*1 officer, experience years’ police ence as narcotics, and he had re-
investigating Divi- the Wisconsin training from
ceived it is Enforcement. As of Narcotics
sion wrong with nothing there is
clear that testify as a fact officer both
having police witness, see United expert
witness and an Penny,
States
Cir.1995), claiming Lightfoot is reduced have been should Gerfen’s he was he admitted that
excluded because odor of crack cocaine
unfamiliar with the admis- cooking process. That
during the
sion, however, bearing has no on Gerfen’s busi- familiarity with the cocaine
general testify as amply qualified to
ness. He was im- was free to expert, Lightfoot like the odor evi-
peach him with details jury to assess the up
dence. It was
weight testimony. of his
Ill judgment of the district
We Affirm
court. MENDIOLA, Petitioner-
Julio
Appellant, SCHOMIG, Warden, Pontiac
James M. Center, Respondent-
Correctional
Appellee.
No. 98-4031. Appeals,
United States Court Circuit.
Seventh
Argued Jan. 2000. Aug.
Decided Rehearing En Banc
Rehearing and
Denied Oct. 2000.* * Wood, grant and Williams voted part Evans Judge in the consid- Chief Flaum took rehearing petition en banc. rehearing eration of the en banc. Rovner, Ripple, Diane P. Judges Circuit *2 Brady v. Maryland,
See Eyewitness testimony supplied the basis of the conviction. Francisco Carabez identified Mendiola as the shooter. Imme- murder, diately after the Carabez and his Angelo looking friend Torres went for the killer. Carabez described the shooter’s Torres, appearance clothing and and when the two found Mendiola within a block of the crime Carabez unhesitatingly identified him to Torres based on his clothing as well as visage. Carabez later identified photo Mendiola spread, lineup, and the courtroom. Tor- res description corroborated Carabez’s (argued), Lawrence C. Marshall North- immediately events after the murder. Clinic, University Legal western Chicago, (that Mendiola’s defense was an alibi he IL, IL, Mejia, Chicago, David S. for Peti- drinking had been beer with two friends in tioner-Appellant. murder); a car some distance from the Jay one of the (argued), supposed drinking Hoffmann Deborah L. companions Ahlstrand, Gen, Atty. story; Office Chica- verified this several witnesses testi- IL, go, shooter; for fied that Mendiola Respondent-Appellee. was not the
Mendiola himself testified that he had
EASTERBROOK, MANTON,
Before
nothing
or,
killing
to do with the
for that
ROVNER,
Judges.
and
Circuit
matter,
Kings.
the Latin
This defense
by
police
undercut
officer’s testimo-
EASTERBROOK,
Judge.
Circuit
ny that the tattoo of a crown on Mendio-
la’s back
insignia
is the
of the Latin Kings,
During the wake for a member of the
the officer had observed Mendiola
Kings
Latin
four
gang,
street
non-mem
associate with other gang members and
Incensed,
by.
bers drove
gang members
gang’s slogans
use the
gestures,
and
standing outside the
opened
funeral home
in a booking photograph
posed
Mendiola
car,
fire on
sped away.
which
Within a
using a hand gesture employed by the
block the car crashed into other vehicles.
Kings,
Latin
and that soon
being
Three
occupants
of the four
made it to
arrested
Mendiola had
accounts of
Gutierrez,
safety on foot. Manuel
his whereabouts that
with
conflicted
fourth,
Gutierrez,
did not. As a mob beat
alibi
trial.
offered at
Another officer testi-
times,
one assailant shot Gutierrez six
kill
that,
arrested,
fied
Mendiola had
ing him. A jury concluded that Julio Men-
membership
admitted
Kings.
the Latin
bullets,
diola fired the fatal
and he was
Some if not all of the witnesses who testi-
years’ imprisonment
sentenced to 50
fied on Mendiola’s behalf had links to that
first-degree murder. His conviction was
gang,
prosecutor argued
that their
affirmed
the state’s
and
according-
should be discounted
judge
petition
a federal
denied his
for col
ly-
lateral relief. 1998 WL
(N.D.Ill.
1998).
Dist. Lexis Although
Oct.
place
day-
murder took
appeal
street,
Mendiola’s sole contention on this
light
busy
police
on a
prosecu-
that the
difficulty
withheld material ex
tors
finding people willing
evidence,
culpatory
violating
pro
the due
cooperate. Only one witness to the attack
cess clause of the fourteenth amendment.
than
other
Carabez testified for the prose-
that, mat-
concluded
witness,
office.
Maria Balderra-
cution, and that
said,
Balderrama later
she had
(or
identify
ter what
unwilling) to
ma, was unable
immediately after
Balderrama,
exculpated
12 at not
who was
shooter.
that,
result,
as a
leaving the
testified
shooting
time of
its constitu-
had not violated
prosecution
on the street
playing
had been
that she
*3
unpublished opin-
In an
obligation.
corroborat-
tional
erupted. She
affray
the
it,
ion,
that
appeals
the court of
observed
attempted
the
description
ed Carabez’s
too,
from
Gutierrez,
to draw inferences
was entitled
descending on
the mob
escape,
record,
agreed
and it
with the trial
But when the
murder.
beating,
the
of Maria Balderra-
details,
judge that “the content
all Balderra-
identifying
for
asked
the
regarding
ma’s
the shooter was
say was that
ma would
Attorneys
short,”
conduct of the assistant State’s
and “not
not that
that tall and
“not
Then
highly
in
case
incredible.”
skinny.”
[is]
viewed
this
that
She
fat and not
that
that,
if
added
even
the
court
identify anyone. She
lineup
a
but did
statement were
wearing. Balderrama’s
slayer was
what the
did not recall
true,
not have
change of mind would
examination,
her
Balderrama stated
cross
On
evidence, be-
exculpatory
at the
material
good
a
look
been
get
that she did
seeing the
had denied
cause Balderrama
face. The detec-
did not see his
killer and
denying Mendiola’s
that
shooter’s face. When
lineup testified
conducted the
tive who
the district court concluded
very petition,
appeared to be
had
the materiali-
court’s decision on
the line-
the state
even to view
and hesitated
scared
an unreasonable
ty
represent
did not
people
the
issue
was assured that
until she
up
clearly
federal
application of
established
assurance
not see her—an
lineup
the
could
2254(d)(1),
law,
making-
§
see 28 U.S.C.
to the trial.
obviously
apply
did
unavailable.
collateral relief
federal
filed
sentencing, Mendiola
day
On
principal
trial. The
for a new
a motion
prosecu
If Balderrama told
transcript
that motion was
support for
that Mendiola
that she was confident
tor
made to
that Balderrama
a statement
Gutierrez,
the critical
then
did not shoot
office, two weeks
lawyer, in his
Mendiola’s
“there
a reasonable
whether
question is
told counsel
the trial. Balderrama
after
information would
this
probability”
that, during
questions
response
leading
of the trial.
the outcome
have altered
she came
believe
her time on the
Greene,
Strickler
Ac-
was not the shooter.
that Mendiola
(1999); Kyles
1936,
Murphy, tion for a writ of
corpus by
habeas
(en banc), reversed
grounds,
on other
person in custody pursuant to the judg-
U.S.
ment of a State
a determination of
—
(1997). See also
v. Taylor,
Williams
a factual
by
issue made
a State court
-,
1495, 1518-23,
U.S.
presumed
shall be
to be correct. The
(2000);
Barnett,
Gardner v.
applicant shall have the burden of rebut-
(7th Cir.1999) (en banc);
But we need not rest on major that This a is difference between ground, because both the trial 2254(e), § court and part of the Antiterrorism and appellate the state court found that Bal Effective Death Penalty Act of and derrama did not tell U.S.C.(1994 predecessor ed.) its 2254(d). had come to believe that § Mendiola did required former statute not shoot Gutierrez. The court’s deference to “a determination after a hear- statement —that “the content of Maria ing Bal on the merits of a factual issue” unless derrama’s regarding eight one of conditions satisfied. Sec- conduct of 2254(e), contrast, assistant State’s Attor tion by any omits men- neys in this highly case [is] incredible”— tion a hearing. aIf state court’s finding not, it, air, Mendiola would have rests on thin petitioner will have throw-away line. It was an independent little difficulty satisfying the standards for decision, ground of § offered after the relief under 2254. But if the state court’s record, of recantations is sensible— even Disbelief by the finding supported just formality because of and the merits “hearing though not and the presence litigants, issue”, presumed it factual then [the] to hew judge of a induce witnesses gaze correct. closely they than do truth more ap finding for the Plenty support private attempting speaking when judge The trial record. in this parent losing advocate. Dis- appease side’s trial, testimony at Balderrama’s heard wit- protects is reasonable because belief judge for the ample basis supplied which promotes truth- nesses after thus story. later inconsistent to disbelieve Hysler See v. testimony during trial. ful Provost, 969 F.2d States See United Florida, 411, 422, 62 (8th Cir.1992). United States Cf. 619-20 fall witnesses L.Ed. 932 Some Cir.1999) Stewart, F.3d 984 persuasive perhaps prey influences — (statements plead oath under made asking lead- of a skilled advocate influence conclusive, ing guilty wholesome ing questions, perhaps the less a defendant’s reject hearing without a See may of the defendant’s friends. influence statements Federal Practice Wright, that his sworn Alan later contention Charles (2d ed.1982). untrue). § Both Procedure 557.1 were at work with Balderrama. Why may little sense. have been lawyer made Mendiola’s *5 Kings the Latin for a reason. sing People fear and then testify as she did would she recantations, judges pro- By disbelieving leaving immediately after song a different such as Balderrama. witnesses tect not judge observed the stand? trial obtaining a recantation Knowledge that prosecutors. also only Balderrama but trial affect the not outcome will post-trial mo response Mendiola’s likely defendants less makes tion, that Balder- both denied prosecutors after friends will witnesses their hound that she had conclud rama had told them pur- who are nonetheless trial. Witnesses did not shoot Gutierrez. ed that Mendiola by telling may protect themselves sued under oath prosecutor testified Neither (and lawyers) what friends defendants’ (and hear by relayed one his recollections hear, recanta- knowing that they want to other), repu- both had but say through verdict jeopardize an accurate will not tion truth. telling the tational interests already delivered. prose dealing with contentions When (one judge, three judges chal Four state peremptory have exercised cutors Balder- chose to believe judges) appellate are entitled to judges lenges improperly, over Balderra- the witness stand rama on without explanations prosecutors’ credit lawyer, and in the office of Mendiola’s ma Purkett v. under oath. placing them rather of the bar two members to believe Elem, by a fearful to credit recantation than (1995); v. New Hernandez L.Ed.2d 884 un- has not been That decision witness. York, evidence, convincing so by clear and dercut greater see no We is judgment of district hearing required is why a formal reason subject a witness told is what AFFIRMED. posttrial If Balderrama’s prosecutor. ROVNER, Circuit ILANA DIAMOND correct, prosecutors statement is then dissenting. Judge, jeop and careers their law licenses put reason; judge corpus habeas ardy good obligation for no It is our court) (and courts, up enti not to clean were appellate to the state state’s defer case in this Balder- The trial them. to think it more plausible tled he record when hole post-trial gaping left a until rama did recant lied that Maria Balderrama lawyer. “found” interview with Mendiola’s suppressing she accused of face. She was trembling when she truth, bothering lineup. evidence told the viewed the testify. to hear one them either Rather you, What she tells gentle- ladies and men, remanding evidentiary hearing, than for an supports everything that Francis- said, the Illinois court compounded co Carabez everything he said problem when, “drawing] happened. inferences about what record,” of fact from the it dismissed Bal- added). F141-42 (emphasis See also id. at derrama’s “highly (“And you F149 know Francisco Carabez my incredible.” Today, colleagues con- telling the truth supported it’s because done, clude that no harm was but by case.”); all of the evidence in this F197 entirely that it is an approach “sensible” (“Two witnesses, Torres, credible Angelo disbelieve recantations as a enough. Maria [sic] Balderamma principle, matter of whatever the circum- enough.”). stances. See ante 593. Their reasoning Balderrama’s sworn summarily foreclose relief not was as testimony material as her at trial. Mendiola, any but to defendant convict- alleges What she is that while she was on eyewitness ed on the of an the witness she realized that Mendi- recants, join later and I cannot it. ola was not person who shot Gutierrez. (whom recognized
She Mendiola she did name) not know from neighborhood, where she had seen him eating out with Maria key prosecu- Balderrama was a parents on one occasion and in church tion witness impartiality prose- whose on two others. C117-18. And she was trumpeted cutors in closing arguments. “positive” that Mendiola was not the shoot- did She identify as the man er, because Mendiola did not have a pony- *6 Gutierrez, who shot Manuel but she cor- tail, skin, did not have dark and was taller testimony roborated the of the one and person than the she had seen kill Gutier- only witness who did—Francisco Carabez. rez. C118-19. goes on to prosecutor’s The words own reveal how allege that immediately after she testified important she to the was State’s case: (and while the trial underway), was still approached she prosecutors one of the have, you What else do ladies and repeatedly told him that “[t]hat not the gentlemen? Maria Balderamma [sic]. guy” who shot Gutierrez. C123. He in- Let’s talk about Maria Balderamma [sic] structed her say nothing to either Men- for a second. Thirteen-year-old girl that attorneys diola’s parents, however, or his came and told what you she saw. She over, and until the trial was she heeded saw and she the victim begging heard that instruction. C123-24.
for his life. you She tells he’s laying ground there on the saying, I’m not If truth, Balderrama is telling the the I’m nothing, me, not nothing, don’t shoot suppressed exculpatory evi- please says don’t shoot. She the man dence in Brady violation of Maryland, v. took gun, 83, out the fired gun 1194, the numer- 373 U.S. (1963).
ous times. And what’s her description By account, got Balderrama’s of tall, the shooter? Not too enough too of a look at the shooter and had No, short. he really Was fat? enough fat. of a acquaintance visual with Men- No, Was he thin? not really thin. Not diola to know that he was not the killer. what the King members, Latin the de- Her testimony to that effect would have witnesses, you fense tell concocted de- left the State the corroboration of short, fense of some guy. fat Maria Carabez’s testimony that it so emphasized Balderamma right arguments [sic] across the jury. That corrobora- street. She says she couldn’t see his tion cannot be dismissed as cumulative or
595 a conviction hesitate to reverse accounts, would events the By all immaterial. the other testimony of resting on the murder of Gutierrez in the culminated that chaotic environ- eyewitnesses.... in a very quickly unfolded evi- physical Because there was ment. 21, 2402 n. 96 Id. at 112 n. S.Ct. murder, Mendiola implicating dence Comment, Maryland and Brady v. quoting entirely almost case rested State’s Disclose, 40 U. Duty Prosecutor’s The mea- great testimony eyewitness —and is almost 125 This L.Rev. Chi. wit- single of a upon sure have here. One of exactly the situation we only ness, Balderrama was Carabez. were central to eyewitnesses who two could confirm witness prosecution pros- told the purportedly case the State’s what occurred account of Carabez’s assailant, Mendiola ecutor who shot person description of kept exculpatory information (Torres testify only as could Gutierrez. con- after he was the defense until from him.) was, also told She as Carabez what In fact that State view the victed. very one of acknowledge, colleagues my the tes- upon Balderrama bolster relied credibility was unim- whose witnesses few iden- who could timony only of the Ante at 592. peached. killer, her statement tify v. United States need look to One credited) (if proba- “a creates reasonable 427 U.S. Agurs, that, disclosed bility had the evidence been (1976), for confirmation L.Ed.2d defense, proceeding the result in Balderrama’s assertions v. Strickler have been different.” Agurs, material. are 1936, 1948, Greene, S.Ct. prosecutor’s Court held that Supreme (1999) (quoting United in vio- exculpatory evidence suppression 667, 682, 105 Bagley, U.S. States “if demand a new Brady will lation of (1985)); 3375, 3383, 87 L.Ed.2d S.Ct. a reasonable evidence creates omitted 419, 433-34, 115 Kyles Whitley, Id. exist[.]” did not otherwise doubt (1995).1 131 L.Ed.2d By way of illus- 2402. 96 S.Ct. at tration, remarked: the Court eyewit- If, example, one course, whether key question, prosecu- crime had told to a nesses assertions definitely not the defendant was
tor
*7
in
transpired
But for what
credible.
if this statement
perpetrator
its
point
need to
case,
be no
defense,
there would
no court
to the
disclosed
824,
Miller,
843-47
445,
F.Supp.2d
v.
92
See,
Watkins
S.Ct. at
Kyles,
U.S. at
115
e.g.,
514
J.) (habeas
(Hamilton,
corpus
(S.D.Ind.2000)
("the
eye
impeachment of one
effective
1571
disclose,
prosecution failed to
granted
though
where
trial even
directly
can call for
new
alia,
who ob
eyewitness
existence
inter
of
to others
extend
attack does not
Alabama,
at time
victim
of
abduction
murder
....”)
served
(citing Agurs);
v.
Cannon
gave
who
Cir.1977) (new
alibi and
1211,
(5th
defendant had solid
1215-16
F.2d
558
could not have
description
of abductor
government failed
dis
where
ordered
trial
Sheehan,
defendant);
States
United
been
someone
eyewitness who had identified
close
1003,
(D.Mass.1977)
F.Supp.
442
1008-09
perpetrator), cert. de
as
than defendant
other
1281,
(new
government failed
1087,
nied,
trial ordered where
55
98 S.Ct.
U.S.
434
eyewitness who saw
existence of
(1978);
Wainwright,
disclose
Jackson
L.Ed.2d
(new
and who
Cir.1968)
robbers
288,
(5th
faces of bank
unmasked
298-99
F.2d
of the
identify
as one
defendant
unable
prosecution failed to dis
ordered where
robbers);
F.Supp.
Kapatos, 208
In re
eyewitness who
of
pre-trial statements
close
(habeas corpus grant
(S.D.N.Y.1962)
888-89
lighter complexion than
assailant had
said
State failed
where
defendant);
ed and new trial ordered
v. Wil
ex rel. Meers
United States
jury
grand
(new
(2d Cir.1964)
pre-trial statement
kins,
disclose
138-40
that de
indicated
who
of witness
dis
prosecution failed to
where
ordered
he saw
of two men
was not one
police
fendant
told
eyewitnesses
close
murder).
fleeing scene of
robbery);
participate in
did not
defendant
require
sary,
out that
assessments
an
the trial
simply “found” that
evidentiary hearing.
honor that
lying.
We
rule Balderrama was
piece
The sole
probably
than a
more
hundred times a
evidence that
actually
the court
had before
year in reviewing summary judgment rul
it
that point
was Balderrama’s sworn
ings
that,
alone. See Anderson v. Liberty
Beyond
Lob
statement.
an
Inc.,
242, 255,
by,
U.S.
106 S.Ct.
out-of-court verbal assurance from the
(1986).
2513,
What Mendiola Mr. Mendiola asked to, was not and what he the shooter. I find that was entitled was a brief conver- exist; sation did not evidentiary hearing so that Maria that the court could Balder- young amma lady [sic] determine from the com- whether Balderrama or her, munity for whatever telling the truth. motivated Balder- statement, made in fact a rama’s false statement which Mendiola submit- attorneys ted in defense support request, presence of his laid more court reporter post-trial. than adequate foundation for That asser- the hear- tion due ing. oath, to the fact I find Mr. Her statement was Berlin to under outstanding and it forth in credible why set detail when and state’s attor- ney. in any way realized that He’s not person Mendiola was not the encroached Gutierrez, Brady she had seen nondisclosure under Ma- shoot as well versus ryland. the circumstances and content of the con- versation in which she disclosed this infor- G18-19. prosecutor. mation to the *8 Nothing more extraordinary This was an turn of required to demonstrate that an evi- events. having Without heard a single dentiary hearing necessary. testify, witness solely and based on the
But twenty rather than devote minutes prosecutor unsworn assurances aof or so to such a hearing, or to articulate court,2 was not even before the the court why hearing sound reasons a simply was unneces- prosecution’s took the word and "Hearsay testimony 1368, 2. presumptively 37, 1420, § § unreli at at Trials at Common Law (rev. ed.1974), op able under the common law because the 251 On Mccormick Evi- posing party 245, (Edward opportunity ed., § Cleary cross-ex at 728 W. dence ed.1984). amine and test the prosecutor's declarant's truthfulness 3d The out-of-court under oath before the factfinder.” United statement in this case bears none of the indi- Shukri, 412, (7th States v. 417 reliability Cir. cia of that would overcome this 2000), citing See, Wigmore, 804(b). 5 John H. presumption. e.g., Fed.R.Evid. Evidence in
597
least,
Balderrama tes
had heard
judge, at
say
It did
a liar.
Balderrama
labeled
and,
the confines of the
within
tify at trial
was incredi-
statement
post-trial
at
courtroom,
law,
say
prosecutors
had seen
it did not
matter of
as a
ble
appellate
at
The
simply
immaterial.
It
ante
593.
work. See
her statement
her,
any
contrast,
a cold record
had
without
not to believe
chose
credi-
making
such
cred
normally attends
It
no business
it.
process
before
Cabana v.
ibility
See
bility determinations.
determinations.
376,
5,
Bullock,
n.
388
474 U.S.
(1986).4
5,
704
689,
n.
88 L.Ed.2d
698
say, perhaps,
court meant
impropriety of What
blatant
with the
Faced
determination,
it “found”
when
court’s
incredible,” was
“highly
in
felt the need
to be
Court
Appellate
Illinois
of fact could
a factfinder
finder
to become
that no reasonable
instance
the first
draw
may
court
was incredi
it —that her statement
appellate
believe
“[A]n
itself.
See,
before
e.g.,
from the record
law.
Anderson
of fact
a
of
inferences
ble as matter
Men
People
575,
v.
N.C.,
at
it,”
proclaimed.
470 U.S.
City,
the court
v. Bessemer
1-95-2874, Order,
(Ill.App.
at 20
diola,
1512;
No.
Kidd v. Illinois State
“Order”),
1997) (hereinafter,
citing
21,
(7th
July
1084,
Cir.
Police,
1095-96
F.3d
167
Sup.Ct.
366(a)(4).3 And without
1999).
Rule
To accuse a
ill.
fly either.
That won’t
indeed,
any explana
further
misconduct,
ado —
announced:
simply
court
tion at all —the
None of us wants
did,
matter.
grave
is a
of Maria Balderra-
the content
find
“We
court would
that an officer of the
to believe
regarding the
ma’s
in
keep exculpatory
instruct
Attorneys
State’s
conduct of the assistant
beyond
it
But is
to herself.
formation
Or
incredible.”
highly
case
Regrettably,
possibility?
realm of
der at 20.
Blackburn, 571 F.2d
Lockett v.
not. See
(State
Cir.1978)
(5th
encouraged and
309
even less
finding is
court’s
who wit-
informants
confidential
helped
The trial
trial court’s.
than the
sound
Thus,
2254(e)(1).
for ex
at 592.
§
See ante
variety
grants
supreme
rule
3. The
court
appellate court examines
reviewing
ample,
a state
discretionary powers to a
court
when
deems
the trial
terms as it
determines that
"on such
Illinois to exercise
record
authority
infer
including
impermissible
to "draw
factor
just,”
rely
did not
366(a)(4).
ap
defendant,
Illinois
Wainwright
fact.” Rule
v.
ences of
sentencing the
when
authority
378,
78,
to this
pellate
85,
Goode,
resort
382-
S.Ct.
U.S.
104
464
record
finding that the facts of
they
amake
(1983),
83,
gave
a witness
187
78 L.Ed.2d
Marriage
Ben
e.g.,
virtually compel,
In re
accurate,
description of the defen
detailed
an
dant,
308,
828,
nett,
587
Ill.App.3d
167 Ill.Dec.
225
597,
Mata,
591,
U.S.
102
455
Sumner
577,
(1992), and likewise
579-81
N.E.2d
(1982)
(per
480
71 L.Ed.2d
S.Ct.
assertion that
they reject a factual
II”),
("Sumner
curiam)
the record
or that
record, e.g., In re
with the
wholly inconsistent
racial discrimina
not reveal
or does
reveals
992,
Johnson,
Ill.App.3d
151
206
Marriage of
Rees,
jurors, Mitchell
selection
tion
162,
(1990).
891,
163-64
565 N.E.2d
Ill.Dec.
Cir.1997),
571,
rt.
576-77
114
ce
however,
rule,
Nothing
authorizes
denied,
140
522 U.S.
swearing
genuine
reviewing
resolve
(1998),
assessment
we owe that
L.Ed.2d
See,
v. Illinois Human
e.g., Zaderaka
contest.
II,
at 597-
See Sumner
deference.
Com’n,
137 Ill.Dec.
Ill.2d
Rights
I,
1307;
Sumner
S.Ct. at
N.E.2d
546-47,
presump
S.Ct. at 769. But
appel
away when the
falls
tion of correctness
*9
appeUate
have
agree
I
4. Of course
factfinding
engages in
late court
appropriate
authority
ability
under
and
process that render
or
of information
sort
make factual determina
circumstances to
Making a credi
reliable.
factual assessments
539, 546-47,
Mata,
tions,
449 U.S.
Sumner
paper record
bility
based on
assessment
(1981)
722
66 L.Ed.2d
S.Ct.
101
Bullock, 474 U.S.
example.
is a classic
alone
I”),
("Sumner
such determinations
and
5,
correct,
at 698
106 S.Ct.
n.
at 388
28 U.S.C.
n.
be
presumed
are
assessment,
ality
nessed defendant’s sale of heroin to under
and sustained the state
trial,
agent
cover
to leave state before
court judgment on that basis. Mendiola v.
rendering defendant unable to subpoena Carter,
3183,
748276,
No. 98 C
1998WL
them);
also, e.g.,
see
United States v.
(N.D.Ill.
22)
J.).
(Kocoras,
*8
Oct.
On
(N.D.Ill.1993) (As
Boyd,
F.Supp.
however,
inspection,
closer
appellate
J.),
pen,
aff'd,
Cir.1995);
4. States v. United time. See testify a second (7th Cir.1999), Stewart, to rescue effort colleagues’ own My Higgins v. 593; see also at in cited ante fares no better finding state courts’ 951, 954, 955 believe, Mississippi I makes important respect, one Cir.2000). there Declaring first that worse. matters sense, however. recantation this a true record for in the “[p]lenty support” implicated trial, Balderrama never At Balderra- assessment of courts’ the state shot Gutier person off a Mendiola they tick credibility, at ante ma’s sequence Instead, view, she recounted rez. which, in their of circumstances list shooting culminated events that her suggest of the shoot description factors, vague gave false, of these None ante post-trial state respect does her er. however, trial court’s decision supports the with substance ment conflict liar as a Balderrama dismiss certainly does testimony. The statement Second, my col- hearing. holding a first did convey information sweeping declaration make the leagues every virtually but in not disclose is sensible” of recantations “[disbelief she was instance, was information truthful “promotes because never at trial. She about never Maybe, asked at 593. Ante during trial.” the shooter whether asked, example, all recantations not. But not maybe *11 hair in ponytail. “reputational his She was never wore interests in telling the truth” (ante 593) taller, shorter, appeared asked if Mendiola makes insufficient room for darker, lighter Yes, or than the the real prosecutors, shooter. She world. like oth- asked, fact, in was never whether she attorneys, rec- er have preserv- an interest in ognized all. posttrial ing credibility; Mendiola at Her their confessing small sins statement thus stands contrast to a true serves that interest. But I hardly think it recantation, which often likely amounts to con- that a prosecutor actually in- perjury. To the extent it fession re- structs a to suppress exculpatory quires explanation, gives she it. going information is to be forthcoming it, about when her word against My colleagues also suggest Balder- his. If prosecutor indeed a has engaged in rama’s “made little sense.” the kind of serious misconduct that Bal- “Why Ante at 593. testify would she as she alleges, derrama arguably it would not be did,” ask, they sing “and then a different “reputational his interest” to acknowl- song immediately leaving after edge impropriety. Confessing to con- Id. (emphasis original). stand?” IAs duct that amounts to the obstruction of just however, have explained, Balderra- justice will not do much to pros- advance a ma’s not amount does ecutor’s career. might Whatever we think song to a different so much anas addition- abstract, important point is that discloses, al verse. So far as the record we know that prosecutors some do engage when Balderrama took the witness (see, in this sort of e.g., misconduct cases thought no one that she could or would 597-98), cited supra at they and that don’t identify Mendiola as assailant. Gutierrez’s always tell truth about it. Balderra- picked She had not Mendiola out of the ma’s allegations are within the realm of (see B116), line-up she had not seen the possibility. circumstances, Under the (B115-16), shooter’s face could judge obligated to hear both Bal- describe the shooter in general terms derrama and the testify before B124). (B116, Her own realization that deciding who was telling the truth. (as recognize she did someone Finally, suggestion there are shooter) other than the did occur until “sensible” policy reasons to disbelieve re- she on the witness C119. Be- stand. (ante categorically 593) cantations cause no one else was the at that wiser bothersome. Recantations should be point, she was not asked while on the healthy viewed skepticism, with dose of whether recognized stand she him. The for all my colleagues reasons have (allegedly) fact she spoke up immedi- know, cited. But as we witnesses don’t ately after she finished if testifying any- always wait until they leave the thing lends to account courtroom to dissemble. Just as a witness my colleagues events. Would think her may recant her appease later to allegations more if credible she had waited allies, may defendant also (or two) a month or year or before instance, lie in the perhaps appease first approaching prosecutor? prosecution, protect else, someone The notion that the trial judge enti- or short, herself. exculpate the re- tled to prosecutor’s unsworn, credit cantation occasion represents hearsay denial because prosecutors have Deciding truth.5 when that is so is Illinoisans will no doubt recall Cathleen courts to People vacate his conviction. See Webb, Dotson, Crowell who stirred a con- Ill.App.3d nationwide 114 Ill.Dec. troversy however, 1985 when she recanted her Notably, N.E.2d 718 charge Gary kidnapped Dotson had judge the trial in Dotson at least heard Webb's raped her in 1977. Her led the recantation recantation on the reject- witness stand before sentence, ing Governor commute Dotson’s al- it as See id. at incredible. 719. Years though later, initially it did persuade the Illinois testing DNA ruled out Dotson as give Men- have refused the state courts task, and when easy means change of diola. the witness’s *12 consideration, judgment his due heart dissent. respectfully I But when to our deference. entitled. out recantation rejects a plausible at-
hand, any process of the assessment, we a valid
tends To finding respect. the court’s
owe determination, as summary
sustain such unnecessarily exalt to today, is
dowe pro- over due of state sovereignty OTO, Estate of Executor Yoshio of truth. pursuit cess Oto, Plaintiff-Appellee, Noboru note in my judges, brothers Four state LIFE INSURANCE METROPOLITAN Balder- to disbelieve closing, have chosen COMPANY, Defendant/Third- exonerating rama’s Party Plaintiff, all due re- Ante 593. With Mendiola. the Illinois my colleagues to spect Beverley, Third-Party Ashby if of them not matter courts, it would Defendant/Appellant. actually so, not one has since done say. And Balderrama to what heard 99-3112. No. and that Balderrama given Appeals, States Court whether United who know people are true, Circuit. cannot Seventh allegations convincing clear and marshal possibly 1, 2000 Argued June the state to show that needed evidence Aug. Decided (see wrong credibility assessment is courts’ 593) until he is unless and ante 21, 2000. Sept. Denied Rehearing on the put the chance stand. mistake the trial court’s gravity lengths to which by the is demonstrated court, now this Illinois it. compensate gone have job simply done the trial
Had hearing that evidentiary conducted an him to whether decide have enabled
would is truth- post-trial statement Instead, today. here
ful, we prop up struggling ourselves find
we of smoke fashioned
credibility assessments province It is not our mirrors. courts, is it but neither state
second-guess mistakes. over their gloss province
our dis- be remanded case should
This evidentiary hearing court for the
trict O’Connor, State dis- Matt against him. See found on biological material the source case, Chicago Aug. rape Dotson was or- misses undergarments, a Tribune, new Webb's charges at 1. dropped the State dered and the