Boss, Randy v. Pierce, Guy ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3665
Randy Boss and Revell Boss,
Petitioners-Appellants,
v.
Guy Pierce and Mark A. Pierson,/*
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 2874--James B. Moran, Judge.
Argued April 18, 2000--Decided August 31, 2001
Before Flaum, Chief Judge, and Ripple, and
Williams, Circuit Judges.
Williams, Circuit Judge. Randy and
Revell Boss/1 seek writs of habeas
corpus overturning their state robbery
and murder convictions. They argue that
during their trial prosecutors
unconstitutionally withheld from them
material evidence favorable to their
defense, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The
district court concluded that this
argument did not warrant habeas corpus
relief. Because we believe the Bosses
have adequately established the elements
of a Brady violation, we reverse.
I. BACKGROUND
A. The Facts
At the Bosses’ joint trial, the state
sought to prove that the Bosses, along
with two co-defendants who were tried
separately, Nikia Harris and Corey
Carter, robbed and beat to death Eugene
Oliver, a 52-year-old neighborhood
resident. Robert McAfee, a teenager at
the time of the attack, was the only
witness the government called to testify
about the robbery and murder./2 His
direct testimony is summarized below.
McAfee was riding his bicycle home from
Garfield Park in Chicago on September 6,
1993, at approximately 10:45 p.m. He
stopped at the corner of Franklin and
Drake and talked to a girl who was
leaning out of a window. After about a
minute, the conversation ended, and
McAfee saw four men and a woman standing
across the street outside the senior
citizens’ home, drinking beer. Although
he did not recognize the woman, he
recognized the four men--Randy, Revell
(identified as "Vell"), Keater, and
Corey./3
While still looking across the street,
McAfee saw Eugene Oliver leave the senior
citizens’ home and walk toward Franklin.
Randy, Vell, Keater, and Corey followed
Oliver. As they walked to the corner of
Franklin and Drake, Randy approached
McAfee and asked if he could use his
bicycle. After McAfee refused, Randy
simply took the bicycle and rode off.
McAfee gave chase.
Meanwhile, Oliver had turned left onto
Franklin and walked to Central Park. On
McAfee’s bicycle, Randy caught up with
Oliver and threw the bicycle at Oliver’s
legs, which caused Oliver to fall to the
ground. Although McAfee could not
remember where they came from, Vell,
Keater, and Corey had by this point made
their way to Central Park. All four began
to beat Oliver. They repeatedly kicked
Oliver in the face and on his side. Randy
picked up the bicycle and threw it on
Oliver’s head three times. The beating
lasted about a minute, and left Oliver
motionless on the ground. Afterwards,
Randy reached into Oliver’s pocket and
removed something.
As Randy, Vell, Keater, and Corey left
the scene of the attack, they walked past
McAfee, who had seen the attack from
across the street. Randy told McAfee,
"Don’t say nothing, don’t tell nobody."
McAfee also noticed that Randy had a $20
bill in his hand, and he heard Randy
talking about purchasing some beer.
Once they were gone, McAfee retrieved
his bicycle from the park./4 The crank
was so bent he had to push the bicycle
home. Because of Randy’s threat, McAfee
kept quiet about Oliver’s beating until
he was questioned by the police.
At trial, during cross-examination,
defense counsel questioned McAfee about a
juvenile manslaughter adjudication that
arose out of his accidental shooting of a
friend, for which he was still on
probation. McAfee admitted that he first
lied to the police regarding his role in
his friend’s death because he was scared.
With respect to the Oliver beating, he
admitted that he was scared when the
police brought him in for questioning.
Defense counsel also elicited testimony
from McAfee suggesting that the police
may have initially suspected him as
having been involved in the attack on
Oliver./5
The four witnesses called by the defense
told a different story. Antonio Shanklin
testified that he saw four or five boys
who he had never seen before beating
Oliver. He identified McAfee as the one
who picked up a bicycle and hit Oliver
with it. Afterwards, McAfee fixed the
chain on the bicycle and rode off,
joining the other boys who had begun to
flee the scene. As they fled, they went
past Shanklin, and he had a good chance
to look at them.
Shanklin also testified that he had
known the Bosses for about three years,
and he was certain they were not among
the group of boys fleeing the scene. In
fact, he stated that he saw Revell on the
east side of Central Park while Oliver
was being beaten on the west side of the
park. On cross-examination, Shanklin
admitted that he came forward to testify
at the request of the Bosses’ family./6
Contina Hill, Randy’s girlfriend and his
child’s mother, stated that on the day of
the crime, Randy was with her at the
apartment she shares with her mother and
other family members, enjoying a Labor
Day barbeque. He left the apartment only
twice. Sometime in the afternoon, he went
downstairs to the apartment of Corey
Carter’s cousin, Gregory Carter. That
night, he went out with Gregory and two
other men and returned a short time later
with beer. Randy left for good much later
that night. Sometime late that night
Revell came by and spent some time at the
Hills’ apartment. Janice Hill, Contina’s
sister, corroborated her sister’s
testimony and added that when Randy left
the apartment the second time, he was
gone approximately 15 minutes.
Tonya Gist, a neighbor of the Hills,
testified that on the night of the crime,
near Central Park, she saw McAfee
fighting with an older man from the
senior citizens’ home. She went home, and
when she arrived, she saw Randy sitting
on the back porch she shared with the
Hills. He was still there when she locked
the gate later that evening. Also, at
some point during the evening, Gist saw
Revell on the porch.
On the last day of the Bosses’ two-day
trial, the state gave the Bosses an
investigative report summarizing an
interview of Janice Hill conducted four
days before the trial began. This report
revealed that Janice told the state
investigator information unknown to
defense counsel: (1) that McAfee had been
bragging to people about what he and his
friends had done to Oliver; and (2) that
McAfee had told Richard Mitchell that he
had only implicated Randy, Revell, and
the other defendants in the Oliver attack
so that he would not get in trouble.
Based on this information, defense
counsel moved for a continuance so that
they could locate Richard Mitchell. The
trial judge denied the motion.
The trial went forward, and the jury
found Randy and Revell guilty of both
first-degree murder and robbery. After
the trial, but before sentencing, new
defense counsel followed up on the Janice
Hill information. Counsel located and
talked to Richard Mitchell. According to
Mitchell, McAfee admitted that he, not
the defendants, had committed the
offense. Counsel also collected written
statements from Marcus Fowler and Ricky
Boss to the same effect. Based on this
material, counsel filed a motion for a
new trial,/7 but the trial judge denied
the motion. The trial judge then
sentenced Randy to concurrent prison
terms of fifty years for murder and seven
years for robbery, and sentenced Revell
to concurrent prison terms of forty years
for murder and seven years for robbery.
B. Post-Conviction Proceedings
The Bosses appealed their convictions to
the Illinois Appellate Court, claiming,
among other things, that the State’s
Attorneys prosecuting their case violated
Brady v. Maryland, supra, by withholding
the investigative report summarizing
Janice Hill’s interview with the state
investigator. The Appellate Court
affirmed their convictions. In rejecting
the Bosses’ Brady claim, the Appellate
Court concluded that the Bosses could
satisfy none of the requirements for a
Brady claim, as the investigative report
was not suppressed by the state,
favorable to the defense, or material,
under Brady. The Bosses sought review in
the Illinois Supreme Court, but their
petition was denied without an opinion.
The Bosses then turned to federal court
and filed a petition for a writ of habeas
corpus in the District Court for the
Northern District of Illinois, raising
the same claims. Concluding that the
information in the investigative report
was not suppressed by the state, the
district court denied the writ. The
district court granted them a certificate
of appealability, and the Bosses filed
this appeal with respect to their Brady
claim./8
II. ANALYSIS
A. Habeas Corpus and 28 U.S.C. sec.
2254(d)(1)
In considering a habeas corpus petition
filed by a state prisoner that challenges
the prisoner’s conviction or sentence on
legal grounds, federal courts employ the
standards set forth in 28 U.S.C. sec.
2254(d)(1). Under this provision, a
federal court may grant a writ of habeas
corpus only if the adjudication of the
prisoner’s claims in state court resulted
in a decision that "was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States." As the Supreme Court
explained in Williams v. Taylor, 529 U.S.
362 (2000), section 2254(d)(1)
establishes two independent grounds on
which a federal court can grant habeas
corpus relief: (1) if a state court
decision is contrary to clearly
established federal law, as determined by
the Supreme Court, or (2) if a state
court decision involves an unreasonable
application of clearly established
federal law, as determined by the Supreme
Court. Id. at 404-05; see also Washington
v. Smith, 219 F.3d 620, 627-28 (7th Cir.
2000).
The "contrary to" standard requires a
state court decision to be "substantially
different from the relevant precedent of
[the Supreme Court]." Williams, 529 U.S.
at 405. For example, a state court
decision applying a rule that contradicts
the governing law set forth by the
Supreme Court would qualify, as would a
decision that involves a set of facts ma
terially indistinguishable from a Supreme
Court case that arrives at a different
result. Id. at 405-06. By contrast, a
state court decision that draws from
Supreme Court precedent the correct legal
rule and applies it in a factually
distinguishable situation will not
satisfy the "contrary to" standard, no
matter how misguided the decision’s
ultimate conclusion. Id. at 406-07.
Errors in the application of Supreme
Court precedent are governed by the
"unreasonable application of" standard.
"A state-court decision that correctly
identifies the governing legal rule but
applies it unreasonably to the facts of a
particular prisoner’s case" qualifies as
a decision involving an unreasonable
application of clearly established
federal law. Id. at 407-08. Whether an
application of federal law is
unreasonable is not a simple question to
answer, as "unreasonable" is a difficult
term to define without reference to a
particular set of facts. Still, Williams
provides guidance. First, reasonableness
is judged objectively, not subjectively.
Id. at 409-10. Thus, the fact that judges
may disagree about the proper application
of a precedent does not affect the
reasonableness of a particular
application of that precedent. Second,
"an unreasonable application of federal
law is different from an incorrect
application of federal law." Id. at 410
(emphasis in original). Therefore, a
federal court may not grant habeas corpus
relief simply because it has
independently concluded that the relevant
state court decision misapplies clearly
established federal law. The decision’s
application of Supreme Court precedent
must be so erroneous as to be
unreasonable.
In Williams, the Supreme Court also
explained the meaning of the phrase
"clearly established Federal law, as
determined by the Supreme Court of the
United States." It characterized the
phrase as referring to "the holdings, as
opposed to the dicta, of this Court’s
decisions as of the time of the relevant
state-court decision." Id. at 412. There
fore, in order to grant habeas corpus
relief under section 2254(d)(1), a
federal court must be able to point to
the holding of a Supreme Court decision
handed down before the state courts
issued the decision under review.
B. Brady Violation
With these standards in mind, we turn to
the Bosses’ Brady claim. Under Brady v.
Maryland, supra, and its progeny, the
prosecution has an affirmative duty to
disclose evidence that is both favorable
to the defense and material to either
guilt or punishment. Kyles v. Whitley,
514 U.S. 419, 432-34 (1995); United
States v. Bagley, 473 U.S. 667, 674-75
(1985); Brady, 373 U.S. at 87. The
suppression of such evidence deprives the
defendant of a fair trial and thus
violates due process. Brady, 373 U.S. at
86-87. To establish a Brady violation, a
defendant must demonstrate that (1) the
prosecution suppressed evidence, (2) the
evidence was favorable to the defense,
and (3) the evidence was material to an
issue at trial. United States v. Walton,
217 F.3d 443, 450 (7th Cir. 2000); United
States v. Morris, 80 F.3d 1151, 1169 (7th
Cir. 1996). The state does not contest
the Bosses’ contention that the
investigative report summarizing Janice
Hill’s interview with the state
investigator was favorable to the
defense./9 Therefore, we focus our
attention on suppression and materiality,
the other two elements of a Brady claim.
1. Suppression.
Evidence is suppressed for Brady
purposes only if (1) the prosecution
failed to disclose evidence that it or
law enforcement was aware of before it
was too late for the defendant to make
use of the evidence, and (2) the evidence
was not otherwise available to the
defendant through the exercise of
reasonable diligence. United States v.
Earnest, 129 F.3d 906, 910 (7th Cir.
1997); Morris, 80 F.3d at 1169-70; United
States v. Zambrana, 841 F.2d 1320, 1340
(7th Cir. 1988). The state here contests
whether the information Janice Hill
related to the state investigator was
available to the Bosses through the
exercise of reasonable diligence.
Specifically, the state argues that
Janice Hill was a defense witness and,
therefore, the Bosses had ample access to
any information she possessed. Both the
district court and the Illinois Appellate
Court accepted this argument and found
that the prosecution had not suppressed
the evidence in the investigative report.
We are of the view, however, that the
state’s argument rests on far too
expansive an understanding of what sort
of evidence should be considered
available to a defendant through the
exercise of reasonable diligence. We
regard as untenable a broad rule that any
information possessed by a defense
witness must be considered available to
the defense for Brady purposes. To begin
with, it is simply not true that a
reasonably diligent defense counsel will
always be able to extract all the
favorable evidence a defense witness
possesses. Sometimes, a defense witness
may be uncooperative or reluctant. Or,
the defense witness may have forgotten or
inadvertently omitted some important
piece of evidence previously related to
the prosecution or law enforcement. Or,
as may have been the case here, the
defense witness learned of certain
evidence in the time between when she
spoke with defense counsel and the
prosecution.
Putting aside these situations in which
it would be nearly impossible for defense
counsel to discover evidence in the
possession of defense witnesses,
accepting the state’s position would
place a burden on defense counsel that
goes far beyond what reasonable diligence
demands. Defense counsel can certainly be
expected to ask witnesses (defense and
otherwise) questions relevant to what
counsel understands the witness’s role to
be in the case. However, defense counsel
cannot be expected to ask witnesses about
matters completely unrelated to the
witness’s role in the case. A contrary
conclusion would require defense counsel
to conduct a fishing expedition with
every defense witness (and potential
defense witness). Reasonable diligence
does not require such a practice.
We also find it significant that a
defense witness’s knowledge is quite
different from the type of evidence
typically found to be available to
defense counsel through the exercise of
reasonable diligence. In the typical
reasonable diligence case, the question
is whether defense counsel had access to
the document containing the Brady
material, through an open file policy,
for example. See, e.g., United States v.
White, 970 F.2d 328, 337 (7th Cir. 1992).
In cases like the present one, the
question is whether defense counsel had
access to Brady material contained in a
witness’s head. See, e.g., Crivens v.
Roth, 172 F.3d 991, 997 (7th Cir. 1999).
Because mind-reading is beyond the
abilities of even the most diligent
attorney, such material simply cannot be
considered available in the same way as a
document. But, the position the state
advances would require a defense
witness’s knowledge to be treated exactly
as information in a document the defense
possesses. This stretches the concept of
reasonable diligence too far.
Still, the ultimate question we must
answer in this case is whether the
Illinois Appellate Court’s ruling--
thatbecause Janice Hill was a defense
witness, the information she possessed
was available to the Bosses through the
exercise of reasonable diligence--"was
contrary to, or an unreasonable
application of clearly established
federal law, as determined by the Supreme
Court." 28 U.S.C. sec. 2254(d)(1). Brady
and its most notable progeny (United
States v. Agurs, 427 U.S. 97 (1976);
United States v. Bagley, supra; Kyles v.
Whitley, supra), all of which were
decided prior to the conclusion of the
Bosses direct appeal, represent the
relevant, clearly established federal
law./10 And, the Appellate Court’s
ruling is not so inconsistent with these
cases that it can be characterized as
"contrary to" them. Thus, we focus on
whether the Appellate Court’s decision is
an "unreasonable application of" Brady
and its progeny. We conclude that it was.
When faced with the task of determining
whether a particular application of
Supreme Court precedent is unreasonable,
we have often taken a more pragmatic
approach to answering the question,
scrutinizing the practical operation and
effect of the principles at issue in the
particular facts of the case. See, e.g.,
Miller v. Anderson, 255 F.3d 455, 456-59
(7th Cir. 2001); Redmond v. Kingston, 240
F.3d 590, 591-92 (7th Cir. 2001);
Washington v. Smith, 219 F.3d 620, 627-35
(7th Cir. 2000). We ask whether the
decision is "at least minimally
consistent with the facts and
circumstances of the case" or "if it is
one of several equally plausible
outcomes," Hennon v. Cooper, 109 F.3d
330, 335 (7th Cir. 1997); Hall v.
Washington, 106 F.3d 742, 749 (7th Cir.
1997), granting a writ of habeas corpus
if the determination is "at such tension
with governing U.S. Supreme Court
precedents, or so inadequately supported
by the record, or so arbitrary" as to be
unreasonable. Hall, 106 F.3d at 749.
For instance, in Redmond v. Kingston,
supra, this court considered whether a
Wisconsin court of appeals’ decision to
affirm a state trial court’s exclusion of
evidence (that the alleged statutory rape
victim in the case had lied about a prior
report of forcible rape) was an
unreasonable application of Supreme Court
Confrontation Clause precedent. The
defendant was on trial for allegedly
trading cocaine for sex with the minor,
who was institutionalized at the drug
rehabilitation center where the defendant
was a counselor. Her testimony was the
only evidence of the defendant’s guilt.
The Wisconsin court upheld the exclusion
of the prior false forcible rape report
against the constitutional challenge,
stating that it was cumulative of other
credibility evidence and was confusing
(the prior incident involved consent,
which was not an element in that case).
Therefore, they concluded that its
probative value was outweighed by its
inflammatory and prejudicial nature,
justifying exclusion under the state’s
rape-shield law and the Constitution.
We held that this decision was
unreasonable. Redmond, 240 F.3d at 591.
The "other credibility" evidence was that
the minor began using drugs at the age of
twelve, had stolen and occasionally
danced to get money for cocaine, had run
away from the institution, skipped school
and told lies in the past. We stated that
"none of the other evidence either
involved a false charge of being sexually
assaulted or furnished a motive for such
a charge." Id. Thus, the nature of the
credibility evidence excluded was
entirely different from that admitted,
and we rejected as unreasonable the
Wisconsin court’s suggestion that the
evidence was cumulative.
In addition, we concluded that there was
no danger of confusion to the trier of
fact, and that the assumption upon which
the Wisconsin court made its
determination was faulty. The Wisconsin
court believed that admitting the
evidence of the prior false rape report
would require (or permit) the victim to
testify that she had consensual sex with
the alleged rapist, and that would lead
to confusion and misperception of issues
in the case. Id. at 592. We rejected this
conclusion, because the only evidence
relevant to the case was that the victim
had made up a story of forcible rape
within the preceding year. This evidence
did not require any inquiry into whether
there was sexual intercourse, and we saw
no reason why anyone would reach a
conclusion to the contrary. Id. We held
that the evidence was "highly probative,
noncumulative, nonconfusing, [and]
nonprejudicial . . . [and] vital to the
central issue in the case," and should
not have been excluded. The defendant had
a constitutional right to have it
admitted. Id.
As our analysis in Redmond illustrates,
careful review of the evidence and
reasons supporting the decision is
required in determining the
reasonableness of a state court’s
decision. It is that type of examination
in which we engage today.
Here, the Illinois Appellate Court’s
ruling that reasonable diligence required
the Bosses’ counsel to ask Janice Hill
about what McAfee had been saying around
the neighborhood regarding the attack on
Eugene Oliver is an unreasonable
application of Brady and its progeny. The
Bosses’ counsel could not have reasonably
expected Janice Hill to have knowledge
regarding this topic. Janice was simply
an alibi witness whom defense counsel
planned to have testify to Randy’s
whereabouts on the night of the crime.
Nothing about her role in the case
suggested that she might also have
knowledge regarding what the
prosecution’s chief witness was saying
around the neighborhood.
Holding that reasonable diligence
requires defense counsel to ask witnesses
about matters of which counsel could not
have reasonably expected a witness to
have knowledge is inconsistent with the
aim of Brady and its progeny. Brady and
its progeny strike a careful balance
between maintaining an adversarial system
of justice and enforcing the
prosecution’s obligation to seek justice
before victory. See, e.g., Kyles, 514
U.S. at 439 ("Unless, indeed, the
adversary system of prosecution is to
descend to a gladiatorial level
unmitigated by any prosecutorial
obligation for the sake of truth, the
government simply cannot avoid
responsibility for knowing when the
suppression of evidence has come to
portend such an effect on a trial’s
outcome as to destroy confidence in its
result."); Bagley, 473 U.S. at 675 n.6
("The Court has recognized, however, that
the prosecutor’s role transcends that of
an adversary: he is the representative
not of an ordinary party to a
controversy, but of a sovereignty whose
interest in a criminal prosecution is not
that it shall win a case, but that
justice shall be done." (internal
quotation marks and ellipses omitted));
Brady, 373 U.S. at 87-88 ("A prosecution
that withholds evidence on demand of an
accused which, if made available, would
tend to exculpate him or reduce the
penalty helps shape a trial that bears
heavily on the defendant. That casts the
prosecutor in the role of an architect of
a proceeding that does not comport with
standards of justice . . . .").
Allowing the government to withhold
favorable material evidence that it
receives from defense witnesses upsets
the balance Brady and its progeny strike.
The consequence of adopting the state’s
position would work a real injustice. In
effect, it would punish the defense for
not obtaining evidence it had no reason
to believe existed.
The Illinois Appellate Court’s ruling
regarding what reasonable diligence
requires is also inconsistent with Brady
and its progeny in a more particular
sense. The Supreme Court has described
the Brady rule as applying to information
known to the prosecution but "unknown to
the defense." Kyles, 514 U.S. at 437;
Bagley, 473 U.S. at 678 (opinion of
Blackmun, J.); Agurs, 427 U.S. at 103.
This description suggests a focus on
actual knowledge as the key consideration
in determining whether evidence is
available to the defense for Brady
purposes. Still, it would be a reasonable
application of this precedent to hold
that the Brady rule does not apply to
information the defense can be expected
to discover. Refusing to characterize as
Brady material information the defense
can be expected to discover serves to
weed out incredible claims of ignorance,
to prevent sandbagging, and is consistent
with a focus on actual knowledge. Further
extension of the limits on Brady material
to include information the defense could
not be expected to discover cannot be
reconciled with such a focus. See 5 Wayne
R. LaFave et al., Criminal Procedure sec.
24.3(b), at 486-87 (2d ed. 1999) (drawing
a similar distinction). Extending
thelimits on Brady material in this way
would be inconsistent with what the
Supreme Court has said regarding when
undisclosed evidence is available to the
defense.
Finally, the state does not cite, and we
have not found, a single case applying
Brady and its progeny in the fashion
advanced by the state. Of the few cases
we have discovered involving whether the
defense had access to information
possessed by a witness, none demanded
inquiry into matters defense counsel
could not have been expected to ask
about. See, e.g., Crivens, 172 F.3d at
997; United States v. Hamilton, 107 F.3d
499, 510 (7th Cir. 1997); cf. United
States v. Senn, 129 F.3d 886, 892-93 (7th
Cir. 1997); United States v. Rodriguez-
Andrade, 62 F.3d 948, 952 (7th Cir.
1995); United States v. Hedgeman, 564
F.2d 763, 769 (7th Cir. 1977). In fact,
in Hamilton, this court, finding
thatcertain information possessed by a
witness was available to the defense for
Brady purposes, made clear that it was
more than reasonable to expect an
investigator hired by the defense to
inquire after the information at issue.
107 F.3d at 508-09 (quoting the district
court’s finding that "’any investigator
worth his or her salt would have asked
Mr. Painter had he given any
statements’"). This authority (and lack
of authority) confirms our belief that it
would be an unreasonable application of
Brady and its progeny to rule that
information possessed by a defense
witness is available through the exercise
of reasonable diligence where that
information is not of a type defense
counsel could reasonably expect that
witness to possess.
In sum, we find that the Illinois
Appellate Court unreasonably applied
Brady and its progeny in ruling that rea
sonable diligence required the Bosses’
counsel to ask Janice Hill about what
McAfee had been saying around the
neighborhood regarding the attack on
Oliver. And we also conclude that the
Bosses have satisfied the standard for
habeas corpus relief with respect to the
suppression requirement for a Brady
claim./11
2. Materiality.
Turning to the final prong, suppressed
evidence is material for Brady purposes
"’if there is a reasonable probability
that, had the evidence been disclosed to
the defense, the result of the proceeding
would have been different.’" Kyles, 514
U.S. at 433-34 (quoting Bagley, 473 U.S.
at 682 (opinion of Blackmun, J.)). Such a
probability exists where the suppressed
evidence, or evidence that is derived
directly from the suppressed evidence,
undermines confidence in the outcome
reached. Kyles, 514 U.S. at 434; Bagley,
473 U.S. at 682 (opinion of Blackmun,
J.); see also United States v. Dimas, 3
F.3d 1015, 1018 (7th Cir. 1993).
The state argues that the evidence
discovered on the basis of the
information Janice Hill provided to the
state investigator is not material
because it is cumulative of the trial
testimony of Antonio Shanklin and Tonya
Gist exculpating one or both of the
Bosses and inculpating McAfee./12
According to the state, there is no
reason to think the jury would not have
disregarded this new evidence just as it
disregarded the similar evidence it did
hear. The Illinois Appellate Court
embraced the state’s argument regarding
this issue without reservation, but the
district court declined to accept or
reject the argument.
In our view, the state’s argument
mischaracterizes the nature of the
evidence the Bosses discovered on the
basis of Janice Hill’s statements to the
state investigator. This evidence is not
simply cumulative; it differs in at least
two significant ways from the testimony
of Antonio Shanklin and Tonya Gist.
First, according to the uncontradicted
representations of the Bosses’ counsel,
two of the three witnesses discovered
(Richard Mitchell and Marcus Fowler) are
neutral and disinterested witnesses,
which distinguishes them from Shanklin
and Gist who, as the prosecution
emphasized at trial, both have
connections to the Bosses. We have
previously recognized that independent
corroboration of the defense’s theory of
the case by a neutral and disinterested
witness is not cumulative of testimony by
interested witnesses, and can undermine
confidence in a verdict. Washington v.
Smith, 219 F.3d 620, 634 (7th Cir. 2000);
Montgomery v. Petersen, 846 F.2d 407, 415
(7th Cir. 1988).
Second, the testimony that the newly
discovered witnesses would have given
(that McAfee admitted participating in
the attack on Oliver and admitted that
the Bosses were not involved) is of a
different nature than that given by Gist
and Shanklin. It involves a confession by
McAfee, the state’s key witness, that he
committed the crime the defendants were
charged with and that he lied about the
defendants’ participation in that crime.
This is different and in many ways more
significant evidence than testimony that
two eyewitnesses believe they saw McAfee
take part in the attack on Oliver. Cf.
Redmond, 240 F.3d at 591-92 (discussed
supra).
For both these reasons, the evidence the
Bosses discovered on the basis of Janice
Hill’s statements to the state
investigator cannot be characterized as
simply cumulative. It is difficult to say
with certainty that the jury would have
disbelieved the testimony of the newly
discovered witnesses just as it
disbelieved Gist and Shanklin. Making
such a statement becomes impossible when
we take into account how closely balanced
the evidence presented at trial was. The
evidence presented by the state was not
overwhelming. As we have noted, McAfee’s
testimony was the state’s only evidence
connecting the Bosses to the attack on
Oliver. Therefore, weighing McAfee’s
credibility was crucial to the jury’s
determination. The evidence the Bosses
discovered on the basis of Janice Hill’s
statements presents a direct and
substantial challenge to McAfee’s
credibility and undermines our confidence
in the jury’s verdict. Therefore, we
conclude that the withheld evidence was
material for Brady purposes.
Although the Illinois Appellate Court’s
decision reaching the opposite conclusion
is not "contrary to" clearly established
Supreme Court precedent on Brady
materiality, the Appellate Court’s
decision is an "unreasonable application
of" that precedent. The Appellate Court
did not undertake a careful, balanced
evaluation of the nature and strength of
both the evidence the defense was
prevented from presenting and the
evidence each side presented at trial,
which is required under Kyles v. Whitley,
supra. In Kyles, the Supreme Court
exhaustively examined the suppressed evi
dence as well as the evidence introduced
at trial. It then carefully assessed what
purposes the suppressed evidence might
have served and how that evidence might
have affected the jury’s consideration of
the evidence that was introduced. 514
U.S. at 441-54.
By contrast, the Illinois Appellate
Court’s discussion of whether the Bosses
could satisfy the materiality requirement
is little more than a conclusion that the
excluded evidence, because it was
cumulative, was not likely to be
believed. The court did not consider the
impeachment value the new evidence might
have had or the differences between the
new evidence and the testimony of
Shanklin and Gist. Nor did the court
assess the relative strength of the
state’s case against the Bosses or how
the new evidence might call the state’s
case into question. As we noted above,
all of these considerations have
considerable significance in this case.
But we do not conclude that the Illinois
Appellate Court’s decision was
unreasonable because not well-reasoned.
Accord Hennon, 109 F.3d at 334-35.
Rather, we believe that the Illinois
Appellate Court’s conclusion, that the
evidence discovered on the basis of
Janice Hill’s statements was not material
because cumulative, was unreasonable on
the facts and circumstances of this case.
Therefore, we find that the Bosses have
satisfied the standard for habeas corpus
relief with respect to the materiality
requirement for a Brady claim.
III. CONCLUSION
As the Bosses have satisfied the
standard for habeas corpus relief with
respect to each of the requirements for a
Brady claim, the district court erred in
denying the Bosses writs of habeas
corpus. Accordingly, we Reverse the
judgment of the district court and Remand
the case with instructions to grant the
Bosses writs of habeas corpus unless the
state retries them within 120 days.
FOOTNOTES
/* Since the filing of this appeal, both petitioners
have been moved to new prisons; Randy Boss to
Pickneyville Correctional Center and Revell Boss
to Hill Correctional Center. We have substituted
the wardens of those institutions, Guy Pierce and
Mark A. Pierson, respectively, as the respondents
in this case pursuant to Fed. R. App. P. 23(a).
/1 Collectively, we refer to them as the Bosses. To
avoid confusion, we will use first names when
referring to them separately. We will also follow
this practice for individuals in this opinion who
share the same last name.
/2 The state called four other witnesses: Chicago
Police Detective Gene Harris; Oliver’s girl-
friend, Beulah Williams; Assistant Cook County
Medical Examiner Larry Simms; and paramedic Larry
Del Dotto. But none of these witnesses offered
testimony linking the Bosses to the attack on
Oliver.
/3 He later identified them in court.
/4 The bicycle was introduced in evidence, and
McAfee identified it as the bicycle used in the
attack.
/5 Detective Harris, in his testimony, insisted that
McAfee was merely a witness, but police records
and certain circumstances surrounding McAfee’s
questioning by the police cast some doubt on that
assertion.
/6 Shanklin, like each of the defense witnesses,
also admitted that he never contacted the police
or the State’s Attorney’s Office about his knowl-
edge regarding the crime. However, Shanklin, and
both Hill sisters, testified that they did speak
to the Bosses’ attorneys not long after the
Bosses were charged.
/7 Actually, defense counsel’s second amended motion
for a new trial, supplementing two previous
motions, incorporated this newly discovered
material.
/8 Under 28 U.S.C. sec. 2253(c), a habeas corpus
petitioner challenging her conviction or sentence
may appeal an adverse district court decision
only with respect to those issues on which she
has been granted a certificate of appealability. The
Bosses ask us to expand their certificate of
appealability to include various claims in addi-
tion to their Brady claim, but on none of these
claims have the Bosses made "a substantial show-
ing of the denial of a constitutional right," as
they must before a certificate of appealability
can be issued, 28 U.S.C. sec. 2253(c)(2). There-
fore we deny the Bosses’ request to expand their
certificate of appealability.
/9 Nor could it. As the district court recognized,
the information in the investigative report has,
at the very least, impeachment value, and im-
peachment evidence is favorable to the defense,
Bagley, 473 U.S. at 676; Crivens v. Roth, 172
F.3d 991, 996 (7th Cir. 1999). In considering
this element of the Bosses’ Brady claim, the
Illinois Appellate Court appears to have proceed-
ed on the assumption that suppressed evidence
must be exculpatory to satisfy the requirements
of Brady. Such an assumption is contrary to then
clearly established Supreme Court precedent. See
Bagley, 473 U.S. at 676; Giglio v. United States,
405 U.S. 150, 154-55 (1972).
/10 We recognize that the Supreme Court has decided
other cases involving Brady claims, see, e.g.,
Strickler v. Greene, 527 U.S. 263 (1999); Wood v.
Bartholomew, 516 U.S. 1 (1995); Pennsylvania v.
Ritchie, 480 U.S. 39 (1987); Weatherford v.
Bursey, 429 U.S. 545 (1977); Moore v. Illinois,
408 U.S. 786 (1972); Giglio v. United States, 405
U.S. 150 (1972), but the three cited are the most
significant decisions that identify the legal
standards governing Brady claims. See 5 Wayne R.
LaFave et al., Criminal Procedure sec. 24.3(b),
at 473-90 (2d ed. 1999) (relying predominantly on
these cases in describing the relevant stan-
dards).
/11 We need not address Revell Boss’s alternative
argument that his attorney acted with reasonable
diligence because Janice Hill was Randy’s alibi
witness.
/12 The state does not directly address the material-
ity of Janice Hill’s statements themselves,
presumably on the assumption that her statements
would be inadmissible hearsay. We need not re-
solve this evidentiary issue because the evidence
discovered on the basis of Janice’s statements is
material standing alone.
Flaum, Chief Judge, dissenting. Like the
majority, I share a sense of concern regarding
the circumstances of this case. Given the facts
before us, the preferable course of action would
have been for the trial judge to grant the
defense a continuance so that they could have
further investigated any additional information
which might have been provided by witness Janice
Hill. Nevertheless, I am unable to conclude that
the Bosses are entitled to a writ of habeas
corpus under the standard mandated by 28 U.S.C.
sec. 2254(d)(1) as interpreted in Williams v.
Taylor, 529 U.S. 362, 402-13 (2000). In my judg-
ment, the Illinois Appellate Court’s determina-
tion, that no evidence from Hill was suppressed
by the prosecution since she was a cooperative
defense witness, cannot be labeled an unreason-
able application of Brady in light of the con-
trolling jurisprudence.
I agree with the majority that the Illinois
court’s decision was not "contrary to . . .
clearly established Federal law, as determined by
the Supreme Court of the United States," 28
U.S.C. sec. 2254(d)(1). Thus, I address only
whether the decision is an unreasonable applica-
tion of such law. The Illinois Appellate Court’s
decision fits into a line of circuit cases re-
jecting Brady claims based on evidence that could
have been discovered by the defense with reason-
able diligence, see, e.g., Chandler v. Moore, 240
F.3d 907, 915 (11th Cir. 2001); United States v.
Grintjes, 237 F.3d 876, 880 (7th Cir. 2001);
Johns v. Bowersox, 203 F.3d 538, 545 (8th Cir.
2000), or where the defense knew or should have
known of the essential facts necessary to obtain
the exculpatory evidence, see, e.g., Coleman v.
Mitchell, 244 F.3d 533, 541 (6th Cir. 2001);
United States v. Zichettello, 208 F.3d 72, 103
(2d Cir. 2000). These cases present a reasonable
interpretation of Brady since a Brady violation
can occur only if evidence is suppressed, and,
generally, evidence available to the defense
cannot be so characterized.
In deciding whether potentially exculpatory
evidence could have been found through reasonable
diligence, our court focuses on whether the
defense had knowledge of the material containing
such evidence and the same degree of access as
the prosecution. See United States v. Parks, 100
F.3d 1300, 1307 (7th Cir. 1996); United States v.
Morris, 80 F.3d 1151, 1170 (7th Cir. 1996). To
defeat a Brady claim, the defense need not be
aware of the specific details of the exculpatory
information or precisely what it is so long as
the defense knew of and had access to the materi-
al that contained, or the witness who possessed,
such information. See, e.g., United States v.
Senn, 129 F.3d 886, 892-93 (7th Cir. 1997);
Parks, 100 F.3d at 1037.
Respectfully, I cannot find the Illinois Appel-
late Court’s decision wanting under these stan-
dards. Both of the Bosses clearly were aware of
Janice Hill, as she testified in favor of one of
the defendants, Randy. Since Randy and Revell
were tried jointly, Revell must have also known
of Hill. Additionally, the Bosses had at least as
much access to Hill as the state did considering
that she was one of their witnesses. The defense
was aware that Hill had evidence relevant to the
crime and had ample opportunity to interview Hill
in order to obtain all of the information she
knew about Eugene Oliver’s death, including
Robert McAfee’s involvement. The Bosses have not
demonstrated or suggested that Hill was uncooper-
ative or that they otherwise would have had more
difficulty in obtaining information from Hill
than the prosecution did.
The majority seeks to cabin the need for the
defense to be reasonably diligent through a
variety of distinctions that are, in my view,
unavailing. The reasonable diligence requirement
has frequently been applied to evidence that was
unwritten. See, e.g., United States v. Zagari,
111 F.3d 307, 320 (2d Cir. 1997); Hoke v. Nether-
land, 92 F.3d 1350, 1355-56 (4th Cir. 1996).
Indeed, obtaining information through questioning
often requires less diligence than sorting
through papers. Thus, the fact the proposed
evidence in question was contained in Hill’s mind
rather than a document is not a reason for
excusing the defense’s not uncovering information
known by one of their own witnesses.
In addition, a specific lead is not necessary
for a reasonably diligent defendant to discover
exculpatory information; knowledge of and access
to a witness usually are sufficient. See, e.g.,
Wright v. Hopper, 169 F.3d 695, 702 (11th Cir.
1999); Hoke, 92 F.3d at 1355-56; United States v.
Hicks, 848 F.2d 1, 4 (1st Cir. 1988); United
States v. Grossman, 843 F.2d 78, 85 (2d Cir.
1988). The majority’s quotation from our decision
in United States v. Hamilton, 107 F.3d 499, 508-
09 (7th Cir. 1997) demonstrates this proposition.
Hamilton does not rest on the defense’s posses-
sion of information indicating what specific
questions a witness should have been asked.
Rather, by the simple fact that the bank teller
in Hamilton was a witness the defense should have
known to ask whether he had given any prior
statements to the police. Id. Similarly, in the
days before trial the Bosses’ attorneys readily
could have asked Hill if she had learned any
additional information relevant to the case since
their previous interview.
The Illinois Appellate Court’s decision does not
disrupt the prosecutor’s duty to seek justice
before victory. Brady was never meant to displace
our adversary system of justice, United States v.
Bagley, 473 U.S. 667, 675 (1985), and does not
require the prosecution to assist in presenting
the defense’s case, United States v. White, 970
F.2d 328, 337 (7th Cir. 1992). Even after Brady,
defendants are still required to conduct thorough
investigations of witnesses which they know may
have useful information.
Furthermore, and perhaps most significantly,
cases denying Brady claims often have relied on
the fact that the witness with the exculpatory
material was either a defense witness or cooper-
ated with the defense. See Stockton v. Murray, 41
F.3d 920, 925 (4th Cir. 1994); United States v.
Dean, 722 F.2d 92, 95 (5th Cir. 1983); United
States v. Natale, 526 F.2d 1160, 1171 (2d Cir.
1975). Against the backdrop of this case law, it
is difficult to conclude that the Illinois Appel-
late Court unreasonably applied the Supreme
Court’s directives regarding Brady.
The foregoing is not meant to suggest in any
way a broad, strict rule that Brady is in all
circumstances inapplicable to information ob-
tained by the prosecution from defense witnesses.
As the majority appropriately recognizes, a
defense witness may forget information, may be
reluctant to provide certain information to the
defendant, or may become hostile to the defense,
cf. In re Sealed Case No. 99-3096 (Brady Obliga-
tions), 185 F.3d 887, 893 (D.C. Cir. 1999).
Perhaps the refusal to recognize the possibility
of a Brady violation in such circumstances would
be an unreasonable refusal to extend a legal
principle. Cf. Williams, 529 U.S. at 408-09.
However, we are not presented with such circum-
stances. The Bosses have made no claim that Hill
was unwilling or unable to provide the informa-
tion she possessed. Hence, based on the record
before us, I am simply unable to find sufficient
support for the grant of the writ of habeas
corpus and must therefore respectfully dissent.