KYLES v. WHITLEY, WARDEN
No. 93-7927
Supreme Court of the United States
Argued November 7, 1994—Decided April 19, 1995
514 U.S. 419
James S. Liebman argued the cause for petitioner. On the briefs were George W. Healy III, Nicholas J. Trenticosta, Denise Leboeuf, and Gerard A. Rault, Jr.
Jack Peebles argued the cause for respondent. With him on the brief was Harry F. Connick.
JUSTICE SOUTER delivered the opinion of the Court.
After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state‘s obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor‘s attention. Because the net effect of the evidence withheld by the State in this case raises
I
Following the mistrial when the jury was unable to reach a verdict, Kyles‘s subsequent conviction and sentence of death were affirmed on direct appeal. State v. Kyles, 513 So. 2d 265 (La. 1987), cert. denied, 486 U. S. 1027 (1988). On state collateral review, the trial court denied relief, but the Supreme Court of Louisiana remanded for an evidentiary hearing on Kyles‘s claims of newly discovered evidence. During this state-court proceeding, the defense was first able to present certain evidence, favorable to Kyles, that the State had failed to disclose before or during trial. The state trial court nevertheless denied relief, and the State Supreme Court denied Kyles‘s application for discretionary review. State ex rel. Kyles v. Butler, 566 So. 2d 386 (La. 1990).
Kyles then filed a petition for habeas corpus in the United States District Court for the Eastern District of Louisiana, which denied the petition. The Court of Appeals for the Fifth Circuit affirmed by a divided vote. 5 F. 3d 806 (1993). As we explain, infra, at 440-441, there is reason to question whether the Court of Appeals evaluated the significance of undisclosed evidence under the correct standard. Because “[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case,” Burger v. Kemp, 483 U. S. 776, 785 (1987),1 we granted certiorari, 511 U. S. 1051 (1994), and now reverse.
A
The record indicates that, at about 2:20 p.m. on Thursday, September 20, 1984, 60-year-old Dolores Dye left the Schwegmann Brothers’ store (Schwegmann‘s) on Old Gentilly Road in New Orleans after doing some food shopping. As she put her grocery bags into the trunk of her red Ford LTD, a man accosted her and after a short struggle drew a revolver, fired into her left temple, and killed her. The gunman took Dye‘s keys and drove away in the LTD.
New Orleans police took statements from six eyewitnesses,2 who offered various descriptions of the gunman. They agreed that he was a black man, and four of them said that he had braided hair. The witnesses differed significantly, however, in their descriptions of height, age, weight, build, and hair length. Two reported seeing a man of 17 or 18, while another described the gunman as looking as old as 28. One witness described him as 5‘4” or 5‘5“, medium build, 140-150 pounds; another described the man as slim and close to six feet. One witness said he had a mustache; none of the others spoke of any facial hair at all. One witness said the murderer had shoulder-length hair; another described the hair as “short.”
Since the police believed the killer might have driven his own car to Schwegmann‘s and left it there when he drove off in Dye‘s LTD, they recorded the license numbers of the cars remaining in the parking lots around the store at 9:15 p.m. on the evening of the murder. Matching these numbers with registration records produced the names and addresses of the owners of the cars, with a notation of any owner‘s police
At 5:30 p.m., on September 22, a man identifying himself as James Joseph called the police and reported that on the day of the murder he had bought a red Thunderbird from a friend named Curtis, whom he later identified as petitioner, Curtis Kyles. He said that he had subsequently read about Dye‘s murder in the newspapers and feared that the car he purchased was the victim‘s. He agreed to meet with the police.
A few hours later, the informant met New Orleans Detective John Miller, who was wired with a hidden body microphone, through which the ensuing conversation was recorded. See App. 221-257 (transcript). The informant now said his name was Joseph Banks and that he was called Beanie. His actual name was Joseph Wallace.3
His story, as well as his name, had changed since his earlier call. In place of his original account of buying a Thunderbird from Kyles on Thursday, Beanie told Miller that he had not seen Kyles at all on Thursday, id., at 249-250, and had bought a red LTD the previous day, Friday, id., at 221-222, 225. Beanie led Miller to the parking lot of a nearby bar, where he had left the red LTD, later identified as Dye‘s.
Beanie told Miller that he lived with Kyles‘s brother-in-law (later identified as Johnny Burns),4 whom Beanie repeatedly called his “partner.” Id., at 221. Beanie described Kyles as slim, about 6-feet tall, 24 or 25 years old, with a “bush” hairstyle. Id., at 226, 252. When asked if Kyles ever wore
During the conversation, Beanie repeatedly expressed concern that he might himself be a suspect in the murder. He explained that he had been seen driving Dye‘s car on Friday evening in the French Quarter, admitted that he had changed its license plates, and worried that he “could have been charged” with the murder on the basis of his possession of the LTD. Id., at 231, 246, 250. He asked if he would be put in jail. Id., at 235, 246. Miller acknowledged that Beanie‘s possession of the car would have looked suspicious, id., at 247, but reassured him that he “did not do anything wrong,” id., at 235.
Beanie seemed eager to cast suspicion on Kyles, who allegedly made his living by “robbing people,” and had tried to kill Beanie at some prior time. Id., at 228, 245, 251. Beanie said that Kyles regularly carried two pistols, a .38 and a .32, and that if the police could “set him up good,” they could “get that same gun” used to kill Dye. Id., at 228-229. Beanie rode with Miller and Miller‘s supervisor, Sgt. James Eaton, in an unmarked squad car to Desire Street, where he pointed out the building containing Kyles‘s apartment. Id., at 244-246.
Beanie told the officers that after he bought the car, he and his “partner” (Burns) drove Kyles to Schwegmann‘s about 9 p.m. on Friday evening to pick up Kyles‘s car, described as an orange four-door Ford.5 Id., at 221, 223, 231-232, 242. When asked where Kyles‘s car had been parked, Beanie replied that it had been “[o]n the same side [of the lot] where the woman was killed at.” Id., at 231. The officers later drove Beanie to Schwegmann‘s, where he indicated the space where he claimed Kyles‘s car had been parked. Beanie went on to say that when he and Burns had brought Kyles to pick
After the visit to Schwegmann‘s, Eaton and Miller took Beanie to a police station where Miller interviewed him again on the record, which was transcribed and signed by Beanie, using his alias “Joseph Banks.” See id., at 214-220. This statement, Beanie‘s third (the telephone call being the first, then the recorded conversation), repeats some of the essentials of the second one: that Beanie had purchased a red Ford LTD from Kyles for $400 on Friday evening; that Kyles had his hair “combed out” at the time of the sale; and that Kyles carried a .32 and a .38 with him “all the time.”
Portions of the third statement, however, embellished or contradicted Beanie‘s preceding story and were even internally inconsistent. Beanie reported that after the sale, he and Kyles unloaded Schwegmann‘s grocery bags from the trunk and back seat of the LTD and placed them in Kyles‘s own car. Beanie said that Kyles took a brown purse from the front seat of the LTD and that they then drove in separate cars to Kyles‘s apartment, where they unloaded the groceries. Id., at 216-217. Beanie also claimed that, a few hours later, he and his “partner” Burns went with Kyles to Schwegmann‘s, where they recovered Kyles‘s car and a “big brown pocket book” from “next to a building.” Id., at 218. Beanie did not explain how Kyles could have picked up his car and recovered the purse at Schwegmann‘s, after Beanie
Although the police did not thereafter put Kyles under surveillance, Tr. 94 (Dec. 6, 1984), they learned about events at his apartment from Beanie, who went there twice on Sunday. According to a fourth statement by Beanie, this one given to the chief prosecutor in November (between the first and second trials), he first went to the apartment about 2 p.m., after a telephone conversation with a police officer who asked whether Kyles had the gun that was used to kill Dye. Beanie stayed in Kyles‘s apartment until about 5 p.m., when he left to call Detective John Miller. Then he returned about 7 p.m. and stayed until about 9:30 p.m., when he left to meet Miller, who also asked about the gun. According to this fourth statement, Beanie “rode around” with Miller until 3 a.m. on Monday, September 24. Sometime during those same early morning hours, detectives were sent at Sgt. Eaton‘s behest to pick up the rubbish outside Kyles‘s building. As Sgt. Eaton wrote in an interoffice memorandum, he had “reason to believe the victims [sic] personal papers and the Schwegmann‘s bags will be in the trash.” Record, Defendant‘s Exh. 17.
At 10:40 a.m., Kyles was arrested as he left the apartment, which was then searched under a warrant. Behind the kitchen stove, the police found a .32-caliber revolver containing five live rounds and one spent cartridge. Ballistics tests later showed that this pistol was used to murder Dye. In a wardrobe in a hallway leading to the kitchen, the officers found a homemade shoulder holster that fit the murder weapon. In a bedroom dresser drawer, they discovered two boxes of ammunition, one containing several .32-caliber rounds of the same brand as those found in the pistol. Back in the kitchen, various cans of cat and dog food, some of them of the brands Dye typically purchased, were found in Schwegmann‘s sacks. No other groceries were identified as
The gun, the LTD, the purse, and the cans of pet food were dusted for fingerprints. The gun had been wiped clean. Several prints were found on the purse and on the LTD, but none was identified as Kyles‘s. Dye‘s prints were not found on any of the cans of pet food. Kyles‘s prints were found, however, on a small piece of paper taken from the front passenger-side floorboard of the LTD. The crime laboratory recorded the paper as a Schwegmann‘s sales slip, but without noting what had been printed on it, which was obliterated in the chemical process of lifting the fingerprints. A second Schwegmann‘s receipt was found in the trunk of the LTD, but Kyles‘s prints were not found on it. Beanie‘s fingerprints were not compared to any of the fingerprints found. Tr. 97 (Dec. 6, 1984).
The lead detective on the case, John Dillman, put together a photo lineup that included a photograph of Kyles (but not of Beanie) and showed the array to five of the six eyewitnesses who had given statements. Three of them picked the photograph of Kyles; the other two could not confidently identify Kyles as Dye‘s assailant.
B
Kyles was indicted for first-degree murder. Before trial, his counsel filed a lengthy motion for disclosure by the State of any exculpatory or impeachment evidence. The prosecution responded that there was “no exculpatory evidence of any nature,” despite the government‘s knowledge of the following evidentiary items: (1) the six contemporaneous eyewitness statements taken by police following the murder; (2) records of Beanie‘s initial call to the police; (3) the tape recording of the Saturday conversation between Beanie and officers Eaton and Miller; (4) the typed and signed statement
At the first trial, in November, the heart of the State‘s case was eyewitness testimony from four people who were at the scene of the crime (three of whom had previously picked Kyles from the photo lineup). Kyles maintained his innocence, offered supporting witnesses, and supplied an alibi that he had been picking up his children from school at the time of the murder. The theory of the defense was that Kyles had been framed by Beanie, who had planted evidence in Kyles‘s apartment and his rubbish for the purposes of shifting suspicion away from himself, removing an impediment to romance with Pinky Burns, and obtaining reward money. Beanie did not testify as a witness for either the defense or the prosecution.
Because the State withheld evidence, its case was much stronger, and the defense case much weaker, than the full facts would have suggested. Even so, after four hours of deliberation, the jury became deadlocked on the issue of guilt, and a mistrial was declared.
After the mistrial, the chief trial prosecutor, Cliff Strider, interviewed Beanie. See App. 258-262 (notes of interview). Strider‘s notes show that Beanie again changed important elements of his story. He said that he went with Kyles to retrieve Kyles‘s car from the Schwegmann‘s lot on Thursday, the day of the murder, at some time between 5 and 7:30 p.m., not on Friday, at 9 p.m., as he had said in his second and third statements. (Indeed, in his second statement, Beanie said that he had not seen Kyles at all on Thursday. Id., at
In December 1984, Kyles was tried a second time. Again, the heart of the State‘s case was the testimony of four eyewitnesses who positively identified Kyles in front of the jury. The prosecution also offered a blown-up photograph taken at the crime scene soon after the murder, on the basis of which the prosecutors argued that a seemingly two-toned car in the background of the photograph was Kyles‘s. They repeatedly suggested during cross-examination of defense witnesses that Kyles had left his own car at Schwegmann‘s on the day of the murder and had retrieved it later, a theory for which they offered no evidence beyond the blown-up photograph. Once again, Beanie did not testify.
As in the first trial, the defense contended that the eyewitnesses were mistaken. Kyles‘s counsel called several individuals, including Kevin Black, who testified to seeing Beanie, with his hair in plaits, driving a red car similar to the victim‘s about an hour after the killing. Tr. 209 (Dec. 7, 1984). Another witness testified that Beanie, with his hair in braids, had tried to sell him the car on Thursday evening, shortly after the murder. Id., at 234-235. Another witness testified that Beanie, with his hair in a “Jheri curl,” had attempted to sell him the car on Friday. Id., at 249-251. One witness, Beanie‘s “partner,” Burns, testified that he had seen Beanie on Sunday at Kyles‘s apartment, stooping down near
Finally, Kyles again took the stand. Denying any involvement in the shooting, he explained his fingerprints on the cash register receipt found in Dye‘s car by saying that Beanie had picked him up in a red car on Friday, September 21, and had taken him to Schwegmann‘s, where he purchased transmission fluid and a pack of cigarettes. He suggested that the receipt may have fallen from the bag when he removed the cigarettes.
On rebuttal, the prosecutor had Beanie brought into the courtroom. All of the testifying eyewitnesses, after viewing Beanie standing next to Kyles, reaffirmed their previous identifications of Kyles as the murderer. Kyles was convicted of first-degree murder and sentenced to death. Beanie received a total of $1,600 in reward money. See Tr. of Hearing on Post-Conviction Relief 19-20 (Feb. 24, 1989); id., at 114 (Feb. 20, 1989).
Following direct appeal, it was revealed in the course of state collateral review that the State had failed to disclose evidence favorable to the defense. After exhausting state remedies, Kyles sought relief on federal habeas, claiming, among other things, that the evidence withheld was material to his defense and that his conviction was thus obtained in violation of Brady. Although the United States District Court denied relief and the Fifth Circuit affirmed,6 Judge
III
The prosecution‘s affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this Court‘s decision in Brady v. Maryland, 373 U. S. 83 (1963). See id., at 86 (relying on Mooney v. Holohan, 294 U. S. 103, 112 (1935), and Pyle v. Kansas, 317 U. S. 213, 215-216 (1942)). Brady 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.” 373 U. S., at 87; see Moore v. Illinois, 408 U. S. 786, 794-795 (1972).
In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U. S. 667 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i. e., the “specific-request” and “general- or no-request” situations. Bagley held that regardless of request, favorable 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 differ-
Four aspects of materiality under Bagley bear emphasis. Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant‘s acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Id., at 682 (opinion of Blackmun, J.) (adopting formulation announced in Strickland v. Washington, 466 U. S. 668, 694 (1984)); Bagley, supra, at 685 (White, J., concurring in part and concurring in judgment) (same); see 473 U. S., at 680 (opinion of Blackmun, J.) (Agurs “rejected a standard that would require the defendant to demonstrate that the evidence if disclosed probably would have resulted in acquittal“); cf. Strickland, supra, at 693 (“[W]e believe that a defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case“); Nix v. Whiteside, 475 U. S. 157, 175 (1986) (“[A] defendant need not establish that the attorney‘s deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland“). Bagley‘s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government‘s evidentiary suppression “undermines confidence in the outcome of the trial.” Bagley, 473 U. S., at 678.
The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the incul-
Third, we note that, contrary to the assumption made by the Court of Appeals, 5 F. 3d, at 818, once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment), necessarily entails the conclusion that the suppression must have had “substantial and injurious effect or influence in determining the jury‘s verdict,” Brecht v. Abrahamson, 507 U. S. 619, 623 (1993), quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946). This is amply confirmed by the development of the respective governing standards. Although
The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item.10 As Justice Blackmun emphasized in the portion of his opinion written for the Court, the Constitution is not violated every time the
While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the 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. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith
The State of Louisiana would prefer an even more lenient rule. It pleads that some of the favorable evidence in issue here was not disclosed even to the prosecutor until after trial, Brief for Respondent 25, 27, 30, 31, and it suggested below that it should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor.11 To accommodate the State in this manner would, however, amount to a serious change of course from the Brady line of cases. In the State‘s favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that “procedures and regulations can be established to carry [the prosecutor‘s] burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Giglio v. United States, 405 U. S. 150, 154 (1972). Since, then, the prosecutor has the means to discharge the government‘s Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government‘s obligation to ensure fair trials.
Short of doing that, we were asked at oral argument to raise the threshold of materiality because the Bagley standard “makes it difficult... to know” from the “perspective [of the prosecutor at] trial... exactly what might become important later on.” Tr. of Oral Arg. 33. The State asks for “a certain amount of leeway in making a judgment call” as to the disclosure of any given piece of evidence. Ibid.
This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U. S., at 108 (“[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure“). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as “the representative . . . of a sovereignty whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U. S. 78, 88 (1935).
There is room to debate whether the two judges in the majority in the Court of Appeals made an assessment of the cumulative effect of the evidence. Although the majority‘s Brady discussion concludes with the statement that the court was not persuaded of the reasonable probability that Kyles would have obtained a favorable verdict if the jury had been “exposed to any or all of the undisclosed materials,” 5 F. 3d, at 817, the opinion also contains repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative materiality was not the touchstone. See, e. g., id., at 812 (“We do not agree that this statement made the transcript material and so mandated disclosure . . . Beanie‘s statement . . . is itself not decisive“), 814 (“The nondisclosure of this much of the transcript was insignificant“), 815 (“Kyles has not shown on this basis that the three statements were material“), 815 (“In light of the entire record . . . we cannot conclude that [police reports relating to discovery of the purse in the trash] would, in reasonable probability, have moved the jury to embrace the theory it otherwise discounted“), 816 (“We are not persuaded that these notes [relating to discovery of the gun] were material“), 816 (“[W]e are not persuaded that [the printout of the license plate numbers] would, in reasonable probability, have induced reasonable doubt where the jury did not find it. . . . the rebuttal of the photograph would have made no differ
IV
In this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.
A
As the District Court put it, “the essence of the State‘s case” was the testimony of eyewitnesses, who identified Kyles as Dye‘s killer. 5 F. 3d, at 853 (Appendix A). Disclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed.
The State rated Henry Williams as its best witness, who testified that he had seen the struggle and the actual shooting by Kyles. The jury would have found it helpful to probe this conclusion in the light of Williams‘s contemporaneous statement, in which he told the police that the assailant was “a black male, about 19 or 20 years old, about 5‘4” or 5‘5“, 140 to 150 pounds, medium build” and that “his hair looked like it was platted.” App. 197. If cross-examined on this description, Williams would have had trouble explaining how he could have described Kyles, 6-feet tall and thin, as a man more than half a foot shorter with a medium build.12 Indeed, since Beanie was 22 years old, 5‘5” tall, and 159 pounds,
The trial testimony of a second eyewitness, Isaac Smallwood, was equally damning to Kyles. He testified that Kyles was the assailant, and that he saw him struggle with Dye. He said he saw Kyles take a “.32, a small black gun” out of his right pocket, shoot Dye in the head, and drive off in her LTD. When the prosecutor asked him whether he actually saw Kyles shoot Dye, Smallwood answered “Yeah.” Tr. 41-48 (Dec. 6, 1984).
Smallwood‘s statement taken at the parking lot, however, was vastly different. Immediately after the crime, Small
A jury would reasonably have been troubled by the adjustments to Smallwood‘s original story by the time of the second trial. The struggle and shooting, which earlier he had not seen, he was able to describe with such detailed clarity as to identify the murder weapon as a small black .32-caliber pistol, which, of course, was the type of weapon used. His description of the victim‘s car had gone from a “Thunderbird” to an “LTD“; and he saw fit to say nothing about the assailant‘s shoulder-length hair and moustache, details noted by no other eyewitness. These developments would have fueled a withering cross-examination, destroying confidence in Smallwood‘s story and raising a substantial implication that the prosecutor had coached him to give it.14
B
Damage to the prosecution‘s case would not have been confined to evidence of the eyewitnesses, for Beanie‘s various statements would have raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation, as well. By the State‘s own admission, Beanie was essential to its investigation and, indeed, “made the case” against Kyles. Tr. of Closing Arg. 13 (Dec. 7, 1984). Contrary to what one might hope for from such a source, however, Beanie‘s statements to the police were replete with inconsistencies and would have allowed the jury to infer that Beanie was anxious to see Kyles arrested for Dye‘s murder. Their disclosure would have revealed a remarkably uncritical attitude on the part of the police.
If the defense had called Beanie as an adverse witness, he could not have said anything of any significance without being trapped by his inconsistencies. A short recapitulation of some of them will make the point. In Beanie‘s initial meeting with the police, and in his signed statement, he said he bought Dye‘s LTD and helped Kyles retrieve his car from the Schwegmann‘s lot on Friday. In his first call to the po-
Even if Kyles‘s lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie‘s statements and so have attacked the reliability of the investigation in failing even to consider Beanie‘s possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted. See, e. g., Bowen v. Maynard, 799 F. 2d 593, 613 (CA10 1986) (“A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation“); Lindsey v. King, 769 F. 2d 1034, 1042 (CA5 1985) (awarding new trial of prisoner convicted in Louisiana state court because withheld Brady evidence “carried within it the potential . . . for the . . . discrediting . . . of the police methods employed in assembling the case“).15
The admitted failure of the police to pursue these pointers toward Beanie‘s possible guilt could only have magnified the effect on the jury of explaining how the purse and the gun happened to be recovered. In Beanie‘s original recorded statement, he told the police that “[Kyles‘s] garbage goes out tomorrow,” and that “if he‘s smart he‘ll put [the purse] in [the] garbage.” App. 257. These statements, along with the internal memorandum stating that the police had “reason to believe” Dye‘s personal effects and Schwegmann‘s bags
To the same effect would have been an enquiry based on Beanie‘s apparently revealing remark to police that “if you can set [Kyles] up good, you can get that same gun.”17 App. 228-229. While the jury might have understood that Beanie meant simply that if the police investigated Kyles, they would probably find the murder weapon, the jury could also have taken Beanie to have been making the more sinister
C
The State argues that the list was neither impeachment nor exculpatory evidence because Kyles could have moved his car before the list was created and because the list does
D
In assessing the significance of the evidence withheld, one must of course bear in mind that not every item of the State‘s case would have been directly undercut if the Brady evidence had been disclosed. It is significant, however, that the physical evidence remaining unscathed would, by the State‘s own admission, hardly have amounted to overwhelming proof that Kyles was the murderer. See Tr. of Oral Arg. 56 (“The heart of the State‘s case was eye-witness identification“); see also Tr. of Hearing on Post-Conviction Relief 117 (Feb. 20, 1989) (testimony of chief prosecutor Strider) (“The crux of the case was the four eye-witnesses“). Ammunition and a holster were found in Kyles‘s apartment, but if the jury had suspected the gun had been planted the significance of these items might have been left in doubt. The fact that pet food was found in Kyles‘s apartment was consistent with the testimony of several defense witnesses that Kyles owned a dog and that his children fed stray cats. The brands of pet food found were only two of the brands that Dye typically bought, and these two were common, whereas the one specialty brand that was found in Dye‘s apartment after her murder, Tr. 180 (Dec. 7, 1984), was not found in Kyles‘s apartment, id., at 188. Although Kyles was wrong in describing the cat food as being on sale the day he said he bought it, he
Similarly undispositive is the small Schwegmann‘s receipt on the front passenger floorboard of the LTD, the only physical evidence that bore a fingerprint identified as Kyles‘s. Kyles explained that Beanie had driven him to Schwegmann‘s on Friday to buy cigarettes and transmission fluid, and he theorized that the slip must have fallen out of the bag when he removed the cigarettes. This explanation is consistent with the location of the slip when found and with its small size. The State cannot very well argue that the fingerprint ties Kyles to the killing without also explaining how the 2-inch-long register slip could have been the receipt for a week‘s worth of groceries, which Dye had gone to Schwegmann‘s to purchase. Id., at 181-182.21
- that the investigation was limited by the police‘s uncritical readiness to accept the story and suggestions of an informant whose accounts were inconsistent to the point, for example, of including four different versions of the discovery of the victim‘s purse, and whose own behavior was enough to raise suspicions of guilt;
- that the lead police detective who testified was either less than wholly candid or less than fully informed;
- that the informant‘s behavior raised suspicions that he had planted both the murder weapon and the victim‘s purse in the places they were found;
- that one of the four eyewitnesses crucial to the State‘s case had given a description that did not match the defendant and better described the informant;
- that another eyewitness had been coached, since he had first stated that he had not seen the killer outside the getaway car, or the killing itself, whereas at trial he
(f) that there was no consistency to eyewitness descriptions of the killer‘s height, build, age, facial hair, or hair length.
Since all of these possible findings were precluded by the prosecution‘s failure to disclose the evidence that would have supported them, “fairness” cannot be stretched to the point of calling this a fair trial. Perhaps, confidence that the verdict would have been the same could survive the evidence impeaching even two eyewitnesses if the discoveries of gun and purse were above suspicion. Perhaps those suspicious circumstances would not defeat confidence in the verdict if the eyewitnesses had generally agreed on a description and were free of impeachment. But confidence that the verdict would have been unaffected cannot survive when suppressed evidence would have entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that two out of the four eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that the investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or candid. This is not the “massive” case envisioned by the dissent, post, at 475; it is a significantly weaker case than the one heard by the first jury, which could not even reach a verdict.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, concurring.
As the Court has explained, this case presents an important legal issue. See ante, at 440-441. Because JUSTICE SCALIA so emphatically disagrees, I add this brief response to his criticism of the Court‘s decision to grant certiorari.
Proper management of our certiorari docket, as JUSTICE SCALIA notes, see post, at 456-460, precludes us from hearing argument on the merits of even a “substantial percentage” of the capital cases that confront us. Compare Coleman v. Balkcom, 451 U. S. 949 (1981) (STEVENS, J., concurring in denial of certiorari), with id., at 956 (REHNQUIST, J., dissenting). Even aside from its legal importance, however, this case merits “favored treatment,” cf. post, at 457, for at least three reasons. First, the fact that the jury was unable to reach a verdict at the conclusion of the first trial provides strong reason to believe the significant errors that occurred at the second trial were prejudicial. Second, cases in which the record reveals so many instances of the state‘s failure to disclose exculpatory evidence are extremely rare. Even if I shared JUSTICE SCALIA‘s appraisal of the evidence in this case—which I do not—I would still believe we should independently review the record to ensure that the prosecution‘s blatant and repeated violations of a well-settled constitutional obligation did not deprive petitioner of a fair trial. Third, despite my high regard for the diligence and craftsmanship of the author of the majority opinion in the Court of Appeals, my independent review of the case left me with the same degree of doubt about petitioner‘s guilt expressed by the dissenting judge in that court.
Our duty to administer justice occasionally requires busy judges to engage in a detailed review of the particular facts of a case, even though our labors may not provide posterity with a newly minted rule of law. The current popularity of capital punishment makes this “generalizable principle,” post, at 460, especially important. Cf. Harris v. Alabama, 513 U. S. 504, 519-520, and n. 5 (1995) (STEVENS, J., dissenting). I wish such review were unnecessary, but I cannot agree that our position in the judicial hierarchy makes it inappropriate. Sometimes the performance of an unpleasant
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.
In a sensible system of criminal justice, wrongful conviction is avoided by establishing, at the trial level, lines of procedural legality that leave ample margins of safety (for example, the requirement that guilt be proved beyond a reasonable doubt)—not by providing recurrent and repetitive appellate review of whether the facts in the record show those lines to have been narrowly crossed. The defect of the latter system was described, with characteristic candor, by Justice Jackson:
“Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done.” Brown v. Allen, 344 U. S. 443, 540 (1953) (opinion concurring in result).
Since this Court has long shared Justice Jackson‘s view, today‘s opinion—which considers a fact-bound claim of error rejected by every court, state and federal, that previously heard it—is, so far as I can tell, wholly unprecedented. The Court has adhered to the policy that, when the petitioner claims only that a concededly correct view of the law was incorrectly applied to the facts, certiorari should generally (i. e., except in cases of the plainest error) be denied. United States v. Johnston, 268 U. S. 220, 227 (1925). That policy has been observed even when the fact-bound assessment of the federal court of appeals has differed from that of the district court, Sumner v. Mata, 449 U. S. 539, 543 (1981); and under what we have called the “two-court rule,” the policy has been applied with particular rigor when dis-
The Court says that we granted certiorari “[b]ecause ‘[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case,’ Burger v. Kemp, 483 U. S. 776, 785 (1987).” Ante, at 422. The citation is perverse, for the reader who looks up the quoted opinion will discover that the very next sentence confirms the traditional practice from which the Court today glaringly departs: “Nevertheless, when the lower courts have found that [no constitutional error occurred], . . . deference to the shared conclusion of two reviewing courts prevent[s] us from substituting speculation for their considered opinions.” Burger v. Kemp, 483 U. S. 776, 785 (1987).
The greatest puzzle of today‘s decision is what could have caused this capital case to be singled out for favored treatment. Perhaps it has been randomly selected as a symbol,
Straining to suggest a legal error in the decision below that might warrant review, the Court asserts that “[t]here is room to debate whether the two judges in the majority in the Court of Appeals made an assessment of the cumulative effect of the evidence,” ante, at 440. In support of this it quotes isolated sentences of the opinion below that supposedly “dismiss[ed] particular items of evidence as immaterial,” ibid. This claim of legal error does not withstand minimal scrutiny. The Court of Appeals employed precisely the same legal standard that the Court does. Compare 5 F. 3d 806, 811 (CA5 1993) (“We apply the [United States v.] Bagley[, 473 U. S. 667 (1985),] standard here by examining whether it is reasonably probable that, had the undisclosed information been available to Kyles, the result would have been different“), with ante, at 441 (“In this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable“). Nor did the Court of Appeals announce a rule of law, that might have precedential force in later cases, to the effect that Bagley
What the Court granted certiorari to review, then, is not a decision on an issue of federal law that conflicts with a decision of another federal or state court; nor even a decision announcing a rule of federal law that because of its novelty
I
Before proceeding to detailed consideration of the evidence, a few general observations about the Court‘s methodology are appropriate. It is fundamental to the discovery rule of Brady v. Maryland, 373 U. S. 83 (1963), that the materiality of a failure to disclose favorable evidence “must be evaluated in the context of the entire record.” United States v. Agurs, 427 U. S. 97, 112 (1976). It is simply not enough to show that the undisclosed evidence would have allowed the defense to weaken, or even to “destro[y],” ante, at 441, the particular prosecution witnesses or items of prosecution evidence to which the undisclosed evidence relates. It is petitioner‘s burden to show that in light of all the evidence, including that untainted by the Brady violation, it is reasonably probable that a jury would have entertained a reasonable doubt regarding petitioner‘s guilt. See United States v. Bagley, 473 U. S. 667, 682 (1985); Agurs, supra, at 112-113. The Court‘s opinion fails almost entirely to take this principle into account. Having spent many pages assessing the effect of the Brady material on two prosecution witnesses and a few items of prosecution evidence, ante, at 441-451, it dismisses the remainder of the evidence against Kyles in a quick page-and-a-half, ante, at 451-453. This partiality is confirmed in the Court‘s attempt to “recap . . . the suppressed evidence and its significance for the prosecution,” ante, at 453 (emphasis added), which omits the required comparison between that evidence and the evidence that was disclosed. My discussion of the record will present the half of the analysis that the Court omits, emphasizing the evidence concededly unaffected by the Brady violation which demonstrates the immateriality of the violation.
In any analysis of this case, the desperate implausibility of the theory that petitioner put before the jury must be kept firmly in mind. The first half of that theory—designed to neutralize the physical evidence (Mrs. Dye‘s purse in his garbage, the murder weapon behind his stove)—was that petitioner was the victim of a “frame-up” by the police informer and evil genius, Beanie. Now it is not unusual for a guilty person who knows that he is suspected of a crime to try to shift blame to someone else; and it is less common, but not unheard of, for a guilty person who is neither suspected nor subject to suspicion (because he has established a perfect alibi), to call attention to himself by coming forward to point the finger at an innocent person. But petitioner‘s theory is that the guilty Beanie, who could plausibly be accused of the crime (as petitioner‘s brief amply demonstrates), but who was not a suspect any more than Kyles was (the police as yet had no leads, see ante, at 424), injected both Kyles and himself into the investigation in order to get the innocent Kyles convicted.1 If this were not stupid enough, the
The second half of petitioner‘s theory was that he was the victim of a quadruple coincidence, in which four eyewitnesses to the crime mistakenly identified him as the murderer—three picking him out of a photo array without hesitation, and all four affirming their identification in open court after comparing him with Beanie. The extraordinary mistake petitioner had to persuade the jury these four witnesses made was not simply to mistake the real killer, Beanie, for the very same innocent third party (hard enough to believe), but in addition to mistake him for the very man Beanie had chosen to frame—the last and most incredible level of coincidence. However small the chance that the jury would believe any one of those improbable scenarios, the likelihood that it would believe them all together is far smaller. The Court concludes that it is “reasonably probable” the undisclosed witness interviews would have persuaded the jury of petitioner‘s implausible theory of mistaken eyewitness testimony, and then argues that it is “reasonably probable” the undisclosed information regarding Beanie would have persuaded the jury of petitioner‘s implausible theory regarding the incriminating physical evidence. I think neither of those conclusions is remotely true, but even if they were the Court would still be guilty of a fallacy in declaring victory on each implausibility in turn, and thus victory on the whole,
This basic error of approaching the evidence piecemeal is also what accounts for the Court‘s obsessive focus on the credibility or culpability of Beanie, who did not even testify at trial and whose credibility or innocence the State has never once avowed. The Court‘s opinion reads as if either petitioner or Beanie must be telling the truth, and any evidence tending to inculpate or undermine the credibility of the one would exculpate or enhance the credibility of the other. But the jury verdict in this case said only that petitioner was guilty of the murder. That is perfectly consistent with the possibilities that Beanie repeatedly lied, ante, at 445, that he was an accessory after the fact, cf. ante, at 445-446, or even that he planted evidence against petitioner, ante, at 448. Even if the undisclosed evidence would have allowed the defense to thoroughly impeach Beanie and to suggest the above possibilities, the jury could well have believed all of those things and yet have condemned petitioner because it could not believe that all four of the eyewitnesses were similarly mistaken.2
Of course even that much rests on the premise that competent counsel would run the terrible risk of calling Beanie, a witness whose “testimony almost certainly would have inculpated [petitioner]” and whom “any reasonable attorney would perceive . . . as a ‘loose cannon.‘” 5 F. 3d, at 818. Perhaps because that premise seems so implausible, the Court retreats to the possibility that petitioner‘s counsel,
II
The undisclosed evidence does not create a “reasonable probability’ of a different result.” Ante, at 434 (quoting United States v. Bagley, 473 U. S., at 682). To begin with the eyewitness testimony: Petitioner‘s basic theory at trial was that the State‘s four eyewitnesses happened to mistake Beanie, the real killer, for petitioner, the man whom Beanie was simultaneously trying to frame. Police officers testified to the jury, and petitioner has never disputed, that three of the four eyewitnesses (Territo, Smallwood, and Williams) were shown a photo lineup of six young men four days after the shooting and, without aid or duress, identified petitioner as the murderer; and that all of them, plus the fourth eyewitness, Kersh, reaffirmed their identifications at trial after petitioner and Beanie were made to stand side by side.
Territo, the first eyewitness called by the State, was waiting at a red light in a truck 30 or 40 yards from the Schwegmann‘s parking lot. He saw petitioner shoot Mrs. Dye, start her car, drive out onto the road, and pull up just behind Territo‘s truck. When the light turned green petitioner pulled
The Court attempts to dispose of this direct, unqualified, and consistent eyewitness testimony in two ways. First, by relying on a theory so implausible that it was apparently not suggested by petitioner‘s counsel until the oral-argument-cum-evidentiary-hearing held before us, perhaps because it is a theory that only the most removed appellate court could
It would be different, of course, if there were evidence that Kyles‘s and Beanie‘s faces looked like twins, or at least bore an unusual degree of resemblance. That facial resemblance would explain why, if Beanie committed the crime, all four witnesses picked out Kyles at first (though not why they continued to pick him out when he and Beanie stood side-by-side in court), and would render their failure to observe the height and build of the killer relevant. But without evidence of facial similarity, the question “You admit that you saw only the killer‘s face?” draws no blood; it does not explain any witness‘s identification of petitioner as the killer. While the assumption of facial resemblance between Kyles and Beanie underlies all of the Court‘s repeated references to the partial concealment of the killer‘s body from view, see, e. g., ante, at 442-443, 443-444, n. 14, 445, the Court never actually says that such resemblance exists. That is because there is not the slightest basis for such a statement in the record. No court has found that Kyles and Beanie bear any facial resemblance. In fact, quite the opposite: every federal and state court that has reviewed the record photographs, or seen the two men, has found that they do not resemble each other in any respect. See 5 F. 3d, at 813 (“Comparing photographs of Kyles and Beanie, it is evident that the former is taller, thinner, and has a narrower face“); App. 181 (District Court opinion) (“The court examined all of the pictures used in the photographic line-up and compared Kyles’ and Beanie‘s pictures; it finds that they did not resemble one another“); id., at 36 (state trial court findings on postconviction review) (“[Beanie] clearly and distinctly did not resemble the defendant in this case“) (emphasis in original). The District Court‘s finding controls because it is not clearly erroneous,
The Court spends considerable time, see ante, at 443, showing how Smallwood‘s testimony could have been discredited to such a degree as to “rais[e] a substantial implication that the prosecutor had coached him to give it.” Ibid. Perhaps so, but that is all irrelevant to this appeal, since all of that impeaching material (except the “facial identification” point I have discussed above) was available to the defense independently of the Brady material. See ante, at 443-444, n. 14. In sum, the undisclosed statements, credited with everything they could possibly have provided to the defense, leave two prosecution witnesses (Territo and Kersh) totally untouched; one prosecution witness (Smallwood) barely affected (he saw “only” the killer‘s face); and one prosecution witness (Williams) somewhat impaired (his description of the killer‘s height and weight did not match Kyles). We must keep all this in due perspective, remembering that the relevant question in the materiality inquiry is not how many points the defense could have scored off the prosecution witnesses, but whether it is reasonably probable that the new evidence would have caused the jury to accept the basic thesis that all four witnesses were mistaken. I think it plainly
There remains the argument that is the major contribution of today‘s opinion to Brady litigation; with our endorsement, it will surely be trolled past appellate courts in all future failure-to-disclose cases. The Court argues that “the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others, as we have said before.” Ante, at 445 (citing Agurs v. United States, 427 U. S., at 112-113, n. 21). It would be startling if we had “said [this] before,” since it assumes irrational jury conduct. The weakening of one witness‘s testimony does not weaken the unconnected testimony of another witness; and to entertain the possibility that the jury will give it such an effect is incompatible with the whole idea of a materiality standard, which presumes that the incriminating evidence that would have been destroyed by proper disclosure can be logically separated from the incriminating evidence that would have remained unaffected. In fact we have said nothing like what the Court suggests. The opinion‘s only authority for its theory, the cited footnote from Agurs, was appended to the proposition that “[a Brady] omission must be evaluated in the context of the entire record,” 427 U. S., at 112. In accordance with that proposition, the footnote recited a hypothetical that shows how a witness‘s testimony could have been destroyed by withheld evidence that contradicts the witness.4 That is worlds apart from having it destroyed by the corrosive effect of withheld evidence that impeaches (or, as here, merely weakens) some other corroborating witness.
The physical evidence confirms the immateriality of the nondisclosures. In a garbage bag outside petitioner‘s home the police found Mrs. Dye‘s purse and other belongings. Inside his home they found, behind the kitchen stove, the .32-caliber revolver used to kill Mrs. Dye; hanging in a wardrobe, a homemade shoulder holster that was “a perfect fit” for the revolver, Tr. 74 (Dec. 6, 1984) (Detective Dillman); in a dresser drawer in the bedroom, two boxes of gun cartridges, one containing only .32-caliber rounds of the same brand found in the murder weapon, another containing .22, .32, and .38-caliber rounds; in a kitchen cabinet, eight empty Schwegmann‘s bags; and in a cupboard underneath that cabinet, one Schwegmann‘s bag containing 15 cans of pet food. Petitioner‘s account at trial was that Beanie planted the purse, gun, and holster, that petitioner received the ammunition from Beanie as collateral for a loan, and that petitioner had bought the pet food the day of the murder. That account strains credulity to the breaking point.
Petitioner did not claim that the ammunition had been planted. The police found a .22-caliber rifle under petitioner‘s mattress and two boxes of ammunition, one containing .22, .32, and .38-caliber rounds, another containing only .32-caliber rounds of the same brand as those found loaded in the murder weapon. Petitioner‘s story was that Beanie gave him the rifle and the .32-caliber shells as security for a loan, but that he had taken the .22-caliber shells out of the box. Tr. 353, 355 (Dec. 7, 1984). Put aside that the latter detail was contradicted by the facts; but consider the inherent implausibility of Beanie‘s giving petitioner collateral in the form of a box containing only .32 shells, if it were true that petitioner did not own a .32-caliber gun. As the Fifth Circuit wrote, “[t]he more likely inference, apparently chosen by the jury, is that [petitioner] possessed .32-caliber ammunition because he possessed a .32-caliber firearm.” 5 F. 3d, at 817.
We come to the evidence of the pet food, so mundane and yet so very damning. Petitioner‘s confused and changing explanations for the presence of 15 cans of pet food in a Schwegmann‘s bag under the sink must have fatally undermined his credibility before the jury. See App. 36 (trial judge finds that petitioner‘s “obvious lie” concerning the pet food “may have been a crucial bit of evidence in the minds of the jurors which caused them to discount the entire de-
“The fact that pet food was found in Kyles‘s apartment was consistent with the testimony of several defense witnesses that Kyles owned a dog and that his children fed stray cats. The brands of pet food found were only two of the brands that Dye typically bought, and these two were common, whereas the one specialty brand that was found in Dye‘s apartment after her murder, Tr. 180 (Dec. 7, 1984), was not found in Kyles‘s apartment, id., at 188. Although Kyles was wrong in describing the cat food as being on sale the day he said he bought it, he was right in describing the way it was priced at Schwegmann‘s market, where he commonly shopped.” Ante, at 451-452; see also ante, at 452, n. 20.
The full story is this. Mr. and Mrs. Dye owned two cats and a dog, Tr. 178 (Dec. 7, 1984), for which she regularly bought varying brands of pet food, several different brands at a time. Id., at 179, 180. Found in Mrs. Dye‘s home after her murder were the brands Nine Lives, Kalkan, and Puss n’ Boots. Id., at 180. Found in petitioner‘s home were eight cans of Nine Lives, four cans of Kalkan, and three cans of Cozy Kitten. Id., at 188. Since we know that Mrs. Dye had been shopping that day and that the murderer made off with her goods, petitioner‘s possession of these items was powerful evidence that he was the murderer. Assuredly the jury drew that obvious inference. Pressed to explain why he just happened to buy 15 cans of pet food that very day (keep in mind that petitioner was a very poor man, see id., at 329, who supported a common-law wife, a mistress, and four children), petitioner gave the reason that “it was on sale.” Id., at 341. The State, however, introduced testimony from the Schwegmann‘s advertising director that the pet food was not on sale that day. Id., at 395. The dissenting judge below tried to rehabilitate petitioner‘s testimony
I will not address the list of cars in the Schwegmann‘s parking lot and the receipt, found in the victim‘s car, that bore petitioner‘s fingerprints. These were collateral matters that provided little evidence of either guilt or innocence. The list of cars, which did not contain petitioner‘s automobile, would only have served to rebut the State‘s introduction of a photograph purporting to show petitioner‘s car in the parking lot; but petitioner does not contest that the list was not comprehensive, and that the photograph was taken about six hours before the list was compiled. See 5 F. 3d, at 816.
* * *
The State presented to the jury a massive core of evidence (including four eyewitnesses) showing that petitioner was guilty of murder, and that he lied about his guilt. The effect that the Brady materials would have had in chipping away at the edges of the State‘s case can only be called immaterial. For the same reasons I reject petitioner‘s claim that the Brady materials would have created a “residual doubt” sufficient to cause the sentencing jury to withhold capital punishment.
I respectfully dissent.