United States v. Williams , 522 F.3d 809 ( 2008 )

EVANS, Circuit Judge,

concurring.

I join Chief Judge Easterbrook’s opinion in this case because it is abundantly clear that Judge Mihm was correct when he found that the lineup was not unduly suggestive. Because Williams can’t get to first base, he can’t get beyond that and establish that the lineup created a substantial likelihood that a misidentification would occur.

I write separately simply to note that the majority opinion gives, in my view, a bad rap to “common sense.” I don’t think Williams’ counsel or the prosecutor were out of line when they answered “common sense” (of course, what’s common sense to one can be nonsensical to someone else!) during oral argument. Assume, for example, that a bank is robbed and several tellers report that the robber was wearing a green sweatshirt with “Girdwood, Alaska” on the front. Assume further that a day or two later the tellers viewed a lineup with six men, all roughly the same height, weight, and race of the robber, but one was wearing a green sweatshirt with “Girdwood, Alaska” on the front. Common sense tells me that the lineup would be unduly suggestive. Scientific studies would not be needed to make that point. Here, Williams in white tennis shoes, while the others wore navy blue slippers, is rather trivial — his shoes are a long way away from the Girdwood, Alaska, green sweatshirt. Common sense tells me that the shoes Williams wore did not make his lineup unduly suggestive.