Lambert v. Beard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-9005

____________

JAMES LAMBERT,

Appellant

v.

JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA

DEPARTMENT OF CORRECTIONS; WILLIAM

STRICKMAN, III, SUPERINTENDENT OF THE STATE

CORRECTIONAL INSTITUTION AT GREENE; THE

DISTRICT ATTORNEY OF THE COUNTY OF

PHILADELPHIA; THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

____________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

(D.C. Civil No. 02-cv-09034)

District Judge: Honorable Michael M. Baylson

____________

Argued: September 30, 2010

____________

Before: BARRY, HARDIMAN and STAPLETON,

Circuit Judges

(Opinion Filed: February 7, 2011)

____________

Stuart B. Lev, Esq. (Argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106-0000

-and

Daniel Silverman, Esq.

Suite 1001

1429 Walnut Street

Philadelphia, PA 19102-0000

Counsel for Appellant

Joshua S. Goldwert, Esq. (Argued)

Thomas W. Dolgenos, Esq.

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

____________

OPINION OF THE COURT

____________

BARRY, Circuit Judge

I. Introduction

We have approached this case with the utmost

seriousness. We are humbled by the fact that over a twenty-

eight-year period of time, the case has progressed through

courts of the Commonwealth of Pennsylvania and the U.S.

District Court without James Lambert having been granted

relief. We, nonetheless, must decide this case consistent with

what we believe our obligation to be, while according the

utmost respect to the standard of review that we are required

to apply. Having done so, we now vacate the judgment of the

District Court dated July 24, 2007, and remand this matter to

2

the District Court, which is directed to conditionally grant the

petition for a writ of habeas corpus. If, within 120 days of the

date of this Opinion and Order, the Commonwealth fails to

retry Mr. Lambert, he shall be released. 1

II. Procedural History

It is not an overstatement to say that the procedural

history of this case is extensive in the extreme, as would be

expected in a case that has spanned more than twenty-eight

years. We have carefully examined the numerous issues

Lambert has raised over these many years and how the

various courts have resolved those issues. We, however,

decide this case on one issue, an issue under Brady v.

Maryland, 373 U.S. 83 (1963), and find it unnecessary to

address the other issues raised to us or the issues raised to the

courts that preceded us. So, too, only a summary of the

procedural history that does not pertain to the Brady issue

will suffice.

James Lambert and Bruce Reese were arrested and

charged with murder, robbery, criminal conspiracy, and

possession of an instrument of crime based on what the

Commonwealth had been told by one Bernard Jackson, who

subsequently testified for the Commonwealth in exchange for

an open guilty plea to third-degree murder, robbery,

conspiracy, and several unrelated crimes. On April 25, 1984,

Lambert was convicted by a jury of two counts of first-degree

murder as well as the other crimes with which he was

charged, and was sentenced to death. Reese was convicted of

second-degree murder, and was sentenced to life

imprisonment.

1

Given this disposition, our order of November 23, 2010,

which vacated the sentence of death given our conclusion that

the jury instructions violated Mills v. Maryland, 486 U.S. 367

(1988), is now moot and will be vacated, and the

Commonwealth’s petition for panel rehearing and rehearing

en banc as to that order will be denied as moot.

3

Lambert moved for a new trial and to vacate the

judgment, motions which were denied. He appealed, and in a

3-2 decision with two Justices not participating, the

Pennsylvania Supreme Court upheld his conviction and

affirmed the sentence of death. See Commonwealth v.

Lambert, 603 A.2d 568 (Pa. 1992) (“Lambert I”). Lambert

next filed a pro se Pennsylvania Post-Conviction Relief Act

(“PCRA”) petition, which was amended by counsel on

January 30, 1997, and twice supplemented thereafter. On

January 29, 1998, the PCRA court denied the petition without

a hearing. The Pennsylvania Supreme Court remanded for

the PCRA court to write an opinion, which it did on March 4,

2000. Lambert again appealed, and the Pennsylvania

Supreme Court affirmed in an opinion signed by two Justices,

with two Justices concurring in the opinion, one concurring in

the result, and two dissenting. See Commonwealth v.

Lambert, 797 A.2d 232 (Pa. 2001) (“Lambert II”). Lambert

then filed a second PCRA petition raising, for the first time, a

claim under Brady, based on recently discovered exculpatory

evidence. That petition was denied as well, and the

Pennsylvania Supreme Court again affirmed. See

Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005)

(“Lambert III”).

In 2002, Lambert filed a petition for a writ of habeas

corpus in the United States District Court for the Eastern

District of Pennsylvania raising twenty-four claims of

constitutional error, most of which were accompanied by

related allegations of ineffective assistance of counsel. 2 The

District Court did not conduct an evidentiary hearing and

denied relief on all claims, but granted a certificate of

appealability (“COA”) on one guilt-phase claim relating to

the Commonwealth’s alleged discriminatory use of

peremptory challenges at jury selection in violation of Batson

v. Kentucky, 476 U.S. 79 (1986), and one sentencing-phase

claim relating to whether there had been a violation of Mills

2

Lambert’s habeas petition was stayed pending exhaustion

of the claims raised in that petition in his subsequently filed

third PCRA petition.

4

v. Maryland, 486 U.S. 367 (1988). See Lambert v. Beard,

No. 02-9034, 2007 WL 2173390 (E.D. Pa. July 24, 2007).

We then expanded the COA to include the following

issues: (1) whether the Commonwealth’s failure to disclose

exculpatory evidence and misrepresentation of the bargain

given to its key witness in exchange for his testimony

violated Brady; (2) whether Lambert was denied his right to

present a defense, call witnesses on his behalf, and confront

the evidence against him when he was barred from

introducing evidence that Jackson and Reese had a history of

committing robberies together and without him; (3) whether

Lambert was denied his right to due process and a fair trial

when the trial court allowed a witness called by Reese to

identify Lambert for the first time in court; (4) whether

Lambert was denied his right to due process when the trial

court refused to sever his trial from Reese’s trial; (5) whether

the trial court misled the jury about the role of appellate

review in violation of Caldwell v. Mississippi, 472 U.S. 320

(1985); and (6) whether Lambert’s penalty-phase waiver of

his right to present mitigating evidence was not knowing,

intelligent, and voluntary.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§

1331, 2241, and 2254. We have appellate jurisdiction under

28 U.S.C. §§ 1291 and 2253. We exercise plenary review

over the decision of the District Court, as the Court did not

hold an evidentiary hearing. See Simmons v. Beard, 590 F.3d

223, 231 (3d Cir. 2009).

Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), where, as here, a habeas petitioner’s

claims were adjudicated on the merits in state court, our

review is limited to determining whether the state court

decision was contrary to or involved an unreasonable

application of Supreme Court precedent or an unreasonable

determination of the facts in light of the evidence presented in

the state court. See 28 U.S.C. § 2254(d).

5

IV. Factual Background

At approximately 9:00 on the evening of September

23, 1982, the robbery of Prince’s Lounge went bad, and two

patrons were shot to death. The Philadelphia Police

Department commenced an investigation, but the perpetrators

could not be identified, although two of the three barmaids

working that night gave general descriptions of each of the

two perpetrators. Not long after the murders, however, an

anonymous tip was received by the Department identifying

Bernard Jackson and “Touche” (later identified as Reese,

Jackson’s brother-in-law) as the men in the bar that night.

Each barmaid was subsequently presented, for the first time,

with a photo array that included Jackson’s photo. Sarah Clark

identified Jackson as the man who was standing at the top of

the stairs in the bar and ordered her to place the money in a

bag just before she heard two gunshots from the rear of the

bar, the shots that killed the two patrons. Marie Green was 85

to 90 percent sure that the man at the top of the stairs was

Jackson. Janet Ryan, the third barmaid, was working at the

rear of the bar and dropped down and ran to the ladies room

when the shooter pointed a gun in her face.

Jackson, who by then was in custody on another

charge, learned that he had been identified by at least one of

the barmaids and told the police about the Prince’s Lounge

robbery and that Reese and “another dude,” whose name he

could not recall, had done it. His story, at least initially, went

as follows. He and Reese met the “other dude” (whom he

much later identified as Lambert) for the first time less than

an hour before the three of them decided to rob a bar. After

casing, and rejecting, one bar, Jackson, who admitted to

having previously committed at least thirteen armed robberies

of bars, made the decision to rob the Prince’s Lounge after

ascertaining that a female friend of his was not working that

night. Jackson claimed to have waited in the getaway car

while Lambert and Reese entered the bar and went upstairs,

each armed with a handgun provided by Reese – Lambert was

carrying the .32 and Reese the .38, which, as it turned out,

was the murder weapon. Jackson claimed not to have known

6

what happened in the bar aside from what he was told by

Reese and Lambert when they returned to the car and fled the

scene with Jackson at the wheel.

V. Discussion

It is undisputed that without Jackson’s statements to

the police, the Commonwealth could not have indicted

Lambert on these charges. See Giglio v. United States, 405

U.S. 150, 154 (1972) (finding evidence impeaching witness’s

credibility material, in part, because without the witness’s

testimony, “there could have been no indictment”). Jackson,

however, came burdened with a wealth of impeachment

material, not the least of which were four prior inconsistent

statements to the police about who did what and who said

what on the night in question, and his admitted goal of

testifying to save himself from a death sentence – “no doubt

about it,” he said. (A2180). Predictably, he was savaged at

trial. One wonders how the Commonwealth could have based

this case of first-degree murder on a Bernard Jackson.

But we digress.

A.

Jackson’s statements of October 14, 1982, October 22,

1982, January 14, 1983, and February 6, 1983 were

devastatingly inconsistent with each other and with his story

at trial. He initially decided to give the police only “some of

the truth” and told the police that Reese had admitted to

shooting two people (A2002); then he told the police that

Reese said Lambert was the shooter and that Reese was

ordering the barmaid to give him the money (A2007, 2013);

then he told the police that although he had previously said

that Lambert had done it, that wasn’t true – he was “feeding

them a story” when he said that Lambert said he had shot two

people and “that was a lie, too.” (A2080, 2082, 2100.) Now,

at trial, he said, he was going to tell the truth. It was Reese,

not Lambert, who said that he shot two people, but that

wasn’t true either because what Reese really said was that “I

7

think we killed a couple of guys in there,” not that he did.

(A2253.) Indeed, Jackson was finally forced to admit that

three months after the first of his lengthy statements to the

police, he was still giving them different versions of what had

happened. Still, breathtakingly, at the very end of his

testimony, with his credibility hanging, at best, by a thread,

and conceding that he was testifying to avoid a death

sentence, Jackson somewhat proudly announced that although

he had “switched what [Lambert and Reese] did

interchangeably,” he always said that Lambert and Reese

were the two men involved – they were “the only two people”

he supplied to the police. (A2266-67, 2276.)

But that was simply not so, and neither the defense nor

the jury was told that it was not so. In the Police Activity

Sheet of October 25, 1982, which first came to light during

the PCRA proceedings, Jackson named Lawrence Woodlock

as a “co-defendant.” (A3334.) The Commonwealth

conceded at oral argument before us that the Police Activity

Sheet should have been disclosed to the defense prior to trial.

Aside from the other arguments made as to why that Police

Activity Sheet was significant, there can be no question that

given Jackson’s consistent position – his only consistent

position, by his own admission, not to mention the evidence

at trial – that the only participants were Lambert and Reese in

the bar and Jackson in the car, the naming of another

participant could well have destroyed what little was left of

his credibility.

The PCRA Court considered whether the

Commonwealth’s failure to disclose Jackson’s statement that

there was another participant – a “co-defendant” – was

material such that, as the Supreme Court explained, “there is

a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.” Strickler v. Greene, 527 U.S. 263, 280 (1999).

The PCRA Court denied Lambert’s Brady claim on the

merits, explaining that “[v]iewed in light of the record as a

whole, the [Police Activity Sheet of October 25, 1982] is not

material.” (A227). It concluded that “Jackson was

8

comprehensively impeached by the defendant and co-

defendant Reese at trial,” and “[d]espite being impeached on

prior inconsistencies and lies to police, the jury [sic]

determined Jackson to be credible.” (A228.) The

Pennsylvania Supreme Court agreed, explaining that the

Police Activity Sheet of October 25, 1982

would not have materially furthered the

impeachment of Jackson at trial as he was

already extensively impeached by both

appellant and Reese. Indeed, each codefendant

cross-examined Jackson on the following:

every inconsistency in his four police

statements; that he was testifying on behalf of

the Commonwealth pursuant to a plea bargain;

and that he had several open robbery charges

still pending and his testimony was motivated

by a desire to receive lenient sentences for those

crimes. Any additional impeachment of

Jackson arising from a police notation would

have been cumulative. Accordingly, the

Commonwealth did not violate Brady by not

disclosing this police activity sheet as appellant

has failed to show its materiality.

Lambert III, 884 A.2d at 855-56. The District Court did not

mention the Police Activity Sheet of October 25, 1982 in its

Opinion, instead treating it as just one among the host of

other items the Commonwealth had not disclosed and

concluding that the Pennsylvania Supreme Court’s

disposition of Lambert’s Brady claim was a reasonable

application of federal law. See Lambert v. Beard, 2007 WL

2173390, at *10.

B.

“[O]ur duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital

case.” Kyles v. Whitley, 514 U.S. 419, 422 (1995) (alterations

and internal quotation marks omitted). Nevertheless, AEDPA

created a “new, highly deferential standard for evaluating

9

state-court rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n.7

(1997). That statute bars a federal court from granting habeas

relief unless the state court’s adjudication on the merits

“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.”

28 U.S.C. § 2254(d)(1). “[T]he cutoff date for determining

‘clearly established Federal law’ for purposes of § 2254(d)(1)

is the date of the relevant state-court decision.” Greene v.

Palakovich, 606 F.3d 85, 99 (3d Cir. 2010).

“A state-court decision that correctly identifies the

governing legal rule but applies it unreasonably to the facts of

a particular prisoner’s case certainly would qualify as a

decision involving an unreasonable application of clearly

established Federal law.” Williams v. Taylor, 529 U.S. 362,

407-08 (2000) (internal quotation marks and alterations

omitted). While the term “unreasonable” is “no doubt

difficult to define,” “the most important point is that an

unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410. “Under §

2254(d)(1)’s unreasonable application clause, then, a federal

habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-

court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also

be unreasonable.” Id. at 411 (internal quotation marks

omitted). “The unreasonable application test is an objective

one – a federal court may not grant habeas relief merely

because it concludes that the state court applied federal law

erroneously or incorrectly.” Jacobs v. Horn, 395 F.3d 92,

100 (3d Cir. 2005). As the Supreme Court has recently

explained, “A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree on the correctness of the state court’s

decision.’” Harrington v. Richter, No. 09-587, slip op. at 11

(U.S. Jan. 19, 2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). We have with “painstaking care”

reviewed this case with this explanation in mind and have

10

found constitutional error. It is our duty to correct it. See

Kyles, 514 U.S. at 422.

C.

In Brady v. Maryland, the Supreme Court held that

“the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

373 U.S at 87. The Supreme Court has clarified that material

information must be disclosed even absent a defense request,

United States v. Bagley, 473 U.S. 667, 682 (1985), and that

the Brady rule applies to impeachment evidence as well as

directly exculpatory evidence, id. at 676.

Information is material “only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Id. at 682. “A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)

(internal quotation marks omitted). “[A] showing of

materiality does not require demonstration by a

preponderance that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s acquittal . .

. .” Kyles, 514 U.S. at 434. “The question is not whether the

defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence

he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” Id.

The Supreme Court of Pennsylvania ruled that the

Police Activity Sheet of October 25, 1982 was immaterial

because Jackson was so thoroughly impeached that, ipso

facto, additional evidence could not have made a difference.

To be sure, “impeachment evidence, if cumulative of similar

impeachment evidence used at trial . . . is superfluous and

therefore has little, if any, probative value.” Conley v. United

States, 415 F.3d 183, 189 (1st Cir. 2005) (emphasis in

11

original); see also United States v. Boone, 279 F.3d 163, 191

(3d Cir. 2002) (finding no Brady violation where another

witness testified to the same supposedly exculpatory

information); Tankleff v. Senkowski, 135 F.3d 235, 251 (2d

Cir. 1998) (“When a witness’s credibility has already been

substantially called into question in the same respects by

other evidence, additional impeachment evidence will

generally be immaterial and will not provide the basis for a

Brady claim.” (emphasis added)).

Yet it is patently unreasonable to presume – without

explanation – that whenever a witness is impeached in one

manner, any other impeachment becomes immaterial. In a

similar context, the Supreme Court has rejected such an

argument. In Napue v. Illinois, 360 U.S. 264 (1959), a

prosecutor knowingly elicited false testimony that a

cooperating government witness had not, in fact, been

promised consideration in exchange for his testimony.

Rejecting the government’s argument that the defense had

numerous other ways in which to impeach the witness, the

Court held that it “[did] not believe that the fact that the jury

was apprised of other grounds for believing that the witness . .

. may have had an interest in testifying against petitioner

turned what was otherwise a tainted trial into a fair one.” Id.

at 270.

The logic of Napue has been extended to the Brady

context, both by the Supreme Court of the United States and

by various federal courts of appeals. In Banks v. Dretke, 540

U.S. 668 (2004), the Supreme Court rejected the state’s

argument that no Brady violation had occurred because the

witness “was heavily impeached at trial” and thus that his

status as a paid informant would have been “merely

cumulative.” Id. at 702 (alterations omitted). Finding that no

other impeachment evidence was “directly relevant” to the

witness’s status as an informant, the Court ruled that “one

could not plausibly deny the existence of the requisite

‘reasonable probability of a different result’ had the

suppressed information been disclosed to the defense.” Id. at

702-03. See also Bagley, 473 U.S. at 689 (“If the testimony

12

that might have been impeached is weak and also cumulative,

corroborative, or tangential, the failure to disclose the

impeachment evidence could conceivably be held harmless.

But when the testimony is the start and finish of the

prosecution’s case, and is weak nonetheless, quite a different

conclusion must necessarily be drawn.”).

We have also recognized that undisclosed Brady

material that would have provided a different avenue of

impeachment is material, even where the witness is otherwise

impeached. See Slutzker v. Johnson, 393 F.3d 373, 387 (3d

Cir. 2004) (holding that although the defendant was able to

impeach the prosecution in certain respects, the suppressed

information was material under Brady because there was a

“significant difference” between the suppressed material and

the information to which the defense had access); United

States v. Perdomo, 929 F.2d 967, 969, 972 (3d Cir. 1991)

(rejecting the district court finding “that the jury had an

opportunity to evaluate the informant’s credibility from other

damaging testimony” and concluding that “[w]hether or not

the jury has had an opportunity to consider other

impeachment evidence is not the correct standard for

determining materiality of undisclosed information”). But see

Lisa Michelle Lambert v. Blackwell, 387 F.3d 210, 253 (3d

Cir. 2004) (“‘Suppressed evidence is not material when it

merely furnishes an additional basis on which to impeach a

witness whose credibility has already been shown to be

questionable.’” (further internal quotation marks omitted)

(quoting United States v. Amiel, 95 F.3d 135, 145 (2d Cir.

1996))). 3

3

Unlike in Lisa Marie Lambert, the impeachment at issue

here is not simply “an additional basis on which to impeach.”

Rather, as the First Circuit has recognized, “[c]onfidence in

the outcome is particularly doubtful when the withheld

evidence impeaches a witness whose testimony is

uncorroborated and essential to the conviction.” Norton v.

Spencer, 351 F.3d 1, 9 (1st Cir. 2003) (internal quotation

marks omitted). Here, the withheld information provided a

unique basis on which to impeach – specifically, a basis that

13

Other federal courts of appeals have echoed the

conclusion that additional, non-cumulative impeachment

material implicates Brady. See United States v. Torres, 569

F.3d 1277, 1284 (10th Cir. 2009) (“Merely because other

impeachment evidence was presented does not mean that

additional impeachment evidence is cumulative . . . .”);

Horton v. Mayle, 408 F.3d 570, 580 (9th Cir. 2005)

(“However, that the jury had other reasons to disbelieve

McLaurin does not render the suppressed evidence of the deal

immaterial. Evidence that the prosecution promised

immunity to induce McLaurin to testify as its star witness is a

wholly different kind of impeachment evidence . . . .”);

Reutter v. Solem, 888 F.2d 578, 581 (8th Cir. 1989) (“The

state argues that because Trygstad was a convicted felon his

credibility already was suspect and the additional information

regarding his petition for commutation and pending hearing

thereon would not have affected the jury’s judgment as to his

truthfulness. Logic of this kind has been dismissed by the

Supreme Court.” (citing Napue, 360 U.S. at 270)).

What is critical here is that the undisclosed statement

by Jackson that there was another participant – a “co-

defendant,” to use his word – was not just one more piece of

impeachment material to be placed in a “so what” category

because Jackson had already been so thoroughly impeached.

Rather, the undisclosed Police Activity Sheet would have

opened an entirely new line of impeachment, and would have

done far more than simply allow the defense to point out —

as it did — that Jackson was inconsistent and often changed

his story. The way we know that the undisclosed statement

would have opened a new line of impeachment is that by not

disclosing it, the prosecution was able to rely on Jackson’s

consistency in naming Reese and Lambert as the perpetrators,

the only point on which he was consistent at trial. The

Supreme Court has instructed that we may take the

Commonwealth at its word that this was important. See

Kyles, 514 U.S. at 444 (“The likely damage is best understood

shredded Jackson’s credibility on the one point on which the

jury could have inferred that he had any credibility.

14

by taking the word of the prosecutor, who contended during

closing arguments that Smallwood and Williams were the

State’s two best witnesses.”). Here, the prosecution’s closing

argument emphasized Jackson’s consistency in naming

Lambert and Reese as the perpetrators. (A3115.) No more,

in our view, need be said to make clear that finding that

Lambert had not met the requirements of Brady was an

unreasonable application of clearly established Supreme

Court precedent.

In closing, we cannot help but observe that the

evidence is very strong that Reese, not Lambert, was the

shooter, even assuming that Lambert (and not Jackson, as two

of the barmaids testified) was in the Prince’s Lounge that

night. First, it is undisputed that the .38 was the murder

weapon, that the .38 was Reese’s gun and carried by him that

night, and that Lambert (if he was there) had only the .32.

Second, all three barmaids described the shooter as no more

than 5’7”. Reese is 5’7”; Lambert is 6’ to 6’1”. Third, the

testimony of Janet Ryan, the barmaid who suddenly

remembered Lambert as having put the gun in her face,

identifying him on Reese’s case only “from the nose up”

(although she told the police at the time of the murders that

she “didn’t even get a look at the man”) after failing to

identify him on the Commonwealth’s case because “nobody

asked me,” was, in a word, bizarre. (A2824, 2844, 2940-41).

These examples are precisely the types of evidence which can

undermine a court’s faith that the verdict in question is

“worthy of confidence.” Kyles, 514 U.S. at 434. Finally, and

for what it is worth (perhaps Jackson saw the havoc his

testimony had wrought), we note the post-trial proffer of

Jackson’s affidavit, in which he says that Reese was the

shooter and that Ryan was a friend of Reese’s family and

would never testify against Reese. The affidavit was rejected

by the trial court as untimely and not in proper form. See

Lambert I, 603 A.2d at 572.

15

VI. Conclusion

The judgment of the District Court is vacated, and this

matter is remanded. The District Court is directed to

conditionally grant the petition for a writ of habeas corpus.

The Commonwealth shall retry Lambert within 120 days. If

it fails to do so, Lambert shall be released.

16