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No. 98-5864 In The Supreme Court of the United States October Term, 1998Tommy David Strickler, Petitioner, v. Fred W. Greene, Warden, Respondent. On Writ of Certiorari To the
BRIEF FOR PETITIONER
Of Counsel: Miguel A. Estrada Counsel of Record Barbara L. Hartung Mark E. Olive John H. Blume Counsel for Petitioner Capital Case
The Court directed the parties to address the following questions:
All parties are named in the caption.
TABLE OF CONTENTS
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED
CASES
STATUTES
CONSTITUTION
The opinion of the court of appeals reversing the district court’s grant of habeas corpus relief (J.A. __-__) is not reported, but the judgment is noted at 149 F.3d 1170. The opinion of the district court granting habeas corpus relief (J.A. __-__) likewise is not reported.
The judgment of the court of appeals was entered on June 17, 1998. A timely petition for rehearing was denied on July 14, 1998. The petition was filed on September 1, 1998, and was granted on October 5, 1998. 119 S.Ct. 27 (1998). This Court’s jurisdiction rests upon 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES INVOLVED The Fourteenth Amendment to the United States Constitution provides in pertinent part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." The Sixth Amendment to the United States Constitution provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a * * * trial by an impartial jury * * * [and] to be confronted with the witnesses against him * * *." The pertinent provisions of the Virginia Code and of the Rules of the Supreme Court of Virginia are reproduced in the appendix to this brief beginning at page B-1.
Leanne Whitlock, a student at James Madison University, was last seen alive on January 5, 1990. Eight days later, her nude body was recovered from a wooded area in the Virginia countryside, where it had been buried under logs and covered with leaves. Near the body, police found a large rock with blood stains suggesting that it had been used to crush the victim’s skull. In a nearby cornfield, a farmer and the police found a pile of Ms. Whitlock’s frozen clothing, a blue baseball cap, and a wallet belonging to one Ronald Henderson. JA __. Although the victim was black, Caucasian hairs were found on her clothing and in the cap. Id. at __. Henderson and petitioner (who had later been seen, together with a white female, in open possession of the car the victim was driving at the time she disappeared) were both charged with Ms. Whitlock’s abduction, robbery and capital murder. Henderson who fled and was tried last, was acquitted of capital murder. JA __-__. 1 Based primarily on the testimony of Anne Stoltzfus, a purportedly disinterested eyewitness who claimed in vivid, chilling detail that she had witnessed petitioner’s forcible abduction of Ms. Whitlock, the Commonwealth convicted petitioner of capital murder and sentenced him to death. The Supreme Court of Virginia affirmed his convictions and sentences, and later affirmed the denial of collateral relief. The United States District Court for the Eastern District of Virginia, however, granted him a writ of habeas corpus after finding that the Commonwealth withheld exculpatory evidence that, by showing that the bulk of Stoltzfus’ "memories" likely resulted from coaching by the police and those close to the victim, would have destroyed Stoltzfus’ credibility and furnished grounds for barring her testimony as unreliable altogether. The court of appeals reversed. JA __-__.
1. The prosecution’s theory at trial was that petitioner, armed with a weapon, abducted Leanne Whitlock from the parking lot of the Valley Shopping Mall ("Mall") in Harrisonburg, Virginia, and forced her to drive her car to a field outside of town, where he robbed and killed her. The prosecution’s proof and argument were intended to show that petitioner acted in concert with Ronald Henderson and with an unidentified blonde woman, but that petitioner was the one who initiated the abduction, used a weapon to accomplish it, and was the instigator, architect, and prime mover of the harm that befell the victim. To paint that picture of petitioner as chief architect of the crime, the State relied extensively on the testimony of Stoltzfus, a purported eyewitness to Ms. Whitlock’s abduction. In her detailed trial testimony, Stoltzfus unhesitatingly identified petitioner as a man whom she had had ample occasion to notice at the Mall before Ms. Whitlock appeared on the scene, vividly recounted how she then saw petitioner burst into Ms. Whitlock’s car as she arrived at the Mall, and furnished the key factual predicates for the prosecutor’s argument that, once inside Ms. Whitlock’s car, petitioner secured the victim’s acquiescence to the abduction by brandishing a knife. 2. After swearing that she knew where she was on January 5, 1990, Stoltzfus testified that she and her fourteen year old daughter drove to the Mall to purchase a compact disc for another of Stoltzfus’ daughters, for whom they were having a late Christmas. They arrived at Musicland, one of the Mall’s stores, at about six o’clock. J.A. ___. While Stoltzfus and her daughter waited for a Musicland employee to assist them, a blonde woman and a man whom Stoltzfus called "Mountain Man" came into the store. Id. at __. "Mountain Man" was "very impatient" and so "frightened" Stoltzfus that she backed into another Musicland patron, "a tall dark haired fellow" whom Stoltzfus called "‘Shy Guy’ because he seemed a bit shy." Id. at __. "Shy Guy" had a tan-colored coat draped over his arm, and Stoltzfus felt something hard in the coat when she bumped against it. According to Stoltzfus, "Shy Guy" "seemed kind of defensive and quickly put [the coat] on." Id. at __. Ms. Stoltzfus apologized to "Shy Guy," and told the Musicland clerk to wait on "Mountain Man" first "because he seemed very impatient and revved up." Id. at __. Stoltzfus testified that she left the store and returned at 6:45 p.m. At that time, she observed "Shy Guy" walking by himself, followed in the distance by the blonde woman and then by "Mountain Man." "Mountain Man" was calling after the blonde woman, "Donna, Donna, Donna." JA at __. Stoltzfus "stopped in [her] tracks because ["Mountain Man"] was so revved up that [she] was concerned." Id. at __. "Mountain Man" and the blonde woman had a brief conversation, during which Stoltzfus claimed they referred to "Shy Guy" as "Ronnie."2 As the blonde woman turned to leave, she bumped into Stoltzfus and a button in her attire caught in Stoltzfus’ open weave sweater. Still "concerned about their behavior," Stoltzfus "tr[ied] to follow them," but was unsuccessful. Id. at __. She and her daughter then returned to Musicland, only to find that no one knowledgeable about her proposed CD purchase was on hand. They decided to leave the Mall. Id. at __. As Stoltzfus and her daughter prepared to drive out of the parking lot, Stoltzfus claimed she noticed a shiny dark blue car driving in. The driver, a young black woman, "was beautiful. She was well dressed and she was happy, she was singing * * *." JA __. Stoltzfus recalled pulling into a lane of traffic immediately behind the blue car. Just ahead of the blue car, a minivan stopped to drop off some passengers and brought traffic to a standstill. Id. at __. At that time, "Mountain Man" came "tearing" out of the Mall entrance door and ran up to the driver of the van. He was talking to the driver of the van "and then was just really mad and ran back and banged on back of the backside of the van and then went back to the Mall entrance wall where ‘Shy Guy’ and ‘Blonde Girl’ was standing." Id. at __. After briefly accosting the passengers in a vehicle that was waiting behind the van, "Mountain Man" moved on to the blue car, which he began pounding and shaking on the passenger side. And "then he just really shook it hard and you could tell he was mad." The door finally gave way, and "Mountain Man" jumped inside the blue car. Id. at __. According to Stoltzfus’ account, the driver of the blue car attempted to push "Mountain Man" away. Mountain Man opened the passenger door and motioned for "Shy Guy" and the blonde woman to join him inside. The blonde woman came to the car and put her left foot up inside. JA __. The driver of the blue car "just laid on the horn" while "Mountain Man" repeatedly hit her. Id. at __.3 Stoltzfus "became concerned and upset" and "honked [her own] horn." Id. at __. "Mountain Man" stopped hitting the young driver and opened the door again. "Shy Guy" and the blonde woman got into the back seat of the car. "Shy Guy" handed his coat over the seat to "Mountain Man," who "fiddled with it" for a long time. Id. at __. After he was done "fiddling" with the coat, "Mountain Man" faced the driver "and the other two in the back seat sat back and relaxed." Id. at __. Stoltzfus went on to recount in chilling detail how she approached the driver of the blue car -- first by pulling up in her own car and then on foot -- and repeatedly inquired whether the driver was "O.K." JA __. Stoltzfus’ approach caused "Shy Guy" to cower in the back seat, but elicited little reaction from the driver of the blue car, who appeared completely frozen. To every one of Stoltzfus’ inquiries, the driver responded by making "direct eye contact and then look[ing] down. Just very serious, looked down to her right." Id. at __. At last, the driver "just mouthed a word" which Stoltzfus did not immediately understand, but soon realized was "help." As Stoltzfus argued with her daughter about what should be done, the blue car began to drive away -- once again with the horn blaring. Id. at __. Stoltzfus gave her daughter a "3 x 4 index card" and instructed her to write down the blue car’s license number. Stoltzfus claimed to remember that license number -- "West Virginia, NKA 243" -- because she had told her daughter at the time "to remember, No Kids Alone 243,’ and I said ‘remember, 243 is my age.’" Id. at __. The blue car drove off. Stoltzfus did not call the authorities. Asked if she got "a good look" at "Mountain Man" and "Shy Guy" during the incidents she purportedly witnessed on January 5th, Stoltzfus responded "Oh yes, I certainly did." J.A. ___. She elaborated that she remembered how the two were dressed, described their clothing in great detail, and she even remembered that their clothing was not at all soiled in any way. Stoltzfus also asserted that she "absolutely" got a good look at the driver of the blue car. She positively identified petitioner in open court as "Mountain Man," and, from photographs, also unequivocally identified the driver of the blue car as Leanne Whitlock. Id. at __. 3. The cross-examination of Stoltzfus, a civilian witness with no apparent bias or other evident motive to fabricate such a highly detailed, shocking tale, understandably focused on the reliability of her recollections and, particularly, of her in-court identifications. Stoltzfus, however, skillfully parried all defense attempts to impugn her precise and seamless account. She forcefully invoked her "exceptionally good memory" and her various opportunities to observe the three malefactors, up-close and at length, to buttress her unequivocal in-court identification of petitioner:
J.A. ___; id. at __ (same with respect to "Shy Guy"). Indeed, Stoltzfus asserted that she had given "detailed descriptions of the three persons" (JA __) when she first spoke to law enforcement, claimed that she told the police "exactly" what she testified to at trial (id. at __), and insisted that she had positively identified petitioner and "Shy Guy" in police photo line-ups early in the investigation, strongly suggesting that she had told a consistent, unwavering story from the beginning:
Id. at __. With respect to her inability to identify the blonde woman with any certainty, Stoltzfus stated that she "thought" one of the pictures in a photo spread was "Donna," but that she had been "very distress[ed]," while waiting in the witness room, to see that another witness in the case against petitioner "look[ed] like her too." Id. at __. 4. The Commonwealth did not call Stoltzfus’ daughter, any employee of Musicland, or any other Mall patron to testify about the bizarre, presumably noticeable public conduct related by Stoltzfus. The Commonwealth did call two additional witnesses who were meant to provide direct evidence against petitioner. The first, Kurt Massie, claimed that he was driving (with a friend) on Route 340 at 7:30 p.m. on January 5th. It was already dark. Massie none-the-less claimed he saw petitioner, whom he had never before met, drive a dirty blue car with two additional occupants (one man and one woman) into a field near where the victim’s body was later found. JA __. He also claimed all occupants of the vehicle were white. Id. at __. The second witness, Donna Tudor, agreed to testify for the Commonwealth after she was arrested for a grand larceny based on her possession of Ms. Whitlock's car. (Despite her willingness to testify for the prosecution, the Commonwealth kept her incarcerated as a flight risk). JA __. She claimed that Henderson and petitioner arrived at Dice’s Inn, a bar in Staunton, at around 9:30 p.m. on January 5th. According to Donna, petitioner was wearing dirty, bloody blue jeans. Donna left the bar with Henderson and petitioner in a blue car.4 She claimed to have heard petitioner and Henderson, once inside the car, discuss having crushed "it" and use a racial epithet; she also described an altercation between petitioner and Henderson during which petitioner allegedly threatened Henderson with a knife. Id. at __. Petitioner and Donna spent the next week together, driving around town and elsewhere in the blue car. Donna claimed at trial that, during that time, she saw petitioner in possession of the victim’s bank card, identification documents and other property, including a pair of earrings that were found in Donna’s possession when she was later arrested. It was then that she first claimed that the earrings were a gift from petitioner.5 Donna’s account was subject to devastating impeachment. Not only did she testify in an effort to curry favor with the prosecutor and to shift suspicion away from herself, but several of Dice’s patrons who were called by the prosecution did not agree with Donna’s claim that petitioner’s clothes were "bloody" or otherwise remarkable when he arrived at Dice’s Inn.6 In addition, her husband, Jay Tudor, testified that Donna had earlier admitted to him that she had been present during Ms. Whitlock’s murder, and that petitioner did not participate in the crime. JA __. Instead, Donna had related that the victim knew Henderson and petitioner and she had voluntarily "picked [them] up" "a couple of days" before she was killed. According to Donna’s earlier statement, Donna was in the victim’s car on the day of the murder, while "the other boy and girl w[ere] outside the car [in the corn field] and she tried to get away * * *. [T]he other fellow jumped on her and started beating her and couldn’t stop." Id. at __. He used his "fist * * * and a rock." Id. The remainder of the Commonwealth’s case was circumstantial. A forensic expert testified for the prosecution that a single Caucasian hair fragment and two Caucasian head hairs that were found on the victim’s clothing "could" have originated from petitioner, based on similarities in microscopically identifiable characteristics. JA __. His opinion was expressly couched as a possibility ("could"), because "[h]air identification is not a positive means of identification. By that I mean I cannot definitely say that a hair originates from a certain individual to the exclusion of all other people in his or her race group * * *." Id. at __. The same prosecution expert also testified that the great bulk of Caucasian hairs found at the scene (mostly in the blue baseball cap found near the victim’s clothes and Henderson’s wallet) "could not have originated" from petitioner. Id. at __ (emphasis added). Another forensic expert reported that she found human blood stains on a pair of blue jeans seized (at Donna Tudor’s instigation) from the residence of petitioner’s mother; one such stain could be identified as type "O." While that was the victim’s blood type, it also is petitioner’s. Id. at __.7 Other forensic experts established petitioner’s presence in the blue car. It was essentially undisputed that petitioner openly possessed the car while he co-habitated with Donna Tudor for several days after the murder. Id. at __.8 In closing, the prosecutor stressed at the outset Stoltzfus’ testimony, highlighting her account of Ms. Whitlock’s abduction as something that could "not be disputed beyond any doubt, beyond any question at all." JA __. The prosecutor also stressed how "lucky" the jury was "to have an eyewitness who saw what happened out there in that parking lot." Id. And he expressly relied on Stoltzfus’ detailed account to urge the conclusion that petitioner must have subdued Ms. Whitlock with a knife. Id. at __. The jury found petitioner guilty of capital murder. 1. The Supreme Court of Virginia affirmed petitioner’s conviction and death sentence on direct appeal. Strickler v. Commonwealth, 404 S.E.2d 227 (Va.), cert. denied, 502 U.S. 944 (1991). Among other assignments of error, the court rejected petitioner’s claim that the trial court should have granted his motion for a bill of particulars. The court explained that "[l]imited discovery is permitted in criminal cases by the Rules of Court," but that petitioner "had the benefit of all the discovery to which he was entitled under the Rules." Id. at 233 (citing Rule 3A:11).9 The court also upheld petitioner’s death sentence on the ground that the jury properly found "future dangerousness" and "vileness." For both factors, the court relied heavily on its assessment of petitioner’s role in the victim’s abduction and murder. With respect to the former, the court found "[m]ost significant[] [that] the jury had before it [petitioner’s] violent behavior before and during the commission of the present crime" as well as the subsequent conduct and statements related by Donna Tudor. Id. at 236. As to the latter, the court emphasized the horror experienced by Ms. Whitlock during the abduction and while contemplating her impending death. Id. at 237. 2. In state habeas corpus proceedings, petitioner alleged that trial counsel were ineffective for not formally seeking Brady materials at trial. Respondent countered with the affidavit of petitioner’s trial counsel who stated that "[w]e were aided by the prosecutor’s office, which gave us full access to their files and the evidence they intended to present. We made numerous visits to their office to examine these files * * *." JA __. Based upon that representation, respondent argued that because "counsel were voluntarily given full disclosure of everything known to the government, there was no need for a formal motion." Id. at __. Petitioner also contended that trial counsel were constitutionally defective in failing to object to an instruction that permitted the jury to convict him of capital murder on the basis of two underlying offenses, one of which -- "abduction * * * with the intent to defile" -- could not, under applicable law, support a capital murder conviction. Id. at __. Respondent agreed that "abduction with the intent to defile is not one of the predicate felonies for capital murder," but argued that the overbroad instruction "was not prejudicial" because "the jury unanimously found beyond a reasonable doubt that [petitioner] was guilty of robbery while armed with a deadly weapon." Id. at __. Finally, petitioner claimed that the trial court erred by not ordering discovery. Respondent asserted that this issue had already been resolved on direct appeal. The circuit court granted respondent’s motion to dismiss the habeas corpus petition. Id. at __. The Supreme Court of Virginia granted review "limited" only to the issues arising from the concededly defective "intent to defile" instruction. Strickler v. Murray, 452 S.E.2d 648, 648-49 (Va.), cert. denied, 516 U.S. 850 (1995). That court rejected petitioner’s ineffective-assistance claim on the ground that he could not show "prejudice," since the jury had also been instructed in the alternative on armed robbery, a permissible predicate for capital murder. The court again placed substantial reliance on the probative force of Stoltzfus’ testimony to conclude that there was "overwhelming" evidence that petitioner killed Ms. Whitlock "in the commission of a robbery while armed with a deadly weapon." Id. at 652-53 (summarizing Stoltzfus account of how petitioner burst into "the car that Leanne was driving" and "repeatedly struck her").
1. In federal district court, petitioner sought and received an ex parte order permitting his counsel to examine and copy all police and prosecution files in the case. That order led to the discovery of letters written by Stoltzfus and of notes and reports prepared by Detective Claytor of the Harrisonburg Police Department -- the lead investigator in the case -- that reflected statements made by Stoltzfus over the course of the investigation. Those documents were found in the files of the Harrisonburg Police Department, and it is undisputed that most of them (five out of eight) were not in the "open file" that had been tendered by the prosecutor in purported compliance with the government’s discovery obligations. JA __. The district court concluded that respondent could not rely on procedural default rules to preclude consideration of petitioner’s ensuing Brady claim, either because "[d]efense counsel had no independent access to this material and the Commonwealth repeatedly withheld it throughout [p]etitioner’s state habeas proceedings," or, alternatively, because petitioner's trial counsel were ineffective in failing to move for disclosure of Brady materials at trial. Id. at __, __. After carefully reviewing the newly discovered documents, the district court concluded that they "contradicted or impeached [Stoltzfus’] trial testimony in many crucial respects." JA __. Among other things, those documents made clear that Stoltzfus initially could not identify Ms. Whitlock, and that Stoltzfus’ subsequent in-court identification resulted from her extensive exposure to Ms. Whitlock’s photographs during a lengthy private meeting with the victim’s boyfriend, John Dean. Those documents also revealed that Stoltzfus initially was not sure she could identify the white males and that, far from positively identifying petitioner from a photo spread, she merely stated that he "resembled" one of the men she had seen. Indeed, at first she could not even recall having been present at the Mall at all on January 5th. Id. at __. The documents also reflect how crucial details of Stoltzfus’ in-court testimony emerged -- amidst her admissions of faulty memory and of reliance on the recollections of another -- only as Stoltzfus met for several hours with the victim’s boyfriend and, on numerous occasions, also with Det. Claytor, thus powerfully supporting the conclusion that her trial testimony resulted from suggestion, fabrication or confabulation. Because the record made clear the trial prosecutor’s extensive reliance on Stoltzfus’ account to establish the key predicates of his entire case against petitioner (i.e., "the alleged abduction" and "the armed robbery"), the district court concluded that "[t]he undisclosed evidence ‘put the whole case in such a different light as to undermine confidence in the verdict.’" JA __ (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). The court accordingly granted petitioner federal habeas corpus relief. 2. The Fourth Circuit reversed. JA __-__. The Fourth Circuit noted that federal habeas courts generally may not entertain a constitutional claim that has never been presented to the state courts, and which those courts would now refuse to entertain if asked to do so, unless the habeas petitioner establishes "cause" and "prejudice." JA __ (citing Coleman v. Thompson, 501 U.S. 722 (1991)). The court believed that Virginia courts would now refuse to entertain petitioner’s Brady claim under a state rule that precludes a "successive" state habeas petition that is based on a claim that was "available" to the applicant when he first sought state habeas relief. Id. at __. According to the court, petitioner’s Brady claim was "available" to him when he sought state collateral relief, because "reasonably competent counsel would have sought discovery in state court in order to examine the Harrisonburg Police Department files * * *." Id. at __ (citing Virginia Supreme Court Rule 4:1(b)(5), which permits discovery of non-privileged materials but only with prior leave of court). The court then concluded that petitioner could not show the type of "cause" and "prejudice" needed to excuse his failure to raise the Brady claim in state court. Because the claim was "available" to petitioner by filing a discovery motion, the Fourth Circuit reasoned, he could not rely on this Court’s cases holding that "cause" is established whenever state officials interfered with a defendant’s timely assertion of his claim in state court, or whenever the basis for the claim was not "reasonably available" to counsel during earlier state proceedings. JA __. Nor, the court concluded, could petitioner rely on this Court’s cases holding that "cause" is established by ineffective assistance of counsel, since "[i]n light of the prosecutor’s open file policy, trial counsel were under no obligation to file a Brady motion." Id. at __. In any event, the court stated, petitioner cannot establish "prejudice" because "the Stoltzfus materials would have provided little or no help to" petitioner. Id. at __. The court based that assertion on the fact that, at trial, petitioner "never contested that he abducted and robbed Whitlock" and "argued to the jury during the guilt phase that they should convict [him] of first degree murder rather than capital murder." Id. at __. For the same reasons, the court further held, "[e]ven if we could get beyond * * * procedural default, * * * Strickler’s Brady claim fails on the merits." Id. at __, n.11. I. The Commonwealth clearly violated the rule of Brady v. Maryland, 373 U.S. 83 (1983), by suppressing highly material excupaltory evidence. That evidence was in police files but was not disclosed to the defense. Indeed, even the prosecutor saw the dispositive documents for the first time when they surfaced in petitioner's federal habeas proceeding. The suppressed materials demonstrate that the Commonwealth's key witness -- Anne Stoltzfus, who vividly claimed at trial to have witnessed how the murder victim was forcibly abducted by petitioner and others at a shopping Mall -- initially and in a later series of meetings with a police detective: (a) had no memory of the victim's or of petitioner's appearance; (b) did not remember even being at the Mall on the relevant date; (c) could give little detail concerning the appearance or clothing of the people involved in the incident she purportedly witnessed; (d) gave inconsistent descriptions of the victim's car; (e) omitted practically every key detail she later invoked in her trial testimony; and suddenly (f) "remembered" a wealth of incriminating detail -- and was able to identify the victim -- only after meeting for several hours with the victim's boyfriend, with whom she compared notes and reviewed photographs of the deceased. The suppressed materials strongly support the conclusion that Stoltzfus' trial testimony was, in large part or in whole, a complete fabrication embroidered with the help (or at the suggestion) of a law enforcement officer and the victim's boyfriend. Had those materials been disclosed to the defense, they would have furnished a meritorious basis for excluding Stoltzfus’ identification testimony in its entirety, or (at the very least) would have fueled a withering cross-examination exposing the utter unreliability of her testimony. The materiality of the Commonwealth's violation of Brady cannot reasonably be disputed. Stoltzfus ostensibly was a disinterested civilian witness with no stake in the outcome, who at trial claimed to have an "exceptionally good memory" and who delivered detailed, gripping testimony with absolute certainty. Such testimony would leave an indelible impression on any jury, and it clearly snuffed out any hope petitioner ever had of fairly defending against the Commonwealth's charges. Because petitioner was indisputably seen in open possession of the victim's car after the murder, Stoltzfus' false testimony that she "absolutely" saw him forcibly break into the car and abduct the victim in it effectively extinguished his defense, reducing every other piece evidence presented by the Commonwealth to a merely corroborative or interstitial role. Indeed, apart from Stoltzfus there was no reliable evidence that petitioner was in the victim's car on the date of the murder while the victim still lived, and a jury could have concluded that petitioner acquired the car after the killing from co-defendant Henderson and Commonwealth witness Donna Tudor. The materiality of the non-disclosures is particularly obvious with respect to petitioner’s death sentence, because Stoltzfus clearly manufactured the factual support for armed robbery -- the sole remaining predicate for petitioner’s capital murder conviction. II. Petitioner clearly established both "cause" for not raising his Brady claim in the state courts and prejudice from the constitutional violation. Because Brady already requires a showing of materiality, petitioner's meritorious Brady claim establishes that he has suffered the requisite "prejudice." And given the Commonwealth's repeated assertions that it had an "open file" discovery system -- i.e., a system wherein all discoverable material is placed in the prosecutor’s "file" and made available for inspection by the accused -- petitioner had every right to expect that Brady material would be made available in that "open file." Those "open file" assertions by the Commonwealth effectively concealed the existence of petitioner's Brady claim, and thus are precisely the type of "external impediments" to the defense that clearly establish "cause" under this Court's cases. See Amadeo v. Zant, 486 U.S. 214, 222 (1988). The State violated Brady and its progeny by failing to disclose evidence that would have destroyed the credibility of a key prosecution witness.
As this Court recently noted, "[t]he prosecution’s affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation * * *." Kyles v. Whitley, 514 U.S. 419, 432 (1995). In cases such as Mooney v. Holohan, 294 U.S. 103 (1935), Pyle v. Kansas, 317 U.S. 213 (1942), and Alcorta v. Texas, 355 U.S. 28 (1957) (per curiam), this Court recognized time and again that governmental deception of the court and jury, or knowing suppression of evidence favorable to the accused, was conduct inconsistent with the most "rudimentary demands of justice." Mooney, 294 U.S. at 112; see also Napue v. Illinois, 360 U.S. 264 (1959). Today, that principle "is of course most prominently associated" (Kyles, 514 U.S. at 432) with this Court’s landmark decision in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, this Court explained that "[t]he principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused." 373 U.S. at 87.10 Because suppression of evidence that "would tend to exculpate him or reduce the penalty" results -- even when suppression "is ‘not the result of guile’" -- in a proceeding "that does not comport with standards of justice," the Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87-88. And the Court soon made clear that "[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at 269); see also Moore v. Illinois, 408 U.S. 786, 794-97 (1972). After Brady, questions persisted about the limits of the government’s obligation to reveal favorable information, and the degree to which that obligation might depend upon an affirmative request by a defendant. In Giles v. Maryland, 386 U.S. 66, 75 (1967), for example, the Court vacated the defendants’ rape convictions, despite absence of any pre-trial request for exculpatory evidence, where evidence that emerged in collateral attack showed that the testimony of the prosecutrix and a purported eyewitness was "open to the construction that these key witnesses deliberately concealed from the judge, jury, and defense counsel evidence of the girl’s promiscuity." Id. at 75 (plurality opinion); see also id. at 102 (Fortas, J., concurring) ("I see no reason to make the result turn on the adventitious circumstance of a request"). In United States v. Agurs, 427 U.S. 97 (1976), it "became clear that a defendant’s failure to request favorable evidence did not leave the Government free of all obligation." Kyles, 514 U.S. 433; Arizona v. Youngblood, 488 U.S. 51, 55 (1988). Agurs distinguished between, and assigned increasingly strict standards of materiality to, claims involving knowing use of perjured testimony by the prosecution, failure of the prosecution to honor a specific defense request, and failure to "volunteer exculpatory evidence never requested, or requested only in a general way." Kyles, 514 U.S. at 433. Even in the third category -- where a general request or no request at all had been made -- Agurs "found a duty [to disclose] on the part of the Government ..., though only when suppression of the evidence ... ‘result[ed] in the denial of the defendant’s right to a fair trial.’" Kyles, 514 U.S. at 433, quoting Agurs, 427 U.S. at 108; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) (Agurs "held that a prosecutor must disclose unrequested evidence which would create a reasonable doubt of guilt that did not otherwise exist"). Finally, in United States v. Bagley, 473 U.S. 667 (1985), this Court "abandoned the distinction between the second and third Agurs circumstances." Kyles, 514 U.S. at 433. In its place, Bagley established a common materiality standard that would apply to all favorable evidence, exculpatory or impeaching, whether the defendant made a specific request, a general request, or no request at all. Id. Thus, it is now well established that "the constitutional duty [to disclose] is triggered by the potential impact of favorable but undisclosed evidence," rather than by the type of request, if any, submitted by a defendant. Kyles, 514 U.S. at 434. Because this Court has entrusted the prosecutor with the responsibility, in the first instance, of assuring compliance with the dictates of Brady, each "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police." Id. at 437. As the Court emphasized in Kyles, "whether the prosecutor succeeds or fails in meeting this obligation * * *, the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." Id. at 437-438.
The district court correctly concluded that each of the three requirements of the Brady rule -- exculpation, materiality and suppression -- is fully established by the record in this case. Viewed collectively, the suppressed materials demonstrate that Stoltzfus -- quite probably at the suggestion or urging of police and/or those close to the victim -- constructed post hoc the testimony she delivered at petitioner’s trial, belatedly invented the crucial details necessary to support an inference of armed robbery, and had no original recollection of even being at the Mall on the night Ms. Whitlock disappeared. If disclosed to competent counsel, those materials would have destroyed the credibility of Stoltzfus -- a purportedly reliable "eyewitness" who, as far as the jury knew, was testifying solely out of a pristine sense of civic duty. Stoltzfus’ multiple asserted observations of the alleged kidnappers, her detailed and vivid account of every facet of the abduction, and the absolute certainty of her in-court identification of petitioner rendered every other item of evidence essentially irrelevant, save for petitioner’s undisputed later possession of the stolen car. Indeed, in light of petitioner’s open possession of the stolen car, Stoltzfus' indelible testimony relegated the balance of the Commonwealth’s case to a corroborative, interstitial role. Any jury faced with such testimony from an ostensibly impartial and unwavering "eyewitness," if told that the defendant had the victim’s car and that the victim’s violent death occurred in the interim, would likely consider nothing more before connecting the proverbial dots. . 1. "[T]he time-honored process of cross-examination [i]s the device best suited to determine the trustworthiness of testimonial evidence." Watkins v. Sowders, 449 U.S. 341, 349 (1981). By exposing a witness’ faulty memory, suggestibility, mendacity, bias, partiality or other motive for testifying, "the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness." Olden v. Kentucky, 488 U.S. 227, 231 (1988). "[M]aking the jury aware of the inconsistency" between a witness’ earlier statements to the authorities and her trial testimony not only is a time-honored means of accomplishing that end, but it also undoubtedly "enhances the truth-seeking function of trials and will result in more accurate verdicts." United States v. Mezzanatto, 513 U.S. 196, 204-05 (1995) (emphasis in original). And nowhere is such impeachment more crucial to the fairness of the outcome than in cases in which the prosecution relies on identification evidence, because "the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence." Watkins v. Sowders, 449 U.S. at 347 (emphasis in original).
2. The Stoltzfus materials were clearly exculpatory because they contained evidence crucially relevant to the reliability of Stoltzfus’ identification testimony, including evidence suggesting that Det. Claytor (the police investigator) and John Dean (the victim’s boyfriend) shaped and manicured Stoltzfus’ trial testimony. Claytor began a series of consultations with Stoltzfus on Friday, January 19, 1990 -- Claytor and she met twice that day. In his handwritten notes of the first meeting of the day, Claytor recorded references to a "[c]ar that may have been" in front of her car and to "fighting" somehow associated with it; those notes record that Stoltzfus could not identify Whitlock or petitioner ("Can’t ID B/F 1st W/M"), and reflect virtually no descriptive detail next to notations corresponding to "white female" and "second white male." JA __ (Exhibit 1). In an account entitled "Observations" and handwritten by Stoltzfus herself at that interview, she refers to a "[b]lack girl parked in front of" the Mall entrance "in a dark blue ‘new’ sports car" with West Virginia tags. Id. at __ (Exhibit 3). The "black girl" was joined by a "scroungy ‘bum type’, ‘W. Va hick’ with scraggly blondish hair" who "pound[ed] impatiently" on the "passenger window" and then opened the door and jumped in. The black girl "start[ed] hitting the guy" and he "back[ed] out." Id. He waved to another "girl and guy," who ran toward the car. The driver honk[ed] continuously; then "Guy # 1 + Black girl start[ed] fighting again." Ibid. Stoltzfus drove past the blue car, but the black girl "just stare[d] straight ahead. Girl in the back seat stare[d] at me." As Stoltzfus "drives on" to park and "see if the black girl is O.K.[,] * * * [the black girl] dr[o]ve[] the car past me[.] * * *. They look[ed] normal." At a second meeting later that day, Stoltzfus reviewed police photo spreads and indicated that one of the white males "[r]esemble[d]" Henderson, but that she was "[n]ot sure." She also stated that a photograph of petitioner "[r]esemble[d]" the other male. Thus, in a handwritten account and two police interviews given closest in time to the alleged abduction, when her memory of the disturbing events was presumably freshest, Stoltzfus could not positively identify any of the participants. And, among other things, she did not say that: (a) she had written down, much less memorized, the license plate number of the blue car; (b) she had (literally) run into the three subjects in the Musicland or otherwise observed them at length earlier; (c) she had a detailed memory of their clothing, including whether such clothing was soiled at the time; (d) in bumping into one of the subjects she felt a "hard" object in his coat, the purported knife with which the victim was later subdued; (e) when the second male and the white female got into the car, the second male passed his coat over the seat to the first white male; (f) she noticed the subjects trying to get into other cars in the parking lot; (g) she got out of her car and approached the girl’s car; (h) the girl in the car kept looking down to her right (as if at a knife), or that (i) the girl in the car mouthed the word "help." What Stoltzfus did say, in her own words, was that "[t]hey look[ed] normal." Claytor interviewed Stoltzfus again on Monday, January 22, 1990. JA __. On that date, Stoltzfus also wrote a letter to Claytor from which it is clear that she had not remembered being in the Mall at all during her initial interviews, and had manifested "confusion" to Claytor in her previous meetings with him:
Id. at __ . Stoltzfus apologized to Claytor for her "initial times [being] so far off," explained that she "placed the time around 9:00 p.m. thinking [she] must have not gone in because the Mall was closing," and then said that her new certainty about dates and times was based upon what her daughter and someone at the Mall had told her. Id. at __ (Exhibit 3). She also recalled visiting Musicland and only later, "[o]n the way back from Musicland," seeing a "revved up mountain man" yelling at a woman that he would meet her at a bus-stop; he "could have been the same guy who knocked on the [victim’s] car window." Id. at __ (emphasis added). Finally, she related "a very vague memory that [she was not] sure of": "It seem[ed] as if the wild guy that [she] saw" earlier had run up to a bus, missed it, and then approached the blue car. Id. at __. "Were those 2 memories the same person?," she asked Claytor. Id. at __.11 This letter continues to reflect deep uncertainty about identification, omits any claim of having carefully observed the subjects such as those she later invoked to bolster her detailed in-court testimony, and still contains no description of the black female -- and no mention, much less memory of, any license plate number. Claytor’s files include an undated, typed, document from Stoltzfus entitled "Notes for Det. Claytor: My Impressions of The Car (Anne Stoltzfus)." J.A. __ (Exhibit 5). Abandoning her previous claim that the blue vehicle had been a "sports" car, she now described it as "a standard boxy American style" and she thought "it was a two-door." Id. at __. She had a "vague impression" of other details, but she was "not at all sure." Id. at __ (emphasis in original). She did not know the make, though she "remember[ed] looking for [it] and not being able to see it in the dark." Id. at __ (emphasis added).12 Stoltzfus again did not mention that she had written down or knew the vehicle’s license plate number, or that she had any specific memory about the car’s driver. That began to change with Stoltzfus’ handwritten note to Claytor dated January 25, 1990, at 1:45 a.m. She then stated that she had "identified beyond a shadow of a doubt that the black girl I saw 1/5/90 was LeAnn Whitlock." JA __ (Exhibit 6). Stoltzfus’ note said she had "spent several hours" with the victim’s boyfriend, John Dean, looking at his photographs of Ms. Whitlock "from which [she] made the identification." Id. at __. An additional comment in the note, comparing Dean’s description of a "girl in jail" with Stoltzfus’ own recollection, also indicates that Stoltzfus and Dean spent some time that evening exchanging impressions about the evidence so far developed by the authorities. Id. at __. Later that day, Claytor wrote in a report that Stoltzfus had -- "without a doubt" -- identified Whitlock as the person she had seen "operating the blue vehicle." He added that she had also identified the victim’s car and had "advised" that "[s]he had made up a quote to help remember the license number after the incident, ‘No Kids After 2-43.’" Id. at __. That was the first time Stoltzfus ever mentioned the license plate number. Stoltzfus’ extended visit with the victim’s boyfriend unleashed a veritable torrent of additional -- and highly incriminating -- "memories" that Stoltzfus duly conveyed in additional missives to Claytor. By letter dated January 26th, Stoltzfus for the first time advised Claytor of: (a) the events at Musicland; including her brush with the "dark-haired quiet guy" and his "long tan light-weight coat"; (b) descriptions of the subjects’ clothing and of purported conversations amongst them; (c) a detailed description of the blonde woman, and (d) that Stoltzfus had witnessed a crime. JA __ (Exhibit 7). Stoltzfus thanked Claytor for his "patience with [her] sometimes muddled memories," and stated that but for Claytor’s intervention she "never would have made any of the associations that [he] helped [her] make." Id. at __. A later three-page, undated memorandum from Stoltzfus, entitled "Details of Encounter With Mountain Man, Shy Guy & Blonde Girl," expounds in still greater, vivid detail about the events of January 5th. It is in that memorandum that Stoltzfus sets forth for the first time numerous additional facts about the abduction, including (a) the passing of the tan coat from the occupants of the back seat to "Mountain Man"; (b) the fact that the victim "would meet [Stoltzfus’] eyes and then purposefully look down to her right side"; and (c) the fact that the victim "mouthed ‘Help.’" It is the version of Stoltzfus’ story that comes closer than any of her previous attempts to the chilling version of the abduction she later related at trial.
3. The circumstances surrounding the development of Stoltzfus’ story tellingly expose the deception that she practiced on the court and jury that convicted petitioner. Indeed, even a brief comparison of portions of Stoltzfus’ trial testimony to her initial statements in the undisclosed documents illustrates the unreliability of her testimony and demonstrates why a jury would never credit her account after a proper cross-examination.
4. In sum, the Stoltzfus documents starkly reveal "the evolution over time of [her] description" (Kyles, 514 U.S. at 444) and her increasing ability to "remember" incriminating details with each meeting with Claytor, who was familiar with the investigation and was clearly in a position to suggest what details might be useful for Stoltzfus to "remember." They also reveal how she underwent an amazing epiphany following a meeting of "several hours" with the victim’s boyfriend, comparing notes and "looking at current photos from which [she] made [her] identification of the victim." Indeed, the undisclosed documents reveal that Stoltzfus’ testimony not only evolved to fit nearly seamlessly with the circumstantial testimony of other Commonwealth witnesses -- such as a security employee of the Mall who believed she had seen petitioner there earlier in the afternoon of January 5th, JA __ -- but that her testimony was tailor-made to support the armed robbery and abduction predicates required for petitioner’s capital conviction. Once disclosed, those materials would have supported a meritorious motion to exclude Stoltzfus’ identification testimony as wholly unreliable, see, e.g., Manson v. Brathwaite, 432 U.S. 98, 114-17 (1977), or, at the very least, "would have fueled a withering cross-examination, destroying confidence in [her] story and raising a substantial implication that the [authorities] had coached [her] to give it." Kyles, 514 U.S. at 443 (footnote omitted). It cannot be doubted that those materials were therefore clearly "exculpatory" within the meaning of Brady.
. It is beyond dispute that "evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’" Kyles, 514 U.S. at 433-34 (citation omitted). It is equally clear that "materiality *** is not a sufficiency of the evidence test," and thus "[a] defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Id. at 434-35. As in other contexts in which courts are called upon to assess how a jury may have been affected by a deviation from legal norms, the materiality determination must be consistent with the Sixth Amendment, which secures to criminal defendants the right to trial by jury. "Th[is] right includes, of course, as its most important element, the right to have a jury, rather than the judge, reach the requisite finding of ‘guilty.’" Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (discussing Sixth Amendment constraints on harmless error review); see also California v. Roy, 519 U.S. 2, 7 (1996) (Scalia, J., concurring) (same). In view of that constitutional constraint, what the materiality standard demands is a "showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. That is undoubtedly true here. 1. Any assessment of the materiality of the Stoltzfus documents must begin with, and bear in mind throughout, the almost incomparable impression that an unhesitant in-court identification by an unbiased eyewitness will naturally have upon a jury. Without hesitation, Stoltzfus testified in great detail to her multiple contacts with the alleged kidnappers "close-up and with the sun high in the sky" (Kyles, 514 U.S. at 466 (Scalia, J., dissenting)), even before the abduction allegedly occurred that evening. She thus gave the jury a basis -- flawed, as it turns out -- for believing that Stoltzfus’ observations were careful and most unlikely to be wrong. She also quite distinctly -- and falsely -- conveyed to the jury that she had told a consistent story from the beginning, including that she was "one hundred percent sure" (JA __) of her identification of petitioner from police photographs on the very first day she was interviewed by the authorities. With the exception of a full confession or a videotape of the crime, it is difficult to conceive of evidence to which a jury would be more likely to give credence than the type of account by a purportedly disinterested witness that Stoltzfus placed before the jury. Here, as with a full confession, a jury "doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case." Arizona v. Fulminante, 499 U.S. 279, 313 (1991) (Kennedy, J., concurring in judgment). That is especially true here because the Commonwealth had little evidence of petitioner’s guilt that could fairly be said to be independent of, or otherwise unaffected by, Stoltzfus’ gripping account. Quite simply, the Commonwealth had no reliable evidence, apart from Stoltzfus, that petitioner was in the blue car at all on January 5th while Ms. Whitlock still lived. For that reason, Stoltzfus' account was the starting -- and the most compelling -- premise of the Commonwealth’s entire evidentiary presentation. If the jury credited Stoltzfus’ vivid account of the abduction (and the separate jury verdicts finding petitioner guilty of abduction and unarmed robbery show that it did), it is inconceivable that the jury would not find him guilty of killing Ms. Whitlock based solely on his later possession of the victim’s stolen car. Conversely, excluding (or, at least, deeply discounting) Stoltzfus’ testimony would leave the jury with a circumstantial case primarily centering on petitioner’s acquaintanceship with Henderson and on inconclusive physical evidence -- and with the need to consider the implications of Stoltzfus’ coached testimony for the integrity of the entire investigation. Kyles, 514 U.S. at 445. The incriminating testimony of Donna Tudor, who (a jury could easily conclude) in all likelihood was herself an accomplice in the Whitlock killing and one of the persons from whom petitioner probably obtained the car, could not make up the credibility deficit of that circumstantial case. That point was not lost on the prosecutor when, in summation, he emphasized Stoltzfus’ testimony at the outset and throughout as one of the givens in the case -- or when, at Henderson’s later trial, he dispensed entirely with Tudor (but not Stoltzfus) as a witness.13 2. As plain as the materiality issue is with respect to the guilt phase, materiality is even more devastatingly clear with respect to punishment. Petitioner was convicted of capital murder on the basis of two predicate crimes, armed robbery and abduction with intent to extort or defile. The Virginia Supreme Court held on petitioner’s state habeas (and indeed the Commonwealth conceded on state collateral review, JA __) that abduction "with intent to defile" could not legally serve as a predicate for capital murder, because the victim in this case was over the age of 12. Petitioner’s capital murder conviction thus must be supported, if at all, on the basis of compelling evidence of armed robbery. The prosecutor’s "evidence" of that predicate, however, flowed almost entirely from inferences from Stoltzfus’ testimony, particularly her late-blooming recollections of a hard object in "Shy Guy’s" coat, the passage of that coat to "Mountain Man" in the front seat (after which the intruders were able to "relax," JA __), and the victim’s purported glances to the right. As the prosecutor argued in summation:
JA __.14 Indeed, even if the capital murder conviction could be supported (and it cannot), it is more than reasonably probable that the devastating impeachment of Stoltzfus’ testimony would be sufficient to cause the jury to choose a penalty other than death, especially since it was her testimony -- and her testimony alone -- that portrayed petitioner as the instigator and violent leader in the abduction and armed robbery of Ms. Whitlock, and, by inference, the leader in her murder. It is impossible to say, in these circumstances, that the suppressed documents were not material under Brady. 3. The court of appeals nonetheless believed that a different conclusion as to materiality was warranted by its examination of the particular strategy pursued by defense counsel at petitioner’s trial. In the Fourth Circuit’s view, the Stoltzfus documents could not be considered "material" because petitioner "never contested that he abducted and robbed Whitlock" but argued that the jury should convict him of first-degree, rather than capital, murder. JA __. That analysis fundamentally misconceives Brady and its progeny. As this Court has recognized, a prosecutor’s non-compliance with his Brady obligations inherently affects the composition of the trial record, because it shapes the "pretrial and trial decisions" made by defense counsel. Bagley, 473 U.S. at 682-83 (plurality opinion). For that reason, "the constitutional duty [to disclose] is triggered by the potential impact of favorable but undisclosed evidence," Kyles, 514 U.S. at 434 (emphasis added), not by a retrospective examination of how defense counsel was forced to try the case in the absence of the exculpatory evidence. . It is conceded that the vast majority of the Stoltzfus records -- five out of eight exhibits -- were suppressed by the Commonwealth. Indeed, the prosecutor claimed to have seen them for the very first time when they were produced from Det. Claytor’s file in response to a federal subpoena. JA __. Those concededly withheld documents include Claytor’s handwritten notes of his initial meetings with Stoltzfus on January 19th (Exhibit 1; reflecting, inter alia, her inability to identify petitioner or the victim); Stoltzfus’ handwritten "observations" (Exhibit 3; reflecting, inter alia, very little of the incriminating detail she later conveyed to the jury and stating "[t]hey look[ed] normal"); Stoltzfus’ January 22nd letter seeking to clarify her "confusion" (Exhibit 4; noting, inter alia, that she had not remembered being in the Mall at all, and expressing doubt that "Mountain Man" and the "wild guy" she later saw enter the blue car were "the same person"); Stoltzfus’ undated "Impressions of the Car" (Exhibit 5; reflecting, inter alia, her memory change from "sports" car to a "standard boxy American" car and her lack of awareness of its license plate number); and Stoltzfus’ January 25th note to Claytor following her meeting of "several hours" with the victim’s boyfriend (Exhibit 6; reflecting, inter alia, that Stoltzfus identified the victim after extensive exposure to her photographs). As the district court correctly concluded, suppression of those documents more than suffices to warrant relief under Brady.15
The court of appeals also suggested that petitioner’s Brady claim must fail because he did not seek to compel production of Brady materials through legal process. JA __. While that ruling was based on procedural default principles (and is addressed below), the court also appeared to believe that similar considerations might apply to the merits of a Brady claim. Id. at __, n.11. There is no room for that sort of "diligence" inquiry under traditional Brady principles. 1. The law is clear that "diligence" in filing a motion in court is not an independent requirement of Brady and its progeny. That is the inescapable conclusion from this Court’s decision in Bagley, which clearly discarded any notion that the accused must "request" exculpatory evidence in the first place. Kyles, 514 U.S. at 433-34. If the doctrine does not even require that the defendant ask the prosecutor, it can scarcely be interpreted to require the filing of a formal motion in court. Still less can Brady be interpreted to require such a course when, as here, prosecutors have represented that they will provide "open file" discovery. Because this Court’s cases clearly place on "the individual prosecutor [the] duty to learn of any favorable evidence known to others acting on the government’s behalf in the case," Kyles, 514 U.S. at 437, and because this Court’s cases presume "that the great majority of prosecutors will be faithful to their duty," Mezzanatto, 513 U.S. at 210, any lower court presented with a Brady motion in such circumstances would grant no further relief than access to the "open file" that the prosecutor offers in purported satisfaction of his discovery obligations -- as the reported cases attest.16 2. In fact, adoption of any "diligence" precondition to disclosure would be inconsistent with the development of Brady law, which has sought to simplify the rules governing administration of the government’s disclosure obligations in a manner that minimizes excuses for nondisclosure while encouraging systemic compliance within and among prosecuting agencies. Like the plea, rejected in Kyles, that prosecutors be relieved of responsibility for disclosing evidence known only to the police, the introduction of a requirement that defendants satisfy a "reasonable diligence" standard as a precondition for exercising or enforcing the Brady rule "would *** amount to a serious change of course from the Brady line of cases." Kyles, 514 U.S. at 438. Moreover, a "diligence" requirement is unworkable in the context of a doctrine, like Brady, that depends in the first instance on prosecutorial judgments about the value of evidence. In many cases, a prosecutor’s ability to determine whether or not a particular item of favorable evidence is available to defense counsel through the exercise of reasonable diligence will require information which the current system does not entitle the prosecutor to obtain, such as knowledge of what expert assistance an indigent defendant has been authorized to retain, or how witnesses have reacted to being approached by a defense investigator. Thus, without a corresponding requirement -- unprecedented in American criminal procedure -- that a defendant provide ongoing disclosure of how his defense is developing, the prosecutor would be utterly unable to gauge when his obligation to disclose favorable information has been triggered. Nothing in this Court’s cases requires the injection of that additional complexity into Brady doctrine.17
II. Petitioner Clearly Established Both "Cause" For Failing To Present His Brady Claim To The State Courts And Actual "Prejudice" From The Commonwealth’s Violation Of Brady. Petitioner never presented to the state courts his claim that the Commonwealth violated Brady by suppressing the Stoltzfus materials, and that claim is therefore procedurally barred.18 Accordingly, under Wainwright v. Sykes, 433 U.S. 72 (1977), and its progeny petitioner must demonstrate "cause" for his failure to raise the claim in the state courts "and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Harris v. Reed, 489 U.S. 255, 262 (1989). As the district court correctly concluded, petitioner has made that showing.
1. This Court has defined "cause" as something "external to the petitioner, something that cannot fairly be attributed to him." Coleman, 501 U.S. at 753 (emphasis in original). Thus "the existence of cause *** must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also Amadeo v. Zant, 486 U.S. 214, 222 (1988). That external factor may consist of "a showing that the factual or legal basis for a claim was not reasonably available to counsel," or a demonstration that "‘some interference by officials’ *** made compliance impracticable." Coleman, 501 U.S. at 753 (quoting Carrier, 477 U.S. at 488); see also McCleskey v. Zant, 499 U.S. 467, 497 (1991) ("external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim") (emphasis added). As the Court noted in holding that the utter legal novelty of a claim constitutes "cause" for failing to raise it sooner, "the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the ["cause"] requirement is met. If counsel has no reasonable basis upon which to formulate a constitutional questions *** it is safe to assume that he is sufficiently unaware of the question’s latent existence that we cannot attribute to him strategic motives of any sort." Reed v. Ross, 468 U.S. 1, 14-15 (1984) This case fits squarely within both aspects of this "external" understanding of cause, because not only was the factual basis of the Brady claim unavailable to defense counsel, but the reason for the unavailability of the claim was the Commonwealth’s misleading conduct. At trial, the Commonwealth’s attorney maintained that he had an "open file" policy with respect to materials properly discoverable by the defense, a point noted by the Supreme Court of Virginia in its opinion on direct appeal. Strickler v. Commonwealth, 404 S.E.2d at 233 (noting that petitioner received all the discovery to which he was entitled). In state habeas corpus proceedings, the Attorney General affirmatively represented to the court and petitioner’s counsel "that [petitioner] received all Brady material through the prosecutor’s open file policy." JA __. In fact, however, the Commonwealth never produced the plainly exculpatory Stoltzfus materials until faced with a federal subpoena in the federal habeas corpus proceedings. The actions of the Commonwealth in inviting reliance on the purported discharge of its constitutional discovery obligations through its "open file" policy amount to concealment pure and simple. And, as this Court noted in Amadeo, supra, "if that concealment, rather than tactical considerations, was the reason for the failure of petitioner’s lawyers to raise the [claim] *** then petitioner established ample cause to excuse his procedural default under this Court’s precedents." 486 U.S. at 222; see also McCleskey, 499 U.S. at 501 (finding that petitioner had not established "cause" because there was "no misrepresentation or wrongful conduct by the State in failing to hand over the document earlier"). 2. The court of appeals faulted petitioner, however, for failing to seek discovery in the state habeas corpus proceedings, and thus failing to obtain the Stoltzfus materials earlier. The court believed that such discovery would have been sought by any "reasonably competent counsel." JA __. The Stoltzfus materials, however, comprise precisely the sort of investigative reports and correspondence generally viewed as privileged, and thus non-discoverable, under Virginia law. See Va. S. Ct. Rule 3A:11(b)(2) (exempting from discovery by criminal defendants any police reports and any "statements made by Commonwealth witnesses or prospective Commonwealth witnesses").19 And even if the Stoltzfus materials had not been protected by privilege, petitioner would have been unable to obtain discovery in state habeas, which is permitted only with "leave of court" (Va. S. Ct. Rule 4:1(b)(5)) and upon "a showing of some special circumstances in addition to relevancy." Rakes v. Fulcher, 172 S.E.2d 751, 756 (Va. 1970) (noting that "[t]he mere suspicion that [a witness] ha[s] made inconsistent and incomplete statements is not a showing of good cause") see also Yeatts v. Murray, 455 S.E.2d 18, 21 (Va. 1995). There is no reasonable likelihood that such a discovery motion in state habeas would have produced anything other than the Commonwealth’s stock assurance that, by providing "open file" discovery, it had already fully complied with its obligations under the Constitution. Indeed, we know that any motion to the Virginia courts would have been unsuccessful because on direct review the Supreme Court of Virginia treated petitioner’s other claims as though he had in fact made such a discovery motion, and expressly concluded that "petitioner had the benefit of all the discovery to which he was entitled under the Rules." Strickler, 404 S.E.2d at 233.20 Moreover, the comity and federalism policies that underlie this Court’s procedural default jurisprudence would be decidedly ill-served by a rule requiring criminal defendants to deluge state courts with speculative discovery motions, solely to preserve their federal rights for later review in the presumably rare cases in which state prosecutors turn out not to have been "faithful to their duty." Mezzanatto, 513 U.S. at 210. As the Court observed in Reed, that is precisely the sort of rule that "might actually disrupt state-court proceedings by encouraging defense counsel to [present to the state courts] any and all remotely plausible *** claims that could, some day, gain recognition." Reed, 468 U.S. at 15-16. Here as elsewhere, it makes far more sense to craft background procedural rules on the assumption that public officers "‘have properly discharged their official duties.’" Mezzanatto, 513 U.S. at 210 (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926)). Indeed, the appropriateness of that approach necessarily is at its acme where, as here, this Court already made the judgment of entrusting enforcement of the underlying norm (Brady) to prosecutors rather than courts in the first instance. 3. In any event, it is well settled that a habeas petitioner establishes "cause" by showing, under Strickland v. Washington, 466 U.S. 668 (1984), that his trial counsel were ineffective. Petitioner submits that the court of appeals' treatment of that issue cannot withstand scrutiny. If, as the court of appeals believed, any reasonably competent defense counsel would have sought Brady materials from the state courts by motion, then petitioner’s trial counsel assuredly were constitutionally ineffective in failing to make such a motion. That professional failure clearly prejudiced petitioner by depriving him of key exculpatory evidence and plainly establishes "cause," as the district court alternatively found. JA __. Yet the court of appeals rejected that alternative finding of "cause" on the stated ground that, in light of the open file policy, "trial counsel were under no obligation to file a Brady motion." Id. at __. Indeed, the court cited approvingly to Smith v. Maggio, 696 F.2d 365, 367 (5th Cir. 1983), for the proposition that "‘[c]ounsel had no duty to file pre-trial motions, because the prosecutor established an open file policy that made filing of discovery motions or Brady requests pointless.’" JA __. The Fourth Circuit did not explain, nor is it apparent, how that line of analysis can possibly be squared with its ruling that petitioner’s constitutional claims were irretrievably lost precisely because he failed to file such a "pointless" motion.
The record in this case also leaves no doubt that petitioner has established "actual prejudice as a result of the *** violation of federal law." Coleman, 501 U.S. at 750. While this Court has never given the prejudice standard "precise content," United States v. Frady, 456 U.S. 152, 168 (1982), it has required a showing that the constitutional error "worked to [the petitioner’s] actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting Frady, 456 U.S. at 170) (emphasis in original). Such a showing is inherent in the nature of the violation where, as here, the underlying norm (Brady) already requires a showing of materiality, defined as "‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’" Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682). Indeed, this Court’s cases have repeatedly cited to Bagley (and to Strickland’s standard of prejudice, from which the Bagley standard was derived) as a reflecting what showing is sufficient to establish "prejudice" for any alleged procedural bar. See Schlup v. Delo, 513 U.S. 298, 327 & n.45 (1995) (recognizing that proof of materiality under Bagley is sufficient "to establish prejudice" excusing a procedural default); id. at 333 (O’Connor, J., concurring) (same); see also Sawyer v. Whitley, 505 U.S. 333, 345 (1992) (equating "prejudice" with Bagley materiality standard). Indeed, as the Court noted in Kyles, a determination of materiality "necessarily entails the conclusion that the suppression must have had ‘substantial and injurious effect or influence in determining the verdict.’" Kyles, 514 U.S. at 435 (citations omitted). Where, as here, that "substantial and injurious effect" produced a manifestly unreliable capital verdict and death sentence, it assuredly worked to petitioner’s "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. at 170 (emphasis in original). For the foregoing reasons, the judgment of the court of appeals should be reversed. Of Counsel: Respectfully submitted. Mark E. Olive John H. Blume Counsel for Petitioner
FOOTNOTES Henderson was convicted of first-degree murder and sentenced to life imprisonment. He and petitioner were also convicted of abduction and robbery and received life imprisonment sentences on those counts.
According to Stoltzfus’ testimony, "Mountain Man" asked the blonde woman where "Ronnie" was. She replied "up there." "Mountain Man" then expressed a desire to leave the Mall, to which the woman replied that "Mountain Man" and "Ronnie" should meet her at the bus stop. JA __-__.
As Stoltzfus put it in her trial testimony (JA __):Donna Tudor identified photographs of a car owned by Leanne Whitlock’s boyfriend, John Dean, which Ms. Whitlock had borrowed from him the day she disappeared. JA __, __. Donna described how petitioner cut up the interior and jumped on the roof of the car several days later, after a fight with Donna. JA __, __. That particular manifestation of a lover’s quarrel suggests that petitioner viewed the car as Donna’s property.
Donna Tudor also claimed that petitioner’s mother had washed bloody clothes petitioner was wearing on January 5th. That claim was squarely disputed by petitioner’s mother and sister. JA __, __.
Debra Sievers was at Dice’s Inn and examined petitioner closely enough to determine that he was not wearing jeans, but pants that "looked like jeans" because they were made of denim. JA __. She testified that petitioner’s pants "were a little dirty," but otherwise there was nothing noticeable about them. Id. at __. Carolyn Brown also saw petitioner at Dice’s, but "didn’t pay all that much attention to him * * * he was dressed right nice I thought." Id. at __. Further prompting and leading questions from the prosecutor elicited from Brown only that petitioner’s pants were "a little bit dirty * * * like they had been wore a couple days or so." Id. at __. At third patron, Nancy Simmons, danced with petitioner yet gave no testimony that there was anything remarkable about his clothing. She did testify that Henderson danced with her and gave her a watch, which was later identified as belonging to the victim. (The Virginia Supreme Court stated that petitioner gave Simmons the watch (Strickler v. Commonwealth, 404 S.E.2d 227, 230 (Va.), cert. denied, 502 U.S. 944 (1991)), a flat misstatement of the record entitled to no deference under 28 U.S.C. 2254(d); cf. Yates v. Evatt, 500 U.S. 391, 410 (1991) (rejecting state court’s characterization of evidence as "not supported by the record")).
The Commonwealth also introduced expert testimony that some clothing worn by petitioner (to which Donna Tudor led them, after the two cohabited for a week) contained semen stains. JA __; Trial Tr. 706-07. Because vaginal swabs taken from the victim had shown the presence of semen, the prosecution evidently had hoped to suggest that petitioner had raped the victim. That tactic fizzled when the victim’s boyfriend, John Dean, admitted that he and the victim had consensual sexual relations the night before she disappeared (JA __), and the Commonwealth’s pathologist testified that petitioner could not be the source of the semen found in the victim. Trial Tr. 715-16. In summation, the prosecutor disclaimed any contention that petitioner had raped Whitlock, but argued that the semen was probably Henderson’s, who could not be tested because he was a fugitive. JA __. On that basis, the prosecutor urged the jury to conclude that the abduction related by Stoltzfus was motivated by an intent to defile Ms. Whitlock. Id. at __ ("they did it so that one or both men could rape her").
A defense witness, Kenneth Workman, testified that Ronald Henderson arrived at Workman’s house at around 4:30 a.m. on January 6th, completely drunk and "talking about [how] he killed" someone to whom he referred with a racial epithet. JA __ (emphasis added). Henderson "had blood and stuff on his pants." Id. at __. The prosecutor’s cross-examination highlighted the fact that Henderson was intoxicated, implicitly suggesting that his assertions were unreliable. Id. at __. At Henderson’s later trial, however, the prosecutor called Workman as the Commonwealth’s witness to prove Henderson’s guilt of the murder.
Rule 3A:11, which applies "to prosecution for a felony in a circuit court," governs the discovery available to criminal defendants. It provides for inspection by the accused of evidence "material to the preparation of his defense [if] the request is reasonable," but it expressly shields from discovery "statements made by the Commonwealth witnesses or prospective Commonwealth witnesses or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case" (other than certain scientific expert reports prepared in connection with the investigation).
Brady involved the suppression of evidence favorable to the accused in the punishment phase of his capital trial, namely the nondisclosure of a codefendant’s admission that he, not Brady, had actually killed the victim. Brady, 373 U.S. at 87; see also Alcorta, 355 U.S. at 32. (finding due process violation where false evidence that was offered at trial precluded an affirmative defense which, if successful, would make death an impermissible punishment).
In a handwritten post-script, Stoltzfus added that her daughter, who was supposedly with her at the Mall, did not "remember seeing the 3 people get into the black girl’s car." Id. at __.
According to Claytor’s notes, on January 24, 1990, Stoltzfus was taken to the county impound lot and shown the victim’s vehicle, a "Mercury Lynx, W. Va. license NKA-243." JA __ (Exhibit 2). Stoltzfus said that "the vehicle looked like the one at the Valley Mall," it "was the right color and size, it had the same little blue stripe down the side, and it had the same colored interior." Id. at __.
Much of the evidence pointed directly to Henderson, rather than petitioner, as the murderer. Henderson’s wallet, and a significant quantity of Caucasian hair that could not have originated from petitioner, were found near the body. JA __. On the night of the murder, Henderson told a friend, Workman, that he had killed someone, whom he described with a racial epithet. Workman saw blood on Henderson’s clothes. Id. at __. On the night of Ms. Whitlock’s disappearance, Henderson (not petitioner) gave her watch to a woman in a bar. Id. at __. Blood was found on Henderson’s jacket and his jeans had substantial, visible blood stains. Id. at __. A jury unexposed to Stoltzfus' unreliable identifications (or apprised of the high likelihood that her account resulted from suggestion or confabulation) could well conclude that petitioner acquired use of the victim's car, from Henderson or Tudor, after the killing.
. In affirming the denial of state habeas relief, the Supreme Court of Virginia concluded that evidence that Ms. Whitlock's murderer used a rock to inflict death was sufficient to establish armed robbery under Virginia law. That theory cannot support petitioner's capital murder conviction, because the theory that the prosecutor actually presented to the jury relied on the presence of a knife during the abduction, not on the later use of a rock. Under the Sixth Amendment and the Due Process Clause, "appellate courts are not free to revise the basis on which a defendant is convicted." Dunn v. United States, 442 U.S. 100, 106-07 (1979); Chiarella v. United States, 445 U.S. 222, 236-37 (1980) ("we cannot affirm a criminal conviction on the basis of a theory not presented to the jury"). In any event, the "rock" theory in no sense is independent of Stoltzfus’ account of the abduction.
Indeed, even if the Commonwealth had argued the "rock" theory of robbery to the jury, petitioner's capital murder conviction still could not stand in view of the Virginia Supreme Court's conclusion that the abduction predicate was legally unsound. The jury was told that it could convict petitioner of capital murder on that legally unsound ground, and the prosecutor argued that ground to the jury. JA __. "For all we know, the conviction did rest on that ground," Leary v. United States, 395 U.S. 6, 31 (1969), and it is thus insupportable irrespective of any factual basis that might exist for the alternative robbery predicate. Id.; Griffin v. United States, 502 U.S. 46, 59 (1991) ("When * * * jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error").
United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994) ("To the extent that the government represents that it ‘has produced every document in its possession which relates in any way to this case’ * * *, the court must assume the veracity of that representation. The alternative to such an assumption would require the court to examine numerous file drawers of documents to verify that representation which is as obviously undesirable as it is impractical"); United States v. Firmin, 589 F. Supp. 828, 829 (M.D. Pa. 1984) ("[T]he government contends that it has provided open file discovery. If any Brady materials are later determined to have been withheld by the prosecution, defendant may pursue appropriate remedies"); Knox v. State, 532 N.W.2d 149, 153 (Iowa App. 1995) ("The defense attorney and the trial court had a right to rely on the testimony of the State’s attorney that all information about the print had been turned over to Knox.")
Whether a criminal defendant has been "diligent" in using information that has actually been disclosed may be relevant to related doctrinal areas, particularly to an assessment of counsel’s performance under Strickland v. Washington, 466 U.S. 668 (1984). That inquiry, however, has no independent role to play under Brady.
Although a habeas petitioner ordinarily must "exhaust" his state remedies by presenting his claims to the state courts in the first instance, see 28 U.S.C. 2254(b), exhaustion is not an issue in this case because that requirement "refers only to remedies still available at the time of the federal petition." Gray v. Netherland, 518 U.S. 152, 161 (1996) (quoting Engle v. Isaac, 456 U.S. 107, 126, n.28 (1982)); see also Castille v. Peoples, 489 U.S. 346, 351 (1989). The court of appeals concluded that the Virginia courts would today refuse to entertain petitioner’s Brady claim, and petitioner agrees with that conclusion. Petitioner does not, however, agree with the reasons for it cited by the court of appeals, viz., that court’s view that any application that petitioner might file today in the Virginia courts would be a "successive petition" based on grounds that were "available to him" when he first sought state habeas corpus. JA __ (citing Va. Code. Ann. § 8.01-654(B)(2)). Virginia courts would not hear the new Brady claim because, as a result of an intervening change in state law, any petition to the state courts would be found time-barred. See Va. Code Ann. § 8.01-654.1.
See also Va. Code Ann. § 2.1-342(b)(1) (exempting from state FOIA disclosure "[m]emoranda, correspondence, evidence and complaints related to criminal investigations; * * *; reports submitted to the state and local police * * * in confidence;"); Rosser v. Commonwealth, 482 S.E.2d 83, 87 (Va. App. 1997) (in light of Rule 3A:11(b)(2), trial court correctly "instructed appellant that the requested records could not be obtained with a subpoena duces tecum").
The Supreme Court of Virginia's express avowal that petitioner in fact had the benefit of all discovery that might be available to an accused under its |