Strickler v. Greene – Oral Argument – March 03, 1999

Media for Strickler v. Greene

Audio Transcription for Opinion Announcement – June 17, 1999 in Strickler v. Greene

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William H. Rehnquist:

We’ll hear argument next in Number 98-5864, Tommy David Strickler v. Fred W. Greene.

Mr. Estrada.

Miguel A. Estrada:

Thank you, Mr. Chief Justice, and may it please the Court:

My client was found guilty of abduction, robbery, and capital murder on the basis of testimony by a purported eye witness who claimed at trial that he had seen him forcibly abduct the murder victim in the parking lot of a busy shopping mall.

That testimony went largely unimpeached, because the Commonwealth of Virginia withheld evidence that cast significant doubt on the reliability and truthfulness of the purported eye witness.

My submission here is twofold.

First, that Virginia clearly violated the rule of Brady v. Maryland, by withhold material exculpatory evidence; and, second, that there is nothing in this Court’s habeas case law that authorizes the withholding of a remedy for that clear violation.

William H. Rehnquist:

Your second point would cover both default and prejudice, then, I take it.

Miguel A. Estrada:

Yes, it would.

It would cover the issues that were framed as issues 2 and 3 in the Court’s order granting cert, Mr. Chief Justice.

Antonin Scalia:

I’m not sure what you mean by your second point.

You mean if there’s a Brady violation, that’s the end of it, you don’t have to show cause and prejudice?

Miguel A. Estrada:

We… yes, in this case, Justice Scalia, and what I mean by that is this.

The standard that applies to the prejudice issue under Wainwright v. Sykes is the same standard that the Court recognized in Schlup v. Delo that would apply to the materiality issue under Brady.

There would still remain the issue of cause.

Antonin Scalia:

Of cause, well, let me ask you about cause here.

How was this Brady violation discovered, and why could it not have been discovered prior to the filing of the State habeas petition?

Miguel A. Estrada:

It was discovered, Justice Scalia, by sheer happenstance.

In connection with a contemplated filing of Federal habeas, but before any papers were actually filed for Federal habeas, the district court, under this Court’s ruling in McFarland v. Coz, named counsel for petitioner so that he could help him with the Federal habeas papers.

The record discloses that the district court also issued an order that was not directed at any particular claim but that did authorize new counsel to secure pretty much anything in the world that would have my client’s name on it, including the files ultimately found to contain the evidence at issue here.

Antonin Scalia:

Couldn’t that have been obtained before the filing of the State habeas?

Miguel A. Estrada:

Well–

Antonin Scalia:

The same thing?

Miguel A. Estrada:

–No, Justice Scalia.

Whether in Federal court or in State court we would have had to make a showing directed to the claim that we were seeking to pursue.

What the record indicates here is that the court issued an order that was not based on any showing, or that was not… and that did not have in mind any actual claim.

Antonin Scalia:

Wasn’t one of the claims in the State habeas precisely a Brady violation?

Wasn’t that one of them?

Miguel A. Estrada:

No, Justice Scalia, with all due respect, that is not actually correct.

It was a claim–

Antonin Scalia:

With respect, I’m asking a question.

I–

Miguel A. Estrada:

–Well–

Anthony M. Kennedy:

–Wasn’t it part of the inadequate assistance of counsel claim that was made at one time in State habeas?

They said one of the reasons for inadequate assistance of counsel was, he didn’t make a Brady motion, so isn’t the Brady… the allegation that there was no Brady motion subsumed in the inadequate assistance of counsel?

Miguel A. Estrada:

–Justice Kennedy, no.

In fact, the factual bases for the ineffective assistance claim that was pled in the State habeas is a basis that would not give us a freestanding Brady claim.

If you look at what we claim in State habeas is in effect that counsel failed to do so many things that he was in effect absent, he might as well have been a bump in the log, and it was based on a legal theory that was wholly directed to the first prong of the Strickland test.

In other words, counsel for the State habeas case sat down with the trial record and in 25 pages listed 96 instances of things that the lawyer did not, that seemed from the record were not done, that tended to indicate that for all intents and purposes he might as well have been not there.

Antonin Scalia:

And one of those things you say was that he did not pursue a Brady violation.

Miguel A. Estrada:

Yes, Justice Scalia.

Antonin Scalia:

So he was on notice at that point that the Brady violation issue should have been pursued, and yet he did not pursue it.

Miguel A. Estrada:

No.

He was on notice that counsel had failed to file a motion.

That is, I think, the fair reading of the ineffective assistance–

William H. Rehnquist:

Okay, but if he had failed–

–But that’s ineffective assistance of counsel, certainly it must be ineffective assistance of counsel because the Brady violation at least theoretically would have turned up something.

Miguel A. Estrada:

–Mr. Chief Justice, that is the legal theory under which one would usually plead an ineffective assistance claim.

It is possible, and it is certainly open under this Court’s cases, to say that someone who at every turn failed to do everything you would expect of a lawyer in a criminal trial might as well not have been there, such that if he was, indeed, absent from the trial, you don’t need to show any actual harm with respect to any individual ruling.

Now, one may not agree with the legal theory, but all I need to show here is that the legal theory is not one that would give notice of the actual existence of a Brady claim.

David H. Souter:

But in any case, I think it’s also your argument that, even assuming that they would sensibly have thought at least of a Brady claim, there would still have been cause here, because, consistently throughout the litigation, the Commonwealth of Virginia had taken the position that in fact they had an open file and therefore that, after all, would be cause not to pursue the claim any further than you went.

Miguel A. Estrada:

Yes, Justice Souter, and in addition there is an additional factor that bears on the issue that was raised by Justice Scalia here.

Not only did they say at page 212 and page 213 of the J.A…. that’s at the outset of Volume 2… that from the outset of litigation, i.e., from the trial, we have been in compliance with Brady through the open file so that it was a representation that they had always been in compliance.

Anthony M. Kennedy:

Well, leaving Brady aside, and correct me if I’m wrong, leaving Brady aside, my understanding is that Virginia does not have in its open file or in its prosecutor’s file investigative reports such as Claytor’s, correct?

Miguel A. Estrada:

That is actually not accurate, Justice Kennedy.

If you look at page–

Anthony M. Kennedy:

Well, but I had thought part of your submission was that you couldn’t get these reports under Virginia rule because they’re investigative reports that are not disclosable.

Miguel A. Estrada:

–Once–

Anthony M. Kennedy:

Absent Brady.

Miguel A. Estrada:

–Once the State had made a judgment that they were not covered by Brady, we could not go into a court because it would be deemed privileged.

Miguel A. Estrada:

If you look at page 368 of the J.A., when counsel for the State, who was the trial lawyer for the State, was asked, how did you comply with Brady, his response was, my open file contained everything that was discoverable under Brady, including any reports that were discoverable under Brady.

To… in fact–

Anthony M. Kennedy:

Well, but then you’re making Brady more or less self executing.

If you don’t produce under Brady, it’s automatically cause.

Miguel A. Estrada:

–Justice Kennedy, given that this Court held in the Amadeo case that concealment is always cause if it is established, and given that it is an element of the Brady claim that there would be withholding of the evidence, it would ordinarily be the case that if you have a Brady claim in which you are able to make out the elements of the claim, you would almost be there on the issue of cause.

William H. Rehnquist:

Concealment suggests something affirmative though, does it not?

Miguel A. Estrada:

Concealment suggests, indeed, something affirmative, and–

William H. Rehnquist:

Not just a failure to disclose, but an effort to actually hide.

Miguel A. Estrada:

–Well, it is a failure to disclose and at least coupled with a representation that everything had been turned over.

Sandra Day O’Connor:

And I take it that’s–

–And you do… you do assert here that there was a representation by counsel for the State, both at the trial level and then again by the Attorney General on post conviction.

Miguel A. Estrada:

Yes, we do, Justice O’Connor.

Antonin Scalia:

You do not at the trial.

You do not at the trial level assert that he said there were… you had the open files, and everything relevant was in the open files.

Miguel A. Estrada:

No, but–

Antonin Scalia:

You… that statement is only made in the middle of the State habeas proceeding and therefore cannot explain your failure to do anything at the commencement of the State habeas proceedings.

You were deceived after you had already been in default of your obligation.

Miguel A. Estrada:

–Justice Scalia, that is not so for two reasons.

The representation that we got at the trial was that there was something called an open file, and the open… and the issue then is, is that a representation that that is how they are complying with Brady, because if the words open file mean, this is in discharge of my Brady duties, the representation was unquestionably made at the trial level, and we–

Anthony M. Kennedy:

But prosecutors always say they comply with Brady.

And you’re in effect saying, once there’s a representation we’ve complied with Brady, you have no independent obligation to pursue a Brady violation, and I just don’t think you have any law for that play.

Miguel A. Estrada:

–Well, Justice Kennedy, two points.

I do have the Amadeo case for the proposition that concealment by the State is actually a showing of cause, and the other point that I think is significant for further purposes, for these purposes is that this is the type of evidence that is uniquely in the possession of law enforcement.

These are not matters that might conceivably be in the public record, and that the lawyer for the Government somehow also has.

These are matters that are the by products of the investigation itself, so if we’re talking about a class of evidence as to which the rule that I’m urging and that I think is warranted by the Amadeo case makes perfect sense, it is in this very context.

To get back to the point that I was just about to make to Justice Scalia, the State did represent at trial that there was an open file, and it seems clear from the record that we have now… that the words open file were an affirmative representation that this was in compliance with Brady for at least two reasons.

Number 1, at page 368 of the joint appendix, when the trial lawyer for the State was asked, in Federal habeas, when his interests to say that it meant something else would have been strongest, he said, I comply with Brady through my open file.

That’s what I was giving the other side.

It was Brady that was the open file.

Antonin Scalia:

That says nothing more than what Justice Kennedy says.

Antonin Scalia:

There’s always an implicit representation, and sometimes an explicit representation by the prosecution that it has turned over the files that the law requires it to turn over.

That’s always an implicit… every Brady violation constitutes that, and therefore you’re in effect saying you don’t have to show cause as well as not having to show prejudice once there’s a Brady violation.

Miguel A. Estrada:

Justice Scalia, I think it is not quite the same thing, because failure to disclose the exculpatory evidence under the Brady case law without a request and without a representation of any sort, implied or expressed, is a completed Brady violation if the materials are exculpatory and material, if they’re important enough.

In other words, there need not be a representation by defense counsel or by the prosecutor for a Brady claim to arise, so I am saying something that is not quite what you adverted to, because I am saying that here we could have a Brady violation that flows from the withholding of the information alone, and we have more.

We have the prosecutor in effect quelling any doubts that reasonable defense counsel might have had by saying–

Ruth Bader Ginsburg:

May I ask you something about a procedural course, even before you get into all of this?

I understand there’s a notion of exhaustion.

That’s why we require you go through the State habeas, first.

Nothing more was known at the Federal level than was known at the State level.

The motion for discovery, for sweeping discovery that was made successfully in the Federal court, was not made in the State court.

So a remedy that was availed of in the Federal court was not even sought.

Now, if they had asked and the State said no, you can’t discover, and then you came to Federal court and asked for the same thing, that would be one thing, but what excuses the failure to make in the State court the procedural move that you made in the Federal court?

Miguel A. Estrada:

–Two… two issues, Justice Ginsburg.

I think that first, for all intents and purposes, we did.

In the State habeas, when the State moved to dismiss the ineffective assistance of counsel point, they did so on the legal theory that was earlier outlined by the Chief Justice.

They said in effect, you have no basis for thinking that any of these failures by counsel caused you actual harm.

And we replied by saying, you’re absolutely correct, we do not.

That’s why we want an investigator, and we want to have funds so that we may investigate further.

The State said, once you’ve conceded that you have no current basis for thinking that any of these rulings caused you harm, there is no need for further investigation.

There is no need for anything further to be done.

Your case should be dismissed.

It seems to me that once the State came back and said that we had no actual basis for the assertion of any harm from any of the many items that added up to ineffective assistance of counsel, and we asked for the court’s help so that we could investigate it further and were successfully opposed by the State, it would have been… it is really the functional equivalent of asking for the information.

Antonin Scalia:

Whenever you ask for the court’s help, you implicitly ask for whatever you should have asked for, is that the principle you want us to accept?

Miguel A. Estrada:

No.

The principle is that–

Antonin Scalia:

You should have asked for these… for the documents that related to your client that were the documents of the investigation.

And I don’t see how a general throwing yourself upon the assistance of the court complies with that.

The court has some basis to know more precisely what it is you’re seeking from the State.

Miguel A. Estrada:

–Well–

Antonin Scalia:

Not just say, give us help for whatever we need.

Miguel A. Estrada:

–Well, that’s… but this is highly germane to the questions that Justice Ginsburg asked, because that was exactly the motion if… if one was made in Federal court.

If you look at the order that issued from Federal court, and by the way, we have been working on the assumption that it was a result of a motion, though I can’t find any such motion in the record.

The order is, you may take this order, new counsel, and go to anyone who conceivably may have a document with your client’s name on it and see if you can get it.

Ruth Bader Ginsburg:

And it had nothing to do with Brady or not specifically to do with… it was just a total, sweeping, discover anything about this case–

Miguel A. Estrada:

Yes.

Ruth Bader Ginsburg:

–psychiatric evidence–

Miguel A. Estrada:

And as it happens the Fourth Circuit since then has ruled that this sort of ex parte discovery may not be conducted, so this is something that could not arise in the Fourth Circuit in the present day.

That is why I said at the outset that it is important to note that the documents came up as… by sheer happenstance.

This is exactly like the Amadeo case.

Sandra Day O’Connor:

–Mr. Estrada, the State seems to suggest that the petitioner’s lawyers knew of the witness Stoltzfus’ materials at the time of the trial.

How do you respond to that?

I understand that to be–

Miguel A. Estrada:

One of their claims.

Sandra Day O’Connor:

–one of their claims.

Miguel A. Estrada:

And they have several variants of that.

Sandra Day O’Connor:

What we’re really talking about here are a series of statements made over a period of time by the witness Stoltzfus, right?

Miguel A. Estrada:

Mm hmm, and we did not have those statements.

The trial lawyer–

Sandra Day O’Connor:

You had some of them, three of them?

Miguel A. Estrada:

–It is conceded for present purposes in this Court, and because of the posture of the case at summary judgment, that we will assume we had three of them.

Sandra Day O’Connor:

And we take the case on that assumption.

Miguel A. Estrada:

And you take the case on that assumption, at least for ruling–

Sandra Day O’Connor:

And so how do you respond to their assertion that you had them all?

Miguel A. Estrada:

–I… their claim is based on a one paragraph affidavit by one of the counsel for Mr. Strickler, Mr. Roberts, who asserts in fact that he does not recall ever seeing any of these documents, but that he does recall some unspecified information that is reflected in them that led him to think that her story had gotten better over time.

The district court was faced with that affidavit and concluded that weighed against the affidavit from the very same trial prosecutor that he could not recall ever seeing any of these five documents, it was insufficient to give rise to an issue of fact on whether, on the five documents that the case is here on, we in fact ever had those documents.

The evidence that is reflected in those five documents is qualitatively and quantitatively different from what we may have had from other sources at the time of the trial.

Antonin Scalia:

But that isn’t the point, whether you had the other five documents.

Yeah, they said you didn’t have the other five documents, but the point is whether you had reason to believe during the trial that in fact this witness’s testimony had been considerably elaborated over the course of her interviews with the prosecution and with the boyfriend of the deceased.

Miguel A. Estrada:

Justice Scalia, there are two answers to that.

You know, the first one is that a trial lawyer may have reason to think that, as Roberts put it, this is too good to be true.

Miguel A. Estrada:

But for Brady purposes there is a vast difference between saying this can’t be right and being able to take the documents and confront the witness with them.

And unless we had the–

Antonin Scalia:

True, but that isn’t the issue, whether he could have confronted the witness.

The issue is whether he should have at that point pursued a Brady claim.

Miguel A. Estrada:

–Justice Scalia, the answer to that is no, because if all you thought was that she had had interviews with the detective, or she had met with the prosecutor, that did not give you any notice that she had made inconsistent statement, much less, did she give you notice.

David H. Souter:

In other words, you have three documents that you’re conceding for the sake of argument here would have put you on notice, in effect, of just what you would have suspected at the trial, and that is should she talked with the–

Miguel A. Estrada:

That’s correct, and I will point out that we sent an investigator to talk with Ms. Stoltzfus in advance of the trial, and his affidavit is in the record, and she inquired on whose behalf he was there for, was told that it was on behalf of Strickler, and she said, have a good day, goodbye.

So it is not as though we did nothing in the trial court and at all times, whatever doubts we had we had to weigh against the representations by the State of Virginia–

David H. Souter:

–Well, I–

Miguel A. Estrada:

–that everything was all right.

David H. Souter:

–Well, may I take you back to one other representation, because we were on the State habeas, and then we got off it, and there’s just one thing I want to make sure I’m clear on.

In the State habeas the ineffective assistance claim, or one ineffective assistance claim referred to the failure to file a Brady motion.

Miguel A. Estrada:

That is correct, Justice Souter.

David H. Souter:

You were asked… I don’t remember whether it was by the court or put on as, it were, on the spot by the State in saying, do you have any specific reason to believe, or any evidence that you were in fact prejudiced.

Miguel A. Estrada:

Uh huh.

David H. Souter:

And your response to the court was, no, that’s why we want discovery.

Miguel A. Estrada:

That’s why we want expert assistance.

David H. Souter:

Okay, expert assistance.

I take it at that point that the State in effect was mute in the sense that the State obviously did not say at that point, well, you know, there may be some material that’s exculpatory that we haven’t provided.

Miguel A. Estrada:

That is right, and in fact–

David H. Souter:

Do you–

Miguel A. Estrada:

–they were worse than being mute.

David H. Souter:

–What did they say?

Miguel A. Estrada:

By that time, they had already made the representation in the motion to dismiss that is at page 212 and 213 of the joint appendix, which is–

David H. Souter:

The open file representation?

Miguel A. Estrada:

–you know, from the outset of the trial we complied with Brady through the open file.

David H. Souter:

Okay.

Miguel A. Estrada:

And after we pointed out that we in effect did not have a basis for claiming harm from the various items that we claimed, and that is at page 234 of the J.A., paragraphs 2 and 3, the State did better than standing mute.

At page 242 they came back, and this is paragraph number 9.

They say, Strickler, and I’m quoting, is implicitly conceding that he is not aware of factual support for the claim he has already made.

Miguel A. Estrada:

Respondent agrees.

So they didn’t–

William H. Rehnquist:

Respondent agrees with what, that Strickler concedes something?

Miguel A. Estrada:

–That we had no factual support for the claims that we had made, for the claims of harm.

This was in the context of they’re moving to dismiss our State ineffective assistance of counsel claim on the theory that it was not good enough to plead it on the first prong of Strickland, and that we have to show some harm from each of the individual rulings.

In response to that, we in effect conceded that we were not on notice of any basis on which we could think that we were harmed by any one of the rulings and asked for an investigator.

The reaction by the State–

Ruth Bader Ginsburg:

Well, can we get down to the harm?

I mean, you said it was no question that this woman had been several times interviewed by Claytor.

That was clear when she was on the stand.

That was tipped off in the three letters that we assume… documents that you had.

So that was known, that she had several times met with the State’s investigator.

It was also known in one of those letters that she said my memory is sometimes muddled, one of the letters that we assume–

Miguel A. Estrada:

–Uh huh.

Ruth Bader Ginsburg:

–And as I understand it, although you’ve used the word concealment, there’s no suggestion here that it was anything but some kind of negligence involved that these weren’t turned over.

Miguel A. Estrada:

Let me take the last question first, Justice Ginsburg, because under the Brady doctrine the good faith and the bad faith of the prosecutor is irrelevant, and under Kyles, they had an affirmative duty to seek out law enforcement agents who may have had involvement in the investigation to ensure that they had discharged their constitutional duties, so it is not as though the fact that if in good faith they did not have the documents answers the question of whether there was a Brady violation.

To take your–

Ruth Bader Ginsburg:

I didn’t think that, but I’d really like you to concentrate on the prejudice for this reason.

Kyles was a case where the argument was that the Brady materials really made a case for actual innocence.

Here, as I understand, it’s not… that’s not the claim.

You are not claiming, or are you, that Strickler would be a nonparticipant?

I thought that the only thing that you thought you could do with this is to say, the chief man was Henderson and not Strickler.

Miguel A. Estrada:

–Well, that is not, in fact, our theory, Justice Ginsburg.

Our… he pleaded not guilty, and he has always maintained that he is not guilty of these crimes.

Our theory is that the State went to the jury on the basis of an eye witness whose testimony, coming from somebody who has no apparent stake in the controversy, must have weighed heavily with the jury, and they played on that jury in their closing and in the sentencing, and–

William H. Rehnquist:

But they went on abduction as well as armed robbery, did they not?

Miguel A. Estrada:

–That is right, Mr. Chief Justice, but this was a general verdict.

And if the jury chose to sentence him to capital murder because they found him guilty of the abduction, we don’t know, and it is no answer to say, as the State does, that there was in addition something else wrong with the abduction predicate.

William H. Rehnquist:

But clearly you’re not contending your client was not implicated in this killing.

Miguel A. Estrada:

We have–

William H. Rehnquist:

You would be on very shaky ground, I would think, in view of the evidence, if you did.

Miguel A. Estrada:

–Well, I do not think that that is correct, Mr. Chief Justice, because I think you are implicitly giving way to the testimony of Donna Tudor, who a jury would be entitled to find is entitled to no credence.

William H. Rehnquist:

Well, if Stoltzfus had not testified, are you saying there wouldn’t have been enough evidence to go to the jury?

Miguel A. Estrada:

That is not a… that is not the same question you asked earlier, because in asking the question you just asked, I must assume that the evidence is truthful.

If it’s all right with the Court, I would like to–

Stephen G. Breyer:

I have one question, just on this line.

The one question I have is, I’d like you to state precisely what the prejudice in your opinion is, assuming that you’re right on every other matter.

Miguel A. Estrada:

–The prejudice, as–

Stephen G. Breyer:

You have to show cause and prejudice.

Miguel A. Estrada:

–We were–

Stephen G. Breyer:

It’s the same question you began to answer to the Chief.

Miguel A. Estrada:

–We were–

Stephen G. Breyer:

And I’d like to know precisely what, in your opinion, does the prejudice… because the circuit said there is no prejudice.

There was loads of other evidence, and I agree that Donna Tudor is a little shaky.

That’s one point in your favor, but what precisely is the prejudice?

Miguel A. Estrada:

–The prejudice is that a jury of 12 citizens can sleep very soundly at night thinking that they sent somebody to death on the word of a perfectly reliable witness.

Stephen G. Breyer:

No, look, she… I want to be more precise than that.

I take it Mrs. Stoltzfus, assuming she didn’t know what she was talking about and hadn’t even appeared, what would have happened is you wouldn’t have established that your client kidnapped this woman.

Miguel A. Estrada:

We would have–

Stephen G. Breyer:

Fine.

You wouldn’t have established what happened at the parking… with the car at the beginning, in the shopping mall.

But this murder didn’t take place then, it took place much later, there were other witnesses, et cetera, and so that’s what I want you to address.

Miguel A. Estrada:

–That is not true, Justice Breyer, because there were in effect two other witnesses, one of them is Donna Tudor, and she has terribly incriminating things to say, which, for the reasons I pointed out in the brief, should be discounted.

The other one was Curt Massey, who all he could say was that he saw my client on the road, it was night, she had the number of people in the car wrong, and the race of the people in the car wrong, if one were to credit–

Stephen G. Breyer:

So what I should do to satisfy myself is read through the record, and if I think there is sufficient evidence, leaving Ms. Stoltzfus aside, and discounting Ms. Tudor, if I think nonetheless there is sufficient evidence so I have no doubt, or virtually no doubt that your client was at the place where this woman was killed, and participated in a kidnapping, I should then reject your argument?

Miguel A. Estrada:

–That is not true.

Stephen G. Breyer:

Okay.

Good.

Why not?

Miguel A. Estrada:

Because under Kyles the prejudice test, which is the same as the Bagley materiality test, is not a sufficiency of the evidence test.

Miguel A. Estrada:

That is my first point.

And my second point is that the whole harm of what happened here is that the evidence that the State put forth, which was one and a half hairs that could have come from any white person and two witnesses who could be heavily impeached but were not–

Stephen G. Breyer:

You left out Virginia Smith.

What I’m trying to drive at is, is it that you’re saying the prejudice comes from your client being there, or is it that you’re saying it’s from what he did there?

Miguel A. Estrada:

–The prejudice comes from–

Or both.

Miguel A. Estrada:

–the fact that once the jury heard that he was at point 1 in the State’s time line, it could not but find that he was everywhere else.

William H. Rehnquist:

Thank you, Mr. Estrada.

Ms. Rumpz, we’ll hear from you.

Pamela A. Rumpz:

Mr. Chief Justice, and may it please the Court:

To be clear, Strickler never raised a freestanding Brady violation in the State court.

To be clear, he never sought discovery of any sort of Brady materials in the State post conviction court.

Sandra Day O’Connor:

Well now, if we accept the argument that the State represented all along that everything that complied with Brady was in the open file, then does it matter that he didn’t seek discovery?

Pamela A. Rumpz:

If you accept that what the State did was misrepresentation, and if you accept–

Sandra Day O’Connor:

No, representation that everything complying with Brady was in the open file.

Pamela A. Rumpz:

–All right.

If you accept that that’s what the State’s representations were, and if you accept that this is indeed Brady material, then that’s a different question, but that’s not what we have here.

We have a prosecutor who asserted at trial that he had an open file and nothing else.

We proceed to State post conviction court.

He is appointed State post conviction lawyers 11 months before he files a State habeas petition, and he files the State habeas petition 2-1/2 months before the State ever makes any sort of representation in its motion to dismiss that Brady material was turned over.

Anthony M. Kennedy:

But it seems to me–

–In your view, at that time was there grounds for a Brady motion?

Pamela A. Rumpz:

In my view at the time of the representation in State habeas?

Anthony M. Kennedy:

No, when he filed the State collateral… the habeas in the State collateral proceeding.

Pamela A. Rumpz:

Absolutely.

At the time he filed his petition in the State habeas–

Anthony M. Kennedy:

What was the ground for the Brady motion at that time?

Pamela A. Rumpz:

–First of all, as someone here pointed out earlier this morning, an ineffective assistance of counsel claim for failure to seek Brady motion was made in the State habeas petition, thereby alerting the State post conviction counsel, or giving rise to an inference that this ought to be something that should have been looked into.

But more important–

Anthony M. Kennedy:

Well, to… to succeed on the Brady, on a motion to have Brady discovery in the State collateral proceeding, do you not have to show some reason to believe that Brady material was withheld?

Pamela A. Rumpz:

–You have–

Anthony M. Kennedy:

Or am I wrong about that?

Pamela A. Rumpz:

–No.

No.

The Virginia rule for discovery in State post conviction is almost identical to Rule 6a in the Federal court.

You have to do it with leave of the court, and you have to establish some sort of good cause.

So it’s always been the Commonwealth’s position that whatever was asserted in the Federal district court after the statement had been made certainly could have been asserted at the inception of State post conviction–

Anthony M. Kennedy:

No, but as I under–

–But I need to know what was the good cause?

That’s all I need to… what was the cause for a… to grant a Brady motion at the State collateral proceeding?

Pamela A. Rumpz:

–As the Fourth Circuit noted in its opinion, the fact that Ann Stoltzfus had testified during cross examination that she had spoken with Detective Claytor a number of times certainly should have alerted a reasonable, diligent State habeas lawyer that they needed to investigate further into what she might have said.

Anthony M. Kennedy:

Well, but don’t you have to show that there’s cause for a Brady viol… don’t you have to show that there’s reason to know that she might have changed her story?

Pamela A. Rumpz:

Yes, and that that representation, coupled with the fact that prior to trial, the Sunday before trial began, Ms. Stoltzfus gave a detailed interview to the Roanoke Times newspaper.

And in that interview she… there are statements attributable to her which do not… which are different from what she testified to at trial.

So we do have differing statements in the public record which Strickler knew about attributable to Ann Stoltzfus.

In addition, shortly after the conclusion of trial, Ms. Stoltzfus wrote a letter to another newspaper, and she talked about her sometimes muddled memories and how the police had helped her get a big, whole picture of what she had witnessed there at the mall.

So when you are–

John Paul Stevens:

But may I just ask on that point, at the… in your motion to dismiss at the commencement of the State collateral proceeding, you represented, or the State did, given that counsel were voluntarily given full disclosure of everything known to the Government, there was no need for a formal motion.

So your position many months later was that everything you knew had been turned over; is that right?

Pamela A. Rumpz:

–The position is… well, that is the statement that was made.

John Paul Stevens:

So that was the position of the State of Virginia at that time.

Pamela A. Rumpz:

I don’t think that can be taken, first of all, as an unequivocal statement for a number of reasons.

First of all–

David H. Souter:

Well, you said known to the Government.

Doesn’t that mean any agency of the Government for purposes of Brady?

I mean, Brady… it’s very clear at this point that the Brady obligation does not depend on the prosecutor’s particular knowledge of an item of evidence.

If anyone representing the Government in that investigation had the evidence, the Government has an obligation to turn it over.

So that when you make a… or when someone made a statement that everything known to the Government had been disclosed, and it’s in connection with, among other things, a Brady issue that arises because of the ineffective assistance of counsel motion, isn’t the only natural reading of that response to be, yes, for Brady purposes everything known to the Government has been disclosed?

Isn’t that the fair reading?

Pamela A. Rumpz:

–It may be a natural reading, but interestingly enough it was not the reading by either of the parties in this case.

Pamela A. Rumpz:

It wasn’t intended that way by the warden and, as Strickler acknowledged–

David H. Souter:

Well, it may not have been intended by the warden, but isn’t that a proper basis upon which defense counsel could have understood it and, if so, why in the world is that not adequate cause for going no further?

Pamela A. Rumpz:

–Well, all right, assuming that this is… that is exactly how counsel could have understood it, as an unequivocal admission that there were no further Brady motion, the reason why it can’t operate as cause in this case is very simple.

The timing of the statement was made 2-1/2 months after Strickler filed his State habeas petition, which contained no claim of Brady error.

David H. Souter:

Well, it raised a claim of ineffective assistance predicated upon the failure to make a Brady motion.

The only way that claim of ineffective assistance could have succeeded would ultimately have been with a showing of prejudice.

Assuming you get over the prong of reasonable competence, you then have to show prejudice.

In order to show prejudice you at least would have to have shown Brady prejudice, and therefore the… it seems to me the filing of that motion raised the entire Brady issue right then and there.

And the response of the State was, there’s no reason to go into this court because the State, the Government has turned over all the evidence that it’s gotten.

Pamela A. Rumpz:

Well, I have to disagree.

I don’t believe that a separate and distinct allegation of ineffective assistance of counsel for failing or not doing something raises–

David H. Souter:

All right, then let me ask you this.

Pamela A. Rumpz:

–a distinct claim.

David H. Souter:

Let me ask you this.

Let’s assume that motion had been pursued.

And let’s assume that the… that counsel for the petitioner here had demonstrated to everyone’s satisfaction, including the court’s, and the court had said so, that in fact the lawyer’s failure to file a Brady motion during trial, or at the trial stage, had in fact been an inadequacy.

It had been a failure of reasonable representation.

Would the State at that point then have said, okay, we concede that there should be a new trial for failure of assistance of counsel?

Pamela A. Rumpz:

I guess I’m not following you.

David H. Souter:

My question is, would you have conceded error.

And I think the answer is, of course you wouldn’t have conceded error.

Pamela A. Rumpz:

Well, I think that’s true.

David H. Souter:

You would have said, look, they’ve only gone half way on the ineffective assistance point.

They’ve got to prove prejudice, and in order to prove prejudice they would have to have shown that if the Brady motion had been filed there would have been material forthcoming.

And if that material had been forthcoming, there is a reasonable probability within the meaning of that term in Brady that the result would have been different.

You would have required them to show prejudice.

And the reason I make this argument is that you’re saying, oh well, that’s… filing an inassistance motion is not like filing a Brady motion.

And my point is, of course it’s like filing a Brady motion, because you would not have conceded that they were able to succeed on the ineffective assistance unless they had proved what in effect would have been a Brady violation.

Pamela A. Rumpz:

And if they had made the required good cause threshold showing in State court they would have or could have been entitled to have their claim decided in the Federal courts.

David H. Souter:

Well, sure.

David H. Souter:

Ms. Rumpz–

Pamela A. Rumpz:

But they didn’t.

William H. Rehnquist:

–I notice that the opinion of the supreme court of Virginia in the State habeas proceeding came down in January 1995, which I think was somewhat before our decision in the Kyles case.

When were the… do you know when the actual proceedings in the Augusta County trial court were conducted in that case?

Pamela A. Rumpz:

In the State post conviction proceedings?

William H. Rehnquist:

Yes.

Pamela A. Rumpz:

Yes, I do.

He filed his State habeas corpus petition in the Augusta County Circuit Court in September of 1992.

We filed our motion to dismiss 2-1/2 months later in November of 1992.

John Paul Stevens:

Thank you.

What is… may I just finish up, because my reason for calling your attention to the statement in the… your motion to dismiss was not as profound as what you’ve discussed with Justice Souter.

It was to ask you whether, given the fact that the State at that time, which presumably would have read the newspapers at the time of trial and all the rest, was still able to say they thought everything had been turned over to the defendant.

Why is it that you can say the defendant should have read the newspapers and figured out otherwise a long time earlier?

Do you understand my question?

Pamela A. Rumpz:

I think I do.

John Paul Stevens:

You earlier said to me, well, they were on notice that there was… might well have been a Brady claim because the newspaper stories indicated that this wouldn’t have… may not have been reliable, a lot of other stuff.

But then 2 years later you’re saying the State is still taking the position that everything relevant had already been turned over, so it seems to me you can’t have it both ways.

Pamela A. Rumpz:

The State took the position that everything they were entitled to… I guess the question assumes that–

Antonin Scalia:

Maybe the State was lying.

You don’t have to take the position that the State wasn’t lying, do you?

[Laughter]

Pamela A. Rumpz:

–Well, I’d like to take that position.

Antonin Scalia:

I mean, I know you’d like to, but is that essential to your case?

Let’s assume it was a misrepresentation by the State.

Would that make any difference?

Pamela A. Rumpz:

In this case, no, it definitely would not.

But I guess your question, Justice Stevens, assumes that the evidence is Brady material.

And the Commonwealth’s position has always been that this evidence is not Brady material.

Now, the statement by the Warden could have been a reflection that there was nothing to be disclosed because none of this is Brady material, and that–

John Paul Stevens:

But is said–

John Paul Stevens:

–It said, Counsel, we’re voluntarily giving full disclosure of everything known to the Government, which suggests that they knew about the police files… which suggests that they didn’t know about the police files.

I think that’s your view.

Let me ask you this, did the lawyers at this time know about the police files?

Pamela A. Rumpz:

–Did the State habeas lawyers–

John Paul Stevens:

Yes.

Pamela A. Rumpz:

–representing the Commonwealth know?

Actually, I’m not clear whether they did or didn’t.

I think no.

John Paul Stevens:

And don’t you also think, no, that the prosecutor didn’t know at the time of trial?

Pamela A. Rumpz:

The prosecutor didn’t know of the five documents at the time of trial.

He had interrogatories where he says that he’s never seen those five documents before.

John Paul Stevens:

And do you also agree that if he had known of them, he would have had a duty to turn them over?

Pamela A. Rumpz:

Absolutely not.

John Paul Stevens:

You don’t agree with that?

Pamela A. Rumpz:

No.

Virginia law does not require the disclosure of mere witness statements.

What about Brady?

Pamela A. Rumpz:

Brady, of course, Virginia is required to with… to disclose–

Anthony M. Kennedy:

This is dynamite impeachment material.

Let’s just assume that.

Pamela A. Rumpz:

–I’ll assume that.

I won’t agree with that, but I will assume that.

Anthony M. Kennedy:

Well, I think it is.

But in all events, one of the things that puzzles me in this case, and I don’t know which way it cuts, is it seems to me that any attorney, trial, habeas, prosecutor, defense, ought to know that there’s witness notes taken by the officer, and nobody seems to ask for them, and I’m baffled by that.

Pamela A. Rumpz:

Well, in this case especially, I mean, the lawyers… of course, under Virginia law he wasn’t absolutely entitled to these statements.

Anthony M. Kennedy:

That’s my next point.

As trial counsel it’s not completely clear, assuming they’re not Brady material, that he could get these notes anyway, is it?

He’d have to call Claytor to the stand, he, the defense counsel, and ask Claytor, did you take any notes?

Pamela A. Rumpz:

Well, sure.

If–

Anthony M. Kennedy:

That’s about the only way you could do it, I suppose.

Pamela A. Rumpz:

–He certainly could have asked the judge to review them in camera.

He certainly could have probed Ann Stoltzfus’ testimony more when she said, hey, every time I spoke to the police it was Detective Claytor.

He could have talked to Detective Claytor about it–

Anthony M. Kennedy:

Under Virginia law, once she says she talked to Detective Claytor, can the defense counsel say to the prosecution, I’d like Claytor’s notes, please, and be assured that he’ll get them?

Pamela A. Rumpz:

–No.

Anthony M. Kennedy:

Pardon me?

Pamela A. Rumpz:

No.

Anthony M. Kennedy:

That’s what I thought.

Is–

–Ms. Rumpz, are you going to get to the prejudice half of the case?

Pamela A. Rumpz:

I’ll be happy to do that right now.

Anthony M. Kennedy:

Thank you.

Pamela A. Rumpz:

There is, for the same reasons that the Fourth Circuit found that there was no prejudice is also why there is no merit to the Brady claim.

First of all, it’s… the district court accepted as true, as true, the affidavit of Thomas Roberts, which said that Strickler was aware, or the defense team was aware at the time of trial that Stoltzfus’ testimony had evolved over time and that he was aware of the information contained in the Stoltzfus materials.

Now, contrary to what counsel said here this morning, Mr. Roberts’ affidavit didn’t say, I don’t recall seeing these documents.

He said, I don’t know whether I’ve seen them.

I don’t remember whether I’ve seen them, but I know that I knew what was in them, and I know that we were aware at the time of trial that her testimony had apparently evolved.

Stephen G. Breyer:

That isn’t the argument given by the Fourth Circuit.

The Fourth Circuit says, let’s assume that Stoltzfus never testified.

There was no prejudice, because even if she hadn’t testified, Strickler never contested that he abducted and robbed Whitlock.

In fact, counsel for Strickler argued to the jury during the guilt phase they should convict Strickler of first degree murder rather than capital murder because Henderson rather than Strickler actually killed Whitlock.

Thus, Stoltzfus’ testimony was not critical to the Commonwealth’s case, especially in view of the overwhelming evidence in the record independent of Stoltzfus’ testimony.

That’s the Fourth Circuit’s argument.

Pamela A. Rumpz:

And I stand corrected.

The Fourth Circuit did not mention the affidavit of Thomas Roberts.

Stephen G. Breyer:

No, no, but I want to know what you think of that argument, because when I read this sentence, in fact, counsel for Strickler argued to the jury during the guilt phase that they should convict Strickler of first degree murder rather than capital murder because Henderson rather than Strickler actually killed Whitlock.

When I focused on that I wondered, I’m not sure about Stoltzfus’ testimony.

Maybe it is critical, because maybe it was Stoltzfus who said that because Strickler was the gang leader, that put the idea in the jury’s mind that indeed Strickler was the one who threw the rock, or helped throw the rock, or directed the throwing of the rock, and without that testimony the jury would have thought no such thing.

Now, why isn’t that prejudice?

Pamela A. Rumpz:

First of all, under Virginia law it doesn’t matter who dropped the rock.

Stephen G. Breyer:

No, I’m not talking about that.

It certainly matters whether the jury thought Strickler was somewhere on the edge of the area in a car looking the other way, or whether Strickler participated in the throwing of the rock and killing the victim.

That’s–

–At least for purposes of the sentence it matters.

Yes, that’s what I’m talking about, just for purposes of the sentence.

So I would think it would matter a lot whether the jury did or did not think that Strickler was involved and participated in the actual killing.

Pamela A. Rumpz:

Stoltzfus’–

Stephen G. Breyer:

Doesn’t it?

Does that not matter whether he participated or not?

You’re free to please disagree with me if you do.

I mean–

Pamela A. Rumpz:

–In Virginia–

Stephen G. Breyer:

–don’t… yes.

Pamela A. Rumpz:

–In Virginia there’s what’s called the joint triggerman rule.

If both participants participate equally in inflicting the fatal blows, they are both guilty of capital murder.

Stephen G. Breyer:

No, no, but suppose Strickler was in the car looking the other way.

Would that make a difference under Virginia law?

Pamela A. Rumpz:

It certainly would.

Stephen G. Breyer:

All right.

Pamela A. Rumpz:

But Ann Stoltzfus’ testimony certainly doesn’t establish that once they reached that field–

Stephen G. Breyer:

No.

What Stoltzfus’ testimony establishes is that Strickler was the leader of the group, and that makes it more likely that Strickler would have participated in the killing itself, rather than been looking the other way.

That’s the chain of reasoning.

Pamela A. Rumpz:

–Well, it–

Stephen G. Breyer:

Now, I want you to address that chain of reasoning.

Pamela A. Rumpz:

–It was the–

Stephen G. Breyer:

You can pick it apart, or say it’s irrelevant, whatever you like.

Pamela A. Rumpz:

–It was the Commonwealth’s position at trial, and perhaps you have to see the rock to understand, but it was the Commonwealth’s position at trial that both parties would have had to participate in this killing.

The rock was a large, 69-pound-plus boulder that was long and narrow and required a substantial effort–

Stephen G. Breyer:

Required two people.

Pamela A. Rumpz:

–Yes, required two arms at least to hold the rock, and then to actually–

Stephen G. Breyer:

Somebody else to hold the victim.

Pamela A. Rumpz:

–And actually somebody would have had to hold her down to–

John Paul Stevens:

Why is that?

I never did follow… if she had just been raped and brutally attacked, isn’t it possible that she was immobile at that time?

Pamela A. Rumpz:

–I guess it’s possible, but I think… I, of course, stand to be corrected, but I believe that there’s testimony in… from the medical examiner that indicates that probably the first blow with the rock rendered her unconscious and she didn’t feel the other blows.

Now, whether the medical examiner was asked whether she was unconscious at the time of that first blow, I can’t recollect.

I’m sorry.

Anthony M. Kennedy:

Well, I think your response that you gave to Justice Breyer is rational and responsive, but it’s very thin evidence.

And if you couple it with Stoltzfus’ testimony that what… a Mountain Guy or Mountain Man, who was Strickler, was really the agitator, the prime actor the whole time she observed them at the shopping center, and this was the prosecution’s case, it would seem to me fairly clear that he was the one that killed her.

And without that testimony you have something… a very, very different case.

Pamela A. Rumpz:

I don’t think so for a couple of reasons.

First of all, we know that Strickler was the one driving the car when he entered the field where Whitlock was eventually murdered.

And second of all, we know that Strickler’s hairs appeared, or hairs microscopically identical in all respects to Mr. Strickler’s appeared on Whitlock’s discarded clothing, and those hairs–

Ruth Bader Ginsburg:

Were they discounted as being just microscopically also similar to Henderson’s?

Was there any test of Henderson’s hair so we could know?

I mean–

Pamela A. Rumpz:

–No.

Ruth Bader Ginsburg:

–This… this–

Pamela A. Rumpz:

I don’t believe that there was.

Ruth Bader Ginsburg:

–You said that there was overwhelming evidence, apart from Stoltzfus’ testimony, that Strickler was the one, the prime mover in the abduction and the robbery of Whitlock.

So I notice there was one witness that Mr. Estrada didn’t mention, and that was Virginia Smith.

Tell us what is your strongest case for saying there was overwhelming evidence without this witness.

Pamela A. Rumpz:

My strongest case is that Strickler was placed at the mall by two other independent witnesses at the time that Leanne Whitlock was due to return her boyfriend’s car to that very same mall.

Strickler was seen heading towards the exit of that mall at the same time that Whitlock was due to return that car to the mall.

Now, if you take out everything that Ann Stoltzfus saw after that–

Ruth Bader Ginsburg:

Who were those two people?

Pamela A. Rumpz:

–They were the mall security guard, Virginia Smith, who had received a report that two white males had been earlier trying to steal a Lincoln Continental from the mall parking lot.

She identified those males as Strickler and Henderson, and then she proceeded to watch them for the remainder of the afternoon.

David H. Souter:

Yes, but I don’t think the argument is the implication of Strickler in the murder.

I think the question that arises, at least it’s my question that arises on the prejudice issue, is this.

Stoltzfus’ testimony was not only, as has been pointed out, that Strickler seemed to be the lead person in this group, but the testimony also was that Strickler was slightly crazy.

And when we get to the point of trying to assess the probability that Strickler and not Henderson was the person who smashed the skull with the rock, the fact that the person is agitated to the point of being strange and weird and crazy is certainly evidence which I think the jury would have considered in saying, yes, the probability is that he was the one who used the rock and for that reason our discretionary decision at the sentencing phase is going to be to recommend death.

Without her testimony it seems to me the State’s case, as it were, for that train of reasoning would have been weaker–

Pamela A. Rumpz:

Well–

David H. Souter:

–and for that reason it seems to me that there may be materiality as to the discretionary sentencing decision.

Pamela A. Rumpz:

–Well, Strickler has never claimed that Stoltzfus’ testimony was in any way material to the sentencing.

David H. Souter:

Well, regardless of what he’s claimed, the question is whether the jury would have come to the same discretionary decision if, as… and let’s say on the reasoning of the Fourth Circuit, if her testimony had been excluded, was subject to very substantial impeachment on cross examination.

And it seems to me that the answer is quite possibly not.

And that, it seems to me, is the strongest argument for materiality here, and I want to know what your response is to that.

Pamela A. Rumpz:

I guess my response is, as I said earlier to another question, that under Virginia law both participants were equally culpable and equally guilty of capital murder.

David H. Souter:

Oh, and that goes to their guilt?

That goes to their eligibility, I presume under Virginia law–

Pamela A. Rumpz:

Uh huh.

David H. Souter:

–for the death penalty.

But my question is directed to the jury’s ultimately discretionary decision.

The jury says, okay, we understand that each one of them is subject to the death penalty.

We understand the joint triggerman rule.

Our question is… will, either, I guess, if they weren’t joint trials, our question is, will Strickler get the death penalty.

And the suggestion is that this woman’s testimony in showing him as the leader and a bit of a nut is testimony that would have probably had an influence on the jury, without which the jury might well have come to a different discretionary decision.

Pamela A. Rumpz:

Well, I guess I do disagree with that for a number of reasons.

First of all, Ann Stoltzfus still would have testified, and she still would have testified that that’s what she saw.

Now, assuming that this… she would have been impeached with this material, her testimony is still there, and the jury still knows what she saw.

David H. Souter:

But the jury might have said, this witness is unreliable.

Pamela A. Rumpz:

Second of all–

David H. Souter:

Mightn’t it?

Pamela A. Rumpz:

–Strickler was found eligible for the death penalty because he was future dangerousness… he was future dangerous.

He had 12 prior crimes that were used to prove his future dangerous, and because his crime was–

David H. Souter:

That’s death eligibility, and that’s conceded.

David H. Souter:

There’s no question about that.

Pamela A. Rumpz:

–And because his crime was vile.

And I think that when you… whoever dropped the rock, when you kidnap a woman, when you take her out into a remote field, you drop a rock on her head four times so badly that her skull is embedded in her brain, and there are indentations inches deep on the ground full of blood, that the fact that an earlier witness is impeached may affect the jury’s ultimate sentencing decision is quite a stretch.

David H. Souter:

Why didn’t Henderson get the death penalty?

Pamela A. Rumpz:

Because Henderson got the benefit of an improper jury instruction in his trial.

David H. Souter:

What was the instruction?

Pamela A. Rumpz:

The… he did not receive the joint triggerman instruction, the instruction in Virginia that says, if both parties are joint participants in inflicting the fatal blows, each is eligible for the death penalty.

David H. Souter:

So they could have found him ineligible–

Pamela A. Rumpz:

So–

David H. Souter:

–under the Henderson instruction.

Pamela A. Rumpz:

–Yes.

Henderson, if he had been, if his jury had been instructed as Strickler’s jury was instructed, then the results of Henderson’s trial may have been the same as Strickler’s.

Antonin Scalia:

Wasn’t there other direct evidence of… that he was the one that dropped the rock?

Pamela A. Rumpz:

And… thank you, Justice Scalia, there is.

There’s a wealth of other evidence that shows that he is the one that dropped the rock and that he was the instigator and the leader.

David H. Souter:

What other than Tudor?

What was the evidence other than Tudor?

Pamela A. Rumpz:

Tudor.

That’s the evidence.

David H. Souter:

Anything else?

Just Tudor.

Pamela A. Rumpz:

Tudor is the evidence, and–

Antonin Scalia:

Is there any reason why Tudor would have wanted to put it on him rather than on Henderson?

Pamela A. Rumpz:

–None that I know of.

I mean, there… the theory has always been that Donna Tudor was trying to protect herself.

Well, she could have protected herself equally by ratting out Henderson as opposed to Strickler, but the fact of the matter is, she testified that she was riding around in a car with him–

Antonin Scalia:

Strickler was her boyfriend as opposed to Henderson–

Pamela A. Rumpz:

–Her week long boyfriend, yeah.

Ruth Bader Ginsburg:

–Did she testify at the Henderson trial, too, and was the prosecution’s theory there that Henderson was the second man?

Pamela A. Rumpz:

Yes, and she did not testify at Henderson’s trial.

Pamela A. Rumpz:

She testified at Strickler’s trial.

Henderson had made a confession to another gentleman who ultimately was called at Strickler’s trial in defense of Strickler, but the Commonwealth called this gentleman to prove Strick… to prove Henderson’s involvement in Leanne Whitlock’s killing.

Tudor wasn’t needed in that regard.

And in Strickler’s trial Tudor was needed because she was the one that overhead him talk about using a rock crusher on a nigger, and Whitlock, of course, was black, so that definitely is additional evidence besides–

John Paul Stevens:

Was she ever indicted for anything?

Pamela A. Rumpz:

–Ann Stoltzfus’ testimony that she was the… he was the leader in this crime.

John Paul Stevens:

Was she ever indicted for anything?

Pamela A. Rumpz:

She was… I believe she was indicted for some sort of car theft.

Now, whether she was ever convicted or tried, or those were dismissed is not clear from this record.

John Paul Stevens:

Of course, she had all the jewelry from the victim and all and so forth, didn’t she?

Pamela A. Rumpz:

She had the victim’s earrings, and that’s another, I guess, factor that tends to show that Strickler was actively involved in what went on in the field, because he had Whitlock’s pearl earrings that she was wearing and–

Antonin Scalia:

But Henderson had the watch, as I recall, and–

Pamela A. Rumpz:

–Well, that’s true, but–

Antonin Scalia:

–Henderson gave the watch to his girlfriend.

Pamela A. Rumpz:

–Co participants–

Antonin Scalia:

That’s a wash.

Pamela A. Rumpz:

–Co participants in the crime.

But interestingly enough, Stoltzfus’ testimony is enhanced, or not enhanced but is supported by Strickler’s own post verdict admissions to the trial judge.

He admits that he was at the mall.

He admits that he got in the car with Whitlock at the mall, and he admits he went to the murder scene.

Anthony M. Kennedy:

None of that goes to the sentencing factor, however.

Pamela A. Rumpz:

No.

It definitely goes to the materiality of Stoltzfus’ testimony, because Strickler… and in closing argument, additionally, never contested that any of what Stoltzfus saw at the trial was correct, and he couldn’t have.

Even if he had–

John Paul Stevens:

No, because she was an extremely credible witness.

Everybody thought she was telling the truth.

Pamela A. Rumpz:

–Even if he had impeached Stoltzfus, even if he had impeached Stoltzfus with his testimony he still would have had to explain why he was at that mall, because two other people put him at that mall.

He still would have had to explain his possession of the car not an hour later, after what happened at the mall.

So her testimony becomes less critical.

John Paul Stevens:

Yes, in order to prove his innocence he would have had to do that, but in order to disprove the notion that he was the ringleader and all, he wouldn’t have had to do that.

Pamela A. Rumpz:

And he would have had to discredit Donna Tudor’s testimony, and he tried at trial.

He tried to discredit Donna Tudor’s testimony that–

John Paul Stevens:

But you have to acknowledge that she was not as credible a witness as Stoltzfus was.

Pamela A. Rumpz:

–Donna Tudor wasn’t?

John Paul Stevens:

Yes.

I mean, she had all sorts of reasons why one could be skeptical of her.

Maybe she told the truth 100 percent and Stoltzfus apparently did not, but nevertheless, the way they appear to the jury you can’t be sure which one seemed the more credible.

Pamela A. Rumpz:

Well, I see that I’m out of time and I guess I regret that I can’t answer that, but I think they both were important parts of the Commonwealth’s case.

William H. Rehnquist:

Thank you, Ms. Rumpz.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.