Julio Mendiola, Petitioner-Appellant, v. James M. Schomig, Warden, Pontiac Correctional Center, Respondent-Appellee.
No. 98-4031
United States Court of Appeals For the Seventh Circuit
Argued January 4, 2000--Decided August 10, 2000
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 3183--Charles P. Kocoras, Judge.
Easterbrook, Circuit Judge. During the wake for a member of the Latin Kings street gang, four nonmembers drove by. Incensed, gang members standing outside the funeral home opened fire on the car, which sped away. Within a block the car crashed into other vehicles. Three of the four occupants made it to safety on foot. Manuel Gutierrez, the fourth, did not. As a mob beat Gutierrez, one assailant shot Gutierrez six times, killing him. A jury concluded that Julio Mendiola fired the fatal bullets, and he was sentenced to 50 years’ imprisonment for first-degree murder. His conviction was affirmed by the state‘s appellate court, and a federal judge denied his petition for collateral relief. 1998 U.S. Dist. Lexis 16995 (N.D. Ill. Oct. 21, 1998). Mendiola‘s sole contention on this appeal is that the prosecutor withheld material exculpatory evidence, violating the due process clause of the
Eyewitness testimony supplied the basis of the conviction. Francisco Carabez identified Mendiola as the shooter. Immediately after the murder, Carabez and his friend Angelo Torres went looking for the killer. Carabez described the shooter‘s appearance and clothing to Torres, and when the
Although the murder took place in daylight on a busy street, police and prosecutors had difficulty finding people willing to cooperate. Only one witness to the attack other than Carabez testified for the prosecution, and that witness, Maria Balderrama, was unable (or unwilling) to identify the shooter. Balderrama, who was 12 at the time of the shooting and trial, testified that she had been playing on the street when the affray erupted. She corroborated Carabez‘s description of the attempted escape, the mob descending on Gutierrez, the beating, and the murder. But when asked for identifying details, all Balderrama would say was that the shooter was “not that tall and not that short,” and “not that fat and not that skinny.” She viewed a lineup but did not identify anyone. She did not recall what the slayer was wearing. On cross examination, Balderrama stated that she did not get a good look at the killer and did not see his face. The detective who conducted the lineup testified that Balderrama had appeared to be very scared and hesitated even to view the lineup until she was assured that the people in the lineup could not see her--an assurance that obviously did not apply to the trial.
On the day of sentencing, Mendiola filed a
The trial judge denied Mendiola‘s request for a new trial and also declined to hold an evidentiary hearing to learn whether Balderrama would repeat in court the statements made in defense counsel‘s office. The judge concluded that, no matter what Balderrama later said, she had not exculpated Mendiola immediately after leaving the stand, and that, as a result, the prosecution had not violated its constitutional obligation. In an unpublished opinion, the court of appeals observed that it, too, was entitled to draw inferences from the record, and it agreed with the trial judge that “the content of Maria Balderrama‘s post-trial statement regarding the conduct of the assistant State‘s Attorneys in this case [is] highly incredible.” Then the appellate court added that, even if Balderrama‘s post-trial statement were true, her change of mind would not have been material exculpatory evidence, because Balderrama had denied seeing the shooter‘s face. When denying Mendiola‘s petition, the district court concluded that the state court‘s decision on the materiality issue did not represent an unreasonable application of clearly established federal law, see
If Balderrama told the prosecutor that she was confident that Mendiola did not shoot Gutierrez, then the critical question is whether “there is a reasonable probability” that this information would have altered the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). Although this sounds like a demand for quantification, Strickler and Kyles say that the inquiry is subjective: “[t]he 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
But we need not rest on that ground, because both the trial court and the state appellate court found that Balderrama did not tell the prosecutor that she had come to believe that Mendiola did not shoot Gutierrez. The appellate court‘s statement--that “the content of Maria Balderrama‘s post-trial statement regarding the conduct of the assistant State‘s Attorneys in this case [is] highly incredible“--was not, as Mendiola would have it, a throw-away line. It was an independent ground of decision, offered only after the court observed that it had an independent right to draw inferences from the record. Under federal law, that finding of fact is dispositive.
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The
The foundation of Mendiola‘s position--that only trial judges may make factual findings, and then only after hearings dedicated to the contested issue--is unsound. Sumner v. Mata, 449 U.S. 539, 546-47 (1981), holds that state appellate courts’ findings are entitled to the same respect that trial judges’ findings receive. What is more,
Plenty of support for the finding is apparent in this record. The trial judge heard Balderrama‘s testimony at trial, which supplied ample basis for the judge to disbelieve a later inconsistent story. See United States v. Provost, 969 F.2d 617, 619-20 (8th Cir. 1992). Cf. United States v. Stewart, 198 F.3d 984 (7th Cir. 1999) (statements made under oath when pleading guilty are conclusive, and the judge may reject without a hearing a defendant‘s later contention that his sworn statements were untrue). Balderrama‘s statement to Mendiola‘s lawyer made little sense. Why would she testify as she did and then sing a different song immediately after leaving the stand? The trial judge observed not only Balderrama but also the prosecutors. In response to Mendiola‘s post-trial motion, both prosecutors denied that Balderrama had told them that she had
Disbelief of recantations is sensible--and not just because the formality of a court, the presence of the litigants, and the gaze of a judge induce witnesses to hew more closely to the truth than they do when speaking in private and attempting to appease the losing side‘s advocate. Disbelief is reasonable because it protects witnesses after trial, and thus promotes truthful testimony during trial. See Hysler v. Florida, 315 U.S. 411, 422 (1942). Some witnesses fall prey to influences--perhaps the persuasive influence of a skilled advocate asking leading questions, perhaps the less wholesome influence of the defendant‘s friends. See Charles Alan Wright, 3 Federal Practice and Procedure sec.557.1 (2d ed. 1982). Both may have been at work with Balderrama. People fear the Latin Kings for a reason. By disbelieving recantations, judges protect witnesses such as Balderrama. Knowledge that obtaining a recantation will not affect the outcome of the trial makes it less likely that defendants and their friends will hound witnesses after trial. Witnesses who are nonetheless pursued may protect themselves by telling defendants’ friends (and lawyers) what they want to hear, knowing that recantation will not jeopardize an accurate verdict already delivered.
Four state judges (one trial judge, three appellate judges) chose to believe Balderrama on the witness stand over Balderrama in the office of Mendiola‘s lawyer, and to believe two members of the bar rather than to credit a recantation by a fearful witness. That decision has not been undercut by clear and convincing evidence, so the judgment of the district court is affirmed.
ROVNER, Circuit Judge, dissenting.
1.
Maria Balderrama was a key prosecution witness whose impartiality the prosecutors trumpeted in closing arguments. She did not identify Mendiola as the man who shot Manuel Gutierrez, but she corroborated the testimony of the one and only witness who did--Francisco Carabez. The prosecutor‘s own words reveal how important she was to the State‘s case:
What else do you have, ladies and gentlemen? Maria Balderamma [sic]. Let‘s talk about Maria Balderamma [sic] for a second. Thirteen-year-old girl that came in and told you what she saw. She saw and she heard the victim begging for his life. She tells you he‘s laying there on the ground saying, I‘m not nothing, I‘m not nothing, don‘t shoot me, please don‘t shoot. She says the man took out the gun, fired the gun numerous times. And what‘s her description of the shooter? Not too tall, not too short. Was he fat? No, not really fat. Was he thin? No, not really thin. Not what the Latin King members, the defense witnesses, tell you a concocted defense of some short, fat guy. Maria Balderamma [sic] was right across the street. She says she couldn‘t see his face. She was trembling when she viewed the lineup.
What she tells you, ladies and gentlemen, supports everything that Francisco Carabez said, everything he said about what happened.
F141-42 (emphasis added). See also id. at F149 (“And you know Francisco Carabez is telling the truth because it‘s supported by all of the evidence in this case.“); F197 (“Two credible witnesses, Angelo Torres, is enough. Maria Balderamma [sic] is enough.“).
Balderrama‘s sworn post-trial statement was as material as her testimony at trial. What she alleges is that while she was on the witness stand, she realized that Mendiola was not the person who shot Gutierrez. She recognized Mendiola (whom she did not know by name) from the neighborhood, where she had seen him eating out with his parents on one occasion and in church on two others. C117-18. And she was “positive” that Mendiola was not the shooter, because Mendiola did not have a ponytail, did not have dark skin, and was taller than the person she had seen kill Gutierrez. C118-19. Balderrama goes on to allege that immediately after she testified (and while the trial was still underway), she approached one of the prosecutors and repeatedly told him that “[t]hat is not the guy” who shot Gutierrez. C123. He instructed her to say nothing to either Mendiola‘s attorneys or his parents, however, and until the trial was over, she heeded that instruction. C123-24.
If Balderrama is telling the truth, the prosecutor suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). By Balderrama‘s account, she got enough of a look at the shooter and had enough of a visual acquaintance with Mendiola to know that he was not the killer. Her testimony to that effect would have left the State without the corroboration of Carabez‘s testimony that it so emphasized in arguments to the jury. That corroboration cannot be dismissed as cumulative or immaterial. By all accounts, the events that culminated in the murder of Gutierrez unfolded very quickly in a chaotic environment. Because there was no physical evidence implicating Mendiola in the murder, the State‘s case rested almost entirely on eyewitness testimony--and in great measure upon the testimony of a single witness, Carabez. Balderrama was the only prosecution witness who could confirm Carabez‘s account of what occurred and his description of the person who shot Gutierrez. (Torres could only testify as to what Carabez told him.) She also was, as my colleagues acknowledge, one of very few witnesses whose credibility was unimpeached. Ante at 5.
If, for example, one of only two eyewitnesses to a crime had told the prosecutor that the defendant was definitely not its perpetrator and if this statement was not disclosed to the defense, no court would hesitate to reverse a conviction resting on the testimony of the other eyewitnesses. . . .
Id. at 112 n.21, 96 S. Ct. at 2402 n.21, quoting Comment, Brady v. Maryland and The Prosecutor‘s Duty to Disclose, 40 U. Chi. L. Rev. 112, 125 (1972). This is almost exactly the situation we have here. One of the two eyewitnesses who were central to the State‘s case purportedly told the prosecutor that Mendiola was not the assailant, and this exculpatory information was kept from the defense until after he was convicted. In view of the fact that the State relied upon Balderrama to bolster the testimony of the only witness who could identify Mendiola as the killer, her statement (if credited) creates “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 1948 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985)); Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 1565 (1995).1
2.
The key question, of course, is whether Balderrama‘s post-trial assertions are credible. But for what has transpired in this case, there would be no need to point out that credibility assessments require an evidentiary hearing. We honor that rule probably more than a hundred times a year in reviewing summary judgment rulings alone. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986). The reasons are as familiar as the rule. Ascertaining whether a witness is telling the truth--as yet an entirely unscientific task--demands an opportunity for the factfinder to look her in the eye, observe her demeanor, note the dryness of her brow, hear the inflections in her voice, and in general to observe how she holds up
What Mendiola appropriately asked for, and what he was entitled to, was a brief evidentiary hearing so that the court could determine whether Balderrama or the prosecutor was telling the truth. Balderrama‘s statement, which Mendiola submitted in support of his request, laid more than an adequate foundation for the hearing. Her statement was given under oath, and it set forth in detail when and why she realized that Mendiola was not the person she had seen shoot Gutierrez, as well as the circumstances and content of the conversation in which she disclosed this information to the prosecutor. Nothing more was required to demonstrate that an evidentiary hearing was necessary.
But rather than devote twenty minutes or so to such a hearing, or to articulate sound reasons why a hearing was unnecessary, the trial judge simply “found” that Balderrama was lying. The sole piece of evidence that the court actually had before it at that point was Balderrama‘s sworn statement. Beyond that, it had only an out-of-court verbal assurance from the prosecutor identified in Balderrama‘s statement denying that there had ever been a conversation in which she told him that Mendiola was not the shooter. G6, G12. That assurance was relayed to the court by the prosecutor‘s colleague. Nonetheless, the court proceeded to find the hearsay repetition of the prosecutor‘s denial to be more credible than Balderrama‘s sworn statement:
I find there was no violations [sic] of the document Brady versus Maryland because I accept [Assistant State‘s Attorney] Mr. Berlin‘s word through the representations of [his colleague] Mr. Rogers here in court. Mr. Berlin being an officer of the court that he never had a conversation with Maria Balderamma [sic] or she stated that Mr. Mendiola was not the shooter. I find that conversation did not exist; that Maria Balderamma [sic] a young lady from the community for whatever motivated her, made in fact a false statement to the defense attorneys in the presence of the court reporter post-trial. That assertion due to the fact I find Mr. Berlin to be a credible outstanding state‘s attorney. He‘s not in any way encroached nondisclosure under Brady versus Maryland.
This was an extraordinary turn of events. Without having heard a single witness testify, and based solely on the unsworn assurances of a prosecutor who was not even before the court,2 the court simply took the prosecution‘s word and labeled Balderrama a liar. It did not say that her post-trial statement was incredible as a matter of law, it did not say that her statement was immaterial. It simply chose not to believe her, without any of the process that normally attends such credibility determinations.
3.
Faced with the blatant impropriety of the trial court‘s credibility determination, the Illinois Appellate Court felt the need in the first instance to become a factfinder itself. “[A]n appellate court may draw inferences of fact from the record before it,” the court proclaimed. People v. Mendiola, No. 1-95-2874, Order, at 20 (Ill. App. July 21, 1997) (hereinafter, “Order“), citing
The appellate court‘s finding is even less sound than the trial court‘s. The trial judge, at least, had heard Balderrama testify at trial and, within the confines of the courtroom, had seen the prosecutors at work. See ante at 6-7. The appellate court, by contrast, had only a cold record before it. It had no business making credibility determinations. See Cabana v. Bullock, 474 U.S. 376, 388 n.5, 106 S. Ct. 689, 698 n.5 (1986).4 What the court meant to say, perhaps, when it “found” Balderrama‘s post-trial statement to be “highly incredible,” was that no reasonable finder of fact could believe it--that her statement was incredible as a matter of law. See, e.g., Anderson v. Bessemer City, N.C., 470 U.S. at 575, 105 S. Ct. at 1512; Kidd v. Illinois State Police, 167 F.3d 1084, 1095-96 (7th Cir. 1999). That won‘t fly either. To accuse a prosecutor of misconduct, as Balderrama did, is a grave matter. None of us wants to believe that an officer of the court would instruct a witness to keep exculpatory information to herself. But is it beyond the realm of possibility? Regrettably, it is not. See Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978) (State encouraged and helped confidential informants who witnessed defendant‘s sale of heroin to undercover agent to leave state before trial, rendering defendant
Grudgingly indulging the assumption that Balderrama‘s statement might be true, the Illinois appellate court alternatively posited that it was not material in the Brady sense--that it was unlikely to have affected the outcome of the trial, in other words. Order at 20-21; see Strickler, 119 S. Ct. at 1948, 1952; Kyles, 514 U.S. at 434, 115 S. Ct. at 1565-66. For three reasons, each of which again revolves around her credibility, the court was confident that a jury would have discounted Balderrama‘s allegations: (1) “young Maria‘s post-trial statement lacks credibility because it seems to result from defense counsel‘s leading questions“; (2) her statement “was contradicted by nearly every other witness“; and (3) cross-examination by Mendiola‘s attorney at trial “significantly undercut Maria‘s ability to inculpate or exculpate any suspect.” Order at 21-21 (emphasis in original). The district court thought that this was a reasonable materiality assessment, and sustained the state court judgment on that basis. Mendiola v. Carter, No. 98 C 3183, 1998 WL 748276, at *8 (N.D. Ill. Oct. 22) (Kocoras, J.). On closer inspection, however, the appellate court‘s materiality evaluation turns out to be as flawed as the rest of its analysis.
That Mendiola‘s lawyers may have asked some leading questions when they elicited Balderrama‘s post-trial statement is entirely beside the point. Her statement was submitted solely as prima facie proof of the need for a hearing. See G8. In that sense, it was no different from an affidavit, which typically is drafted by an attorney in terms favorable to his client. Had the trial court allowed Mendiola to put Balderrama on the witness stand, his attorneys no
To say that Balderrama‘s statement “was contradicted by nearly every other witness” (Order at 21) is flat-out wrong. What contradicted Balderrama, the court believed, was the testimony of several eyewitnesses that the man who shot Gutierrez “wore a hood.” Order at 19. If he was wearing a hood, the appellate court apparently reasoned, Balderrama could not possibly have known that he wore his hair in a ponytail--and the ponytail is one of the reasons she gives for her late realization that Mendiola was not the shooter. C118. Yet, one can wear a hooded sweatshirt or jacket without wearing the hood up, and if the shooter‘s hood was down during any portion of the encounter, it would have been possible for Balderrama to see a ponytail. In fact, of the five eyewitnesses who testified about the shooting, only one--Carabez--indicated that the assailant raised his hood at the beginning of the encounter. B68, B91. Three others testified that the killer left his hood down until after he shot Gutierrez. D150, E38, E65. The fifth--Balderrama--could not recall whether he had a hood or not. B124.
Finally, to suggest that Balderrama‘s ability to inculpate or exculpate anyone as Gutierrez‘s assailant had already been cast into doubt at trial ignores the basis for Balderrama‘s assertion that Mendiola was not the shooter. Balderrama had indeed effectively conceded on cross-examination that she did not get a good look at the killer and did not see his face. B123-24. The two characteristics that in her mind ruled out Mendiola as the assailant, however--his complexion and lack of a ponytail (C118-19)--are not features that require a good look at someone‘s visage to discern. Nothing in this record gives us reason to doubt that Balderrama in fact saw a ponytail and dark complexion on the assailant. (Carabez, for example, testified that the shooter‘s complexion was “[b]rownish.” B73.) The State itself was content to rely on her description of the shooter to bolster Carabez‘s identification of Mendiola. F142.
4.
My colleagues’ own effort to rescue the state courts’ finding fares no better and in one
The fact that the trial court heard Balderrama testify as a witness at trial (see ante at 6-7) lends little or no support to the determination that her post-trial statement is incredible. That point would be relevant if Balderrama were attempting to withdraw or change her prior testimony. Had she identified Mendiola as the shooter at trial, for example, the trial court would indeed have had some basis for assessing the veracity of her post-trial assertion that Mendiola was not the shooter--having already heard and seen the witness say that X is true under oath, a court has a frame of reference for assessing the credibility of her subsequent statement that X is false. See, e.g., United States v. Provost, 969 F.2d 617, 619-20 (8th Cir. 1992), cited ante at 6-7. Put another way, when a witness wishes to take back what she has already asserted under oath, she has some explaining to do; and if a reasonable explanation is not forthcoming, the court need not let her testify a second time. See United States v. Stewart, 198 F.3d 984, 986 (7th Cir. 1999), cited ante at 7; see also Higgins v. Mississippi, No. 97-3521, 2000 WL 869416, at *3 (7th Cir. June 30). Balderrama‘s statement is not a true recantation in this sense, however. At trial, Balderrama never implicated Mendiola as the person who shot Gutierrez. Instead, she recounted the sequence of events that culminated in the shooting and gave a vague description of the shooter. In no respect does her post-trial statement conflict with the substance of her testimony. The statement certainly does convey information that Balderrama did not disclose at trial, but in virtually every instance, this was information that she was never asked about at trial. She was never asked, for example, whether the shooter wore his hair in a ponytail. She was never asked if Mendiola
My colleagues also suggest that Balderrama‘s statement “made little sense.” Ante at 7. “Why would she testify as she did,” they ask, “and then sing a different song immediately after leaving the stand?” Id. (emphasis in original). As I have just explained, however, Balderrama‘s post-trial statement does not amount to a different song so much as an additional verse. So far as the record discloses, when Balderrama took the witness stand, no one thought that she could or would identify Mendiola as Gutierrez‘s assailant. She had not picked Mendiola out of the line-up (see B116), she had not seen the shooter‘s face (B115-16), and could only describe the shooter in general terms (B116, B124). Her own realization that she did recognize Mendiola (as someone other than the shooter) did not occur until she was on the witness stand. C119. Because no one else was the wiser at that point, she was not asked while on the stand whether she recognized him. The fact that she (allegedly) spoke up immediately after she finished testifying if anything lends credibility to her account of events. Would my colleagues think her allegations more credible if she had waited a month or two (or a year or two) before approaching the prosecutor?
The notion that the trial judge was entitled to credit the prosecutor‘s unsworn, hearsay denial because prosecutors have “reputational interests in telling the truth” (ante at 7) makes insufficient room for the real world. Yes, prosecutors, like other attorneys, have an interest in preserving their credibility; confessing small sins serves that interest. But I hardly think it likely that a prosecutor who actually instructs a witness to suppress exculpatory information is going to be forthcoming about it, when it is only her word against his. If indeed a prosecutor has engaged in the kind of serious misconduct that Balderrama alleges, arguably it would not be in his “reputational interest” to acknowledge the impropriety. Confessing to conduct that amounts to the obstruction of justice will not do much to advance a prosecutor‘s career. Whatever we might think in the abstract, the important point is that we know that some prosecutors do engage in this sort of misconduct (see, e.g., cases cited supra at 16), and that they don‘t always tell the truth about it. Balderrama‘s allegations are
Finally, the suggestion that there are “sensible” policy reasons to disbelieve recantations categorically (ante at 7) is bothersome. Recantations should be viewed with a healthy dose of skepticism, for all of the reasons my colleagues have cited. But as we know, witnesses don‘t always wait until after they leave the courtroom to dissemble. Just as a witness may recant her testimony later to appease the defendant and his allies, she may also lie in the first instance, perhaps to appease the prosecution, to protect someone else, or to exculpate herself. In short, the recantation on occasion represents the truth.5 Deciding when that is so is by no means an easy task, and when the trial judge has given the witness‘s change of heart due consideration, his judgment is entitled to our deference. But when a court rejects a plausible recantation out of hand, without any of the process that attends a valid credibility assessment, we owe the court‘s finding no respect. To sustain such a summary determination, as we do today, is to unnecessarily exalt the sovereignty of state courts over due process and the pursuit of truth.
5.
Four state judges, my brothers note in closing, have chosen to disbelieve Balderrama‘s post-trial statement exonerating Mendiola. Ante at 8. With all due respect to my colleagues on the Illinois courts, it would not matter if 100 of them had done so, since not one has actually heard what Balderrama has to say. And given that Balderrama and the prosecutor are the only two people who know whether her allegations are true, Mendiola cannot possibly marshal the clear and convincing evidence needed to show that the state courts’ credibility assessment is wrong (see ante at 6, 8) unless and until he is given the chance to put Balderrama on the witness stand.
The gravity of the trial court‘s mistake is demonstrated by the lengths to which the Illinois appellate court, and now this court, have gone to compensate for it. Had the trial judge simply done his job and conducted an evidentiary hearing that would have enabled him to decide whether Balderrama‘s post-trial statement is truthful, we would not be here today. Instead, we find ourselves struggling to prop up credibility assessments fashioned of smoke and mirrors. It is not our province to second-guess state courts, but neither is it our province to gloss over
I respectfully dissent.
ILANA DIAMOND ROVNER
UNITED STATES CIRCUIT JUDGE