(dissenting):
I respectfully dissent. Insidious lineup procedures were soundly condemned by the Supreme Court in the trilogy of 1967 cases cited by the majority (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. Cali*1040fornia, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.) Here, not only did the police construct a lineup so suggestive in its composition as to prejudice, gravely and severely, Phillips’ right to a fair and impartial trial, they also denied him the right to have his counsel present when the lineup was conducted. In my opinion, reversal is compelled by Stovall, supra, since "the confrontation conducted in this case was so unnecessarily suggestive and conductive to irreparable mistaken identificathat the in-court identifications were based upon observations of the suspect other than the lineup identification.” Id,. 388 U.S. at 240, 87 S.Ct. at 1939.
I first reach the due process issue, since I would characterize the lineup technique under consideration as a travesty. The lineup was composed of Phillips and four others, each wearing a blonde female wig. To the suspect’s left were three police officers, all wearing their regulation, dark blue police trousers, white undershirts which appear to be. identical, and, presumably, regulation shoes. On Phillips’ right was a newspaper man, clad in dark pants and a white dress shirt open at the neck, Phillips, dressed in a light colored jail uniform issued to all his fellow prisoners,1 was made remarkably, and, I think, some of its clear detail, it will yet, I think, dramatically reveal the essential unfairness of which Phillips was the victim and which, in the light of Wade, Gilbert, and Stovall, so sorely troubles me. Here is the picture.
*1041The suggestion inherent in the above depicted lineup was especially prejudicial in this case, since the potential for improper influence was so very great. See Wade, supra, 388 U.S. at 233, 87 S.Ct. 1926. None of the four witnesses viewing the lineup had earlier been able positively to identify Phillips from pictures of him which had been previously shown to them by the interviewing government agent. Yet three of these witnesses had stated to the agent that they would be aided by an opportunity to view someone in person. While the agent could not recall whether the fourth witness stated that he would be aided by a lineup, the agent had gotten the impression “at one time or another in talking to these individuals, that they felt that they could make an identification” if they “physically saw the person.” A lineup was arranged and the witnesses were told, in advance, that one of the men they would see was a “suspect”.2 In this context, the lineup which, as I see it, virtually informed the witnesses which man the police suspected as the culprit so clearly “undermined the reliability of the eyewitness identification as to violate due process.” Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402 (1968); Stovall v. Denno, supra.
Wade\ also should require reversal. The teaching of Wade is that it is reversible error to allow courtroom identifications by witnesses who have previously identified the defendant at a lineup conducted in the absence of counsel unless the prosecution establishes by “clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification,” Id., 388 U.S. at 240, 87 S.Ct. at 1939, or that, “in any event, the introduction of the evidence was harmless error.” Id., 388 U.S. at 242, 87 S.Ct. at 1940. Here there is no contention, nor could there reasonably be, that the introduction of the eyewitness identifications was harmless. Instead, the majority relies on the trial court’s finding that the prosecution overcame its burden, with the requisite degree of proof. With all due deference to the District Court, and to my Brothers also, I nevertheless submit that the finding was clearly erroneous. If the in-court identification was not, as a matter of law, corrupted by the lineup procedure in this case, I can hardly conceive of a situation wherein we could hold that it was so corrupted.
Even though each of the witnesses testified that he was identifying the defendant on the basis of impressions created at the time of the crime, it must be remembered that “neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences.” Wade, supra, 388 U.S. at 230, 87 S.Ct. at 1934. In a case such as this, wherein “suggestive influences” were so clearly employed by the police, we are obliged to examine the record with the utmost care.
Of the four witnesses who viewed the crime, the only one who saw the suspect for a period of more than four minutes was Mrs. Smith, and she testified that she “didn’t get a clear look” at him. This is not surprising. His features were obscured by a wig, heavy “pancake” *1042makeup, lipstick, and, according to some accounts, padding under the woman’s upper garment that he wore. As I reemphasize, each of the four was admittedly unable definitely to identify Phillips from photographs viewed five weeks after the robbery. And two of the four remained reluctant to identify him positively even after viewing the prejudicial lineup held approximately twelve weeks after the robbery! Not until the time of trial — which was conducted more than forty weeks after the crime — did all four become able to identify Phillips as the criminal. To me, this is utterly inexplicable except upon the basis of the prodding, suggestive, and improperly influential technique which Phillips’ accusers employed.
Against the above background, the very practical question is whether it was humanly possible for each witness to have excluded from his mind the impression created by the corrupt lineup and to have based his in-eourt identification solely on his observation during the short period that elapsed while the heavily disguised robber was at the bank. Having in mind the very brief duration of the robbery, I note the Supreme Court’s reminder that “the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.” Wade, supra, 388 U.S. at 229, 87 S.Ct. at 1933.
The testimony of one of the four eyewitnesses, one Decker, most clearly illustrates how the power of suggestion was illegally employed in this case:
“Q. [by the Assistant U.S. Attorney] : At that time when you viewed the line-up, Mr. Decker, did you make any identification of anyone?
“A. [Mr. Decker]: Yes. Number two was the logical person.
“Q. When you say ‘logical,’ what do you mean?
“A. The nearest that I could recollect as being — having the characteristics or facial features of the party.” If, as seems apparent from this excerpt, Decker was attempting to select the man in the lineup that most closely resembled the robber rather than endeavoring honestly to determine whether any man in the lineup was the robber, his testimony illustrates how the police, perhaps preoccupied with the often difficult problem of accumulating proof, can suggest to a witness which one of a number of lined up individuals is particularly suspected of having committed the crime. See Wade, supra, 388 U.S. at 235, 87 S.Ct. 1926. Once a suggestion such as that here has been made, it is difficult for me to believe that a witness can cast it aside and base his in-court identification solely on a confrontation that occurred before the lineup. This is especially true in a case such as this, wherein the lineup procedure was employed to “crystallize the witness’ identification of the defendant for future reference,”, Wade, supra, 388 U.S. at 240, 87 S..Ct. at 1939, and wherein no eyewitness was able positively to identify the suspect from viewing the photographs of him which had been presented between the time of the crime and the time of the lineup.3
Though her testimony was not as revealing as Decker’s the other witness who identified the defendant at the lineup also stated that the lineup had assisted her in making an identification.
I am at a loss to understand what prompted the prosecution to rely on the other two witnesses, neither of whom was *1043able positively to identify Phillips at the time of the lineup or, of course, identify him from his photograph which they had seen before. It is unclear, and I can only speculate, as to what “sparked” their memories in the twenty-eight week interim between the lineup and the trial. In any event, both gave indications that the lineup had assisted them in making up their minds. Mrs. Wamken stated that the lineup “helped” her to make an identification, and Mrs. Smith admitted that she reviewed her written impressions of the lineup before testifying at the hearing on Phillips’ motion to suppress the contaminated evidence.
While I am in no position to question the sincerity of any of these witnesses, I deeply feel that their conclusions as to the experience which constituted the source of their in-court identifications must be analyzed and discounted in light of the Supreme Court’s recognition of the subtle yet powerfully persuasive effect of “suggestive influences” such as those which were exerted here.
I would reverse.
. While the record does not contain direct testimony that Phillips was clothed in prison uniform during the lineup, I think it must have been obvious to the District Court, as it is to me, that he was. In his oral argument in our court, the Government’s attorney conceded that Phillips was so garbed. He also conceded, with admirable forthrightness, that the lineup witnesses “probably” observed other prisoners in like uniform while proceeding to the place of the lineup.
. Although some of the witnesses were unsure at the time of trial whether they had been told prior to the lineup that one of the men they would see in the lineup was the suspect, the Government agent who conducted the lineup testified as follows:
“Q. (by the Assistant Federal Defender) And did you tell them what they were supposed to look for in the line-up?
“A. (by Agent Jack D. Morgan) No, other than the fact that I told them that the line-up was in connection with the investigation being conducted in connection with the robbery of February 2nd of the bank and that we had developed a suspect which would he in the line-up. The fact that there was a line-up, however, as I told you before, I told them was no indication that any one of the individuals in it was the subject; it was merely an investigative procedure.
“Q. But you did tell them that one of the suspects was a suspect?
“A. I told them that one of the individuals would he a suspect, yes.” (Emphasis added.)
. Decker’s uncertainty, prior to the lineup as to the physical appearance of the robber, as well as the fact that the lineup “crystallize [d]” the identification is additionally shown by the following:
“Q- [by the Assistant Federal Defender] : Did you have some question in your mind, prior to the line-up, as to what the person actually looked like?
“A. [Mr. Decker] : Yes, due to the fact that the masquerade was quite evident.
“Q. But at the line-up, without the masquerade, you were able to come to a conclusion?
“A. Yes.”