Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 C 8065 -- Thomas R. McMillen, Judge.
Flaum and Easterbrook, Circuit Judges, and Swygert, Senior Circuit Judge.
While in jail awaiting trial in one case, Anthony Hall was required to appear in a line-up as a suspect in a second case. He challenges his conviction in the second case, arguing that the trial court should have suppressed the identification made at the line-up because the prison authorities refused to allow him to have his attorney from the first case present. The district court denied his petition for a writ of habeas corpus. Because the government had not begun the "prosecution" against Hall in the second case at the time of the line-up, we conclude that he had no Sixth Amendment right to counsel and that the identification evidence was admissible. We therefore affirm.
On November 25, 1980, Anthony Hall was arrested on charges of attempted robbery and unlawful restraint. He was placed in the Cook County Jail. Hall was represented at the arraignment and preliminary hearing on these charges by a private lawyer, Robert Romanoff. A Cook County grand jury indicted Hall on these charges on December 15, 1980.
On December 16, while he was in jail awaiting trial, the jail authorities informed Hall that he was required to participate in a line-up as a suspect in a second, unrelated case. Hall requested permission to contact his lawyer. The jail authorities denied his request. However, an assistant state's attorney, believing that Hall was represented by the public defender's office, contacted that office. They did not furnish counsel. Following the line-up, after being given permission, Hall contacted Romanoff.
Immediately after the line-up, the complainant in the second case identified Hall as her assailant. Three days later, the Cook County grand jury indicted Hall in this case, charging him with armed robbery, armed violence, and attempted rape. A trial on these charges was held in Cook County Circuit Court in March, 1981.
Prior to the start of the trial, Hall's counsel moved to suppress the line-up identification and any in-court identification based upon it. The court denied this motion and the evidence was later admitted. Following the trial, the jury found Hall guilty on all counts. The trial judge sentenced him to 40 years in prison on the armed robbery and armed violence charges, to run concurrently. He entered no sentence on the attempted rape charge.
Hall appealed his conviction to the Illinois Appellate Court, which affirmed his armed robbery and armed violence convictions, but vacated the attempted rape judgment because, under Illinois law, that crime is a predicate offense for the armed violence conviction. People v. Hall, 117 Ill. App. 3d 788, 805, 453 N.E.2d 1327, 1340, 73 Ill. Dec. 192 (1st Dist. 1983). The court specifically considered, and rejected, Hall's Sixth Amendment claim. Id. at 797, 453 N.E.2d at 1335. The Illinois Supreme Court declined to order a rehearing and the United States Supreme Court declined to grant certiorari. Hall v. Illinois, 467 U.S. 1228, 81 L. Ed. 2d 878, 104 S. Ct. 2683 (1984).
Hall then petitioned the United States District Court for the Northern District of Illinois, pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus based on the claimed Sixth Amendment violation. The District Court dismissed the petition. Hall thereupon filed an appeal with this court.
At oral argument, the government observed that jail authorities and prosecutors would be "well advised" to allow a prisoner in Anthony Hall's position to contact his lawyer. We agree. "The government should make every effort when defendants are in custody to hold line-up identifications with the presence of counsel." United States v. Gidley, 527 F.2d 1345, 1352 (5th Cir. 1976). The presence of "counsel can hardly impede legitimate law enforcement; on the contrary . . . law enforcement may be assisted by preventing the infiltration of taint. . . ." United States v. Wade, 388 U.S. 218, 238, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967).
Had the jail authorities granted Hall's request to contact his lawyer, or had the assistant state's attorney taken a moment to determine who was representing Hall, much needless litigation would have been avoided. The question for this court, however, is not what the jail authorities or the assistant state's attorney should have done. The question for this court is whether their actions rise to the level of a constitutional violation requiring this court ...