Appeal from an order of Judge Broderick of the Southern District granting petition for a writ of habeas corpus. Affirmed.
Before Lumbard, Friendly and Oakes, Circuit Judges.
Edmond Jackson's petition for habeas corpus to set aside his conviction for murder in Queens County presents the rare case of a record almost entirely bare of credible untainted evidence of guilt. At the same time, the state's appeal reminds us of the great care we must exercise before setting aside a conviction for so serious an offense, particularly when it has been unanimously affirmed by the New York Appellate Division and Court of Appeals.
After consideration of Jackson's petition and examination of the records of the trial and his appeals to the New York courts, Judge Broderick, in the Southern District, granted the petition in a decision and order, dated August 25, 1978. We agree with his finding that the identification testimony of three of the four eyewitnesses presented by the State at trial was so tainted by suggestive procedures of the police that its admission into evidence against Jackson constituted a denial of due process.
At 1:30 A.M. on Sunday, June 14, 1970, an armed man entered Harvey's Lounge in Jamaica and announced, "This is a stickup." The gunman's words threw the lounge into an uproar as the 40 to 60 customers scrambled for cover. After a brief interval, the gunman stepped forward and fired one shot, mortally wounding Harold Dixon who was tending bar.
The police investigation of the shooting was conducted by Detectives Cash and Cannon of the New York Police Department. They were unable to locate any tangible evidence as to the identity of the gunman and consequently focused their attention on four persons who came forward as eyewitnesses: Mary Phifer, Edward Byrd, Willie Johnson and Joseph Webb.
According to the four eyewitnesses' subsequent testimony, none of them had ever seen the gunman before the night of the shooting and on that occasion they observed him only for the few seconds it took them to turn away and scramble for cover. Webb was tending bar when he heard the commotion, looked toward the door and saw a man holding a gun in his left hand. As the man moved toward the bar and fired a shot, Webb immediately dropped to the floor and crawled to the back of the room. He stated that he did not see the gunman after the shot was fired and that he had observed him for a total of "maybe two, three seconds or minute might have been a minute."
Byrd, Johnson and Phifer were sitting at the front end of the bar talking to each other. Byrd and Phifer were seated with their backs to the door, only four or five feet away. Byrd and Phifer first noticed the gunman when he said, "This is a stickup." Johnson pushed Phifer off her bar stool and all three of them ran to the back of the bar after which they heard the shot.
In the days following the shooting the four eyewitnesses were shown a large number of mugshots, and, on June 18th, Phifer stated that photographs of a John Walker and a Veryl Walker "strongly resembled" the gunman. The three other witnesses confirmed the resemblance. Although John Walker was in prison at the time of the shooting, the tentative identification of Veryl Walker offered an apparently promising lead, since Detectives Cash and Cannon had previously been told by an informer that Veryl Walker was the Harvey's Lounge gunman. But, despite this seeming break in the case, the detectives made only sporadic attempts to find Veryl Walker*fn1 and ended their search for him altogether on July 13th, the day Edmond Jackson was brought into the investigation.
How the detectives' investigation came to focus on Jackson remains unclear. Cannon testified at the pre-trial Wade*fn2 hearing, which was held the day before the trial in March of 1971 to determine the propriety of the identification process, that Jackson was taken to the stationhouse on July 13th for reasons having nothing to do with the Dixon shooting. He indicated that Jackson became a suspect only when Webb, who also "happened" to be at the stationhouse, saw Jackson and told the detectives that he was the man who shot Dixon. Cash's account differs; he testified at the hearing that Jackson was already under investigation when he was taken to the stationhouse and that Webb had been notified to "stand-by" in case he was needed to make an identification. Though Cannon's subsequent testimony at trial tended to follow Cash's version of the facts,*fn3 neither detective explained nor does the record otherwise reveal what information led the police to suspect Jackson of the crime.
What is clear from the record is that all four eyewitnesses came to the stationhouse on July 13th and identified Jackson in two separate line-ups of the same six black men. The reliability of those identifications was, of course, the focus of the state court Wade hearing, and the eyewitnesses' testimony as to the circumstances surrounding their identifications of Jackson is illuminating. Byrd stated that he had stopped at Harvey's Lounge on his way home from work. Cash and Cannon picked him up there and drove him to the stationhouse. On the way, Cash told Byrd that "he found the fellow who shot Harold Dixon." While in the detectives' office Byrd, after spotting Jackson through a two-way glass sitting by himself in a back room, identified Jackson as the gunman.
Webb explained that he was called by a police officer who asked him to come to the stationhouse "to see if I could pick out the individual who did the shooting." Cash met him at the desk and as they were walking to the detective room Webb saw Jackson and one other person sitting together some 15 to 20 feet away. At that point he told Cash that Jackson was "the fellow that shot Harold."
According to Johnson's Wade testimony, he came to the stationhouse in response to a message left at his home that the police "had somebody down there that they wanted me to look at in a line-up." While Johnson was in a waiting room near the detectives' office he noticed Jackson in an adjoining room. A little later, Cash and Jackson walked past Johnson as he sat in the waiting room.
Mary Phifer, who had arrived at the stationhouse after the others, was the only witness who denied seeing ...