white police mug shots of the faces of five Negro males, including appellant and Bailey, all of “generally the same age, height and weight as Mr. Bailey and Mr. Ash.” Apparently, Mr. Ash’s photograph was included because of information received from one Clarence McFarland, an informer charged with other crimes (see note 7, infra). Agent Markowvich testified that all four witnesses selected the photograph of appellant as the gunman. On cross-examination he testified “[t]hey were not positive in the identification.” Asked if any of them was positive, he cited Mr. Taylor — who had seen the gunman before he donned his mask — and testified that “Mr. Taylor said that to the best of his belief” Ash was the gunman “but he could say positively if he could see him in person.” (Tr. 16). Mrs. Apple said the photo “looked like” Ash but she wasn’t sure. Mrs. Apple identified Bailey’s photograph as that of the second robber. A few weeks later Mrs. Apple also pointed out Bailey to police in a corridor of the General Sessions Building.

Special Agent Hugh Berry of the FBI testified that on May 7, 1968, the day before trial, together with the prosecutor, he visited, and showed five color pictures to, Mrs. Paugh, Mrs. Major and Mrs. Apple. Each of these witnesses picked out appellant’s picture, but none selected Bailey’s. On the morning of trial agent Berry showed the same photos to Mr. Taylor, who was unable to make an identification.

Of the five color photographs, only appellant’s and Bailey’s were full-length; they were pictured standing next to a pole, possibly a height marker, which had attached to it a plaque bearing police identification numbers. These numbers were covered up by the exhibit sticker at trial,⁴ but apparently were uncovered when the photos were shown to the four witnesses. Of the three remaining pictures, one terminated at the subject’s thigh, one at the waist, and another at the lower chest. None of these three photographs bore police identification numbers.

One of the eyewitnesses, Mrs. Paugh, also testified. She said that she could not surely identify anyone, and that all she could do, when questioned or shown photographs, was to make an identification “as to the general build of the person.” She stated that the color photographs shown her the day before had not had the effect of refreshing her recollection or recreating in her mind an image of the person she saw at the time of the robbery.

The judge ruled that the four prosecution witnesses would be permitted to make an identification of appellant at trial⁵ — and they gave testimony as set forth above. None of them was questioned on direct concerning the photographs. Bailey’s counsel was interested in bringing out that Mrs. Apple had not identified Bailey’s color photograph. Counsel for Ash objected to any procedure that would “make the proffer to show pictures of Ash.” Accordingly Bailey’s counsel confined his questioning of Mrs. Apple to establishing that Mrs. Apple had been shown five color photographs. Later, Bailey’s counsel elicited from FBI agent Berry that Mrs. Apple had made no identification on being shown a color photograph of Bailey.

When counsel for Bailey offered the Bailey photograph, the prosecutor insisted on admission of all five color photographs shown to Mrs. Apple. Counsel for Ash objected (Tr. 413): “I would object to Mr. Ash’s picture. I don’t want to see Mr. Stanford [Bailey’s counsel] getting bad marks for my client.” In view o,f this objection, Bailey’s counsel withdrew his offer of a photographic exhibit, being content to rely on testimony that Bailey’s photograph had not been identified. In due course such testimony was adduced, and he announced that he had completed his questions of the FBI agent (Tr. 413-15). But at this point the prosecutor interjected and insisted that the photographic evidence should be admitted. In due course he made a formal offer (Tr. 416), and the judge ruled it would be admitted (Tr. 416). The court’s ruling on the color photographs was plainly based on an assumption contrary to our view, developed later, that the admission of the color photograph of Ash was constitutionally impermissible, and prejudicial error.⁶

The Government also presented in its direct case the testimony of Clarence McFarland, who was then serving a sentence in connection with another robbery. Mr. McFarland, whose extensive criminal record was brought out on direct examination, testified that on August 25, 1966, the day before the American Security robbery, appellant had asked him to help rob the bank, but McFarland refused to go along. McFarland stated that he next saw appellant on August 27, sitting with Bailey at Cecilia’s Lounge on Seventh and T Streets. According to McFarland appellant told him that he had robbed the bank of approximately $3,100, and that he was angry with Bailey for leaving him in the bank. McFarland was cross-examined as to whether he had been promised certain “favors” in connection with several cases pending against him. The defense later called an Assistant United States Attorney who testified, inter alia, that he had indicated he would testify before the parole board in McFarland’s behalf.⁷

II. PROBLEM OF SUGGESTIVENESS IN THE VIEWING OF THE COLOR PHOTOGRAPHS

Appellant claims that the pretrial photographic identifications, and the suggestive circumstances surrounding them, tainted the identification testimony of the four eyewitnesses and thus deprived appellant of due process. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). This claim requires a showing that “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

There are undeniably troublesome aspects concerning the photographic identifications. Because three of the five black and white photos were unaccountably lost (see note 18), we cannot make a detailed analysis of the February 1966 identifications. However it is not without significance, in terms of perspective, that in seeking an identification with black and white photographs in February 1966, five months after the crime, the agents used facial mug shots as the vehicle for that identification, when in fact the witnesses had described the robbers to the police only in terms of height, weight, age and build. Though the identifications were “not positive,” and one of the witnesses expressly besought an opportunity to see the subjects in person, no arrangements were made for a lineup.

As to the May 1968 identifications, from color photographs shown on the eve of trial, the pictures are present in the record before us. It will be recalled that the only description at the time of arrest was in terms of being tall and of thin build. The color photographs in the record show that both Ash and Bailey are tall and slender, while the other three men whose photographs were used appear to be of stocky build. Despite the witnesses’ reliance at the time of the crime on description in terms of bodily characteristics, only-Ash and Bailey are pictured full-length; the other three subjects are cut off at mid-thigh, waist, and mid-chest, respectively. Finally, the photographs of Ash and Bailey, shown standing next to height poles, bear police identification numbers, while there are no such numbers on the other three photographs.

Without at the moment fixing the ultimate legal consequences it cannot be gainsaid that there are at the very least strong elements of suggestiveness in this color photo confrontation. The possibility of suggestiveness is not negatived by the witness’s weak response, for as Judge MacKinnon cogently pointed out —in the course of holding unduly suggestive a policeman’s presentation of colored photographs to the witness in the course of preparing for trial — “[T]he focus is on the photographic display itself and not on the reaction of the witness to it.” United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971). And the elements of suggestiveness cannot be justified on the ground of necessity, like that urged in Stovall. With the February 1966 photographic (black and white) identification yielding only tentative results, there was full opportunity to hold a lineup, organized so as to avoid any suggestiveness, during the two pre-trial years when appellant was in detention.

Certainly the elements of suggestiveness were strong enough so that it cannot be assumed that there was no undue suggestiveness in the absence of explicit findings by the trial court. As we have already noted (fn. 5), the court made no such finding, and if anything its independent source determination rested on an assumption of undue suggestiveness. If it were established that there was a legal defect in the showing of the color photographs the day before trial then as noted below (see fn. 20), it would be hard to accept the conclusion that they did not affect the in-court identification.

We are aware that there are indications offsetting in part the inference of undue suggestiveness. But they are hardly conclusive. The identifications at trial were weak, and in fact no stronger than those given two years before on the basis of the mug shots. In some cases the weakness of in-court identification may be a factor tending to indicate that pre-trial identification, though improper, failed to influence the witness’s testimony. Here, however, it was almost three years since the events in the bank in August 1966, events that passed swiftly, with appellant’s face seen by only two witnesses and by each of them only fleetingly. The color photographs in May 1968 can hardly be justified on the ground that the witnesses’ 1968 recollection had been reinforced by the showing of the black and white photographs in February 1966, even assuming that was entirely proper, since that was not only remote in time but was a showing of facial mug shots to witnesses who had not given a description in terms of facial characteristics. In the absence of intervening reinforcement by the color photos the in-court identification might well have been diluted to less than even a scintilla of substance. That the color photos may have been material in enabling the witnesses to provide a weak identification of the gunman in court is not negatived by the fact that the witnesses had such a void in the recollection of the unarmed offender that it was not revived by the color photographs.

We could not reject appellant’s substantial claim of impermissible suggestiveness without a more thorough hearing and more definite findings than this record presents. But we do not remand for this purpose because there is another objection to the photographic identification that establishes the need for reversal.

III. APPELLANT’S CONSTITUTIONAL RIGHTS WERE DENIED BY GOVERNMENT’S SHOWING OF COLOR PHOTOGRAPHS TO WITNESSES WITHOUT ATTENDANCE OF COUNSEL

We do not find it necessary to determine whether appellant’s Fifth Amendment rights were violated because the color photographs were impermissibly suggestive. In the circumstances of this case, defendant’s constitutional right to counsel at critical stages of the prosecution was violated when the Government, having him in custody, and having failed to arrange a corporeal lineup, made a photographic presentation to witnesses without attendance of counsel. The Government’s insistence on admission of these color photographs at the trial produced reversible error.

A corporeal lineup is a “critical stage” of the prosecution at which defendant is entitled to the aid of counsel, even though held prior to trial or even to the filing of formal charges. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). This court has been explicit to confirm the latitude and authority of the police to secure a suspect’s participation in a timely lineup, with counsel present, even though he is eligible for release on recognizance or bail, precisely because this is the means that best combines and assures both effectiveness and integrity of law enforcement investigation procedures. Williams v. United States, 136 U.S.App.D.C. 158, 161, 419 F.2d 740, 743 (en banc 1969); United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193 (1970); Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968), cert. denied sub nom Roots v. United States, 393 U.S. 1067, 89 S.Ct. 722, 21 L.Ed.2d 710 (1969).

In this case the Government did not avail itself of the opportunity it had, following defendant’s arrest, to hold a corporeal lineup. The presentation of color photographs subsequent to arrest— indeed on the eve of trial — was like a lineup as being a critical stage of the prosecution, requiring presence of counsel for Ash, within the meaning of Wade.

It is contended that Wade has no application whatever to pre-trial photographic identifications. We are aware that a majority of the courts that have ruled on the question have held Wade inapplicable to photographic viewings and identification.⁸ Some courts have mentioned the question without deciding it.⁹ Other decisions hold that Wade is applicable, or at least may be applicable in some measure to photographic identification.¹⁰

While we are aware of the view of a majority of the courts that have considered the matter, we are equally aware of instances in which the view advanced by a majority of circuit courts of appeals was rejected, and the contrary view of one or two circuits was finally upheld, by the Supreme Court. See, e. g., Kaufman v. United States, 394 U.S. 217, 220, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (sustaining the position taken by the 4th and 10th Circuits, and rejecting the position taken by the 2d, 3d, 5th, 6th, 7th, 9th and D.C. Circuits); Simmons v. United States, 390 U.S. 377, 392, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (sustaining the position taken by the D.C. Circuit; rejecting the position taken by the 4th, 5th, 7th, 8th and 10th Circuits); Putnam v. Commissioner of Internal Revenue, 352 U.S. 82, 84, 77 S.Ct. 175, 1 L.Ed.2d 144 (1956). The opinions of other appellate courts merit careful attention and consideration, and this we have accorded, but they are not controlling as precedent. Bound by our oath of office to give independent consideration to the constitutional claims, we conclude they should be sustained.

We conclude that the sound rule prescribes that in general, subject to certain exceptions, Wade and its requirement of presence of counsel, are applicable to a Government exhibition of photographs of a person in custody for an offense to witnesses called to identify the person who committed the offense.

The Third Circuit, on reconsideration of the problem, held in Zeiler (cited fn. 10) that once a defendant is taken into custody, he is entitled to have counsel present at any subsequent photographic lineup. While we think the rule is subject to exceptions, we agree with Zeiler’s analysis that the dangers of mistaken identification from uncounseled lineup identifications set forth in Wade are applicable in large measure to photographic as well as corporeal identifications. These include, notably, the possibilities of suggestive influence or mistake — particularly where witnesses had little or no opportunity for detailed observation during the crime; the difficulty of reconstructing suggestivity — even greater when the defendant is not even present; the tendency of a witness’s identification, once given under these circumstances, to be frozen. While these difficulties may be somewhat mitigated by preserving the photograph shown, it may also be said that a photograph can preserve the record of a lineup; yet this does not justify a lineup without counsel. The same may be said of the opportunity to examine the participants as to what went on in the course of the identification, whether at lineup or on photograph. Sometimes this may suffice to bring out all pertinent facts, even at a lineup, but this would not suffice under Wade to offset the constitutional infringement wrought by proceeding without counsel. The presence of counsel avoids possibilities of suggestiveness in the manner of presentation that are otherwise ineradicable.

The Pennsylvania Supreme Court, following Zeiler, stated in its Whiting opinion (cited in note 10) :

“As for the photographic lineup employed in the instant case, the necessity for counsel at that confrontation, is implicit in Wade, which factually concerned a corporeal lineup. Wade cannot be undercut simply by substituting pictures for people, nor can the police prepare a witness for the lineup by privately showing the witness pictures of the accused.”

We note that the Supreme Court denied certiorari in Whiting (see note 10). We note, too, that in its brief to the Supreme Court in the Wade case the Government argued (Br. 34, October Term 1966, at p. 7): “There is no meaningful difference between a witness’ pretrial identification from photographs and a similar identification made at a lineup.”

The precedents contrary to Zeiler are to some extent conclusionary, rather than analytical, and to some extent based on erroneous premises. The most analytical is United States v. Bennett, supra, wherein Judge Friendly concluded that the Sixth Amendment has no application to “out-of-court proceedings where the defendant himself is not present.” 409 F.2d at 899. This is, we think, too narrow a reading of this Sixth Amendment right. It is Judge Friendly’s view that a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone, and that this rationale has no relevance to situations where the defendant is not present. See 409 F.2d at 900. However, Wade itself demonstrates the possibility of other forms of prejudice, resulting not from actions of the defendant but from manipulations by others, that require counsel to be present. The fact that in one instance the manipulation may be of the defendant’s body, as in a lineup, and in another instance may be of his photograph, does not remove the need for protection.

Nor do we agree with the assertion in some decisions (supra note 8), that the application of Wade to photographic viewings held under the auspices of a prosecutor is tantamount to a requirement of counsel at every conference between the prosecutor and Government witnesses. As this court has noted, there is a crucial distinction between these two situations. The prosecutor cannot introduce testimony on direct of the statements given by a witness in an earlier interview with the prosecutor. But he may introduce the witness’s prior identification. United States v. Kirby, 138 U.S.App.D.C. 340, 342, n. 2, 427 F.2d 610, 612, n. 2 (1970). If the witness’s photographic confrontation was lawful, as the Government now contends, it would not only have independent standing as evidence, but indeed, as this court has already pointed out en banc, the testimony of a witness’s pre-trial identification is likely to have far more weight with the jury than the taken-for-granted in-eourt identification. Clemons v. United States, 133 U.S.App.D.C. 27, 40, 408 F.2d 1230, 1243 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). If the pre-trial identification is not deficient, and the witness is available for cross-examination, it is considered to have greater probative value than the in-court identification. Id. To say that the nature of a photographic viewing inherently establishes it as less than a critical stage of the prosecution is to blink reality.

There are instances in which a photographic exhibition — even though an event capable of being adduced at trial — is too preliminary and preparatory to be regarded as a critical stage of the prosecution requiring attendance of defense counsel. Certainly when a case is in the pre-arrest investigative stage there is justification for photographic viewings, assuming no undue suggestiveness, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). There is obvious need in terms of effective police investigation to ask the victim or other witness to view photograph books organized by the police in terms of modus operandi and nature of offense.

The Court recognized in Wade, 388 U.S. at 227-228, 87 S.Ct. at 1932-1933, 18 L.Ed.2d 1149, that certain “preparatory step[s] in the gathering of the prosecution’s evidence are not critical stages.”¹¹ This court has held that photographic viewings at the pre-arrest stage are not subject to the requirement of Wade and may be conducted in the absence of counsel or substitute counsel for the suspect. United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970). In United States v. Hamilton, 137 U.S.App.D.C. 89, 91, n. 6, 420 F.2d 1292, 1294, n. 6 (1969), we stated: “Counsel at an identification session designed to narrow the field of suspects, at a time when no one has been charged and there is no one in particular to represent, is an obvious impracticality.” In Kirby, however, we left open (see 427 F.2d at 612, n. 2) the question, whether “a right of counsel for photographic identification might be urged as to defendants who have been taken into custody on cause of having committed the offense.”

Essentially we are in accord with the premise of Zeiler that “[t]he considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody,” see 427 F.2d at 1307. There may be a limited exception to this requirement, derived from special circumstances, as in exceptional cases where there is an on-going investigation and time is of the essence, even though, as Zeiler noted, the need for photographs as a tool of investigation “is in most cases unnecessary” after the accused has been taken into custody. (See 427 F.2d 1307, note 3.) To the extent that there may be an exception it would be limited to a case of special circumstances, as in a case of investigative necessity where even the slight delay involved in attendance of counsel or substitute counsel would not be feasible without jeopardizing the effectiveness and fairness of continuing investigation. The police have a responsibility to proceed, taking the identification process as a whole, so that such an uncounseled photographic confrontation does not unnecessarily undercut the reliability of the subsequent counseled lineup.

There is no possible basis for invocation of the exception, for special circumstances like investigative necessity, in a case like that of Ash, where the Government officials failed to use their opportunity to arrange a corporeal lineup prior to indictment, and the photographic exhibition, without notice to counsel, to the eyewitnesses known to the police since the crime came not only after defendant’s arrest but after the indictment had issued and trial counsel had been appointed, and the day before the trial was to start. These facts not only decisively eliminate the possibility that this case comes within the exception rather than the general rule requiring counsel at post-arrest exhibition of photographs, but they establish an independent requirement of counsel even if Wade were not generally applicable to post-arrest exhibition of photographs; for it has been clear since Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), that the existence of authority in the police to continue investigations of suspects becomes subject to a constitutional obligation that precludes the use of evidence gained from him after indictment in the absence of his counsel.

We think it appropriate to develop considerations underlying our emphasis on the failure of the Government to arrange a corporeal lineup. We begin this discussion by noting, as the Supreme Court recognized in Simmons, that while a photographic viewing plays a useful role in effective investigation, particularly in the early stages, it inherently involves inescapable “hazards,” (390 U.S. at 384, 88 S.Ct. 967, 19 L.Ed.2d 1247), and may reflect significant shortfalls in reliability even when not so impermissibly suggestive as to rise to the level of denial of due process, see 390 U.S. at 386, n. 6, 88 S.Ct. 967, 19 L.Ed.2d 1247. An identification of a photograph, even out of a group, is manifestly of lesser stature and reliability than identification of the suspect himself out of a corporeal lineup. The reliability of a corporeal lineup is of course heightened by the attendance of the counsel or substitute counsel required under Wade. Such counsel have an appropriate role in remarking on any suggestivity in the lineup “and proposing changes to avoid suggestive features,” see United States v. Allen, 133 U.S.App.D.C. 84, 408 F.2d 1287, 1289 (1969). This role is particularly meaningful in conjunction with that part of Allen which puts forward the concept that the description of the suspect given by the witness to the police be available, see Spriggs v. Wilson, 136 U.S.App.D.C. 177, 419 F.2d 759 (1969). The law enforcement authorities also have an interest in avoiding detention or protracted detention of the innocent, and their exoneration is indeed one of the reasons set forth in Simmons (390 U.S. at 384, 88 S.Ct. 967, 19 L.Ed.2d 1247) for pre-arrest scrutiny of photographs.

This court has an abiding concern for and interest in ensuring a combination of fairness and intelligent and effective techniques in law enforcement. That is the hallmark of a decent society concerned with both order and justice. It has led us in the past to countenance personal confrontations that were both suggestive and in the absence of counsel when the circumstances, close in time and place to the offense, enhanced reliability for law enforcement and thus enhanced fairness.¹² This results not only in a “balance of pertinent interests,” ¹³ but in mutually reinforcing goals, as the same procedures result in both release of the innocent and enhanced opportunity to renew the search for and to apprehend the guilty, serving in both respects to further the proper interest of all citizens. These concerns stand at zenith for this court, which has jurisdiction and responsibility to supervise the administration of justice concerning the broad sweep of serious street crimes that beset the Nation’s capital, crimes in which identity is typically the central question.

Our judicial concern is for an approach to identification procedures that combines fairness with police responsibility and effectiveness. The police are likewise concerned with such a sound approach. We observe with approval that pertinent D.C. Metropolitan Police Regulations have instructions geared both to fairness of photographic identification and to assuring a follow-on corporeal lineup.¹⁴ The police concern with fair and timely identification procedures assures identifications that are (a) more reliable and (b) admissible in court— and with more impact than any in-court identification.¹⁵

It was the combined interests of fairness and effective police administration that led this court to approve judicial orders, on application of the prosecutor, that reinforced the long-standing police recognition of the need for corporeal lineups for persons taken into custody on photographic identification,¹⁶ by requiring the attendance at a police-conducted lineup of persons released on recognizance or bail.¹⁷ Orders may likewise be issued at the request of defense counsel, as has been done by various district judges in pretrial procedures.¹⁸

We do not consider in this opinion whether or to what extent its principle should be applicable in case of a photographic showing subsequent to a lineup. We make this clear because the judges concurring in Ash have differed in their votes in United States v. Brown, Proctor and Williams, No. 24,452, 149 U.S. App.D.C. -, 461 F.2d 134, a companion case to Ash, opinion filed this day. The dissenting opinions in Brown set forth the views of some of the judges concurring in this Ash opinion that its principles should in logic and fairness be extended to that case. Judge McGowan and I concluded that safeguards adequate for constitutional right of presence of counsel were present in Brown.19 But the differences among us relate to cases other than Ash, and do not qualify the concurrence, of all the judges voting for reversal of the Ash conviction, in the Ash opinion’s statement of the principles which we conclude require reversal.

Another case where there was a corporeal lineup was United States v. Hines & Ware, No. 23,281, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1971). This court, there decided that when a witness has already identified the defendant at a counseled lineup the prosecutor may, without advance notification of defense counsel, review the identification already made by the witness through the use of photographs, to refresh his memory, in a session preparatory for his testimony at a court hearing. The same rule was also applied as to a witness whose prior identification of defendant was at a confrontation that was not attended by counsel because it came within the exception of Russell v. United States, (cited supra,, note 12). In these cases, where the witness had already made a reliable physical identification, there was a safeguard lacking in Brown, where the witness failed to identify the defendant when she attended counseled lineup. But Brown is limited — as has been noted— to the use of a photograph of the counseled lineup.

IY. CONCLUSION AND REMAND ORDER

Although there was no requirement of counsel at the presentation of black and white photographs in February, 1966, these were facial photographs, shown to witnesses who had not' given the police any description of facial features. The identifications were “not positive,” and indeed the witness who was most clear only made an identification to the best of his belief, saying he could be more positive if he could see defendant in person. Yet there was no arrangement for a corporeal lineup. In 1968, on the day before trial, long past the time when active investigation of the case had ceased, the Government showed color photographs to the witnesses, without notice to defense counsel. We hold this 1968 showing was a “critical stage” of the prosecution, at which defense counsel’s presence was required unless waived. There was prejudicial error at the trial when the prosecutor insisted that the jury see the color photograph of Ash, entrenching that pre-trial identification, and notwithstanding the objection of counsel for Ash pointing out the prejudice to - Ash the trial court ruled it would be received in evidence.

Appellant is entitled to a new trial at which the court will exclude prosecution evidence of the identifications made on the color photographs. At that trial the prosecution may tender witnesses to make in-eourt identifications of Ash. If it had been necessary to decide that issue as to the trial already held we doubt that we could sustain a finding of independent source.²⁰ But the situation may be different as to in-court identification testimony offered at a new trial,²¹ if determinations as to independent source are based on careful analysis of the issues (see fns. 10 and 20), including findings as to suggestiveness or not, and careful examination of the proposed witnesses at a pretrial hearing.

If a new trial is held, there would have to be a determination of appellant’s claim that his constitutional right of speedy trial was violatd by the delay between the April 1966 indictment and the May 8, 1969, trial. Although there appears to be considerable substance in the Government’s claim that this was primarily due to appellant’s own doings, including non-eooperation with defense counsel, in view of the skimpy record before us we conclude this issue should be left for further exploration by the trial judge if a new trial is sought.

We reverse and remand for further proceedings not inconsistent with this opinion.

So ordered.

1 . Count one charged the crime of entering a federally insured bank with the intent to commit robbery therein, 18 U.S.C. § 2113 (a) ; counts two and four, robbing two tellers in violation of 18 U.S.C. § 2113 (a) ; counts three and five, robbing the same two tellers, this time in violation of 22 D.C.Code § 2901.

2 . Appellant also contends that the trial judge erred in refusing to allow him to see the grand jury minutes, and in refusing to allow him to put on certain testimony. We find no error in either of these rulings. Although appellant himself was denied opportunity to examine the minutes, his attorney was permitted to see them. The excluded testimony constituted only collateral impeachment. The exclusion would not have been reversible error even if the testimony had been offered by counsel.

Counsel raised the issue of denial of speedy trial, referred to in Part IV of this opinion.

3 . The long delay was due to a number of factors. Appellant filed numerous pro se motions in the trial court, and changed counsel no fewer than four times. Appellant also underwent two psychiatric ex-animations at St. Elizabeths to determine his competency to stand trial. Trial was also continued on a number of occasions because of the unavailability of Government counsel.

4 . To avoid prejudice under the ruling of Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966).

5 . At this juncture the judge ruled that the Government had met its burden of showing that the identification was based on observation of the suspect other than the intervening photographic presentation. The following day, when pre-trial questioning of Mrs. Apple by Bailey’s counsel went into the subject of color photographs, apparently to elicit that they were suggestive, the judge sustained the prosecutor’s objection, saying that “the question is whether the identification was unnecessarily suggestive,” and that this was a question for the trial court. We do not see how this comment justifies the limitation of the testimony, but it suffices at this point to note that the judge did not make a finding that the color photographs were not unduly suggestive, and if anything the finding of independent source rested on an assumption that they were unduly suggestive.

6 . If the trial judge had been in accord with our constitutional premise, we are confident that he would — and we hold that he should — have sustained the objection of Ash’s counsel, and not have ruled, as he did, that the photographs were admissible because the subject of photographic identification had been “opened up” by “the defense,” meaning counsel for Bailey.

The threshold objection of Ash’s counsel was not waived, in our view, by his accession — in the face of the court’s ruling— to a procedure whereby (a) all five photographs would be admitted (“that might avoid prejudice against Ash”), and (b) be admitted by stipulation — to resolve a squabble whether the photographs, already held admissible, should be offered by Bailey’s counsel or the prosecutor.

7 . It appears from the testimony of these witnesses that McFarland had been before the grand jury with regard to five separate offenses, in addition to his bank robbery, and had not been indicted on any of them, including one in which he had confessed guilt. The Assistant United States Attorney had arranged to have McFarland transferred from the D.C. Jail to a local jail in Rockville, Maryland, and in addition had helped McFarland’s wife move from Southeast Washington to an apartment near the parochial school that McFarland’s children were due to attend.

8 . See, e. g., United States v. Bennett, 409 F.2d 888 (2d Cir.), cert. denied sub nom Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969); United States v. Ballard, 423 F.2d 127 (5th Cir. 1970); United States v. Robinson, 406 F.2d 64 (7th Cir.), cert. denied 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 243 (1969); McGee v. United States, 402 F.2d 434 (10th Cir. 1968), cert. denied 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); Baldwin v. State, 5 Md.App. 22, 245 A.2d 98 (1968); State v. Stamey, 3 N.C.App. 200, 164 S.E.2d 547 (1968); People v. Lawrence, 4 Cal.3d 273, 93 Cal.Rptr. 204, 481 P.2d 212.

9 . Some courts have refused to decide the issue, either because the identification occurred prior to Wade, or there was evidence of independent source or the record did not present the issue adequately. United States v. Butler, 426 F.2d 1275 (1st Cir. 1970); United States v. Marson, 408 F.2d 644 (4th Cir. 1968) (Winter, J., concurring and dissenting), cert. denied 393 U.S. 1056, 89 S.Ct. 695, 21 L.Ed.2d 698 (1969); United States v. Quarles, 387 F.2d 551 (4th Cir. 1967), cert. denied 391 U.S. 922, 88 S.Ct. 1815, 20 L.Ed.2d 659 (1969); United States v. Valez, 431 F.2d 622 (8th Cir. 1970).

10 . United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970); Commonwealth of Pennsylvania v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970). See also United States v. Marson, supra, note 9, 408 F.2d at 651 (Winter, J., concurring and dissenting); Thompson v. State, 85 Nev. 134, 451 P.2d 704, cert. denied, 396 U.S. 893, 90 S.Ct. 189, 24 L.Ed.2d 170 (1969).

Zeiler involved two trials. As to eacli trial, reversal was held required because the prosecution had elicited the previous identification of Zeiler during the pretrial exhibition of photographs: “This error in itself requires reversal of both convictions.” 427 F.2d at 1307.

As to tlie conviction obtained in the “second trial” held in June 1968, the court remanded for a new trial at which the witness “shall not be permitted to identify the accused,” because it inspected the photographs shown to the witnesses, concluded they were “unnecessarily suggestive,” and thought the District Court’s determination that the prosecutor had established that the in-court identification had not been influenced by the prior improper photographic confrontation “was not a permissible conclusion.” (427 F.2d at 1308).

As to the conviction in the “first trial” held in January, 1968 (Criminal No. 67-186), the court did not know “what photographs were shown to the identifying witnesses in the absence of counsel.” It therefore remanded for a hearing on the admissibility at retrial of in-court identification. In a subsequent opinion, following the remand, the court determined that the Government had established by clear and convincing evidence that in-court identifications by the witnesses involved would “have an origin independent of any photographic identification made outside the presence of counsel.” United States v. Zeiler, 447 F.2d 993 (3d Cir. 1971). For purposes of determining this issue, the court naturally considered whether the photographic identification was suggest) ve. However, testimony of the photographic identification itself was impermissible— and required a new trial whether or not “suggestive” — because of the court’s rule that “once an accused is taken into custody, he is entitled under the Sixth Amendment to have counsel present whenever law enforcement authorities confront witnesses with a series of photographs for identification.” 447 F.2d at 994.

11 . Since a photographic lineup is as much subject to the risk of influence and mistake as a corporeal lineup, it is clearly distinguishable from other investigative techniques, such as the analysis of fingerprints, blood samples and the like, which the Supreme Court in Wade held to be mere “preparatory steps” not subject to the Sixth Amendment right to counsel. Wade, supra, 388 U.S. at 227, 87 S.Ct. 1926, 18 L.Ed.2d 1149. These modes of circumstantial proof, depending as they do on scientific and technical comparisons, lack the risk of error, or at least undetectable error, that attends the more subjective comparison between memory and photograph.

12 . Russell v. United States, 133 U.S.App.D.C. 77, 79-81, 408 F.2d 1280, 1282-1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969), citing Wise v. United States, 127 U.S.App.D.C. 279, 282-283, 383 F.2d 206, 209-210 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968).

13 . See Wise v. United States, supra note 12, 127 U.S.App.D.C. at 283, 383 F.2d at 210.

14 . Tlie D.O. Metropolitan Police regulations dealing with photographic identification provide that a suspect’s photograph must be grouped with at least eight others of the same general description, that adequate records of the photographs must be kept, and that each witness must view the photographs out of the immediate presence of other witnesses. They also provide that the police shall notify the prosecutor so that arrangements can be made in order to assure that the photographic identification is followed by a corporeal lineup. Memorandum Order on Procedures for Obtaining Pretrial Eyewitness Identification, May 15, 1970.

15 . The fair pre-trial identification procedures also reduce the possibility of any constitutional interposition against an in-court identification, and of a claim that this must override the provision, in 18 U.S.C. § 3502, for the admissibility of in-court identification by eyewitnesses.

An in-court identification is taken for granted by the jury, especially since the trial setting itself focuses on the defendant at counsel table with a “strong suggestiveness,” see United States v. Gam-brill, supra, 449 F.2d at 1158.

16 . See, e. g., Dorman v. United States, 140 U.S.App.D.C. 313, 325, 435 F.2d 385, 398 (en banc 1970).

17 . Williams v. United States (Coleman v. United States) 136 U.S.App.D.C. 158, 161, 419 F.2d 740, 743 (en banc 1969); Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).

18 . United States v. McNair, 140 U.S.App.D.C. 26, 433 F.2d 1132 (1970). The judge may order that the lineup be conducted, of course in the presence of counsel, by the police, and thus take advantage of facilities of space, photography and personnel geared to fair lineup procedures. If the prosecution has good reason for deferring disclosure of the names of identification witnesses, the court may issue an appropriate protective order, or may consider lineups conducted on the eve of trial or during its course.

19 . Judge McGowan and I would stress the presence of defense counsel at the prior corporeal lineup, as protecting against identification errors attributable to mischance, clumsiness or excess police zeal, and the limitation of the Brown ruling to presentation of a photograph of such a counseled lineup, to a witness who attended that lineup, by the prosecuting attorney. We considered the possibility of prejudice to be minimal and the sound functioning of the prosecuting attorney’s preparation for trial to be material.

We were aware that there can be no absolute guarantee against possibility of prejudice to the defendant, but concluded its minimal quality was underscored by the pr-osecuting attorney’s awareness of the need for a complete and candid exposition of any process resulting in a change from the failure of the witness to make the identification when defense counsel was present at the lineup. It is perhaps not immaterial that the Brown tral, following our en banc order of March 15, 1971, permitting the photographic identification, resulted in an acquittal.

It is the premise of our Brown ruling that the problem of impedance of justice by steering is so insubstantial in the case of a prosecuting attorney — who has standing as an officer of the court, apart from the deterrence inherent in his jeopardizing of his professional career — as not to warrant the hindrance on the straightforward preparation for trial by busy prosecuting attorneys that would be involved in a second attendance by defense counsel at a showing of a photograph of a lineup already attended by defense counsel at the corporeal stage.

20 . The Government has the burden of proving independent source by clear and convincing evidence. Here the witnesses could refer only to the observations at the time of the crime, 33 months before, which, because of disguise or fleeting character of the observations, were of such a nature that the description given by the witnesses to the police made no reference whatever to facial characteristics. In view of such considerations, and the absence of a lineup, it is hard to see how the Government can be held to have shown, by clear and convincing evidence, that these color photographs did not affect the in-court identification made one day later. (Anthony) Long v. United States, 137 U.S.App.D.C. 311, 316, 424 F.2d 799, 804 (1969), United States v. Gambrill, supra. The trial court did not address itself to these considerations when it made an independent source ruling. If it liad been necessary to decide that issue, we would at a minimum have remanded for elucidation by the trial court of the basis of its ruling.

21 . There may be differences as to the facts: The showing of the color photographs would not be so close to trial. On the other hand, if the 1968 in-court identification was tainted, that — together with the 1968 color'photograph presentation— might be found to affect any new in-court identification. The trial judge would be obligated to approach any determination on the issue of independent source only after careful examination of each of the proposed witnesses.

There may be a difference in the legal situation due to the subsequent enactment of 18 U.S.C. § 3502. We intend no comment either on the applicability vel non of this statute to a retrial following reversal of a conviction prior to its enactment, or to possible constitutional limitations on its application.