United States of America Ex Rel. Cleveland Reed v. Raymond Anderson, Warden, Delaware Correctional Center

*740OPINION OF THE COURT

ALDISERT, Circuit Judge.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1968), the Supreme, Court applied a constitutional gloss to what theretofore had been an evidentiary rule and held that a post-indictment lineup where the accused was exhibited to witnesses is a “critical stage” requiring the presence of counsel and that otherwise a presumption of impropriety obtains. In the absence of counsel, the prosecution must establish by clear and convincing evidence that any…