Thе Court of Appeals for the Ninth Circuit reversed the District Court’s denial of habeas relief based on its speculation that the prosecution’s failure to turn over the results of a polygraph examination of a key witness might have had an adverse effеct on pretrial preparation by the defense. The Court of Appeals assumed, and the parties do not dispute, that the results were inadmissible under state law both for substantive purposes as well as for impeachment. The decision below is а misapplication of our
Brady
jurisprudence, see
Brady
v.
Maryland,
I
On August 1, 1981, respondent Dwayne Bartholomew robbed a laundromat in Tacoma, Washington. In the course of the robbery, the laundromat attendant was shot and killed. Two shots were fired: One hit the attendant in the head; the second lodged in a counter near the victim’s body. From the beginning, respondent admitted that he committed the robbery and that the shots came from his gun.
In addition to the physical evidence concerning the operation of the gun, the prosecution’s evidence consisted of the testimony of respondent’s brother, Rodney Bartholomew, and of Rodnеy’s girlfriend, Tracy Dormady. Both Rodney and Tracy testified that on the day of the crime they had gone to the laundromat in question to do their laundry, and that respondent was sitting in his car in the parking lot when they arrived. While waiting for their laundry, Rodney sat with his brother in the car. Rodnеy testified that respondent told him that he intended to rob the laundromat and “leave no witnesses.” According to their testimony, Rodney and Tracy left the laundromat soon after the conversation and went to Tracy’s house. Respondent arrived at the hоuse a short time later, and when Tracy asked respondent if he had killed the attendant respondent said “he had put two bullets in the kid’s head.” Tracy also testified that she had heard respondent say that he intended to leave no witnesses. Both Rodney and Tracy’s testimony was consistent with their pretrial statements to the police.
State
v.
Bartholomew,
Respondent testified in his own defense. He admitted threatening the victim with his gun and forcing him to lie down on the floor. Respondent said, however, that while he was removing money from the cаsh drawer his gun acci-dently fired, discharging a bullet into the victim’s head. Respondent further claimed that the gun went off a second time while he was running away. Respondent denied telling Rodney or Tracy that he intended to leave no witnesses. According to his testimony, moreover, Rodney had assisted in
At the sentencing phase of the trial (respondent was sentenced to death but his sentence was overturned on appeal and he was resentenced to life imprisonment without the possibility of parole), the prosecution’s first witness was respondent’s cellmate, Stanley Bell. Bell testified that respondent told him that he made the victim lie on the floor, asked him his age, found out it was 17, replied “[t]oo bad,” and shot him. See
State
v.
Bartholomew, supra,
at 178,
Before trial, the prosecution requested that Rodney and Tracy submit to polygraph examinations. The answers of both witnesses to the questions asked by the polygraph examiner were consistent with their testimony at trial. As part of the polygrаph examination, the examiner asked Tracy whether she had helped respondent commit the robbery and whether she had ever handled the murder weapon. Tracy answered in the negative to both questions. The results of the testing as to these questions were inconclusive, but the examiner noted his personal opinion that her responses were truthful. The examiner also asked Rodney whether he had assisted his brother in the robbery and whether at any time he and his brother were in the laundromat together. Rоdney responded in the negative to both questions, and the examiner concluded that the responses to the questions indicated deception. Neither examination was disclosed to the defense.
After exhausting his state remedies, respondent filed a ha-beas action in the District Court for the Western District of Washington, raising,
inter alia,
a
Brady
claim based on the
On appeal, the Ninth Circuit reversed.
II
If the prosecution’s initial denial that polygraph examinations of the two witnesses existed were an intentional misstatement, we would not hesitate to condemn that misrepresentation in the strongest terms. But as we reiterated just last Term, evidence is “material” under
Brady,
and the failure to disclose it justifies setting aside a conviction, only where there exists a “reasonable probability” that had the evidence been disclosed the result at trial would have been different.
Kyles
v.
Whitley,
At trial, respondent’s strategy was to discredit Rodney’s damaging testimony by suggesting that Rodney was lying in order to downplay his own involvement in the crime. Id., at 872. That strategy did not involve deposing Rodney. It is difficult to see, then, on what basis the Ninth Cirсuit concluded that respondent’s counsel would have prepared in a different manner, or (more important) would have discovered some unspecified additional evidence, merely by disclosure of polygraph results that, as to two questiоns, were consistent with respondent’s preestablished defense.
“Q: And you indicated that your cross-exаmination of Rodney was, I think, somewhat limited because of concern that—
“A: It was limited in my own respect. Nobody tried to limit me. In my opinion, as a trial lawyer, that was a very dangerous witness to me, and I wanted to get as much as I could out of him without recalling the crystal words again. Leave no prisoners.
“Q: Do you think it would have been any help to you in doing that, if you had known of specific questions regarding the offense on which Mr. Rodney Bartholomew had failed a polygraph examination? Would that have perhaps affected the shape of your cross-examination of him?
“A: I think in retrospect they’re almost parallel. The questions that he failed were his contribution or implication in the offense, the holdup, with Mr. Dwayne Bartholomew. I believe they were in glоves, so in retrospect they wouldn’t have affected it. I would have liked to have known it, Mr. Ford, but I don’t think it would have affected the outcome of the case.” Tr. 55-56.
Trial counsel’s strategic decision to limit his questioning of Rodney undermines the suggestion by the Court of Apрeals that counsel might have chosen to depose Rodney had the polygraph results been disclosed. But of even greater importance was counsel’s candid acknowledgment that disclosure would not have affected the scope of his cross-
In short, it is not “reasonably likely” that disclosure of the polygraph results — inadmissible under state law — would have resulted in a different outcome at trial. Even without Rodney’s testimony, the case against respondent was overwhelming. To acquit of aggravated murder, the jury would have had to believe that respondent’s single action revolver discharged accidently, not once but twice, by tragic coincidence depositing a bullet to the back of the victim’s head, execution style, as the victim lay face dоwn on the floor. In the face of this physical evidence, as well as Rodney and Tracy’s testimony — to say nothing of the testimony by Bell that the State likely could introduce on retrial — it should take more than supposition on the weak premises offered by respondent to undermine a court’s confidence in the outcome.
Whenever a federal court grants habeas relief to a state prisoner the issuance of the writ exacts great costs to the-State’s legitimate interest in finality. And where, as here, retrial would occur 13 years later, those costs and burdens are compounded many times. Those costs may be justified where serious doubts about the reliability of a trial infested with constitutional error exist. But where, as in this case, a federal apрellate court, second-guessing a convict’s own trial counsel, grants habeas relief on the basis of little more than speculation with slight support, the proper delicate balance between the federal courts and the States is upsеt to a degree that requires correction.
* * *
It is so ordered.