Petition for Writ of Certiorari — Strickler v. Greene

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No. 97 - v/

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

TOMMY DAVID STRICKLER,

Petitioner-Appellant,

Vv.

RONALD ANGELONE, Director,

Virginia Department of Corrections,

Respondent-Appellee.

On Petition For A Writ of Certiorari To the

Court Of Appeals For The Fourth Circuit

RECE, V

ED

HAND DELIVERE_,

SEP - 1 jo,

PETITION FOR A WRIT OF CERTIORARI

Imminent Execution Scheduled

OFFICE OF THE Cicer

September 16, 1998 SUPREME court. Ri

—

Mark E. Olive Barbara L. Hartung

Virginia Capital Representation (Counsel Of Record)

Resource Center 1001 East Main Street

1001 East Main Street, #510 Suite 504

Richmond, VA 23219 Richmond, VA 23219

(804) 643-6845 (804) 649-1088

Counsel For Petitioner

CAPITAL CASE

QUESTION PRESENTED

Whether the government’s duty under the Due Process Clause

and Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, to

disclose favorable evidence to the defense is limited by a due

diligence exception imposed on defense counsel. If so, is the due

diligence exception applicable only to evidence readily available to the

defense in a public forum.

ii "

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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ii. eS lie pile web e- 6 o-66 CA Wee wT eS & Kes 6. 3

iii. ee ee en E.'s hon 0-0" S00 wes © 9 ab 0 0s 2 0-08 3

iv. The Federal District Court Proceedings ............ 0055000. +

v. The Decision Of The Fourth Circuit

ee cs Sass eh pote pate aba he teabee es 6 os 4

ee I ts ek, bk os Wad cme Shs whe sa ee ees 4

i. Se EE SE IE, Sete ee reece se naerivesiess +

ii. rs as bn cpe es Meee ee ehh wees bees eee 6

iii. The State’s Failure To Disclose Under Brady ..............4.. 11

iv. The District Court Grants The Writ... 2... 6. eee eee 12

v. ES ar oe ea a 14

iii

Ae Fue Cee BOE WEEE “i's boii ee wk be ww EO Ve baween’ 14

The Fourth Circuit’s "Due Diligence" Exception To The

State’s Duty Under The Due Process Clause To Disclose

Favorable Evidence, Based On Unsupported Speculation That

The State Habeas Court Might Have Ordered Disclosure Of

Privileged Police Documents Unknown To And Unavailable To

The Defense, Conflicts With The Decisions Of Every Other

Circuit And With This Court’s Decisions .........00 cee ecccecvccucs 15

A. There Is No "Due Diligence" Exception To The State’s

Duty To Disclose Exculpatory Evidence ............00000ceeuees 16

B. The Standard Adopted By The Fourth Circuit By Which

Due Diligence Must Be Assessed Is Incompatible With

ee ED boi a'o bs bo Fer oh wks bo oo oewekhbee 21

c. If The Exception Exists, The Burden Must Be On The

State To Demonstrate That Counsel Would Necessarily

Have Discovered The Exculpatory Evidence Through

kG PT Re ey tee PON Ol ee ee 27

D. The Suppressed Evidence And Stoltzfus’ Testimony Were

Material, and The District Court Decision Was Correct .............. 32

OTE. PEED ee Ce TEM Ce ES CE IE AIR a OEM 35

iv

TABLE OF AUTHORITIES

Cases Page

i 31

Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) 2... 2... eee 16, 26

Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995), cert. denied,

Mammen vy. Mathariond, S16 U.S. 972 (1995) 2... cece cece 24

EE ee Se 20

EE, ok od oo k's ceca ceceuceusrnovcece passim

rs i MD <n ese kp bee cee ces cebccicecece. 31

rr nr wh. ss. oto behebascdeeecss Ohoceese. 31

Epperly v. Booker, 997 F.2d 1 (4th Cir.), cert. denied, 510 U.S. 1015 (1993) ......... 24

Hoke v. Netherland, 92 F.3d 1350 (4th Cir.), cert. denied, 117 S. Ct. 630 (1996) ....... 24

St I, DD ee SON CUR, BOUND ow ccc ccc cece cr ccccees 29

I EO, MD gk kt cc cc cccuebececcccunees 28

EL EE ee passim

Levin v. Katzenbach, 363 F.2d 287 (D.C. Cir. 1966) ...... 0... .0.00 0055, 16, 22, 26

meee. Bee, GES F.28 7 (iat Cir. 1982)... eee ccc eens 15, 17, 25

Marshall v. United States, 436 F.2d 155 (D.C. Cir. 1970) .... ee eee, 26

i Ss oo occ Cha bb ecto wee biebaweecnccceces 19

i ED /'. as os cig etinkech Oe ceeseebeccecoe 31

Mustread v. Gilmore, 966 F.2d 1148 (7th Cir. 1992) ©... ce ee 25

Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970) ©... 2. ee 29

Routley v. Singletary, 33 F.3d 1279 (11th Cir. 1994)... eee 26

Vv

Cases Page

: ions, 50 F.3d (10th Cir.), cert. denied,

Mondragon v. Smith, 516 U.S. 905 (1995)...................2....... 21

Strickland v. Washington, 466 U.S. 668 (1984) ............................ 30

Strickler v. Commonwealth, 404 S.E.2d 227 (Va.), cert.

denied, Strickler v. Virginia, 112 S. Ct. 386 (1991) ...................... 3

Strickler v. Murray, 452 S.E.2d 648 (Va.), cert. denied,

Strickler v. Angelone, 116 S. Ct. 146 (1995) ....................... 3, 33

Strickler v. Pruett, No. 97-29 (4th Cir. June 17, 1998) ..................... passim

Stockton v. Murray, 41 F.3d 920 (4th Cir. 1994), cert.

ey OD so PE BOL no a bocce ok'b0 cob cae 23, 24, 27

Thomas v. Goldsmith, 979 F.2d 746 (9h Cir. 1992) ......................... 28

United States v. Agurs, 427 U.S. 97 (1976) ....................--.... 17, 26, 31

United States v. Agurs, 510 F.2d 1249 (D.C. Cir. 1975), rev'd

ry 16, 22

United States vy. Bagley, 473 U.S. 667 (1985)... 2... eee eee, passim

United States v. Bermudez, 526 F.2d 89 (2nd Cir. 1975), cert. denied,

Bermudez v. United States, 425 U.S. 970 (1970) ....................... 25

741 F.2d 730

i SC tet aee GEMM ee 25

United States v. Hedgeman, 564 F.2d 763 (7th Cir. 1977), cert. denied,

Hedgeman v. United States, 434 U.S. 1070 (1978) ................... 16, 18

vi

Cases Page

ic, 768 F.2d 602 (Sth Cir. 1985), cert. denied,

McKenzie v. United States, 474 U.S. 1086 (1986) ...................... 25

United States v. Meros, 886 F.2d 1304 (1ith Cir. 1989) .................. 26, 27, 30

United States v. Milstead, ©, i F.2d 950 (Sth Cir. 1982) ....................... 25

United States v. Morris, 80 F.3d 1151 (7th Cir. 1996), cert. denied,

Morris v. United States, 117 S. Ct. 181 (1996) ..................2--... 15

United States v. Payne, 63 F.3d 1200 (2d Cir. 1995), cert. denied,

I 15, 25

United States v. Perdomo, 929 F.2d 967 (3d Cir. 1991) .................... 15, 25

United States v. Prior, 546 F.2d 1254 (Sth Cir. 1977). ................... 25, 26, 27

United States v. Ramirez, 810 F.2d 1338 (Sth Cir. 1987), cert. denied,

Ramirez v. United States, 484 U.S. 844 (1987) ........................ 25

United States v. Shelton, 588 F.2d 1242 (9th Cir. 1978),

cert. denied, Shelion v. United States, 442 U.S. 909 (1979) ........ 16, 18, 25, 27

United States v. Soblen, 301 F.2d 236 (2d Cir. 1961),

ES ES Oe REE ESR. ote 25

United States v. Spagnuolo, 960 F.2d 990 (11th Cir. 1992) .................. 26, 27

United States v. Todd, 920 F. 399 (6th Cir. 1990)... ..................... 15, 25

United States v. Valera, 845 F.2d 923 (11th Cir. 1988), cert. denied,

Valera v. United States, 490 U.S. 1046 (1989) ..................... 15, 26

United States v. White, 970 F.2d 328 (7th Cir. 1992) .... 2... 0... ce eee ee. 25

United States v. Wilson, 901 F.2d 378 (4th Cir. 1990) ..................... 23, 24

Westley v. Johnson, 83 F.3d 714 (Sth Cir. 1996), cert. denied,

es is ne wees braid a hod ib ds ile sid ek Pe once lk 15

Williams v. Scott, 35 F.3d 159 (Sth Cir. 1994),

a rrr 2 ool als 6 Cle o chee suewbbbkks«ts. 25

Cases

Wood v. Bartholomew, 116 S. Ct. 7 (1995)

Yeatts v. Murray, 455 S.E.2d 18 (Va. 1995)

28 U.S.C. sec. 1254(1)

Va. Code Sec. 2.1-342(B\(1)

Va. Code Sec. 8.01-654.1

Va. Code Sec. 15.2-1722

Va. Code Sec. 18.2-31

Va. Code Sec. 19.2-264.2

Va. S. Ct. Rule 3A:11(6)(2)

Va. S. Ct. Rule 4:1(6)(5)

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

vii

Sizickler v. Pruett, No. 97-29 (4th Cir. June 17, 1998)

Strickler v. Netherland, No. 3:95CV924 (E.D. Va. Dec. 10, 1996)

Strickler v. Netherland, No. 3:95CV924 (E.D. Va. Jan. 16, 1997)

Strickler v, Netherland, No. 3:95CV924 (E.D. Va. Oct. 15, 1997)

Relevant Virginia Statutes And Rules

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No. 97 -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

TOMMY DAVID STRICKLER,

Petitioner-Appellant,

Vv.

RONALD ANGELONE, Director,

Virginia Department of Corrections,

Respondent-Appellee .

On Petition For A Writ of Certiorari To the

Court Of Appeals For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Imminent Execution Scheduled

September 16, 1998

Tommy David Strickler ("Petitioner"), a Virginia capital inmate, respectfully petitions for

a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth

Circuit, reversing the district court's grant of his petition for a writ of habeas corpus.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth Circuit is unpublished and is reprinted

at Appendix A. The unpublished opinions of the United States District Court for the Eastern District

of Virginia, Richmond Division, appear at Appendices B, C, and D.

JURISDICTION

The opinion of the United States Court of Appeals for the Fourth Circuit was issued on June

17, 1998, and the petition for rehearing was denied on July 14, 1998. A motion to stay the mandate

and for a stay of execution was denied on July 30, 1998. This Court's jurisdiction is invoked under

28 U.S.C. sec. 1254(1).

The Fifth and Fourteenth Amendments to the United States Constitution provide in relevant

No person shall be . . . deprived of life liberty, or property, without due process of

law [.]

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shal] any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

This case also involves portions of Virginia's capital and habeas statutes, see Va. Code Ann.

sections 8.01-654.1-6, 18.2-31, 19.2-264.2, and Va. S. Ct, Rules 3A:11(b)(2) and 4:1(b)5),

reprinted in Appendix E.

STATEMENT OF THE CASE

On January 5, 1990, Leanne Whitlock disappeared along with the blue car she had borrowed

from her boyfriend, John Dean. On January 13, 1990, her nude body was discovered in a wooded

area in Augusta County, Virginia. She died from multiple head fractures.

A. — Procedural History

i) The Trial and Sentence: Strickler was arrested on January 11, 1990, and,

based on his possession of Dean’s car, charged with grand larceny in neighboring Rockingham

County. The prosecution was later transferred to Augusta County, On February 27, 1990, Strickler

was indicted in the Circuit Court of Augusta County on one count of abduction and one count of

robbery. JA 20-23’. On April 23, 1990, he was indicted for the capital murder of Whitlock during

the commission of “robbery, rape or abduction with the intent to extort money or a pecuniary

benefit." JA 20. Va.Code sec. 18.2-31.

In June, 1990, Strickler was tried by a jury and convicted of capital murder, robbery, and

abduction, JA 1278-80, The jury sentenced Strickler to death based on the two statutory

aggravators--future dangerousness and vileness. Va.Code. sec, 19.2-264.2. The court imposed the

death sentence on September 19, 1990, in addition to two life sentences for robbery and abduction.

A co-defendant, Ronald Henderson, was charged with the same offenses in separate

indictments but had not been arrested prior to Strickler’s trial. Henderson was apprehended after

Strickler’s conviction and was granted a change of venue. Henderson was tried in March, 1991,

convicted of first degree murder, and sentenced to life. JA 1086.

ii) The Direct Appeal: The Virginia Supreme Court affirmed the conviction and sentence

on direct appeal on April 19, 1991. Strickler v. Commonwealth, 404 S.E.2d 227 (Va. 1991).

Petition for certiorari was denied. Strickler v. Virginia, 112 S. Ct. 386 (1991).

iii) The States Habeas Proceedings: Strickler filed a state habeas petition with the Circuit

Court of Augusta County. JA 467-517. The court denied all motions for expert and investigative

assistance and dismissed the petition shia an evidentiary hearing in September, 1993. JA 638-41.

The Virginia Supreme Court granted a limited appeal on trial counsel’s failure to object to the

defective jury instruction on capital murder. The instruction included a predicate offense--abduction

with intent to defile--that did not by statute support a capital conviction. Finding no prejudice from

counsel's performance, the Court affirmed the denial of the writ. Strickler vy. Murray, 452 S.E.2d

648 (Va. 1995). Petition for a writ of certiorari was denied. Strickler v. Angelone, 116 S. Ct. 146

' "JA" refers to pages of the Joint Appendix filed in the United States Court of Appeals.

3

(1995).

iv) istri ings: On May 20, 1996, Strickler filed an amended

federal habeas petition in federal district court. JA 705-835. A motion to dismiss was filed in June,

1996. On December 10, 1996, the district court granted an evidentiary hearing on eight claims and

dismissed the remainder. App. B; JA 944-74. On a motion for reconsideration, the district court

dismissed five additional claims and reaffirmed the grant of a hearing on the claims of ineffective

assistance of counsel, suppression of Brady material, and denial of due process and a fair trial on

January 16, 1997. App. C; JA 990-94. Strickler conducted discovery in preparation for the

hearing. Based on the evidence produced, Strickler moved for summary judgment on his Brady and

fair trial claims. JA 995-1057. The Warden submitted a cross-motion fur summary judgment

alleging procedural default and opposed Strickler’s motion on the merits. JA 1058-65. On October

15, 1997, the district court granted Strickler’s motion for summary judgment on both claims and

vacated his conviction and death sentence. App. D; JA 1233-56.

v) The Decision Of The Fourth Circuit Court Of Appeals: Respondent appealed to the

United States Court of Appeals for the Fourth Circuit. That Court reversed the district court.

Strickler v. Pruett, No. 97-29 (June 17, 1998). Petitioner’s motion for rehearing and suggestion for

rehearing en banc were denied on July 14, 1998. App. A. His motion to stay the mandate and for

a stay of execution was denied on July 30, 1998. App. A. Petitioner is scheduled to be executed

on September 16, 1998.

B. PACTS OF THE CASE

i. The Relevant Trial Testimony

Anne Stoltzfus testified that she witnessed the abduction of Whitlock from the parking lot of

a Harrisonburg shopping mall. On January 5, 1990, Stoltzfus went to the mall with her daughter.

JA 92. Around 6 p.m. she saw two men and a woman at the Music Land store. One of the men

was “revved up" and impatient. JA 93. She described the physical features of the three and their

clothing. JA 94-96. Stoltzfus left the store, saw the trio inside the mall, and spoke briefly to the

woman. JA 96. Shortly thereafter, Stoltzfus and her daughter were in their car and stopped in the

parking lot when a car came by. Stoltzfus described the driver, a black woman, as “a rich college

kid," “beautiful,” “well dressed," “happy,” “singing” and “bright eyed." JA 99. Stoltzfus got a

good look at her and identified the driver as Whitlock. JA 99-100.

Whitlock pulled in front of Stoltzfus and stopped for traffic. The "revved up" man from the

music store, whom Stoltzfus later identified as Strickler, came out of the mall and banged on vehicles

in front of Whitlock’s car. He then pounded on Whitlock’s passenger side window, yanked the car

door open, and sat facing her. She tried to push him away. JA 102-03. The second man, later

identified as Henderson, and the blonde woman, seen earlier in the mall, tried to enter the car.

Whitlock accelerated and “laid on the horn." JA 103. Strickler hit Whitlock repeatedly on her

shoulder and head. The car stopped, Strickler opened the passenger door, and the other two got into

the back seat. JA 103. The Henderson handed his coat to Strickler who put it on the floor and

“fiddled with it [for] what seemed like a long time." JA 104. Whitlock was “totally frozen." JA

104, gabe

Stoltzfus pulled parallel to Whitlock’s car, got out, and walked over to look. Henderson

"laid over on the seat to hide from me." JA 105. Stoltzfus returned to her car, faced Whitlock, and

then asked her three times “Are you O.K." Each time Whitlock looked at Stoltzfus and then looked

down to her right. JA 105. Whitlock mouthed a word that Stoltzfus did not understand. She then

realized Whitlock had said "help." JA 106. Stoltzfus pulled away and told her daughter to go inside

the mall and get mall security. The daughter refused. JA 106. Whitlock drove past Stolizfus very

slowly, “went up over the curb . . . so the car really tilted," and “laid on the horn again." JA 107.

Stoltzfus told her daughter to write the license number on an index card. Stoltzfus remembered the

plate, West Virginia NKA 243, with a trick, "No Kids Alone 243." JA 108. Whitlock drove off

onto Route 33. Stoltzfus went home and never called the police. JA 109-110. At trial, she

identified police photographs of the blue car Whitlock had been driving. JA 108.

The prosecutor argued that Stoltzfus’ testimony established Strickler’s commissioa of

abduction and armed robbery, predicates to capital murder. JA 438-39. Stoltzfus repeated her

testimory at Henderson's trial several months later.

Although Stoltzfus claimed to have witnessed this dramatic event, she never contacted the

police despite massive media coverage of Whitlock’s disappearance, the discovery of her body,

Strickler’s arrest, and an interstate search for Henderson. Based on a tip, Stoltzfus was first

interviewed two weeks after Whitlock’s disappearance by Det. Claytor of the Harrisonburg police.

Claytor prepared notes and reports of his interviews. In addition, Stoltzfus sent Claytor letters and

notes she prepared after meeting with Claytor. JA 1010-11. Throughout state court proceedings,

these documents were never disclosed but were held in the Harrisonburg police files. As detailed

below, they contained exculpatory and impeachment material.? Stoltzfus refused to meet with

Strickler’s investigator before trial. JA 1195-96. Her trial testimony contained no hint that she had

given contradictory statements to the police.

ii) The Stoltzfus Materials

Stoltzfus’ statements and writings to Claytor contradicted her trial testimony in material

respects.

* The documents were discovered by federal habeas counsel in 1996 pursuant to an Order of the district court

permitting counsel to examine and copy all police and prosecution files. A change in state habeas law barred

Strickler from presenting his Brady claim to the state court. Va. Code sec. 8.01-654.1.

6

re —

ee

a) Exhibit 1 is a one page document containing Claytor’s handwritten notes of his initial

January 19, 1990 interview with Stoltzfus. JA 1031. The notes read in part:

Can’t ID B/F

ist W/M

Can ID W/F 5’05" - 140 (little overweight) Blue Jean

brown shoulder Plain Face (Pail)

2d W/M Tall - Dark Hair

Cream Jacket

In her trial testimony, Stoltzfus contradicted her initial account to Claytor stating: "I gave

detailed descriptions of the three persons[.]" JA 118. Yet in her initial interview she could not

identify Strickler, describe him or his clothing, or describe the black female. At trial, she also

described the black female in detail. At trial, she could not identify the white female. JA 120.

Stoltzfus’s trial description of the second white male was radically expanded and embellished. JA

93-94.

b) Exhibit 2 is a six page, typed report of Claytor’s interviews with Stoltzfus. JA 1033-38.

The report of interviews on January 19 and 22, omitted the statement in Exhibit 1 that Stoltzfus

could pot identify the black female and the first white male. It indicated Stoltzfus was "not sure" if

she could identify the two white males but that she could identify the white female. JA 1035. At

trial, she testified that she was “one hundred percent sure" of her identification of Strickler. JA 117.

She testified that she “picked [the] two [men] with absolute certainty and the third [person] with a

slight reservation." JA 117. The report contained no description of the clothing of the black female

or of the first white male and stated only that the second white male had a cream colored jacket.

Contrary to her trial testimony and Exhibit 1, Stoltzfus claimed she might have seen the same

white female and one white male inside the mall before the abduction, but said nothing about an

encounter with the blonde woman and two white males in the music store. Stoltzfus did not recall

the license number of the car, saying only that it was dark blue with West Virginia tags. When

7

shown photo spreads by Claytor, Stoltzfus had stated only that Strickler and Henderson "resembled"

the men she saw.

Exhibit 2 also stated that Stoltzfus was taken to the police impound lot on January 24, 1990,

and shown the car Whitlock had been driving. JA 1037. The next day, Stoltzfus advised the police

that she now recalled the license number, NKA-243, and "had made up a quote to help remember

the license number after the incident, "No Kids After 2-43.’" Stoltzfus also told Claytor that

although her daughter had been with her at the mall, the daughter did not see anything. JA 1035.

c) Exhibit 3 entitled "Observations" with diagrams of the abduction was given to Claytor

by Stoltzfus on January 19, 1990 at 1 p.m. JA 1040-41, 1186. She did not describe the black

female, her clothing, or the first white male other than "scroungy bum-type, W.Va. hick with long

scraggly blondish hair." Stoltzfus described a dark blue, new sports car with West Virginia tags but

gave no license number. She said nothing about the black female mouthing the words "help" or any

suggestion that the first white male had a weapon. Stoltzfus did not report that she got out of her

vehicle to speak to Whitlock.

d) Exhibit 4 is a typed letter, dated January 22, 1990, to Claytor and signed by Stoltzfus.

JA 1043-45. The letter contradicted her subsequent trial testimony. Stoltzfus stated that she initially

had no memory of being at the mall on the night of Whitlock’s disappearance:

I want to clarify some of my confusion for you. First of all, I tend to remember

things in pictures rather than in over-all logical constructs. When I didn’t remember

any Mall purchases, I didn’t remember being there. But my 14-year-old daughter

Katie remembers different things and her sharing with me what she remembers

helped me jog my memory. [JA 1043].

Her "memories" were based on her daughter’s recollections. Stoltzfus related her visit to the record

store in the mall but omitted any mention of the encounter with Strickler, Henderson, and the

unidentified blonde woman that she testified to at trial. JA 1044. The letter contains no description

a+ a + ee en eee

of the features or clothing of the black female, the two white males, or the unidentified white female.

Stoltzfus was also very

uncertain of what she “saw" in the parking lot, in direct contrast to her trial testimony:

have a very vague memory that I’m not sure of. It seems as if the wild guy that

I saw had come running through the door and up to a bus as the bus was pulling off.

I have impressions of intense anger, of his going back to where the dark haired guy

and m2 were standing. then the guy I saw — running up to the black girl’s

I’m sorry my initial times were so far off. First | remembered it being dark and

remembered driving on past Leggetts and not going in. I placed the time around

re small Comserpolat yuschens and I knew that if that happened vein 5 I could

trace our path from there. [JA 1045].

Stoltzfus did not report the car’s license number or her trick for remembering it. Exhibit 4 contained

both exculpatory and impeachment material that was not contained in any other document.

¢) Exhibit 5 is an undated, typed document entitled "Notes for Det. Claytor: My Impressions

of The Car (Anne Stoltzfus)." JA 1047. This document contained no information about the license

plate or license number. The car was described as "dark blue(navy) and shiny," American, and

“about the size of a Buick Skyhawk." It was no longer a sports car. Stoltzfus "think[s] it was a

two-door" but was not sure.

f) Exhibit 6 is a handwritten note to Det. Claytor from Anne Stoltzfus dated 1-25-90, 1:45

a.m. JA 1049. Stoltzfus reported that she spent "several hours" with Whitlock’s boyfriend viewing

photographs of Whitlock and was now certain Whitlock was the black girl Stoltzfus saw on January

5, 1990. Her identification and description at trial were probably based on these photographs and

not on any “memory" of January 5, 1990.

g) Exhibit 7 is a typed letter (2 pages) dated January 26, 1990, to Det. Claytor and signed

by Anne Stoltzfus. JA 1051-52. This letter contained Stoltzfus’s first description of the encounter

with the two white males and the unidentified female at the music store and her first description of

the clothing of the first white male. Stoltzfus reported that six to eight people in the mall and a

couple people in the parking lot witnessed Whitlock’s abduction. The letter concludes:

Thank you for your patience with my sometimes muddled memories. I know if |

believed at the time that | was witnessing a crime I would have much, much more

vivid memories. I really didn’t believe that’s what I saw until I saw Leanne’s

pictures. In fact, I’m sure that if Kim Davis hadn’t called the police and that other

detective hadn’t come to JMU and asked me to come in and talk to you, | never

would have made any of the associations that you helped me make. [JA 1052.]

The January 26, 1990, letter directly contradicted the January 22, 1990 letter and was

inconsistent with the contents of her initial interviews with Claytor. The letter graphically

demonstrated how her testimony evolved into that given at Strickler’s trial.

h) Exhibit 8 (3 pages) is a typed document, undated, signed by Anne Stoltzfus entitled

"Details of Encounter With Mountain Man, Shy Guy & Blonde Girl." JA 1054-56. This document

expanded on the January 26th letter and contained additional details that were ultimately included in

Stoltzfus’s trial testimony. Stoltzfus reported that once everyone was in Whitlock’s car, the second

white male transferred his coat to the first white male who was seated next to Whitlock and he

"fooled with it for a while." For the first time, Stoltzfus claimed she got out of her car and walked

over to Whitlock’s car to speak with her. For the first time, Stoltzfus reported that her daughter

wrote the West Virginia license number, NKA-243, on a card that Stoltzfus later threw away. For

the first time, Stoltzfus reported that Whitlock directed her eyes towards her side on three occasions,

and Stoltzfus wondered if there was a gun or knife held to her side. Stoltzfus reported seeing a

picture of the car in the newspaper after learning of Whitlock’s disappearance but claimed that she

had not associated these facts with the events she witnessed. At trial, she denied seeing any news

accounts of Whitlock’s disappearance. JA 114, 119.

10

iii)

Strickler, and later Henderson, were prosecuted by the Augusta County Commonwealth's

Attorney, Lee Ervin. Ervin had an “open file" policy. Defense counsel for both Strickler and

Henderson reviewed Ervin’s files. The Stoltzfus materials were not in Ervin’s files when counsel

reviewed the files prior to the June. 1990, and March, 1991, trials. JA 1023-29; 1086-89.

Counsels’ cross examination of Stoltzfus at Strickler’s trial, and later Henderson's, did not employ

any of the Stoltzfus materials. JA 110-26; 1138-50. Counsel would have used these materials to

impeach Stoltzfus if they had been available. JA 1024, 1088.

The prosecutor, Ervin, admitted during federal habeas discovery that he had never seen five

of the documents. He did have three of the documents prior to the two trials. Ervin believed the

three documents (exhibits 2, 7, and 8) had been in his “open” file for counsels’ examination and

copying. JA 1190-93.

In state habeas, Strickler argued in part that his counsel had been ineffective for failing to

make a formal, pretrial Brady motion. JA 472. The Commonwealth responded that all Brady

materials had been in the prosecutor's “open file" and that counsel had been given everything Brady

required:

From the inception of this case, the prosecutor's files were open to the petitioner's counsel.

Each of the petitioner's attorneys made numerous visits to the prosecutor's offices and

ee er. - Geen shat conan

seat een ieee aatien, Sip petibuned bao Seite to guatoe eng ennelputery or Srveschie

evidence of which trial counsel were unaware.

Brady, can [Strickler] show prejudice.

JA 542-43 (emphasis added). In state habeas, the Warden also submitted the sworn affidavit of

Strickler’s trial counsel, Bobbitt and Roberts, who stated that “the prosecutor's office . . . gave us

ll

full access to their files and the evidence they intended to present. We made numerous visits to their

office to examine these files{.|" JA 611. Thus, the Warden persuaded the state habeas court to deny

a hearing on the ineffectiveness claim, where the documents might have been disclosed, based on

the representation that all Brady material had been provided to trial counsel and a pretrial Brady

motion was unnecessary.

As Strickler had no access to or knowledge of the Stoltzi.. :saterials, he did not present any

state habeas claim based on their suppression. Strickler had moved for the appointment of an

investigator and various experts to assist in the development of his state habeas petition. JA 624.

The Commonwealth opposed these motions arguing that there was no right to such assistance in state

habeas. JA 627-35. The petition and all motions were denied without a hearing. JA 638-41.

iv) The District Court Grants The Writ

In federal habeas, Strickler alleged for the first time that his constitutional rights under Brady

y. Maryland, 373 U.S. 83 (1963), were violated by the state's suppression of the Stoltzfus materials.

JA 787. The district court held that Strickler had demonstrated cause for his failure to raise the

claim in state court. App. B at 23-24. The district court found that Strickler “nad no independent

access to this material and the Commonwealth repeatedly withheld it throughout Petitioner's state

habeas proceedings.” App. C at 4.

The district court found that five documents (exhibits 1, 3, 4, 5, and 6) were never disclosed

to defense counsel or to the prosecutor’, App. D at 18-19. These documents remained in a

nonpublic file of the Harrisonburg police throughout state court proceedings. |d.at 16-17. The

prosecutor had an open file policy during both Strickler’s and Henderson's trials and defense counsel

* The district court concluded that it need not resolve the dispute concerning exhibits 2, 7 and 8, where the

failure to disclose the remaining five documents constituted a Brady violation. JA 1244.

12

had “full access" to that file. Claytor recalled distributing only exhibit 2 to the Rockingham

prosecutor and had no recollection of distributing any of the other documents. |g. at 18. In view

of these facts, the district court found that the recollections of Strickler’s co-counsel, Roberts,

concerning possible knowledge of the contents of Stoltzfus’ documents were “much too vague and

insufficient to create a genuine dispute" about the disclosure of these five documents. |d. at 20. The

district court also found that a newspaper story on June 17, 1990, containing a pretrial interview with

Stoltzfus “contain{ed] virtually none of the information contained in the Stoltzfus materials|.|" Id.

at 21. The district court found that the Warden had “not offered evidence to show that the

abundance of information in the Stoltzfus materials were provided to Strickler or wou'd have been

available to him through diligent investigation." Jd. The district court found that the prosecutor was

on notice that several separate police departments and jurisdictions had investigated the Whitlock

murder and that relevant materials might be coniained in their files. As a result of the state's

actions, the five Stoltzfus documents were never disclosed to Strickler. These factual findings are

not clearly erroneous.

The district court found that the Stoltzfus materials contradicted or impeached the witness's

trial testimony “in many crucial respects." Jd. at 6. The court concluded that the documents taken

as a whole provided “potentially devastating impeachment material, casting doubt on her testimony."

Id. at 11. The Commonwealth had argued at trial that Stoltzfus, the only eyewitness, established

both the abduction and armed robbery predicates for the capital murder count. The district court

held that the documents were material under Brady and rejected the Warden's argument that

Stolizfus’ testimony was irrelevant to Strickler's conviction. Jd, at 11-15. The district court granted

Strickler’s motion for summary judgment on the Brady claim and the denial of a fair trial claim,

vacating his conviction and sentence. The Warden appealed.

13

vy)

The Court of Appeals excused the prosecutor's failure to disclose the Stoltzfus materials first

at the time of trial and later during the state habeas proceedings. The Court held that Strickler had

procedurally defaulted the claim when he had failed to file a discovery motion in state habeas for

production of the Harrisonburg police files, citing Va.S.Ct. Rule 4:1(b\(5).* Because state habeas

counsel did not exercise the "reasonable diligence” required under Brady, Strickler “cannot establish

cause [to excuse default] based upon the unavailability of the Brady claim.” App. A at 13, 21-22.

The Court also rejected Strickler’s argument that trial counsel was constitutionally ineffective when

he failed to make a Brady motion at trial, thus demonstrating cause. Given the prosecutor's open

file policy, “trial counsel were under no obligation to file a Brady m-xion." [d. at 23. Pinally, the

Court concluded that the documents were not “material” because there was no “‘reasonable

probability’ of a different result" if they had been disclosed, |d, at 23-24.

REASONS FOR GRANTING THE WRIT

The Fourth Circuit's decision conflicts with that of every cther Circuit Court of Appeals,

doshas tenpastant Gotesth quecilens te ways cstsrery to docidlinn of thls Coun, end co tee Cops

from the accepted and usual course of judicial proceedings as to call for an exercise of this Court's

power of supervision.

Strickler presents the classic Brady scenario--material impeaching a key prosecution witness

held in privileged, undisclosed police files. The Fourth Circuit's decision limiting the State's

obligation to disclose exculpatory evidence to those circumstances in which the defense could not

have obtained the evidence itself, under any scenario, is irreconcilable with this Court's recent

* ‘The State did not rely om this Rule in the district court or on appeal. The Rule was raised by the Fourth

Circuit sua spopie in its decision.

14

restatement of established law in Kyles v, Whitley, 115 S. Ct. 1555 (1995). The Court below has

abandoned the principle that prosecutors should be encouraged to disclose favorable evidence,

thereby “preserving the criminal trial, as distinct from the prosecutor's private deliberations, as the

chosen forum for ascertaining the truth about criminal accusations {citation omitted]," id, at 1568,

in favor of a rule that insulates prosecutors from the consequences of their decisions to suppress

evidence provided some method by which the evidence might have been obtained by the defense can

be constructed.

In adopting this rule, the Fourth Circuit decided a question thai has split the Circuits--whether

there is a “due diligence” exception to Brady--in a way that goes far beyond the limits imposed by

any Circuit that recognizes the exception.

I. THE FOURTH CIRCUIT'S “DUE DILIGENCE" EXCEPTION TO THE STATE'S DUTY

UNDER THE DUE PROCESS CLAUSE TO DISCLOSE EXCULPATORY EVIDENCE,

BASED ON UNSUPPORTED SPECULATION THAT THE STATE HABEAS COURT

MIGHT HAVE ORDERED DISCLOSURE OF PRIVILEGED POLICE DOCUMENTS

UNKNOWN TO AND UNAVAILABLE TO THE DEFENSE, CONFLICTS WITH THE

DECISIONS OF EVERY OTHER CIRCUIT AND WITH THIS COURT'S DECISIONS.

The Courts of Appeal in nine circuits have held that a “due diligence" exception exists to the

State’s obligation under the Due Process Clause to disclose exculpatory evidence to a criminal

defendant. Each of those Circuits, except the Fourth Circuit, has limited that exception to cases in

which the evidence was known by or fully available to the defense or in which the defense actually

had all the information needed to produce the evidence itself. See Lugo v. Munox, 682 F.2d 7, 9-10

(ist Cir. 1982); United States v. Payne, 63 F.3d 1200, 1208-09 (2d Cir. 1995); United States v.

Perdomo, 929 F.2d 967, 973 (3d Cir. 1991); Westley v. Johnson, 83 F.3d 714, 725-26 (Sth Cir.

1996); United States v. Todd, 920 F. 399, 405 (6th Cir. 1990); United States v. Morris, 80 F.3d

1151, 1170 (7th Cir. 1996); United States vy. Davis, 785 F.2d 610, 618 (8th Cir. 1986); United

States v. Brown, 562 F.2d 1144, 1151 (9th Cir, 1977); United States vy. Valera, 845 F.2d 923, 927-

15

28 (11th Cir. 1988).

Two Courts of Appeals, the D.C. and Tenth Circuits, have explicitly rejected the idea of any’

such exception. Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995),

,

510 F.2d 1249, 1253 (D.C. Cir. 1975)(citing, Levin v. Katzenbach, 363 F.2d 287, 291 (D.C. Cir.

1966)), rev'd on other grds, 427 U.S. 97. Two other Circuits, the Seventh and the Ninth, have

conceded the logic of that position, while adopting a highly restrictive rule of "diligence" to avoid

blatant "gamesmanship" by defendants. United States v. Hedgeman, 564 F.2d 763, 768 (7th Cir.

1977); United States v. Shelton, 588 F.2d 1242, 1250 (9h Cir. 1978). In reality, there is little

difference in the positions of these two Circuits and of the D.C. and Tenth Circuits. Based upon the

resulting lack of materiality, the Tenth Circuit has also held that no constitutional violation occurs

where the defense actually has the evidence. Compare, Banks, 54 F.3d at 1517, with United States

y. Davis, supra, and United States v. Brown, supra. Thus, eleven Circuits have addressed an

important constitutional issue with significantly varied results.

Petitioner urges that certiorari should be granted for three independent reasons. First, the

adoption of a "diligence" exception by a majority of the Courts of Appeals is fundamentally

inconsistent with this Court’s Brady jurisprudence. Second, the breadth of the exception adopted in

this case by the Fourth Circuit is without precedent. Third, contrary to the decision below, the

burden of demonstrating the applicability of any such exception must fall on the government.

A. * " ,

Exculpatory Evidence.

The decision in this case effectively destroys a constituticnal right that seemed long settled.

Although this Court in Kyles v. Whitley, 115 S. Ct. 1555 (1995), provided a comprehensive review

of the applicable law, it made no mention of a “due diligence" exception. According to Kyles, if

the evidence is exculpatory and material, it must be disclosed. Jd. at 1565.

16

So

Bagley held that regardless of request, favorable evidence is material, and

from its suppression by the government, “if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different."

ld. (emphasis added), quoting, United States v. Bagley, 473 U.S. 667, 682. In each of its cases,

this Court has set forth the rule in unambiguous terms, ¢.g., Brady, 373 U.S. at 87; Bagley, 473

U.S. at 669, quoting, Brady, supra, further addressing only the question of what, if any, action by

the defendant is required to trigger the State's obligation and clarifying the definition of materiality.

See, discussion, Kyles, 115 S.Ct. at 1565.

None of this Court's decisions has said, much less held, that the prosecution's duty is affected

by the prospect that the defense might be able to find the evidence itself." As the Tenth Circuit

held:

independent of the defendant's knowledge. Simply stated, "[i}f the prosecution

possesses evidence that, in the context of a particular case is obviously exculpatory,

then it has an obligation to disclose it to defense counsel whether a general request

is made or whether no request is made." Smith v. Secretary of N.M. Dep't of

Corrections, 50 F.3d 801, 826 (10th Cir. 1995); Bagley, 473 U.S. at 682(]

(Blackmun, J.); id. at 685{] (White, J.). In this case, the fact that defense counsel

"knew or should have known" about the Dean/Hicks information § the,efore, is

irrelevant to whether the prosecution had an obligation to disclose the information.

The only relevant inquiry is whether the information was "exculpatory .

Banks, 54 F.3d at 1517 (emphasis added).

Only the First Circuit has even attempted to ground the “due diligence" exception in this

Court’s jurisprudence, citing language in United States v. Agurs, 427 U.S. 97, 111 (1976). See

Lugo, 682 F.2d at 9-10. That Court's reliance on Agurs, however, was clearly misplaced.

In Agurs, this Court noted that the standard for Brady claims differs from that for newly

* In Agurs, 427 U.S. at 102, the Court did note that the Court of Appeals “found no lack of diligence on

the part of the defense ...."_ It did not comment on this further, however, and the issue of defense diligence

played no role in its decision. -

17

discovered evidence claims, because, in the former, “the evidence was available to the prosecutor

and not submitted to the defense," while in the latter it was to be “found in a neutral source." 427

U.S. at 111 (emphasis added). By losing sight of its context, the First Circuit erroneously focused

only on the reference to evidence which is to be “found in a neutral source." In fact, the Agurs

Court was distinguishing cases in which the prosecution does possess the information, in which event

Brady applies, from those in which the prosecution does not possesses the information and the

defendant “found [it] in a neutral source," in which case the standard for newly discovered evidence

applies. Id. at 111-12. Thus, the significance of the distinction was that the evidence was known by

the prosecutor, in the first instance, but was known by neither party in the second, not simply that

it was “found in a neutral source" irrespective of the prosecutor’s knowledge. This Court, after all

did not say that Brady applied where the evidence “was not available to the defense," but where it

was not “submitted to the defense."

It is clear, therefore, that this Court in Agurs never intended to create an exception to the

prosecution’s duty of disclosure. Indeed, while it has refused to abandon the “due diligence"

requirement altogether, the Ninth Circuit, like the Seventh, has correctly recognized that the

proposition that there should be no such requirement in the Brady context "draws some support"

from Agurs. Shelton, 588 F.2d at 1250. Accord, Hedgeman, 564 F.2d at 768.

The putative “due diligence" exception, which negates the duty to disclose exculpatory

evidence when such evidence is otherwise "available" to the defense, is, at its core, inconsistent with

the logic, principles and resolutions of this Court’s Brady jurisprudence. In Bagley, the Court noted

that: [AJn incomplete response to a specific request not only deprives the defense of

certain evidence, but also has the effect of representing to the defense that the

evidence does not exist.

473 U.S. at 682. The Court also indicated that defense counsel could reasonably rely on such

18

nondisclosure for "pretrial and trial decisions on the basis of [the] assumption" that such evidence

does not exist. Rather than concluding that the failure of defense counsel to investigate further or

to make further discovery motions absolved the government of responsibility for its nondisclosure,

as the Fourth Circuit's decision in Strickler plainly does, the Court actually noted that the

government's sin would be that much greater, as it would be responsible for ‘impairing’ the defense

by misleading it. Id. at 682-83. Cf. Wood v. Bartholomew, 116 S.Ct. 7 (1995)(no violation where

defense counse] testified he would not have used the evidence in any event). Strickler’s counsel was

misled both at trial and in state habeas by the Commonwealth's representations that all Brady

material had been disclosed to the defense in the prosecutor's open file.

In Moore v. Illinois, 408 U.S. 786 (1972), the defense complained that the prosecution did

not provide the out of court statement of a witness to the police, although the defense had not asked

the witness about the existence of such a statement. The defense asked two other witnesses about

the existence of such statements and was provided the statements by the prosecutor. While the Court

ultimately held that the undisclosed statement was not material, it did not suggest that the failure of

defense counsel to inquire about it negated any duty to disclose that would otherwise have existed,

even though the statements of the other witnesses had been produced in response to defense inquiry.

Id. at 794-97,

The "due diligence" exception is also, as a practical matter, fundamentally inconsistent with

the analysis applicable to such claims. In Kyles, the Court held that the materiality of the evidence

and, thus, the duty to disclose, must be considered coilectively. 115 S.Ct. at 1567.

[T}he prosecution, which alone can know what is undisclosed, must be assigned the

consequent responsibility to gauge the likely net effect of all such evidence and make

disclosure when the point of “reasonable probability" is reached.

Id. If the due diligence exception exists, the prosecution, in determining what it must disclose, must

19

also be “assigned the ... responsibility" to take into account what portion of that evidence defense

counsel could find himself. This would add a new and particularly speculative element to the

government's calculus, enabling the prosecutor, and ultimately requiring a reviewing court, to first

identify which items of evidence counsel could have found -- by whatever standard that is to be

judged -- and then to analyze the collective impact of only that evidence which counsel could not

have found.

This exercise would be largely impossible for the prosecutor to perform, particularly when,

as here, the exception is unlimited in its potential application. The prosecutor does not know what

efforts counsel has made to locate the evidence, whether witnesses have refused or failed to divulge

the information known to the prosecution (as happened here), or whether other obstacles have

prevented counsel from discovering the evidence he seeks. Yet without such knowledge, the

prosecutor can not assess the scope of his constitutional obligation. Thus, the “due diligence"

exception adds a particularly troublesome layer of uncertainty to the Brady equation; the prosecutor

must judge not only whether the evidence is “favorable,” Kyles, 115 S.Ct. at 1568, but, if so,

whether counsel is chargeable with its discovery.

The "due diligence" exception subverts the essential premise of Kyles and its precursors that

the duty to disclose favorable evidence

serve[s] to justify trust in the prosecutor as "the representative ... of a sovereignty

.. whose interest .. . in a criminal prosecution is not that it shall win a case, but that

justice shall be done.” Berger v. United States, 295 U.S. 78, 88 [] (1935). And it

will tend to preserve the criminal trial, as distinct from the prosecutor's private

deliberations, as the chosen forum for ascertaining the truth about criminal

accusations. [Cite omitted].

Kyles, 115 S.Ct. at 1568. The exception accomplishes exactly what the Court warned against in

Kyles, but to a degree not even contemplated there: the descent of the “adversary system of

prosecution ... to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of

20

|

truth." 115 S.Ct. at 1568.

It certainly accomplished that here. The prosecutor was responsible for production of the

Stoltzfus documents even though he had no personal knowledge of five of the eight documents.

However, the prosecuior knew other jurisdictions had been involved in the investigation. JA 1255.

A prosecutor cannot insulate himself from material that might prove detrimental to his case. "[The

individual prosecutor has a duty to learn of any favorable evidence known to others acting on the

government's behalf in the case, including the police." Kyles at 1567. The prosecutor’s good faith

or bad faith in failing to reveal exculpatory or impeachment material is irrelevant. Id. See Smith v.

Secretary Dept. of Corrections, 50 F.3d 801 (10th Cir.), cert. denied, 116 S. Ct. 272

(199S\(granting the writ based on a Brady violation where two counties conducted murder

investigation, prosecutor had an “open file," but critical material from one county was not therein).

Moreover, the prosecutor affirmatively represented to the defense that all Brady material was

contained in the “open file," and in state habeas, the Commonwealth repeated that representation.

Nevertheless, the Commonwealth’s wrongful conduct has been excused, and Strickler is to

be executed, because the Court of Appeals has speculated that state habeas counsel should have filed

a discovery motion for which he had no factual or legal basis and then further speculated that such

a motion would have been granted, resulting in the production of the Stoltzfus documents.

Assuming a “due diligence" exception to the duty of disclosure does exist, the Court of

Appeals adopted in this case a novel] standard that swallows the constitutional rule. The Court found

that "the Brady claim was available to [Strickler] in state court through the exercise of reasonable

diligence." App. A at 21-22. “Reasonable diligence" requires counsel to engage in a “fishing

expedition" for privileged documents with no factual or legal basis to support his discovery motion

21

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despite the state's repeated representation that all Brady material had been disclosed. The Court then

assumes this motion would have been granted, although it can cite no authority in support, and would

never have granted such a motion itself.

The standard adopted by the Fourth Circuit eliminates any incentive for disclosure, in plain

conflict with the policies underlying this Court’s decisions. In Kyles, the Court extolled the virtues

of disclosure and adopted a standard designed to encourage "“[t}he prudence of the careful

prosecutor." 115 S.Ct. at 1569. The Fourth Circuit standard, on the other hand, offers virtual

immunity to prosecutors, by shielding their decisions not to disclose exculpatory information, except

where a defendant not only discovers the evidence post-trial and demonstrates its materiality, but also

avoids a post-hoc reconstruction of how, in theory, his counsel might have been more diligent and

might, if he were able to persuade a state court to permit a “fishing expedition" through privileged

police and prosecution files, have discovered the evidence to which he was entitled all along. "A

conviction obtained while defense counsel is ignorant Of important potentially exculpatory evidence

cannot be upheld merely because ’more able, diligent, or fortunate counsel might possibly have come

upon the evidence on his own.’" Agurs, 510 F.2d at 1253, quoting, Levin, 363 F.2d at 291.

The facts in both Bagley and Kyles demonstrate the error in the Court of Appeals’ holding.

In Bagley, this Court found a due process violation based upon the failure to disclose a monetary

inducement even though counsel “was free to cross-examine the witnesses on any relevant subject,

including possible bias or interest resulting from inducements made by the Government." 473 U.S.

at 678. The Court did not even suggest that the failure to inquire on the issue of bias excused the

prosecutor’s nondisclosure.

In Kyles, each witness was known to the defense, having testified at Kyles’ first trial.

Counsel plainly could have asked each whether he had given a statement to the police. Neither the

22

eg ee eee ee

majority nor the dissent excused the State’s failure to disclose prior inconsistent statements based

upon counsel’s failure to inquire about them, either pre-trial or during either of Kyles’ trials. The

Fourth Circuit, however, plainly would excuse the nondisclosure in Kyles based upon counsel's

failure to inquire "diligently" as to these matters. The Fourth Circuit’s decision is not only

inconsistent with this Court’s Brady jurisprudence, it is inconsistent with both the decisions of other

circuits applying a “due diligence" exception and even its own prior decisions. In no other case has

a Court of Appeals, including the Fourth Circuit until now, applied that exception when the

prosecution represented both at trial and in state habeas that all Brady material had been disclosed

to the defense through the prosecutor's “open file" and where the relevant witness's trial testimony

contained no clue that interviews and materials contradicting her trial testimony had been given to

the police.

Prior to the decision in Strickler’s case, the Court recited fundamentally inconsistent

standards for application of the "due diligence" exception. In Stockton v. Murray, 41 F.3d 920, 927

(1994), the Court held that there is no prosecutorial duty to disclose evidence where the defense

"sit{s] idly by," rather than pursuing allegedly exculpatory information about which it actually knew -

- a rule akin to that of the Second Circuit. Similarly, in United States v. Wilson, 901 F.2d 378, 381

(1990), the Court held that the duty to disclose does not exist “where the exculpatory evidence is not

looked...," (emphasis added), a standard by which the result in Strickler’s case could not have been

reached. Moreover, in United States v. Kelly 35 F.3d 929, 934-37 (1994), the Court found there

was a due process violation where the prosecutor suppressed a letter written by a primary prosecution

witness as well as a search warrant affidavit containing impeachment material about the same

witness. The Court rejected the argument that the evidence was available to the defense with

23

© ©

-reasonable diligence where it was held in nonpublic government files during the trial.

On the other hand, in Barnes vy. Thompson, 58 F.3d 971 (4th Cir. 1995) and Epperly v.

Booker, 997 F.2d 1 (4th Cir. 1993), the Court applied the exception somewhat more broadly than

in Stockton and Wilson, and far more broadly than in Kelly, holding counsel in Barnes responsible

for knowledge adduced at the trial of a co-defendant, 58 F.3d at 975-77 (citing, Lugo, supra), and

in Epperly, excusing the nondisclosure of procedures for the use of search dogs because they could

have been obtained through discovery, independent expert testimony, or cross-examination of the

government's expert. 997 P.2d at 9.

Until Surickler, the Fourth Circuit had held that a habeas petitioner failed to establish cause

for default only if the undisclosed Brady material was available in the public forum. In Hoke y.

Netherland, 92 F.3d 1350 (4th Cir, 1996), a Virginia capital case, the Commonwealth failed to

reveal police interviews with the victim's sexual partners, none of whom were trial witnesses and

hence were unknown to the defense, concerning the victim’s sexual practices. Police interviews with

the victim’s partners revealed that the victim's sexual practices were consistent with Hoke’s account

of his sexual encounter with the victim. The undisclosed interviews supported Hoke’s defense, i.c.,

that the victim had suggested and voluntarily engaged in vaginal and anal sex. The Fourth Circuit

excused the prosecutor's failure to disclose the exculpatory evidence gathered by the police because

defense counsel failed to conduct “a reasonable and diligent" investigation. Defense counsel had

made several unsuccessful efforts to locate the victim's sexual partners and was met with hostility

and resistance, Nevertheless, the Court speculated that if Hoke's attorney had found and interviewed

the same partners, they would have made the same admissions to him. |d, at 1355. Strickler goes

well beyond the decision in Hoke. The Court had never before held that nonpublic, police

documents were reasonably available to defense counsel, who had no clue as to their contents.

24

In contrast, the other Circuit Courts have limited application of the due diligence exception

to cases in which the information is known by the defense, is contained in the public record, or could

have been readily obtained from sources or witnesses known to the defense.’ Each Court of

Eisst Circuit: Lugo vy. Munox, supra, (no Brady violation as evidence was in the “public record,” 882 F.2d

apne i ae 241-42 Qad Cir, 1961), cert. den., 82 S.Ci, 1585

(1962)(defendant had actual knowledge of evidence claimed to have not been disclosed)}. Upited States v. Hicks.

848 F.2d 1, 4 (ist Cir, 1988), described the holding in Lugo as the “government has no Brady burden when facts

are peadily available to the defense." (emphasis added). The government may fulfill its Brady obligation by

identifying potentially exculpatory witnesses and informing the defendant of their role in the allegations, but if the

defendant can not gain access to the witness, the government must provide evidence itself.

Second Ciscuit: The exception applies where the defendant had actual knowledge of the relevant witness

and/or the essential facts, and simply failed to follow up on that information. See Williams vy. United States, 503

F.2d 995, 998 (ad Cir. 1974), United States v. Bermudez, 526 F.2d 89, 100 Qad Cir. 1975); United States vy.

Esposito, 834 F.2d 272, 275-76 (1987). In Payne, supra, 63 F 3d at 1209, Brady violation found where defense

was unaware of facts needed to discover an affidavil in the public record.

Third Circuit: Court refased to apply the exception in United States vy. Perdomo, supra, and found a Brady

violation based upon failure to disclose the criminal records of witness, although the Office of the Public Defender,

which represented the defendant, had previously represented that witness. “(( Jounsel did not have knowledge, or

more importantly, any responsibility to be aware of the witness’ criminal record.” 929 F 2d a 969. The Third

Cirewit held that the exception applies “if the defendant either knew or should have known of the essential facts

permitting him to take advantage of any exculpatory evidence.” |g. at 973 (emphasis added).

Fifth Ciseuit: The Court has consistently applied the exception if the defense had full of equal access to

the information. United States vy. Ramisez, 810 F 2d 1338, 1343 (Sth Cir. 1987); Williams v. Seo, 35 F.3d 159,

163 (Sth Cir, 1994), cert. den, 1155.01, 959 (1995), United States v. Priog, 546 F.2d 1254, 1259 (Sth Cir, 1977),

United States vy. McKenzie, 768 F.2d 602, 608 (Sth Cir. 1985); United States v, Milstead, 671 F.2d 950, 953 (Sth

Cis. 1982); United States v. Bi-Co Pavers, Inc. 741 F.2d 730, 736 (Sth Cir. 1984). The applicable standard for

analyzing the performance of defense in this context is whether counsel exercised “any reasonable diligeace “ United

States v. Prios, supra; United States v. Bi-Co Pavers, Inc, supra.

Sixth Ciseuit: United States y. Todd, supra, 920 F 2d 399, 405 (no Brady violation when the defendant

is made aware “of the essential facts that would enable him to take advantage of the exculpatory evidence").

Seventh Circuit: As noted earlier, the Court bas applied the exception with great restraint. The Court

found « Brady violation, and condemned the prosecutor's conduct as “indefensible,” where he failed to disclose a

witness’ recantation of her inculpatory statements againsi the defendant, even though defense counsel had access

to the witness and “knew full well what |she| was telling the prosecution all along,...." Musiread vy. Gilmore, 966

F.2d 1148, 1152 (7th Cir, 1992). See United States vy. White, 970 F.2d 328, 337 (7th Cir, 19920 duty of

disclosure when the information is “fully available” to the defense), Morris, supra, 80 F 3d at 1169-70 (mo Brady

violation as defense actually possessed some of the disputed documents and had cgual aceess to those documents

in the possession of other government agencies).

Eighth Ciscuit: United States v. Davis, 785 F.2d 610, 618 (8th Cir. 1986)(no Brady violation when

information contained in a medical report was actually in the defendant's possession and government need not

explain the meaning of the report)

25

Appeals which has applied the “due diligence” exception, by whatever standard, except the Fourth

Circuit, has limited it to circumstances where the Court could determine what counsel alone would

have found had diligence been exercised, not, as here, what he might have found had a lower court

intervened and granted a discovery motion for which there was no known factual or legal basis.

Consequently, not in a single one of these eases, or in any other of which petitioner is aware, has

a Court of Appeals excused the government's failure to disclose exculpatory evidence where, as here,

the existence of the evidence was unknown to the defense, much less when, the government

repeatedly represented that al) such evidence had been produced.

However, in the Fourth Circuit, under the rule of this case, prosecutorial suppression of

exculpatory evidence is to be accepted even when the defense could not have obtained the evidence

through its own efforts and even when it is only theoretically possible that the defense could have

obtained the evidence through court intervention. Cf, ¢.g., Hicks, 848 F.2d at 4 (if defendant

Ninth Circuit ln Shelton, supra, the Court acknowledged that Aguss lent support to the proposition that

the due diligence exception should not apply to Brady claims. 588 F.2d at 1250. The Court, adopting a standard

of “apy reasonable diligence ,” concluded that there was no Byady Violation because the witness and the value of his

testimony were known to defense, and there was no indication that the defense had difficulty locating him. |d.

Tenth Ciseuit: The Court has categorically rejected any exception to the State's duty of disclosure based

upon the asserted lack of diligence by the defense. Banks, supra, 54 F.3d at 1517.

Eleventh Ciscuit: Like the Fifth and Ninth Circuits, the Eleventh has adopted an “apy reasonable diligence”

standard. United States v. Meros, 886 F.2d 1304, 1309 (11th Cir. 1989); Valera, supra, 845 F.2d at 928, citing

United States v. Prios, supra; Routly v. Singletary, 33 F.3d 1279, 1285 (11th Cir. 1994). Ip cach case,

nondisclosure was tolerated because the defense demonstrably would have found the evidence had il exercised even

minimal effort, i.c., “any reasonable diligence.” See also United States v. Spagnuolo, 960 F.2d 991, 994 (11th Cir.

1992) Brady violation where “neither |defendant| nor his lawyer knew before trial about the favorable information

in order to make an effort to obtain its production.” [d. Thus, to excuse nondisclosure, the Eleventh Circuit

requires that the defendant actually know about the exculpatory evidence and where to find it, unlike the Fourth

Cireuit,

: The Court, even before Brady, bas rejected the notion that the duty of

District of Columbia Circuit

disclosure is limited by any defense obligation to exercise “due diligence.” Levin, 363 F.2d at 291 Aguss, 510 F.2d

a 1253; Marshal) v, United States, 436 F.2d at 159 & a.11,

cannot gain access to witness, government must provide exculpatory evidence).

If there is to be a “due diligence” exception to the State's duty of disclosure, it must be

limited to instances in which the information is actually known by the defense, or demonstrably could

have been obtained from sources of witnesses known and available to the defense that counsel had

specific reason to investigate. Nondisclosure should not be excused where, as here, counsel has

unquestionably exercised “some diligence” in attempting to obtain the information. See, ¢.g.,

Shelton, 588 F.2d at 1250; Prior, 546 F.2d at 1259 (Sth Cir. 1977); Stockton v. Murray, supra

(defendant can not “sit idly by"). Any other rule is simply inconsistent with the prosecution's

underlying Due Process duty.

c. lf The Exception Exists, The Burden Must Be On The State To Demonstrate

That Counse) Would Necessarily Have Discovered The Exculpatory Evidence

Through The Exercise Of Due Diligence.

Having extended the “due diligence” exception into state habeas, the Court of Appeals then

imposed on petitioner the virtually impossible burden of proving the negative, i.¢., that counsel could

not have discovered the evidence.’ The Fourth Circuit explained its reasoning as follows:

On state habeas, Strickler did assert an ineffective assistance of counsel claim based

on counsels’ failure to file a Brady motion, although it is unclear from the record

what formed the factual basis for this claim. The Commonwealth opposed the motion

on the basis that Strickler received all Brady material through the prosecutor's open

file policy. However, Strickler did not request to examine the police files of the

Harrisonburg Police Department, notwithstanding Stoltzfus’ trial testimony that she

was interviewed by Detective Claytor on several occasions and Virginia Supreme

Court Rule 4:1(6)(5) which allows, with prior leave of court, discovery on all

relevant matiers that are not privileged.

Slip op. at 16. Based on the erroneous factual assumptions and incorrect legal conclusions

incorporated in this passage, the Court concluded that Strickler had aot demonstrated reasonable

’ The Eleventh Circuit also has placed the burden of disproving the possibility that the

defense could have found the evidence on the defendant. See, e.g., Meros, 886 F.2d at 1308;

Spagnuolo, 960 F.2d at 994. No other circuit appears to have done so.

27

diligence and, therefore, cause for default in state court.

First, although Stoltzfus testified that she was interviewed by Claytor on several occasions,

nothing in her trial testimony revealed that she had given contradictory and inconsistent statements

about the events she had “witnessed.” Strickler’s trial counsel and his state habeas counsel had no

notice that prior inconsistent or exculpatory statements existed that were discoverable under Brady

but had not been disclosed. The Court's opinion does not disagree and does not point to anything

in Stoltzfus’ testimony that would have alerted Strickler’s counsel to undisclosed impeachment

material.

Second, as the Commonwealth affirmatively and erroneously represented that all Brady

material had been disclosed through the prosecutor's “open file," Strickler’s counsel had no factual

basis to argue to the trial court or to the state habeas court that discoverable statements had not been

disclosed. The Court's opinion does not disagree and does not point to anything in the state record

that would have supported a discovery motion.

Third, under Brady, Bagley, and Kyles, the state has an affirmative obligation to disclose all

favorable evidence in its possession, including exculpatory and impeachment evidence, even without

a specific request by the defendant. This obligation does not end with the trial. Kyles at 1567-68;

Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9h Cir. 1992) Brady obligation continues throughout

federal hateas proceedings); see also, Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976). The

Fourth Circuit is shamefully silent both as to the Commonwealth's undisputed constitutional

obligation and the Commonwealth's undisputed violation of this constitutional obligation.

Fourth, the converse of Brady is that the state has no obligation to disclose consistent,

inculpatory witness statements in the exclusive possession of the state. Moreover, under Virginia

law, disclosure of all witness statements to Commonwealth agents is prohibited unless those

statements constitute Brady material’. The opinion fails to acknowledge these state law prohibitions

on disclosure of investigative and prosecution files.

Fifth, the Court opinion speculated that Strickler could have obtained copies of the Stoltzfus

documents in the Harrisonburg police files by a motion to the state habeas court invoking Virginia

Supreme Court Rule 4:1(6)(5). That rule states in relevant part:

(5) Limitations on Discovery in Certain Proceedings. In any proceeding . . . (3) for

a writ of habeas corpus or in the nature of coram nobis; (a) the scope of discovery

shall extend only to matters which are relevant to the issues in the proceeding and

which are not privileged; and (b) no discovery shall be allowed in any proceeding for

a writ of habeas corpus . . . without prior leave of the court, which may deny or

limit discovery in any such proceeding.

The Court cited no Virginia case or authority to support its conclusion that Strickler would have been

granted discovery of the police files if he had made such a motion given the facts of his case. In

fact, the Commonwealth had never advanced this argument in the district court or on appeal. ht was

raised sua sponte by the Fourth Circuit, and Strickler had no opportunity to respond.

The Court erred in its interpretation of state Rule 4:1(6)(5). The police files were privileged

and clearly exempt under the language of the Rule itself. See Howard v. Warden, 348 S.E.2d 211,

212 (Va. 1986)(noting circuit court decision that police department files are privileged and not open

for examination even when state habeas petition alleges Brady violation and petitioner moves for

discovery). Moreover, Strickler could not demonstrate “relevance” or “good cause" or any factual

basis for a discovery motion since the Commonwealth repeatedly stated that all required disclosures

had been made prior to trial. See Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970\good

* Rule 3A:11/b)(2) of the Rules of the Supreme Court of Virginia specifically denies pretrial "discovery or

inspection of statements made by Commonwealth witnesses of prospective Commonwealth witnesses to agents of

the Commonwealth or of reports, memoranda or other internal documents made by agents in coanection with the

investigation or prosecution of the case," except for the defendant's own statements and forensic reports. Virginia

Code sections 15.2-1722 and 2.1-342(B)(1) prohibit disclosure of memoranda, correspondence, evidence,

investigative reports, and complaints held in police files.

29

cause must be demonstrated for discovery). There is no right to discovery in state habeas. Yeatts

vy. Murray, 455 S.E.2d 18, 21 (Va. 1995). Thus, the Fourth Circuit erred in concluding that as a

matter of Virginia state law the police files were available to Strickler through reasonable diligence.

The Court of Appeals effectively placed on Strickler the duty to prove that his counsel could

not have obtained the evidence either by himself or through court intervention. This allocation of

the burden of proof frustrates the purpose of Brady and its progeny, since it is always possible to

hypothesize some method by which the evidence could have been uncovered. In theory, the

defendant in most instances--though not in this case--could have done whatever the police did to

discover the evidence. The policy considerations set forth in Kyles demand that, if the prosecutor

chooses to “tack[] too close to the wind," 115 S.Ct. at 1568, by not disclosing exculpatory evidence

on the theory that counsel might be able to discover it himself, the State should bear the burden of

proving that counsel was constitutionally ineffective. The State must prove that counsel's failure to

undertake the investigation required to uncover the evidence constituted ineffective assistance of

counsel and that, had he not been ineffective, counsel would have discovered that evidence. See,

Strickland v. Washington, 466 U.S. 668, 688 (1984).

Whatever the contours of the exception are, it is an affirmative defense of the State, not an

element of the petitioner's claim, and the burden must be on the State to prove its applicability in

any given case. Indeed, it is revealing that the Eleventh Circuit, the only other Circuit to clearly

place the burden on petitioners in this context, has restated the elements of a Brady claim to be that

the defendant must prove, in addition to possession of favorable evidence and its suppression by the

government, and the materiality of that evidence, “that the defendant does not possess the evidence,

nor could he obtain it himself with any reasonable diligence." Meros, 866 F.2d at 1308 (emphasis

added). By contrast, this Court has stated that all that is required for such a claim is (1) that the

=<.

30

evidence be possessed and suppressed by the government, and (2) that it is material either to guilt

or to punishment. Agurs, 427 U.S. at 104 n.10, 111; Kyles, 115 S.Ct. at 1565. Placing the burden

of disproving the discoverability of the evidence on the petitioner, especially in combination with the

level of diligence demanded by the Fourth Circuit (which is now higher than the standard applied

by the Eleventh Circuit), and its willingness to speculate about the potential fruits of that diligence,

dooms Brady and its progeny to oblivion.

In addition, the Fourth Circuit’s decision conflicts with clear and long established decisions

of this Court on procedural default. Cause excusing procedural default typically “requires a showing

of some external impediment preventing counsel from constructing or raising the claim." Coleman

yv. Thompson, 501 U.S. 722, 753 (1991), quoting Murray v. Carrier, 477 U.S. 478, 488 (1986).

This Court has held that interference by the state constitutes cause excusing a petitioner's failure to

present a constitutional claim in state court. See Amadeo v. Zant, 486 U.S. 214, 222 (1988)(cause

is present where evidence revealing violation “was concealed by county officials and therefore was

not reasonably available to petitioner's lawyers"); Dobbs v. Zant, 113 S. Ct. 835, 836

(1993\(petitioner permitted to rely on transcript not previously discovered or asserted as basis for

relief because “delay [in discovering transcript] resulted substantially from the State's own erroneous

assertions that closing arguments had not been transcribed" and because petitioner properly relied

on state’s assertions). Strickler has demonstrated cause based on the state's uncontested, continuous

suppression of the Stoltzfus documents throughout state court proceedings coupled with the state's

repeated, erroneous representations that all Brady materials had been produced to Strickler’s

attorneys. The Fourth Circuit opinion obliterates the doctrine of cause excusing default and violates

long established law.

31

As an alternative ground for its decision, the Court of Appeals stated that the suppressed

evidence was not material. This is a matter of law and, particularly in light of the other flaws in this

capital case, should be reviewed here. See, Kyles, 115 S.Ct. at 1576 (Stevens, J., concurring). “In

our view, the Stolzfus [sic] materials would have provided little or no help to Strickler in either the

guilt or sentencing phases of the trial. During either phase, Strickler never contested that he

abducted and robbed Whitlock." App. A at 24. This was error for several reasons.

Strickler’s capital murder conviction was based on the predicate offenses of abduction with

intent to defile and armed robbery.’ Stoltzfus provided the only eyewitness testimony to the

abduction in the mall parking lot and the only testimony that Strickler was armed during that

abduction. The Commonwealth argued on summa’ »» that Stoltzfus’ testimony conclusively proved

these two preaiate offenses. JA. 432, 437-439. However, the Court incorrectly assumed that

abduction and simple robbery were valid capital predicates. App. A at 24. They are not.

Stoltzfus’ testimony was essential to the armed robbery predicate. The prosecutor argued that

Strickler had a knife and that he held it against the victim as she drove out of the mall:

[Whitlock] looked at [Stoltzfus] and then looked down again. Why was that? I suggest to

you that this man had a knife. He had the knife that he carries with him all the time. He

had a knife later on with him in the car. That was pressed right up against Leanne . . . Ms.

Stolzfus [sic] positively identified Mr. Strickler as the man who first got into the car. The

man who struck Leanne Whitlock both times, the man that sat right beside her when she was

forced to drive off. {tt was him, the evidence show it was him.

* Strickler was never charged with rape, and the prosecutor admitted that there was no proof Strickler had

raped the victim. JA. 432.

Strickler was never indicted or arraigned on armed robbery as a predicate to capital murder. The

indictment stated only robbery which was not a capital predicate. JA 24. The court sua sponte charged armed

robbery but never instructed the jury on the elements of armed robbery. JA 428-29.

32

JA. 438-39 (emphasis added). However, in her very first statement to the police, Stoltzfus was

unable to identify Strickler or provide any description of him or his clothing. JA 1031. Defense

counsel could not challenge Stoltzfus because the police suppressed her prior inconsistent and

contradictory statements. Strickler was deprived of an opportunity to effectively defend against the

armed robbery predicate.

The remaining capital predicate was invalid. In state habeas, the Virginia Supreme Court

held that Strickler’s jury had been erroneously charged on abduction with intent to defile. Strickler

v. Murray, 452 S.E.2d 648 (Va. 1995). The statute at the time of Strickler’s trial applied only when

the victim was under 12 years of age. Strickler’s defense counsel was ineffective and failed to object

to the jury instruction on the abduction predicate. However, the state habeas court upheld the

conviction based on evidence of armed robbery. Yet all evidence of armed robbery came from

Stoltzfus’ testimony. Strickler was unable to defend against this charge because the Stoltzfus

materials were suppressed.

The Fourth Circuit made no mention of the invalid abduction predicate and ignored the

evidence of armed robbery based on Stoltzfus’ testimony. As a result, the Court wrongly concluded

that Strickler could not demonstrate prejudice. However, if Stoltzfus had been properly impeached

based on her own prior statements, the jury would have had a reasonable doubt about both the armed

robbery and the abduction. That doubt could have resulted in an acquittal on the capital murder

charge and a conviction on a lesser offense, as occurred with Strickler’s co-defendant at his separate

trial. In Strickler’s trial, the jury also had been charged on the lesser offense of first degree murder.

The Stoltzfus documents were material for another reason that was never addressed by the

Fourth Circuit. Stoltzfus portrayed Strickler as the only one who committed violent acts against

Whitlock. Stoltzfus said Strickler forced Whitlock’s car door open and stuck her repeatedly on the

33

head and shoulder. Stoltzfus described Strickler as the revved up “Mountain Man" but povtrayed

Henderson as "Shy Guy," a passive follower. ‘The prosecutor used Stoltzfus’ testimony to argue *1t

Strickler was the instigator and leader in Whitlock’s abduction and, by inference, in her murder.

Without Stoltzfus’ testimony the jurors would have been reduced to speculation about Strickler’s

participation in the crimes charged. It was not irrelevant to his conviction.

In addition, substantial evidence pointed to Henderson, rather than Strickler, as the one

responsible for Whitlock’s murder. On the night of the murder, Henderson told a friend he had

killed an unidentified "nigger" and that friend saw blood on Henderson’s clothes. JA 384.

Henderson’s wallet was found in the vicinity of Whitlock’s body. JA 176-77. On the night of

Whitlock’s disappearance, Henderson (not Strickler) gave her watch to an woman in a bar. JA 157.

Thus, successful impeachment of Stoltzfus would have created substantial doubt about Strickler’s role

and participation in Whitlock’s murder. Defense counsel could have successfully focused his trial

strategy on minimizing Strickler’s involvement where substantial evidence had been presented against

Henderson.

This Court reiterated the established prejudice standard in Kyles, 115 S. Ct. at 1565:

[Favorable evidence is material, and constitutional error results from its suppression by the

government, "if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different."

(Citing United States v. Bagley, 473 U.S. at 682, 685.) In Kyles the Supreme Court emphasized

that "a showing of materiality does not require demonstration by a preponderance that disclosure of

the suppressed evidence could have resulted ultimately in the defendant’s acquittal (whether based

on the presence of reasonable doubt or acceptance of an explanation for the crime that does not

inculpate the defendant)." Jd. at 1566. Materiality is not a sufficiency of the evidence test, as the

Fourth Circuit erroneously held. App. A at 24.

34

;

Strickler’s trial was fundamentally unfair and unreliable. The suppressed evidence

"undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678. Disclosure of the

Stoltzfus documents could have resulted in conviction of a noncapital, lesser offense.

CONCLUSION

For all the foregoing reasons, a petition for a writ of certiorari should be granted.

TOMMY DAVID STRICKLER

wanda thd

Barbara L. Hartung, VSB #38062

(Counsel of Record)

1001 East Main Street, #504

Richmond, Virginia 23219

(804) 649-1088

Mark E. Olive, Esq.

Virginia Capital Representation

Resource Center

1001 East Main Street, #510

Richmond, Virginia 23219

(804) 643-6845

August 31, 1998

35