Facts of the Case
A Tennessee state court convicted Archie Biggers in the rape of Margaret Beamer. The only major evidence against him was Ms. Beamer’s identification several weeks after the incident at a police station “show up”. The “show up” was similar to a line up, but contained the suspect alone. The police officer also had the suspect say phrases Ms. Beamer heard her attacker say on the night of the rape. Ms. Beamer said she had “no doubt” that Biggers was her attacker. The Tennessee Supreme Court upheld the conviction. The U.S. Supreme Court affirmed by an equally divided court.
Biggers then filed a writ of habeas corpus, which the district court granted, holding that the Supreme Court affirming by an equally divided court did not bar the writ. The court also held that the “show up” procedure was so suggestive that it violated due process. The U.S. Court of Appeals for the Sixth Circuit affirmed.
Questions
(1) Does the Supreme Court’s order affirming a conviction by an equally divided court bar habeas corpus proceedings?
(2) Was the “show up” procedure so suggestive that it violated due process?
Conclusions
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No, No. In a 5-3 decision Justice Lewis F. Powell wrote the majority opinion reversing in part and remanding. The entire court joined in the first part of the opinion, holding that affirming by an equally divided court did not constitute an “actual adjudication” of the issue. The habeas corpus proceeding could continue. Only five justices joined in the second part of the opinion, holding that the “show up” procedure was suggestive, but given the totality of the circumstances, there was no substantial likelihood of misidentification.
Justice William J. Brennan wrote a dissent, stating that the decision on the “show up” procedure broke from the long established practice of affirming findings of fact concurred in by two lower courts. Justices William O. Douglas and Potter Stewart joined in the dissent. Justice Thurgood Marshall did not participate.