No. 10-8974 IN THE Supreme Court of the United States BARION PERRY, v. Petitioner, STATE OF NEW HAMPSHIRE, Respondent. ON WRIT OF CERTIORARI TO THE NEW HAMPSHIRE SUPREME COURT REPLY BRIEF RICHARD GUERRIERO PUBLIC DEFENDER Counsel of Record DAVID ROTHSTEIN DEPUTY CHIEF APPELLATE DEFENDER CHRISTOPHER JOHNSON CHIEF APPELLATE DEFENDER HEATHER WARD ASSISTANT APPELLATE DEFENDER LISA WOLFORD ASSISTANT APPELLATE DEFENDER NEW HAMPSHIRE APPELLATE DEFENDER PROGRAM 2 White Street Concord NH 03301 603-228-9218 rguerriero@nhpd.org Attorneys for Petitioner 238325 A (800) 274-3321 (800) 359-6859
i TABLE OF CONTENTS TABLE OF CITED AUTHORITIES........... Page iii INTRODUCTION............................ 1 ARGUMENT................................ 1 I. This Court s Cases Do Not Support The Manipulated Evidence Argument Offered By Respondent And The United States.... 1 II. To The Extent That Respondent And The United States Accept That Unintentional Police Involvement In An Identification Implicates Due Process, They Agree That Perry Deserves Relief.................. 4 III. The Risk Of Misidentification Is This Court s Primary Concern With Eyewitness Identification Evidence Arising From Suggestive Circumstances......... 6 IV. Stovall And Coleman Do Not Support The Position Of The Respondent And The United States.......................... 8 V. The Non-Eyewitness Identification Cases Cited By Respondent And The United States Do Not Support Their Position..... 10
ii Table of Contents Page VI. The Only Evidence Excluded From Trial Under This Court s Eyewitness Cases Is Evidence Which Has No Legitimate Value For The Prosecution.... 14 CONCLUSION.............................. 16
iii TABLE OF CITED AUTHORITIES CASES Page Berger v. United States, 295 U.S. 78 (1935).......................... 2, 3 Coleman v. Alabama, 399 U.S. 1 (1970)....................... 3, 8, 9, 10 Dowling v. United States, 493 U.S. 342 (1990)......................... 10 Dunnigan v. Keane, 137 F.3d 117 (2d Cir. 1998)................... 12 Foster v. California, 394 U.S. 440 (1969)......................... 3, 13 Green v. Loggins, 614 F.2d 219 (9th Cir. 1980).................. 12 Lisenba v. California, 314 U.S. 219 (1941)........................ 2, 3, 10 Manson v. Brathwaite, 432 U.S. 98 (1977)....................... passim Medina v. California, 505 U.S. 437 (1992)........................ 10, 11 Mooney v. Holohan, 294 U.S. 103 (1935)......................... 2, 3
iv Cited Authorities Page Moore v. Illinois, 334 U.S. 220 (1977)......................... 5 Neil v. Biggers, 409 U.S. 188 (1972)...................... passim Simmons v. United States, 390 U.S. 377 (1968)...................... passim State v. Pseudae, 154 N.H. 196 (2006)......................... 14 Stovall v. Denno, 388 U.S. 293 (1967)...................... 2, 3, 8, 9 Thigpen v. Cory, 804 F.2d 893 (6th Cir. 1986).................. 12 Thompson v. Mississippi, 914 F.2d 736 (5th Cir. 1990), cert. denied, 498 U.S. 724............................... 12 United States v. Bouthot, 878 F.2d 1506 (1st Cir. 1989)................. 12 United States v. De León-Quiñones, 588 F.3d 748 (1st Cir. 2009).................. 12 United States v. Elliot, 915 F.2d 1455 (10th Cir. 1990)................ 12
v Cited Authorities Page United States v. Thevis, 665 F.2d 616 (5th Cir. 1982).................. 12 United States v. Wade, 388 U.S. 218 (1967)...................... passim
1 INTRODUCTION Barion Perry challenged the suggestive eyewitness identification evidence in his case on due process grounds and according to principles long recognized by this Court. Contrary to the arguments of Respondent and the United States, Perry did not and does not advocate for a new rule or a change in the law. Specifically, Perry does not argue that all unreliable evidence should be inadmissible as a matter of due process. Rather, Perry objects to the New Hampshire Supreme Court decisions which grafted a new requirement of improper state action onto this Court s holdings. Neither the New Hampshire Supreme Court s opinions, nor the arguments offered by Respondent and the United States, are supported by this Court s case law. Thus, the lower courts improperly refused to consider Perry s due process claim. This Court should grant relief so that Perry s claim may be heard. Perry replies to the briefs of Respondent and the United States as follows: ARGUMENT I. This Court s Cases Do Not Support The Manipulated Evidence Argument Offered By Respondent And The United States. In an effort to show that improper police conduct is a prerequisite to due process protection, Respondent and the United States argue that this Court s identification cases were only intended to address suggestive circumstances created by police manipulation. Respondent s brief repeatedly identifies manipulation as the core concept
2 of this Court s decisions. Resp. Br. 10, 11, 19, 28, 29, 36, 39-42. Respondent claims that the inescapable conclusion is that the due process concern at issue was whether the State or the government was manipulating identification evidence and then using it at trial. Resp. Br. 36. Similarly, the United States claims that, in United States v. Wade, 388 U.S. 218 (1967), the Court was focused on whether the police could manipulate the lineup to suggest that a certain person is the perpetrator of the crime. U.S. Br. 10. Thus, the United States concludes that, In every one of the decisions addressing due process limitations on eyewitness identification testimony, the Court was motivated by concerns that police would fashion procedures that would suggest to a witness that a particular suspect was the perpetrator, which could lead the witness to choose the wrong person. U.S. Br. 14. The manipulated evidence argument is premised on decisions written decades before the eyewitness cases. Respondent says that, by the time of Stovall, the use of manipulated evidence by the prosecution had long been recognized as a due process violation. Resp. Br. 28. In support of that point, Respondent cites Lisenba v. California, 314 U.S. 219 (1941), Mooney v. Holohan, 294 U.S. 103 (1935), and Berger v. United States, 295 U.S. 78 (1935). Resp. Br. 28-29. See also U.S. Br. at 22-24. Respondent quotes Lisenba to the effect that such manipulation is similar to fraud, collusion, trickery and subornation of perjury. Resp. Br. 37. Respondent then attempts to connect Lisenba, Mooney, and Berger to the Court s eyewitness identification cases by claiming that the reasoning in the eyewitness identification cases focused on whether there was deliberate manipulation by the police to suggest identification of a particular suspect. Resp. Br. 36.
3 The flaw in Respondent s analysis is that the Stovall to Brathwaite line of cases never makes any connection to Lisenba, Mooney, or Berger. 1 The eyewitness cases do not cite Lisenba, Mooney, or Berger or discuss manipulation, fraud, collusion, or trickery. See Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188 (1972); Coleman v. Alabama, 399 U.S. 1 (1970); Foster v. California, 394 U.S. 440, (1969); Simmons v. United States, 390 U.S. 377 (1968); Stovall v. Denno, 388 U.S. 293 (1967); Wade, 388 U.S. 218. The eyewitness identification cases covered ten years, from 1967 to 1977. Simmons reiterated, in the photo identification context, the concerns Wade first identified regarding eyewitness identification evidence. Simmons, 390 U.S. at 383. Foster overturned a conviction based on unnecessarily suggestive circumstances which gave rise to an unreliable identification. Foster, 394 U.S. at 443. In both Biggers and Brathwaite the Court described its prior holdings and reasoning at length. Biggers, 409 U.S. at 196-99; Brathwaite, 432 U.S. at 104-07, 109-14. If those cases were based on a guiding principle derived from Lisenba and focused on a concern with manipulated evidence, the Court would have said so. Moreover, contrary to the arguments of Respondent and the United States, the Court did not limit its concern to deliberate police manipulation of identification evidence. Rather, the Court expressly included circumstances where the suggestive influences were not intended by the police. The Court said in Wade that, Suggestion can be 1. The only reference to Lisbena, Mooney, or Berger, in this Court s eyewitness identification opinions is Justice Black s dissent in Wade where he cites Berger and Mooney. Wade, 388 U.S. at 258.
4 created intentionally or unintentionally in many subtle ways. Wade, 388 U.S. at 229 (emphasis added). The Court emphasized that it was not motivated by police procedures intentionally designed to prejudice the accused but rather by the dangers inherent in eyewitness identification and the suggestibility inherent in the context of pretrial identification. Id. at 235. When the Brathwaite Court referred back to this reasoning as the driving force behind the eyewitness identification opinions, the Court said Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. Brathwaite, 432 U.S. at 112. Nowhere in the Court s explanation of the driving force behind its decisions does the Court limit its concern to the manipulation of eyewitness identification evidence. II. To The Extent That Respondent And The United States Accept That Unintentional Police Involvement In An Identification Implicates Due Process, They Agree That Perry Deserves Relief. Perry explained in his brief that this Court s cases do not premise due process protections on police involvement at the time of the alleged suggestive circumstances because the state action which implicates the Due Process Clause is the State s use of the suggestive eyewitness identification evidence at trial. Br. 8-17, 27-29. Respondent and the United States disagree with Perry s analysis, but in doing so they fail to account for the role the police played in Perry s case and they appear to endorse, at least at some points, a theory which would entitle Perry to relief. The United States describes police involvement as a prerequisite to the application of due process principles.
5 U.S. Br. 6, 8, 16, 18, 21, 23, 24. The United States also acknowledges at one point that unintentional police suggestion implicates due process. U.S. Br. 17. Similarly, Respondent seems to also acknowledge, while discussing Moore v. Illinois, 334 U.S. 220 (1977), the language in Wade that unintentional... suggestion... from a police officer is sufficient to implicate due process. Resp. Br. 38; Wade, 388 U.S. at 229. While this Court s case law does not require state action or police involvement in the suggestive circumstances, Br. 8-17, 27-29, to the extent that Respondent and the United States acknowledge that unintended suggestion arising from police presence is sufficient to implicate due process, they must concede that the lower courts erred in refusing to consider Perry s due process challenge. Perry argued to the trial court and the New Hampshire Supreme Court that he was effectively identified in a showup. JA 78a, 86a, 425a-26a. He argued that the presence of the uniformed officer next to him, as well as the other police presence on the scene, provided context clues to Ms. Blandon. 2 The trial court described the situation as: he s [Perry s] standing there next to another police officer and there s only two people in the lineup and one of them is dressed in blue, a description to which the prosecutor responded, that s true. JA 47a. On that basis, Perry argued that the circumstances, especially the police presence, suggested to Ms. Blandon that Perry was the suspect and this led her to identify him even though she 2. Defense Counsel argued to the trial court at the suppression hearing: [T]hese are powerful context clues... uniformed police officers, cruisers, things like that. When you remove the context clues... she failed to make an identification. JA 78a.
6 was never able to describe his clothes or face. JA 78a. Perry repeated these claims in his brief to this Court. Br. 34-35. Obviously, the ultimate position of Respondent and the United States is that something more is required, and that there must be some intentional orchestration or improper conduct as held by the New Hampshire Supreme Court. Nevertheless, their references to unintentional involvement of the police in the suggestive situation are significant and reveal (1) a failure to recognize the impact of apparent police suspicion on Ms. Blandon s identification, and (2) the inconsistency between Respondent s arguments and this Court s case law. III. The Risk Of Misidentification Is This Court s Primary Concern With Eyewitness Identification Evidence Arising From Suggestive Circumstances. In arguing that police misconduct is a prerequisite to a due process claim, Respondent and the United States assert that Perry overemphasizes and mischaracterizes the Court s concern with the risk of misidentification which may arise from unreliable suggestive eyewitness identification evidence. Resp. Br. 39-40. Both briefs in opposition describe the Court s primary concern as police misconduct rather than the risk of misidentification. Resp. Br. 10, 41; U.S. Br. 6-7. Respondent recognizes this Court s conclusion in Brathwaite that reliability is the linchpin in determining the admissibility of identification testimony, Brathwaite, 432 U.S. at 114, but claims that Perry has wrenched that passage from Brathwaite out of context. Resp. Br. 40. The United States argues that the question of reliability only arises after it is established that police
7 conduct has unfairly influenced an identification. U.S. Br. 19. Both are incorrect. The Court s concerns with eyewitness identification evidence and the risk of misidentification have not been limited to circumstances of intentional misconduct by the police. The Court has not written that improper police conduct during an eyewitness identification violates the Due Process Clause. To the contrary, the Court said that a showup without more does not violate due process. Biggers, 409 U.S. at 198. Instead of focusing on whether the police acted improperly or unfairly, as Respondent and the United States claim, the Court has consistently focused on the risk of misidentification. In Biggers, the Court reviewed the earlier identification cases and concluded that It is, first of all, apparent that the primary evil to be avoided is a very substantial likelihood of irreparable misidentification. Id. (quoting Simmons, 390 U.S. at 384). The risk of misidentification is the primary evil because, It is the likelihood of misdentification which violates a defendant s right to due process. Id. Similarly, as described above, Brathwaite said, Wade and its companion cases reflect a concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability. Brathwaite, 432 U.S. at 112. Therefore, contrary to the arguments of Respondent and the United States, this Court has explicitly identified its primary concern as the risk of misidentification presented by unreliable eyewitness identification evidence arising out of suggestive circumstances. The Court has
8 not limited its concern to circumstances of intentional police misconduct. IV. Stovall And Coleman Do Not Support The Position Of Respondent And The United States. In Stovall, the witness was hospitalized after having been attacked in her home by an intruder who also killed her husband. Stovall, 388 U.S. at 295. Fearing that the witness might not survive, the police brought the defendant to the hospital. Id. at 302. The defendant was the only black man in the room surrounded by a group of white law enforcement officers. Id. In spite of these circumstances, the Court found that the witness s identification of the defendant in the hospital room and at trial were both admissible over due process objections. Respondent and the United States claim that the Stovall decision was made with complete disregard of the reliability of the identification evidence and that the Court s sole consideration was the necessity of the suggestive identification procedure. Resp. Br. 35; U.S. Br. 18. Respondent and the United States are incorrect, as both Stovall and this Court s later readings of Stovall, demonstrate. The Stovall Court said that due process protects against an identification that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall, 388 U.S. at 302. The Court did not limit itself to considering only the necessity created by the witness s hospitalization but instead said that the claimed violation of due process depended on the totality of the circumstances. Id. Subsequently, in Biggers and
9 Brathwaite, the Court made clear that the deciding factor in Stovall was the risk of misidentification. The Biggers Court described the Stovall decision and explained that it was consistent with the restated test in Simmons. Biggers, 409 U.S. at 197 (quoting from Simmons, 390 U.S. at 377). The Biggers Court then followed its summary of prior case law, including Stovall, by stating that it is the likelihood of misidentification which violates a defendant s right to due process. Id. at 198. Finally, the Brathwaite Court said that Biggers examined prior cases, including Stovall, and concluded that the central question is whether under the totality of the circumstances the identification was reliable.... Brathwaite, 432 U.S. at 106 (quoting from Biggers, 409 U.S. at 199). For these reasons, Respondent s claim that Stovall was not decided on the basis of reliability is incorrect. The Stovall Court s decision was that, considering the totality of the circumstances, especially the emergency, there was not a very substantial likelihood of misidentification. In Coleman, the witness was shot by an assailant during a roadside attack. 399 U.S. at 3-4. Notwithstanding his condition, the witness said he got a real good look at the attacker. Id. He identified the defendant during a police station identification procedure. Id. at 5. He later identified the defendant at trial. A plurality of this Court rejected the defendant s due process claim that the suggestive procedures at the police station tainted the later in-court identification. The United States claims that Coleman is a case where the Court disregarded suggestive circumstances because they were not created by the police. U.S. Br. 6-7, 20-21. The Court should reject this reading of
10 Coleman. Coleman s claim failed because the only source of suggestion which he identified was the behavior of the police. Coleman, 399 U.S. at 3. When the plurality opinion denied Coleman s claim, it simply concluded that the suggestion Coleman alleged either did not occur or was minimal. Id. at 6. Moreover, contrary to Respondent s argument that Coleman was decided solely by looking at whether the police created suggestive circumstances, the Court considered whether the lineup procedure was so suggestive as to create a very substantial likelihood of misidentification. Id. at 5. Finally, as with the reading of Stovall, the interpretation the United States gives to Coleman is undermined by this Court s own later reading of the case which identifies the risk of misidentification as the central concern. Biggers, 409 U.S. at 198; Brathwaite, 432 U.S. at 106. V. The Non-Eyewitness Identification Cases Cited By Respondent And The United States Do Not Support Their Position. Both Respondent and the United States rely on Dowling v. United States, 493 U.S. 342 (1990) and Medina v. California, 505 U.S. 437 (1992) for various general propositions of constitutional law. Resp. Br. 9, 14-15, 18, 41; U.S. Br. 22-23, 32. Neither of those cases discusses or cites this Court s eyewitness identification cases. As with the manipulated evidence argument based on Lisenba, there is no basis on which to believe that the Court intended Dowling or Medina to change the operative principles of the eyewitness identification cases. Nevertheless, Respondent and the United States cite Dowling for the proposition that this Court already has
11 declined to hold that the Due Process Clause imposes a threshold of evidentiary reliability in criminal trials. U.S. Br. 23. See also Resp. Br. 18. This broad proposition is accompanied by the implication that Perry urges the Court to adopt a due process reliability test for all evidence offered at criminal trials. Resp. Br. 13 (Petitioner asserts that the Due Process Clause requires preliminary reliability determinations for testimony generally. ); U.S. Br. 21 ( The due process clause does not impose a general threshold of evidentiary reliability in criminal cases. ). In the same vein, Respondent and the United States invoke Medina to claim that granting relief to Perry would constitutionalize the rules of evidence, U.S. Br. 31, and unduly interfere in the affairs more properly left to the judgment of each individual state. Resp. Br. 9, 14-15. Perry does not advocate for an expansion or creation of due process rights as claimed by Respondent and the United States. He does, however, rely on this Court s holding that suggestive eyewitness identification evidence may be so unreliable as to create a risk of misidentification which violates due process. Brathwaite, 432 U.S. at 113 (The standard for the admissibility of suggestive eyewitness identification evidence is fairness as required by the Due Process Clause of the Fourteenth Amendment. ) Nor does Perry seek any change in the law that would open the floodgates to new claims. Perry simply asks to have his case heard according to the due process principles set forth in the cases already decided by this Court. Perry s arguments are based on the text and the stated rationale of those opinions. His interpretation is no more radical than the interpretation already adopted by federal courts of appeal in six circuits.
12 See United States v. De León-Quiñones, 588 F.3d 748, 754-56 (1st Cir. 2009) ( federal courts should scrutinize all suggestive identification procedures, not just those orchestrated by the police )(quoting United States v. Bouthot, 878 F.2d 1506, 1515-16 (1st Cir. 1989)); Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998), cert. denied, 525 U.S. 840 (1998) ( the linchpin of admissibility, therefore, is not whether the identification testimony was procured by law enforcement officers, as contrasted with civilians, but whether the identification is reliable ); Thompson v. Mississippi, 914 F.2d 736, 739 (5th Cir. 1990), cert. denied, 498 U.S. 724 (even in the absence of state action a court must scrutinize any pretrial confrontation for possible due process violations (quoting United States v. Thevis, 665 F.2d 616, 643 (5th Cir.1982)); Thigpen v. Cory, 804 F.2d 893, 895-97 (6th Cir. 1986)( deterrence of police misconduct is not the basic purpose for excluding identification evidence ); Green v. Loggins, 614 F.2d 219, 222-23 (9th Cir. 1980)( a court is obligated to review every pretrial encounter, accidental or otherwise, in order to insure that the circumstances of the particular encounter have not been so suggestive as to undermine the reliability of the witness subsequent identification ); United States v. Elliot, 915 F.2d 1455, 1457 (10th Cir. 1990)(applying due process principles to an in-court identification by a witness who had seen a photo of the defendant in a newspaper). Respondent and the United States also discuss a number of cases which establish the trial rights afforded criminal defendants by the constitution. Both emphasize the right to counsel, the right to confrontation and cross-examination, and the right to a jury trial. Resp. Br. 20-28; U.S. Br. 22, 27-30. Perry agrees that, when suggestive eyewitness identification evidence is admitted
13 at trial, these are important rights which help a defendant challenge the evidence. See Brathwaite, 432 U.S. at 113. However, neither Respondent nor the United States reconciles its arguments with the express statements in Wade, Simmons, and Brathwaite that those trial rights are sometimes inadequate to address the unique dangers of suggestive eyewitness identification evidence. In Brathwaite, the Court described the dangers of suggestive eyewitness identification evidence and concluded, notwithstanding the importance of the right to a jury trial, that a jury should not hear eyewitness testimony unless that evidence has aspects of reliability. Brathwaite, 432 U.S. at 112. In Simmons the Court described how suggestive photographs may affect a witness s memory so that what is retained is the image of the photograph rather than of the person actually seen. Simmons, 390 U.S. at 383-84. Most significantly, Wade explains that a defendant s trial rights are not always adequate because [t]he trial which might determine the accused s fate may well not be that in the courtroom but instead the identification made prior to trial. Wade, 388 U.S. at 235-36. Once a witness has been exposed to suggestive circumstances and has declared that s the man, the normally precious safeguard of cross-examination cannot be viewed as an absolute assurance of accuracy and reliability. Wade, 388 U.S. at 229, 235. Finally, Respondent and the United States fail to note that their argument is the same argument made by Justice Black, in dissent, but not accepted by the Court. Br. 13. See Foster, 394 U.S. at 446-51. The circumstances of Perry s identification involve the dangers which concerned this Court. From the perspective of Ms. Blandon, it made no difference whether
14 the police intended for her to look down and see Perry standing next to Officer Dunn or whether it was purely an accidental showup. As far as Ms. Blandon knew, she called the police because she saw a crime and the police found a suspect in the parking lot below her apartment. Contrary to the assertions of Respondent and the United States, the record does not establish whether she continually watched the suspect until the police arrived. JA 62a. (In this regard it should be noted that only the suppression hearing testimony may be considered under New Hampshire law. State v. Pseudae, 154 N.H. 196 (2006)). Even though Ms. Blandon was never able to describe the suspect s face or clothes, she failed to pick him out of a photo lineup, and she did not identify him at trial, her accusation of that s the man was admitted at Perry s trial. Thus, this case presents the very dangers identified by this Court in the cases from Wade to Brathwaite. Perry s due process claim should have been heard and the trial court should have determined whether there was an unacceptable risk of misidentification. VI. The Only Evidence Excluded From Trial Under This Court s Eyewitness Cases Is Evidence Which Has No Legitimate Value For The Prosecution. Finally, the United States argues that a decision in Perry s favor will frustrate the administration of justice through the exclusion of relevant, probative evidence from Perry s trial and the trials of other criminal defendants. U.S. Br. 7, 30. This argument fails to recognize the standard established by this Court. The only evidence which is excluded under the due process principles described in this Court s case law is impermissibly suggestive eyewitness identification evidence which the
15 trial judge finds is very substantially likely to lead to misidentification. Brathwaite, 432 U.S. at 116; Simmons, 390 U.S. at 384. In other words, the only evidence which the prosecution will lose is evidence which a trial judge believes is very substantially likely to lead to conviction of the wrong person. Thus, prosecutors do not lose evidence of any significant value. To the contrary, evidence that is that unreliable would not help the trier of fact reach a just and true result. More importantly, far from frustrating the administration of justice, this standard does nothing more than guard against miscarriages of justice and the conviction of innocent citizens.
16 CONCLUSION For the foregoing reasons, as well as those set forth in the original brief, Petitioners requests that the Court vacate the decision of the New Hampshire Supreme Court and remand his case for proceedings consistent with a holding that the Due Process Clause does not require a criminal defendant to show improper state action by the police in order to challenge the admissibility of an identification arising from suggestive circumstances. Respectfully submitted, RICHARD GUERRIERO PUBLIC DEFENDER Counsel of Record DAVID ROTHSTEIN DEPUTY CHIEF APPELLATE DEFENDER CHRISTOPHER JOHNSON CHIEF APPELLATE DEFENDER HEATHER WARD ASSISTANT APPELLATE DEFENDER LISA WOLFORD ASSISTANT APPELLATE DEFENDER NEW HAMPSHIRE APPELLATE DEFENDER PROGRAM 2 White Street Concord NH 03301 603-228-9218 rguerriero@nhpd.org Attorneys for Petitioner