*1 by prevail. Board are told to happened fact, is, what BARBER, Appellant, Richard A. to char- present case. is inaccurate “[I]t present action in the acterize Board’s America, UNITED STATES Rather, ‘declining review.’ Appellee. substance considered Board No. 21281. allegations together petitioner’s Appeals United States Court fur- determined of error then of Columbia District Circuit. unnecessary ther agreed Brief decision.” initial Argued Jan. 1968. Respondent n. at March Decided pow to us that the It seems clear grant deny initial review of
er to regula law and decision entrusted President tion The late to the Board. submitting
Kennedy emphasized this in Reorganization Plan, supra,
Congress: reserved is however “There right review the Board whole decision, report, such or certification upon upon the
either its own initiative
petition party demon of a or intervenor strating Board to the satisfaction of having desirability the matter top Doc. level.” H.R.
reviewed Cong.
No. 87th 1st Sess.
(Emphasis supplied.) record before nothing that the
us contains to establish grant required review.
Board was
We are facts which furnished an discretion on
show part.
Board’s There is no statute
regulation Board
affirmatively grant petition re complete
view. We find ourselves in 302.28(a) (2)
agreement that “Section
[supra] to make been revised
clear that the Board review decision its discre
initial grounds specified in
tion. merely prescribe contents
section discretionary
petitions review to exer free to decline
Board remains right it believes
cise pub required in the
that review is not PR No.
lic interest.” Board Order
Fed.Reg.
Garber, Washington,
Mr.
J.
William
E-24998
Orders
The Board’s action
C.,
appellant.
D.
E-24999
affirmed.
McKenna,
Mr. John James
U. S.
Asst.
Atty., with
Messrs. David G.
whom
Affirmed.
*2
Q.
Bress,
sig-
Atty.,
Frank Nebeker
effort to
U.
and
resolve this conflict. Most
S.
Webster,
nificantly,
Kenly
the
and
Asst. U. S.
evidence shows that
Robert
after
brief,
appellee.
lineup appellant
Attys.,
the
police
for
was
on the
released
were
the
Overby,
Jr. and Har-
without
Messrs. Albert
kind.
W.
Asst,
Titus, Jr.,
Attys.,
old
U.
also
H.
S.
On trial
testified that he
appellee.
appearances
entered
judge
had no
freckles. On
ob-
:
“I
served
seen
haven’t
him close
Judge,
Bazelon, Chief
Before
and
enough to determine whether
has
he
Wright
Judges.
Tamm, and
**
freckles or not
The Govern-
judge
ment made no
have the
Judge:
WRIGHT, Circuit
J. SKELLY
appel-
take a closer look at the
.
This case
sexual
involves
lant to
see
not
whether
he was freck-
only
ques
girl.
a little
The
substantial
implicitly
led.
Indeed
Government
appeal
presented
on
are
freckles,
admits that
no
he had
at least
perpe
appellant as
trial, arguing
appeal
at the
time
on
and
use of his
trator of the crime1
people
that freckles on some
often come
credibility.
his
record to test
in
disappear
out
summer time and
in
appar-
winter. This
was
victim, there were
In addition to the
ently
consulting
made without
the calen-
act—another little
two witnesses to the
dar:
was
on No-
offense
girl, age nine,
an adult whom she
and
28, 1965,
place
vember
and
trial took
brought
real-
when she
to the scene
April 17-19, 1967.
taking place.
ized
The victim
what was
totally
identify her assail-
was
unable tb
During
presentation
of the de
although
ant,
police
testified
one of
fendant’s
defense counsel indicated
that
assailant had
she had told him her
defendant,
to the court that the
who had
girl
nine-year-old
did
freckles. The
prior
robbery
petty
convictions of
and
identify appellant.
also
he
testified
She
larceny,
testify.
suggested
He
wanted
had freckles. The adult was unable
testimony
to the court that defendant’s
identify appellant,
he corroborated
but
necessary
that,
defense,
was
to his
but
testimony
girls
of the two little
as
in view of
of the crime
the assailant’s freckles.
charged, having
prior
exposed
his
record
witness,
nine-year-old
induce
The
ten at
to find him
trial,
prior
on his
of-
that she
time
identified
record rather than on the
testified
days
lineup
five
after
in
a
held
this case. Defense counsel
invoked the
the offense. The
relies
this court in
Luck
support
lineup
identification
identifying
(1965), by
of its sole
witness.
name. The trial
Appellant
court
testified that neither the vic-
seemed somewhat unfamiliar2
nine-year-old
him
nor
identified
the Luck
tim
decisions and de
line
lineup,
nied
of-
and the Government
defendant’s motion to
exclude
prior
without,
police con-
from the
so far
fered
ducting
evidencé
as
anyone
shows,3 invoking
lineup
the Luck
else
criteria.4
charged
Appellant
Luck
was based
eonmitted
two counts
was
when Luck
was
juvenile.
taking
mi-
a
indecent
liberties with a
enticing
to another
and
her
nor child
opinion contemplated
3. “The Luck
an on-
purpose.
place
D.C.Code
the-record consideration
the trial
3501(a)
(b)
referred
Luck
counsel
defense
2. After
didn’t have
“I
time to
stated:
my
recollection
opinion
4. “The
our Luck
rationale of
juvenile
involved
it was
important;
recognized
showing
that a
genuine
pro-
correct?”
act
that not
there —is
can have
credibility,
of concern
bative
issue of
conviction
value on the
experience
one,5
including
text
has
us well. But our
Courts,
served
taught
inflammatory
consistently
us that
atten-
when
called
writers
injustice
are
to come to the
danger
in sex
irrelevancies
allowed
tion to
quest
where,
attention
truth
cases, particularly
aborts,
injustice
re-
girl
proof
and criminal
often
little
act involves a
against
sults.
forfend
crime, but not the identification
*3
possibility
jury
op-
and to
in-
allow
criminal,
of the
is
Because
clear.
portunity
judgment
juries
offense,
on a
exercise its
flammatory
of
proper
record,
required.
is
person
a new trial
to convict the
seem to strain
the crime.
Reversed,
for a new trial.
prevent in-
Consequently,
justice,
protective
Judge (dissenting):
special
TAMM,
rules have been
court’s
this
in sex cases.7 While
invoked
regret my inability
I
to concur in the
genesis
in Luck did not have
disposition
prescribed
of the
it
in a
considerations
sex
majority opinion.
in the
applicable
peculiarly
announced are
jury
which
the case
heard
had
particularly
of iden-
evidence
where
ample opportunity
to observe
defend-
appellant
much
so
of the
leaves
tification
throughout
ant
the entire course of the
to be desired.
jury
trial. The
of the
heard all
testi-
trial
are confident
mony of
of the
all
witnesses insofar as
applied
criteria
related to
de-
ap-
of
Luck to the cross-examination
fendant, and of
in-
course this evidence
of
pellant
in this
evidence
relating
cluded all of the
excluded.
would have been
presence
of
absence
freckles.
dis-
appellant’s
Once
With
defendant
in the
before them
of
on the facts
closed to the
all-powerful op-
courtroom and with the
say
impossible
assur-
portunity
observing
witnesses
jury
found
ance
stand,
jury
beyond
witness
found
beyond
a reasonable
a reasonable doubt
he was
for which
doubt of the crime
perpetrator
crime
trial.
charged.
basically unsound,
To
it is
me
on a record such as is
us in the
before
properly
A
conducted
present case,
appellate judges
to sub-
instrument
most
reliable
doubt
weight
judgment
their
stitute
as to
administration
the arsenal
particular
evidence
facts
justice.
rules
Protected
jury.
therefore,
I,
case for that of a
dis-
designed
fact-
advance the
generations
sent from the
case.
reversal
finding
process,
Wigmore,
(3d
potential
7 J.
2061
ed.
Evidence
1940).
receiving
prejudice,
such convic
discretionary.
impeachment was
7. See Walker v. United
States,
96 U.S.
has a criminal
who
The defendant
App.D.C.
148,
(1955);