OCTOBER TERM, 1994
Syllabus
KYLES
v. WHITLEY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 93-7927. Argued November 7, 1994-Decided April 19, 1995
Petitioner Kyles was convicted of first-degree murder by a
Louisiana jury and sentenced to death. Following the affirmance of
his conviction and sentence on direct appeal, it was revealed on
state collateral review that the State had never disclosed certain
evidence favorable to him. That evidence included,
inter
alia, (1) contemporaneous eyewitness statements taken by the
police following the murder; (2) various statements made to the
police by an informant known as "Beanie," who was never called to
testify; and (3) a computer printout of license numbers of cars
parked at the crime scene on the night of the murder, which did not
list the number of Kyles's car. The state trial court nevertheless
denied relief, and the State Supreme Court denied Kyles's
application for discretionary review. He then sought relief on
federal habeas, claiming, among other things, that his conviction
was obtained in violation of
Brady v.
Maryland,
373 U. S. 83,87,
which held that the suppression by the prosecution of evidence
favorable to an accused violates due process where the evidence is
material either to guilt or to punishment. The Federal District
Court denied relief, and the Fifth Circuit affirmed.
Held:
1. Under
United States v.
Bagley, 473 U. S. 667, four
aspects of materiality for
Brady purposes bear emphasis.
First, 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
different. Thus, 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. 473 U. S., at 682, 685.
United States v.
Agurs, 427 U.
S. 97, 112-113, distinguished. Second,
Bagley
materiality is not a sufficiency of evidence test. One does not
show a
Brady violation by demonstrating that some of the
inculpatory evidence should have been excluded, but by showing that
the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the
verdict. Third, contrary to the Fifth Circuit's assumption, once a
reviewing court applying
Bagley has found constitutional
error, there is no need for further harmless-error review, since
the constitutional standard for materi-
420
Syllabus
ality under
Bagley imposes a higher burden than the
harmless-error standard of
Brecht v.
Abrahamson,
507 U. S. 619,
623. Fourth, the state's disclosure obligation turns on the
cumulative effect of all suppressed evidence favorable to the
defense, not on the evidence considered item by item. 473 U. S., at
675, and n. 7. Thus, the prosecutor, who alone can know what is
undisclosed, must be assigned the responsibility to gauge the
likely net effect of all such evidence and make disclosure when the
point of "reasonable probability" is reached. Moreover, that
responsibility remains regardless of any failure by the police to
bring favorable evidence to the prosecutor's attention. To hold
otherwise would amount to a serious change of course from the
Brady line of cases. As the more likely reading of the Fifth
Circuit's opinion shows a series of independent materiality
evaluations, rather than the cumulative evaluation required by
Bagley, it is questionable whether that court evaluated the
significance of the undisclosed evidence in this case under the
correct standard. Pp. 432-441.
2. Because the net effect of the state-suppressed evidence
favoring Kyles raises a reasonable probability that its disclosure
would have produced a different result at trial, the conviction
cannot stand, and Kyles is entitled to a new trial. Pp.441-454.
(a) A review of the suppressed statements of eyewitnesses-whose
testimony identifying Kyles as the killer was the essence of the
State's case-reveals that their disclosure not only would have
resulted in a markedly weaker case for the prosecution and a
markedly stronger one for the defense, but also would have
substantially reduced or destroyed the value of the State's two
best witnesses. Pp.441-445.
(b) Similarly, a recapitulation of the suppressed statements
made to the police by Beanie-who, by the State's own admission, was
essential to its investigation and, indeed, "made the case" against
Kylesreveals that they were replete with significant
inconsistencies and affirmatively self-incriminating assertions,
that Beanie was anxious to see Kyles arrested for the murder, and
that the police had a remarkably uncritical attitude toward Beanie.
Disclosure would therefore have raised opportunities for the
defense to attack the thoroughness and even the good faith of the
investigation, and would also have allowed the defense to question
the probative value of certain crucial physical evidence.
Pp.445-449.
(c) While the suppression of the prosecution's list of the cars
at the crime scene after the murder does not rank with the failure
to disclose the other evidence herein discussed, the list would
have had some value as exculpation of Kyles, whose license plate
was not included thereon, and as impeachment of the prosecution's
arguments to the jury that the killer left his car at the scene
during the investigation and that a grainy
421
photograph of the scene showed Kyles's car in the background. It
would also have lent support to an argument that the police were
irresponsible in relying on inconsistent statements made by Beanie.
Pp.450-451.
(d) Although not every item of the State's case would have been
directly undercut if the foregoing
Brady evidence had been
disclosed, it is significant that the physical evidence remaining
unscathed would, by the State's own admission, hardly have amounted
to overwhelming proof that Kyles was the murderer. While the
inconclusiveness of that evidence does not prove Kyles's innocence,
and the jury might have found the unimpeached eyewitness testimony
sufficient to convict, confidence that the verdict would have been
the same cannot survive a recap of the suppressed evidence and its
significance for the prosecution. Pp.451-454.
5 F.3d
806, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. STEVENS, J.,
filed a concurring opinion, in which GINSBURG and BREYER, JJ.,
joined,
post, p. 454. SCALIA, J., filed a dissenting
opinion, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ.,
joined,
post, p. 456.
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
422
a reasonable probability that its disclosure would have produced
a different result, Kyles is entitled to a new trial.
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.
1 The dissent suggests that
Burger is not authority for
error correction in capital cases, at least when two previous
reviewing courts have found no error.
Post, at 457. We
explain,
infra, at 440-441, that this is not a case of
simple error correction. As for the significance of prior review,
Burger cautions that this Court should not "substitute
speculation" for the "considered opinions" of two lower courts. 483
U. S., at 785. No one could disagree that "speculative" claims do
not carry much weight against careful evidentiary review by two
prior courts. There is nothing speculative, however, about Kyles's
Brady claim.
423
II 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
2 The record reveals that statements were taken from Edward
Williams and Lionel Plick, both waiting for a bus nearby; Isaac
Smallwood, Willie Jones, and Henry Williams, all working in the
Schwegmann's parking lot at the time of the murder; and Robert
Territo, driving a truck waiting at a nearby traffic light at the
moment of the shooting, who gave a statement to police on Friday,
the day after the murder.
424
record. Despite this list and the eyewitness descriptions, the
police had no lead to the gunman until the Saturday evening after
the shooting.
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 249250, 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
3 Because the informant had so many aliases, we will follow the
convention of the court below and refer to him throughout this
opinion as Beanie.
4 Johnny Burns is the brother of a woman known as Pinky Burns. A
number of trial witnesses referred to the relationship between
Kyles and Pinky Burns as a common-law marriage (Louisiana's civil
law notwithstanding). Kyles is the father of several of Pinky
Burns's children.
425
his hair in plaits, Beanie said that he did but that he "had a
bush" when Beanie bought the car.
Id., at 249.
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
"didn't 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
5 According to photographs later introduced at trial, Kyles's
car was actually a Mercury and, according to trial testimony, a
two-door model. Tr. 210 (Dec. 7, 1984).
426
up the car, Kyles had gone to some nearby bushes to retrieve a
brown purse,
id., at 253-255, which Kyles subsequently hid
in a wardrobe at his apartment. Beanie said that Kyles had "a lot
of groceries" in Schwegmann's bags and a new baby's potty "in the
car."
Id., at 254-255. Beanie told Eaton that Kyles's
garbage would go out the next day and that if Kyles was "smart" he
would "put [the purse] in [the] garbage."
Id., at 257.
Beanie made it clear that he expected some reward for his help,
saying at one point that he was not "doing all of this for
nothing."
Id., at 246. The police repeatedly assured Beanie
that he would not lose the $400 he paid for the car.
Id., at
243,246.
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
427
had seen Kyles with both just a few hours earlier. The police
neither noted the inconsistencies nor questioned Beanie about
them.
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
428
possibly being Dye's, and no potty was found. Later that
afternoon at the police station, police opened the rubbish bags and
found the victim's purse, identification, and other personal
belongings wrapped in a Schwegmann's sack.
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
429
given by Beanie on Sunday morning; (5) the computer printout of
license numbers of cars parked at Schwegmann's on the night of the
murder, which did not list the number of Kyles's car; (6) the
internal police memorandum calling for the seizure of the rubbish
after Beanie had suggested that the purse might be found there; and
(7) evidence linking Beanie to other crimes at Schwegmann's and to
the unrelated murder of one Patricia Leidenheimer, committed in
January before the Dye murder.
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
430
249-250.) He also said, for the first time, that when they had
picked up the car they were accompanied not only by Johnny Burns
but also by Kevin Black, who had testified for the defense at the
first trial. Beanie now claimed that after getting Kyles's car they
went to Black's house, retrieved a number of bags of groceries, a
child's potty, and a brown purse, all of which they took to Kyles's
apartment. Beanie also stated that on the Sunday after the murder
he had been at Kyles's apartment two separate times.
Notwithstanding the many inconsistencies and variations among
Beanie's statements, neither Strider's notes nor any of the other
notes and transcripts were given to the defense.
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
431
the stove where the gun was eventually found, and the defense
presented testimony that Beanie was romantically interested in
Pinky Burns. To explain the pet food found in Kyles's apartment,
there was testimony that Kyles's family kept a dog and cat and
often fed stray animals in the neighborhood.
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
6 Pending appeal, Kyles filed a motion under Federal Rules of
Civil Procedure 60(b)(2) and (6) to reopen the District Court
judgment. In that motion, he charged that one of the eyewitnesses
who testified against him at trial committed perjury. In the
witness's accompanying affidavit, Darlene Kersh (formerly Cahill),
the only such witness who had not given a contemporaneous
statement, swears that she told the prosecutors and
432
King dissented, writing that "[f]or the first time in my
fourteen years on this court ... I have serious reservations about
whether the State has sentenced to death the right man." 5 F. 3d,
at 820.
III
The prosecution's affirmative duty to disclose evidence
favorable to a defendant can trace its origins to early 20thcentury
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
detectives she did not have an opportunity to view the
assailant's face and could not identify him. Nevertheless, Kersh
identified Kyles untruthfully, she says, after being "told by some
people ... [who] I think ... were district attorneys and police,
that the murderer would be the guy seated at the table with the
attorney and that that was the one I should identify as the
murderer. One of the people there was at the D. A.'s table at the
trial. To the best of my knowledge there was only one black man
sitting at the counsel table and I pointed him out as the one I had
seen shoot the lady." Kersh claims to have agreed to the State's
wishes only after the police and district attorneys assured her
that "all the other evidence pointed to [Kyles] as the killer."
Mfidavit of Darlene Kersh 5, 7.
The District Court denied the motion as an abuse of the writ,
although its order was vacated by the Court of Appeals for the
Fifth Circuit with instructions to deny the motion on the ground
that a petitioner may not use a Rule 60(b) motion to raise
constitutional claims not included in the original habeas petition.
That ruling is not before us. After denial of his Rule 60(b)
motion, Kyles again sought state collateral review on the basis of
Kersh's affidavit. The Supreme Court of Louisiana granted
discretionary review and ordered the trial court to conduct an
evidentiary hearing; all state proceedings are currently stayed
pending our review of Kyles's federal habeas petition.
433
(1972). In
United States v.
Agurs, 427 U. S. 97 (1976),
however, it became clear that a defendant's failure to request
favorable evidence did not leave the Government free of all
obligation. There, the Court distinguished three situations in
which a
Brady claim might arise: first, where previously
undisclosed evidence revealed that the prosecution introduced trial
testimony that it knew or should have known was perjured, 427 U.
S., at 103-104;7 second, where the Government failed to accede to a
defense request for disclosure of some specific kind of exculpatory
evidence,
id., at 104-107; and third, where the Government
failed to volunteer exculpatory evidence never requested, or
requested only in a general way. The Court found a duty on the part
of the Government even in this last situation, though only when
suppression of the evidence would be "of sufficient significance to
result in the denial of the defendant's right to a fair trial."
Id., at 108.
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-
7 The Court noted that "a conviction obtained by the knowing use
of perjured testimony is fundamentally unfair, and must be set
aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury."
Agurs, 427 U. S., at 103 (footnote omitted). As the ruling
pertaining to Kersh's affidavit is not before us, we do not
consider the question whether Kyles's conviction was obtained by
the knowing use of perjured testimony and our decision today does
not address any claim under the first
Agurs category. See n.
6,
supra.
434
ent." 473 U. S., at 682 (opinion of Blackmun, J.);
id.,
at 685 (White, J., concurring in part and concurring in
judgment).
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-
435
patory evidence in light of the undisclosed evidence, there
would not have been enough left to convict. The possibility of an
acquittal on a criminal charge does not imply an insufficient
evidentiary basis to convict. One does not show a
Brady
violation by demonstrating that some of the inculpatory evidence
should have been excluded, but by showing that the favorable
evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.8
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
8 This rule is clear, and none of the
Brady cases has
ever suggested that sufficiency of evidence (or insufficiency) is
the touchstone. And yet the dissent appears to assume that Kyles
must lose because there would still have been adequate evidence to
convict even if the favorable evidence had been disclosed. See
post, at 463 (possibility that Beanie planted evidence "is
perfectly consistent" with Kyles's guilt),
ibid. ("[T]he
jury could well have believed [portions of the defense theory] and
yet have condemned petitioner because it could not believe that
all four of the eyewitnesses were similarly mistaken"),
post, at 468 (the
Brady evidence would have left two
prosecution witnesses "totally untouched"), 469
(Brady
evidence "can be logically separated from the incriminating
evidence that would have remained unaffected").
436
Chapman v.
California, 386 U. S. 18, 24 (1967),
held that a conviction tainted by constitutional error must be set
aside unless the error complained of "was harmless beyond a
reasonable doubt," we held in
Brecht that the standard of
harmlessness generally to be applied in habeas cases is the
Kotteak os formulation (previously applicable only in
reviewing nonconstitutional errors on direct appeal),
Brecht,
supra, at 622-623. Under
Kotteakos a conviction may be
set aside only if the error "had substantial and injurious effect
or influence in determining the jury's verdict."
Kotteakos,
supra, at 776.
Agurs, however, had previously rejected
Kotteakos as the standard governing constitutional
disclosure claims, reasoning that "the constitutional standard of
materiality must impose a higher burden on the defendant."
Agurs, 427 U. S., at 112.
Agurs thus opted for its
formulation of materiality, later adopted as the test for prejudice
in
Strickland, only after expressly noting that this
standard would recognize reversible constitutional error only when
the harm to the defendant was greater than the harm sufficient for
reversal under
Kotteakos. In sum, once there has been
Bagley error as claimed in this case, it cannot subsequently
be found harmless under
Brecht. 9
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.lO As Justice Blackmun
emphasized in the portion of his opinion written for the Court, the
Constitution is not violated every time the
9 See also
Hill v.
Lockhart, 28
F.3d 832, 839
(CA8 1994) ("[I]t is unnecessary to add a
separate layer of harmless-error analysis to an evaluation of
whether a petitioner in a habeas case has presented a
constitutionally significant claim for ineffective assistance of
counsel").
10 The dissent accuses us of overlooking this point and of
assuming that the favorable significance of a given item of
undisclosed evidence is enough to demonstrate a
Brady
violation. We evaluate the tendency and force of the undisclosed
evidence item by item; there is no other way. We evaluate its
cumulative effect for purposes of materiality separately and at the
end of the discussion, at Part IV -D,
infra.
437
government fails or chooses not to disclose evidence that might
prove helpful to the defense. 473 U. S., at 675, and n. 7. We have
never held that the Constitution demands an open file policy
(however such a policy might work out in practice), and the rule in
Bagley (and, hence, in
Brady) requires less of the
prosecution than the ABA Standards for Criminal Justice, which call
generally for prosecutorial disclosures of any evidence tending to
exculpate or mitigate. See ABA Standards for Criminal Justice,
Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993)
("A prosecutor should not intentionally fail to make timely
disclosure to the defense, at the earliest feasible opportunity, of
the existence of all evidence or information which tends to negate
the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused"); ABA Model
Rule of Professional Conduct 3.8(d) (1984) ("The prosecutor in a
criminal case shall ... make timely disclosure to the defense of
all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense").
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
438
or bad faith, see
Brady, 373 U. S., at 87), the
prosecution's responsibility for failing to disclose known,
favorable evidence rising to a material level of importance is
inescapable.
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.ll 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.
11 The State's counsel retreated from this suggestion at oral
argument, conceding that the State is "held to a disclosure
standard based on what all State officers at the time knew." Tr. of
Oral Arg. 40.
439
Uncertainty about the degree of further "leeway" that might
satisfy the State's request for a "certain amount" of it is the
least of the reasons to deny the request. At bottom, what the State
fails to recognize is that, with or without more leeway, the
prosecution cannot be subject to any disclosure obligation without
at some point having the responsibility to determine when it must
act. Indeed, even if due process were thought to be violated by
every failure to disclose an item of exculpatory or impeachment
evidence (leaving harmless error as the government's only
fallback), the prosecutor would still be forced to make judgment
calls about what would count as favorable evidence, owing to the
very fact that the character of a piece of evidence as favorable
will often turn on the context of the existing or potential
evidentiary record. Since the prosecutor would have to exercise
some judgment even if the State were subject to this most stringent
disclosure obligation, it is hard to find merit in the State's
complaint over the responsibility for judgment under the existing
system, which does not tax the prosecutor with error for any
failure to disclose, absent a further showing of materiality.
Unless, indeed, the adversary system of prosecution is to descend
to a gladiatorial level unmitigated by any prosecutorial obligation
for the sake of truth, the government simply cannot avoid
responsibility for knowing when the suppression of evidence has
come to portend such an effect on a trial's outcome as to destroy
confidence in its result.
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).
440
And it will tend to preserve the criminal trial, as distinct
from the prosecutor's private deliberations, as the chosen forum
for ascertaining the truth about criminal accusations. See
Rose v.
Clark, 478 U. S. 570, 577-578
(1986);
Estes v.
Texas, 381 U. S. 532, 540
(1965);
United States v.
Leon, 468 U. S. 897, 900-901
(1984) (recognizing general goal of establishing "procedures under
which criminal defendants are 'acquitted or convicted on the basis
of all the evidence which exposes the truth'" (quoting
Alderman v.
United States, 394 U. S. 165, 175
(1969)). The prudence of the careful prosecutor should not
therefore be discouraged.
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
("[WJe 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-
441
ence"). The result reached by the Fifth Circuit majority is
compatible with a series of independent materiality evaluations,
rather than the cumulative evaluation required by
Bagley, as
the ensuing discussion will show.
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,
12 The record makes numerous references to Kyles being
approximately six feet tall and slender; photographs in the record
tend to confirm these descriptions. The description of Beanie in
the text comes from his police file. Record photographs of Beanie
also depict a man possessing a medium build.
442
the defense would have had a compelling argument that Williams's
description pointed to Beanie but not to Kyles.13
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-
13 The defense could have further underscored the possibility
that Beanie was Dye's killer through cross-examination of the
police on their failure to direct any investigation against Beanie.
If the police had disclosed Beanie's statements, they would have
been forced to admit that their informant Beanie described Kyles as
generally wearing his hair in a "bush" style (and so wearing it
when he sold the car to Beanie), whereas Beanie wore his in plaits.
There was a considerable amount of such
Brady evidence on
which the defense could have attacked the investigation as shoddy.
The police failed to disclose that Beanie had charges pending
against him for a theft at the same Schwegmann's store and was a
primary suspect in the January 1984 murder of Patricia
Leidenheimer, who, like Dye, was an older woman shot once in the
head during an armed robbery. (Even though Beanie was a primary
suspect in the Leidenheimer murder as early as September, he was
not interviewed by the police about it until after Kyles's second
trial in December. Beanie confessed his involvement in the murder,
but was never charged in connection with it.) These were additional
reasons for Beanie to ingratiate himself with the police and for
the police to treat him with a suspicion they did not show. Indeed,
notwithstanding JUSTICE SCALIA'S suggestion that Beanie would have
been "stupid" to inject himself into the investigation,
post, at 461, the
Brady evidence would have revealed
at least two motives for Beanie to come forward: he was interested
in reward money and he was worried that he was already a suspect in
Dye's murder (indeed, he had been seen driving the victim's car,
which had been the subject of newspaper and television reports).
See
supra, at 425-426. For a discussion of further
Brady evidence to attack the investigation, see especially
Part IV-B,
infra.
443
wood claimed that he had not seen the actual murder and had not
seen the assailant outside the vehicle. "I heard a lound [sic]
pop," he said. "When I looked around I saw a lady laying on the
ground, and there was a red car coming toward me." App. 189.
Smallwood said that he got a look at the culprit, a black teenage
male with a mustache and shoulder-length braided hair, as the
victim's red Thunderbird passed where he was standing. When a
police investigator specifically asked him whether he had seen the
assailant outside the car, Smallwood answered that he had not; the
gunman "was already in the car and coming toward me."
Id.,
at 188-190.
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
14 The implication of coaching would have been complemented by
the fact that Smallwood's testimony at the second trial was much
more precise and incriminating than his testimony at the first,
which produced a hung jury. At the first trial, Smallwood testified
that he looked around only after he heard something go off, that
Dye was already on the ground, and that he "watched the guy get in
the car." Tr. 50-51 (Nov. 26, 1984). When asked to describe the
killer, Smallwood stated that he "just got a glance of him from the
side" and "couldn't even get a look in the face."
Id., at
52, 54.
The State contends that this change actually cuts in its favor
under
Brady, since it provided Kyles's defense with grounds
for impeachment
444
Since the evolution over time of a given eyewitness's
description can be fatal to its reliability, cf.
Manson v.
Brathwaite, 432
U. S. 98, 114 (1977) (reliability depends in part on the
accuracy of prior description);
Neil v.
Biggers,
409 U. S. 188,
199 (1972) (reliability of identification following impermissibly
suggestive lineup depends in part on accuracy of witness's prior
description), the Smallwood and Williams identifications would have
been severely undermined by use of their suppressed statements. The
likely damage is best understood by taking the word of the
prosecutor, who contended during closing arguments that Smallwood
and Williams were the State's two best witnesses. See Tr. of
Closing Arg. 49 (Dec. 7, 1984) (After discussing Territo's and
Kersh's testimony: "Isaac Smallwood, have you ever seen a better
witness[?] ... What's better than that is Henry Williams .... Henry
Williams was the closest of them all
without any need to disclose Smallwood's statement. Brief for
Respondent 17-18. This is true, but not true enough;
inconsistencies between the two bodies of trial testimony provided
opportunities for chipping away on cross-examination but not for
the assault that was warranted. While Smallwood's testimony at the
first trial was similar to his contemporaneous account in some
respects (for example, he said he looked around only after he heard
the gunshot and that Dye was already on the ground), it differed in
one of the most important: Smallwood's version at the first trial
already included his observation of the gunman outside the car.
Defense counsel was not, therefore, clearly put on notice that
Smallwood's capacity to identify the killer's body type was open to
serious attack; even less was he informed that Smallwood had
answered "no" when asked if he had seen the killer outside the car.
If Smallwood had in fact seen the gunman only after the assailant
had entered Dye's car, as he said in his original statement, it
would have been difficult if not impossible for him to notice two
key characteristics distinguishing Kyles from Beanie, their heights
and builds. Moreover, in the first trial, Smallwood specifically
stated that the killer's hair was "kind of like short ... knotted
up on his head." Tr. 60 (Nov. 26, 1984). This description was not
inconsistent with his testimony at the second trial but directly
contradicted his statement at the scene of the murder that the
killer had shoulder-length hair. The dissent says that Smallwood's
testimony would have been "barely affected" by the expected
impeachment,
post, at 468; that would have been a brave jury
argument.
445
right here"). Nor, of course, would the harm to the State's case
on identity have been confined to their testimony alone. The fact
that neither Williams nor Smallwood could have provided a
consistent eyewitness description pointing to Kyles would have
undercut the prosecution all the more because the remaining
eyewitnesses called to testify (Territo and Kersh) had their best
views of the gunman only as he fled the scene with his body partly
concealed in Dye's car. And even aside from such important details,
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. See
Agurs, 427 U. S., at 112-113, n.
21.
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-
446
lice, he said he bought the LTD on Thursday, and in his
conversation with the prosecutor between trials it was again on
Thursday that he said he helped Kyles retrieve Kyles's car.
Although none of the first three versions of this story mentioned
Kevin Black as taking part in the retrieval of the car and transfer
of groceries, after Black implicated Beanie by his testimony for
the defense at the first trial, Beanie changed his story to include
Black as a participant. In Beanie's several accounts, Dye's purse
first shows up variously next to a building, in some bushes, in
Kyles's car, and at Black's house.
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 (CAlO 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
15 The dissent,
post, at 464, suggests that for jurors to
count the sloppiness of the investigation against the probative
force of the State's evidence would have been irrational, but of
course it would have been no such thing. When, for example, the
probative force of evidence depends on the circumstances in which
it was obtained and those circumstances raise a possibility of
fraud, indications of conscientious police work will enhance
probative force and slovenly work will diminish it. See discussion
of purse and gun,
infra, at 447-449.
447
By demonstrating the detectives' knowledge of Beanie's
affirmatively self-incriminating statements, the defense could have
laid the foundation for a vigorous argument that the police had
been guilty of negligence. In his initial meeting with police,
Beanie admitted twice that he changed the license plates on the
LTD. This admission enhanced the suspiciousness of his possession
of the car; the defense could have argued persuasively that he was
no bona fide purchaser. And when combined with his police record,
evidence of prior criminal activity near Schwegmann's, and his
status as a suspect in another murder, his devious behavior gave
reason to believe that he had done more than buy a stolen car.
There was further self-incrimination in Beanie's statement that
Kyles's car was parked in the same part of the Schwegmann's lot
where Dye was killed. Beanie's apparent awareness of the specific
location of the murder could have been based, as the State
contends, on television or newspaper reports, but perhaps it was
not. Cf. App. 215 (Beanie saying that he knew about the murder
because his brother-in-law had seen it "on T. V. and in the paper"
and had told Beanie). Since the police admittedly never treated
Beanie as a suspect, the defense could thus have used his
statements to throw the reliability of the investigation into doubt
and to sully the credibility of Detective Dillman, who testified
that Beanie was never a suspect, Tr. 103-105, 107 (Dec. 6, 1984),
and that he had "no knowledge" that Beanie had changed the license
plate,
id., at 95.
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
448
would be in the garbage, would have supported the defense's
theory that Beanie was no mere observer, but was determining the
investigation's direction and success. The potential for damage
from using Beanie's statement to undermine the ostensible integrity
of the investigation is only confirmed by the prosecutor's
admission at one of Kyles's postconviction hearings, that he did
not recall a single instance before this case when police had
searched and seized garbage on the street in front of a residence,
Tr. of Hearing on PostConviction Relief 113 (Feb. 20, 1989), and by
Detective John Miller's admission at the same hearing that he
thought at the time that it "was a possibility" that Beanie had
planted the incriminating evidence in the garbage, Tr. of Hearing
on Post-Conviction Relief 51 (Feb. 24, 1989). If a police officer
thought so, a juror would have, toO.16
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
16 The dissent, rightly, does not contend that Beanie would have
had a hard time planting the purse in Kyles's garbage. See
post, at 471 (arguing that it would have been difficult for
Beanie to plant the gun and homemade holster). All that would have
been needed was for Beanie to put the purse into a trash bag out on
the curb. See Tr. 97, 101 (Dec. 6, 1984) (testimony of Detective
Dillman; garbage bags were seized from "a common garbage area" on
the street in "the early morning hours when there wouldn't be
anyone on the street").
17The dissent,
post, at 461-462, argues that it would
have been stupid for Beanie to have tantalized the police with the
prospect of finding the gun one day before he may have planted it.
It is odd that the dissent thinks the
Brady reassessment
requires the assumption that Beanie was shrewd and sophisticated:
the suppressed evidence indicates that within a period of a few
hours after he first called police Beanie gave three different
accounts of Kyles's recovery of the purse (and gave yet another
about a month later).
449
suggestion that the police "set up" Kyles, and the defense could
have argued that the police accepted the invitation. The
prosecutor's notes of his interview with Beanie would have shown
that police officers were asking Beanie the whereabouts of the gun
all day Sunday, the very day when he was twice at Kyles's apartment
and was allegedly seen by Johnny Burns lurking near the stove,
where the gun was later found.18 Beanie's same statement, indeed,
could have been used to cap an attack on the integrity of the
investigation and on the reliability of Detective Dillman, who
testified on cross-examination that he did not know if Beanie had
been at Kyles's apartment on Sunday. Tr. 93, 101 (Dec. 6,
1984).19
18 The dissent would rule out any suspicion because Beanie was
said to have worn a "tank-top" shirt during his visits to the
apartment,
post, at 471; we suppose that a small handgun
could have been carried in a man's trousers, just as a witness for
the State claimed the killer had carried it, Tr. 52 (Dec. 6, 1984)
(Williams). Similarly, the record photograph of the homemade
holster indicates that the jury could have found it to be
constructed of insubstantial leather or cloth, duct tape, and
string, concealable in a pocket.
19 In evaluating the weight of all these evidentiary items, it
bears mention that they would not have functioned as mere isolated
bits of good luck for Kyles. Their combined force in attacking the
process by which the police gathered evidence and assembled the
case would have complemented, and have been complemented by, the
testimony actually offered by Kyles's friends and family to show
that Beanie had framed Kyles. Exposure to Beanie's own words, even
through cross-examination of the police officers, would have made
the defense's case more plausible and reduced its vulnerability to
credibility attack. Johnny Burns, for example, was subjected to
sharp cross-examination after testifying that he had seen Beanie
change the license plate on the LTD, that he walked in on Beanie
stooping near the stove in Kyles's kitchen, that he had seen Beanie
with handguns of various calibers, including a .32, and that he was
testifying for the defense even though Beanie was his "best
friend." Tr. 260, 262263, 279, 280 (Dec. 7, 1984). On each of these
points, Burns's testimony would have been consistent with the
withheld evidence: that Beanie had spoken of Burns to the police as
his "partner," had admitted to changing the LTD's license plate,
had attended Sunday dinner at Kyles's apartment, and had a history
of violent crime, rendering his use of guns more likely. With this
information, the defense could have challenged the
prosecution's
450
c
Next to be considered is the prosecution's list of the cars in
the Schwegmann's parking lot at mid-evening after the murder. While
its suppression does not rank with the failure to disclose the
other evidence discussed here, it would have had some value as
exculpation and impeachment, and it counts accordingly in
determining whether
Bagley's standard of materiality is
satisfied. On the police's assumption, argued to the jury, that the
killer drove to the lot and left his car there during the heat of
the investigation, the list without Kyles's registration would
obviously have helped Kyles and would have had some value in
countering an argument by the prosecution that a grainy enlargement
of a photograph of the crime scene showed Kyles's car in the
background. The list would also have shown that the police either
knew that it was inconsistent with their informant's second and
third statements (in which Beanie described retrieving Kyles's car
after the time the list was compiled) or never even bothered to
check the informant's story against known fact. Either way, the
defense would have had further support for arguing that the police
were irresponsible in relying on Beanie to tip them off to the
location of evidence damaging to Kyles.
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
good faith on at least some of the points of cross-examination
mentioned and could have elicited police testimony to blunt the
effect of the attack on Burns.
JUSTICE SCALIA suggests that we should "gauge" Burns's
credibility by observing that the state judge presiding over
Kyles's postconviction proceeding did not find Burns's testimony in
that proceeding to be convincing, and by noting that Burns has
since been convicted for killing Beanie.
Post, at 471-472.
Of course neither observation could possibly have affected the
jury's appraisal of Burns's credibility at the time of Kyles's
trials.
451
not purport to be a comprehensive listing of all the cars in the
Schwegmann's lot. Such argument, however, confuses the weight of
the evidence with its favorable tendency, and even if accepted
would work against the State, not for it. If the police had
testified that the list was incomplete, they would simply have
underscored the unreliability of the investigation and complemented
the defense's attack on the failure to treat Beanie as a suspect
and his statements with a presumption of fallibility. But however
the evidence would have been used, it would have had some weight
and its tendency would have been favorable to Kyles.
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
452
was right in describing the way it was priced at Schwegmann's
market, where he commonly shopped.20
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-Iong 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
20 Kyles testified that he believed the pet food to have been on
sale because "they had a little sign there that said three for such
and such, two for such and such at a cheaper price. It wasn't even
over a dollar." Tr. 341 (Dec. 7, 1984). When asked about the sign,
Kyles said it "wasn't big ... [i]t was a little bitty piece of slip
... on the shelf."
Id., at 342. Subsequently, the prices
were revealed as in fact being "[t]hree for 89 [cents]" and "two
for 77 [cents],"
id., at 343, which comported exactly with
Kyles's earlier description. The director of advertising at
Schwegmann's testified that the items purchased by Kyles had not
been on sale, but also explained that the multiple pricing was
thought to make the products "more attractive" to the customer.
Id., at 396. The advertising director stated that store
policy was to not have signs on the shelves, but he also admitted
that salespeople sometimes disregarded the policy and put signs up
anyway, and that he could not say for sure whether there were signs
up on the day Kyles said he bought the pet food.
Id., at
398-399. The dissent suggests,
post, at 473, that Kyles must
have been so "very poor" as to be unable to purchase the pet food.
The total cost of the 15 cans of pet food found in Kyles's
apartment would have been $5.67. See Tr. 188, 395 (Dec. 7, 1984).
Rather than being "damning,"
post, at 472, the pet food
evidence was thus equivocal and, in any event, was not the crux of
the prosecution's case, as the State has conceded. See
supra, at 451 and this page.
21 The State's counsel admitted at oral argument that its case
depended on the facially implausible notion that Dye had not made
her typical weekly grocery purchases on the day of the murder (if
she had, the receipt
453
The inconclusiveness of the physical evidence does not, to be
sure, prove Kyles's innocence, and the jury might have found the
eyewitness testimony of Territo and Kersh sufficient to convict,
even though less damning to Kyles than that of Smallwood and
Williams.22 But the question is not whether the State would have
had a case to go to the jury if it had disclosed the favorable
evidence, but whether we can be confident that the jury's verdict
would have been the same. Confidence that it would have been cannot
survive a recap of the suppressed evidence and its significance for
the prosecution. The jury would have been entitled to find
(a) 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;
(b) that the lead police detective who testified was either less
than wholly candid or less than fully informed;
(c) 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;
(d) 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;
(e) 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
would have been longer), but that she had indeed made her
typical weekly purchases of pet food (hence the presence of the pet
food in Kyles's apartment, which the State claimed were Dye's). Tr.
of Oral Arg. 53-54.
22 See
supra, at 445. On remand, of course, the State's
case will be weaker still, since the prosecution is unlikely to
rely on Kersh, who now swears that she committed perjury at the two
trials when she identified Kyles as the murderer. See n. 6,
supra.
454
claimed to have seen the shooting, described the murder weapon
exactly, and omitted portions of his initial description that would
have been troublesome for the case; (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
455
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 wellsettled
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
456
duty conveys a message more significant than even the most
penetrating legal analysis.
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-
457
trict court and court of appeals are in agreement as to what
conclusion the record requires. See,
e. g., Graver Tank
& Mfg. Co. v.
Linde Air Products Co.,
336 U. S. 271,
275 (1949). How much the more should the policy be honored in this
case, a federal habeas proceeding where not only both lower federal
courts but also the state courts on postconviction review have all
reviewed and rejected precisely the factspecific claim before us.
Cf. 28 U. S. C. § 2254(d) (requiring federal habeas courts to
accord a presumption of correctness to state-court findings of
fact);
Sumner, supra, at 550, n. 3. Instead, however, the
Court not only grants certiorari to consider whether the Court of
Appeals (and all the previous courts that agreed with it) was
correct as to what the facts showed in a case where the answer is
far from clear, but in the process of such consideration renders
new findings of fact and judgments of credibility appropriate to a
trial court of original jurisdiction. See,
e. g., ante, at
425 ("Beanie seemed eager to cast suspicion on Kyles");
ante, at 441, n. 12 ("Record photographs of Beanie ...
depict a man possessing a medium build");
ante, at 449, n.
18 ("the record photograph of the homemade holster indicates ...
").
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,
458
to reassure America that the United States Supreme Court is
reviewing capital convictions to make sure no factual error has
been made. If so, it is a false symbol, for we assuredly do not do
that. At, and during the week preceding, our February 24
Conference, for example, we considered and disposed of 10 petitions
in capital cases, from seven States. We carefully considered
whether the convictions and sentences in those cases had been
obtained in reliance upon correct principles of federal law; but if
we had tried to consider, in addition, whether those correct
principles had been applied, not merely plausibly, but
accurately, to the particular facts of each case, we would
have done nothing else for the week. The reality is that
responsibility for factual accuracy, in capital cases as in other
cases, rests elsewhere-with trial judges and juries, state
appellate courts, and the lower federal courts; we do nothing but
encourage foolish reliance to pretend otherwise.
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
459
requires a series of independent materiality evaluations; in
fact, the court said just the contrary. See 5 F. 3d, at 817 ("[WJe
are not persuaded that it is reasonably probable that the jury
would have found in Kyles' favor if exposed to any
or all of
the undisclosed materials") (emphasis added). If the decision is
read, shall we say, cumulatively, it is clear beyond cavil that the
court assessed the cumulative effect of the
Brady evidence
in the context of the whole record. See 5 F. 3d, at 807 (basing its
rejection of petitioner's claim on "a complete reading of the
record");
id., at 811 ("Rather than reviewing the alleged
Brady materials in the abstract, we will examine the
evidence presented at trial and how the extra materials would have
fit");
id., at 813 ("We must bear [the eyewitness testimony]
in mind while assessing the probable effect of other undisclosed
information"). It is, in other words, the Court itself which errs
in the manner that it accuses the Court of Appeals of erring:
failing to consider the material under review as a whole. The
isolated snippets it quotes from the decision merely do what the
Court's own opinion acknowledges must be done: to "evaluate the
tendency and force of the undisclosed evidence item by item; there
is no other way."
Ante, at 436, n. 10. Finally, the Court
falls back on this: "The result reached by the Fifth Circuit
majority is compatible with a series of independent materiality
evaluations, rather than the cumulative evaluation required by
Bagley," ante, at 441. In other words, even though the Fifth
Circuit plainly enunciated the
correct legal rule, since the
outcome it reached would not properly follow from that rule, the
Fifth Circuit must in fact (and unbeknownst to itself) have been
applying an
incorrect legal rule. This effectively
eliminates all distinction between mistake in law and mistake in
application.
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
460
or importance might warrant review despite the lack of a
conflict; nor yet even a decision that
patently errs in its
application of an old rule. What we have here is an intensely
fact-specific case in which the court below unquestionably applied
the correct rule of law and did not unquestionably err-precisely
the type of case in which we are
most inclined to deny
certiorari. But despite all of that, I would not have dissented on
the ground that the writ of certiorari should be dismissed as
improvidently granted. Since the majority is as aware of the limits
of our capacity as I am, there is little fear that the grant of
certiorari in a case of this sort will often be repeated-which is
to say little fear that today's grant has any generalizable
principle behind it. I am still forced to dissent, however,
because, having improvidently decided to review the facts of this
case, the Court goes on to get the facts wrong. Its findings are in
my view clearly erroneous, cf. Fed. Rule Civ. Proc. 52(a), and the
Court's verdict would be reversed if there were somewhere further
to appeal.
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,
461
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
1 The Court tries to explain all this by saying that Beanie
mistakenly thought that he had become a suspect. The only support
it provides for this is the fact that,
after having come forward
with the admission that
462
wicked Beanie is supposed to have suggested that the police
search his victim's premises
a full day before he got around to
planting the incriminating evidence on the premises.
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
anyone 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,
he had driven the dead woman's car, Beanie repeatedly
inquired whether he himself was a suspect. See
ante, at 442,
n. 13. Of course at that point he well
should have been
worried about being a suspect. But there is no evidence that he
erroneously considered himself a suspect beforehand. Moreover, even
if he did, the notion that a guilty person would, on the basis of
such an erroneous belief, come forward for the reward or in order
to "frame" Kyles (rather than waiting for the police to approach
him first) is quite simply implausible.
463
without considering the infinitesimal probability of the jury's
swallowing the entire concoction of implausibility squared.
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 anyevidence 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,
2 There is no basis in anything I have said for the Court's
charge that "the dissent appears to assume that Kyles must lose
because there would still have been adequate [i.
e.,
sufficient] evidence to convict even if the favorable evidence had
been disclosed."
Ante, at 435, n. 8. I do assume, indeed I
expressly argue, that petitioner must lose because there was, is,
and will be
overwhelming evidence to convict, so much
evidence that disclosure would not "have made a different result
reasonably probable."
Ante, at 441.
464
even if not calling Beanie to the stand, could have used the
evidence relating to Beanie to attack "the reliability of the
investigation."
Ante, at 446. But that is distinctly less
effective than substantive evidence bearing on the guilt or
innocence of the accused. In evaluating
Brady claims, we
assume jury conduct that is both rational and obedient to the law.
We do not assume that even though the whole mass of the evidence,
both disclosed and undisclosed, shows petitioner guilty beyond a
reasonable doubt, the jury will punish sloppy investigative
techniques by setting the defendant free. Neither Beanie nor the
police were on trial in this case. Petitioner was, and no amount of
collateral evidence could have enabled his counsel to move the
mountain of direct evidence against him.
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
465
beside Territo and stopped while waiting to make a turn.
Petitioner looked Territo full in the face. Territo testified, "I
got a good look at him. If I had been in the passenger seat of the
little truck, I could have reached out and not even stretched my
arm out, I could have grabbed hold of him." Tr. 13-14 (Dec. 6,
1984). Territo also testified that a detective had shown him a
picture of Beanie and asked him if the picture "could have been the
guy that did it. I told him no."
Id., at 24. The second
eyewitness, Kersh, also saw petitioner shoot Mrs. Dye. When asked
whether she got "a good look" at him as he drove away, she answered
"yes."
Id., at 32. She also answered "yes" to the question
whether she "got to see the side of his face,"
id., at 31,
and said that while petitioner was stopped she had driven to within
reaching distance of the driver's-side door of Mrs. Dye's car and
stopped there.
Id., at 34. The third eyewitness, Smallwood,
testified that he saw petitioner shoot Mrs. Dye, walk to the car,
and drive away.
Id., at 42. Petitioner drove slowly by,
within a distance of 15 or 25 feet,
id., at 43-45, and
Smallwood saw his face from the side.
Id., at 43. The fourth
eyewitness, Williams, who had been working outside the parking lot,
testified that "the gentleman came up the side of the car,"
struggled with Mrs. Dye, shot her, walked around to the driver's
side of the car, and drove away.
Id., at 52. Williams not
only "saw him before he shot her,"
id., at 54, but watched
petitioner drive slowly by "within less than ten feet."
Ibid. When asked "[d]id you get an opportunity to look at
him good?", Williams said, "I did."
Id., at 55.
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-argumentcum-evidentiary-hearing
held before us, perhaps because it is a theory that only the most
removed appellate court could
466
love. This theory is that there is a reasonable probability that
the jury would have changed its mind about the eyewitness
identification because the
Brady material would have
permitted the defense to argue that the eyewitnesses only got a
good look at the killer when he was sitting in Mrs. Dye's car, and
thus could identify him, not by his height and build, but
only
by his face. Never mind, for the moment, that this is factually
false, since the
Brady material showed that only
one
of the four eyewitnesses, Smallwood, did not see the killer outside
the car.3 And never mind, also, the dubious premise that the build
of a man 6-feet tall (like petitioner) is indistinguishable, when
seated behind the wheel, from that of a man less than 5lh-feet tall
(like Beanie). To assert that unhesitant and categorical
identification by four witnesses who viewed the killer, close-up
and with the sun high in the sky, would not eliminate reasonable
doubt if it were based
only on
facial
characteristics, and not on height and build, is quite simply
absurd. Facial features are
the primary means by which human
beings recognize one another. That is why police departments
distribute "mug" shots of wanted felons, rather than
Ivy-League-type posture pictures; it is why bank robbers wear
stockings over their faces instead of floor-length capes over their
shoulders; it is why the Lone Ranger wears a mask instead of a
poncho; and it is why a criminal defense lawyer who seeks to
destroy an
3 Smallwood and Williams were the only eyewitnesses whose
testimony was affected by the
Brady material, and Williams's
was affected not because it showed he did not observe the killer
standing up, but to the contrary because it showed that his
estimates of height and weight based on that observation did not
match Kyles. The other two witnesses did observe the killer in
full. Territo testified that he saw the killer running up to Mrs.
Dye before the struggle began, and that after the struggle he
watched the killer bend down, stand back up, and then "stru[t]"
over to the car. Tr. 12 (Dec. 6, 1984). Kersh too had a clear
opportunity to observe the killer's body type; she testified that
she saw the killer and Mrs. Dye arguing, and that she watched him
walk around the back of the car after Mrs. Dye had fallen.
Id., at 29-30.
467
identifying witness by asking "You admit that you saw only the
killer's face?" will be laughed out of the courtroom.
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, Fed. Rule Civ. Proc. 52(a),
and the state court's finding, because fairly supported by the
record, must be presumed correct on habeas review. See 28 U. S. C.
§ 2254(d).
468
The Court's second means of seeking to neutralize the impressive
and unanimous eyewitness testimony uses the same
"build-is-everything" theory to exaggerate the effect of the
State's failure to disclose the contemporaneous statement of Henry
Williams. That statement would assuredly have permitted a sharp
cross-examination, since it contained estimations of height and
weight that fit Beanie better than petitioner.
Ante, at
441-442. But I think it is hyperbole to say that the statement
would have "substantially reduced or destroyed" the value of
Williams' testimony.
Ante, at 441. Williams saw the murderer
drive slowly by less than 10 feet away, Tr. 54 (Dec. 6, 1984), and
unhesitatingly picked him out of the photo lineup. The jury might
well choose to give greater credence to the simple fact of
identification than to the difficult estimation of height and
weight.
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
469
is not.
No witness involved in the case ever identified
anyone but petitioner as the murderer. Their views of the
crime and the escaping criminal were obtained in bright daylight
from close at hand; and their identifications were reaffirmed
before the jury. After the side-by-side comparison between Beanie
and Kyles, the jury heard Territo say that there was "[n]o doubt in
my mind" that petitioner was the murderer, Tr. 378 (Dec. 7, 1984);
heard Kersh say "I know it was him .... I seen his face and I know
the color of his skin. I know it. I know it's him,"
id., at
383; heard Smallwood say "I'm positive ... [b]ecause that's the man
who I seen kill that woman,"
id., at 387; and heard Williams
say "[n]o doubt in my mind,"
id., at 391. With or without
the
Brady evidence, there could be no doubt in the mind of
the jury either.
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.,
470
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 .32caliber 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.
4" '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 eyewitness. But if there were fifty
eyewitnesses, forty-nine of whom identified the defendant, and the
prosecutor neglected to reveal that the other, who was without his
badly needed glasses on the misty evening of the crime, had said
that the criminal looked something like the defendant but he could
not be sure as he had only a brief glimpse, the result might well
be different.' "
Agurs, 427 U. S., at 112-113, n. 21
(quoting Comment,
Brady v. Maryland and The Prosecutor's
Duty to Disclose, 40 U. Chi. L. Rev. 112, 125 (1972)).
471
The Court is correct that the
Brady material would have
supported the claim that Beanie planted Mrs. Dye's belongings in
petitioner's garbage and (to a lesser degree) that Beanie planted
the gun behind petitioner's stove.
Ante, at 448. But we must
see the whole story that petitioner presented to the jury.
Petitioner would have it that Beanie did not plant the
incriminating evidence until the day
after he incited the
police to search petitioner's home. Moreover, he succeeded in
surreptitiously placing the gun behind the stove, and the matching
shoulder holster in the wardrobe, while
at least 10 and as
many as 19
people were present in petitioner's small
apartment.5 Beanie, who was wearing blue jeans and either a
"tank-top" shirt, Tr. 302 (Dec. 7, 1984) (Cathora Brown), or a
short-sleeved shirt,
id., at 351 (petitioner), would have
had to be concealing about his person not only the shoulder holster
and the murder weapon, but also a different gun with tape wrapped
around the barrel that he showed to petitioner.
Id., at 352.
Only appellate judges could swallow such a tale. Petitioner's only
supporting evidence was Johnny Burns's testimony that he saw Beanie
stooping behind the stove, presumably to plant the gun.
Id.,
at 262-263. Burns's credibility on the stand can perhaps best be
gauged by observing that the state judge who presided over
petitioner's trial stated, in a postconviction proceeding, that
"[1] ha[ve] chosen to totally disregard everything that [Burns] has
said," App. 35. See also
id., at 165 (District Court
opinion) ("Having reviewed the entire record, this court without
hesitation concurs with the trial court's determination concerning
the credibility of [Burns]"). Burns, by the way, who repeatedly
stated at trial that Beanie was his "best friend," Tr. 279 (Dec. 7,
1984), has since been
5The estimates varied. See Tr. 269 (Dec. 7, 1984) (Johnny Burns)
(18 or 19 people);
id., at 298 (Cathora Brown) (6 adults, 4
children);
id., at 326 (petitioner) ("about 16 ... about 18
or 19");
id., at 340 (petitioner) (13 people).
472
tried and convicted for killing Beanie. See
State v.
Burnes, 533 So. 2d 1029 (La. App. 1988).6
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-
6 The Court notes that "neither observation could possibly have
affected the jury's appraisal of Burns's credibility at the time of
Kyles's trials."
Ante, at 450, n. 19. That is obviously
true. But it is just as obviously true that because we have no
findings about Burns's credibility from the jury and no direct
method of asking what they thought, the only way that
we can
assess the jury's appraisal of Burns's credibility is by asking (1)
whether the state trial judge, who saw Burns's testimony along with
the jury, thought it was credible; and (2) whether Burns was in
fact crediblea question on which his later behavior towards his
"best friend" is highly probative.
473
fense in this case"). The Court disposes of the pet food
evidence as follows:
"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
474
by interpreting the "on sale" claim as meaning "for sale," a
reference to the pricing of the pet food
(e. g., "3 for 89
cents"), which petitioner claimed to have read on a shelf sign in
the store.
Id., at 343. But unless petitioner was parodying
George Leigh Mallory, "because it was
for sale" would have
been an irrational response to the question it was given in answer
to: Why did you buy
so many cans? In any event, the
Schwegmann's employee also testified that store policy was not to
put signs on the shelves at all.
Id., at 398-399. The sum of
it is that petitioner, far from explaining the presence of the pet
food, doubled the force of the State's evidence by perjuring
himself before the jury, as the state trial judge observed. See
supra, at 472-473.7
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.
7 I have charitably assumed that petitioner had a pet or pets in
the first place, although the evidence tended to show the contrary.
Petitioner claimed that he owned a dog or puppy, that his son had a
cat, and that there were "seven or eight more cats around there."
Tr. 325 (Dec. 7, 1984). The dog, according to petitioner, had been
kept "in the country" for a month and half, and was brought back
just the week before petitioner was arrested.
Id., at
337-338. Although petitioner claimed to have kept the dog tied up
in a yard behind his house before it was taken to the country,
id., at 336-337, two
defense witnesses contradicted
this story. Donald Powell stated that he had not seen a dog at
petitioner's home since at least six months before the trial,
id., at 254, while Cathora Brown said that although Pinky,
petitioner's wife, sometimes fed stray pets, she had no dog tied up
in the back yard.
Id., at 304-305. The police found no
evidence of any kind that any pets lived in petitioner's home at or
near the time of the murder.
Id., at 75 (Dec. 6, 1984).
475
Thus its rebuttal value would have been marginal at best. The
receipt-although it showed that petitioner must at some point have
been both in Schwegmann's and in the murdered woman's car-was as
consistent with petitioner's story as with the State's. See
ante, at 452.
***
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.
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