United States of America Ex Rel. Thomas Kirby v. David R. Sturges, Chairman of the Illinois Parole and Pardon Board (Or Hissuccessor)

STEVENS, Circuit Judge.

Having failed, on direct review of his robbery conviction, to persuade the Supreme Court to hold that evidence of his identification at a pre-indictment showup was inadmissible because he was not represented by counsel, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, Kirby now presents us with two questions which the Supreme Court has not yet answered. The first, expressly reserved in Kirby, is whether “the particularized circumstances of this case” disclose a deprivation of due process; 1 the second, identified but not expressly decided in Neil v.…