390 U.S.

DOUGLAS, J., dissenting.

the moon. Indeed, the best view Mrs. Beamer had of petitioner was in the hall by indirect light from a nearby bedroom.

In Simmons, the record did not indicate that the FBI told the witnesses which of the men in the photographs were suspects. Here, on the other hand, the police told Mrs. Beamer when they brought her to the station house that the man she would see was a "suspect."

Moreover, unlike the Simmons case, identification here rested largely on voice. The fact that petitioner had "the voice of an immature youth," to use Mrs. Beamer's words, merely put him in a large class and did not relate him to speech peculiar to him. Voice identifications involve "grave danger of prejudice to the suspect," as the Court of Appeals for the Fourth Circuit said in Palmer v. Peyton, 359 F. 2d 199, 201. No one else identified petitioner. The daughter could not; and Mrs. Beamer did not identify him in the courtroom. Petitioner was young and apparently had no previous police record. There was no other shred of evidence against him.

Under the circumstances of this case it seems plain that the police maximized the suggestion that petitioner committed the crime.

Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup. Plainly here, however, the highly suggestive atmosphere that had been generated by the manner in which this showup was arranged and conducted could not have failed to affect Mrs. Beamer's judgment; when she was presented with no alternative choices, "there [was] then a strong predisposition to overcome doubts and to fasten guilt upon the lone suspect." Palmer v. Peyton, supra, at 201. The conclusion is inescapable that the entire atmosphere created by the police surrounding Mrs. Beamer's identification was so suggestive

404

DOUGLAS, J., dissenting.

that use at trial of her station-house identification constituted a violation of due process. Since this was the only evidence of identification, there can be no question of harmless error. See Chapman v. California, 386 U. S. 18.

Petitioner is entitled to a new trial unaffected by Mrs. Beamer's station-house identification and the testimony of the police officers who were present when it took place. See Gilbert v. California, supra, at 272–273.

The fact that petitioner is a Negro, and Mrs. Beamer also, is of course irrelevant to the due process question.

SHAKIN v. BOARD OF MEDICAL EXAMINERS OF CALIFORNIA.

APPEAL FROM THE SUPREME COURT OF CALIFORNIA.

No. 1071. Decided March 18, 1968.

Appeal dismissed and certiorari denied.

Burton Marks and Harvey A. Schneider for appellant.

PER CURIAM.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

SULLIVAN v. GEORGIA.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA.

No. 1131, Misc. Decided March 18, 1968.

Certiorari granted; 223 Ga. 643, 157 S. E. 2d 247, reversed.

Charles Morgan, Jr., Morris Brown and Melvin L. Wulf for petitioner.

Arthur K. Bolton, Attorney General of Georgia, G. Ernest Tidwell, Executive Assistant Attorney General, Marion O. Gordon, Assistant Attorney General, and William R. Childers, Jr., Deputy Assistant Attorney General, for respondent.

PER CURIAM.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Supreme Court of Georgia is reversed. Whitus v. Georgia, 385 U. S. 545.

MCBRIDE v. SMITH, COMMANDANT, UNITED STATES COAST GUARD.

ON PETITION FOR REHEARING.

No. 1105, October Term, 1966. Decided March 18, 1968.

Rehearing granted and denial of certiorari, 387 U. S. 932, vacated. Certiorari granted; 369 F. 2d 65, vacated and remanded.

Melvin L. Wulf and Marvin M. Karpatkin for petitioner.

Solicitor General Griswold for respondent.

PER CURIAM.

The petition for rehearing is granted and the order of May 29, 1967, denying certiorari is vacated. The petition for a writ of certiorari is granted, the judgment of the United States Court of Appeals for the Second Circuit vacated and the case is remanded to the United States District Court for the Southern District of New York for further consideration in light of Schneider v. Smith, ante, p. 17, in accordance with the suggestion of the Solicitor General and upon an independent examination of the entire record.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this petition.

MCSURELY ET AL. v. RATLIFF ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY.

No. 1113. Decided March 18, 1968.

Appeal dismissed. Stay heretofore granted, post, p. 914, continued for 30 days.

Dan Jack Combs, Arthur Kinoy, William M. Kunstler and Morton Stavis for appellants.

Solicitor General Griswold for the United States.

PER CURIAM.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. The stay heretofore granted, post, p. 914, is continued for 30 days in order to afford the appellants an opportunity to apply to the United States Court of Appeals for the Sixth Circuit for a stay. If such timely application is made, the stay entered by this Court shall remain in effect until the Court of Appeals acts on that application.

MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS are of the opinion that probable jurisdiction should be noted and the case set for oral argument.