OCTOBER TERM, 1998
Syllabus
STRICKLER
v. GREENE, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 98-5864. Argued March 3, 1999-Decided June 17, 1999
The Commonwealth of Virginia charged petitioner with capital
murder and related crimes. Because an open file policy gave
petitioner access to all of the evidence in the prosecutor's files,
petitioner's counsel did not file a pretrial motion for discovery
of possible exculpatory evidence. At the trial, Anne Stoltzfus gave
detailed eyewitness testimony about the crimes and petitioner's
role as one of the perpetrators. The prosecutor failed to disclose
exculpatory materials in the police files, consisting of notes
taken by a detective during interviews with Stoltzfus, and letters
written by Stoltzfus to the detective, that cast serious doubt on
significant portions of her testimony. The jury found petitioner
guilty, and he was sentenced to death. The Virginia Supreme Court
affirmed. In subsequent state habeas corpus proceedings, petitioner
advanced an ineffective-assistance-of-counsel claim based, in part,
on trial counsel's failure to file a motion under
Brady v.
Maryland, 373
U. S. 83, for disclosure of all exculpatory evidence known to
the prosecution or in its possession. In response, the Commonwealth
asserted that such a motion was unnecessary because of the
prosecutor's open file policy. The trial court denied relief. The
Virginia Supreme Court affirmed. Petitioner then filed a federal
habeas petition and was granted access to the exculpatory Stoltzfus
materials for the first time. The District Court vacated
petitioner's capital murder conviction and death sentence on the
grounds that the Commonwealth had failed to disclose those
materials and that petitioner had not, in consequence, received a
fair trial. The Fourth Circuit reversed because petitioner had
procedurally defaulted his
Brady claim by not raising it at
his trial or in the state collateral proceedings. In addition, the
Fourth Circuit concluded that the claim was, in any event, without
merit.
Held: Although petitioner has demonstrated cause for
failing to raise a
Brady claim, Virginia did not violate
Brady and its progeny by failing to disclose exculpatory
evidence to petitioner. pp. 280-296.
(a) There are three essential components of a true
Brady
violation: the evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued. The record in
this case unquestionably
264
Syllabus
establishes two of those components. The contrast between (a)
the terrifying incident that Stoltzfus confidently described in her
testimony and (b) her initial statement to the detective that the
incident seemed a trivial episode suffices to establish the
impeaching character of the undisclosed documents. Moreover, with
respect to some of those documents, there is no dispute that they
were known to the Commonwealth but not disclosed to trial counsel.
It is the third component-whether petitioner has established the
necessary prejudice-that is the most difficult element of the
claimed
Brady violation here. Because petitioner
acknowledges that his
Brady claim is procedurally defaulted,
this Court must first decide whether that default is excused by an
adequate showing of cause and prejudice. In this case, cause and
prejudice parallel two of the three components of the alleged
Brady violation itself. The suppression of the Stoltzfus
documents constitutes one of the causes for the failure to assert a
Brady claim in the state courts, and unless those documents
were "material" for
Brady purposes, see 373 U. S., at 87,
their suppression did not give rise to sufficient prejudice to
overcome the procedural default. Pp. 280-282.
(b) Petitioner has established cause for failing to raise a
Brady claim prior to federal habeas because (a) the
prosecution withheld exculpatory evidence; (b) petitioner
reasonably relied on the prosecution's open file policy as
fulfilling the prosecution's duty to disclose such evidence; and
(c) the Commonwealth confirmed petitioner's reliance on the open
file policy by asserting during state habeas proceedings that
petitioner had already received everything known to the government.
See
Murray v.
Carrier, 477 U. S. 478, 488, and
Amadeo v.
Zant, 486 U. S. 214, 222.
Gray v.
Netherland, 518 U. S. 152, and
McCleskey v.
Zant, 499 U. S. 467,
distinguished. This Court need not decide whether anyone or two of
the foregoing factors would be sufficient to constitute cause,
since the combination of all three surely suffices. Pp.
282-289.
(c) However, in order to obtain relief, petitioner must convince
this Court that there is a reasonable probability that his
conviction or sentence would have been different had the suppressed
documents been disclosed to the defense. The adjective is
important. The question is not whether the defendant would more
likely than not have received a different verdict with the
suppressed evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence.
Kyles v.
Whitley, 514 U. S. 419, 434. Here,
other evidence in the record provides strong support for the
conclusion that petitioner would have been convicted of capital
murder and sentenced to death, even if Stoltzfus had been severely
impeached or her testimony excluded entirely. Notwithstanding the
obvious significance
265
of that testimony, therefore, petitioner cannot show prejudice
sufficient to excuse his procedural default. pp. 289-296.
149 F.3d
1170, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, GINSBURG, and BREYER, JJ.,
joined in full, in which KENNEDY and SOUTER, JJ., joined as to Part
III, and in which THOMAS, J., joined as to Parts I and IV. SOUTER,
J., filed an opinion concurring in part and dissenting in part, in
which KENNEDY, J., joined as to Part II,
post, p. 296.
Miguel A. Estrada argued the cause for petitioner. With him on
the briefs were Barbara L. Hartung, Mark E. Olive, and John H.
Blume.
Pamela A. Rumpz, Assistant Attorney General of Virginia,
argued the cause for respondent. With her on the brief was
Mark
L. Earley, Attorney General. *
JUSTICE STEVENS delivered the opinion of the Court.t The
District Court for the Eastern District of Virginia granted
petitioner's application for a writ of habeas corpus and vacated
his capital murder conviction and death sentence on the grounds
that the Commonwealth had failed to disclose important exculpatory
evidence and that petitioner had not, in consequence, received a
fair trial. The Court of Appeals for the Fourth Circuit reversed
because petitioner had not raised his constitutional claim at his
trial or in state collateral proceedings. In addition, the Fourth
Circuit concluded that petitioner's claim was, "in any event,
without merit." App. 418, n. 8.1 Finding the legal question
presented by this
*Gerald T. Zerkin filed a brief for the National
Association of Criminal Defense Lawyers et al. as
amici
curiae urging reversal.
Kent S.
Scheidegger filed a brief for the Criminal
Justice Legal Foundation as
amicus curiae urging
affirmance.
tJUSTICE THOMAS joins Parts I and IV of this opinion. JUSTICE
KENNEDY joins Part III.
1 The opinion of the Court of Appeals is unreported. The
judgment order is reported,
Strickler v.
Pruett,
149 F.3d
1170 (CA4 1998). The opinion of the District Court is
also unreported.
266
case considerably more difficult than the Fourth Circuit, we
granted certiorari, 525 U. S. 809 (1998), to consider (1) whether
the Commonwealth violated
Brady v.
Maryland, 373 U. S. 83 (1963), and
its progeny; (2) whether there was an acceptable "cause" for
petitioner's failure to raise this claim in state court; and (3),
if so, whether he suffered prejudice sufficient to excuse his
procedural default.
I
In the early evening of January 5, 1990, Leanne Whitlock, an
African-American sophomore at James Madison University, was
abducted from a local shopping center and robbed and murdered. In
separate trials, both petitioner and Ronald Henderson were
convicted of all three offenses. Henderson was convicted of
first-degree murder, a noncapital offense, whereas petitioner was
convicted of capital murder and sentenced to death.2
At both trials, a woman named Anne Stoltzfus testified in vivid
detail about Whitlock's abduction. The exculpatory material that
petitioner claims should have been disclosed before trial includes
documents prepared by Stoltzfus, and notes of interviews with her,
that impeach significant portions of her testimony. We begin,
however, by noting that, even without the Stoltzfus testimony, the
evidence in the record was sufficient to establish petitioner's
guilt on the murder charge. Whether petitioner would have been
convicted of capital murder and received the death sentence if she
had not testified, or if she had been sufficiently impeached, is
less clear. To put the question in context, we review the trial
testimony at some length.
The Testimony at Trial
At about 4:30 p.m. on January 5,1990, Whitlock borrowed a 1986
blue Mercury Lynx from her boyfriend, John Dean,
2 Petitioner was tried in May 1990. Henderson fled the
Commonwealth and was later apprehended in Oregon. He was tried in
March 1991.
267
who worked in the Valley Shopping Mall in Harrisonburg,
Virginia. At about 6:30 or 6:45 p.m., she left her apartment,
intending to return the car to Dean at the mall. She did not return
the car and was not again seen alive by any of her friends or
family.
Petitioner's mother testified that she had driven petitioner and
Henderson to Harrisonburg on January 5. She also testified that
petitioner always carried a hunting knife that had belonged to his
father. Two witnesses, a friend of Henderson's and a security
guard, saw petitioner and Henderson at the mall that afternoon. The
security guard was informed around 3:30 p.m. that two men, one of
whom she identified at trial as petitioner, were attempting to
steal a car in the parking lot. She had them under observation
during the remainder of the afternoon but lost sight of them at
about 6:45.
At approximately 7:30 p.m., a witness named Kurt Massie saw the
blue Lynx at a location in Augusta County about 25 miles from
Harrisonburg and a short distance from the cornfield where
Whitlock's body was later found. Massie identified petitioner as
the driver of the vehicle; he also saw a white woman in the front
seat and another man in the back. Massie noticed that the car was
muddy, and that it turned off Route 340 onto a dirt road.
At about 8 p.m., another witness saw the Lynx at Buddy's Market,
with two men sitting in the front seat. The witness did not see
anyone else in the car. At approximately 9 p.m., petitioner and
Henderson arrived at Dice's Inn, a bar in Staunton, Virginia, where
they stayed for about four or five hours. They danced with several
women, including four prosecution witnesses: Donna Kay Tudor, Nancy
Simmons, Debra Sievers, and Carolyn Brown. While there, Henderson
gave Nancy Simmons a watch that had belonged to Whitlock.
Petitioner spent most of his time with Tudor, who was later
arrested for grand larceny based on her possession of the blue
Lynx.
268
These four women all testified that Tudor had arrived at Dice's
at about 8 p.m. Three of them noticed nothing unusual about
petitioner's appearance, but Tudor saw some blood on his jeans and
a cut on his knuckle. Tudor also testified that she, Henderson, and
petitioner left Dice's together after it closed to search for
marijuana. Henderson was driving the blue Lynx, and petitioner and
Tudor rode in back. Tudor related that petitioner was leaning
toward Henderson and talking with him; she overheard a crude
conversation that could reasonably be interpreted as describing the
assault and murder of a black person with a "rock crusher." Tudor
stated that petitioner made a statement that implied that he had
killed someone, so the person "wouldn't give him no more trouble."
App. 99. Tudor testified that while she, petitioner, and Henderson
were driving around, petitioner took out his knife and threatened
to stab Henderson because he was driving recklessly. Petitioner
then began driving.
At about 4:30 or 5 a.m. on January 6, petitioner drove Henderson
to Kenneth Workman's apartment in Timberville.3 Henderson went
inside to get something, and petitioner and Tudor drove off without
waiting for him. Workman testified that Henderson had blood on his
pants and stated he had killed a black person.
Petitioner and Tudor then drove to a motel in Blue Ridge.
A day or two later they went to Virginia Beach, where they spent
the rest of the week. Petitioner gave Tudor pearl earrings that
Whitlock had been wearing when she was last seen. Tudor saw
Whitlock's driver's license and bank card in the glove compartment
of the car. Tudor testified that petitioner unsuccessfully
attempted to use Whitlock's bank card when they were in Virginia
Beach.
When petitioner and Tudor returned to Augusta County, they
abandoned the blue Lynx. On January 11, the police identified the
car as Dean's, and found petitioner's and Tu-
3 Workman was called as a defense witness.
269
dor's fingerprints on both the inside and the outside of the
car. They also found shoe impressions that matched the soles of
shoes belonging to petitioner. Inside the car, they retrieved a
jacket that contained identification papers belonging to
Henderson.
The police also recovered a bag at petitioner's mother's house
that Tudor testified she and petitioner had left when they returned
from Virginia Beach. The bag contained, among other items, three
identification cards belonging to Whitlock and a black "tank top"
shirt that was later found to have human blood and semen stains on
it. Tr.707.
On January 13, a farmer called the police to advise them that he
had found Henderson's wallet; a search of the area led to the
discovery of Whitlock's frozen, nude, and battered body. A 69-pound
rock, spotted with blood, lay nearby. Forensic evidence indicated
that Whitlock's death was caused by "multiple blunt force injuries
to the head." App. 109. The location of the rock and the human
blood on the rock suggested that it had been used to inflict these
injuries. Based on the contents of Whitlock's stomach, the medical
examiner determined that she died fewer than six hours after she
had last eaten.4
A number of Caucasian hair samples were found at the scene,
three of which were probably petitioner's. Given the weight of the
rock, the prosecution argued that one of the killers must have held
the victim down while the other struck her with the murder
weapon.
Donna Tudor's estranged husband, Jay Tudor, was called by the
defense and testified that in March she had told him that she was
present at the murder scene and that petitioner did not participate
in the murder. Jay Tudor's testimony was inconsistent in several
respects with that of other witnesses. For example, he testified
that several days elapsed
4 Whitlock's roommate testified that Whitlock had dinner at 6
p.m. on January 5, 1990, just before she left for the mall to
return Dean's car.
270
between the time that petitioner, Henderson, and Donna Tudor
picked up Whitlock and the time of Whitlock's murder.
Anne Stoltzfus' Testimony
Anne Stoltzfus testified that on two occasions on January 5 she
saw petitioner, Henderson, and a blonde girl inside the
Harrisonburg mall, and that she later witnessed their abduction of
Whitlock in the parking lot. She did not call the police, but a
week and a half after the incident she discussed it with classmates
at James Madison University, where both she and Whitlock were
students. One of them called the police. The next night a detective
visited her, and the following morning she went to the police
station and told her story to Detective Claytor, a member of the
Harrisonburg City Police Department. Detective Claytor showed her
photographs of possible suspects, and she identified petitioner and
Henderson "with absolute certainty" but stated that she had a
slight reservation about her identification of the blonde woman.
Id., at 56.
At trial, Stoltzfus testified that, at about 6 p.m. on January
5, she and her 14-year-old daughter were in the Music Land store in
the mall looking for a compact disc. While she was waiting for
assistance from a clerk, petitioner, whom she described as
"Mountain Man," and the blonde girl entered.5
5 She testified to their appearances in great detail. She stated
that petitioner had "a kind of multi layer look." He wore a grey
T-shirt with a Harley Davidson insignia on it. The prosecutor
showed Stoltzfus the shirt, stained with blood and semen, that the
police had discovered at petitioner's mother's house. He asked if
it were the same shirt she saw petitioner wearing at the mall. She
replied, "That could have been it." App. 37, 39. Henderson "had
either a white or light colored shirt, probably a short sleeve knit
shirt and his pants were neat. They weren't just old blue jeans.
They may have been new blue jeans or it may have just been more
dressy slacks of some sort."
Id., at 37. The woman "had
blonde hair, it was kind of in a shaggy cut down the back. She had
blue eyes, she had a real sweet smile, kind of a small mouth. Just
a touch of freckles on her face."
Id., at 60.
271
Because petitioner was "revved up" and "very impatient," she was
frightened and backed up, bumping into Henderson (whom she called
"Shy Guy"), and thought she felt something hard in the pocket of
his coat.
Id., at 36-37.
Stoltzfus left the store, intending to return later. At about
6:45, while heading back toward Music Land, she again encountered
the threesome: "Shy Guy" walking by himself, followed by the girl,
and then "Mountain Man" yelling "Donna, Donna, Donna." The girl
bumped into Stoltzfus and then asked for directions to the bus
stop.6 The three then left.
At first Stoltzfus tried to follow them because of her concern
about petitioner's behavior, but she "lost him" and then headed
back to Music Land. The clerk had not returned, so she and her
daughter went to their car. While driving to another store, they
saw a shiny dark blue car. The driver was "beautiful," "well
dressed and she was happy, she was singing .... "
Id., at
41. When the blue car was stopped behind a minivan at a stop sign,
Stoltzfus saw petitioner for the third time.
She testified:
"'Mountain Man' came tearing out of the Mall entrance door and
went up to the driver of the van and ... was just really mad and
ran back and banged on back of the backside of the van and then
went back to the Mall entrance wall where 'Shy Guy' and 'Blonde
Girl' was standing .... [T]hen we left [and before the van and a
white pickup truck could turn] 'Mountain Man' came out again .... "
Id., at 42-43.
After first going to the passenger side of the pickup truck,
petitioner came back to the black girl's car, "pounded on" the
passenger window, shook the car, yanked the door open and jumped
in. When he motioned for "Blonde Girl" and "Shy
6 Stoltzfus stated that the girl caught a button in Stoltzfus'
"open weave sweater, which is why I remember her attire."
Id., at 39.
272
Guy" to get in, the driver stepped on the gas and "just laid on
the horn" but she could not go because there were people walking in
front of the car. The horn "blew a long time" and petitioner
"started hitting her ... on the left shoulder, her right
shoulder and then it looked like to me that he started hitting her
on the head and I was, I just became concerned and upset. So I
beeped, honked my horn and then she stopped honking the horn and he
stopped hitting her and opened the door again and the 'Blonde Girl'
got in the back and 'Shy Guy' followed and got behind him."
Id., at 44-45.
Stoltzfus pulled her car up parallel to the blue car, got out
for a moment, got back in, and leaned over to ask repeatedly if the
other driver was "O.K." The driver looked "frozen" and mouthed an
inaudible response. Stoltzfus started to drive away and then
realized "the only word that it could possibly be, was help."
Id., at 47. The blue car then drove slowly around her, went
over the curb with its horn honking, and headed out of the mall.
Stoltzfus briefly followed, told her daughter to write the license
number on a "3x4 [inch] index card,"7 and then left for home
because she had an empty gas tank and "three kids at home waiting
for supper."
Id., at 48-49.
At trial Stoltzfus identified Whitlock from a picture as the
driver of the car and pointed to petitioner as "Mountain Man." When
asked if pretrial publicity about the murder had influenced her
identification, Stoltzfus replied "absolutely not." She
explained:
"[F]irst of all, I have an exceptionally good memory. I had very
close contact with [petitioner] and he made an
7 "I said to my fourteen[ -year- ]old daughter, write down the
license number, you know, it was West Virginia, NKA 243 and I said
help me to remember, 'No Kids Alone 243,' and I said remember, 243
is my age."
Id., at 48.
273
emotional impression with me because of his behavior and I, he
caught my attention and I paid attention. So I have absolutely no
doubt of my identification." Id., at 58.
The Commonwealth did not produce any other witnesses to the
abduction. Stoltzfus' daughter did not testify.
The Stoltzfus Documents
The materials that provide the basis of petitioner's
Brady claim consist of notes taken by Detective Claytor
during his interviews with Stoltzfus, and letters written by
Stoltzfus to Claytor. They cast serious doubt on Stoltzfus'
confident assertion of her "exceptionally good memory." Because the
content of the documents is critical to petitioner's procedural and
substantive claims, we summarize their content.
Exhibit 18 is a handwritten note prepared by Detective Claytor
after his first interview with Stoltzfus on January 19,1990, just
two weeks after the crime. The note indicates that she could not
identify the black female victim. The only person Stoltzfus
apparently could identify at this time was the white female.
Id., at 306.
Exhibit 2 is a document prepared by Detective Claytor some time
after February 1. It contains a summary of his interviews with
Stoltzfus conducted on January 19 and J anuary 20, 1990.9 At that
time "she was not sure whether she could identify the white males
but felt sure she could identify the white female."
8 These materials were originally attached to an affidavit
submitted with petitioner's motion for summary judgment on his
federal petition for habeas corpus. Because both the District Court
and the Court of Appeals referred to the documents by their exhibit
numbers, we have done the same.
9 As the District Court pointed out, however, it omits reference
to the fact that Stoltzfus originally said that she could not
identify the victima fact recorded in his handwritten notes.
Id., at 387.
274
Exhibit 3 is entitled "Observations" and includes a summary of
the abduction.
Exhibit 4 is a letter written by Stoltzfus to Claytor three days
after their first interview "to clarify some of my confusion for
you." The letter states that she had not remembered being at the
mall, but that her daughter had helped jog her memory. Her
description of the abduction includes the comment: "I have a very
vague memory that I'm not sure of. It seems as if the wild guy that
I saw had come running through the door and up to a bus as the bus
was pulling off .... Then the guy I saw came running up to the
black girl's window. Were those 2 memories the same person?"
Id., at 316. In a postscript she noted that her daughter
"doesn't remember seeing the 3 people get into the black girl's car
.... "
Ibid.
Exhibit 5 is a note to Claytor captioned "My Impressions of 'The
Car,'" which contains three paragraphs describing the size of the
car and comparing it with Stoltzfus' Volkswagen Rabbit, but not
mentioning the license plate number that she vividly recalled at
the trial.
Id., at 317-318.
Exhibit 6 is a brief note from Stoltzfus to Claytor dated
January 25, 1990, stating that after spending several hours with
John Dean, Whitlock's boyfriend, "looking at current photos," she
had identified Whitlock "beyond a shadow of a doubt." 10
Id., at 318. The District Court noted that by the time of
trial her identification had been expanded to include a description
of her clothing and her appearance as a college kid who was
"singing" and "happy."
Id., at 387-388.
Exhibit 7 is a letter from Stoltzfus to Detective Claytor, dated
January 16, 1990, in which she thanks him for his "patience with my
sometimes muddled memories." She states that if the student at
school had not called the police, "I never would have made any of
the associations that you helped me make."
Id., at 321.
10 Stoltzfus' trial testimony made no mention of her meeting
with Dean.
275
In Exhibit 8, which is undated and summarizes the events
described in her trial testimony, Stoltzfus commented:
"So where is the 3x4 card? ... It would have been very nice if I
could have remembered all this at the time and had simply gone to
the police with the information. But I totally wrote this off as a
trivial episode of college kids carrying on and proceeded with my
own full-time college load at JMD. ... Monday, January 15th. I was
cleaning out my car and found the 3x4 card. I tore it into little
pieces and put it in the bottom of a trash bag." Id., at
326.
There is a dispute between the parties over whether petitioner's
counsel saw Exhibits 2, 7, and 8 before trial. The prosecuting
attorney conceded that he himself never saw Exhibits 1, 3, 4, 5,
and 6 until long after petitioner's trial, and they were not in the
file he made available to petitioner.ll For purposes of this case,
therefore, we assume that petitioner proceeded to trial without
having seen Exhibits 1, 3, 4, 5, and 6.12
11 The prosecutor recalled that Exhibits 2, 7, and 8 had been in
his open file,
id., at 365-368, but the lawyer who
represented Henderson at his trial swore that they were not in the
file,
id., at 330; the recollection of petitioner's trial
counsel was somewhat equivocal. Lead defense counsel was sure he
had not seen the documents,
id., at 300, while petitioner's
other lawyer signed an affidavit to the effect that he does
"remember the information contained in [the documents]" but "cannot
recall if I have seen these specific documents,"
id., at
371.
12 Although the parties have not advanced an explanation for the
nondisclosure of the documents, perhaps it was an inadvertent
consequence of the fact that Harrisonburg is in Rockingham County
and the trial was conducted by the Augusta County prosecutor. We
note, however, that the prosecutor is responsible for "any
favorable evidence known to the others acting on the government's
behalf in the case, including the police."
Kyles v.
Whitley, 514
U. S. 419, 437 (1995). Thus, the Commonwealth, through its
prosecutor, is charged with knowledge of the Stoltzfus materials
for purposes of
Brady v.
Maryland, 373 U. S. 83 (1963).
276
State Proceedings
Petitioner was tried in Augusta County, where Whitlock's body
was found, on charges of capital murder, robbery, and abduction.
Because the prosecutor maintained an open file policy, which gave
petitioner's counsel access to all of the evidence in the Augusta
County prosecutor's files,13 petitioner's counsel did not file a
pretrial motion for discovery of possible exculpatory evidence.14
In closing argument, petitioner's lawyer effectively conceded that
the evidence was sufficient to support the robbery and abduction
charges, as well as the lesser offense of first-degree murder, but
argued that the evidence was insufficient to prove that petitioner
was guilty of capital murder.
Id., at 192-193.
The judge instructed the jury that petitioner could be found
guilty of the capital charge if the evidence established beyond a
reasonable doubt that he "jointly participated in the fatal
beating" and "was an active and immediate partici-
13 In the federal habeas proceedings, the prosecutor gave the
following sworn answer to an interrogatory requesting him to state
what materials were disclosed by him to defense counsel pursuant to
Brady: "I disclosed my entire prosecution file to
Strickler's defense counsel prior to Strickler's trial by allowing
him to inspect my entire prosecution file including, but not
limited to, all police reports in the file and all witness
statements in the file." App. 368. Petitioner's trial counsel had
shared the prosecutor's understanding of the "open file" policy. In
an affidavit filed in the state habeas proceeding, they stated that
they "thoroughly investigated" petitioner's case. "In this we were
aided by the prosecutor's office, which gave us full access to
their files and the evidence they intended to present. We made
numerous visits to their office to examine these files .... As a
result of this cooperation, they introduced nothing at trial of
which we were previously unaware."
Id., at 223.
14 In its pleadings on state habeas, the Commonwealth explained:
"From the inception of this case, the prosecutor's files were open
to the petitioner's counsel. Each of the petitioner's attorneys
made numerous visits to the prosecutor's offices and reviewed
all the evidence the Commonwealth intended to present ....
Given that counsel were voluntarily given full disclosure of
everything known to the government, there was no need for a formal
[Brady] motion."
Id., at 212-213.
277
pant in the act or acts that caused the victim's death."
Id., at 160-161. The jury found petitioner guilty of
abduction, robbery, and capital murder.
Id., at 200-201.
After listening to testimony and arguments presented during the
sentencing phase, the jury made findings of "vileness" and "future
dangerousness," and unanimously recommended the death sentence that
the judge later imposed.
The Virginia Supreme Court affirmed the conviction and sentence.
Strickler v.
Commonwealth, 241 Va. 482, 404 S. E. 2d
227 (1991). It held that the trial court had properly instructed
the jury on the "joint perpetrator" theory of capital murder and
that the evidence, viewed most favorably in support of the verdict,
amply supported the prosecution's theory that both petitioner and
Henderson were active participants in the actual killing.15
In December 1991, the Augusta County Circuit Court appointed new
counsel to represent petitioner in state habeas corpus proceedings.
State habeas counsel advanced an
15 "The Commonwealth's theory of the case was that Strickler and
Henderson had acted jointly to accomplish the actual killing. It
contended at trial, and argues on appeal, that the physical
evidence points to a violent struggle between the assailants and
the victim, in which Strickler's hair had actually been torn out by
the roots. Although Leanne had been beaten and kicked, none of her
injuries would have been sufficient to immobilize her until her
skull was crushed with the 69-pound rock. Because, the
Commonwealth's argument goes, the rock had been dropped on her head
at least twice, while she was on the ground, leaving two
bloodstained depressions in the frozen earth, it would have been
necessary that she be held down by one assailant while the other
lifted the rock and dropped it on her head.
"The weight and dimensions of the 69-pound bloodstained rock,
which was introduced in evidence as an exhibit, made it apparent
that a single person could not have lifted it and dropped or thrown
it while simultaneously holding the victim down. The bloodstains on
Henderson's jacket as well as on Strickler's clothing further
tended to corroborate the Commonwealth's theory that the two men
had been in the immediate presence of the victim's body when the
fatal blows were struck and, hence, had jointly participated in the
killing."
Strickler, 241 Va., at 494, 404 S. E. 2d, at
235.
278
ineffective-assistance-of-counsel claim based, in part, on trial
counsel's failure to file a motion under
Brady v.
Maryland, 373
U. S. 83 (1963), "to have the Commonwealth disclose to the
defense all exculpatory evidence known to it-or in its possession."
App. 205-206. In answer to that claim, the Commonwealth asserted
that such a motion was unnecessary because the prosecutor had
maintained an open file policy.16 The Circuit Court dismissed the
petition, and the State Supreme Court affirmed.
Strickler v.
Murray, 249 Va. 120, 452 S. E. 2d 648 (1995).
Federal Habeas Corpus Proceedings
In March 1996, petitioner filed a federal habeas corpus petition
in the Eastern District of Virginia. The District Court entered a
sealed,
ex parte order granting petitioner's counsel the
right to examine and to copy all of the police and prosecution
files in the case. Record, Doc. No. 20. That order led to
petitioner's counsel's first examination of the Stoltzfus
materials, described
supra, at 273-275.
Based on the discovery of those exhibits, petitioner for the
first time raised a direct claim that his conviction was invalid
because the prosecution had failed to comply with the rule of
Brady v.
Maryland. The District Court granted the
Commonwealth's motion to dismiss all claims except for petitioner's
contention that the Commonwealth violated
Brady, that he
received ineffective assistance of counselP and that he was denied
due process of law under the Fifth and Fourteenth Amendments. In
its order denying the Commonwealth's motion to dismiss, the
District Court found that petitioner had "demonstrated cause for
his failure to raise this claim earlier [because] [d]efense counsel
had no independent access to this material and the Commonwealth
repeatedly withheld it throughout Petitioner's state habeas
proceeding." App.287.
16 See n. 14,
supra.
17 Petitioner later voluntarily dismissed this claim. App.
384.
279
After reviewing the Stoltzfus materials, and making the
assumption that the three disputed exhibits had been available to
the defense, the District Court concluded that the failure to
disclose the other five was sufficiently prejudicial to undermine
confidence in the jury's verdict.
Id., at 396. It granted
summary judgment to petitioner and granted the writ.
The Court of Appeals vacated in part and remanded. It held that
petitioner's
Brady claim was procedurally defaulted because
the factual basis for the claim was available to him at the time he
filed his state habeas petition. Given that he knew that Stoltzfus
had been interviewed by Harrisonburg police officers, the court
opined that "reasonably competent counsel would have sought
discovery in state court" of the police files, and that in response
to this "simple request, it is likely the state court would have
ordered the production of the files." App. 421. Therefore, the
Court of Appeals reasoned, it could not address the
Brady
claim unless petitioner could demonstrate both cause and actual
prejudice.
Under Fourth Circuit precedent a party "cannot establish cause
to excuse his default if he should have known of such claims
through the exercise of reasonable diligence." App. 423 (citing
Stockton v.
Murray, 41 F.3d
920, 925 (1994)). Having already decided that the claim was
available to reasonably competent counsel, the Fourth Circuit
stated that the basis for finding procedural default also
foreclosed a finding of cause. Moreover, the Court of Appeals
reasoned, petitioner could not fault his trial lawyers' failure to
make a
Brady claim because they reasonably relied on the
prosecutor's open file policy. App. 423-424.18
As an alternative basis for decision, the Court of Appeals also
held that petitioner could not establish prejudice be-
18 For reasons we do not entirely understand, the Court of
Appeals thus concluded that, while it was reasonable for trial
counsel to rely on the open file policy, it was unreasonable for
postconviction counsel to do so.
280
cause "the Stoltzfus materials would have provided little or no
help ... in either the guilt or sentencing phases of the trial."
Id., at 425. With respect to guilt, the court noted that
Stoltzfus' testimony was not relevant to petitioner's argument that
he was only guilty of first-degree murder rather than capital
murder because Henderson, rather than he, actually killed Whitlock.
With respect to sentencing, the court concluded that her testimony
"was of no import" because the findings of future dangerousness and
vileness rested on other evidence. Finally, the court noted that
even if it could get beyond the procedural default, the
Brady claim would fail on the merits because of the absence
of prejudice. App. 425, n. 11. The Court of Appeals, therefore,
reversed the District Court's judgment and remanded the case with
instructions to dismiss the petition.
II
The first question that our order granting certiorari directed
the parties to address is whether the Commonwealth violated the
Brady rule. We begin our analysis by identifying the
essential components of a
Brady violation.
In
Brady, this Court 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. We have since held that the
duty to disclose such evidence is applicable even though there has
been no request by the accused,
United States v.
Agurs, 427 U.
S. 97, 107 (1976), and that the duty encompasses impeachment
evidence as well as exculpatory evidence,
United States v.
Bagley, 473 U.
S. 667, 676 (1985). Such evidence is material "if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
Id., at 682; see also
Kyles v.
Whitley,
514 U. S. 419,
433-434 (1995). Moreover, the rule encompasses evidence "known only
to po-
281
lice investigators and not to the prosecutor."
I d., at
438. In order to comply with
Brady, therefore, "the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in this case,
including the police."
Kyles, 514 U. S., at 437.
These cases, together with earlier cases condemning the knowing
use of perjured testimony,19 illustrate the special role played by
the American prosecutor in the search for truth in criminal trials.
Within the federal system, for example, we have said that the
United States Attorney is "the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, 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).
This special status explains both the basis for the
prosecution's broad duty of disclosure and our conclusion that not
every violation of that duty necessarily establishes that the
outcome was unjust. Thus the term
"Brady violation" is
sometimes used to refer to any breach of the broad obligation to
disclose exculpatory evidence 2°-that is, to any suppression of
so-called
"Brady material"-although, strictly speaking,
there is never a real
"Brady violation" unless the
nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different
verdict. There are three components of a true
Brady
violation: The evidence at issue must be favorable to the ac-
19 See,
e. g., Mooney v.
Holohan, 294 U. S. 103, 112 (1935)
(per curiam); Pyle v.
Kansas, 317 U. S. 213, 216
(1942);
Napue v.
Illinois, 360 U. S. 264, 269-270
(1959).
20 Consider, for example, this comment in the dissenting opinion
in
Kyles v.
Whitley: "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." 514 U. S., at 460 (opinion of SCALIA, J.).
282
cused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have
ensued.
Two of those components are unquestionably established by the
record in this case. The contrast between (a) the terrifying
incident that Stoltzfus confidently described in her testimony and
(b) her initial perception of that event "as a trivial episode of
college kids carrying on" that her daughter did not even notice,
suffices to establish the impeaching character of the undisclosed
documentsP Moreover, with respect to at least five of those
documents, there is no dispute about the fact that they were known
to the Commonwealth but not disclosed to trial counsel. It is the
third component-whether petitioner has established the prejudice
necessary to satisfy the "materiality" inquiry-that is the most
difficult element of the claimed
Brady violation in this
case.
Because petitioner acknowledges that his
Brady claim is
procedurally defaulted, we must first decide whether that default
is excused by an adequate showing of cause and prejudice. In this
case, cause and prejudice parallel two of the three components of
the alleged
Brady violation itself. The suppression of the
Stoltzfus documents constitutes one of the causes for the failure
to assert a
Brady claim in the state courts, and unless
those documents were "material" for
Brady purposes, their
suppression did not give rise to sufficient prejudice to overcome
the procedural default.
III
Respondent expressly disavows any reliance on the fact that
petitioner's
Brady claim was not raised at trial. Brief
21 We reject respondent's contention that these documents do not
fall under
Brady because they were "inculpatory." Brief for
Respondent 41. Our cases make clear that
Brady's disclosure
requirements extend to materials that, whatever their other
characteristics, may be used to impeach a witness.
United
States v.
Bagley, 473 U. S. 667, 676
(1985).
283
for Respondent 17-18, n. 6. He states that the Commonwealth has
consistently argued "that the claim is defaulted because it could
have been raised on state habeas corpus through the exercise of due
diligence, but was not."
Ibid. Despite this concession, it
is appropriate to begin the analysis of the "cause" issue by
explaining why petitioner's reasons for failing to raise his
Brady claim at trial are acceptable under this Court's
cases.
Three factors explain why trial counsel did not advance this
claim: The documents were suppressed by the Commonwealth; the
prosecutor maintained an open file policy; 22 and trial counsel
were not aware of the factual basis for the claim. The first and
second factors-i.
e., the nondisclosure and the open file
policy-are both fairly characterized as conduct attributable to the
Commonwealth that impeded trial counsel's access to the factual
basis for making a
Brady claim.23 As we explained in
Murray v.
Carrier, 477 U. S. 478, 488
(1986), it is just such factors that ordinarily establish the
existence of cause for a procedural default.24
22 While the precise dimensions of an "open file policy" may
vary from jurisdiction to jurisdiction, in this case it is clear
that the prosecutor's use of the term meant that his entire
prosecution file was made available to the defense. App. 368; see
also n. 13,
supra.
23 We certainly do not criticize the prosecution's use of the
open file policy. We recognize that this practice may increase the
efficiency and the fairness of the criminal process. We merely note
that, if a prosecutor asserts that he complies with
Brady
through an open file policy, defense counsel may reasonably rely on
that file to contain all materials the State is constitutionally
obligated to disclose under
Brady.
24 "[W]e think that the existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule. Without
attempting an exhaustive catalog of such objective impediments to
compliance with a procedural rule, we note that a showing that the
factual or legal basis for a claim was not reasonably available to
counsel, see
Reed v.
Ross, 468 U. S., at 16, or that
'some interference by officials,'
Brown v.
Allen,
344 U. S. 443,
486 (1953), made compliance impracticable, would constitute cause
under this stand-
284
If it was reasonable for trial counsel to rely on, not just the
presumption that the prosecutor would fully perform his duty to
disclose all exculpatory materials, but also the implicit
representation that such materials would be included in the open
files tendered to defense counsel for their examination, we think
such reliance by counsel appointed to represent petitioner in state
habeas proceedings was equally reasonable. Indeed, in
Murray
we expressly noted that "the standard for cause should not vary
depending on the timing of a procedural default."
Id., at
491.
Respondent contends, however, that the prosecution's maintenance
of an open file policy that did not include all it was purported to
contain is irrelevant because the factual basis for the assertion
of a
Brady claim was available to state habeas counsel. He
presses two factors to support this assertion. First, he argues
that an examination of Stoltzfus' trial testimony,25 as well as a
letter published in a local newspaper,26 made it clear that she had
had several interviews with Detective Claytor. Second, the fact
that the Federal District Court entered an order allowing discovery
of the Harrisonburg police files indicates that diligent counsel
could
ard."
Murray, 477 U. S., at 488; see also
Amadeo
v.
Zant, 486
U. S. 214, 221-222 (1988).
25 Stoltzfus testified to meeting with Claytor at least three
times.
App.55-56.
26 In her letter, which appeared on July 18, 1990 (after
petitioner's trial) in the Harrisonburg Daily News-Record,
Stoltzfus stated: "It never occurred to me that I was witnessing an
abduction. In fact, if it hadn't been for the intelligent,
persistent, professional work of Detective Daniel Claytor, I still
wouldn't realize it. What sounded like a coherent story at the
trial was the result of an incredible effort by the police to fit a
zillion little puzzle pieces into one big picture."
Id., at
250. Stoltzfus also gave a pretrial interview to a reporter with
the Roanoke Times that conflicted in some respects with her trial
testimony, principally because she identified the blonde woman at
the mall as Tudor.
Id., at 373.
285
have obtained a similar order from the state court. We find
neither factor persuasive.
Although it is true that petitioner's lawyers-both at trial and
in post-trial proceedings-must have known that Stoltzfus had had
multiple interviews with the police, it by no means follows that
they would have known that records pertaining to those interviews,
or that the notes that Stoltzfus sent to the detective, existed and
had been suppressed.27 Indeed, if respondent is correct that
Exhibits 2, 7, and 8 were in the prosecutor's "open file," it is
especially unlikely that counsel would have suspected that
additional impeaching evidence was being withheld. The prosecutor
must have known about the newspaper articles and Stoltzfus'
meetings with Claytor, yet he did not believe that his prosecution
file was incomplete.
Furthermore, the fact that the District Court entered a broad
discovery order even before federal habeas counsel had advanced a
Brady claim does not demonstrate that a state court also
would have done SO.28 Indeed, as we understand Virginia law and
respondent's position, petitioner would not have been entitled to
such discovery in state ha-
27 The defense could not discover copies of these notes from
Stoltzfus herself, because she refused to speak with defense
counsel before trial.
Id., at 370.
28 The parties have been unable to provide, and the record does
not illuminate, the factual basis on which the District Court
entered the discovery order. It was granted
ex parte and
under seal and furnished broad access to any records relating to
petitioner. District Court Record, Doc. No. 20. The Fourth Circuit
has since found that federal district courts do not possess the
authority to issue
ex parte discovery orders in habeas
proceedings.
In re Pruett, 133 F.3d
275, 280 (1997). We express no opinion on the Fourth Circuit's
decision on this question. However, we note that it is unlikely
that petitioner would have been granted in state court the sweeping
discovery that led to the Stoltzfus materials, since Virginia law
limits discovery available during state habeas. Indeed, it is not
even clear that he had a right to such discovery in federal court.
See n. 29,
infra.
286
beas proceedings without a showing of good cause.29 Even
pursuant to the broader discovery provisions afforded at trial,
petitioner would not have had access to these materials under
Virginia law, except as modified by
Brady.30 Mere
speculation that some exculpatory material may have been withheld
is unlikely to establish good cause for a discovery request on
collateral review. Nor, in our opinion, should such suspicion
suffice to impose a duty on counsel to advance a claim for which
they have no evidentiary support. Proper respect for state
procedures counsels against a requirement that all possible claims
be raised in state collateral proceedings, even when no known facts
support them. The presumption, well established by "'tradition and
experience,'" that prosecutors have fully "'discharged their
official duties,'"
United States v.
Mezzanatto,
513 U. S. 196,
210 (1995), is inconsistent with the novel suggestion that
conscientious defense counsel have a procedural obligation to
assert consti-
29 Virginia law provides that "no discovery shall be allowed in
any proceeding for a writ of habeas corpus or in the nature of
coram nobis without prior leave of the court, which may deny or
limit discovery in any such proceeding." Va. Sup. Ct. Rule
4:1(b)(5)(3)(b) (1998); see also
Yeatts v.
Murray,
249 Va. 285,289, 455 S. E. 2d 18, 21 (1995). Respondent
acknowledges that petitioner was not entitled to discovery under
Virginia law. Brief for Respondent 25.
30 See Va. Sup. Ct. Rule 3A:ll (1998). This rule expressly
excludes from defendants "the discovery or inspection of statements
made by Commonwealth witnesses or prospective Commonwealth
witnesses to agents of the Commonwealth or of reports, memoranda or
other internal Commonwealth documents made by agents in connection
with the investigation or prosecution of the case, except [for
scientific reports of the accused or alleged victim]." The Virginia
Supreme Court found that petitioner had been afforded all the
discovery he was entitled to on direct review. "Limited discovery
is permitted in criminal cases by the Rules of Court .... Strickler
had the benefit of all the discovery to which he was entitled under
the Rules. Those rights do not extend to general production of
evidence, except in the limited areas prescribed by Rule 3A:11."
Strickler v.
Commonwealth, 241 Va. 482, 491, 404 S.
E. 2d 227, 233 (1991).
287
tutional error on the basis of mere suspicion that some
prosecutorial misstep may have occurred.
Respondent's position on the "cause" issue is particularly weak
in this case because the state habeas proceedings confirmed
petitioner's justification for his failure to raise a
Brady
claim. As already noted, when he alleged that trial counsel had
been incompetent because they had not advanced such a claim, the
warden responded by pointing out that there was no need for counsel
to do so because they "were voluntarily given full disclosure of
everything known to the government." 31 Given that representation,
petitioner had no basis for believing the Commonwealth had failed
to comply with
Brady at trial. 32
Respondent also argues that our decisions in
Gray v.
Netherland, 518 U. S. 152 (1996), and
McCleskey v.
Zant, 499 U. S. 467 (1991),
preclude the conclusion that the cause for petitioner's default was
adequate. In both of those cases, however, the petitioner was
previously aware of the factual basis for his claim but failed to
raise it earlier. See
Gray, 518 U. S., at 161;
McCleskey, 499 U. S., at 498-499. In the context of a
Brady claim, a defendant cannot conduct the "rea-
31 This statement is quoted in full at n. 14,
supra.
Respondent argues that this representation is not dispositive
because it was made in his motion to dismiss and therefore cannot
excuse the failure to include a
Brady claim in the
petitioner's original state habeas pleading. We find the timing of
the statement irrelevant, since the warden's response merely
summarizes the Commonwealth's "open file" policy, instituted by the
prosecution at the inception of the case.
32 Furthermore, in its opposition to petitioner's motion during
state habeas review for funds for an investigator, the Commonwealth
argued:
"Strickler's Petition contains 139 separate habeas claims. By
requesting appointment of an investigator 'to procure the necessary
factual basis to support certain of Petitioner's claims' (Motion,
p. 1), Petitioner is implicitly conceding that he is not aware of
factual support for the claims he has already made. Respondent
agrees." App. 242.
In light of these assertions, we fail to see how the
Commonwealth believes petitioner could have shown "good cause"
sufficient to get discovery on a
Brady claim in state
habeas.
288
sonable and diligent investigation" mandated by
McCleskey
to preclude a finding of procedural default when the evidence is in
the hands of the State.33
The controlling precedents on "cause" are
Murray v.
Carrier, 477 U. S., at 488, and
Amadeo v.
Zant, 486 U.
S. 214 (1988). As we explained in the latter case:
"If the District Attorney's memorandum was not reasonably
discoverable because it was concealed by Putnam County officials,
and if that concealment, rather than tactical considerations, was
the reason for the failure of petitioner's lawyers to raise the
jury challenge in the trial court, then petitioner established
ample cause to excuse his procedural default under this Court's
precedents." Id., at 222.34
There is no suggestion that tactical considerations played any
role in petitioner's failure to raise his
Brady claim in
state court. Moreover, under
Brady an inadvertent
nondisclosure has the same impact on the fairness of the
proceedings as deliberate concealment. "If the suppression of
evidence results in constitutional error, it is because of the
character of the evidence, not the character of the prosecutor."
Agurs, 427 U. S., at 110.
33 We do not reach, because it is not raised in this case, the
impact of a showing by the State that the defendant was aware of
the existence of the documents in question and knew, or could
reasonably discover, how to obtain them. Although
Gray
involved a procedurally defaulted
Brady claim, in that case,
the Court found that the petitioner had made "no attempt to
demonstrate cause or prejudice for his default."
Gray,
518
34 It is noteworthy that both of the reasons on which we relied
in
McCleskey to distinguish
Amadeo also apply to this
case: "This case differs from
Amadeo in two crucial
respects. First, there is no finding that the State concealed
evidence. And second, even if the State intentionally concealed the
21-page document, the concealment would not establish cause here
because, in light of McCleskey's knowledge of the information in
the document, any initial concealment would not have prevented him
from raising the claim in the first federal petition." 499 U. S.,
at 501-502.
289
In summary, petitioner has established cause for failing to
raise a
Brady claim prior to federal habeas because (a) the
prosecution withheld exculpatory evidence; (b) petitioner
reasonably relied on the prosecution's open file policy as
fulfilling the prosecution's duty to disclose such evidence; and
(c) the Commonwealth confirmed petitioner's reliance on the open
file policy by asserting during state habeas proceedings that
petitioner had already received "everything known to the
government."35 We need not decide in this case whether anyone or
two of these factors would be sufficient to constitute cause, since
the combination of all three surely suffices.
IV
The differing judgments of the District Court and the Court of
Appeals attest to the difficulty of resolving the issue of
prejudice. Unlike the Fourth Circuit, we do not believe that "the
Stolzfus
[sic] materials would have provided little or no
help to Strickler in either the guilt or sentencing phases of the
trial." App. 425. Without a doubt, Stoltzfus' testimony was
prejudicial in the sense that it made petitioner's conviction more
likely than if she had not testified, and discrediting her
testimony might have changed the outcome of the trial.
That, however, is not the standard that petitioner must satisfy
in order to obtain relief. He must convince us that "there is a
reasonable probability" that the result of the trial would have
been different if the suppressed documents had been disclosed to
the defense. As we stressed in
Ky les: "[T]he 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 ab-
35 Because our opinion does not modify
Brady, we reject
respondent's contention that we announce a "new rule" today. See
Bousley v.
United States, 523 U. S. 614 (1998).
290
sence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence." 514 U. S., at 434.
The Court of Appeals' negative answer to that question rested on
its conclusion that, without considering Stoltzfus' testimony, the
record contained ample, independent evidence of guilt, as well as
evidence sufficient to support the findings of vileness and future
dangerousness that warranted the imposition of the death penalty.
The standard used by that court was incorrect. As we made clear in
Kyles, the materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in
light of the undisclosed evidence, the remaining evidence is
sufficient to support the jury's conclusions.
Id., at
434-435. Rather, the question is whether "the favorable evidence
could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict."
I d., at
435.
The District Judge decided not to hold an evidentiary hearing to
determine whether Exhibits 2, 7, and 8 had been disclosed to the
defense, because he was satisfied that the "potentially devastating
impeachment material" contained in the other five warranted the
entry of summary judgment in petitioner's favor. App. 392. The
District Court's conclusion that the admittedly undisclosed
documents were sufficiently important to establish a violation of
the
Brady rule was supported by the prosecutor's closing
argument. That argument relied on Stoltzfus' testimony to
demonstrate petitioner's violent propensities and to establish that
he was the instigator and leader in Whitlock's abduction and, by
inference, her murder. The prosecutor emphasized the importance of
Stoltzfus' testimony in proving the abduction:
"[WJe are lucky enough to have an eyewitness who saw [what]
happened out there in that parking lot. [In a] lot of cases you
don't. A lot of cases you can just theorize what happened in the
actual abduction. But Mrs. Stoltzfus was there, she saw [what]
happened." App.169.
291
Given the record evidence involving Henderson,36 the District
Court concluded that, without Stoltzfus' testimony, the jury might
have been persuaded that Henderson, rather than petitioner, was the
ringleader. He reasoned that a "reasonable probability of
conviction" of first-degree, rather than capital, murder sufficed
to establish the materiality of the undisclosed Stoltzfus materials
and, thus, a
Brady violation. App.396.
The District Court was surely correct that there is a reasonable
possibility that either a total, or just a substantial,
discount of Stoltzfus' testimony might have produced a different
result, either at the guilt or sentencing phases. Petitioner did,
for example, introduce substantial mitigating evidence about abuse
he had suffered as a child at the hands of his stepfather.37 As the
District Court recognized, however, petitioner's burden is to
establish a reasonable
probability of a different result.
Kyles, 514 U. S., at 434.
36 The District Court summarized the evidence against
Henderson.
"Henderson's clothes had blood on them that night. Henderson had
property belonging to Whitlock and gave her watch to a woman,
Simmons, while at a restaurant known as Dice's Inn. Tr. 541.
Henderson left Dice's Inn driving Whitlock's car. Henderson's
wallet was found in the vicinity of Whitlock's body and was
possibly lost during his struggle with her. Significantly,
Henderson confessed to a friend on the night of the murder that he
had just killed an unidentified black person and that friend
observed blood on Henderson's jeans." App.395.
37 At sentencing, the trial court discussed the mitigation
evidence: "On the charge of capital murder ... it is difficult ...
to sit here and listen to the testimony of [petitioner's mother]
and Mr. Strickler's two sisters and not feel a great, great deal of
sympathy for, for any person who has a childhood and a life like
Mr. Strickler has had. He was in no way responsible for the
circumstances of his birth. He was brutalized from the minute he's,
almost from the minute he was born and certainly with his ...
limitations and his ability with which he was born, it would have
been extremely difficult for him to, to help himself. And
difficult, when you look at a case like that to feel but anything
but sympathy for him." Sentencing Hearing, 20 Record 57-58.
292
Even if Stoltzfus and her testimony had been entirely
discredited, the jury might still have concluded that petitioner
was the leader of the criminal enterprise because he was the one
seen driving the car by Kurt Massie near the location of the murder
and the one who kept the car for the following week.38 In addition,
Tudor testified that petitioner threatened Henderson with a knife
later in the evening.
More importantly, however, petitioner's guilt of capital murder
did not depend on proof that he was the dominant partner: Proof
that he was an equal participant with Henderson was sufficient
under the judge's instructions.39 Accordingly, the strong evidence
that Henderson was a killer is entirely consistent with the
conclusion that petitioner was also an actual participant in the
killing.40
38 As the trial court stated at petitioner's sentencing hearing:
"The facts in this case which support this jury verdict are one
that Mr. Strickler was ... in control of this situation. He was in
control at the shopping center in Harrisonburg. He was in control
when the car went into the field up here on the 340 north of
Waynesboro. He was in control thereafter, he ended up with the car.
There is no question who ... was in control of this entire
situation."
Id., at 22.
39 The judge gave the following instruction at petitioner's
trial: "You may find the defendant guilty of capital murder if the
evidence establishes that the defendant jointly participated in the
fatal beating, if it is established beyond a reasonable doubt that
the defendant was an active and immediate participant in the act or
acts that caused the victim's death."
Strickler v.
Commonwealth, 241 Va., at 493-494, 404 S. E. 2d, at 234-235.
The Virginia Supreme Court affirmed the propriety of this
instruction on petitioner's direct appeal.
Id., at 495, 404
S. E. 2d, at 235.
40 It is also consistent with the fact that Henderson was
convicted of first-degree murder but acquitted of capital murder
after his jury, unlike petitioner's, was instructed that they could
convict him of capital murder only if they found that he had
"'inflict[ed] the fatal blows.''' Henderson's jury was instructed,
"'One who is present aiding and abetting the actual killing, but
who does not inflict the fatal blows that cause death is a
principle [sic] in the second degree, and may not be found guilty
of capital murder. Before you can find the defendant guilty of
capital murder, the evidence must establish beyond a reasonable
doubt that the defendant was
293
Furthermore, there was considerable forensic and other physical
evidence linking petitioner to the crime.41 The weight and size of
the rock,42 and the character of the fatal injuries to the
victim,43 are powerful evidence supporting the conclusion that two
people acted jointly to commit a brutal murder.
We recognize the importance of eyewitness testimony; Stoltzfus
provided the only disinterested, narrative account of what
transpired on January 5, 1990. However, Stoltzfus' vivid
description of the events at the mall was not the only evidence
that the jury had before it. Two other eyewit-
an active and immediate participant in the acts that caused the
death.''' 2 App. in No. 97-29
(CA4), p. 777.
Henderson's trial took place before the Virginia Supreme Court
affirmed the trial instruction, and the "joint perpetrator" theory
it embodied, given at petitioner's trial.
Strickler v.
Commonwealth, 241 Va., at 494, 404 S. E. 2d, at 235.
Petitioner's trial judge rejected one of petitioner's proffered
instructions, which would have required the Commonwealth to prove
that "the defendant was the person who actually delivered the blow
that killed Leanne Whitlock."
Ibid. Petitioner's trial judge
recused himself from presiding over Henderson's trial, indicating
that he had already formed his own opinion about what had happened
the night of Whitlock's murder. 21 Record 2.
41 For example, the police recovered hairs on a bra and shirt
found with Whitlock's body that "were microscopically alike in all
identifiable characteristics" to petitioner's hair. App. 135. The
shirt recovered from the car at Strickler's mother's house had
human blood on it. Petitioner's fingerprints were found on the
outside and inside of the car taken from Whitlock.
Id., at
128-129. Tudor testified that petitioner's pants had blood on them,
and he had a cut on his knuckle.
Id., at 95.
42 The trial judge thought the shape of the rock so significant
to the jury's conclusion that he instructed the lawyers to have
"detailed, high quality photographs taken of [the rock] ... and I
want it put in the record of the case." Sentencing Hearing, 20
Record 53.
43 The Deputy Chief Medical Examiner, who performed the autopsy,
testified that the object that produced the fractures in Whitlock's
skull caused "severe lacerations to the brain," and any two of the
four fractures would have been fatal. App. 112.
294
nesses, the security guard and Henderson's friend, placed
petitioner and Henderson at the Harrisonburg Valley Shopping Mall
on the afternoon of Whitlock's murder. One eyewitness later saw
petitioner driving Dean's car near the scene of the murder.
The record provides strong support for the conclusion that
petitioner would have been convicted of capital murder and
sentenced to death, even if Stoltzfus had been severely impeached.
The jury was instructed on two predicates for capital murder:
robbery with a deadly weapon and abduction with intent to defile.44
On state habeas, the Virginia Supreme Court rejected as
procedurally barred petitioner's challenge to this jury instruction
on the ground that "abduction with intent to defile" was not a
predicate for capital murder for a victim over the age of 12.45
That issue is not before us. Even assuming, however, that this
predicate was erroneous, armed robbery still would have supported
the capital murder conviction.
Petitioner argues that the prosecution's evidence on armed
robbery "flowed almost entirely from inferences from Stoltzfus'
testimony," and especially from her statement that Henderson had a
"hard object" under his coat at the mall. Brief for Petitioner 35.
That argument, however, ignores the fact that petitioner's mother
and Tudor provided direct evidence that petitioner had a knife with
him on the day of the crime.
44 The trial court instructed the jury that, to convict
petitioner of capital murder, it must find beyond a reasonable
doubt that (1) "the defendant killed Leanne Whitlock"; (2) "the
killing was willful, deliberate and premeditated"; and (3) "the
killing occurred during the commission of robbery while the
defendant was armed with a deadly weapon, or occurred during the
commission of abduction with intent to extort money or a pecuniary
benefit or with the intent to defile or was of a person during the
commission of, or subsequent to, rape."
Strickler v.
Murray, 249 Va. 120, 124125, 452 S. E. 2d 648, 650
(1995).
45 In its motion to dismiss petitioner's state habeas petition,
the Commonwealth conceded that the instruction on intent to defile
was erroneously given in this case as a predicate for capital
murder. App. 218.
295
In addition, the prosecution contended in its closing argument
that the rock-not the knife-was the murder weapon.46 The
prosecution did advance the theory that petitioner had a knife when
he got in the car with Whitlock, but it did not specifically argue
that petitioner used the knife during the robbery.47
Petitioner also maintains that he suffered prejudice from the
failure to disclose the Stoltzfus documents because her testimony
impacted on the jury's decision to impose the death penalty. Her
testimony, however, did not relate to his eligibility for the death
sentence and was not relied upon by the prosecution at all during
its closing argument at the penalty phase.48 With respect to the
jury's discretionary decision to impose the death penalty, it is
true that Stoltzfus described petitioner as a violent, aggressive
person, but that portrayal surely was not as damaging as either the
evidence that he spent the evening of the murder dancing and
drinking at Dice's or the powerful message conveyed by the 69-
46 In his closing argument, the prosecutor stated that there was
"really no doubt about where it happened and what the murder weapon
was. It was not a gun, it wasn't a knife. It was this thing here,
it is to[o] big to be called a rock and to[o] small to be called a
boulder."
Id., at 167.
47 The instructions given to the jury defined a deadly weapon as
"any object or instrument that is likely to cause death or great
bodily injury because of the manner and under the circumstance in
which it is used."
Id., at 160.
48 The jury recommended death after finding the predicates of
"future dangerousness" and "vileness." Neither of these predicates
depended on Stoltzfus' testimony. The trial court instructed the
jury, "Before the penalty can be fixed at death, the Commonwealth
must prove beyond a reasonable doubt at least one of the following
two alternatives. One, that after consideration of his history and
background, there is a probability that he would commit criminal
acts of violence that would constitute a continuing, continuing
serious threat to society or two, that his conduct in committing
the offense was outrageously or wantonly vile, horrible or inhuman
and that it involved torture, depravity of mind or aggravated
battery to the victim beyond the minimum necessary to accomplish
the act of murder." Tr. 899-900.
296
Opinion of SOUTER, J.
pound rock that was part of the record before the jury.
Notwithstanding the obvious significance of Stoltzfus' testimony,
petitioner has not convinced us that there is a reasonable
probability that the jury would have returned a different verdict
if her testimony had been either severely impeached or excluded
entirely.
Petitioner has satisfied two of the three components of a
constitutional violation under
Brady: exculpatory evidence
and nondisclosure of this evidence by the prosecution. Petitioner
has also demonstrated cause for failing to raise this claim during
trial or on state postconviction review. However, petitioner has
not shown that there is a reasonable probability that his
conviction or sentence would have been different had these
materials been disclosed. He therefore cannot show materiality
under
Brady or prejudice from his failure to raise the claim
earlier. Accordingly, the judgment of the Court of Appeals is
Affirmed.
JUSTICE SOUTER, with whom JUSTICE KENNEDY joins as to Part II,
concurring in part and dissenting in part.
I look at this case much as the Court does, starting with its
view in Part III (which I join) that Strickler has shown cause to
excuse the procedural default of his
Brady claim. Like the
Court, I think it clear that the materials withheld were
exculpatory as devastating ammunition for impeaching Stoltzfus.1
See
ante, at 282. Even on the question of preju-
1 The Court notes that the District Court did not resolve
whether all eight of the Stoltzfus documents had been withheld, as
Strickler claimed, or only five. For purposes of its decision
granting summary judgment for Strickler, the District Court assumed
that only five had not been disclosed. See
ante, at 290,
279. The Court of Appeals also left the dispute unresolved, see
App. 418, n. 8, though granting summary judgment for respondent
based on a lack of prejudice would presumably have required that
court to assume that all eight documents had been withheld. Because
this Court affirms the grant of summary judgment for respondent
based on lack of prejudice and because it relies on at least one of
the
297
dice or materiality,2 over which I ultimately part company with
the majority, I am persuaded that Strickler has failed to establish
a reasonable probability that, had the materials withheld been
disclosed, he would not have been found guilty of capital murder.
See
ante, at 292-296. As the Court says, however, the
prejudice enquiry does not stop at the conviction but goes to each
step of the sentencing process: the jury's consideration of
aggravating, death-qualifying facts, the jury's discretionary
recommendation of a death sentence if it finds the requisite
aggravating factors, and the judge's discretionary decision to
follow the jury's recommendation. See
ante, at 294-296. It
is with respect to the penultimate step in determining the sentence
that I think Strickler has carried his burden. I believe there is a
reasonable probability (which I take to mean a significant
possibility) that disclosure of the Stoltzfus materials would have
led the jury to recommend life, not death, and I respectfully
dissent.
I
Before I get to the analysis of prejudice I should say something
about the standard for identifying it, and about the unfortunate
phrasing of the shorthand version in which the standard is
customarily couched. The Court speaks in terms of the familiar, and
perhaps familiarly deceptive, formulation: whether there is a
"reasonable probability" of a different outcome if the evidence
withheld had been disclosed. The Court rightly cautions that the
standard in-
disputed documents in its analysis, see
ante, at 282, I
understand it to have assumed that none of the eight documents was
disclosed. I proceed based on that assumption as well. If one
thought the difference between five and eight documents withheld
would affect the determination of prejudice, a remand to resolve
that factual question would be necessary.
2 In keeping with suggestions in a number of our opinions, see
Schlup v.
Delo, 513
U. S. 298, 327, n. 45 (1995);
Sawyer v.
Whitley,
505 U. S. 333,
345 (1992), the Court treats the prejudice enquiry as synonymous
with the materiality determination under
Brady v.
Maryland, 373
U. S. 83 (1963). See
ante, at 282, 288-289, 296. I
follow the Court's lead.
298
Opinion of SOUTER, J.
tended by these words does not require defendants to show that a
different outcome would have been more likely than not with the
suppressed evidence, let alone that without the materials withheld
the evidence would have been insufficient to support the result
reached. See
ante, at 289-290;
Kyles v.
Whitley, 514
U. S. 419, 434-435 (1995). Instead, the Court restates the
question (as I have done elsewhere) as whether "'the favorable
evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence'" in the outcome.
Ante, at 290 (quoting
Kyles, supra, at 435).
Despite our repeated explanation of the shorthand formulation in
these words, the continued use of the term "probability" raises an
unjustifiable risk of misleading courts into treating it as akin to
the more demanding standard, "more likely than not." While any
short phrases for what the cases are getting at will be "inevitably
imprecise,"
United States v.
Agurs, 427 U. S. 97, 108 (1976),
I think "significant possibility" would do better at capturing the
degree to which the undisclosed evidence would place the actual
result in question, sufficient to warrant overturning a conviction
or sentence.
To see that this is so, we need to recall
Brady's
evolution since the appearance of the rule as originally stated,
that "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."
Brady v.
Maryland, 373
U. S. 83, 87 (1963).
Brady itself did not explain what
it meant by "material" (perhaps assuming the term would be given
its usual meaning in the law of evidence, see
United States
v.
Bagley, 473
U. S. 667, 703, n. 5 (1985) (Marshall, J., dissenting)). We
first essayed a partial definition in
United States v.
Agurs, supra, where we identified three situations arguably
within the ambit of
Brady and said that in the first,
involving knowing use of perjured testi-
299
mony, reversal was required if there was "any reasonable
likelihood" that the false testimony had affected the verdict.
Agurs, supra, at 103 (citing
Giglio v.
United
States, 405 U. S.
150, 154 (1972), in turn quoting
Napue v.
Illinois, 360
U. S. 264, 271 (1959)). We have treated "reasonable likelihood"
as synonymous with "reasonable possibility" and thus have equated
materiality in the perjured-testimony cases with a showing that
suppression of the evidence was not harmless beyond a reasonable
doubt.
Bagley, supra, at 678-680, and n. 9 (opinion of
Blackmun, J.). See also
Brecht v.
Abrahamson,
507 U. S. 619,
637 (1993) (defining harmless-beyond-areasonable-doubt standard as
no "'reasonable possibility' that trial error contributed to the
verdict");
Chapman v.
California, 386 U. S. 18, 24 (1967)
(same). In
Agurs, we thought a less demanding standard
appropriate when the prosecution fails to turn over materials in
the absence of a specific request. Although we refrained from
attaching a label to that standard, we explained it as falling
between the more-likely-than-not level and yet another criterion,
whether the reviewing court's "'conviction [was] sure that the
error did not influence the jury, or had but very slight effect.'"
427 U. S., at 112 (quoting
Kotteakos v.
United States,
328 U. S. 750, 764 (1946)). Finally, in
United States v.
Bagley, supra, we embraced "reasonable probability" as the
appropriate standard to judge the materiality of information
withheld by the prosecution whether or not the defense had asked
first.
Bagley took that phrase from
Strickland v.
Washington, 466 U. S. 668, 694
(1984), where it had been used for the level of prejudice needed to
make out a claim of constitutionally ineffective assistance of
counsel.
Strickland in turn cited two cases for its
formulation,
Agurs (which did not contain the expression
"reasonable probability") and
United States v.
Valenzuela-Bernal, 458 U. S. 858, 873-874
(1982) (which held that sanctions against the Government for
deportation of a potential defense witness were appropriate
only
300
Opinion of SOUTER, J.
if there was a "reasonable likelihood" that the lost testimony
"could have affected the judgment of the trier of fact").
The circuitous path by which the Court came to adopt "reasonable
probability" of a different result as the rule of
Brady
materiality suggests several things. First, while "reasonable
possibility" or "reasonable likelihood," the
Kotteakos
standard, and "reasonable probability" express distinct levels of
confidence concerning the hypothetical effects of errors on
decisionmakers' reasoning, the differences among the standards are
slight. Second, the gap between all three of those formulations and
"more likely than not" is greater than any differences among them.
Third, because of that larger gap, it is misleading in
Brady
cases to use the term "probability," which is naturally read as the
cognate of "probably" and thus confused with "more likely than
not," see
Morris v.
Mathews, 475 U. S. 237, 247 (1986)
(apparently treating "reasonable probability" as synonymous with
"probably");
id., at 254, n. 3 (Blackmun, J., concurring in
judgment) (cautioning against confusing "reasonable probability"
with more likely than not). We would be better off speaking of a
"significant possibility" of a different result to characterize the
Brady materiality standard. Even then, given the soft edges
of all these phrases,3 the touchstone of the enquiry
3 Each of these phrases or standards has been used in a number
of contexts. This Court has used "reasonable possibility," for
example, in defining the level of threat of injury to competition
needed to make out a claim under the Robinson-Patman Act, see,
e. g., Brooke Group Ltd. v.
Brown &
Williamson Tobacco Corp., 509 U. S. 209,222 (1993);
the standard for judging whether a grand jury subpoena should be
quashed under Federal Rule of Criminal Procedure 17(c), see
United States v.
R. Enterprises, Inc., 498 U. S. 292,
301 (1991); and the debtor's burden in establishing that certain
collateral is necessary to reorganization and thus exempt from the
Bankruptcy Code's automatic stay provision, see
United Sav.
Assn. of Tex. v.
Timbers of Inwood Forest Associates,
Ltd., 484 U. S.
365, 375-376 (1988). We have adopted the standard established
in
Kotteakos v.
United States, 328 U. S. 750 (1946), for
determining the harmlessness of nonconstitutional errors on direct
review as the criterion for the harmlessness enquiry concerning
constitutional errors on collateral review. See
Brecht v.
Abra-
301
must remain whether the evidentiary suppression "undermines our
confidence" that the factfinder would have reached the same
result.
II
Even keeping in mind these caveats about the appropriate level
of materiality, applying the standard to the facts of this case
does not give the Court easy answers, as the Court candidly
acknowledges. See
ante, at 289. Indeed, the Court concedes
that discrediting Stoltzfus's testimony "might have changed the
outcome of the trial,"
ibid., and that the District Court
was "surely correct" to find a "reasonable
possibility that
either a total, or just a substantial, discount of Stoltzfus'
testimony might have produced a different result, either at the
guilt or sentencing phases,"
ante, at 291.
In the end, however, the Court finds the undisclosed evidence
inadequate to undermine confidence in the jury's sen-
hamson, 507
U. S. 619, 637-638 (1993). We have used "reasonable
probability" to define the plaintiff's burden in making out a claim
under § 7 of the Clayton Act, see,
e. g., Brown Shoe Co. v.
United States, 370 U. S. 294, 325
(1962);
FTC v.
Morton Salt Co., 334 U. S. 37, 55-61 (1948)
(Jackson, J., dissenting in part) (contrasting "reasonable
possibility" and "reasonable probability" and arguing for latter as
appropriate standard under Robinson-Patman Act); the standard for
granting certiorari, vacating, and remanding in light of
intervening developments, see,
e. g., Lawrence v.
Chater, 516 U.
S. 163, 167 (1996)
(per curiam); and the standard for
exempting organizations from otherwise valid disclosure
requirements in light of threats or harassment resulting from the
disclosure, see,
e. g., Buckley v.
Valeo, 424 U. S.
1, 74 (1976)
(per curiam). We have recently used
"significant possibility" in explaining the circumstances under
which nominal compensation is an appropriate award in a suit under
the Longshore and Harbor Workers' Compensation Act, see
Metropolitan Stevedore Co. v.
Rambo, 521 U. S. 121, 123
(1997), but we most commonly use that term in defining one of the
requirements for the granting of a stay pending certiorari. The
three-part test requires a "reasonable probability" that the Court
will grant certiorari or note probable jurisdiction, a "significant
possibility" that the Court will reverse the decision below, and a
likelihood of irreparable injury absent a stay. See,
e. g.,
Barefoot v.
Estelle, 463 U. S. 880, 895
(1983);
Packwood v.
Senate Select Comm. on Ethics,
510 U. S. 1319
(1994) (REHNQUIST, C. J., in chambers).
302
Opinion of SOUTER, J.
tencing recommendation, whereas I find it sufficient to do that.
Since we apply the same standard to the same record, our differing
conclusions largely reflect different assessments of the
significance the jurors probably ascribed to the Stoltzfus
testimony. My assessment turns on two points. First, I believe that
in making the ultimate judgment about what should be done to one of
several participants in a crime this appalling the jurors would
very likely have given weight to the degree of initiative and
leadership exercised by that particular defendant. Second, I
believe that no other testimony comes close to the prominence and
force of Stoltzfus's account in showing Strickler as the
unquestionably dominant member of the trio involved in Whitlock's
abduction and the aggressive and moving figure behind her
murder.
Although Stoltzfus was not the prosecution's first witness, she
was the first to describe Strickler in any detail, thus providing
the frame for the remainder of the story the prosecution presented
to the jury. From the start of Stoltzfus's testimony, Strickler was
"Mountain Man" and his male companion "Shy Guy," labels whose
repetition more than a dozen times (by the prosecutor as well as by
Stoltzfus) must have left the jurors with a clear sense of the
relative roles that Strickler and Henderson played in the crimes
that followed Stoltzfus's observation. According to her, when she
first saw Strickler she "just sort of instinctively backed up
because I was frightened." App. 36. Unlike retiring "Shy Guy,"
Strickler was "revved up."
Id., at 39, 60. Even in
describing her first encounter with Strickler inside the mall,
Stoltzfus spoke of him as domineering, a "very impatient" character
yelling at his female companion, "Blonde Girl," to join him.
Id., at 36, 38-39.
After describing in detail how "Mountain Man" and "Blonde Girl"
were dressed, Stoltzfus said that" 'Mountain Man' came tearing out
of the Mall entrance door and went up to the driver of [a] van and
... was just really mad and ran back and banged on back of the
backside of the van"
303
while "Shy Guy" and "Blonde Girl" hung back.
Id., at 43.
"Mountain Man" approached a pickup truck, then "pounded on" the
front passenger side window of Whitlock's car, "shook and shook the
car door," "banging and banging on the window" while Whitlock
checked to see if the door was locked.
Ibid. Finally, "he
just really shook it hard and you could tell he was mad. Shook it
really hard and the door opened and he jumped in ... and faced
her."
Id., at 43-44. While Whitlock tried to push him away,
"Mountain Man" "motioned for 'Blonde Girl' and 'Shy Guy' to come"
and the girl did as she was bidden. She "started to jump into the
car," but "jumped back" when Whitlock stepped on the gas.
I
d., at 44. Then "Mountain Man" started "hitting [Whitlock] on
the left shoulder, her right shoulder and then ... the head,"
finally "open[ing] the door again" so "the 'Blonde Girl' got in the
back and 'Shy Guy' followed and got behind him."
I d., at
45. "Shy Guy" passed "Mountain Man" his tan coat, which "Mountain
Man" "fiddled with" for "what seemed like a long time," then "sat
back up and ... faced" Whitlock while "the other two in the back
seat sat back and relaxed."
Ibid. Stoltzfus then claimed
that she got out of her car and went over to Whitlock's, whereupon
unassertive "Shy Guy" "instinctively jumped, you know, laid over on
the seat to hide from me."
Id., at 46. Stoltzfus pulled up
next to Whitlock's car and repeatedly asked, "[A]re you O.K.[?],"
but Whitlock responded only with eye contact; "she didn't smile,
there was no expression," and "[j]ust very serious, looked down to
her right," suggesting Strickler was holding a weapon on her.
I
d., at 46, 47. Finally, Whitlock mouthed something, which
Stoltzfus demonstrated for the jury and then explained she realized
must have been the word, "help."
Id., at 47.
Without rejecting the very notion that jurors with discretion in
sentencing would be influenced by the relative dominance of one
accomplice among others in a shocking crime, I could not regard
Stoltzfus's colorful testimony as anything but significant on the
matter of sentence. It was Stoltzfus
304
Opinion of SOUTER, J.
alone who described Strickler as the initiator of the abduction,
as the one who broke into Whitlock's car, who beckoned his
companions to follow him, and who violently subdued the victim
while "Shy Guy" sat in the back seat. The bare content of this
testimony, important enough, was enhanced by one of the inherent
hallmarks of reliability, as Stoltzfus confidently recalled detail
after detail. The withheld documents would have shown, however,
that many of the details Stoltzfus confidently mentioned on the
stand (such as Strickler's appearance, Whitlock's appearance, the
hour of day when the episode occurred, and her daughter's alleged
notation of the license plate number of Whitlock's car) had
apparently escaped her memory in her initial interviews with the
police. Her persuasive account did not come, indeed, until after
her recollection had been aided by further conversations with the
police and with the victim's boyfriend. I therefore have to assess
the likely havoc that an informed cross-examiner could have wreaked
upon Stoltzfus as adequate to raise a significant possibility of a
different recommendation, as sufficient to undermine confidence
that the death recommendation would have been the choice. All it
would have taken, after all, was one juror to hold out against
death to preclude the recommendation actually given.
The Court does not, of course, deny that evidence of dominant
role would probably have been considered by the jury; the Court,
instead, doubts that this consideration, and the evidence bearing
on it, would have figured so prominently in a juror's mind as to be
a fulcrum of confidence. I am not convinced by the Court's
reasons.
The Court emphasizes the brutal manner of the killing and
Strickler's want of remorse as jury considerations diminishing the
relative importance of Strickler's position as ringleader. See
ante, at 295-296. Without doubt the jurors considered these
to be important factors, and without doubt they may have been
treated as sufficient to warrant death. But as the Court says,
sufficiency of other evidence and the
305
facts it supports is not the
Brady standard, and the
significance of both brutality and sangfroid must surely have been
complemented by a certainty that without Strickler there would have
been no abduction and no ensuing murder.
The Court concludes that Stoltzfus's testimony is unlikely to
have had significant influence on the jury's sentencing
recommendation because the prosecutor made no mention of her
testimony in his closing statement at the sentencing proceeding.
See
ante, at 295. But although the Court is entirely right
that the prosecution gave no prominence to the Stoltzfus testimony
at the sentencing stage, the Commonwealth's closing actually did
include two brief references to Strickler's behavior in "just
grabbing a complete stranger and abducting her," 19 Record 919; see
also
id., at 904, as relevant to the jury's determination of
future dangerousness. And since Strickler's criminal record had no
convictions involving actual violence, a point defense counsel
stressed in his closing argument, see
id., at 913, the
jurors may well have given weight to Stoltzfus's lively portrait of
Strickler as the aggressive leader of the group when they came to
assess his future dangerousness.
What is more important, common experience, supported by at least
one empirical study, see Bowers, Sandys, & Steiner, Foreclosed
Impartiality in Capital Sentencing: Jurors' Predispositions,
Guilt-Trial Experience, and Premature Decision Making, 83 Cornell
L. Rev. 1476, 1486-1496 (1998), tells us that the evidence and
arguments presented during the guilt phase of a capital trial will
often have a significant effect on the jurors' choice of sentence.
True, Stoltzfus's testimony directly discussed only the
circumstances of Whitlock's abduction, but its impact on the jury
was almost certainly broader, as the prosecutor recognized. After
the jury rendered its verdict on guilt, for example, the defense
moved for a judgment of acquittal on the capital murder charge
based on insufficiency of the evidence. In the prosecutor's
argument to the court he replied that
306
Opinion of SOUTER, J.
"the evidence clearly shows that this man was the aggressor. He
was the one that ran out. He was the one that grabbed Leanne
Whitlock. When she struggled trying to get away from him ... , he
was the one that started beating her there in the car. And finally
subdued her enough to make her drive away from the mall, so you
start with the principle that he is the aggressor." 20 Record
15.
Stoltzfus's testimony helped establish the "principle," as the
prosecutor put it, that Strickler was "the aggressor," the dominant
figure, in the whole sequence of criminal events, including the
murder, not just in the abduction. If the defense could have called
Stoltzfus's credibility into question, the jurors' belief that
Strickler was the chief aggressor might have been undermined to the
point that at least one of them would have hesitated to recommend
death.
The Court suggests that the jury might have concluded that
Strickler was the leader based on three other pieces of evidence:
Kurt Massie's identification of Strickler as the driver of
Whitlock's car on its way toward the field where she was killed;
Donna Tudor's testimony that Strickler kept the car the following
week; and Tudor's testimony that Strickler threatened Henderson
with a knife later on the evening of the murder. But if we are
going to look at other testimony we cannot stop here. The accuracy
of both Massie's and Tudor's testimony was open to question,4 and
all of it was subject to some evidence that Henderson had taken a
major role in the murder. The Court has quoted the Dis-
4 Massie's identification was open to some doubt because it
occurred at night as one car passed another on a highway. Moreover,
he testified that he first saw four people in the car, then only
three, and that none of the occupants was black. App. 66-67, 70-73.
Tudor, as defense counsel brought out on cross-examination,
testified pursuant to a cooperation agreement with the government
and admitted that the story she told on the stand was different
from what she had told the defense investigator before trial.
Id., at 100-101, 103-104.
307
trict Court's summation of evidence against him,
ante, at
291, n. 36: Henderson's wallet was found near the body, his clothes
were bloody, he presented a woman friend with the victim's watch at
a postmortem celebration (which he left driving the victim's car),
and he confessed to a friend that he had just killed an
unidentified black person. Had this been the totality of the
evidence, the jurors could well have had little certainty about who
had been in charge. But they could have had no doubt about the
leader if they believed Stoltzfus.
Ultimately, I cannot accept the Court's discount of Stoltzfus in
the
Brady sentencing calculus for the reason I have
repeatedly emphasized, the undeniable narrative force of what she
said. Against this, it does not matter so much that other witnesses
could have placed Strickler at the shopping mall on the afternoon
of the murder,
ante, at 293-294, or that the Stoltzfus
testimony did not directly address the aggravating factors found,
ante, at 295. What is important is that her evidence
presented a gripping story, see E. Loftus & J. Doyle,
Eyewitness Testimony: Civil and Criminal 5 (3d ed. 1997)
("[R]esearch redoundingly proves that the story format is a
powerful key to juror decision making"). Its message was that
Strickler was the madly energetic leader of two morally apathetic
accomplices, who were passive but for his direction. One cannot be
reasonably confident that not a single juror would have had a
different perspective after an impeachment that would have
destroyed the credibility of that story. I would accordingly vacate
the sentence and remand for reconsideration, and to that extent I
respectfully dissent.
Comments
Be the first to comment
Leave a Comment