kyles whitley argued november decided april petitioner kyles convicted murder louisiana jury sentenced death following affirmance conviction sentence direct appeal revealed state collateral review state never disclosed certain evidence favorable evidence included inter alia contemporaneous eyewitness statements taken police following murder various statements made police informant known beanie never called testify computer license numbers cars parked crime scene night murder list number kyles car state trial nevertheless denied relief state denied kyles application discretionary review sought relief federal habeas claiming among things conviction obtained violation brady maryland held suppression prosecution evidence favorable accused violates due process evidence material either guilt punishment federal district denied relief fifth circuit affirmed held bagley four aspects materiality brady purposes bear emphasis first favorable evidence material constitutional error results suppression government reasonable probability evidence disclosed defense result proceeding different thus showing materiality require demonstration preponderance disclosure suppressed evidence resulted ultimately page ii defendant acquittal agurs distinguished second bagley materiality sufficiency evidence test one show brady violation demonstrating inculpatory evidence excluded showing favorable evidence reasonably taken put whole case different light undermine confidence verdict third contrary fifth circuit assumption reviewing applying bagley found constitutional error need review since constitutional standard materiality bagley imposes higher burden standard brecht abrahamson fourth state disclosure obligation turns cumulative effect suppressed evidence favorable defense evidence considered thus prosecutor alone know undisclosed must assigned responsibility gauge likely net effect evidence make disclosure point reasonable probability reached moreover responsibility remains regardless failure police bring favorable evidence prosecutor attention hold otherwise amount serious change course brady line cases likely reading fifth circuit opinion shows series independent materiality evaluations rather cumulative evaluation required bagley questionable whether evaluated significance undisclosed evidence case correct standard pp net effect evidence favoring kyles raises reasonable probability disclosure produced different result trial conviction stand kyles entitled new trial pp review suppressed statements eyewitnesses whose testimony identifying kyles killer essence state case reveals disclosure resulted markedly weaker case prosecution markedly stronger one defense also substantially reduced destroyed value state two best witnesses pp similarly recapitulation suppressed statements made police beanie state admission essential investigation indeed made case kyles reveals replete significant inconsistencies affirmatively assertions beanie anxious see kyles arrested murder page iii police remarkably uncritical attitude toward beanie disclosure therefore raised opportunities defense attack thoroughness even good faith investigation also allowed defense question probative value certain crucial physical evidence pp suppression prosecution list cars crime scene murder rank failure disclose evidence herein discussed list value exculpation kyles whose license plate included thereon impeachment prosecution arguments jury killer left car scene investigation grainy photograph scene showed kyles car background also lent support argument police irresponsible relying inconsistent statements made beanie pp although every item state case directly undercut foregoing brady evidence disclosed significant physical evidence remaining unscathed state admission hardly amounted overwhelming proof kyles murderer inconclusiveness evidence prove kyles innocence jury might found unimpeached eyewitness testimony sufficient convict confidence verdict survive recap suppressed evidence significance prosecution pp souter delivered opinion stevens ginsburg breyer joined stevens filed concurring opinion ginsburg breyer joined scalia filed dissenting opinion rehnquist kennedy thomas joined kyles whitley justice souter delivered opinion first trial ended hung jury petitioner curtis lee kyles tried convicted murder sentenced death habeas review follow established rule state obligation brady maryland disclose evidence favorable defense turns cumulative effect evidence suppressed government hold prosecutor remains responsible gauging effect regardless failure police bring favorable evidence prosecutor attention net effect evidence withheld state case raises reasonable probability disclosure produced different result kyles entitled new trial kyles whitley kyles filed petition habeas corpus district eastern district louisiana denied petition appeals fifth circuit affirmed divided vote explain infra reason question whether appeals evaluated significance undisclosed evidence correct standard ur duty search constitutional error painstaking care never exacting capital case burger kemp granted certiorari reverse ii kyles whitley new orleans police took statements six eyewitnesses offered various descriptions gunman agreed black man four said braided hair witnesses differed significantly however descriptions height age weight build hair length two reported seeing man another described gunman looking old one witness described medium build pounds another described man slim close six feet one witness said mustache none others spoke facial hair one witness said murderer hair another described hair short since police believed killer might driven car schwegmann left drove dye ltd recorded license numbers cars remaining parking lots around store evening murder matching numbers registration records produced names addresses owners cars notation owner police record despite list eyewitness descriptions kyles whitley police lead gunman saturday evening shooting september man identifying james joseph called police reported day murder bought red thunderbird friend named curtis later identified petitioner curtis kyles said subsequently read dye murder newspapers feared car purchased victim agreed meet police hours later informant met new orleans detective john miller wired hidden body microphone ensuing conversation recorded see app transcript informant said name joseph banks called beanie actual name joseph wallace story well name changed since earlier call place original account buying thunderbird kyles thursday beanie told miller seen kyles thursday bought red ltd previous day friday beanie led miller parking lot nearby bar left red ltd later identified dye beanie told miller lived kyles later identified johnny burns beanie repeatedly called partner beanie kyles whitley described kyles slim feet tall years old bush hairstyle asked kyles ever wore hair plaits beanie said bush beanie bought car conversation beanie repeatedly expressed concern might suspect murder explained seen driving dye car friday evening french quarter admitted changed license plates worried charged murder basis possession ltd asked put jail miller acknowledged beanie possession car looked suspicious reassured anything wrong beanie seemed eager cast suspicion kyles allegedly made living robbing people tried kill beanie prior time beanie said kyles regularly carried two pistols police set good get gun used kill dye beanie rode miller miller supervisor sgt james eaton unmarked squad car desire street pointed building containing kyles apartment beanie told officers bought car partner burns drove kyles schwegmann friday evening pick kyles car described orange ford asked kyles car parked beanie replied kyles whitley side lot woman killed officers later drove beanie schwegmann indicated space claimed kyles car parked beanie went say burns brought kyles pick car kyles gone nearby bushes retrieve brown purse kyles subsequently hid wardrobe apartment beanie said kyles lot groceries schwegmann bags new baby potty car beanie told eaton kyles garbage go next day kyles smart put purse garbage beanie made clear expected reward help saying one point nothing police repeatedly assured beanie lose paid car visit schwegmann eaton miller took beanie police station miller interviewed record transcribed signed beanie using alias joseph banks see app transcript statement beanie third telephone call first recorded conversation repeats essentials second one beanie purchased red ford ltd kyles friday evening kyles hair combed time sale kyles carried time portions third statement however embellished contradicted beanie preceding story even internally inconsistent beanie reported sale kyles unloaded schwegmann grocery bags trunk back seat ltd placed kyles car beanie said kyles took brown purse front seat ltd kyles whitley drove separate cars kyles apartment unloaded groceries beanie also claimed hours later partner burns went kyles schwegmann recovered kyles car big brown pocket book next building beanie explain kyles picked car recovered purse schwegmann beanie seen kyles hours earlier police neither noted inconsistencies questioned beanie although police thereafter put kyles surveillance tr learned events apartment beanie went twice sunday according fourth statement beanie one given chief prosecutor november first second trials first went apartment telephone conversation police officer asked whether kyles gun used kill dye beanie stayed kyles apartment left call detective john miller returned stayed left meet miller also asked gun according fourth statement beanie rode around miller monday september sometime early morning hours detectives sent sgt eaton behest pick rubbish outside kyles building sgt eaton wrote interoffice memorandum reason believe victims sic personal papers schwegmann bags trash defendant exh kyles arrested left apartment searched warrant behind kitchen stove police found calibre revolver containing five live rounds one spent cartridge ballistics tests later showed pistol kyles whitley used murder dye wardrobe hallway leading kitchen officers found homemade shoulder holster fit murder weapon bedroom dresser drawer discovered two boxes ammunition one containing several calibre rounds brand found pistol back kitchen various cans cat dog food brands dye typically purchased found schwegmann sacks groceries identified possibly dye potty found later afternoon police station police opened rubbish bags found victim purse identification personal belongings wrapped schwegmann sack gun ltd purse cans pet food dusted fingerprints gun wiped clean several prints found purse ltd none identified kyles dye prints found cans pet food kyles prints found however small piece paper taken front floorboard ltd crime laboratory recorded paper schwegmann sales slip without noting printed obliterated chemical process lifting fingerprints second schwegmann receipt found trunk ltd kyles prints found beanie fingerprints compared fingerprints found tr lead detective case john dillman put together photo lineup included photograph kyles beanie showed array five six eyewitnesses given statements three picked photograph kyles two confidently identify kyles dye assailant kyles whitley first trial november heart state case eyewitness testimony four people scene crime three previously picked kyles photo lineup kyles maintained innocence offered supporting witnesses supplied alibi picking children school time murder theory defense kyles framed beanie planted evidence kyles apartment rubbish purposes shifting suspicion away removing impediment romance pinky burns obtaining reward money beanie testify witness either defense prosecution kyles whitley state withheld evidence case much stronger defense case much weaker full facts suggested even four hours deliberation jury became deadlocked issue guilt mistrial declared mistrial chief trial prosecutor cliff strider interviewed beanie see app notes interview strider notes show beanie changed important elements story said went kyles retrieve kyles car schwegmann lot thursday day murder time friday said second third statements indeed second statement beanie said seen kyles thursday also said first time picked car accompanied johnny burns also kevin black testified defense first trial beanie claimed getting kyles car went black house retrieved number bags groceries child potty brown purse took kyles apartment beanie also stated sunday murder kyles apartment two separate times notwithstanding many inconsistencies variations among beanie statements neither strider notes notes transcripts given defense december kyles tried second time heart state case testimony four eyewitnesses positively identified kyles front jury prosecution also offered photograph taken crime scene soon murder basis prosecutors argued seemingly car background photograph kyles repeatedly suggested defense witnesses kyles whitley kyles left car schwegmann day murder retrieved later theory offered evidence beyond photograph beanie testify first trial defense contended eyewitnesses mistaken kyles counsel called several individuals including kevin black testified seeing beanie hair plaits driving red car similar victim hour killing tr another witness testified beanie hair braids tried sell car thursday evening shortly murder another witness testified beanie hair jheri curl attempted sell car friday one witness beanie partner burns testified seen beanie sunday kyles apartment stooping near stove gun eventually found defense presented testimony beanie romantically interested pinky burns explain pet food found kyles apartment testimony kyles family kept dog cat often fed stray animals neighborhood finally kyles took stand denying involvement shooting explained fingerprints cash register receipt found dye car saying beanie picked red car friday september taken schwegmann purchased transmission fluid pack cigarettes suggested receipt may fallen bag removed cigarettes rebuttal prosecutor beanie brought courtroom testifying eyewitnesses viewing beanie standing next kyles reaffirmed previous identifications kyles murderer kyles convicted murder sentenced kyles whitley death beanie received total reward money see tr hearing relief following direct appeal revealed course state collateral review state failed disclose evidence favorable defense exhausting state remedies kyles sought relief federal habeas claiming among things evidence withheld material defense conviction thus obtained violation brady although district denied relief fifth circuit affirmed judge king dissented kyles whitley writing first time fourteen years serious reservations whether state sentenced death right man iii kyles whitley third prominent case way current brady law bagley disavowed difference exculpatory impeachment evidence brady purposes abandoned distinction second third agurs circumstances situations bagley held regardless request favorable evidence material constitutional error results suppression government reasonable probability evidence disclosed defense result proceeding different opinion blackmun white concurring part concurring judgment four aspects materiality bagley bear emphasis although constitutional duty triggered potential impact favorable undisclosed evidence showing materiality require demonstration preponderance disclosure suppressed evidence resulted ultimately defendant acquittal whether based presence reasonable doubt acceptance explanation crime inculpate defendant kyles whitley opinion blackmun adopting formulation announced strickland washington bagley supra white concurring part concurring judgment see opinion blackmun agurs rejected standard require defendant demonstrate evidence disclosed probably resulted acquittal cf strickland supra believe defendant need show counsel deficient conduct likely altered outcome case nix whiteside defendant need establish attorney deficient performance likely altered outcome order establish prejudice strickland bagley touchstone materiality reasonable probability different result adjective important question whether defendant likely received different verdict evidence whether absence received fair trial understood trial resulting verdict worthy confidence reasonable probability different result accordingly shown government evidentiary suppression undermines confidence outcome trial bagley second aspect bagley materiality bearing emphasis sufficiency evidence test defendant need demonstrate discounting inculpatory evidence light undisclosed evidence enough left convict possibility acquittal criminal charge imply insufficient evidentiary basis convict one show brady violation demonstrating inculpatory evidence excluded showing favorable evidence reasonably taken put kyles whitley whole case different light undermine confidence verdict third note contrary assumption made appeals reviewing applying bagley found constitutional error need review assuming arguendo harmless error enquiry apply bagley error treated harmless since reasonable probability evidence disclosed defense result proceeding different opinion blackmun white concurring part concurring judgment necessarily entails conclusion suppression must substantial injurious effect influence determining jury verdict brecht abrahamson slip quoting kotteakos amply confirmed development respective governing standards although chapman california held conviction tainted constitutional error must set aside unless error complained harmless beyond reasonable doubt held brecht standard kyles whitley harmlessness generally applied habeas cases kotteakos formulation previously applicable reviewing nonconstitutional errors direct appeal brecht supra slip kotteakos conviction may set aside error substantial injurious effect influence determining jury verdict kotteakos supra agurs however previously rejected kotteakos standard governing constitutional disclosure claims reasoning constitutional standard materiality must impose higher burden defendant agurs agurs thus opted formulation materiality later adopted test prejudice strickland expressly noting standard recognize reversible constitutional error harm defendant greater harm sufficient reversal kotteakos sum bagley error claimed case subsequently found harmless brecht fourth final aspect bagley materiality stressed definition terms suppressed evidence considered collectively justice blackmun emphasized portion opinion written constitution violated every time government fails chooses kyles whitley disclose evidence might prove helpful defense never held constitution demands open file policy however policy might work practice rule bagley hence brady requires less prosecution aba standards criminal justice call generally prosecutorial disclosures evidence tending exculpate mitigate see aba standards criminal justice prosecution function defense function ed prosecutor intentionally fail make timely disclosure defense earliest feasible opportunity existence evidence information tends negate guilt accused mitigate offense charged tend reduce punishment accused aba model rule professional conduct prosecutor criminal case shall make timely disclosure defense evidence information known prosecutor tends negate guilt accused mitigates offense definition bagley materiality terms cumulative effect suppression must accordingly seen leaving government degree discretion must also understood imposing corresponding burden one side showing prosecution knew item favorable evidence unknown defense amount brady violation without prosecution alone know undisclosed must assigned consequent responsibility gauge likely net effect evidence make disclosure point reasonable probability reached turn means individual prosecutor duty learn favorable evidence known others acting government behalf case including police whether prosecutor succeeds fails kyles whitley meeting obligation whether failure disclose good faith bad faith see brady prosecution responsibility failing disclose known favorable evidence rising material level importance inescapable state louisiana prefer even lenient rule pleads favorable evidence issue disclosed even prosecutor trial brief respondent suggested held accountable bagley brady evidence known police investigators prosecutor accommodate state manner however amount serious change course brady line cases state favor may said one doubts police investigators sometimes fail inform prosecutor know neither serious doubt procedures regulations established carry prosecutor burden insure communication relevant information case every lawyer deals giglio since prosecutor means discharge government brady responsibility argument excusing prosecutor disclosing happen know boils plea substitute police prosecutor even courts final arbiters government obligation ensure fair trials short asked oral argument raise threshold materiality bagley standard makes difficult know perspective kyles whitley prosecutor trial exactly might become important later tr oral arg state asks certain amount leeway making judgment call disclosure given piece evidence ibid uncertainty degree leeway might satisfy state request certain amount least reasons deny request bottom state fails recognize without leeway prosecution subject disclosure obligation without point responsibility determine must act indeed even due process thought violated every failure disclose item exculpatory impeachment evidence leaving harmless error government fallback prosecutor still forced make judgment calls count favorable evidence owing fact character piece evidence favorable often turn context existing potential evidentiary record since prosecutor exercise judgment even state subject stringent disclosure obligation hard find merit state complaint responsibility judgment existing system tax prosecutor error failure disclose absent showing materiality unless indeed adversary system prosecution descend gladiatorial level unmitigated prosecutorial obligation sake truth government simply avoid responsibility knowing suppression evidence come portend effect trial outcome destroy confidence result means naturally prosecutor anxious tacking close wind disclose favorable piece evidence see agurs kyles whitley prudent prosecutor resolve doubtful questions favor disclosure disclosure serve justify trust prosecutor representative sovereignty whose interest criminal prosecution shall win case justice shall done berger tend preserve criminal trial distinct prosecutor private deliberations chosen forum ascertaining truth criminal accusations see rose clark estes texas leon recognizing general goal establishing procedures criminal defendants acquitted convicted basis evidence exposes truth quoting alderman prudence careful prosecutor therefore discouraged room debate whether two judges majority appeals made assessment cumulative effect evidence although majority brady discussion concludes statement persuaded reasonable probability kyles obtained favorable verdict jury exposed undisclosed materials opinion also contains repeated references dismissing particular items evidence immaterial suggesting cumulative materiality touchstone see agree statement made transcript material mandated disclosure beanie statement decisive nondisclosure much transcript insignificant kyles shown basis three statements material light entire record conclude police kyles whitley reports relating discovery purse trash reasonable probability moved jury embrace theory otherwise discounted persuaded notes relating discovery gun material persuaded printout license plate numbers reasonable probability induced reasonable doubt jury find rebuttal photograph made difference result reached fifth circuit majority compatible series independent materiality evaluations rather cumulative evaluation required bagley ensuing discussion show iv state rated henry williams best witness testified seen struggle actual shooting kyles jury found helpful probe conclusion light williams contemporaneous statement told police assailant black male years old pounds medium build hair looked like platted app description williams trouble explaining kyles whitley described kyles tall thin man half foot shorter medium build indeed since beanie years old tall pounds defense compelling argument williams description pointed beanie kyles trial testimony second eyewitness isaac smallwood equally damning kyles testified kyles assailant saw struggle dye said saw kyles take small black gun right pocket shoot dye head drive ltd prosecutor asked whether actually saw kyles shoot dye smallwood answered yeah tr smallwood statement taken parking lot however vastly different immediately crime smallwood claimed seen actual murder seen assailant outside vehicle heard lound sic pop said looked around saw lady laying ground red car coming toward app smallwood said got look culprit black teenage male mustache braided hair victim red thunderbird passed standing police investigator specifically asked whether seen assailant outside car smallwood answered gunman already car coming toward jury reasonably troubled adjustments smallwood original story time second trial struggle shooting earlier seen able describe detailed clarity identify murder weapon small black calibre pistol course type weapon used description victim car gone thunderbird ltd saw fit say nothing assailant hair moustache details noted eyewitness developments fueled withering destroying confidence smallwood story raising substantial kyles whitley implication prosecutor coached give since evolution time given eyewitness description fatal reliability cf manson kyles whitley brathwaite reliability depends part accuracy prior description neil biggers reliability identification following impermissibly suggestive depends part accuracy witness prior description smallwood williams identifications severely undermined use suppressed statements likely damage best understood taking word prosecutor contended closing arguments smallwood williams state two best witnesses see tr closing arg discussing territo kersh testimony isaac smallwood ever seen better witness better henry williams henry williams closest right course harm state case identity confined testimony alone fact neither williams smallwood provided consistent eyewitness description pointing kyles undercut prosecution remaining eyewitnesses called testify territo kersh best views gunman fled scene body partly concealed dye car even aside important details effective impeachment one eyewitness call new trial even though attack extend directly others said see agurs kyles whitley defense called beanie adverse witness said anything significance without trapped inconsistencies short recapitulation make point beanie initial meeting police signed statement said bought dye ltd helped kyles retrieve car schwegmann lot friday first call police said bought ltd thursday conversation prosecutor trials thursday said helped kyles retrieve kyles car although none first three versions story mentioned kevin black taking part retrieval car transfer groceries black implicated beanie testimony defense first trial beanie changed story include black participant beanie several accounts dye purse first shows variously next building bushes kyles car black house even kyles lawyer followed conservative course leaving beanie stand though defense examined police good effect knowledge beanie statements attacked reliability investigation failing even consider beanie possible guilt tolerating countenancing serious possibilities incriminating evidence planted see bowen maynard common kyles whitley trial tactic defense lawyers discredit caliber investigation decision charge defendant may consider use assessing possible brady violation lindsey king awarding new trial prisoner convicted louisiana state withheld brady evidence carried within potential discrediting police methods employed assembling case demonstrating detectives knowledge beanie affirmatively statements defense laid foundation vigorous argument police guilty negligence initial meeting police beanie admitted twice changed license plates ltd admission enhanced suspiciousness possession car defense argued persuasively bona fide purchaser combined police record evidence prior criminal activity near schwegmann status suspect another murder devious behavior gave reason believe done buy stolen car beanie statement kyles car parked part schwegmann lot dye killed beanie apparent awareness specific location murder based state contends television newspaper reports perhaps cf app kyles whitley beanie saying knew murder seen paper told beanie since police admittedly never treated beanie suspect defense thus used statements throw reliability investigation doubt sully credibility detective dillman testified beanie never suspect tr knowledge beanie changed license plate admitted failure police pursue pointers toward beanie possible guilt magnified effect jury explaining purse gun happened recovered beanie original recorded statement told police kyles garbage goes tomorrow smart put purse garbage app statements along internal memorandum stating police reason believe dye personal effects schwegmann bags garbage supported defense theory beanie mere observer determining investigation direction success potential damage using beanie statement undermine ostensible integrity investigation confirmed prosecutor admission one kyles postconviction hearings recall single instance case police searched seized garbage street front residence tr hearing relief detective john miller admission hearing thought time possibility beanie planted incriminating evidence garbage tr hearing kyles whitley relief police officer thought juror effect enquiry based beanie apparently revealing remark police set kyles good get gun app jury might understood beanie meant simply police investigated kyles probably find murder weapon jury also taken beanie making sinister suggestion police set kyles defense argued police accepted invitation prosecutor notes interview beanie shown police officers asking beanie whereabouts gun day sunday day twice kyles apartment allegedly seen johnny burns lurking near stove gun later found beanie statement indeed kyles whitley used cap attack integrity investigation reliability detective dillman testified know beanie kyles apartment sunday tr kyles whitley state argues list neither impeachment exculpatory evidence kyles moved car list created list purport comprehensive listing cars schwegmann lot argument however confuses weight evidence favorable tendency even accepted work state police testified list incomplete simply kyles whitley underscored unreliability investigation complemented defense attack failure treat beanie suspect statements presumption fallibility however evidence used weight tendency favorable kyles kyles whitley similarly undispositive small schwegmann receipt front passenger floorboard ltd physical evidence bore fingerprint identified kyles kyles explained beanie driven schwegmann friday buy cigarettes transmission fluid theorized slip must fallen bag removed cigarettes explanation consistent location slip found small size state well argue fingerprint ties kyles killing without also explaining register slip receipt week worth groceries dye gone schwegmann purchase kyles whitley inconclusiveness physical evidence sure prove kyles innocence jury might found eyewitness testimony territo kersh sufficient convict even though less damning kyles smallwood williams question whether state case go jury disclosed favorable evidence whether confident jury verdict confidence survive recap suppressed evidence significance prosecution jury entitled find investigation limited police uncritical readiness accept story suggestions informant whose accounts inconsistent point example including four different versions discovery victim purse whose behavior enough raise suspicions guilt lead police detective testified either less wholly candid less fully informed informant behavior raised suspicions planted murder weapon victim purse places found one four eyewitnesses crucial state case given description kyles whitley match defendant better described informant another eyewitness coached since first stated seen killer outside getaway car killing whereas trial claimed seen shooting described murder weapon exactly omitted portions initial description troublesome case consistency eyewitness descriptions killer height build age facial hair hair length kyles whitley judgment appeals reversed case remanded proceedings consistent opinion ordered footnotes record reveals statements taken edward williams lionel plick waiting bus nearby issac smallwood willie jones henry williams working schwegmann parking lot time murder robert territo driving truck waiting nearby traffic light moment shooting gave statement police friday day murder informant many aliases follow convention refer throughout opinion beanie johnny burns brother woman known pinky burns number trial witnesses referred relationship kyles pinky burns marriage louisiana civil law notwithstanding kyles father several pinky burns children according photographs later introduced trial kyles car actually mercury according trial testimony model tr pending appeal kyles filed motion federal rules civil procedure reopen district judgment motion charged one eyewitnesses testified trial committed perjury witness accompanying affidavit darlene kersh formerly cahill witness given contemporaneous statement swears told prosecutors detectives opportunity view assailant face identify nevertheless kersh identified kyles untruthfully says told people think district attorneys police murderer guy seated table attorney one identify murderer one people table trial best knowledge one black man sitting counsel table pointed one seen shoot lady kersh claims agreed state wishes police district attorneys assured evidence pointed kyles killer affidavit darlene kersh district denied motion abuse writ although order vacated appeals fifth circuit instructions deny motion ground petitioner may use rule motion raise constitutional claims included original habeas petition ruling us denial rule motion kyles sought state collateral review basis kersh affidavit louisiana granted discretionary review kyles whitley ordered trial conduct evidentiary hearing state proceedings currently stayed pending review kyles federal habeas petition noted conviction obtained knowing use perjured testimony fundamentally unfair must set aside reasonable likelihood false testimony affected judgment jury agurs omitted ruling pertaining kersh affidavit us consider question whether kyles conviction kyles whitley obtained knowing use perjured testimony decision today address claim first agurs category see supra rule clear none brady cases ever suggested sufficiency evidence insufficiency touchstone yet dissent appears assume kyles must lose still adequate evidence convict even favorable evidence disclosed see post possibility beanie planted evidence perfectly consistent kyles guilt jury well believed portions defense theory yet condemned petitioner believe four eyewitnesses similarly mistaken brady evidence left two prosecution witnesses totally untouched brady evidence logically separated incriminating evidence remained unaffected see also hill lockhart unnecessary add separate layer analysis evaluation whether petitioner habeas case presented constitutionally significant claim ineffective assistance counsel dissent accuses us overlooking point assuming favorable significance given item undisclosed evidence enough demonstrate brady violation evaluate tendency force undisclosed evidence item item way evaluate cumulative effect purposes materiality separately end discussion part infra state counsel retreated suggestion oral argument conceding state held disclosure standard based state officers time knew tr oral arg record makes numerous references kyles approximately six feet tall slender photographs record tend confirm descriptions description beanie text comes police file record photographs beanie also depict man possessing medium build defense underscored possibility beanie dye killer police failure direct investigation beanie police disclosed beanie statements forced admit informant beanie described kyles generally wearing hair bush style wearing sold car beanie whereas beanie wore plaits considerable amount brady evidence defense attacked investigation shoddy police failed disclose beanie charges pending theft schwegmann store primary suspect january murder patricia leidenheimer like dye older woman shot head armed robbery even though beanie primary suspect leidenheimer murder early september interviewed police kyles second trial december beanie confessed involvement murder never charged connection additional reasons beanie ingratiate police police treat suspicion show indeed notwithstanding justice scalia suggestion beanie stupid inject investigation post brady evidence revealed least two motives beanie come forward interested reward money worried already suspect dye murder indeed seen driving victim car subject newspaper television reports see supra discussion brady evidence attack investigation see especially part infra implication coaching complemented fact smallwood testimony second trial much precise incriminating testimony first produced hung jury first trial smallwood testified looked around heard something go dye already ground watched guy get car tr asked describe killer smallwood stated got glance side even get look face state contends change actually cuts favor brady since provided kyles defense grounds impeachment without need disclose smallwood statement brief respondent true true enough inconsistencies two bodies trial testimony provided opportunities chipping away assault warranted smallwood testimony first trial similar contemporaneous account respects example said looked around heard gunshot dye already ground differed one important smallwood version first trial already included observation gunman outside car defense counsel therefore clearly put notice smallwood capacity identify killer body type open serious attack even less informed smallwood answered asked seen killer outside car smallwood fact seen gunman assailant entered dye car said original statement difficult impossible notice two key characteristics distinguishing kyles beanie heights builds moreover first trial smallwood specifically stated killer hair kind like short knotted head tr description inconsistent testimony second trial directly contradicted statement scene murder killer hair dissent says smallwood testimony barely affected expected impeachment post brave jury argument dissent post suggests jurors count sloppiness investigation probative force state evidence irrational course thing example probative force evidence depends circumstances obtained circumstances raise possibility fraud indications conscientious police work enhance probative force slovenly work diminish see discussion purse gun infra dissent rightly contend beanie hard time planting purse kyles garbage see post arguing difficult beanie plant gun homemade holster needed beanie put purse trash bag curb see tr testimony detective dillman garbage bags seized common garbage area street early morning hours anyone street dissent post argues stupid beanie tantalized police prospect finding gun one day may planted odd dissent thinks brady reassessment requires assumption beanie shrewd sophisticated suppressed evidence indicates within period hours first called police beanie gave three different accounts kyles recovery purse gave yet another month later dissent rule suspicion beanie said worn shirt visits apartment post suppose small handgun kyles whitley carried man trousers witness state claimed killer carried tr williams similarly record photograph homemade holster indicates jury found constructed insubstantial leather cloth duct tape string concealable pocket evaluating weight evidentiary items bears mention functioned mere isolated bits good luck kyles combined force attacking process police gathered evidence assembled case complemented complemented testimony actually offered kyles friends family show beanie framed kyles exposure beanie words even police officers made defense case plausible reduced vulnerability credibility attack johnny burns example subjected sharp testifying seen beanie change license plate ltd walked beanie stooping near stove kyles kitchen seen beanie handguns various calibres including testifying defense even though beanie best friend tr points burns testimony consistent withheld evidence beanie spoken burns police partner admitted changing ltd license plate attended sunday dinner kyles apartment history violent crime rendering use guns likely information defense challenged prosecution good faith least points mentioned elicited police testimony blunt effect attack burns justice scalia suggests gauge burns credibility observing state judge presiding kyles proceeding find burns testimony proceeding convincing noting burns since convicted killing beanie post course neither observation possibly affected jury appraisal kyles whitley burns credibility time kyles trials kyles testified believed pet food sale kyles whitley little sign said three two cheaper price even dollar tr asked sign kyles said big little bitty piece slip shelf subsequently prices revealed fact hree cents two cents comported exactly kyles earlier description director advertising schwegmann testified items purchased kyles sale also explained multiple pricing thought make products attractive customer advertising director stated store policy signs shelves also admitted salespeople sometimes disregarded policy put signs anyway say sure whether signs day kyles said bought pet food dissent suggests post kyles must poor unable purchase pet food total cost fifteen cans pet food found kyles apartment see rather damning post pet food evidence thus equivocal event crux prosecution case state conceded see supra state counsel admitted oral argument case depended facially implausible notion dye made typical weekly grocery purchases day murder kyles whitley receipt longer indeed made typical weekly purchases pet food hence presence pet food kyles apartment state claimed dye tr oral arg see supra remand course state case weaker still since prosecution unlikely rely kersh swears committed perjury two trials identified kyles murderer see supra kyles whitley justice stevens justice ginsburg justice breyer join concurring explained case presents important legal issue see ante justice scalia emphatically disagrees add brief response criticism decision grant certiorari proper management certiorari docket justice scalia notes see post precludes us hearing argument merits even substantial percentage capital cases confront us compare coleman balkcom stevens concurring denial certiorari rehnquist dissenting even aside legal importance however case merits favored treatment cf post least three reasons first fact jury unable reach verdict conclusion first trial provides strong reason believe significant errors occurred second trial prejudicial second cases record reveals many instances state failure disclose exculpatory evidence extremely rare even shared justice scalia appraisal evidence case still believe independently review record kyles whitley ensure prosecution blatant repeated violations constitutional obligation deprive petitioner fair trial third despite high regard diligence craftsmanship author majority opinion appeals independent review case left degree doubt petitioner guilt expressed dissenting judge duty administer justice occasionally requires busy judges engage detailed review particular facts case even though labors may provide posterity newly minted rule law current popularity capital punishment makes generalizable principle post especially important cf harris alabama slip stevens dissenting wish review unnecessary agree position judicial hierarchy makes inappropriate sometimes performance unpleasant duty conveys message significant even penetrating legal analysis kyles whitley justice scalia chief justice justice kennedy justice thomas join dissenting sensible system criminal justice wrongful conviction avoided establishing trial level lines procedural legality leave ample margins safety example requirement guilt proved beyond reasonable doubt providing recurrent repetitive appellate review whether facts record show lines narrowly crossed defect latter system described characteristic candor justice jackson whenever decisions one reviewed another percentage reversed reflects difference outlook normally found personnel comprising different courts however reversal higher proof justice thereby better done brown allen jackson concurring kyles whitley says granted certiorari ecause ur duty search constitutional error painstaking care never exacting capital case burger kemp kyles whitley ante citation perverse reader looks quoted opinion discover next sentence confirms traditional practice today glaringly departs nevertheless lower courts found constitutional error occurred deference shared conclusion two reviewing courts prevent us substituting speculation considered opinions burger kemp greatest puzzle today decision caused capital case singled favored treatment perhaps randomly selected symbol reassure america reviewing capital convictions make sure factual error made false symbol assuredly week preceding february conference example considered disposed petitions capital cases seven carefully considered whether convictions sentences cases obtained reliance upon correct principles federal law tried consider addition whether correct principles applied merely plausibly accurately particular facts case done nothing else week reality responsibility factual accuracy capital cases cases rests elsewhere trial judges juries state appellate courts lower federal courts nothing encourage foolish reliance pretend otherwise straining suggest legal error decision might warrant review asserts room debate whether two judges majority appeals made assessment cumulative effect evidence ante support quotes isolated sentences kyles whitley opinion supposedly dismiss ed particular items evidence immaterial ibid claim legal error withstand minimal scrutiny appeals employed precisely legal standard compare apply bagley standard examining whether reasonably probable undisclosed information available kyles result different ante case disclosure suppressed evidence competent counsel made different result reasonably probable appeals announce rule law might precedential force later cases effect bagley requires series independent materiality evaluations fact said contrary see persuaded reasonably probable jury found kyles sic favor exposed undisclosed materials emphasis added decision read shall say cumulatively clear beyond cavil assessed cumulative effect brady evidence context whole record see basing rejection petitioner claim complete reading record rather reviewing alleged brady materials abstract examine evidence presented trial extra materials fit must bear eyewitness testimony mind assessing probable effect undisclosed information words errs manner accuses appeals erring failing consider material review whole isolated snippets quotes decision merely opinion acknowledges must done evaluate tendency force undisclosed evidence item kyles whitley item way ante finally falls back result reached fifth circuit majority compatible series independent materiality evaluations rather cumulative evaluation required bagley ante words even though fifth circuit plainly enunciated correct legal rule since outcome reached properly follow rule fifth circuit must fact unbeknownst applying incorrect legal rule effectively eliminates distinction mistake law mistake application granted certiorari review decision issue federal law conflicts decision another federal state even decision announcing rule federal law novelty importance might warrant review despite lack conflict yet even decision patently errs application old rule intensely case unquestionably applied correct rule law unquestionably err precisely type case inclined deny certiorari despite dissented ground writ certiorari dismissed improvidently granted since majority aware limits capacity little fear grant certiorari case sort often repeated say little fear today grant generalizable principle behind still forced dissent however improvidently decided review facts case goes get facts wrong findings view clearly erroneous cf fed civ proc verdict reversed somewhere appeal kyles whitley proceeding detailed consideration evidence general observations methodology appropriate fundamental discovery rule brady maryland materiality failure disclose favorable evidence must evaluated context entire record agurs simply enough show undisclosed evidence allowed defense weaken even destro ante particular prosecution witnesses items prosecution evidence undisclosed evidence relates petitioner burden show light evidence including untainted brady violation reasonably probable jury entertained reasonable doubt regarding petitioner guilt see bagley agurs supra opinion fails almost entirely take principle account spent many pages assessing effect brady material two prosecution witnesses items prosecution evidence ante dismisses remainder evidence kyles quick ante partiality confirmed attempt recap suppressed evidence significance prosecution ante emphasis added omits required comparison evidence evidence disclosed discussion record present half analysis omits emphasizing evidence concededly unaffected brady violation demonstrates immateriality violation analysis case desperate implausibility theory petitioner put jury must kept firmly mind first half kyles whitley theory designed neutralize physical evidence dye purse garbage murder weapon behind stove petitioner victim police informer evil genius beanie unusual guilty person knows suspected crime try shift blame someone else less common guilty person neither suspected subject suspicion established perfect alibi call attention coming forward point finger innocent person petitioner theory guilty beanie plausibly accused crime petitioner brief amply demonstrates suspect kyles police yet leads see ante injected kyles investigation order get innocent kyles convicted stupid enough wicked beanie supposed suggested police search victim premises full day got around planting incriminating evidence premises second half petitioner theory victim quadruple coincidence four eyewitnesses crime mistakenly identified murderer three picking without hesitation four affirming identification kyles whitley open comparing beanie extraordinary mistake petitioner persuade jury four witnesses made simply mistake real killer beanie innocent third party hard enough believe addition mistake man beanie chosen frame last incredible level coincidence however small chance jury believe one improbable scenarios likelihood believe together far smaller concludes reasonably probable undisclosed witness interviews persuaded jury petitioner implausible theory mistaken eyewitness testimony argues reasonably probable undisclosed information regarding beanie persuaded jury petitioner implausible theory regarding incriminating physical evidence think neither conclusions remotely true even still guilty fallacy declaring victory implausibility turn thus victory whole without considering infinitesimal probability jury swallowing entire concoction implausibility squared basic error approaching evidence piecemeal also accounts obsessive focus credibility culpability beanie even testify trial whose credibility innocence state never avowed opinion reads either petitioner beanie must telling truth evidence tending inculpate undermine credibility one exculpate enhance credibility jury verdict case said petitioner guilty murder perfectly consistent possibilities beanie repeatedly lied ante accessory fact cf ibid even kyles whitley planted evidence petitioner ante even undisclosed evidence allowed defense thoroughly impeach beanie suggest possibilities jury well believed things yet condemned petitioner believe four eyewitnesses similarly mistaken course even much rests premise competent counsel run terrible risk calling beanie witness whose testimony almost certainly inculpated petitioner reasonable attorney perceive loose cannon perhaps premise seems implausible retreats possibility petitioner counsel even calling beanie stand used evidence relating beanie attack reliability investigation ante distinctly less effective substantive evidence bearing guilt innocence accused evaluating brady claims assume jury conduct rational obedient law assume even though whole mass evidence disclosed undisclosed shows petitioner guilty beyond reasonable doubt jury punish sloppy investigative techniques setting defendant free neither beanie police trial case petitioner amount collateral evidence kyles whitley enabled counsel move mountain direct evidence ii undisclosed evidence create reasonable probability different result ante quoting bagley begin eyewitness testimony petitioner basic theory trial state four eyewitnesses happened mistake beanie real killer petitioner man beanie simultaneously trying frame police officers testified jury petitioner never disputed three four eyewitnesses territo smallwood williams shown photo lineup six young men four days shooting without aid duress identified petitioner murderer plus fourth eyewitness kersh reaffirmed identifications trial petitioner beanie made stand territo first eyewitness called state waiting red light truck yards schwegmann parking lot saw petitioner shoot dye start car drive onto road pull behind territo truck light turned green petitioner pulled beside territo stopped waiting make turn petitioner looked territo full face territo testified got good look passenger seat little truck reached even stretched arm grabbed hold tr territo also testified detective shown picture beanie asked picture guy told second eyewitness kersh also saw petitioner shoot dye asked whether got good look drove away answered yes also answered yes kyles whitley question whether got see side face said petitioner stopped driven within reaching distance door dye car stopped third eyewitness smallwood testified saw petitioner shoot dye walk car drive away petitioner drove slowly within distance feet smallwood saw face side fourth eyewitness williams working outside parking lot testified gentleman came side car struggled dye shot walked around driver side car drove away williams saw shot watched petitioner drive slowly within less ten feet ibid asked id get opportunity look good williams said attempts dispose direct unqualified consistent eyewitness testimony two ways first relying theory implausible apparently suggested petitioner counsel held us perhaps theory removed appellate love theory reasonable probability jury changed mind eyewitness identification brady material permitted defense argue eyewitnesses got good look killer sitting dye car thus identify height build face never mind moment factually false since brady material showed one four eyewitnesses kyles whitley smallwood see killer outside car never mind also dubious premise build man six feet tall like petitioner indistinguishable seated behind wheel man less five feet tall like beanie unhesitant categorical identification four witnesses viewed killer sun high sky eliminate reasonable doubt based facial characteristics height build quite simply absurd facial features primary means human beings recognize one another police departments distribute mug shots wanted felons rather posture pictures bank robbers wear stockings faces instead capes shoulders lone ranger wears mask instead poncho criminal defense lawyer seeks destroy identifying witness asking admit saw killer face laughed courtroom different course evidence kyles beanie faces looked like twins least bore unusual degree resemblance facial resemblance explain beanie committed kyles whitley crime four witnesses picked kyles first though continued pick beanie stood render failure observe height build killer relevant without evidence facial similarity question admit saw killer face draws blood explain witness identification petitioner killer assumption facial resemblance kyles beanie underlies repeated references partial concealment killer body view see ante never actually says resemblance exists slightest basis statement record found kyles beanie bear facial resemblance fact quite opposite every federal state reviewed record photographs seen two men found resemble respect see comparing photographs kyles beanie evident former taller thinner narrower face app district opinion examined pictures used photographic compared kyles beanie pictures finds resemble one another state trial findings postconviction review beanie clearly distinctly resemble defendant case emphasis original district finding controls clearly erroneous fed civ proc state finding fairly supported record must presumed correct habeas review see second means seeking neutralize impressive unanimous eyewitness testimony uses theory exaggerate kyles whitley effect state failure disclose contemporaneous statement henry williams statement assuredly permitted sharp since contained estimations height weight fit beanie better petitioner ante think hyperbole say statement substantially reduced destroyed value williams testimony williams saw murderer drive slowly less feet away tr unhesitatingly picked photo lineup jury might well choose give greater credence simple fact identification difficult estimation height weight spends considerable time see ante showing smallwood testimony discredited degree rais substantial implication prosecutor coached give ibid perhaps irrelevant appeal since impeaching material except facial identification point discussed available defense independently brady material see ante sum undisclosed statements credited everything possibly provided defense leave two prosecution witnesses territo kersh totally untouched one prosecution witness smallwood barely affected saw killer face one prosecution witness williams somewhat impaired description killer height weight match kyles must keep due perspective remembering relevant question materiality inquiry many points defense scored prosecution witnesses whether reasonably probable new evidence caused jury accept basic thesis four witnesses mistaken think plainly witness involved case ever identified anyone kyles whitley petitioner murderer views crime escaping criminal obtained bright daylight close hand identifications reaffirmed jury comparison beanie kyles jury heard territo say doubt mind petitioner murderer tr heard kersh say know seen face know color skin know know heard smallwood say positive ecause man seen kill woman heard williams say doubt mind without brady evidence doubt mind jury either remains argument major contribution today opinion brady litigation endorsement surely trolled past appellate courts future cases argues effective impeachment one eyewitness call new trial even though attack extend directly others said ante citing agurs startling said since assumes irrational jury conduct weakening one witness testimony weaken unconnected testimony another witness entertain possibility jury give effect incompatible whole idea materiality standard presumes incriminating evidence destroyed proper disclosure logically separated incriminating evidence remained unaffected fact said nothing like suggests opinion authority theory cited agurs appended proposition brady omission must evaluated context entire record kyles whitley accordance proposition recited hypothetical shows witness testimony destroyed withheld evidence contradicts witness worlds apart destroyed corrosive effect withheld evidence impeaches merely weakens corroborating witness physical evidence confirms immateriality nondisclosures garbage bag outside petitioner home police found dye purse belongings inside home found behind kitchen stove caliber revolver used kill dye hanging wardrobe homemade shoulder holster perfect fit revolver tr detective dillman dresser drawer bedroom two boxes gun cartridges one containing caliber rounds brand found murder weapon another containing caliber rounds kitchen cabinet eight empty schwegmann bags cupboard underneath cabinet one schwegmann bag containing cans pet food petitioner account trial beanie planted purse gun holster petitioner received ammunition beanie collateral loan petitioner bought pet food kyles whitley day murder account strains credulity breaking point correct brady material supported claim beanie planted dye belongings petitioner garbage lesser degree beanie planted gun behind petitioner stove ante must see whole story petitioner presented jury petitioner beanie plant incriminating evidence day incited police search petitioner home moreover succeeded surreptitiously placing gun behind stove matching shoulder holster wardrobe least many people present petitioner small apartment beanie wearing blue jeans either shirt tr cathora brown shirt petitioner concealing person shoulder holster murder weapon also different gun tape wrapped around barrel showed petitioner appellate judges swallow tale petitioner supporting evidence johnny burns testimony saw beanie stooping behind stove presumably plant gun burns credibility stand perhaps best gauged observing state judge presided petitioner trial stated postconviction proceeding ha chosen totally disregard everything burns said app see also district opinion reviewed entire record without hesitation concurs kyles whitley trial determination concerning credibility burns burns way repeatedly stated trial beanie best friend tr since tried convicted killing beanie see state burnes la app petitioner claim ammunition planted police found caliber rifle petitioner mattress two boxes ammunition one containing caliber rounds another containing caliber rounds brand found loaded murder weapon petitioner story beanie gave rifle caliber shells security loan taken caliber shells box tr put aside latter detail contradicted facts consider inherent implausibility beanie giving petitioner collateral form box containing shells true petitioner caliber gun fifth circuit wrote likely inference apparently chosen jury petitioner possessed caliber ammunition possessed caliber firearm come evidence pet food mundane yet damning petitioner confused changing explanations presence cans pet kyles whitley food schwegmann bag sink must fatally undermined credibility jury see app trial judge finds petitioner obvious lie concerning pet food may crucial bit evidence minds jurors caused discount entire defense case disposes pet food evidence follows fact pet food found kyles apartment consistent testimony several defense witnesses kyles owned dog children fed stray cats brands pet food found two brands dye typically bought two common whereas one specialty brand found dye apartment murder tr found kyles apartment although kyles wrong describing cat food sale day said bought right describing way priced schwegmann market commonly shopped ante see also kyles whitley kyles whitley address list cars schwegmann parking lot receipt found victim car bore petitioner fingerprints collateral matters provided little evidence either guilt innocence list cars contain petitioner automobile served rebut state introduction photograph purporting show petitioner car parking lot petitioner contest list comprehensive photograph taken six hours list compiled see thus rebuttal value marginal best receipt although showed petitioner must point schwegmann murdered woman car consistent petitioner story state see ante respectfully dissent tries explain saying beanie mistakenly thought become suspect support provides fact come forward admission driven dead woman car beanie repeatedly inquired whether suspect see ante course point well worried suspect evidence erroneously considered suspect beforehand moreover even notion guilty person basis erroneous belief come forward reward order frame kyles rather waiting police approach first quite simply implausible basis anything said charge dissent appears assume kyles must lose still adequate sufficient evidence convict even favorable evidence disclosed ante assume indeed expressly argue petitioner must lose overwhelming evidence convict much evidence disclosure made different result reasonably probable ante smallwood williams eyewitnesses whose testimony affected brady material williams affected showed observe killer standing contrary showed estimates height weight based observation match kyles two witnesses observe killer full territo testified saw killer running dye struggle began struggle watched killer bend stand back stru car tr kersh clear opportunity observe killer body type testified saw killer dye arguing watched walk around back car dye fallen example one two eyewitnesses crime told prosecutor defendant definitely perpetrator statement disclosed defense hesitate reverse conviction resting testimony eyewitness fifty eyewitnesses identified defendant prosecutor neglected reveal without badly needed glasses misty evening crime said criminal looked something like defendant sure brief glimpse result might well different agurs quoting comment brady maryland prosecutor duty disclose chi rev estimates varied see tr johnny burns people cathora brown adults children petitioner petitioner people notes neither observation possibly affected jury appraisal burns credibility time kyles trials ante obviously true obviously true findings burns credibility jury direct method asking thought way assess jury appraisal burns credibility asking whether state trial judge saw burns testimony along jury thought credible whether burns fact credible question later behavior towards best friend highly probative charitably assumed petitioner pet pets first place although evidence tended show contrary petitioner claimed owned dog puppy son cat seven eight cats around tr dog according petitioner kept country month half brought back week petitioner arrested although petitioner claimed kept dog tied yard behind house taken country two defense witnesses contradicted story donald powell stated seen dog petitioner home since least six months trial cathora brown said although pinky petitioner wife sometimes fed stray pets dog tied back yard police found evidence kind pets lived petitioner home near time murder page