Full opinion text
MEMORANDUM & ORDER KORMAN, Chief Judge. On the evening of January 4, 1976, four men were sitting at the bar of the Moulin Rouge in Brooklyn, drinking, talking, and watching Dallas trounce Miami in the Superbowl. W-94-95, T2-118, 206. Before the game ended, one of them, Charles Hill, was shot in the head by John Whitaker, as petitioner was then known. He would later confess to the murder, one of four of which he stands convicted, all committed within a period of twenty days. The victims were each felled by a bullet to the head. Sentencing Hearing, April 6, 1981, p. 12. Of the four judgments of conviction, two were entered upon jury verdicts. Petitioner was sentenced to twenty-five years to life- — the sentences to run consecutively — on the judgments entered in these two cases. The conviction challenged in this petition is the basis for the second of the two consecutive sentences. Petitioner pled guilty to the other two murders with the understanding that he could withdraw the guilty pleas and have the convictions set aside if he successfully challenged both of the judgments entered after trial. The petition here challenges the conviction for the murder of Charles Hill. The issue raised is the admissibility of the eyewitness identifications that were made twenty days after the murder of Charles Hill. The lineup was inadvertently suggestive. Petitioner was the only person in the lineup who wore a three-quarter-length black leather jacket, recognized by the eyewitnesses as the same one worn by the man who killed Charles Hill. The suggestion was clearly inadvertent, however, because the subject of the lineup was a person other than petitioner. Petitioner, who was under arrest for one of the other murders, was put into the lineup as a filler. The case turns on the admissibility of the identification evidence, because the confession petitioner gave was suppressed. The ground for suppression was that, at the time he confessed, petitioner was represented by counsel on the other murder for which he had been jailed at the time of the lineup. People v. Whitaker, 75 A.D.2d 111, 428 N.Y.S.2d 691, 692-93 (1980). This ground — peculiar to New York jurisprudence — would not have provided a basis for suppression under the United States Constitution. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991). The question presented, then, is whether a conviction should be set aside because of inadvertently suggestive eyewitness identifications where the record demonstrates that the eyewitnesses picked out the right man. Background The shooting occurred, as previously indicated, in a bar, while the attention of the patrons was focused on the Superbowl and on their conversation with each other. Arthur Shiloh, Vincent Cooke, and Samuel Hayward were regulars at the Moulin Rouge. T2-41-42, 163, 259. Shortly before the killing, Shiloh and Cooke were sitting there together, drinking scotch. W-84, 94, 155, 189; T2-208. Shiloh was having his third drink of the day, W-110, and Cooke was working on his second. W-189-190; T2-187. Hayward, who had had three or four drinks before arriving at the Moulin Rouge, T2-260, was sitting down the bar next to Charles Hill, part owner of the bar and an off-duty corrections officer. T2-261. Cecile Dukes was tending bar. T-337-338. Around six o’clock, another regular customer, Winfred Moore, came in and joined his friends Shiloh and Cooke at the bar, T2-206-207. Three strangers entered the bar together and then split up. W-197. One took up a position near the window at the front of the bar. W-104,157. The other two went to the bathroom, and upon returning began to talk with Hill, T2-61, one standing near the door and the other near the wall. After some time (witness estimates ranged from 10 to 30 minutes from the time the strangers entered the bar, W-104, 160, 199), the man near the wall (later identified as petitioner) shot and killed Hill, who fell to the floor. W-117,161. After the shooting, the man near the door pulled out a pistol and announced, “This is a stickup.” T2-70. He then took Shiloh’s money and Cooke’s money, ring, and watch. T2-70. The man who shot Hill took a gun off Hill’s body. T2-262. He took Moore’s money, driver’s license, car registration, and keys. T2-209. One of the three strangers took Hayward’s wallet. T2-263. The man who had been standing by the window jumped over the bar and emptied the cash register. W-160. The man who had announced the stick up herded all the witnesses into the bathroom at the back of the bar. T2-70. According to Cooke, the shooter (petitioner) came back to the bathroom and asked Moore which key started his car. T2-178. Moore, however, said no such thing ever happened. T2-215. When the witnesses emerged from the bathroom, the robbers were gone. All the witnesses noticed that the shooter was wearing a black leather coat, and gave that description to the police. W-130, 182, 233; T2-214. A police flyer circulated after the shooting, however, indicated only that the killer wore a “black % length coat.” W-233, 254. Some three weeks after the crime, on January 24, 1976, the police arrested a suspect, Lindsay Webb, in the murder of Charles Hill. W-215. Detective Anthony Martin decided to conduct a lineup. W-215. Since he was able to get only three black police officers to serve as “fillers,” he filled out the line with two African-American men who happened to be in custody on unrelated crimes. W-216-217. One was petitioner, who was being questioned at the precinct that day about the murder of one Harriet Gathers. W-217. Unlike any of the other men in the lineup, petitioner happened to be wearing a black leather coat. T2-202. Cecile Dukes, Arthur Shiloh, and Vincent Cooke viewed the lineup. The three witnesses waited together in a room at the precinct and were brought in to view the lineup one by one. W-220-221. Dukes, who went first, recognized no one. W-219. Shiloh was next, and after two or three minutes was also unable to identify anyone in the lineup as one of the robbers. W-90, 140-141. Cooke was the last to view the lineup. He identified petitioner as the man who shot Charles Hill. W-165, 220. Cooke described his identification: Well, I looked them all over carefully because I didn’t .want to make any mistakes and then I picked number one, the guy.... I said he appeared to be the one that I remember in the bar. And I could tell from his, you know — his coat is another thing. He had on a leather coat that I remembered. W-165 After Cooke returned to the room where the other witnesses were waiting, Shiloh asked to view the lineup again. W-220. This time he picked petitioner as the shooter. W-220. Shiloh explained, When I looked through the window the second time, I looked at the lineup, I looked at number one. I said, that has to be the man: W-146. ... I said that was the man, really, because you see like at the time he was standing there he didn’t have the cap on, and but [sic] face features of him the black leather coat, the same thing, the black leather coat really set it off for me. W-147. A month later, on February 24, 1976, Detective Clarence Crabb interviewed petitioner about the Hill homicide. T-694r-702. According to Crabb, after being advised of his rights, petitioner told Crabb that he and two other men, Robert Black-man and Johnny Johnson, had been on their way to stick up another establishment when they stopped in the Moulin Rouge to get warm. T-701. While they were in the bar watching TV, petitioner noticed that a man seated at the bar started to move as though he were reaching for his “piece.” T-701-702. Petitioner warned the man not to “do something foolish,” T-702, and the man paused, but then reached for his gun. T-702. Petitioner told Crabb, “that’s when I shot him, and when I shot him, Johnny Johnson jumped over the bar and announced this is a stick up. He went into the cash register and took the money out.” T-702. By Crabb’s account, petitioner’s admissions continued with the details of the shooting’s aftermath: He said Bobby Blackman, Johnny Johnson herded all the people in the bar to the rear. He said when they got ready to leave, he said I took some car keys from one of the people that was in the bar that had a car parked outside and he said I drove the car. We got in. I drove the car to a side street off of Herkimer Street, that was near his house. He said Bobby Blackman, he says I gave Bobby Blackman Hill’s gun, he says, and he sold it someplace in the street. He wouldn’t tell me what he did with his gun. He just said that he sold it. T-702. Petitioner was subsequently indicted for the murder of Charles Hill and the robberies at the Moulin Rouge. His counsel moved to suppress any admissions or confessions and the identifications. At a Huntley hearing held on January 6, 1977, Detective Crabb testified about petitioner’s confession. H-58-59. Crabb explained that he had arrested petitioner on January 24, 1976 for the murder of Harriet Gathers, H-26, and the meeting at which he took petitioner’s statement took place at the Brooklyn House of Detention where petitioner was being held in connection with that charge. According to Crabb, while petitioner was in detention he phoned Crabb twice asking to see him. H-33-34. Crabb testified that he got permission from his commanding officer and conferred with the district attorney’s office before .visiting petitioner. H 38-39. When Crabb arrived at the Brooklyn House of Detention, he was locked in a cell alone with petitioner, who signed a form consenting to the visit. H-19. After some opening pleasantries petitioner began to talk to him about the Gathers case, and Crabb responded that he could not discuss that crime because petitioner had already been indicted. H-20. Then Crabb told petitioner he wanted to talk about the Hill homicide. H-20. When petitioner agreed, Crabb read him his Miranda rights. H-20. According to Crabb, petitioner then asked what Crabb would be able to do for him, and Crabb explained that he could not do anything personally, that it was up to the district attorney’s office. H-21-22. At that point, Crabb testified, petitioner proceeded to give him the information that Crabb later typed as the statement. H-22. Asked at the trial whether he had ever suggested that petitioner .write out or initial his statement, he said that he had not. T-710. Such a suggestion would seemingly have been pointless because, while Crabb was making notes of petitioner’s statement, petitioner asked what he was doing and then told Crabb that he could never go to court with the statement because petitioner would deny it. T-713. Petitioner challenged the statement he allegedly made to Detective Crabb on the grounds that “there has not been a showing beyond a reasonable doubt that a voluntary statement or admission or confession was made,” that petitioner had not been properly Mirandized, and that the detective spoke with him in violation of his Sixth Amendment right to counsel. H-64. At the conclusion of the hearing, the judge ruled that there was no Miranda violation because the detective did not initiate the conversation leading to the statement. H-74. Regarding the, right-to-counsel claim, the judge held that “[t]he fact that [petitioner] is represented by counsel in one matter does not preclude a police officer from speaking to him on an unrelated matter.” H-75. Denying the suppression motion, the judge concluded that “the oral statement made by the defendant to the detective was voluntarily made, initiated by the defendant himself and also that his Sixth Amendment Constitutional rights as well as the Fifth Amendment Constitutional rights were not violated at all.” H-75-76. On January 10, 1977 a Wade hearing was held to determine the admissibility of identification testimony. Arthur Shiloh, Vincent Cooke, and Detective Anthony Martin testified. Cooke testified that when he viewed the lineup, petitioner “appeared to be the one that I remember in the bar. And I could tell from his, you know — his coat is another thing. He had on a leather coat that I remembered.” W-165. When asked later in the Wade Hearing, “What was the basis for your picking-out Mr. Whitaker,” Cooke responded, “His face.” W-166. The prosecutor followed up: “What were you thinking back to when you made the identification?” Cooke answered, “How he looked like the man that I saw in the bar. And the clothes. You know, he had on the same clothes. I looked at the round face.” W-166. During cross-examination, Cooke was pressed to say whether there was anything “peculiar about the face that stuck in his mind.” W-185-186. He responded again that the face was “round” and added that there was something “different” about the eyes, that “stood out.” W-186. Asked whether he was “absolutely sure” when he picked petitioner out of the lineup, he replied, “Well, after I picked him out, I was convinced.”. W-184. Arthur Shiloh explained that, having failed to identify anyone on his first viewing of the lineup, and having asked to see the lineup again, on his second viewing, “the black leather coat really set if off for me.” W-1.47. At that point the hearing judge asked Shiloh whether the coat was “the sole basis” for his identification of petitioner, and Shiloh at first responded, “Yes.”-W148-149. The following colloquy then ensued: Court: The only basis? Shiloh: Yes. Court: Not the face and the features? Shiloh: The feature and the face and the black leather jacket. Court: What I asked you was it only the black leather coat. If somebody else in .that lineup, number 5 let’s say was wearing a neat black leather coat, and Whitaker was not wearing a black leather coat, would you have picked him out? Shiloh: Yes. By the face. Court: Would you have picked him out? Shiloh: Yes. W-149. At the close of the hearing, the judge denied the suppression motion. Regarding the lineup, he explained that Cooke “made the identification from his eyes and round face as well as a black leather coat.” W-258. The judge also noted that “Shiloh stated that he made his identification from the face, but it was the black leather coat that convinced him it was the defendant.” W-258. The judge concluded, W-260. There were no other findings of fact made by the trial judge. I cannot under any stretch of the imagination see how this was an unfair lineup. First of all, it wasn’t for the purpose of identifying the defendant to begin with. It was for the purpose of attempting to identify someone else as the perpetrator. Second, there was no testimony whatsoever that I heard of where anybody suggested or made- any undue suggestions to any of the persons who viewed the lineup and I find the lineup was a proper lineup and as far as that argument of being an -unfair lineup is concerned, I do not believe that it holds any water whatsoever. • Petitioner was then tried and convicted of murder in the second degree, three counts of robbery in the first degree, and criminal possession of a weapon in the second degree. At trial, the identification testimony of Cooke and Shiloh, and Detective Crabb’s testimony about the confession, was substantially the same as their testimony at the pretrial hearings. Petitioner’s conviction was reversed based on a retroactive application of People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (1979), decided two years after the trial, which held that a defendant represented by counsel in a criminal case may not be interrogated in the absence of his attorney, even on unrelated charges. People v. Whitaker, 75 A.D.2d 111, 428 N.Y.S.2d 691 (1980). The order denying the motion to suppress the eyewitness identification was affirmed, thus making a retrial possible. Petitioner was retried, this time without testimony about his alleged admissions to Detective Crabb. At the second trial, Arthur Shiloh and Vincent Cooke again testified about the crime and their identifications of petitioner in the lineup. They also identified him in court. Winfred Moore and Samuel Hayward testified about the events at the Moulin Rouge, but were unable to identify petitioner. Petitioner was again convicted of murder in the second degree, three counts of robbery in the first degree, and one count of criminal possession of a weapon in the second degree. He was sentenced on April 6,1981 to a term of 25 years to life on the murder count, a concurrent term of 5 to 15 years for the weapon possession, and three terms of 8 $ to 25 years on the robbery counts, concurrent with each other, but consecutive to the sentence for murder. On October 31, 1983, the Appellate Division modified the sentence to run the robbery sentences concurrently with the murder sentence and affirmed the conviction as modified. People v. Whitaker, 97 A.D.2d 555, 468 N.Y.S.2d 168 (2d Dept. 1983). Petitioner appealed to the New York Court of Appeals, which affirmed, noting that petitioner challenged the lineup on several grounds, but asserting that “the only issue which is within the scope of our review'is his contention that using him as a filler in a lineup without his consent constituted an illegal seizure,” an argument it rejected. 64 N.Y.2d 347, 351, 486 N.Y.S.2d 895, 897, 476 N.E.2d 294 (1985). The Court of Appeals explained that the “determination that the lineup was not suggestive involves a mixed question of law and fact which is supported by the record and thus is beyond review in this court.” Id at n. *. A petition for a writ of certiorari was denied. Whitaker v. New York, 474 U.S. 830, 106 S.Ct. 95, 88 L.Ed.2d 77 (1985). Eleven years later, Abdur-Raheem filed this petition for a writ of habeas corpus. Discussion Petitioner contends that his conviction must be reversed because it was based on an identification that was unduly suggestive and unreliable and thus violated his due process rights under the 14th Amendment. As part of his right to due process, a criminal defendant has the right not to be subjected to suggestive police identification procedures that create a “very substantial likelihood of irreparable misidentification.” Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977); quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Not all suggestive identification procedures, however, raise a constitutional issue. First, the challenged procedure must be “unnecessarily suggestive.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). Moreover, even unnecessary suggestiveness in and of itself does not violate due process. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed,2d 401 (1972). “[T]he primary evil to be avoided is a very substantial likelihood of irreparable misidentification.” Id., 93 S.Ct. at 381 (internal quotations omitted). Thus, the “central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199, 93 S.Ct. at 382. The first question, then, is whether the line-up that included petitioner was suggestive. It was. Petitioner was the only person in the lineup who was wearing a black leather coat. All the witnesses who viewed the lineup had noticed that the man who shot Charles Hill was wearing a black leather coat and reported this to the police at the time of the robbery. W-130, 182, 233; T2-214. Moreover, it appears from the witnesses’ testimony at the Wade hearing that the coat was a decisive factor in their identifications. Vincent Cooke specifically mentioned that he remembered the coat. W-165. He explained that he found petitioner’s eyes and facq distinctive, but he also relied on the fact that petitioner “had on the same clothes” as the shooter in the bar. W-166. The hearing judge found that Cooke “made the identification from his eyes and round face as well as a black leather coat.” W-258. As for Arthur Shiloh, although the hearing judge managed to elicit that his identification was based partly on petitioner’s face and features, it is clear that the coat was a significant factor. Shiloh began by stating that “the black leather coat really set it off for me.” W-147. Indeed, the hearing judge acknowledged in his findings, which are presumptively ■ correct, 28 U.S.C. § 2254(e)(1), that “Shiloh stated that he made his identification from the. face, but it was the black leather coat that convinced him it was the defendant.” W-258. Based on this record the lineup was suggestive. I put aside for the moment the question whether the lineup was “unnecessarily suggestive” and the relevance of the fact that the eyewitness identification was not the product of deliberate police misconduct. While I will return to this question at a later point, I first address the central issue whether the suggestively obtained identifications were otherwise admissible. The five factors specifically identified in Biggers and Brathwaite as being'included among those relevant to the admissibility of suggestive identifications are “the opportunity of the witness to view the criminal at the ,time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253, citing Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382. Thus, the admissibility determination begins with an analysis of those aspects of the challenged identifications. Opportunity to View The opportunities of the witnesses to observe the robbers in the Moulin Rouge may be divided into two periods, before and after the shooting. The pre-shooting period extends from the three strangers’ appearance at the bar until the time one of them shot Charles Hill. Witness estimates of the length of this time period ranged from ten to thirty minutes. W-84, 160; T2-119, 173, 207. Arthur Shiloh described the lighting conditions in the bar as “pretty fair,” W-83, and asserted that the lights were on and he could see. T2-64. Vincent Cooke, on the other hand, said that the lighting was “kind of dim.” W-161. Apparently Cooke was wearing dark glasses at the time of the robberies. W-189. After the shooting, Arthur Shiloh did not have any further opportunity to observe the shooter. At the Wade hearing, he explained that another man held a gun on him and that during this time he never looked over to see what the shooter was doing. W-120-121. He stated flatly at the hearing that he only saw the shooter “when he was in the bar talking to Charlie.” W-122. Vincent Cooke testified that he was able to see the shooter immediately after the shooting: He backed away from Charlie, Charlie fell to the floor. He backed away. And while the shot was fired, I mean I wasn’t staring at him. Then I just turned to see, you know, what happened, seen him fall. I seen the gun in his hand, and then the other fellow that had the gun that was standing closer to us, he pulled the gun and told us to put our hands on the bar. W-161-162. Cooke said that he had another chance to observe the shooter, when, after the witnesses had been herded into the bathroom by the robbers, the shooter appeared at the bathroom door asking which key fit Winfred Moore’s car. W-162. At trial, however, Moore denied that the shooter had ever come back to the bathroom. T2-215. Degree of Attention The witnesses’ attentiveness may have been affected somewhat by their alcohol consumption. When the robbers arrived, Arthur Shiloh was working on his third scotch of the evening and Cooke was having his second. W-110, 189-190. At the Wade hearing, Shiloh described how he looked up from the football game, looked out the window, and saw three men approaching the Moulin Rouge. W-83. When the three strangers arrived, Shiloh “Cjlust glanced at them.” W-83. He did observe their movements, however: One stood by the window as they was coming into the door. Two went to the bathroom. When the two came out of the bathroom, they stopped about the middle of the bar — not the middle of the bar, three quarters way .... W-84. Cooke also looked at the strangers when they entered and noticed that two walked to the bathroom at the back of the bar while one remained up front. W-157. He described his observations of the men after they returned from the bathroom: Everybody was looking at the foot ball game and I seen, I think [the shooter] went over to Charlie and said something. ... I remember looking and glancing. There was no argument or nothing, you know. I thought it was about the foot ball game probably, because it looked like they were smiling. So I assumed that everything was all right and I forgot about it, you know, about the three guys, because I was busy talking to Shiloh and Winnie. W-158-159. At that point, Shiloh also lost interest in the three strangers, and whatever concerns their arrival caused apparently dissipated: [T]hey started talking to Charles Hill and they were looking at the football game. So, I didn’t pay no attention and I kept on watching the football game. As I was talking to Vincent and they were all laughing and talking and watching the football game, and after that, I looked over again and they were talking again. I assumed they were speaking of the football game and I assumed he knew the fellows and after that, I relaxed and I was still watching. Next thing I know, pow! W-84. After the shooting, Shiloh never looked at the shooter at all. W-119-122. Cooke watched the shooter as he backed away from Charles Hill. W-161. Shortly after-wards, however, he was distracted by the second gunman’s command to put his hands on the bar. W-162. Of course, after the shooting the killer was holding a gun. Moreover, the second gunman held up the witnesses. Experts have confirmed the rather obvious fact that if someone is brandishing a gun at you, your mind is likely to be focused on the gun and not on the facial features of the people involved. See United States v. Burrous, 934 F.Supp. 525, 527 (E.D.N.Y.1996). Indeed, both Shiloh and Cooke misidentified a photograph of the person who held a gun on them. T2-141-146,197-199, 271-275. Accuracy of Prior Description The record is silent regarding the accuracy or inaccuracy of Shiloh’s and Cooke’s descriptions of the shooter. Level of Certainty On this issue, Shiloh’s identification speaks for itself. He viewed the lineup for two or three minutes, told Detective Martin that no one in the lineup looked familiar to him, and left the lineup room. W-140-141. Detective Martin testified that when Shiloh viewed the lineup for a second time, he identified petitioner as someone who “strongly resembles the person who shot Charles Hill,” W-240, but Shiloh testified that he didn’t think he had used the word “resemble”: “I said number one is the man, that’s what I said.” W-147. Asked whether there was any doubt in his mind when he made his second identification, Shiloh testified: Everybody have a little doubt, but I said that was the man, O.K. Q: But you weren’t absolutely sure? A: Not positive, but I said that was the man, really ... face features of him the black leather coat, the same thing, the black leather coat really set if off for me. W-147. According to Detective Martin, “Vincent Cooke viewed the lineup and said number one. I said how sure are you of it. He said if it isn’t him, it’s nobody.” W-220. Cooke’s testimony about the lineup, however, was a bit more equivocal. Asked whether he was “absolutely sure” when he made the identification, he replied, “Well, after I picked him out, I was convinced.” There follows this colloquy: Q: You were convinced? A: Yes. Q: Was there some doubt left? A: If I was convinced, there can’t be any doubt left. Q: So, you are saying you are absolutely sure. A: After I pointed him out. W-184-185. Time Between Crime and Confrontation Twenty days elapsed between the robbery at the Moulin Rouge and the lineup. While that does not create the sort of memory drain that occurs with the passage of years, neither is it an immediate post-crime identification. Summing up the effect of these factors, then, it appears that the witnesses had an opportunity to view the robbers for some minutes before the crime, and were somewhat attentive to them, at least initially. The witnesses had been drinking, however, and were distracted by the football game they were watching and their conversation with each other. Once the shooting took place, they had little opportunity to see the shooter’s face and were immediately or quickly distracted by the second gunman. There is no evidence one way or the other regarding the accuracy of their subsequent descriptions of the shooter, and the time between the shooting and the confrontation was not long or short enough to be a significant factor. Finally, and most important, one of the witnesses was so uncertain at the confrontation that he initially declined to make an identification and only did so after he learned that another person had picked someone out of the lineup as the shooter. Considering these factors alone, the identifications simply do not appear solid enough to outweigh “the corrupting effect of the suggestive identification itself,” Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253, especially given that both witnesses acknowledged that the suggestive coat was a factor in their identifications. The factors set out in Brathwaite, however, do not exhaust the possible ways in which identification evidence may prove to be rehable or unreliable. Indeed, the Supreme Court was careful to say that the factors to be considered “include” the ones named. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253. In my view, another critical factor should be taken into account before an otherwise unassailable jury verdict is set aside in a collateral proceeding: the evidence or lack of evidence that the petitioner is guilty of the crime of which he has been convicted. This sixth factor goes to the heart of the Supreme Court cases that initially addressed the problem posed by eyewitness identifications. Those cases developed out of concerns that eyewitness identifications (by strangers) are not reliable, that juries could not be trusted to evaluate the deficiencies of such apparently compelling evidence, and that the admission of suggestive identifications risked the ultimate injustice — the conviction of an innocent person. In short, the reason the Court involved itself in the first place with suggestively obtained identifications was the recognition that they were a “major factor contributing to the high incidence of miscarriage of justice.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967), Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970 (1967) (“A conviction which rests on a mistaken identification is a gross miscarriage of justice.”). The historical backdrop against which these cases were decided need not be reviewed at length. Steven P. Grossman sums up the empirical evidence that precipitated the Court’s regulation of eyewitness testimony: Observers of the American system of criminal trials have long been aware of the danger of wrongful convictions because of a witness’ misidentification. Edward Borehard, in his 1932 book, Convicting the Innocent, detailed numerous cases of people, later shown to be innocent, being tried and convicted of crimes. After analyzing the causes of these mistaken convictions, Borehard concluded that misidentifications by victims were the prime cause of wrongful convictions. Judge Jerome Frank, some years later, undertook a similar investigation and arrived at the same conclusion. Although the possibility of erroneous convictions cannot be prevented, nothing is more fundamental to our system of justice than the need to minimize these tragedies. “Suggestive Identifications: The Supreme Court’s Due Process Test Fails to Meet Its Own Criteria,” 11 Baltimore L.Rev. 53, 65 (1981). In Wade, Justice Brennan cited the Borehard and Frank studies as support for the underlying assumption in the Wade, Gilbert, Stovall trilogy that “the annals of criminal law are rife with instances of mistaken identification.” Wade, 388 U.S. at 228, 87 S.Ct. at 1933. If the reason for ousting the jury from its historic role of evaluating evidence is our concern with such miscarriages of justice, then surely other evidence that strongly persuades us that a defendant is guilty supports allowing the jury to consider a questionable identification. Conversely, the absence of corroborating evidence may be relevant in the ultimate determination of the admissibility of identification evidence. See Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (noting that of “all the various kinds of evidence” testimony of eyewitnesses “is the least reliable, espe-dally where unsupported by corroborating evidence”). In his James Madison Lecture on reasonable doubt, then-Chief Judge Newman argued that corroboration should be required in cases that rest on the testimony of a single eyewitness who “did not previously know the accused and had only a brief opportunity to observe him.” Jon O. Newman, “The Madison Lecture: Beyond ‘Reasonable Doubt’,” 68 N.Y.U. L.Rev. 979, 999 (1993). Judge Newman suggested that, when corroboration is lacking, “courts should face up to their responsibilities and rule that, though there is some evidence of guilt, it is insufficient to persuade a reasonable jury by the high standard of proof beyond a reasonable doubt.” Id. The rule he suggests may be problematic because it could preclude a jury from considering the only available relevant evidence. See Jerome Frank and Barbara Frank, Not Guilty 63 (1957) (A rule that would “[njever allow a single witness to give testimony, at the trial, identifying the accused, but always require that at least one other witness corroborate such testimony” has the “obvious weakness” that in a case where no one was present but the perpetrator and his victim, “no criminal could be convicted if the victim could not, in court, testify as to the identity of the accused.”) The fact that it may be too much to require corroboration for all identifications, however, does not mean that we should ignore its importance altogether. As both Judges Newman and Frank recognize, corroboration is a valid factor in establishing the reliability of eyewitness identifications. The corroboration rule I suggest here for eyewitness identification testimony would not preclude a conviction based on uncorroborated eyewitness testimony. Instead, it would only bar the admission of uncorroborated identification testimony when the totality of circumstances indicated that there was a significant risk of misidentification. Where corroboration was present, the jury would be permitted to determine the weight to be accorded to an otherwise questionable identification that had been suggestively obtained. Such a rule shows appropriate deference to the judicial process of the states, 'and to the central role of the jury as the finder of fact. It is also consistent with the current practice of many courts, although that practice has not yet achieved recognition as a sixth factor in the admissibility analysis of identification evidence Most important, the proposed rule provides greater insurance against the conviction of an innocent person than a test that focuses exclusively on the Biggers-Brathwaite factors, which has been almost universally criticized as inadequate. See Charles A. Pulaski, “Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection,” 26 Stan. L.Rev. 1097 (1974) (suggesting that the Biggers test is so easily satisfied that the due process protection it provides is probably no greater than what already existed before Stovall). The value of at least two of the factors — accuracy of the witness’ prior description and certainty at the confrontation — has been seriously questioned. Based on empirical research into eyewitness identifications, these factors “assign too much predictive value to eyewitness confidence and also to witnesses’ descriptions, neither of which is very predictive of identification accuracy in scientific studies.” Ronald P. Fisher, “Interviewing Victims and Witnesses of Crime,” 1 Psychol. Pub. Pol’y & L. 732, 736 (1995). Moreover, psychologists who study memory and perception agree that numerous other fae-tors can affect a witness’ ability to make an accurate identification, including the vi-' olence of the event witnessed, the presence of a weapon, and the witness’ expectations based on cultural biases and past experience. David M. Shofi, “The New York Courts’ Lack of Direction and Discretion Regarding the Admissibility of Expert Identification Testimony,” 13 Pace L. Rev 1101, 1105-07 (1994); Elizabeth F. Loftus, Eyewitness Testimony 31-51, 136-42 (1979). See also, Randolph N. Jonakait, “Rehable Identification: Could the Supreme Court Teh in Manson v. Brath-waite?” 52 U. Colo. L.Rev. 511 (1981); Gerald F. Uelmen, “Testing the Assumptions of Neil v. Biggers: An Experiment in Eyewitness Identification,” 16 Crim. L. Bull. 358 (1980). Rather than relying solely on the five specific factors outlined in Brathwaite, a sixth factor that looks to corroborating evidence of guilt provides an essential protection against the “gross miscarriage of justice” that can result from “[a] conviction which rests on a mistaken identification.” Stovall, 388 U.S. at 297, 87 S.Ct. at 1970. As one commentator has pbserved, the ultimate question of an identification’s reliability- — -as with any piece of evidence — is dependent in part on the existence of corroborating proof that the defendant is the one who committed the crime: At root, the accuracy of the determination of identity in criminal cases depends on redundance. In most cases in which the identity of the criminal is in dispute there are multiple, independent sources of information pointing to a single suspect. Errors can occur in such cases ..., but they are rare. When the identification depends on a single type of evidence, however, mistakes are much more likely. The redundance that counts is not between one eyewitness and another but between different types of evidence of identity. Samuel R. Gross, “Loss of Innocence: Eyewitness Identification and Proof of Guilt,” 16 J. Legal Studies 395, 432-33 (1987). It is true that in Brathwaite itself there is language that can be read to oppose the use of other evidence of guilt to establish the reliability of eyewitness identifications. After analyzing the record in light of the five factors articulated in Biggers, Justice Blackmun concluded that “[t]hese indicators of [the witness’s] ability to make an accurate identification are hardly outweighed by the corrupting effect of the challenged identification itself.” Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2254. Justice Blackmun then continued, Although it plays no part in our analysis, all this assurance as to the reliability of the identification is hardly undermined by the facts that respondent was arrested in the very apartment where the sale had taken place, and that he acknowledged his frequent visits to that apartment. Id. Justice Blackmun did not explain why the corroborating evidence played no role in the analysis in Brathwaite, nor did he say that such evidence could never play a role in the decision whether to admit eyewitness identifications. Some explanation for the puzzling manner in which Justice Blackmun dealt with the issue of corroboration may be found in Judge Friendly’s opinion for the Second Circuit in Brathwaite, which was reversed by the Supreme Court. Judge Friendly took a different view of the reliability of the eyewitness identification when weighed against the five Biggers-Brathwaite factors. At the time of Brathwaite, however, it was the clear rule in the Second Circuit that independent evidence corroborating an identification could provide the basis for admitting an otherwise questionable identification. United States v. Reid, 517 F.2d 953, 967 (2d Cir.1975). Such evidence was present in Brathwaite, corroborating the blatantly suggestive eyewitness identification: An undercover police officer had purchased drugs from Brathwaite at an apartment, and there was other evidence linking the defendant to that same apartment. Judge Friendly, concluded, however, that this evidence was not strong enough to sustain the admissibility of the eyewitness identification. As he explained, Perhaps the strongest bit of evidence to strengthen the identification was Brath-waite’s arrest in the very apartment where the sale was made. But Brath-waite offered an explanation of this which was not implausible, although evidently not credited by the jury .... Brathwaite v. Manson, 527 F.2d 363, 372 (2d Cir.1975). These circumstances may explain Justice Blackmun’s unwillingness to rely on the corroborating evidence other than to say, quite consistently with Judge Friendly’s analysis, that it did not undermine the reliability of the identification in this case, although it did not enhance it. Of course, this is speculation. What is clear, however, is that the majority of the Supreme Court in Brathwaite did not expressly hold that the .presence of corroboration could not be considered. Perhaps recognizing that the Blackmun opinion in Brathwaite was ambiguous, Justice Stevens wrote a separate concurrence, which was not joined by any of the other six members of the Brathwaite majority. Justice Stevens first commended Justice Blackmun’s opinion for avoiding what he characterized as “the pitfall” of considering other evidence of guilt. Brathwaite, 432 U.S. at 118, 97 S.Ct. at 2255 (Stevens, J., concurring). He then went on to expressly articulate the view that corroborating evidence should not “be considered to support the admissibility of eyewitness testimony when applying, the criteria identified in Neil v. Biggers.” 432 U.S. at 118 n. *, 97 S.Ct. at 2259 n. *. “Properly analyzed,” he. continued, “such facts would be relevant to a question whether error, if any, in admitting identification testimony was harmless.” Id. While the Stevens opinion clearly says what Justice Blackmun avoided saying, it fails to set out the reasons for the rule it advocates, and seems somewhat inconsistent with the view expressed earlier in the concurrence. There, Justice Stevens suggested that “the Federal constitution does not foreclose experimentation by the States in the development of ... rales” to “minimize the danger of convicting the innocent on the basis of unreliable eyewitness testimony.” Brathwaite, 432 U.S. at 117-18, 97 S.Ct. at 2254-55 (Stevens, J., concurring). Surely) such experimentation could encompass a rule making the admissibility of questionable eyewitness identifications turn on corroborative evidence that suggests that the eyewitness identification is not mistaken and that the defendant is not innocent. Since the Supreme Court applies such a rule of corroboration to the admissibility of confessions — and for reasons similar to its concern about the reliability of eyewitness identifications — it seems improbable that the Court would disapprove such a rule for determining the admissibility of identification evidence. Indeed, corroboration is recognized widely as a way to address concerns about the reliability of evidence. “The law views some witnesses and some forms of evidence with skepticism, and therefore often demands corroboration as a matter of fairness to the defendant.’’William Payson Richardson & Jerome Prince, Prince, Richardson on Evidence, § 3-207 at 111 (Richard T. Farrell ed., 11th ed. 1995). In federal courts, as noted above, corroboration is mandated for confessions and admissions, in a version of the old common law “corpus delicti” rule. See Smith v. United States, 348 U.S. 147, 152-54, 75 S.Ct. 194, 197-98, 99 L.Ed. 192 (1954); Opper v. United States, 348 U.S. 84, 91-93, 75 S.Ct. 158, 163-64, 99 L.Ed. 101 (1954). Corroboration of an informant’s tip can provide the basis for reasonable suspicion to justify an investigatory seizure by police, see Alabama v. White, 496 U.S. 325, 331, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), and it is also a relevant factor in the determination of probable cause based on an informant’s tip. Illinois v. Gates, 462 U.S. 213, 237-44, 103 S.Ct. 2317, 2332-35, 76 L.Ed.2d 527 (1983); Draper v. United States, 358 U.S. 307, 310-13, 79 S.Ct. 329, 331-33, 3 L.Ed.2d 327 (1959). Similarly, Fed.R.Evid. 804(b)(3) requires a showing of corroboration before declarations against penal interest may be offered to exculpate the accused. New York also requires corroborative evidence for both confessions, N.Y. Criminal Procedure Law § 60.50, and declarations against penal interest, People v. Thomas, 68 N.Y.2d 194, 197, 507 N.Y.S.2d 973, 975, 500 N.E.2d 293 (1986), as well as demanding corroboration for accomplice testimony, unsworn testimony of witnesses too young or too mentally deficient to understand the significance of an oath, and in prosecutions for certain offenses, including some sex offenses, perjury, criminal possession of stolen goods, and criminal facilitation. Prince, Richardson § 3-207(b)-(g) at 111-16. Numerous state statutes require coiToboration before the hearsay statements of a child declarant may be admitted. See Idaho v. Wright, 497 U.S. 805, 829 n. 2, 110 S.Ct. 3139, 3154 n. 2, 111 L.Ed.2d 638 (1990) (Kennedy, J. dissenting). New York and other states likewise require corroboration before evidence is admissible under some common law exceptions to the hearsay rule. See, e.g., People v. Brown, 80 N.Y.2d 729, 735-36, 594 N.Y.S.2d 696, 700-01, 610 N.E.2d 369 (1993) (present sense impression). . . Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), does not undermine the propriety of the corroboration rule proposed here. In that case, a 5-4 majority held that particularized guarantees of trustworthiness required to establish the reliability of a child’s hearsay statement of sexual abuse could not be satisfied by independent evidence establishing the truth of the hearsay declaration. Id. 497 U.S. at 822-23, 110 S.Ct. at 3150; see also Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887,1900-01, 144 L.Ed.2d 117 (1999). In Wright, however, the Supreme Court was applying the Confrontation Clause, a provision of the Constitution that prescribes a specific mechanism — confrontation and cross-examination — for testing the trustworthiness of testimonial evidence. See Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 ( the “underlying purpose” of the Confrontation Clause is “to augment accuracy in the factfinding procéss by ensuring the defendant an effective means to test adverse evidence”). In that context, before admitting evidence without cross-examination, the circumstances under which the statements were made must be determined to be “so trustworthy that [such] adversarial testing would add little to their reliability.” Wright, 497 U.S. at 821, 110 S.Ct. at 3149. In contrast, the eyewitness identification cases involve a judicially created rule to prevent an unjust conviction. While the rule may be rooted in the Due Process Clause, it is not a specifically prescribed rule that should preempt variations that are equally, or more, effective in achieving the same purpose. Cf. Wade, 388 U.S. at 239, 87 S.Ct. at 1938-39. Moreover, there is a significant aspect of Brathwaite that provides affirmative support for a rule which takes other evidence of guilt into account in determining the admissibility of questionable eyewitness identifications. I refer to yet another concurring opinion, not by a Justice of the Supreme Court, but by Judge Harold Lev-enthal of the Court of Appeals for the D.C. Circuit, in Clemons v. United States, 408 F.2d 1230 (D.C.Cir.1968). The significance of the Leventhal concurrence in Clemons, which will presently be discussed, is that its reasoning was expressly adopted by Justice Blackmun in Brathwaite. The issue addressed by the D.C. Circuit in Clemons was the remedy to be employed in cases involving suggestive identifications that took place prior to U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). By way of background, it may be recalled that Stovall asserted that the Due Process Clause could be offended by the admission of an unduly suggestive identification and was the first occasion on which the Supreme Court gave “notice that the suggestiveness of identification procedures was anything other than a matter to be argued to the jury.” Biggers, 409 U.S. at 199, 93 S.Ct. at 382. Oddly, Brathwaite involved the converse of Clemons — an unnecessarily suggestive identification after it was clear that such identifications implicated the Due Process Clause. Nevertheless, in rejecting a per se rule that would preclude the admissibility of eyewitness identifications that were preceded by such suggestive confrontations, Justice Blackmun cited Judge Lev-enthal’s analysis as “correctly” describing the due process right articulated in Stovall “as protecting an evidentiary interest” and “as recognizing the limited extent of that interest in our adversary system.” Brathwaite, 432 U.S. at 113, 97 S.Ct. at 2252. In language quoted approvingly by Justice Blackmun in Brathwaite, Judge Lev-enthal wrote: In essence what the Stovall due process right protects is an evidentiary interest. ... It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness — an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process. Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification— including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi. Clemons, 408 F.2d at 1251 (internal footnote omitted) (quoted in Brathwaite, 432 U.S. at 113 n. 14, 97 S.Ct. at 2252 n. 14). Judge Leventhal’s opinion in Clemons goes on to explain: Since the interest protected is in essence an evidentiary one, denial of the retroactive right recognized in Stovall and explained in Simmons [v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)] must depend on the assessment of all the factors bearing on the identification issue. The presence of other untainted identification testimony, counsel’s opportunity to inquire into the circumstances of the challenged identification, and to bring out the facts, are all relevant to the consideration of overall due process fairness to the accused. 408 F.2d at 1251. Most tellingly, immediately leading up to the section of Clemons quoted in Brathwaite, Judge Leventhal argued that it is appropriate- — particularly in cases where the trial as well as the identification preceded Wade, Gilbert and Stovall— that the court assess not only the ‘totality of circumstances’ surrounding the challenged identification, but also the totality of circumstances at trial concerning the issue of identification, i.e. the totality of proof and other factors bearing on the likelihood of misidentification. The mere fact that some ‘unreliable’ identification testimony was received does not establish a denial of the due process right to a fair trial. Id. at 1250. Judge Leventhal’s opinion then sets out the rationale for broadening the due process inquiry to include the “totality of proof’: The soundness of making a due process right depend on a review of evidence becomes clear when one focuses on the interests protected retroactively by the Simmons-Stovall due process right. Unlike the interests preserved by the guarantee of counsel or some of the other specific guarantees, the interests guarded by Stovall cannot so easily be factored out and assessed independently of the evidence. Id. at 1251(internal footnote omitted). The cases since Brathwaite continue to reflect the reality recognized by Judge Leventhal that “the interests guarded by Stovall cannot so easily be factored out and assessed independently of the evidence.” Thus many courts have continued to consider other proof of guilt in deciding whether to admit eyewitness identification testimony. As the Eighth Circuit put it, “it seems unnatural to set such evidence aside when one considers that the ultimate purpose of the Biggers factors is to avoid eyewitness testimony where there is ‘a very substantial likelihood of irreparable misidentification’.” Graham v. Solem, 728 F.2d 1533, 1546 (8th Cir.1984) (en banc). Several courts have explicitly analyzed other evidence of guilt to decide the admissibility of challenged identifications. A First Circuit case authored by then-judge Breyer relied in part on corroborative evidence of guilt in holding that an eyewitness identification was properly admitted. United States v. Lau, 828 F.2d 871, 875 (1st Cir.1987). The corroboration in that case included evidence that one defendant had a license to fly the type of plane used in the crime and another was nearby at the time of the incident. Judge Breyer went through the Biggers-Brathwaite factors for and against a correct identification — the witness’s confidence in his identifications, opportunity to observe, accuracy of prior descriptions, and the time elapsed between the incident and the identification. Id. The corroborating evidence appears as part of this same analysis, as one of the “factors [that] weigh in favor of a correct identification.” Id. Similarly, in evaluating the reliability of eyewitness identifications in a drive-by shooting, the Seventh Circuit explained that “[c]orroborated eyewitness testimony is much less suspect than one individual’s visual impression.” United States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1156 (7th Cir.1987). The Seventh Circuit then proceeded to consider, along with the Big-gers-Brathwaite factors, that a car like the one eyewitnesses described was registered to the defendant, that two other witnesses who did not. make identifications gave descriptions of the driver that fit the defendant, and that the shooting took place in the defendant’s neighborhood. Id. at 1156-57, 1161. An in-court identification was likewise judged reliable by the Eighth Circuit, in part because two other government witnesses identified the defendant, including the driver of the getaway car. United States v. Rogers, 73 F.3d 774, 778 (8th Cir.1996). As the panel explained, the “additional testimony diminishes any likelihood of irreparable misidentification.” Id.; see also United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir.1996) (“Courts may also consider other evidence of the defendant’s guilt when assessing the reliability of the in-eourt identification”). So far as I know, there is no case overturning what was clearly the Second Circuit’s rule before Brathwaite, that “other evidence connecting a defendant with the crime may be considered” to determine an identification’s reliability. Reid, 517 F.2d at 967; United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2d Cir.1970). One Second Circuit case, upholding the admission of identification testimony, includes Brathwaite’s equivocal language in dictum disclaiming reliance on the use of other evidence of guilt. United States v. Sanchez, 603 F.2d 381, 386 n. 6 (2d Cir.1979). Nonetheless, a subsequent Second Circuit holding relies on corroborative evidence and provides more substantial guidance on this issue. Sims v. Sullivan, 867 F.2d 142 (2d Cir.1989). That case involved the plainly suggestive identification procedure presented in almost every eyewitness identification case — the in-court identification. Upholding a conviction that involved such an identification against a habeas challenge, Judge Winter explained that “where the pretrial identification procedures were proper and the other evidence of the defendant’s guilt was ample, no deprivation of due process exists.” Id. at 145 (emphasis added). Sims strongly supports a general rule including corroborative evidence in the reliability analysis of suggestive identifications. The petitioner in Sims was identified at his trial by a witness who had previously picked the petitioner out of a photo array with some uncertainty. Sims’s request for a lineup prior to the in-court identification was denied. Holding that the in-court identification was not so unreliable as to “constitute a denial of fundamental fairness,” Judge Winter found that it had not been tainted by any suggestive pretrial procedures. Id. As a result, under Second Circuit precedents, he was not obligated to address the independent reliability of the in-court identification. Id. But, significantly for the analysis here, the panel nevertheless considered whether the failure to grant a lineup resulted in an in-court identification that was “so unreliable that ‘a very substantial likelihood of irreparable misidentification exists.’ ” Id. (quoting Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2254 (internal quotation omitted)). In other words, the Second Circuit treated the in-court identification as a separate, suggestively obtained, identification. In analyzing the reliability of this apparently fairly typical — and, thus, highly suggestive — in-court identification of the accused at the defense table, Sims held that a federal court is “not bound in a collateral attack upon a state court conviction to view an in-court identification in isolation from the rest of the evidence.” Id. at 146. Judge Winter went on to explain that “the validity of an in-court identification, and, conversely the need for a lineup, will ... vary according to the strength and nature of the other evidence against a defendant.” Id. An accomplice had directly implicated Sims in the charged acts, and another witness had testified that the petitioner had admitted the crime. Id. Thus the in-court identification was “less crucial” then it would have been in isolation. Id. It is quite apparent that the analysis in Sims was not a harmless error inquiry. As noted, the opinion states expressly that “other evidence of the defendant’s guilt” is relevant to the initial question whether a “deprivation of due process exists” as the result of a suggestive identification. Id. at 145. Because the pretrial identification in Sims was treated as a separate suggestive identification, there is no logical reason to diverge from the reliability analysis in Sims when determining the admissibility of any suggestively obtained identification testimony, particularly in the habeas context. Moreover, in the present case, there is an additional factor that weighs in favor of considering petitioner’s admission in evaluating the reliability of the identification evidence. When Judge Leventhal wrote that “the interest guarded by Stovall cannot so easily be factored out and assessed independently of the evidence,” Clemons, 408 F.2d at 1251, he did so in the context of a retroactive application of the rule against admitting unreliable identification testimony. Thus the identification procedures that were challenged had been conducted before the police were alerted to the due process ramifications of any suggestive aspects of those procedures. The present case is analogous. We have here a confrontation that was never intended to produce an identification of the person the witnesses confronted. The state hearing judge found that, at the time of the lineup, petitioner was not viewed by the police as a suspect. He was put into the line as a filler, without any notion that he might be recognized as the shooter. Thus the confrontation that led to petitioner’s identificat