Mataya, Randall K. v. Kingston, Phillip A. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2850
RANDALL K. MATAYA,
Petitioner-Appellant,
v.
PHILLIP A. KINGSTON, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 00 C 775—J.P. Stadtmueller, Judge.
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ARGUED APRIL 13, 2004—DECIDED JUNE 3, 2004
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Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit
Judges.
POSNER, Circuit Judge. After exhausting his state remedies,
Wisconsin lifer Randall Mataya sought federal habeas
corpus, claiming that he had been convicted in violation of
the rule of Brady v. Maryland, 373 U.S. 83 (1963), which re-
quires the prosecution to turn over to the defense evidence
in its possession that would be helpful to the defendant,
including evidence useful only for impeaching a prosecu-
tion witness. United States v. Bagley, 473 U.S. 667, 676-77
(1985).
2 No. 02-2850
Pamela Claflin, age 35 and a frequenter of bars, happened
one evening to be in a bar named Ma’s Place in Manitowoc,
Wisconsin, when she was accosted by Mataya, whom
apparently she hadn’t met before. They left together, amidst
indications that she was drunk and he amorous, and drove
off in Mataya’s car, Claflin leaving hers in the bar’s parking
lot. Later that night, at some distance from the bar, a man
named Cole heard “a very loud, strange, almost terrifying
type of a scream,” unlike any animal sound he had ever
heard; minutes later he saw a car driving at a high speed
from the small park-like area at the dead end of his street.
As it happens, Cole had been involved in auto racing for
many years and had rebuilt car engines hundreds of times,
so the police conducted a test in which six automobiles, one
of them Mataya’s (of course Cole was not told which), were
driven past Cole’s home one at a time, and he picked
Mataya’s and one other car as most like the one he’d seen
and heard that night.
After midnight on the fatal night Mataya’s stepson saw
Mataya applying bleach to bloodstains on his white pants
and the next morning he saw him cleaning the interior of his
car with spot remover. Mataya told him to say nothing of
these things to the police.
A week later, Claflin having been reported missing, the
police found her corpse in the park at the end of Cole’s
street, near a pond. She was naked except for her socks, and
her body had been shoved under bushes and was almost
entirely covered by weeds, grass, and sticks. Her clothes
were scattered nearby. Claflin had worked for a cleaning
service and according to her employer had carried her
customers’ keys—50 or more of them—in a large purse that
she had with her the day she vanished. The purse was never
found.
No. 02-2850 3
Claflin’s skull had been fractured by a heavy object,
probably a rock. She had also been strangled. There were
bite marks on one of her breasts, and a dentist who has
testified frequently as an expert witness, after studying
Mataya’s teeth, testified that the bite marks had probably
been made by those teeth, which the dentist described as
“remarkable” (and therefore distinctive). One tooth was ro-
tated 30 degrees; another tooth was missing and its absence
had caused other teeth to shift in his mouth.
Having been the last person seen with Claflin before her
disappearance, Mataya was immediately suspected of being
the murderer and was questioned by the police even before
the body was found. At first he denied that Claflin had been
in his car when he left Ma’s Place, but later he admitted she
had been but said he’d dropped her off at another bar—but
no one at the other bar saw her there. Later still he said he
had blacked out after he left Ma’s Place and didn’t remem-
ber anything that had happened afterwards. He told the
police that his wife would say he was wearing white pants
the day of the murder and didn’t come home until mid-
night, but that these things were untrue. When his step-
daughter asked him whether he had murdered Claflin, he
said he didn’t know.
The state’s principal witness was Donald Hertel, and it is
in connection with his testimony that the Brady issue arises.
Hertel, who admitted on the stand that he had been con-
victed ten times and that in exchange for his “cooperation
and testimony” he was to receive $1,000 plus a favorable
letter to the parole authorities, had known Mataya for a
decade. Shortly after the murder, Hertel had absconded
from a halfway house in which he was supposed to be liv-
ing and had gone on a burglary spree with Mataya during
which Mataya had admitted having killed a woman named
Pamela. He had told Hertel, Hertel testified, that “they were
4 No. 02-2850
making out on the hood of his car and he was twisting her
nipple between his teeth and biting on her breast, and she
shoved him back and told him to stop it and take her home
or she would turn him in for attempted rape. He got mad
and shoved her against a tree, she fell down and hit herself,
hit her head on a rock, and then—ah—he crawled on top of
her and started beating her in the head, in the temple area.
He got up off of her, and she was gasping for air, and
making weird noises, so her pants around her neck and
drugged, and then he knew she was dead after the body
went limp. . . . He dragged her and he told me that he
covered her up with twigs and leaves and grass, and took
most of her clothes off of her because he wanted to make it
look like a rape. . . . He said he threw her pants away from
the body.” Hertel further testified that Mataya had told him
that the murder had taken place in a “a little wooded area
with a pond next to it,” that the woman had had a large
purse, that he had thrown the purse into the pond and
watched it sink weighed down by “a large set of keys,” and
that he had tried to get the bloodstains out of his white
pants by soaking the pants in bleach.
But what Hertel did not tell the jury, and the prosecu-
tion did not tell Mataya’s lawyer, was that Hertel had made
a deal with the prosecution under which four burglary
charges against him would be dropped in exchange for
his testifying truthfully at Mataya’s trial. Had Hertel been
prosecuted and convicted of those charges, he might have
been sentenced to 40 years in prison. The implications for
his freedom are unclear, but may have been great. He was
in prison when he negotiated the deal, because his parole on
one of his previous convictions had been revoked; we do
not know how long he was likely to remain there. He was
also under threat of having his parole on another of his
convictions revoked; the letter from the prosecutor to the
parole authorities was intended to ward off that revocation.
No. 02-2850 5
Apparently he was not facing any other new charges
besides the four burglaries. The dropping of those charges
may not have made him a free man immediately, but almost
certainly spared him many years of imprisonment.
Mataya’s trial lawyer could have used the deal, had he
known about it, to further impeach Hertel’s testimony. The
deal provided a greater inducement to Hertel to play ball
with the prosecution than the $1,000 reward plus the
supportive letter to the parole authorities. United States
v. Williams, 81 F.3d 1434, 1439-41 (7th Cir. 1996). Both
those inducements were disclosed to the jury; the impli-
cation was that they were the only inducements that he’d
been offered. Hertel also disclosed his ten convictions,
which doubtless reduced his credibility in the eyes of the
jurors; yet disclosure of the deal he had struck with the
prosecutors over the burglaries would have impeached him
even more because the deal had given him a palpable and
very substantial incentive to lie if need be, as well as freeing
him from any real threat of prosecution for perjury if he did
lie.
Brady requires the disclosure to the defendant of evidence
in the prosecution’s possession that is “material” to the
defense; and in the law of evidence “material” just means
bearing on an issue in the case. 1 McCormick on Evidence
§ 185, pp. 637-38 (John W. Strong ed., 5th ed. 1999). But the
Brady line of cases uses the word in a more demanding
sense. Brady evidence is material only if there is a reasonable
probability that disclosure to the defense would have
resulted in the jury’s acquitting the defendant. Banks v.
Dretke, 124 S. Ct. 1256, 1276 (2004); Kyles v. Whitley, 514 U.S.
419, 434 (1995); United States v. Boyd, 55 F.3d 239, 245 (7th
Cir. 1995).
Usually evidence that the prosecution’s principal witness
had been offered a strong inducement to testify against the
6 No. 02-2850
defendant would satisfy the criterion of materiality. And
there is no doubt that Hertel was the state’s principal wit-
ness against Mataya. We are not impressed by the state’s
argument that the remaining evidence made his conviction
a certainty regardless, though we’ll note later in this opinion
that the evidence of Mataya’s guilt, even without his
confession to Hertel, was considerable. Nor does the fact
that Hertel began talking to the police before there was any
agreement to drop the charges against him show, as the
state also argues, that the agreement didn’t operate as
an inducement for him to lie on the stand. A prospective
witness might lie to the police in the hope of obtaining
concessions yet be unwilling to repeat his lies on the stand
unless he obtained very generous concessions in bargaining
with the prosecution over the “price” of his cooperation.
Indeed from the get-go Hertel demanded as part of the
inducement for his testifying for the government that it
drop the burglary charges against him. He could not
negotiate the deal without revealing to the government
at least some of what he would be willing to testify to if
the deal went through. This didn’t make the revelation
independent of the deal—quite the contrary.
But what is unusual about this case, and decisive against
the Brady claim, is that Hertel’s evidence was self-validating,
which makes his motivation to fabricate irrelevant. The
concept of self-authenticating evidence is familiar in the law
of documentary evidence, Fed. R. Evid. 901, 902; Wis. Stat.
§§ 909.01, .02; cf. Fed. R. Evid. 803(6), (8); United States v.
Sutton, 337 F.3d 792, 797-98 (7th Cir. 2003), though we
cannot find any previous case that involved oral evidence.
Hertel may have been willing or even eager to lie in
exchange for the dropping of the burglary charges. But
we know that he didn’t lie. We know this because he re-
vealed details of the crime that, with just a few exceptions,
No. 02-2850 7
he could have learned only from the murderer. All that he
knew from other sources when he started telling the police
details of Mataya’s confession to him in an effort to strike a
bargain were the name of the murder victim, that she had
been killed in a park, and that her head had struck a tree
(Mataya’s wife had repeated to Hertel, what she had learned
from the police, that Claflin had been found with bark
embedded in her head). Everything else—the heavy purse,
the strangulation (we take the garbled statement that “she
was gasping for air, and making weird noises, so her pants
around her neck and drugged, and then he knew she was
dead after the body went limp” to mean that Mataya ac-
knowledged to Hertel strangling Claflin with her pants), the
fracturing of her skull, the proximity of a pond, the biting,
the white pants, the bleaching, and her being naked beneath
a covering of twigs, leaves, and grass—Hertel could have
learned only from the murderer. There is no suggestion that
he may have learned it from someone, not Mataya, who was
the real murderer. Nor is there evidence or reason to believe
that the police planted these facts in Hertel’s head. And
while more of the details may have come from Mataya’s
wife than she admitted on the stand, her source, like
Hertel’s, could only have been Mataya, either directly or
through her son, Mataya’s stepson, who had seen Mataya
cleaning his pants and his car and might have told his
mother. There is no reasonable possibility that Hertel simply
made up the facts that he recounted to the police and that
his fabrication just happened to correspond to the truth. The
odds against such a coincidence between fiction and fact are
astronomical.
In insisting that Hertel’s motivations were material in the
Brady sense, Mataya’s lawyers ignore a distinction that is
as old as Aristotle’s treatise on rhetoric. We learn there
that when the truth of an assertion cannot be verified, the
character of the person making it becomes important (but
8 No. 02-2850
not otherwise). Is he the kind of person who always tells the
truth or the kind who yields to a strong inducement to lie?
Given Hertel’s criminal record, there was no reason to credit
him with being a reliable witness or to doubt that he would
lie to avoid a heavy prison sentence. This would matter
greatly if his testimony had been unverifiable, as in such
cases as Giglio v. United States, 405 U.S. 150, 154-55 (1972),
and Crivens v. Roth, 172 F.3d 991, 998-99 (7th Cir. 1999). But
it was verifiable simply by comparing what he said with
what only someone who had talked to the murderer would
have known. Had a known liar found a written confession
of Mataya, and a handwriting expert confirmed that the
confession was indeed in Mataya’s hand, the fact that the
confession had been found by a liar would not undermine
its veracity. It is the same here. The correspondence between
the facts narrated by Hertel and the actual facts of the
murder establish that, like the known liar in our example,
Hertel was merely the transmission belt for Mataya’s
confession.
The confession by itself was compelling evidence of
Mataya’s guilt, and in addition it was corroborated, and not
merely by Claflin’s having indeed been murdered. Mataya’s
lawyer picks away at each piece of corroborating evidence
(the dentist’s, the stepkids’, etc.) but in doing so overlooks
another important point about proof: that a number of weak
proofs can add up to a strong proof. Rowan v. Owens, 752
F.2d 1186, 1188-89 (7th Cir. 1984); cf. United States v. Jakobetz,
955 F.2d 786, 793, 798-800 (2d Cir. 1992). Suppose, by way
of analogy, that someone claims that a coin is so weighted
that when flipped it always comes up heads. So it is flipped,
and, sure enough, it comes up heads. This is feeble evidence
to prove that it always does this because even if the coin
were perfectly balanced there would be a 50 percent chance
that the first toss would come up heads. So the coin is
flipped again and again and again and again and each time
No. 02-2850 9
it comes up heads. Now the likelihood that the coin is
perfectly balanced is much less. For example, in five tosses,
the probability that an evenly balanced coin will not turn up
5
tails even once is only 3.125 percent (1–.5). Suppose there
were a 50 percent chance that the bite marks on Claflin’s
breast had not been made by Mataya, a 50 percent chance
that the car that Cole saw and heard was not Mataya’s (here
the maximum probability was 50 percent, and the actual
probability lower), a 50 percent chance that Mataya was not
bleaching bloodstains out of his white pants the night of the
murder, a 50 percent chance that he did not make the
incriminating statements that his wife and stepdaughter
reported, and a 50 percent chance that he did not make the
incriminating statements to the police that they reported.
Nevertheless the probability that none of these five highly
incriminating events or sets of events had occurred would
be only 3.125 percent—provided they were independent
events in the sense that if one were false this wouldn’t make
it more likely that another was false as well. Branion v.
Gramly, 855 F.2d 1256, 1265 (7th Cir. 1988). The percentage
figures are arbitrary, and we may assume without having to
decide that without Hertel’s evidence no reasonable jury
could have found Mataya guilty beyond a reasonable doubt.
Our point is only that because “it is wrong to view items of
evidence in isolation when they point in the same direc-
tion,” Rowan v. Owens, supra, 752 F.2d at 1188, Hertel’s
evidence was not only self-validating but also strongly
corroborated by the other evidence that the state presented.
Mataya argues that a distinct violation of his rights oc-
curred when the prosecution failed to correct Hertel’s false
testimony that he had been offered no inducements to
testify beyond the reward and the favorable letter. But this
violation of the prosecution’s constitutional obligations was
not distinct from the Brady violation in any realistic sense.
Had the prosecution corrected Hertel’s falsehood on the
10 No. 02-2850
spot, as it should have done, that would have cured the
Brady violation, United States v. Knight, 342 F.3d 697, 705-06
(7th Cir. 2003); United States v. Higgins, 75 F.3d 332, 335 (7th
Cir. 1996); United States v. Scarborough, 128 F.3d 1373, 1376
(10th Cir. 1997), but the failure to correct did not make the
violation any more serious. All that Mataya is complaining
about is that Hertel’s deal with the prosecution was con-
cealed from the jury, and the fact that the prosecution had
two opportunities to drop the mask—before trial, when it
could have told the defense about the plea bargain, and
during trial, when Hertel lied—has no bearing on the
prejudice to Mataya from the concealment. That prejudice,
as we have been at pains to show, was nil.
Although the cases distinguish as a matter of nomencla-
ture between knowing use of false testimony and the
withholding of evidence favorable to the defense, the first
being a Napue violation (Napue v. Illinois, 360 U.S. 264(1959)), and the second a Brady violation, see, e.g., United
States v. Boyd, supra, 55 F.3d at 243-45, the standard is the
same. United States v. Williams, supra, 81 F.3d at 1438. And
the violations are likely to merge in a case such as this in
which the value of the withheld evidence to the defense was
its potential utility for impeaching the government’s witness
as a liar. See, e.g., Giglio v. United States, supra, 405 U.S. at
153-55; cf. Banks v. Dretke, supra, 124 S. Ct. at 1271 n. 11.
When the government’s witness testifies, the prosecutor will
probably know immediately that he’s lying. (We hedge with
“probably” because he may have forgotten or never known
the impeaching fact that defense counsel is trying to elicit on
cross-examination.)
One last point, and we are done. Recall that Hertel was
given $1,000 as part of the consideration for his “coop-
eration and testimony.” To pay a witness, other than an
expert witness, for his testimony is irregular and in fact
is unlawful in federal trials, 18 U.S.C. § 201(c)(2); United
No. 02-2850 11
States v. Condon, 170 F.3d 687, 689 (7th Cir. 1999), though it
is claimed that federal prosecutors sometimes do pay
witnesses for their testimony, J. Richard Johnston, “Why
Is It OK for the Prosecution, But Not the Defense?,” 11
Crim. Justice, Winter 1997, p. 21, and in United States v. Boyd,
supra, 55 F.3d at 244, we noted the “scandalous” favors with
which the government in that case had showered its prize
witnesses. The practice of paying witnesses for their testi-
mony apparently is forbidden in trials in the state courts of
Wisconsin as well. Wisconsin Supreme Court Rule of
Professional Conduct for Attorneys 3.4(b) comment. To pay
in money, that is; immunity from prosecution, a lighter
sentence, placement in a witness-protection program, and
other breaks are lawful coin in this realm. United States v.
Condon, supra, 170 F.3d at 688-91; United States v. Singleton,
165 F.3d 1297, 1302 (10th Cir. 1999) (en banc).
But it is commonplace to offer money rewards for infor-
mation leading to the apprehension of a criminal, and at
argument the state’s lawyer explained that the $1,000 paid
Hertel had come from a fund for the payment of such
rewards. Yet it was the state itself that in questioning Hertel
at trial had denominated the $1,000 as compensation for
cooperation and testimony, not merely for information
leading to Mataya’s arrest, though the information Hertel
gave the police was decisive in their decision to arrest
Mataya. (They had questioned him shortly after the crime,
but had not arrested him.) Paying for testimony, as well as
concealing evidence of inducements given to a government
witness, are breaches of prosecutorial ethics, but do not, in
this case at any rate, undermine the conviction. If anything,
the fact that the jury was told that Hertel had been paid for
his testimony made him a less credible witness—or rather
would have made him such had it not been for the self-
validating character of that testimony.
AFFIRMED.
12 No. 02-2850
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-3-04