                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 01-1066
LAWRENCE GREGORY-BEY,
                                           Petitioner-Appellant,
                               v.

CRAIG A. HANKS,
                                          Respondent-Appellee.
                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
          No. 94-C-903—David F. Hamilton, Judge.
                         ____________
   ARGUED FEBRUARY 13, 2002—DECIDED JUNE 13, 2003
                   ____________


 Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
  COFFEY, Circuit Judge. In November 1985, two men
robbed a McDonald’s restaurant in Indianapolis, Indiana.
During the course of the robbery, the men locked five of
the employees in the freezer of the restaurant and pro-
ceeded to murder the manager. Three months after the
crime, four of the five surviving employees identified
Lawrence Gregory-Bey (“Gregory-Bey”) as one of the
perpetrators of the crime. After a Marion County, Indiana
jury convicted Gregory-Bey of murder, robbery, criminal
confinement, and a host of other offenses associated with
the McDonald’s crime, Gregory-Bey’s direct appeal lan-
guished in the Indiana state court system for nearly ten
years before it was finally resolved. While Gregory-Bey
2                                              No. 01-1066

waited for the state court system to resolve his direct
appeal, he filed a petition for habeas corpus relief in the
Southern District of Indiana, which we allowed to pro-
ceed in spite of the procedural requirement that he ex-
haust his state remedies, due to the inordinate delay and
malfunctioning of the Indiana state court system, through
no fault of the defendant. The federal district court for
the Southern District of Indiana denied Gregory-Bey’s
petition, and he appeals. We affirm.


                I. Factual Background
                            A.
  The two robbers entered the Indianapolis McDonald’s
restaurant shortly after 7 a.m. on November 17, 1985. After
drinking some coffee and remaining on the premises until
all the other customers in the restaurant departed, the
two men brandished handguns, announced themselves
as robbers, and ordered the five employees (Angela Grinter,
Urhonda Graham, Patrice Hampton, Kathryn Blakely,
and Sonia Meads) and the assistant manager (DeWayne
Bible) to the back of the store. The robbery itself lasted
about five to ten minutes and netted the men slightly over
$1,000. The robbers, not satisfied with their illicit pro-
ceeds, forced all but one of the employees into the freezer
room, while keeping one as a hostage. In an act of bravery,
Bible asked the criminals to take him as their hostage
rather than his employee, and they did so, locking the
other five employees in the restaurant’s freezer. Approxi-
mately five minutes later, the employees in the freezer
heard two or three gunshots. After waiting several min-
utes and when the employees were no longer able to
hear the voices of the robbers, believing that they had
departed, the employees kicked the locked freezer door
open. Upon exiting the freezer, they discovered Bible’s
body, lying on the floor in a pool of blood with two closely
No. 01-1066                                               3

spaced gunshot wounds at the base of his head (execu-
tion style).
  Shortly thereafter, the police arrived and they sepa-
rated the witnesses and proceeded to tape record state-
ments from each of them concerning the details of the
crime, including their respective descriptions of the crimi-
nals. The victims estimated that over the course of the
robbery, they had five to ten minutes to view the faces
of the robbers. Their descriptions of the robbers’ features
were relatively consistent, varying only in the amount
of detail provided. They described one of the suspects
(whom they later identified as Gregory-Bey) as a dark-
skinned African American male, between 5'10" and 6'1" in
height, with a slight build (125-130 pounds), uncombed or
matted Afro, a small amount of facial hair or thin beard,
and pock-marks or acne scars on his face.
  After providing the police with descriptions of the two
robbers, three of the witnesses—Grinter, Graham, and
Hampton—met collectively with a police artist and pro-
vided a description that was subsequently used in the
creation of composite sketches of the two robbers. Police
placed copies of these sketches in the vicinity of the crime
scene, resulting in the police receiving several tips.
  In the weeks following the robbery, the police received
information that Gregory-Bey might have been involved in
the McDonald’s robbery and Bible’s murder. Accordingly,
the police produced a black-and-white photograph of
Gregory-Bey from the Indianapolis Police Department
and placed it among a set of at least a half dozen other
black and white photographs of black men, which they
displayed to the victims in hopes of getting a positive
identification of the robbers. (R. at 406.) The record is
clear that these photos were of poor quality and that no
witness was able to positively identify the suspect from
the photo display. (R. at 472-73, 543, 577-78, 612-13, 636-
37.)
4                                                    No. 01-1066

  The police department refused to terminate their inves-
tigative efforts just because of the lack of an identifica-
tion from the admitted poor quality of the initial photos
presented. Detective Fred Jackson next secured a (color)
photo of Gregory-Bey from the police department’s photo
lab. This photo (marked as State Exhibit 3A, and in-
cluded in the record before us on appeal), while apparently
more clear than the original photo, still did not reveal
the subject’s features in detail sufficient for any of the
witnesses to make a positive identification of the suspect,
as the face is largely shadowed. Two months after the
crime, Jackson displayed this photo, within a stack of
twenty-seven other color photos, to witnesses Blakely,
Graham, Grinter, and Hampton individually. All four
testified that although they felt the man pictured “looked
like” one of the robbers, they still couldn’t be sure be-
cause the picture wasn’t clear. (R. at 414, 425-26, 544, 581,
593-94, 616-17, 640-41, 1057, 1163.)1
  Detective Elmer Combs was also in possession of an-
other (color) photo of Gregory-Bey (marked as State Exhibit
4, and included in the record before us on appeal), but
this photo was much clearer than the one Jackson had.
The face in Combs’ photo is clearly visible, and the defen-
dant’s features (acne, facial hair, hair style) are clearly
distinguishable. Shortly thereafter, he displayed this
different picture of Gregory-Bey in another photo array
with five other pictures to the victim-witnesses. When the
witnesses were shown this markedly different photo


1
  The record does not support the dissent’s conclusion that
Blakely’s identification was tainted by the fact she was apparently
growing tired of Sergeant Jackson’s frequent visits with her.
Post at 9. It is clear from the record that the two color pictures
of Gregory-Bey that Blakely was shown differed significantly
from each other, and that the poor quality of the first picture
prevented her from making a certain identification.
No. 01-1066                                                      5

individually, their reactions were decisive and swift. With-
in “seconds,” each of the four witnesses—Blakely, Graham,
Grinter, and Hampton—individually and positively iden-
tified Gregory-Bey as one of the robbers. (R. at 436, 438,
440, 544-46, 592, 614-16, 640.)2 The witnesses’ identifica-
tions were made independently of each other, and with-
out any assistance or suggestions from the detectives.3
Blakely and Graham even began to “shake” when seeing
a clear picture of the face of the perpetrator.4 Thus, the
record reflects that four of the five surviving victims
individually selected Gregory-Bey’s photograph from the
six-picture photo spread.



2
    The final witness, Meads, was unable to make an identification.
3
  The dissent points to testimony by one witness—Grinter—that
Sergeant Jackson supposedly told her before she viewed the
photos that another witness had positively identified a suspect
from within the same set she was about to examine. She later
stated that she wasn’t sure whether Jackson’s alleged comment
was made before or after he displayed the pictures to her.
(R. at 1035.) The dissent also cites United States v. Smith, 156
F.3d 1046, 1050 (10th Cir. 1998), for the proposition that it is
“unduly suggestive for police to tell witnesses to assume the
suspect was in the photo array.” Post at 6. The Smith case does
not stand for so broad a principle. While not condoning the
practice of “stating or implying” that witnesses had chosen the
“correct” photo, the court found that statements of this nature
did not rise to the level of “coaching” a witness. Id. at 1050.
4
  After Detective Combs told Sergeant Fred Jackson, who had
previously shown Blakely photographs of suspects, that Blakely
had identified Gregory-Bey as one of the robbers, Jackson
was skeptical of Blakely’s identification. But when Combs showed
him the color photograph that Blakely had identified, Jackson
made clear that it was “completely different from” the photo-
graph that he (Jackson) had presented to Blakely (the one
from which she was not able to make a positive identification).
6                                                     No. 01-1066

  Based upon these positive identifications recounted
above (from four out of the five surviving victim witnesses),
the police arrested and took Gregory-Bey into custody
on March 2, 1986, and the following day arranged for a
physical identification lineup of six men, enacted in the
presence of Gregory-Bey’s counsel. Before viewing the
lineup, the police instructed the witnesses about cer-
tain guidelines for the lineup procedures. Specifically, the
police stated to the witnesses that the suspect “may or
may not be in the line-up” and also that they were “not
to talk to each other about anything.”5
  The witnesses viewed the lineup in two separate groups.
First, Blakely, Grinter, and Graham viewed the lineup
and were given a numbered form to mark if they were
able to identify the suspect (each person in the lineup had
a number). Blakely immediately picked Gregory-Bey out
of the lineup and marked her form accordingly.6 Blakely
later stated at her deposition that as she did so, she


5
   Detective Combs delivered the instruction to the witnesses.
Curiously, the defendant’s attorney asked no further questions
of the detectives about the specificity or scope of the instruction.
The record is not sufficiently clear to allow us to ascertain
whether or not the police advised the witnesses specifically
whether they were prohibited from discussing their experiences
in the lineup after they had completed the lineup procedure
and had departed from the police station.
6
  The dissent somehow claims that Blakely was unsure about her
identification of Gregory-Bey. Post at 9. The trier of fact obviously
believed that any supposed equivocation on Blakely’s part in
identifying Gregory-Bey was attributable more to aggressive
questioning by defense counsel than by actual confusion on
Blakely’s part about who had perpetrated the robbery and
murder, given the impressive amount of evidence demonstrating
the reliability of Blakely’s identification (shaking upon seeing
the clear photo of the defendant, her immediate selection of him
at the lineup, etc.).
No. 01-1066                                                 7

overheard Grinter and Graham whispering to each other,
contrary to the instructions to refrain from talking, and
heard them saying that they were scared to pick the
perpetrator, for fear of being identified. Graham also
testified that she had “whispered [to Grinter] in the con-
ference room” after the lineup procedure was completed
about who was in the lineup and that Graham told Grinter
that she “thought it was number five.” Additionally,
Graham remarked that Grinter had whispered that she
believed the suspect was “number three.” Grinter, however,
testified that this exchange took place when the witnesses
were riding home together in the company of each other
after the identification lineup procedure, and not in the
conference room at the police station. In any event, because
of their respective fears that the suspect could see them
through the glass, neither Grinter nor Graham marked
their identification forms while viewing the lineup.7 Next,
Hampton and Meads viewed the lineup, and neither of
them made a positive identification of Gregory-Bey at that
time. Hampton, repeating the same fear expressed by
Grinter and Graham that she could be seen through the
glass, refused to give the police a positive identification.
  Shortly after the lineup, Graham, Grinter, and Hampton
made contact with the police and informed them that they
had seen one of the robbers in the lineup, but were afraid
to select him because they were fearful that he might
have been able to see them as they made their identifica-
tions.8 Shortly thereafter, the police arranged for Grinter,
Graham, and Hampton to view a videotape of the lineup


7
  Graham testified that at the lineup, Gregory-Bey’s hair was
combed; in the photo array, his hair was braided; and during
the robbery, the perpetrator’s hair was “wild.” (R. at 1161.)
8
  According to Graham, the police never informed the witnesses
that the suspects on display in the police lineup would not be
able to see them.
8                                                 No. 01-1066

at another identification procedure and once again Gregory-
Bey’s counsel was present during the witnesses’ viewing
of the videotape. All three witnesses were deposed by
defense counsel immediately after viewing the videotape
lineup and each one of them positively identified Gregory-
Bey as one of the perpetrators of the robbery and murder.


                              B.
  Based on these positive identifications (from the photo-
graphic array, the live lineup, and the videotape line-
up) made by witnesses Blakely, Grinter, Graham, and
Hampton, Gregory-Bey was charged with murder (Ind.
Code Ann. § 35-42-1-1), felony murder (Ind. Code Ann. § 35-
42-1-1), conspiracy to commit robbery (Ind. Ann. Code § 35-
41-5-2), robbery (Ind. Code Ann. § 35-41-5-1), criminal
confinement (six counts) (Ind. Code Ann. § 35-42-3-3), and
carrying a handgun without a license (Ind. Code Ann. § 35-
47-2-1).9 Before trial, Gregory-Bey moved to suppress the
identifications by Blakely, Hampton, Grinter, and Graham,
on the grounds that the police identification procedures
were “inappropriate and lead [sic] to a suggestive identifi-
cation.” Gregory-Bey argued that the police had influenced
the victims’ identifications by “repeatedly present[ing]” his
picture and that the witnesses had “conferred” in making
their identifications at the physical lineup.
  On October 1 and November 17, 1986, the trial judge
conducted an extensive hearing (350 pages of testimony)
outside the presence of the jury before ruling on Gregory-


9
  During the long and thorough investigation prior to the arrest
of Gregory-Bey, two other suspects were at one time charged
with the McDonald’s robbery and Bible’s murder. Neither of
them was ever brought to trial due to what the prosecutors
stated was a lack of sufficient evidence. Thus, Gregory-Bey was
the only person charged and subsequently convicted for the
crimes.
No. 01-1066                                                     9

Bey’s motion to suppress. During the hearing, defense
counsel vigorously questioned the victim witnesses as
well as detectives Jackson and Combs about the investiga-
tive procedures the police employed. The defense focused
on the composition of the various photographic arrays, the
allegedly suggestive comments Jackson made before
showing the witnesses the photos, Jackson’s supposed
expression of “happ[iness]” after a positive identification,
the purported improprieties that occurred during the
physical lineup, and the witnesses’ failure to positively
identify Gregory-Bey earlier in the course of the investiga-
tion. Defense counsel was allowed to introduce in evi-
dence before the jury the composite sketch, transcripts of
the witnesses’ statements on the day of the crime, the po-
lice bulletin issued on the day of the crime that provided
a description of the two suspects, and the videotape of
the physical lineup. The state trial judge, after reviewing
all of these exhibits and testimony submitted on behalf
of the defendant, refused to suppress the witness identifi-
cations.
  At trial, all four of the witnesses (Blakely, Grinter,
Graham, and Hampton) identified Gregory-Bey in open
court for a third time as one of the perpetrators of the
crimes. Once again defense counsel was given another
opportunity to thoroughly and exhaustively question the
victim witnesses regarding their failure to identify Gregory-
Bey from the initial (poor quality) photographic arrays,
any alleged improper suggestions made by the police dur-
ing their viewing of the same arrays, and any alleged
improper communication among the witnesses during
and after the lineups.10 Each one of the four witnesses
unequivocally and emphatically stated at trial that she was


10
   In addition, the defense counsel had ample opportunity to
attempt to undermine the reliability of the witnesses’ identifica-
tions of Gregory-Bey.
10                                              No. 01-1066

certain that Gregory-Bey was one of the perpetrators of the
heinous murder and robbery at the McDonald’s restaurant
and furthermore that the police officers had not influenced
their identification. The Marion County, Indiana, jury—
after reviewing all of the testimony and exhibits intro-
duced—found the testimony of the lay witnesses—as well
as that of the police officers—not only credible, but also
reliable and convincing, and returned a verdict of guilty
on all counts. The defendant was sentenced to an aggre-
gate term of 281 years in prison.


                             C.
   The day after his 1986 conviction, Gregory-Bey filed
a praecipe requesting that a transcript be prepared in
order that he might proceed with his appeal process. Some
eight years later, in 1994, neither his trial counsel nor his
successor counsel (appointed in 1992) had so much as
filed an appellate brief on Gregory-Bey’s behalf. Gregory-
Bey then turned to the federal courts for relief, filing a
petition under 28 U.S.C. § 2254 alleging that there had
been an inordinate delay in his state court appeal process
and seeking habeas corpus relief on his claim of improp-
er witness identifications. We will not review the entire
history of Gregory-Bey’s attempt to get the Indiana Su-
preme Court to review his claim as that history is ade-
quately set forth in our 1996 opinion, reflecting our deci-
sion holding that the nearly 10-year delay in resolving
Gregory-Bey’s direct appeal in the state courts had deprived
him of his right to a timely appellate review in the state
court system. Gregory-Bey v. Hanks, 91 F.3d 146, 1996 WL
394011, *2-3 (7th Cir. July 11, 1996) (Cummings, J.). In so
ruling, we concluded that Gregory-Bey, because of the poor
lawyering on the part of his appointed counsel and the
failure to timely proceed with his appeal, be excused from
the requirement that he must exhaust his state court
No. 01-1066                                                       11

remedies before seeking habeas corpus review in a fed-
eral court.11 Id. On remand, the federal district court (Judge
Hamilton) addressed Gregory-Bey’s claim that the wit-
ness identifications were unreliable on the merits. The
trial judge found, after the hearing, that although some
of the pre-trial identification procedures were unduly
suggestive (but only with regard to witnesses Graham and
Grinter), all of the other identifications were “nonetheless
reliable,” Gregory-Bey v. Hanks, 2000 WL 1909642, at *17-
18, and also that Graham’s and Grinter’s in-court identifi-
cations had not been tainted by the improper pre-trial
procedures. Id. at *18-20. Hence, no relief was warranted.
Id. at *28.


                            II. Issues
   On appeal, Gregory-Bey repeats the same issues he
presented to the federal district court—that the state
trial court’s decision to allow the in-court witness iden-
tifications denied him due process because they were
unreliable and the product of unduly suggestive inves-
tigative procedures. Gregory-Bey argues that the identifi-
cations were unreliable for three primary reasons: (1) “the
witnesses failed to identify photographs of [Gregory-
Bey] . . . on multiple occasions”; (2) the police allegedly
improperly reinforced the witnesses’ selection of Gregory-
Bey from the photographic arrays after the witnesses had
made their identifications; and (3) the witnesses, at sev-
eral stages of the investigation, allegedly collaborated with
each other and discussed who the perpetrator might be.


11
   Although we suggested that “when the Indiana Court of Ap-
peals renders its decision . . . Gregory-Bey’s delay [will] be ended,”
the state failed to petition for rehearing when the Indiana
Supreme Court denied his direct appeal eight days after we
remanded his § 2254 petition to the district court for considera-
tion on the merits.
12                                              No. 01-1066

                      III. Analysis
                             A.
  Gregory-Bey filed this § 2254 petition in the district
court for the Southern District of Indiana in June 1994,
almost two years prior to AEDPA’s effective date. Because
the amendments to the habeas corpus statute contained
in that Act therefore do not apply, we analyze Gregory-
Bey’s due process claims under the law then in effect. See
Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Prior to
AEDPA, federal courts disregarded the state court’s legal
conclusions and reached independent judgments on the
issues presented, but deferred to the state court’s find-
ings of fact. Koo v. McBride, 124 F.3d 869, 872 (7th Cir.
1997). In pre-AEDPA cases, when federal courts re-
view mixed questions of law and fact, federal courts may
give different weight to the facts as found by the state
court and thus reach a different conclusion in light of the
legal standard. Montgomery v. Greer, 956 F.2d 677, 680 (7th
Cir. 1992). Further, under pre-AEDPA standards, a § 2254
petitioner is entitled to plenary review of his claims. Agnew
v. Leibach, 250 F.3d 1123, 1129 (7th Cir. 2001).


                             B.
  Prior to reaching the merits of a constitutional claim
raised in a habeas corpus petition, we must initially
determine whether the defendant-appellant has procedur-
ally defaulted his claim that the state’s witness identifica-
tion procedures violated his right to due process of law. We
must ensure that the habeas corpus petitioner has over-
come two procedural hurdles, exhaustion and procedural
default, before reaching the merits of his claim. Spreitzer
v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000). The failure
to raise an issue on direct appeal (as did Gregory-
Bey’s appellate counsel in his failure to raise the witness
identification issue in the first appeal to the Indiana
No. 01-1066                                              13

Supreme Court) will generally bar a defendant from raising
it later in a post-conviction proceeding. Menzer v. United
States, 200 F.3d 1000, 1005 (7th Cir. 2000); Kurzawa v.
Jordan, 146 F.3d 435, 441 (7th Cir. 1998). The requirement
that state courts should have the first opportunity to
cure a claim of continued confinement stems from, inter
alia, the belief that those courts are in the best position
to correct their own errors, from the understanding that
state courts are equally obligated to follow federal law,
and from the desire for comity between state and federal
court systems. See O’Sullivan v. Boerckel, 526 U.S. 838,
844-45 (1998); Kurzawa, 146 F.3d at 440.
  As a procedural default is not jurisdictional, any argu-
ment that Gregory-Bey has defaulted his due process
claim can be waived by the government. Hernandez v.
Cowan, 200 F.3d 995, 997 (7th Cir. 2000); Nichols v. United
States, 75 F.3d 1137, 1145 n.17 (7th Cir. 1996). We refuse
to penalize the defendant-appellant Gregory-Bey under
this unique sequence of events that led to his direct ap-
peal being delayed for nearly ten years. The state has
waived any argument that he has procedurally defaulted
his due process claims. Through no fault of the petitioner,
by the time Gregory-Bey finally was able to appeal the
merits of his habeas corpus petition to this court, more
than fifteen years had elapsed since the date of his convic-
tion.
  Throughout the history of Gregory-Bey’s attempts to
have the state court examine the merits of his allegation
that the witness identification procedures were flawed,
Gregory-Bey’s basic constitutional right of appellate review
was delayed for reasons beyond his control. Initially,
Gregory-Bey attempted to secure review in the Indiana
court system immediately following his 1986 conviction
with the filing of a praecipe to commence the appellate
process in the state court. Inexplicably, and despite numer-
ous written inquiries by the petitioner Gregory-Bey re-
14                                                    No. 01-1066

garding the status of his appeal, his attorneys (both his
original and successor attorney appointed in 1992) failed
miserably, neglecting to file an appellate brief on his
behalf until 1994. Second, Gregory-Bey did not sit idly
by while his attorneys frittered away his opportunity to
appeal. He repeatedly attempted—to no avail—to communi-
cate and correspond with his appointed counsel. Eight
years after his conviction, without so much as one single
appellate brief being filed in the state courts on his behalf,
the petitioner Gregory-Bey was forced to turn to the fed-
eral courts on his own and sought habeas corpus relief.
We should also point out that in 1996, Gregory-Bey filed
a motion with the Indiana Supreme Court pro se request-
ing that he be allowed to “withdraw and amend” the
brief filed by his attorney because it failed to raise the
issue of the propriety of the witness identifications. Unfor-
tunately, the Indiana Supreme Court also declined to
address Gregory-Bey’s concerns and swept aside the
problem raised in his pro se motion, for reasons unex-
plained, just as it had done in protecting his attorneys’
tardiness in pressing his appeal.12 In short, the state


12
   We recognize that normally the assertion of the right to
representation constitutes a de facto waiver of the right to proceed
pro se. See United States v. Johnson, 223 F.3d 665, 668 (7th Cir.
2000). In this case, however, Gregory-Bey’s attorneys had
failed to even file a brief in his direct appeal for more than eight
years. When a brief was finally filed (eight years after his convic-
tion), Gregory-Bey alerted the Court that he questioned the
quality of the brief and stated that he believed the brief to be
inadequate and that he would like to raise additional issues.
Given the less than lawyer-like conduct and performance of his
counsel, the Indiana Supreme Court should have been alerted
by his motion that his counsel’s performance was deficient not
just in her timeliness, but also in her review and presentation
of Gregory-Bey’s case. Further, Gregory-Bey’s initial counsel
                                                       (continued...)
No. 01-1066                                                     15

exceeded the limits of the procedural default doctrine. As
procedural default provides the state with the opportu-
nity to correct its own errors, we think that given Gregory-
Bey’s repeated efforts to place the factual and legal basis
of his claim before the Indiana Supreme Court and the
Indiana Supreme Court’s inability or unexplained refusal
to provide Gregory-Bey with any reasonably timely appel-
late review, we refuse to sandbag the appellant and
hold that the state has waived the right to make any
argument that he procedurally defaulted the issues raised
in his § 2254 petition. Thus we address the merits of
Gregory-Bey’s petition.


                                C.
   Eyewitness identification testimony can violate a defen-
dant’s constitutional right to due process of law when it
creates a “ ‘substantial likelihood of irreparable misidentifi-
cation.’ ” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)); see
also Cossel v. Miller, 229 F.3d 649, 655 (7th Cir. 2000). In
determining the constitutionality of an identification pro-
cedure, we undertake a two-step analysis. McGowan v.
Miller, 109 F.3d 1169, 1173 (7th Cir. 1997). As an initial
matter, the petitioner must demonstrate that the iden-
tification procedures were unduly suggestive. United
States v. Traeger, 289 F.3d 461, 473-74 (7th Cir. 2002);
United States v. Harris, 281 F.3d 667, 670 (2002). If the
petitioner successfully demonstrates that the challenged


12
  (...continued)
raised the witness identification issue in a 1990 motion to correct
errors before the state trial court. Throughout the history of his
appeal, Gregory-Bey corresponded with appellate counsel and
urged her—without success—to press the witness identification
issue.
16                                                No. 01-1066

procedure was unduly suggestive, the court must then
determine, under the “totality of the circumstances,”
whether the identification was sufficiently reliable to
prevent misidentification. Traeger, 289 F.3d at 473-74;
Harris, 281 F.3d at 670. In assessing the reliability of
an identification procedure, the courts consider the follow-
ing factors:
     (1) the opportunity of the witness to view the criminal
     at the time of the crime; (2) the witness’ degree of
     attention; (3) the accuracy of the witness’ prior descrip-
     tion of the criminal; (4) the level of certainty demon-
     strated by the witness at the confrontation; and (5)
     the length of time between the crime and the confronta-
     tion.
Biggers, 409 U.S. at 199-200.
  Under the first prong of the Biggers test, Gregory-Bey
must establish that the witness identification procedures
employed by the police were unduly suggestive. Gregory-
Bey claims that the police tainted the identification proce-
dure when they allegedly singled him out by repeatedly
showing the witnesses his picture along with a number of
other pictures in photo arrays. Next, he alleges that the
police improperly reinforced Grinter’s identification by
informing her that another witness had selected the same
suspect in the photo array. Finally, Gregory-Bey claims
that the identification procedures were tainted because
several times during the investigation stage of the pro-
ceedings, the witnesses supposedly collaborated with each
other when making their identification known to the
authorities. We address the nature of the alleged sugges-
tiveness of each procedure in turn.
  The Supreme Court has warned that showing wit-
nesses a photograph of the same person several times
may increase the risk of misidentification. Simmons v.
United States, 390 U.S. 377, 383-85 (1968); see also Kubat
No. 01-1066                                                   17

v. Thierret, 867 F.2d 351, 358 (7th Cir. 1989). The danger
to be avoided in identification procedures is that of orches-
trating the procedure so that one particular suspect
stands out from the others and the procedure implicitly
suggests to the witness that “this is the man.” See Foster v.
California, 394 U.S. 440, 442-43 (1969). We have held
previously that there is nothing per se unconstitutional
about showing witnesses the photograph of a particular
suspect multiple times as part of an array. See, e.g., Harris,
281 F.3d at 670;13 Stewart v. Duckworth, 93 F.3d 262, 265-
66 (7th Cir. 1996); United States v. Donaldson, 978 F.2d
381, 386-87 (7th Cir. 1992); Kubat, 867 F.2d at 358.
   Gregory-Bey goes on to argue that the display and record
procedures employed by the police detectives were defec-
tive. For example, although the police displayed several
photographic arrays to the witnesses, they failed to spe-
cifically document how often the witnesses were shown
the particular photographic arrays and which other pic-
tures were included with the defendant’s in each of the
arrays. The defense also points out that Grinter stated
the police let her know that another witness had iden-
tified a suspect from within the same set of photos before
she was shown the stack of photographs, and that Graham
noted that the police appeared “kind of happy” after she
identified Gregory-Bey’s photograph.
  In the case before us, the evidence establishes that
the displays of Gregory-Bey’s photograph on more than
one instance, along with several other suspects in each



13
  In Harris, this Court stated: “[T]here is nothing per se imper-
missible about placing the same suspect in two different identifi-
cation procedures.” It is interesting to note that the author of
the dissent in the case before us was on the panel that decided
Harris, voted to affirm Harris’ conviction, and registered no
objection to the language cited herein.
18                                                    No. 01-1066

of the arrays presented, cannot be classified as unduly
suggestive, for it is abundantly clear from the testimony
in the record that the colored photograph of Gregory-Bey
that the witnesses identified (which revealed in detail for
the first time his features such as facial hair or acne
scars) was distinctly unique and different from the other,
darker color photograph included in an earlier array
(which failed to display any features such as facial hair or
acne scars).14 In Stewart we concluded that showing a
witness photos of the same suspect three separate times
along with other pictures did not render the identification
unduly suggestive because the photos were markedly
separate, distinct, and different. Stewart, 93 F.3d at 265-66
(noting, inter alia, that the defendant’s photo “did not
stand out in the arrays”). It is evident from our review of
the evidence that because the photographs of the defen-
dant used in the photographic arrays (from the first set
of black and white photos to the second and third set of
color photos) were so markedly unique and different from
each other, we are convinced that the photographic lineup
referred to was not unduly suggestive and thus did


14
   The dissenting opinion posits that the absence of the original
black and white photo from the record before us renders us
powerless to come to any conclusion as to “the difference, if any,
between the black and white and color photos . . . .” Post at 3. This
argument ignores the fact that the district court had before it
trial testimony directly on this point—from the police officers and
from witnesses—that even though the black and white photo
depicted the same subject as the color photo, the black and
white photo was of such inferior quality that it very well may
be most accurately described as “markedly different.” The dissent
grants as much, noting that only one of the four eyewitnesses
was able to recognize the perpetrator, and then only “tenta-
tively,”post at 4, whereas all four were able to make certain—even
emphatic—identifications upon viewing the high quality color
photo (Exhibit 4).
No. 01-1066                                                     19

not violate Gregory-Bey’s due process rights.15 See id.;
Donaldson, 978 F.2d at 386-87; Kubat, 867 F.2d at 358.
  Gregory-Bey next argues that the identification proce-
dures were unduly suggestive because police officers
allegedly reinforced both Graham and Grinter’s identifica-
tion of Gregory-Bey’s picture after they had selected his
picture from the photographic lineup. Initially, Gregory-Bey
complains that it was unnecessarily suggestive for Ser-
geant Jackson to tell Grinter before she viewed the photos
that another witness had positively identified a suspect
from within a stack of over two dozen (24) other photos
she was about to examine. But mere knowledge that
another witness has selected a suspect from a photospread
of pictures does not make the procedures unduly sugges-
tive. See McGowan v. Miller, 109 F.3d 1168, 1174-75 (cit-
ing United States v. Moskowitz, 581 F.2d 14 (2d Cir.
1978) (holding that a witness’s viewing of photographs
of a six-person lineup, after being told that her original


15
  The dissenting opinion rightly notes the confusing nature of
some of the eyewitnesses’ responses to questions about the photo
arrays that were raised on cross-examination at their depositions,
the suppression hearing, and at trial. Post at 3-4. As has been
explained above, however, much of the confusion centers on
which of the two colored photos the detectives showed the
witnesses, not on the poor quality black and white photos used
early in the investigation.
  For instance, the colloquy between Gregory-Bey’s counsel and
witness Blakely to which the dissent refers, post at 3, n.3,
concerned Exhibits 3A and 4. Exhibit 3A is the poor quality color
photo with Gregory-Bey’s face case in shadows that Detective
Jackson testified he brought over to Blakely’s house. (Tr. 5
at 1220; Tr. 2 at 416.) Exhibit 4 was the better quality color photo
that Detective Combs brought to Blakely’s house shortly there-
after. (Blakely Dep. at 72; Tr. 3 at 640; Tr. 3 at 686.) Exhibit 3A
was of such inferior quality that at least one other witness
(Graham) confused it for a black and white photo. (Tr. 3 at 619.)
20                                                No. 01-1066

choice was an FBI clerk and that the other two witnesses
selected the “right” individual, was not unduly suggestive).
  Gregory-Bey also argues that both Graham and Grinter
testified that the officers appeared happy or excited after
their selection of Gregory-Bey as being contained in the
photographic lineup, thus improperly reinforcing their
identifications. He goes on to argue that after the al-
legedly improper reinforcement, the witnesses were apt
to retain in their memory the photographic image, rather
than the image of the perpetrator they actually saw at
their crime. Gregory-Bey is reaching out for any argument
that might have even the slightest conceivable chance of
success, but we refuse to conclude that the procedures
employed by the police in displaying Gregory-Bey’s picture
with a number of other suspects were unduly suggestive.
   An identification procedure is unduly suggestive when
it is so suggestive as to create a substantial likelihood of
irreparable misidentification. See Moore, 115 F.3d at 1360.
Where the police subtly (or in some cases possibly even
not so subtly) thrust upon the witness signals or clues
that lead the witness to select a predetermined suspect,
the identification procedure is not likely to provide an
unbiased reflection of the witness’s personal knowledge.
Foster, 394 U.S. at 442-43. But we are convinced that
in this factual situation this is not a case where the police,
like a magician pushing the two of hearts upon an unwit-
ting audience member asked to “pick a card,” prodded the
witnesses to select Gregory-Bey (and not some other
suspect) from the photospread. Gregory-Bey has been
unable to point out to us any example of evidence in the
record that might even suggest that the police tipped the
witnesses off to the fact that Gregory-Bey’s picture was
among the many photographs in the display. In the past
we have held that procedures more suggestive than these
fell short of rising to the level of a constitutional violation.
For example, we held that a photographic lineup in which
No. 01-1066                                                       21

the primary suspect’s photograph was a mug-shot with a
time-date stamp corresponding with the approximate
time of the crime was not unduly suggestive. Kubat, 867
F.2d at 358-59. Similarly, we have found that a photo-
graph of a suspect with visible ankle shackles was not
unduly suggestive. Traeger, 289 F.3d at 473-74. We do not
think that the fact that the police “seemed happy” after
Graham and Grinter had selected Gregory-Bey from the
stack of photos raises even an iota of concern that the
police’s “suggestion” might have caused an “irreparable
misidentification.”16
  Finally, Gregory-Bey alleges that the identification
procedures were unnecessarily suggestive because the
witnesses collaborated in providing details for an artist’s
composite sketch rendering and because Graham and
Grinter spoke with each other during the physical lineup
(exchanging not only their fear that the suspects could
see them, but also their suspicions regarding which of the
men in the lineup had been the perpetrator of the crimes).
Gregory-Bey has failed to point us to any case law, nor
have we discovered any, to support his theory that wit-
ness collaboration in assisting an artist’s production of
composite sketches renders the procedure unduly sugges-
tive. Indeed, the converse is more likely true. If witnesses
collaborate and share their knowledge with the sketch
artist, it is most evident and logical that the artist will
be able to produce a more accurate and detailed sketch.
See United States v. Messina, 507 F.2d 73, 76 (2d Cir. 1974).


16
  The cases cited by the dissent all involve police officers “telling”
witnesses that their identifications were “correct.” Post at 6. Here,
we refuse to hold that vague statements about the officers’ al-
leged expressions of “happiness” imperils the reliability of the
identifications. Indeed, one witness (Graham) testified that the
officers “didn’t say [I] picked out the right person . . . . They just
was [sic] kind of happy . . . but I don’t know what they were happy
about” (emphasis supplied).
22                                               No. 01-1066

  The conversations between Graham and Grinter, during
and after the physical lineup, merit discussion. Both
Graham and Grinter reported that they were fearful that
the suspect would be able to see them through the glass
at the lineup and both agree that for this reason they
were reluctant to identify the suspect because of fear and
whispered about these fears during the lineup. Although
the police instructed the witnesses to avoid “talk[ing] to
each other about anything,” we cannot see how the wit-
nesses’ sharing of fears that the suspect might be able
to see them raises even a modicum of concern about the
suggestiveness of the procedure, for it has absolutely
nothing to do with the identification procedure itself.
  There is conflicting testimony, however, from Graham
and Grinter about when they spoke with each other con-
cerning their opinions as to which of the persons in the
lineup they believed to be the perpetrator. According to
Graham, the two talked about their potential identifica-
tions at the police station, but only did so after the comple-
tion of the lineup. Grinter agreed and testified that the
conversation took place after the execution of the lineup,
and furthermore that it only occurred after the two wit-
nesses had completed the identification procedure and
had departed from the police station. It is not the role of
an appellate court to second-guess the finders of fact
because the cold pages of an appellate record do not allow
us the opportunity to observe the verbal and nonverbal
behavior of the witnesses, including their reactions and
responses to the interrogatories, any confused or nervous
speech patterns, their facial expressions, attitudes, tone
of voice, eye contact, posture, fidgeting, perspiring, and
body movements. See United States v. Frykholm, 267 F.3d
604, 612 (7th Cir. 2001); United States v. Tolson, 988 F.2d
1494, 1497 (7th Cir. 1993). In this case, although the
state trial judge failed to particularize and articulate the
amount of weight he gave to the testimony of each of the
No. 01-1066                                                    23

individual witnesses, it is clear that he believed and
credited their statements that they were certain about
their identifications and, more importantly, that their
separate identifications had not been influenced by the
police. Given the nature of the fear and anxiety that
certainly was created by the trauma of being involved in the
robbery and murder episode, it is less than surprising
that the lay witnesses would be most fearful and thus
reluctant to identify the suspect in that they were ap-
prehensive about being identified by him, and it is more
than plausible that their whispering had only the effect of
encouraging each other to overcome their fears. We have
observed before that cross-examination is “the greatest
legal engine ever invented for the discovery of truth.”
Rodriguez v. Peters, 63 F.3d 546, 556 (7th Cir. 1995). In this
case, defense counsel was allowed to and given great
latitude to exhaustively cross-examine the witnesses
regarding their identifications, both before the judge dur-
ing the suppression hearing and before the jury at trial,
and in each instance failed to shake their positive identifi-
cations of the murderer/robber. Defense counsel had
ample opportunity to test the knowledge, recollections,
“perceptions, memory and bias of the witnesses, contempo-
raneously exposing weaknesses and adding perspective
in order to lessen the hazards of undue mistake.” Id. From
our review of this case, we are convinced that the jury
did have ample opportunity to observe and weigh the
alleged but unproven suggestiveness of the identifica-
tions, and we find nothing in the record to prove otherwise.
Accordingly, we are unconvinced that the whispering
between Graham and Grinter concerning their fears could
possibly rise to the level of being unduly suggestive.17


17
  The dissent cites a 1971 case from another circuit in which a
post-lineup conference was found to have tainted the later in-court
                                                    (continued...)
24                                                    No. 01-1066

   Even if we were to believe that Graham’s and Grinter’s
conversations about their fears during and after the
physical lineup rendered the lineup an unnecessarily
suggestive procedure, we would affirm the decision of
the state court because Gregory-Bey has failed to estab-
lish that under the totality of the circumstances the in-
court identifications of each of the four witnesses were
unreliable because of the alleged suggestive procedure.
United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996).
We bear in mind during this examination that “the pri-
mary evil to be avoided is a very substantial likelihood
of irreparable misidentification.” Biggers, 409 U.S. at 198.
It is the reliability of identification evidence that prima-
rily determines its admissibility. Manson v. Braithwaite,
432 U.S. 98, 113-14 (1977). As the Supreme Court has
pointedly noted, “the only duty of a jury in cases in
which identification evidence has been admitted will
often be to assess the reliability of that evidence.” Watkins
v. Sowders, 449 U.S. 341, 347 (1981). Further, we note
that “[j]uries are not so susceptible that they cannot
measure intelligently the weight of identification testi-


17
  (...continued)
identifications of two of the three witnesses. See post at 7, citing
Montiero v. Picard, 443 F.2d 311, 313 (1st Cir. 1971). The
Montiero case, unlike the case before us, involved a police officer
asking three witnesses, one at a time and in the presence of each
other, who each thought the perpetrator was. It hardly needs
stating that the facts of this case are not even remotely similar
to the facts of the Montiero case. Nor does the majority believe
that simply because the police used the same lineup in the video
as the live lineup that the identifications are corrupt. This
assertion, somehow leading the dissent to conclude both that “the
procedures were unreasonable” and that they “created the
substantial likelihood of irreparable misidentification” at best
can be classified as mere speculation and is unsupported in
our case law.
No. 01-1066                                               25

mony that has some questionable feature.” Abrams v.
Barnett, 121 F.3d 1036, 1042 (7th Cir. 1996) (citing Manson
v. Braithwaite, 432 U.S. 98, 116 (1977)). Based on this
record, we are confident that the jury diligently assumed
their duty and obligation under the law and followed
the court’s instructions in dealing with the witness iden-
tification question and also when evaluating the reliabil-
ity of the eyewitness testimony, and furthermore we see
no reason to doubt their finding that the eyewitness
testimony was reliable. See United States v. Miller, 276
F.3d 370, 375 (7th Cir. 2002) (holding that juries are
presumed to follow their instructions).
  As noted above, Biggers announced several factors to
consider in assessing the reliability of an identification:
   (1) the opportunity of the witness to view the criminal
   at the time of the crime; (2) the witness’ degree of
   attention; (3) the accuracy of the witness’ prior descrip-
   tion of the criminal; (4) the level of certainty demon-
   strated by the witness at the confrontation; and (5)
   the length of time between the crime and the confronta-
   tion.
Biggers, 409 U.S. at 199-200. In applying the factors
announced in Biggers, we note that the factual situation
before us points overwhelmingly towards the reliability
of the eyewitness identifications. First, the witnesses had
sufficient opportunity to observe the robbers with a fixed
and heightened degree of attention. All four of the wit-
nesses had ample time (five to ten minutes at the crime
scene) to view the robbers as they committed their rob-
bery and proceeded to herd them into the store’s freezer.
The witnesses testified that Gregory-Bey approached
them and made clear their intention to rob the store, thus
giving them ample time and opportunity to view his face
and bodily features over the course of several minutes
and from multiple angles during the course of robbery.
26                                                    No. 01-1066

Neither of the robbers wore masks and the store was
well lit. See, e.g., United States v. Clark, 989 F.2d 1490,
1495-96 (7th Cir. 1993) (two-minute robbery during broad
daylight gave witnesses the opportunity to obtain definite
impression of the robber’s appearance). Second, we em-
phasize that the witnesses were not casual observers to
the crime, but direct eyewitness victims. See Manson, 432
U.S. at 115 (witness identifications are more reliable
when the witnesses are not casual observers, but are
instead victims of the crime); United States v. Newman, 144
F.3d 531, 536 (7th Cir. 1998) (same).
  More importantly, four of t7he five surviving witnesses
all provided what can best be classified as consistent
and accurate descriptions of Gregory-Bey immediately after
the crime. As we have pointed out supra, their descrip-
tions were sufficient to allow the creation of a fairly accu-
rate composite sketch, which in turn led to the police
receiving a tip that Gregory-Bey was probably involved
in the crimes. All four of the witnesses described Gregory-
Bey as dark skinned. Three of the four (Graham, Grinter,
and Hampton) described him as having an Afro that
was either matted or uncombed. Hampton and Grinter
described his build as tall (5'10" to 6'1") and slight (135
pounds). Lastly Hampton and Graham described Gregory-
Bey as having a small beard or a little facial hair. All of
these descriptions match Gregory-Bey’s appearance. That
the witnesses were able to provide such an accurate
and detailed description of Gregory-Bey is a further indica-
tion of the reliability of their identifications.18


18
   That the victims of a recently committed violent crime ini-
tially provide descriptions that vary in some respects is not
surprising, let alone fatal to their reliability. It is obvious that
different people can and do react in different ways to the extreme
stress oftentimes caused by a shocking event such as a robbery
                                                       (continued...)
No. 01-1066                                                       27

   But most telling is the degree of certainty the witnesses
demonstrated at the time of identification. Kathryn Blakely
testified that when she came to Gregory-Bey’s picture
she “kept starin[g] at the picture and . . . just started
shakin[g].” Blakely was so certain that she had iden-
tified the correct suspect that she became so distraught
and fearful that she began to cry. Graham reported a
similar experience when she selected Gregory-Bey’s photo-
graph. Graham testified at the hearing on the motion
in limine that she had “no trouble in picking him out” and
was shaking so violently that she was unable to write her
name.
  This is not a case of a flimsy identification resting upon
a foundation of quicksand, where a minor slip-up by the
police during the investigation might have seriously
undermined the confidence in the reliability of the identifi-
cation. Instead, this is a case where prior to trial four
witnesses had independently identified—not once, but
twice—Gregory-Bey as one of the perpetrators of these
heinous violent crimes, murder and armed robbery. Two
of those witnesses (Blakely, the first witness to identify
Gregory-Bey both from the photos and the lineup, and
Hampton) made their identifications completely independ-
ently of anyone and were entirely unaffected by the al-



18
  (...continued)
and brutal murder. In an attempt to challenge the wealth of
evidence concerning the identifications, the dissent focuses on
alleged discrepancies in the initial description the victims gave
to the police. Significantly, as noted supra, the test for reliability
under Biggers includes not only the “accuracy of the witness’ prior
description[s] of the criminal,” but “the opportunity of the witness
to view the criminal at the time of the crime, the witness’ degree
of attention, the level of certainty demonstrated by the witness
at the confrontation, and the length of time between the crime
and the confrontation.” Biggers, 409 U.S. at 199-200.
28                                             No. 01-1066

legedly suggestive procedures about which Gregory-Bey
complains. All four witnesses expressed a great deal of
confidence and certainty about their identifications. Al-
though some of the initial detective work (identification
procedures, unclear picture, and records thereof) might
have been improved upon, it fell far short of creating
a “substantial likelihood of irreparable misidentification.”
It is not our duty—as an appellate court—to nitpick the
record to find possible error, but rather to search for the
truth and the truth alone in the type of factual situa-
tion presented herein and render justice to the accused
whether it be a finding of not guilty or guilty. The United
States Constitution guarantees not a perfect trial, but
only a fair one. See United States v. Harris, 271 F.3d 690,
704 (7th Cir. 2001). We have acted accordingly and con-
firmed the considered judgment of the jury made up of
the defendant’s peers.
  Because we find the identification procedures were
neither unduly suggestive nor so unreliable as to create
a “substantial likelihood of irreparable misidentification,”
see Traeger, 289 F.3d at 473-74; Biggers, 409 U.S. at 198,
Gregory-Bey’s sentence and conviction are AFFIRMED.




  WILLIAMS, Circuit Judge, dissenting. While I agree
with the legal standard the majority uses to determine
the reliability of the witnesses’ identification of Lawrence
Gregory-Bey, I disagree with its application of that stan-
dard. Based on the facts submitted, I believe that the
identification procedures were unduly suggestive, mak-
ing the identification of Bey by the four eyewitnesses,
No. 01-1066                                              29

Kathryn Blakely, Angela Grinter, Urhonda Graham, and
Patrice Hampton, unreliable. Accordingly, I dissent.
                            ***
  As the majority noted, we analyze whether the initial
identification procedures were unduly suggestive and if
so whether the undue suggestion impairs the reliability
of the identification. See United States v. Newman, 144
F.3d 531, 535 (7th Cir. 1998); United States v. Duprey,
895 F.2d 303, 307 (7th Cir. 1989). Our task is made particu-
larly difficult in this case because the witnesses provided
statements regarding the facts and circumstances sur-
rounding their identifications to the police and in deposi-
tion, motion to suppress, and trial testimony, and some
portions of these statements are inconsistent.


A. Unduly Suggestive
  Identification procedures are unduly suggestive when the
suggestiveness creates a “very substantial likelihood of
irreparable misidentification.” See United States v. Moore,
115 F.3d 1348, 1360 (7th Cir. 1997) (internal quotation
marks omitted). Bey challenges the identification proce-
dures used during the photo array and lineups that
form the basis of the witnesses’ identification of him.


  1. Photo arrays
  As the majority notes, repeated showing of a suspect’s
picture in police photo arrays is not unduly suggestive if
the photos do not resemble each other. See Stewart v.
Duckworth, 93 F.3d 262, 265-66 (7th Cir. 1996) (after
reviewing photos court ruled that the arrays were not
unduly suggestive because the photos were dramatically
different); United States v. Donaldson, 978 F.2d 381, 386-87
(7th Cir. 1992) (court held repeat showings not unduly
30                                                   No. 01-1066

suggestive because the suspect’s photos were distinctly
different). This court normally determines the resemblance
by comparing the pictures in each array. Id. at 387. In this
case, the court was unable to compare the black and
white photo and the color photos due to the unexplained
absence of the black and white photo.1 So the majority
relies on the witnesses’ testimony to decide if there was
a dramatic difference between the photos. However,
there are difficulties presented in this case because of
the conflicting testimony of the witnesses regarding the
differences between the black and white and color pho-
tos.2 Given this conflicting testimony and the court’s
inability to compare the actual photographs, this court
cannot determine the difference, if any, between the
black and white and color photos of Bey and thus wheth-
er the repeated showing of Bey’s picture was unduly
suggestive.
  Repeated showing of one suspect’s picture increases the
likelihood that the witness will choose the recurring pic-
ture not because it is the suspect, but because the witness
remembers seeing the picture before. See Simmons v.



1
  “Q [ to Officer Jackson]. Do you have a copy of the black and
white photo that was shown? A. I don’t have a copy. . . . Q. No, I’m
talking about the copy that was shown? A. No, I don’t know what
happened to it.” Tr.2 at 409-10.
2
  During her deposition, Blakely said that the black and
white photo and the color photo were not distinctively different.
“Answer [Blakely deposition readback]; the picture in the folder,
they was exactly alike except the picture in the folder had more
color to it than the picture was black and white. Question; the
other was what? Answer; black and white. Question; was black
and white or just darker? Answer; it was, it didn’t have any
color to it. Question; but you still could tell the same facial
features? Answer; yes. And you could still tell that it was the
same picture and everything else? Answer; yes.” Tr.5 at 1220-21.
No. 01-1066                                                      31

United States, 390 U.S. 377, 383-84 (1968); Kubat v.
Thieret, 867 F.2d 351, 358 (7th Cir. 1989). The likelihood
that a witness will misidentify a suspect from repeated
showings of the suspect’s photo is lessened if the witness
at least tentatively identifies the suspect in the first photo
array, as was the case in Kubat. See 867 F.2d at 356. In
this case, only one of the four eyewitnesses tentatively
identified Bey from the black and white photo,3 and she
was still not completely certain that Bey was the robber
upon viewing the color photos.4 Because three of the
witnesses were unable to even tentatively identify Bey
from the black and white photo5 and the only witness to


3
  “Q [to Hampton]. So what did you say when you picked that
picture out? A. Well, I told him that this looked like him but I
couldn’t be sure because of the detail of the picture.” Tr.3 at 581.
“A [Hampton]. “And there was a black and white photo in there
that looked like the guy but I couldn’t uh, identify it because the
picture wasn’t clear enough. Q. Okay. Did you say something to
Jackson or anybody about that? A. Yes I did. Q. What’d you say
to them? A. I told them that uh, this looked like the guy but
the picture’s not clear.” Tr.6 at 1283-84.
4
   “A [Officer Combs]. As I recall one (1) lady, Patrice Hampton,
stated that she would uh, she felt 90% sure that was the man
but she’d like to see him in person to see if that was him. She felt
like once she seen him in person she’d know him.” Tr.3 at 684-85.
5
   Blakely and Grinter testified at various points that they had
tentatively identified Bey from the black and white photo. “A
[Blakely]. It was uh, a black and white and it wasn’t real clear.
Q. Were you able to distinguish the features in that photo? A. Yes,
‘cause I told my mother, I said that looks like the guy. And then
she said, well if it is then call uh, Jackson back and let him know.
But I didn’t.” Tr.5 at 1202. “Q [Grinter]. Okay. Was it a color
photograph, the first one that you picked out that you said looked
like it, looked like him? A. No. Q. It was uh, was it a black and
white photograph? A. Yes.” Tr.3 at 546. However, their testimony
                                                       (continued...)
32                                                   No. 01-1066

do so expressed uncertainty upon viewing the color
photos, the repeated showing of Bey’s photo was unduly
suggestive.
  The likelihood of irreparable misidentification was fur-
ther exacerbated by comments made by the police. Be-
fore picking Bey out of the photo array, the police told
Grinter that another witness had picked a suspect out
of the photos.6 According to Grinter, the police then
showed her a photo array in which Bey’s photo was the
only photo that had appeared in previous photo arrays.7
Both Grinter and Graham claimed that when they chose



5
  (...continued)
is directly contradicted by other statements made by Blakely,
Grinter, and Officer Jackson. “Q [Grinter]. Okay. Uh, what did
that photograph look like? A. It was a black and white picture.
Q. Okay. And what was the quality of that photo? A. It was too
dark to see the features in his face. . . . Q. Did you, when you saw
that photograph before did you identify it? A. No.” Tr.5 at 1034.
“Q [to Officer Jackson]. Okay. Was uh, so Lawrence Gregory’s
picture was included in this photo array of black and white
pictures, is that correct? A. That’s correct. Q. And uh, to your
knowledge was uh, did either Patrice Hampton or Kathryn
Blakely pick him out of that photo array? A. No, they did not.”
Tr.2 at 409; see also Blakely, Tr.3 at 636-39.
6
  “Q [Grinter deposition readback]. When you picked somebody
out you told Mr. Alden that [Fred Jackson] had told you that
once other people had picked somebody out of the group, is that
right? Yes. Did he tell you that before or after you made your
selection? Answer; before. Question; before? Answer; yes.” Tr.3
at 548.
7
  “Q [to Grinter]. You ultimately picked the picture out that
Detective Jackson showed you in this photo array, is that correct?
A. Yes. Q. Had you seen any of the other individuals in this
photo array in a group of pictures before? A. No. Q. Only Law-
rence Gregory? A. Yes.” Tr.5 at 1058.
No. 01-1066                                                     33

Bey the police seemed excited,8 and Grinter further as-
serted that the police indicated to her that Bey was the
same person chosen by the other eyewitnesses.9 These
statements and expressions of the police before and after
Grinter and Graham identified Bey as a suspect have
been found by other circuits to be unduly suggestive. See
United States v. Smith, 156 F.3d 1046, 1050 (10th Cir.
1998) (unduly suggestive for police to tell witnesses to
assume the suspect was in the photo array); Grubbs v.
Hannigan, 982 F.2d 1483, 1490 (10th Cir. 1993) (im-
permissibly suggestive to cause a witness to assume that
suspect was in photo array); Swicegood v. Alabama, 577
F.2d 1322, 1326-29 (5th Cir. 1978) (ordering habeas re-
lief in part because police told witnesses after lineup that
they had identified “the suspect that we had”); United
States v. Jarvis, 560 F.2d 494, 500 (2d Cir. 1977) (practice
of telling witnesses whether identifications are “correct”
or not, could so taint an identification as to require exclu-
sion of evidence).
 In sum, because the court cannot determine how similar
Bey appeared in the photos used at each photo array,


8
  “Q [to Grinter]. After you made your selection was Detective
Jackson, did he appear to be excited that you’d made the selection
that you, that you’d made? A. Yes.” Tr.3 at 549. “Question
[Graham deposition readback]; when you picked him out what
did they say to you when you picked him out? Answer; nothing.
They was kind of happy like. . . . They just was kind of happy,
you know, that I, like if I picked out the right person. They didn’t
say you picked out the right person, that’s him. Question; did
they give you the impression that you did pick out the right
person then, obviously that you’d picked out. . . . Answer; in a
way.” Tr.5 at 1163-64.
9
  “Question [Grinter deposition readback]; did [Detective Jackson]
indicate to you if that was the same person that the other girl
picked out, he was happy to see you picked that person out?
Answer; yes.” Tr.3 at 550.
34                                                  No. 01-1066

the witnesses were unable to identify Bey prior to view-
ing the color photo, and the police made suggestive com-
ments, I would hold that the photo array identification
procedures for all four of the eyewitnesses were unduly
suggestive.


     2. Lineup
  The lineup procedure employed by the police was
also unduly suggestive, for several reasons. First, while
waiting in the police conference room immediately after
viewing the live lineup, and also later that day, Graham
and Grinter discussed their potential identifications with
one another.10 It was only after these conversations took
place that Graham and Grinter identified Bey during
a video lineup. Because they made positive identifica-
tions only after learning of each other’s suspicions about
whether the robber was in the lineup, their identifica-
tions were tainted. See Montiero v. Picard, 443 F.2d 311,
313 (1st Cir. 1971) (finding certain identifications to be
“tainted” because the witnesses identified a suspect only
after hearing another witness identify that suspect).
  Second, Grinter said that before Blakely went to the
lineup, she told Blakely that everyone had picked the




10
  “A [Grinter]. We were uh, we were going home and we asked
each other if we had picked anyone out of the line-up. Q. Uh hum.
A. I said no. She said no. Uh, and her mother, Louella Spurling
asked us did we see the person up there. And we said yes. And she
said that we should of uh, marked the sheet.” Tr.5 at 1043. “Q [to
Graham]. Alright. The two (2) of you whispered in the conference
room about. . . A. Um hum. Q. . . who was in the line-up, is that
right? A. Um hum. Q. Alright. And did you tell Angie that
you thought it was number five (5)? A. Um hum.” Tr.3 at 622.
No. 01-1066                                                   35

same suspect out of the photo array.11 Grinter’s comments
to Blakely prior to the live lineup probably suggested
to Blakely that she should look for the person in the
photo instead of making an independent identification,
creating the substantial likelihood of irreparable mis-
identification.
  Third, the identification of Bey by Hampton in the
video lineup was unduly suggestive because the police
used the same lineup in the video as the live lineup.12 This
is problematic because of the possibility that the wit-
nesses would discuss the live lineup before they were
brought in to view the video lineup in the same way
they discussed the photo array before attending the live
lineup. Thus, the live and video lineups were unduly
suggestive for the four eyewitnesses because the proce-
dures were not reasonable and created the substantial
likelihood of irreparable misidentification.


B. Reliability of Identification
  Applying the five factors announced in Neil v. Biggers,
409 U.S. 188, 199-200 (1972), I find that each of the four


11
  “Q [Grinter deposition readback]. So when you were notified
about going to the line-up did you have a conversation with
anyone? Did you have a conversation with Urhonda, Patrice,
Sonia or Kathryn about the fact you were going to a line-up?
Answer; just that we were going down and if this guy really
looked like the guy that robbed McDonald’s. Question; okay, and
you had then talked to them about the fact that certain ones
had picked him out of the photo display and it was the same
one that you all picked out, you compared notes about that
already before the line-up, is that correct? Answer; yes.” Tr.5
at 1064-65.
12
  “Q [to Hampton]. And what was that a video tape of? A. It was
a video tape of the line-up? Q. Was it the exact same line-up that
you’d seen uh, several weeks earlier? A. Right.” Tr.6 at 1296.
36                                                   No. 01-1066

eyewitnesses’ identifications of Bey was unreliable be-
cause of their lack of certainty that Bey was the robber.
  In her first statement to the police, Blakely failed to
describe any specific characteristics of the suspect beyond
the fact that he was tall, skinny, and had dark skin. Tr.2
at 381 (Defendant’s Exhibit C). In fact, Detective Jackson
testified that within ten days of the robbery, Blakely
intimated that a different dark-skinned man was the
robber.13 In addition, the level of certainty Blakely ex-
pressed when identifying Bey is troubling. Blakely was
shown Bey’s picture several times before she could identify
Bey.14 Blakely reasons that she did not identify Bey earlier
because she was tired of the detective showing her the
photos and wanted him to leave.15 This explanation se-
verely undercuts the reliability of Blakely’s dramatic re-




13
  “Q [to Officer Jackson]: Let me ask you this question; prior to
December of 1985, as a matter of fact within ten (10) days after
November the 17th, did Kathryn Blakely indicate to you that
she thought she saw one uh, or someone who looked uh, the
perpetrator of the robbery in a food stamp store in Indianapolis?
A. Yes.” Tr.2 at 421.
14
  “Q [to Blakely]. Now before that time you had seen the black
and white photograph, is that correct? A. Just uh, yeah. Q. The
last time that the photographs were brought to you, you had
seen the photograph of this same individual. A. Yes.” Tr.3 at 641.
15
   “Q [Blakely deposition readback]. He said, I just got to talking
to Jackson and Jackson said he showed you this same picture. Did
you know? I said, yeah I seen it. He said, well why didn’t you tell
Jackson. I said, because I wasn’t really, I was just mad at him
and was just really, I wasn’t paying no attention to him. I started
at it and then I had a reaction and I just put it under the bottom
and just gave them to him so he could go and hurry up and leave.”
Tr.5 at 1219-20.
No. 01-1066                                                   37

action to Bey’s color picture16 and the certainty of her
identification.
  Furthermore, Blakely testified at trial that when she
identified Bey from the photo array more than three
months after the robbery, she was certain Bey was the
assailant.17 Notwithstanding this certainty, Blakely fur-
ther testified that when she identified Bey at the lineup
four months after the robbery,18 she thought that he was
not the same man she had just picked out of the photo
array.19 Moreover, when Blakely picked Bey out of the
lineup she was not “100% sure” that Bey was the robber,
but certain that Bey “looked exactly like [the robber].” Tr.5
at 1228. Because Blakely initially identified someone
else as a suspect nearly two weeks after the robbery,
believed that the person she picked at the lineup was
different from the person she picked out of the photo array,
and was uncertain whether Bey was the robber, her prior
identifications and her identification at trial were unreli-
able.
  Grinter’s identification was no more reliable than
Blakely’s identification. First of all, it is questionable


16
  Blakely began to shake as soon as she saw Bey’s picture. “A
[Blakely]. And then I started shaking and I told Combs, I said,
this is the guy.” Tr.3 at 641.
17
  “A [Blakely]. And [Officer Combs] said are you sure. And I said
yes I’m sure.” Tr.3 at 641.
18
   Blakely only participated in the live lineup in which Bey was
present. Grinter, Graham and Hampton participated in the live
lineup and the video lineup.
19
  “Q [to Blakely]. Now Kathryn when you made the identification
of the line-up how’d you feel about that? What, let me rephrase
my question. Uh, did you recognize the person in the line-up that
you picked as the person whose photograph you had picked? A.
No. Q. Okay. Did you think you were picking someone different?
A. Yes.” Tr.5 at 1207.
38                                                   No. 01-1066

whether Grinter had ample time to view the suspect at
the time of the crime because she testified that she was
afraid to look at him directly.20 However, assuming that
she did have an opportunity to view the suspect and
paid attention to him, Grinter still failed to accurately
describe Bey in her first statement. Specifically, Grinter
failed to mention that the suspect had bumps on his face,
a mustache, and a beard. Tr.2 at 388 (Defendant’s Exhibit
E). In fact, at her deposition and at the motion to sup-
press hearing, she testified that the suspect did not have
any scars or bumps on his face.21 Thus, her early descrip-
tions of the suspect were not accurate. When she finally
identified Bey more than three months after the robbery
and after looking at photos at least three different times,
see Tr.3 at 543-44, Tr.5 at 1056-57, she was certain that
it was Bey.22 Nevertheless, Grinter was not so certain
that Bey was the robber when she later went to the live
lineup because she did not pick Bey23 and admitted to
Graham that she thought it was someone other than Bey.24


20
  “Q [to Grinter]. And were you sort of afraid to look at, look at
them directly? A. Yes.” Tr.3 at 535.
21
  “Q [to Grinter]. Did he have any scars? A. Not that I remember.”
Tr.3 at 538. “Q [Grinter deposition readback]. Okay, were there
any scars or birthmarks or any other features on the face you
recognized? Answer; no.” Tr.3 at 540.
22
  “A [Grinter]. The next time I was sure it was him. Q. The next
time you were sure that was who? A. The dark skinned man
that robbed McDonald’s.” Tr.3 at 545.
23
 “Q [to Grinter]. And did you pick anybody out of the line-up? A.
No.” Tr.3 at 551.
24
  “Q [to Graham]. And did [Grinter] tell you who she thought it
was? A. She, no she didn’t. Not that I remember. Q. What’s, did
you ever tell me that you thought that she told you it was number
three (3)? A. Yeah, I think so. Q. Okay. So you remember her
                                                     (continued...)
No. 01-1066                                                   39

It was only after Graham said in Grinter’s presence that
she believed that the suspect was number five, Bey, that
Grinter identified Bey in the video lineup.25 Therefore,
Grinter’s identification of Bey in the photo array, lineup,
and at trial was unreliable.
  Graham’s identification of Bey was also unreliable.
Graham had ample time to view the suspect, she paid
attention to the suspect, and her first description matched
Bey.26 However, Graham’s description of Bey changed
over time. Graham later said that the suspect did not
have a beard or mustache,27 but these characteristics were
included in her first statement. Furthermore, although
Graham finally identified Bey more than three months
after the incident and after viewing photos at least three



24
  (...continued)
telling you that she thought it was number three (3) that was
in the line-up? A. Uh huh.” Tr.3 at 622.
25
  “Q [Grinter deposition readback]. Did [Graham] ever say to
you she knew it was number so-and-so, did she ever say to her
mother out loud she knew it was so-and-so, number five (5)?
Answer; she told her mother. Question; that she knew it was
number five (5)? Answer; yes.” Tr.5 at 1069. “Q [to Louella
Spurling, Graham’s mother]. Do you remember which number
[Graham] said? A. Yes, she said number five (5). And then Angela
Grinter said number five (5) also.” Tr.5 at 1174.
26
   “A [Graham]. His face was narrow and he had like a little beard
like he was trying to shave and he had little bumps underneath
here not that many but a little and a little beard and a little
mustache. . . . A. He had you know like some scars he had
from when he was little and they was just still in his face.” Tr.2
at 385 (Defendant’s Exhibit D); see also Tr.3 at 608.
27
  “Q [Graham deposition readback]. [T]here’s no question in
your mind that uh, he had no facial hair at that time? A. Not to
me he didn’t.” Tr.5 at 1155.
40                                                    No. 01-1066

different times,28 she did not pick Bey when she later went
to the live line-up.29 She claims that she was scared,30 but
she also testified that she did not pick Bey because his hair
looked different.31 Because of Graham’s indecisiveness
in her description and identification of Bey, Graham’s prior
identifications and her identification at trial were not
reliable.
  Finally, Hampton’s identification of Bey was unreliable.
Hampton had ample time to view the suspect at the time
of the crime, and there is no question that she paid atten-
tion to the suspect at the time of the crime. Tr.3 at 563-71.
Yet, her first statement failed to mention that the sus-
pect had bumps on his face and a mustache.32 When she
officially identified Bey’s photo, she had seen his picture



28
  “A [Graham]. I didn’t, I didn’t think it was him so I didn’t uh, I
didn’t see him. Q. Okay. And uh, then after that did you have
a occasion to view photographs any other time. A. At home and
at work.” Tr.3 at 611; see also Tr.5 at 1118-20.
29
  “Q [to Graham]. Did any, but you didn’t pick anybody out?
A. Um hum.” Tr.3 at 629.
30
   “A [Graham]. Why I didn’t pick him out after I had told them
it was him in Steve Goldsmith’s office and then they said why
come I didn’t pick him out and I told them because I was scared.”
Tr.3 at 630.
31
  “Q [to Graham]. So did any of the detectives say anything to
you about how could you pick him out of the photo array but
not pick him out of the line-up? A. He, he looked different. His
hair did.” Tr.3 at 629.
32
  “Q [to Hampton]. Okay uh did he have a mustache? A. No he
had facial hairs. Q. Facial hairs? A. Beard hairs. . . . Q. Any scars
unusual on his face? A. No I didn’t see any. Q. Okay anything
that you can think about that stood out about this guy? A. No
but if you showed me a picture of em I bet you I could point
him out.” Tr.2 at 373 (Defendant’s Exhibit A).
No. 01-1066                                                       41

three times,33 and she was not completely certain that it
was Bey. Hampton requested to see Bey in person before
she could be certain.34
  At the lineup Hampton failed to pick Bey35 and lied
about it to the police.36 She did not change her story
until she heard that someone had identified Bey as the
suspect.37 Hampton then called the police and said that
she failed to identify the suspect because she was scared.38
Additionally, Hampton discussed the suspect with Grinter
before the video lineup, although they claim that they




33
  “Q [to Hampton]. Okay. So you saw the picture that you
ultimately picked out three (3) different times. . . . A. Right.” Tr.3
at 585.
34
     See supra note 4.
35
  “Q [to Hampton]. Did [Mr. Goldsmith] ask you if the person
involved in the robbery was in the line-up? A. Yes. Q. What did
you tell him? A. I told him no.” Tr.3 at 589.
36
   “A [Hampton]. He told, he asked me did I uh, he asked me could
I identify one of the guys. And I told him no. Q. So what, why
did uh, was that true? A. Was it true that I could or couldn’t?
Q. Well, you told him that you couldn’t, right? A. Right. Q. Was
that true? A. No.” Tr.6 at 1293.
37
  “A [Hampton]. So then it wasn’t until the next day that you
contacted Detective Jackson and said that you did, in fact,
know somebody in the line-up? A. Yes. Q. But at that point in time
you knew Urhonda and Angie had not picked him out and they . . .
A. No, at that time I didn’t because all I knew at that time is
that one (1) of the girls picked out one (1) of the guys. And, one
(1) of the guys I do not know which one they picked out. So, I
couldn’t even answer that for you.” See Hampton dep., 6j, at 48.
38
  “A [Hampton]. And when I called Dave Cook I had to explain
to him everything that, you know, that I was scared to pick
him out and the reason why and everything.” Tr.3 at 590.
42                                                 No. 01-1066

did not discuss whom they picked.39 Hampton’s uncer-
tainty and subsequent conversations with the police and
Grinter before the video lineup make Hampton’s identifi-
cation of Bey unreliable.
  For the reasons stated above, I would reverse Bey’s con-
viction.

A true Copy:
       Teste:

                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




39
  “Q [Hampton deposition readback]. So then the next day you
and Angie had a conversation about who it was that picked
him out, right? Answer; it wasn’t a very long conversation.” Tr.3
at 603.


                    USCA-02-C-0072—6-13-03
