United States Court of Appeals,
Gary BENN, Petitioner-Appellee,
John LAMBERT, Superintendent of the Washington
State Penitentiary, Respondent-
Argued and Submitted Nov. 5, 2001--Pasadena,
Filed Feb. 26, 2002.
on direct appeal, 120
Wash.2d 631, 845 P.2d 289,
of his state murder convictions and death sentence, and denial of state habeas
Wash.2d 868, 952 P.2d 116,
petitioner sought habeas relief. The United States District Court for the
Western District of Washington, Franklin D. Burgess, J., granted petition and
ordered new trial. State appealed. The Court of Appeals, Reinhardt, Circuit
Judge, held that: (1) prosecution's withholding multiple pieces of critical
impeachment evidence that would have seriously undermined credibility of key
prosecution witness violated Brady; (2) prosecution's withholding experts'
findings that fire had accidental origin,
which would have undermined prosecution's profered motive for killings,
aggravating circumstance, and premeditation, violated Brady; and (3) state court's determinations
to contrary were unreasonable application of established Supreme Court law.
District court's decision to grant a petition for a writ of habeas
corpus is reviewed de novo. 28
U.S.C.A. § 2254.
A state court decision is "contrary to" clearly
established federal law for purposes of Antiterrorism and Effective Death
Penalty Act (AEDPA) if it fails to apply the correct controlling authority from
the Supreme Court. 28
U.S.C.A. § 2254(d).
A state court decision constitutes an "unreasonable
application" of clearly established federal law if the state court
identifies the correct governing legal rule but unreasonably applies it to the
facts of the particular state prisoner's case.
U.S.C.A. § 2254(d).
A state court's addition, deletion, or alteration of a factor in a
test established by the Supreme Court constitutes a failure to apply controlling
Supreme Court law under the "contrary to" clause of Antiterrorism and
Effective Death Penalty Act (AEDPA). 28
U.S.C.A. § 2254(d).
When analyzing the state court decision to determine if there was
"clear error," habeas court must
first consider whether the state court erred;
only after it has made that determination may it then consider whether
any error involved an unreasonable application of controlling law for purposes
of habeas petition. 28
U.S.C.A. § 2254(d).
 Criminal Law
In order for nondisclosure to constitute Brady violation, evidence at issue must be
favorable to the accused, because it is either exculpatory or impeachment
material, the evidence must have been suppressed by the State, either willfully
or inadvertently, and prejudice must result from the failure to disclose the
Evidence is deemed prejudicial, or material, for purposes of Brady violation only
if it undermines confidence in the outcome of the trial
For purposes of determining prejudice under Brady rule, the withheld evidence must be
analyzed in the context of the entire record., analyzing all suppressed evidence
Disclosure requirements set forth in Brady apply to a prosecutor even when the
knowledge of the exculpatory evidence is in the hands of another prosecutor.
Prosecution's failure to disclose
multiple pieces of critical impeachment evidence that could have been used to
undermine credibility of jailhouse informant who testified that defendant had
admitted committing murders was sufficient to violate Brady; state failed to disclose that witness,
while acting as informant in other cases, had stolen both drugs and money and
lied to police about it, that detective had written deactivation memo stating
that witness could no longer work as informant because he could not be trusted,
that witness had broken into police evidence room and stolen drugs, that witness
had smuggled guns into prison and then told prison officials about their
presence after concealing his own involvement; and that witness continually used
drugs during his time as informant. U.S.C.A.
Prosecution's failure to disclose additional impeachment evidence
concerning key witness in murder prosecution was not rendered immaterial and
nonprejudicial by disclosure of other impeachment evidence, where additional
evidence that witness was drug abuser, that he had record of criminal misconduct
while acting as informant for police, that he had repeatedly lied to police,
that he had not been prosecuted for his drug use, and that he was using drugs
during trial, was far more damaging than disclosed impeachment evidence of
witness's history as a paid informant in drug cases, his prior convictions,
reduction in his arson sentence, and fact that state was paying his motel and
food bills. U.S.C.A.
Nondisclosure of specific Brady impeachment evidence that key
prosecution witness had lied to police about defendant's involvement in series
of murders unrelated to homicides for which he was on trial, as evidenced by his
failure to produce promised videotape, was prejudicial.
The Brady rule requires prosecutors to disclose
any benefits that are given to a government informant, including any lenient
Government committed Brady violation in failing to disclose to
defense that prosecutor arranged during trial to have key prosecution witness
released without being charged after he was stopped for traffic offense and
picked up on outstanding warrants and that prosecutor's office dismissed charges
brought by local police department against witness for burglary; undisclosed
benefits that witness received would have impeached him more effectively than
disclosed evidence that he was granted immunity from arrest during trial.
State cannot satisfy its Brady obligation to disclose exculpatory and
impeachment evidence by making some evidence available and asserting that the
rest would be cumulative.
Undisclosed evidence that an informant had previously participated
in a heroin investigation was important impeachment evidence that could have
been used to discredit the informant's trial testimony that he had not
previously participated in that type of investigation.
In determining whether the failure to disclose impeachment evidence
about prosecution witness is sufficiently prejudicial to rise to the level of a Brady violation, court analyzes the totality
of the undisclosed evidence in the context of the entire record.
While the good faith or bad faith of the state is irrelevant when
material impeachment evidence has been withheld from the defense, stricter
standard of materiality--a standard of materiality that is more favorable to the
defendant--applies when the prosecutor has
knowingly relied on or condoned the use of perjured testimony.
State appellate court determination that failure to disclose
impeachment evidence about key prosecution witness was not prejudicial Brady violation was unreasonable application
of clearly established Supreme Court law, warranting federal habeas relief,
where nondisclosure of impeachment evidence, which would have revealed that
witness, who offered only testimony supporting some of state's profered motives
for killing, would have revealed witness to be unreliable, a "liar for
hire," and "ready to perjure himself," coupled with failure to
disclose that witness would testify until day before trial, undermined
confidence in the outcome of murder trial.
Prosecution's failure to disclose exculpatory evidence that fire at
defendant's trailer was accidental and not result of arson was sufficient,
standing alone, to constitute Brady violation in murder trial in which
evidence could have served to rebut prosecution's theory that murder was
motivated by arson- insurance fraud scheme.
Failure to disclose material, exculpatory Brady evidence that fire at defendant's
mobile home was not result of arson was not excused by disclosure of earlier,
tentative report suggesting that fire might have been accidental, where that
report was later displaced by interim report in which experts found no basis for
believing that fire was accidentally caused by furnace.
Failure to turn over exculpatory expert reports indicating that
mobile home fire was accidentally caused, which undermined prosecution's theory
that murder was motivated by arson-insurance fraud scheme, constituted Brady violation even though defendant could
have independently discovered experts' conclusions by interviewing them, where
prosecution had supplied defendant with earlier inculpatory
evidence that experts' views supported state's theory.
Defendant furnished with inculpatory evidence by the state is not
required to assume that the state has concealed material information and has
thereby obligated him to ascertain the Brady material on his own.
State court determination that prosecution's withholding
exculpatory evidence regarding accidental origin of fire was not material Brady violation constituted unreasonable
application of clearly established Supreme Court precedent, warranting federal
habeas relief, where evidence undermined prosecution's theory that murder was
motivated by arson-insurance fraud scheme and its main support for the
aggravating factor of common scheme or plan, as well as its contention that the
killings were premeditated, and prosecution misled defendant by disclosing
portion of experts' findings that, when read alone, would lead to conclusion
directly opposite to one they reached.
Suzanne Lee Elliott,
& David B. Zuckerman, Seattle, WA, for the petitioner-appellee.
Assistant Attorneys General, Olympia, WA, for the respondent-appellant.
Appeal from the United
States District Court for the Western District of Washington, Franklin D.
Burgess, District Judge, Presiding. D.C.
No. CV-98- 05131-FDB.
REINHARDT, TROTT and W.
The State of
Washington, through the superintendent of the Washington State Penitentiary,
appeals the district court's decision to grant Gary Michael Benn's habeas corpus
petition, arguing that the district judge erred in holding that the Washington
State Supreme Court decision was contrary to or involved an unreasonable
application of Brady
v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963),
and its progeny. Because we
hold that the state court's decision that there was no Brady violation in Benn's case constitutes an
unreasonable application of clearly established Supreme Court law,
On February 10, 1988,
Gary Michael Benn made a 911 call to the Pierce County Sheriff's Department from
the home of his half-brother, Jack Dethlefsen, and reported finding his
half-brother's body as well as the body of his half- brother's friend, Michael
Nelson. Officer Junge of the
Pierce County Sheriff's Department arrived at the scene three minutes later and
observed the bodies of the two victims on the floor in the living room.
Both men had been shot once in the chest and once in the back of the
head. He checked them for
vital signs and found none. The
bodies were still warm and bleeding, suggesting that both men had been killed
There was a bullet
hole in the couch in the living room consistent with someone having been shot
while on the couch. There
were also bloodstains that matched Dethlefsen's blood type on both the couch
itself and on a newspaper that was on it.
The medical examiner testified that Dethlefsen was shot in the chest
while on the couch because only the chest wound would have allowed him to move
around and end up on the floor where the police found him.
There was a .45
caliber handgun on the floor between the two bodies and a baseball bat next to
Dethlefsen's body. Dethlefsen's
head rested next to a gun cabinet and the glass face of the cabinet, which had a
shotgun in it, had been broken. Police
found a boot print that matched Benn's boot on a piece of broken
glass next to Dethlefsen's elbow. There
was also blood on one of Benn's boots with spatter patterns consistent with
Benn's having shot Nelson in the head while standing next to his body.
Benn was charged with
two counts of premeditated murder with the aggravating circumstance that the
murders were part of a common scheme or single act, and was given notice of the
government's intention to seek the death penalty. The defense conceded at trial that Benn had shot both
Dethlefsen and Nelson, but claimed that the shootings were in self-defense after
a spontaneous argument between Benn and Dethlefsen. The prosecution, however, contended that Benn had
planned the killings primarily in order to cover up his participation with the
victims in an arson-insurance-fraud scheme.
At trial, the prosecution relied heavily on various inculpatory
statements that Benn had allegedly made to Roy Patrick, a "jailhouse
informant" *1045 who was in Benn's cell block while Benn was
awaiting trial, as well as on highly circumstantial evidence relating to the
EVIDENCE AT TRIAL
On the day of the
shootings, Benn had been at Larry Kilen's barbershop before he went to
Dethlefsen's house. While at
the barbershop, Benn spoke to Dethlefsen on the phone and Kilen heard him say
"What the hell is going on? I
will be right back--I will be right there.
What's the matter? What
is that?" Benn told Kilen that
Dethlefsen was drunk and wanted him to come over because
he had fallen down. Multiple
witnesses at trial testified that Dethlefsen was an alcoholic, and his autopsy
revealed that he had a blood alcohol content of 0.07 at the time of his death. Similarly, Nelson's autopsy revealed that he had a
blood alcohol content of 0.11.
Benn denied that he
went to Dethlefsen's house with the intention of harming either Dethlefsen or
Nelson. A police search of
Benn's car revealed that he had a .22 caliber pistol in the car that he had not
taken inside the house with him. Benn
did not testify at the trial and much of his version of the events was presented
through statements he made to his brother, Monte Benn ("Monte").
Monte testified that
Benn had described the following series of events to him: When Benn went into Dethlefsen's house on the day of the
shootings, he found a piece of paper on the kitchen counter with Gail Fisk's
phone number on it. Fisk was
Benn's ex girlfriend with whom he had been trying to reconcile. Benn thought
that Dethlefsen and Nelson were harassing Fisk because he had seen Nelson's car
at Fisk's house on occasion. Benn
had questioned Dethlefsen about Fisk previously but Dethlefsen had denied
harassing her. After Benn
discovered the note with Fisk's phone number on it, he took the note into the
living room and confronted Dethlefsen.
In response, Dethlefsen said, "Well Benny, you got me" and
reached for the .45 caliber gun that he routinely kept on his living room coffee
table. Benn then grabbed the
gun and shot Dethlefsen in self-defense.
After being shot, Dethlefsen moved toward the gun cabinet.
Nelson then got up and threw a beer can at Benn. Benn remembered shooting
Nelson, but did not remember much else.
Monte testified that
he got the impression that the shooting was in self- defense.
He also told the jury that Dethlefsen had a reputation for violence in
the community. Other evidence
presented at the trial corroborated parts of Benn's story.
Experts testified that the path of the bullet that struck Dethlefsen's
chest and then entered the back of the couch was consistent with Dethlefsen
being in the act of rising from the couch at the time he was first shot.
Moreover, Deputy James Jones testified that Dethlefsen probably broke the
glass face of the gun cabinet "as he fell ... after being wounded" or
while he was "trying to get a weapon."
The defense theory was that Benn shot Dethlefsen a second time because
Dethlefsen was trying to get another gun. During the investigation, the police
also found an empty beer can underneath Nelson's right knee.
This was consistent with Benn's claim that Nelson threw a beer can at him
while he was standing next to the living room table near where the bodies were
Roy Patrick, a
"jail house informant" who shared a cell with Benn when Benn was
awaiting trial, testified on behalf of the prosecution.
According to Patrick's testimony, Benn confessed to him and asked Patrick
to help him find someone "on the outside" who would be willing to take
the blame for the murders. Patrick
testified that Benn drew diagrams of the murder scene and gave
him details about the murder to relay to the person he found *1046 so
that the person's statements would be believable.
theory was that the shootings were part of a common plan or scheme.
Patrick's testimony provided critical support for that theory.
Specifically, he testified that Benn told him about his involvement in a
conspiracy with Dethlefsen and Nelson to perpetrate an insurance fraud.
According to Patrick's testimony, Benn, Dethlefsen, and Nelson staged a
"burglary" of Benn's trailer and collected the insurance.
Then, a few months later, they burned down the trailer and collected
insurance again. Both times,
however, Benn refused to share the proceeds with Dethlefsen and Nelson.
Nelson and Dethlefsen then threatened to disclose the crimes to the
police, and Benn killed them to keep them from doing so.
Benn did in fact
report a burglary of his trailer on October 12, 1987, but the only evidence of
an insurance fraud with respect to that burglary (aside from Patrick's
testimony) was the fact that Benn reported that ivory carvings were taken in the
burglary and the police recovered some ivory figures from Dethlefsen's bedroom
closet after he was killed. After
the trial, however, a friend of the family stated that the half-brothers both
owned ivory figures from Alaska.
Similarly, there was a
fire at Benn's trailer on December 11, 1987, but there was little, if any,
evidence, aside from Patrick's testimony, that the fire was intentionally
started. There was testimony
that Dethlefsen, an electrician, had worked on the furnace in Benn's trailer and
that some possessions that Benn normally kept in the trailer were not there on
the day of the fire. Additionally, Benn did tell Monte that he was nervous about
fire insurance fraud charges being filed against him because he claimed more
than he should have after the fire, but he never told Monte that he had started
the fire. The prosecution emphasized that Benn sent in a payment for his home
insurance on the day of the fire. According
to the insurance agent, however, the payment was not late and it was to cover
January and February insurance. Benn had already made payments to insure the trailer
for December, the month of the fire.
The defense attempted
to prevent the arson-insurance-fraud theory from being mentioned at trial by
arguing in a motion in limine that there was no evidence of arson.
In ruling that the information was admissible, the trial court said
"This is probably the key decision in this case."
The trial judge went on to state that:
So far as the probative value is concerned, it goes to the very
heart of the case. It is the
kind of evidence that the State must and needs to prove if it's going to prove
the aggravating factor that is involved in this case, and if it is going to
prove premeditation. Without
it, the State doesn't have a case for aggravated murder, or maybe doesn't have a
case for pre-meditated murder.
It is an essential ingredient.
In addition to
testifying about Benn's burglary-arson-insurance-fraud motive, Patrick also
testified that Benn wanted to kill Dethlefsen because Dethlefsen had removed
Benn from his will and had given Benn's portion of his estate to a friend named
William Hastings. Hastings
testified that he was listed as a beneficiary in Dethlefsen's will, although
there was nothing in the estate because Dethlefsen was so much in debt.
Hastings did, however, get $40,000 from a separate life insurance policy.
Patrick did not say anything about a life insurance policy.
testified that Benn told him that he had tried to hire someone named
"Pete" to kill Dethlefsen for $500 but then changed his mind. Benn
told Patrick that he wanted whoever took the rap for the murders to kill Pete.
The prosecution *1047 emphasized this point in closing arguments noting
that Benn tried to "reach out" and kill someone from prison.
The defense sought to
impeach Patrick on cross-examination by establishing that Patrick was in jail
with Benn because he had pled guilty to and was awaiting sentencing for
second-degree arson. There
was a 6 to 12 month sentencing range for this offense and the prosecution had
originally asked for a 9 month sentence.
Based on Patrick's cooperation, he received 6 months rather than nine.
With good time credits for his work in prison, however, Patrick would
have needed to serve only an additional 35 days even if he had received
the 9 month sentence originally sought by the prosecutors.
Moreover, the prosecution downplayed the importance of the sentence
reduction in closing arguments by stating "[t]he reward that he got was
that in a 6 to 12 month sentence, he got six months instead of nine months.
The defense also
sought to impeach Patrick by eliciting testimony that Patrick had been ordered
to pay costs and restitution for his arson conviction and had failed to do so;
that he had previous convictions for fraud by wire, burglary, and arson;
that he had been paid for his testimony as an informant; that the State was paying for his food and hotel expenses
while he was testifying; and that
the subpoena used to bring Patrick to the State of Washington for Benn's trial
protected him from arrest or criminal process while he was in town.
During the trial, a
third party told the defense that the police had executed a warrant to search
Patrick's hotel room based on a tip that Patrick was dealing drugs from the
room. His room had been
searched and crack pipes, a bong, rolling paper, a razor blade, and a copper
brillo pad were recovered, but no arrests were made.
The prosecution knew about this search and failed to disclose information
about it to the defense. The
defense did not learn the name of the confidential informant who had provided
the information for the warrant until after the trial.
At a later evidentiary hearing, the informant, Melvin Stevens, testified
that Patrick was doing drugs while he was in Washington for Benn's trial.
Stevens also said that Patrick told him that Benn
did not commit the murder, but that Patrick knew enough to convict him and
needed the money.
FN1. As part of its factual findings following the post-conviction
evidentiary hearing, the Pierce County Superior Court found that Stevens was not
a credible witness.
Sherrie Woodard was one of the individuals who was with Patrick
when his hotel room was searched. She
testified at the state court evidentiary hearing that Patrick told her that he
planted drugs in places in order to make busts when he was working as an
informant and that Detective Padukiewicz, Patrick's supervisor, knew about it.
She also said that Patrick would keep some of the drugs from the busts
and that the detectives knew about this as well.
When Woodard went to Patrick's hotel room during the Benn trial, she saw
a large amount of money that Patrick said the police had given to him. Patrick also suggested to her that he was willing to
lie to get out of trouble. She
said Patrick's reputation for truthfulness was not very good.
Upon learning about the hotel room search during the trial, the
defense moved for a continuance to have the opportunity to question Woodard and
others involved in the hotel room search; however,
the judge denied the motion.
"Pete" Hartman testified on behalf of the prosecution and said that
Benn offered to pay him to kill Dethlefsen.
Hartman said that he initially thought it was just talk and that he never
took Benn up on his offer. [FN2]
Denver Carter, a former *1048 roommate of Benn's, testified for
the prosecution as well and said that Benn admitted to him that he had shot
Dethlefsen and Nelson. At one
point, Carter said that Benn told him that a man named "Pete" owed him
a favor and that Benn had a job for him, but that Benn never mentioned what the
job was. Benn told Carter
that, when Benn called Dethlefsen's house on the day of the murder, no one was
supposed to answer the phone, but Benn never explained what that meant.
FN2. Benn directed his counsel at trial not to cross-examine Hartman
"for fear that his family would be harmed." Benn told his lawyer that he was convinced that Hartman
was threatening his family even though his family said there were no such
threats. The defense called
no witnesses until rebuttal because of these fears. During the trial, Benn's competency was re-evaluated
three different times with conflicting expert opinions about whether he was or
was not competent. Each time,
the trial court ultimately deemed him competent and allowed the proceedings to
continue. Benn learned during the
post-conviction proceedings that he could
have impeached Hartman with the witness's admitted intoxication and hearing
difficulties at the time he spoke with Benn.
After deliberating for
approximately seven and a half hours, the jury returned a verdict of guilty on
both counts of premeditated murder. The
jury also found that the murders were part of a common scheme or plan but did
not find that they were the result of a single act of the defendant.
The jury then recommended that Benn be sentenced to death, and he was.
REVEALED AFTER TRIAL
Although on December
16, 1988, over two years before the trial began, the defense requested that the
prosecution disclose all evidence in its possession that was favorable to the
defendant, a great deal of impeachment evidence relating to Patrick, as well as
important exculpatory evidence relating to the alleged arson-insurance-fraud
allegation, was not turned over to the defense until after both the guilt and
penalty phases of the trial had ended.
(1) Impeachment Evidence Related to Patrick
Even though the
prosecuting attorneys had taken their first statements from Patrick over a year
before the trial, Patrick's identity was not disclosed to the defense until the
day before trial when he was added to the witness list. [FN3]
Pierce County Assistant Prosecuting Attorney Michael Johnson lied to the
defense and stated that Patrick's identity could not be disclosed because he
was in a witness protection program.
It was later discovered that he was never in such a program.
FN3. Walter "Pete" Hartman and Denver Carter were also
surprise witnesses who were not on the original witness lists.
Both of these witnesses were "discovered" by the prosecution
during the trial, well after opening statements had been delivered, and after
the defense theory had been presented to the jury.
The day that Benn's
trial was scheduled to begin, the defense brought to the court's attention the
fact that Brady material relating to Patrick had not
been provided. The defense
noted specifically that it did not have information about Patrick's prior
contacts with the police, including whether Patrick had made statements in the
past that had turned out to be incorrect. The trial court agreed and ordered the
prosecution to turn over any written material relating to Patrick's contacts
with law enforcement in the year prior to the murders.
No such material was ever produced.
The court also stated that "the prosecutor would have an obligation
to tell [the defense] if there's prior situations where the informant had not
been truthful." Prosecutor
Johnson acknowledged this obligation and stated that they "ha[d] been
notified of no such situations, your Honor."
The prosecution never turned over any information
that Patrick had engaged *1049 in improper conduct while acting as an
informant. It was later
discovered that the prosecution did not attempt to obtain this information from
any of the police detectives working on the case.
Additionally, the defense later discovered that Detectives Ronald Lewis
and Thomas Padukiewicz, both of whom supervised Patrick while he was assisting
in law enforcement investigations, knew that Patrick had stolen both drugs and
money during drug busts and that he had lied to the police about it.
The defense was never told about this.
Detective Padukiewicz had even gone so far as to write up a
"deactivation memo" stating that Patrick could no longer work as an
informant because he would not abide by department rules.
The defense was never told about Patrick's deactivation.
The defense was also
not informed that Patrick had broken into the evidence room of the California
Bureau of Narcotics Enforcement while working as an informant and had stolen
drugs that the police had previously seized. Nor was the defense told that, as a
result of this offense, Patrick was charged with burglary and numerous counts of
obstruction of justice and ultimately pled guilty to burglary.
The state did not
inform defense counsel that Patrick had admitted to making false charges while
in prison on a fraud conviction in the early 1980's. Patrick had believed that
he could get his time reduced if he reported the presence of firearms within the
prison. He therefore had
shotguns smuggled into the prison and then
told the officials that he had found them.
The prison officials discovered the scheme, and Patrick's prison sentence
The prosecution failed
to disclose that Patrick was given $150 during Benn's trial as an advance
payment for a video-tape that Patrick claimed he had in his possession, showing
a prostitute being murdered by Benn and several other men. Patrick said that the
video was related to the "Green River case," a high profile serial
murder investigation. Patrick
never produced the tape, and the detectives working on the case said that they
thought Patrick was lying about its existence, and that his story about Benn
being involved in the "Green River" murders was "trash."
The detectives also stated that they had spoken with the prosecutors in
Benn's case about the tape and the money that was paid to Patrick.
The prosecution, however, never told the defense about either the false
tale of a "Green River" murder tape or the payment that Patrick had
When Patrick was in
Washington for Benn's trial, he was stopped for a traffic offense and arrested
because of some outstanding warrants.
He called Prosecutor Johnson from jail, and Johnson ensured that he was
released without being charged. The
defense was never told about the arrest or Johnson's actions.
During the trial, the
Fife County Police Department submitted police reports to
the Pierce County prosecutor requesting that Patrick be charged with burglary.
The prosecutor's office entered an "NCF" (no charges filed) the
same day that closing arguments ended in the penalty phase of Benn's trial. This
fact was never disclosed to the defense.
During Benn's trial,
the prosecution arranged to postpone the filing of a warrant that was going to
be issued because Patrick had violated probation. Patrick's probation officer
had been told by the prosecutors not to do anything on the violation report or
the order to issue a bench warrant. The
warrant did not issue until two weeks after the verdict in Benn's case.
The prosecution never told the defense that it had prevented the issuance
of the warrant.
Testimony at the state
habeas evidentiary hearing revealed that Patrick had acted *1050 as an
informant in a murder case prior to Benn's trial, although at the trial he
denied ever having done so previously.
The defense was never told that Patrick had been an informant in a prior
murder case and that in that case also he had claimed that the defendant had
confessed to him while in jail.
At trial, Patrick
denied that he used drugs while acting as an informant; however, testimony at a post-conviction evidentiary hearing
revealed that he continuously used drugs during his time as an informant and
that the police knew about it. This
information was not disclosed to the defense.
Exculpatory Evidence Related to the Arson-Insurance-Fraud Allegation
The prosecution turned
over two reports describing the December 11, 1987 fire at Benn's trailer.
The first was a February 12, 1988 report tentatively concluding that the
fire was an accident. After this report was prepared, Deputy Fire Marshal Ted
Thompson and Electrical Inspector Walter Erickson conducted a more thorough
re-examination of the site. After
the re- examination, Thompson and Erickson both conclusively determined that the
fire in Benn's trailer was accidental.
According to Erickson, the Coleman furnace in Benn's trailer was the same
make and model as the one that he owned, and this particular make and model had
been recalled by the manufacturer due to a flaw that causes fires.
Moreover, Fire Marshal Thompson concluded that the fire was accidental
First, it is not uncommon for electrical heaters in older mobile
homes to accidentally malfunction and cause fires. Second, there were no accelerants, such as gasoline in
the trailer. Third, it is not
uncommon for electrical heaters to malfunction in the winter .... Fourth, I
opened up the front of the electrical heater and everything appeared to be in
place; I observed nothing
suspicious.... My fifth reason for determining the fire was accidental, not
arson, was that I observed only one locale where the fire originated (the
furnace), not multiple locales. Sixth,
I saw no signs of forced entry, which are indicative of arson.
After the re-examination, a second and more detailed report
was prepared on March 30, 1988. The
second report, which was turned over to the defense, was misleading.
Its only reference to the conclusions of Fire Marshal Thompson and
Electrical Inspector Erickson was in a section stating that there was "no
fault or failure" of the lead electrical wire and no evidence of tampering
with the fuse panel. The
March 30, 1988 report did not state that both the fire inspector and deputy
marshal had concluded that the fire was accidental and could not have resulted
from arson. Rather, it offered no definitive conclusion regarding
the cause of the fire. It did
not state that there had been a manufacturer's recall of this type of furnace
and that it was the same type of furnace that Erickson had in his own home.
To the contrary, it suggested that Coleman furnaces did not cause fires.
Specifically, the March report stated that Al Pearson, the furnace
technician, said that "he could find and think of no situation in which a
furnace[such as a Coleman] had caused a fire in a mobile home."
Finally, the report did not relate the six reasons Fire Marshal Thompson
gave for concluding that the fire was accidental.
Benn appealed his
convictions as well as his capital sentence.
His direct appeals were denied by the Washington Supreme Court in Washington
v. Benn, 120 Wash.2d 631, 845 P.2d
with *1051 three justices dissenting.
Benn then initiated state habeas corpus proceedings and an evidentiary
hearing was held. The
Washington Supreme Court denied the state habeas petition.
re Benn, 134 Wash.2d 868, 952 P.2d
It did not deny that the state improperly withheld evidence to which Benn
was entitled, but it found that the state's actions were not prejudicial.
Two justices dissented, arguing that Benn should have received a new
trial because of the state's failure to turn over exculpatory and impeachment
Benn filed a federal
habeas petition in the Western District of Washington alleging 22 errors,
including his allegation that the prosecution withheld crucial exculpatory and
impeachment evidence in violation of his due process rights.
The district court agreed with Benn that material evidence had been
withheld in violation of his constitutional rights, granted his petition for a
writ of habeas corpus, and ordered a new trial without even considering the 21
other grounds of error asserted in his petition.
v. Wood, No. C98- 5131RDB, 2000 WL
1031361 (W.D.Wash. June 30, 2000). The state now
appeals the district court's decision.
We affirm the district court.
III. STANDARD OF
We review a district court's decision to grant a petition for a writ of
habeas corpus de novo. Miles
v. Prunty, 187 F.3d 1104, 1105 (9th
Because Benn's petition was filed after April 24, 1996, the amendments to
U.S.C. § 2254 under the Anti-Terrorism and Effective Death Penalty
Act ("AEDPA") apply. Van
Tran v. Lindsey, 212 F.3d 1143,
1148 (9th Cir.2000).
FN4. In arguing that the district court should be reversed, the state
asserts that the district court failed to state explicitly in its opinion how
the state court decision was contrary to federal law and that this failure shows
that the district court did not apply the AEDPA standard. The state is wrong for
two reasons. First, the
district court carefully described the AEDPA standard in a full paragraph at the
beginning of its opinion and stated that Benn was not entitled to relief unless
that standard was satisfied. Benn
v. Wood, No. C98-5131RDB, 2000 WL
1031361, at *2 (W.D.Wash. June 30, 2000). After
expressing his reluctance to overturn a Washington Supreme Court decision, Judge
Burgess granted Benn habeas relief because the prosecution withheld material
evidence in violation of Brady
v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), and because the importance and sheer amount of withheld evidence
"seriously " undermined confidence in the verdict.
2000 WL 1031361, at *2.
Thus, it appears that the district court did apply the AEDPA standard. Second, our review of the district court's decision is de
v. Prunty, 187 F.3d 1104, 1105 (9th
Thus, any error in applying the AEDPA standard would be of no consequence
on this appeal.
Under AEDPA, a federal court may grant a writ of habeas corpus to a state
prisoner only if the state court's decision is "contrary to, or involve[s]
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States" or is "based on an
unreasonable determination of the facts in light of the evidence presented"
in the state courts. 28
U.S.C. § 2254(d). A state court
decision is "contrary to" clearly established federal law if it
"failed to apply the correct controlling authority from the Supreme
v. Hubbard, 234 F.3d 1072, 1077
see also Williams
v. Taylor, 529 U.S. 362, 405-07,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Packer
v. Hill, 277 F.3d 1092 (9th
A *1052 state court decision constitutes an "unreasonable
application" of clearly established federal law "if the state court
identifies the correct governing legal rule ... but unreasonably applies it to
the facts of the particular state prisoner's case."
529 U.S. at 407, 120 S.Ct. 1495.
FN5. The addition, deletion, or alteration of a factor in a test
established by the Supreme Court also constitutes a failure to apply controlling
Supreme Court law under the "contrary to" clause of AEDPA. See
v. Taylor, 529 U.S. 362, 405-06,
120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown
v. Mayle, No. 99-17261, --- F.3d
----, at ----, 2002 WL 187415, at *17 (9th Cir. Feb. 7, 2002)..
FN6. In both "contrary to" and "unreasonable
application" cases, the erroneous state court ruling must also satisfy Brecht
v. Abrahamson, 507 U.S. 619, 637,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (requiring that the error have had a substantial or injurious
effect on the verdict). See
277 F.3d 1092 at 1102.
Where, as here, however, the alleged error is a Brady violation, the petitioner need show
only that the state court's Brady ruling was erroneous under AEDPA,
because a Brady error a fortiori satisfies Brecht.
v. Whitley, 514 U.S. 419, 436, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("[O]nce there has been Bagley error ... it cannot subsequently be
found harmless under Brecht.");
473 U.S. at 678, 105 S.Ct. 3375
(holding that, in order to establish a Brady violation, a petitioner must show
[FN7] the Washington Supreme Court applied
the rule in Brady
v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963),
and its progeny [FN8]--a
rule clearly established by controlling Supreme Court precedent. Therefore, the state court ruling is properly analyzed
under the "unreasonable application" clause of AEDPA.
To be "unreasonable" under AEDPA, the Washington Supreme Court
decision must leave us "with a 'firm conviction' that one answer, the one
rejected by the[state] court, was correct and the other, the application of the
federal law that the [state] court adopted, was erroneous--in other words that
clear error occurred." Van
Tran, 212 F.3d at 1153-54.
When analyzing the state court decision to determine if there was
"clear error," "we must first consider whether the state court
erred; only after we have made that
determination may we then consider whether any error involve[s] an unreasonable
application of controlling law...." Van
Tran, 212 F.3d at 1155.
Here, we conclude that the Washington Supreme Court erred in ruling that
the prosecution's failure to disclose critical impeachment and exculpatory
evidence did not violate Brady and its progeny.
Because we also hold that the state court's ruling was clearly erroneous
and thus objectively unreasonable under AEDPA, Benn is entitled to habeas
FN7. We look to the Washington Supreme Court's state habeas decision
because, when conducting an AEDPA analysis, we examine the state court's last
reasoned decision. See Shackleford
v. Hubbard, 234 F.3d 1072, 1079 n.
2 (9th Cir.2000).
The state court cited to and appears to have applied (albeit clearly
States v. Bagley, 473 U.S. 667,
676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and United
States v. Agurs, 427 U.S. 97, 110,
96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), in addition to Brady.
IV. THE WASHINGTON
SUPREME COURT'S OBJECTIVELY UNREASONABLE BRADY ERRORS
In Brady, the Supreme Court held that the
"suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
punishment, irrespective of the good faith or bad faith of the
at 87, 83 S.Ct. 1194.
Supreme Court cases following Brady clearly established that the defendant
must prove three elements in order to show a Brady violation. First, the evidence at issue must be favorable to the
accused, because it is either exculpatory or impeachment material.
States v. Bagley, 473 U.S. 667,
676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Second, the *1053 evidence must have been suppressed by
the State, either willfully or inadvertently.
States v. Agurs, 427 U.S. 97, 110,
96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Third,
prejudice must result from the failure to disclose the evidence. See Bagley,
473 U.S. at 678, 105 S.Ct. 3375.
 Evidence is deemed prejudicial, or material, only if it undermines
confidence in the outcome of the trial.
473 U.S. at 676, 105 S.Ct. 3375;
427 U.S. at 111-12, 96 S.Ct. 2392.
[FN9] For purposes of determining prejudice,
the withheld evidence must be analyzed "in the context of the entire
427 U.S. at 112, 96 S.Ct. 2392.
Moreover, we analyze all of the suppressed evidence together, using the
same type of analysis that we employ to determine prejudice in ineffective
assistance of counsel cases. See Bagley,
473 U.S. at 682, 105 S.Ct. 3375
(opinion of Blackmun, J.); [FN10]
see also United
States v. Shaffer, 789 F.2d 682,
688-89 (9th Cir.1986)
(analyzing collectively the prejudice resulting from the state's suppression of
four different pieces of impeachment material).
FN9. The Supreme Court refers to the requirement that the defense
establish that the suppressed evidence was prejudicial to the outcome as a
"materiality" requirement and/or a "prejudice" requirement.
373 U.S. at 87, 83 S.Ct. 1194
(requiring that the suppressed evidence be "material" to guilt or
at 88, 83 S.Ct. 1194
(referring to the state's suppression of a confession as "prejudicial"
to the defendant). The terms
"material" and "prejudicial" are used interchangeably in Brady cases. Evidence is not "material" unless it is
"prejudicial," and not "prejudicial" unless it is
for Brady purposes, the two terms have come to
have the same meaning.
FN10. Justice Blackmun's comparison of the prejudice
inquiry under Brady to that under Strickland
v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), was joined by Justice O'Connor. Justices Brennan and Marshall dissented arguing for an
even stricter standard of materiality that would have required reversal in all
cases in which the prosecution suppressed exculpatory or impeachment evidence
unless it was clear beyond a reasonable doubt that the withheld evidence would
not have affected the outcome. See
at 704, 104 S.Ct. 2052
(Marshall, J., dissenting). Justice
Stevens would have applied different standards of materiality depending on
whether the defendant made a request for Brady information or not.
at 711, 104 S.Ct. 2052
(Stevens, J., dissenting). In
a case such as Benn's, in which the defense did make a Brady request, Justice Stevens would have
applied a stricter materiality standard as well. See id.
The Supreme Court has not limited the Brady rule to cases in which the defense has
made a pretrial request for specific evidence. See Agurs,
427 U.S. at 103-07, 96 S.Ct. 2392.
In Agurs, the Court held that Brady applies
where the defense makes a general request for exculpatory evidence and even
where the defense does not make a request for such evidence at all.
at 106, 96 S.Ct. 2392.
Thus, the terms "suppression," "withholding," and
"failure to disclose" have the same meaning for Brady purposes. Similarly, the disclosure
requirements set forth in Brady apply to a prosecutor even when the
knowledge of the exculpatory evidence is in the hands of another prosecutor.
v. United States, 405 U.S. 150,
154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ("The prosecutor's office is an entity and as such it is the
spokesman for the Government.").
Here, the state does not contest that it was required to disclose the extensive
impeachment evidence pertaining to Patrick.
It simply contends, as did the Washington Supreme Court, that the failure
to produce that evidence did not result in prejudice under Brady.
We conclude that the state court erred in that determination.
Similarly, we conclude that it erred in holding that there was no Brady *1054 violation resulting from
the prosecution's failure to disclose exculpatory evidence about the cause of
the fire at Benn's trailer. Because
we conclude that the suppressed impeachment evidence and the suppressed
exculpatory evidence are each, standing alone, sufficiently prejudicial to merit
relief under Brady, they are a fortiori sufficiently
prejudicial when analyzed together. We
therefore hold that the state court erred when conducting its Brady analysis. We also hold that the state court
ruling was clearly erroneous and constitutes an "unreasonable
application" of Brady and its progeny.
Therefore, Benn is entitled to habeas relief.
PROSECUTION'S FAILURE TO DISCLOSE CRITICAL IMPEACHMENT EVIDENCE THAT COULD HAVE
BEEN USED TO UNDERMINE PATRICK'S CREDIBILITY IS SUFFICIENT, STANDING ALONE, TO
CONSTITUTE A Brady Violation.
The prosecution failed
to disclose multiple pieces of critical impeachment information that could have
been used to undermine the credibility of Patrick, a prosecution witness whose
testimony was crucial to the state's claims of premeditation and common scheme
or plan, as well as to the state's theory regarding Benn's principal motive for
killing the two individuals. Because Patrick is a witness whose "
'reliability ... may well be determinative of guilt or innocence,' nondisclosure
of evidence affecting [his] credibility falls within [the Brady ] rule."
405 U.S. at 154, 92 S.Ct. 763
v. Illinois, 360 U.S. 264, 269, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959)); see also Carriger
v. Stewart, 132 F.3d 463, 479 (9th
("Material evidence required to be disclosed includes evidence bearing on
the credibility of government witnesses.");
789 F.2d at 689
("[E]vidence affecting the credibility of a government witness has been
held to be material under the Brady doctrine.").
(1) Patrick's history of misconduct while
acting as an informant
The prosecution failed to disclose evidence of Patrick's
persistent misconduct while acting as an informant, even though the trial judge
explicitly ordered the state to disclose all such information to the defense.
Specifically, the state failed to disclose:
that Patrick, while acting as an informant, had stolen both drugs and
money during drug busts and had lied to police about it; that a detective had
written a deactivation memo stating that Patrick could no longer work as an
informant because he could not be trusted to follow departmental rules;
that Patrick, while acting as an informant, had broken into an evidence
room and stolen drugs, resulting in burglary and obstruction of justice charges
being filed against him; that
Patrick had smuggled guns into a prison where he was housed, concealed his own
involvement, and then told prison officials of the presence of the weapons in an
effort to have his sentence reduced; and
that although Patrick testified at trial that he did not ever use drugs, he
continually did so during his time as an informant.
The state does not contest that this evidence was impeachment material that was
suppressed by the prosecution. Rather,
it contends that the suppressed material was cumulative and its suppression
harmless because Patrick was sufficiently impeached by questions about his
history as a paid informant in drug cases, his prior convictions, the reduction
in his arson sentence, and the fact that the state was paying his motel and food
bills. See United
States v. Vgeri 51 F.3d 876, 880
(undisclosed impeachment evidence is
immaterial and cumulative when the witness is already sufficiently *1055
impeached); see also Ortiz
v. Stewart, 149 F.3d 923, 936 (9th
undisclosed impeachment evidence in this case was substantial and was far more
damaging to Patrick's credibility than the impeachment evidence available to the
defense at trial. If
anything, the police-sanitized version of Patrick's fifteen years of work as an
informant increased his credibility in the eyes of the jurors.
The jury was told only that the police routinely relied on Patrick for
help with drug investigations. Information
demonstrating that Patrick had regularly lied to the authorities while acting as
an informant, was untrustworthy and deceptive, and was even willing to fabricate
crimes in order to gain a benefit for himself would have severely undermined his
credibility. The mere fact that a prosecution witness has a prior
record, even when combined with other impeachment evidence that a defendant
introduces, does not render otherwise critical impeachment evidence cumulative.
See, e.g., United
States v. Steinberg, 99 F.3d 1486,
1489-92 (9th Cir.1996)
(holding that the government's failure to disclose that an informant had been
involved in two illegal transactions involving counterfeit currency was material
even though the informant had been impeached through questioning about a plea
agreement that he had made with the government).
In cases in which the witness is central to the prosecution's case, the defendant's
conviction indicates that in all likelihood the impeachment evidence introduced
at trial was insufficient to persuade a jury that the witness lacked
credibility. Therefore, the suppressed impeachment evidence,
assuming it meets the test for disclosure, takes on an even greater importance.
For example, in Carriger
v. Stewart, 132 F.3d at 479,
we held that information that an informant had been unreliable in the past
constituted material impeachment evidence for Brady purposes. Like Patrick, the informant in Carriger
came to the police with an offer of information and received a benefit for
providing the information. Id.
We stated that "[w]hen the state decides to rely on the testimony of
such a witness, it is the state's obligation to turn over all information
bearing on that witness's credibility."
As we said, "[t]his must include the witness's criminal record,
including prison records, and any information therein which bears on
credibility." Id. Like Patrick, the informant in Carriger
was impeached at trial with evidence of prior convictions.
In fact, the defense's impeachment of the informant in Carriger
was more extensive than Benn's impeachment of Patrick.
At Carriger's trial, it was shown that the informant was a career burglar
with six previous felonies, see id.
at 480, whereas here, Patrick was impeached
with only three previous convictions.
In holding that the
suppressed evidence was material in Carriger,
we stated that:
The district court erred when it concluded that Carriger had not
been prejudiced by the withholding of the information because the jury already
knew [that the informant] was a burglar testifying with immunity.
The telling evidence that remained undisclosed included the length of
[the informant's] record ... and, more important, his long history of lying to
Here, the defense was not informed of Patrick's burglary and obstruction
of justice charges, his fraudulent attempt to smuggle guns into a prison, or his
multiple thefts of drugs and money; nor
was it informed of the fact that Patrick provided false information to law
enforcement. As a result, the
jury was not told about Patrick's record of criminal misconduct*1056
while acting as an informant, nor that he had repeatedly lied to the police.
The present case is
also similar to United
States v. Brumel-Alvarez, 991 F.2d
1452 (9th Cir.1992),
in which the government's principal witness was a police informant who had been
involved in illegal drug operations for twenty- five years. The government withheld a memorandum that detailed
false claims that the police informant had made to government agents.
We stated that the informant's credibility "was an important issue
in the case" and that "[e]vidence that he lied during the
investigation ... would be relevant to his credibility and the jury was entitled
to know of it." Id.
at 1463; see
States v. Bernal-Obeso, 989 F.2d
331, 335 (9th
Cir.1993) ("[A] lie to the authorities
paying for [an informant's] services ... would be relevant evidence as to the
Evidence that Patrick
continually used drugs while acting as an informant and that the police knew
about this but chose not to prosecute him would also be relevant to show his
bias. If Patrick was
continually receiving a benefit from the prosecution--the ability to use drugs
without fear of criminal repercussions--that would have given him a motive to
provide the prosecution with inculpatory information, even if he had to
Finally, evidence that
Patrick was using drugs during the trial would reflect on his competence and
credibility as a witness. There
was no evidence at trial to impeach Patrick's competence or his ability to
recollect or perceive the events. Thus,
evidence of his drug use would have provided the defense with a new and
different ground of impeachment.
Were there no other
pieces of withheld evidence in this case, we would hold that the suppression of
impeachment evidence about Patrick's criminal misconduct and repeated lies to
the police, while acting as an informant, is, standing alone, sufficiently
prejudicial to establish a Brady violation. The fact that other
impeachment evidence was introduced by the defense does not affect our
conclusion. Where, as here,
there is reason to believe that the jury relied on a witness's testimony to
reach its verdict despite the introduction of impeachment evidence at trial, and
there is a reasonable probability that the
suppressed impeachment evidence, when considered together with the disclosed
impeachment evidence, would have affected the jury's assessment of the witness's
credibility, the suppressed impeachment evidence is prejudicial.
We need not further address the prejudice issue at this point, however,
given our holding that the withheld impeachment evidence, when analyzed
collectively, materially undermines our confidence in the verdict. See
discussion of prejudice infra Section IV.B.5.
(2) Patrick's false allegation about Benn
There is one specific
lie of Patrick's that, standing alone, would be sufficient to constitute a Brady violation. The prosecution failed to disclose that Patrick
approached the police a week before trial claiming that he had a videotape
showing that Benn was involved in a killing that was part of a notorious
unsolved murder case (the Green River murders) unrelated to the Dethlefsen-Nelson
killings. The prosecution
also failed to disclose that Patrick was given $150 to produce the tape, that he
never did so, and that the detectives concluded that he was lying about the
tape's existence and about Benn's involvement in the other murders.
This evidence could have been used to show that Patrick was willing to
lie about Benn and even to accuse him falsely of murder, if
doing so would result in even a minimal benefit to him. In Bernal-Obeso,
989 F.2d at 336,
we described the difference between general evidence of untrustworthiness *1057
and specific evidence that a witness has
lied as follows: "All the
other evidence used by the defense to punch holes in [the informant's]
credibility amounted only to circumstantial reasons why[the informant] might
alter the truth to continue to feather his own nest.
A lie would be direct proof of this concern, eliminating theneed for
The evidence regarding the non-existent videotape would have seriously impeached
Patrick in a way that the evidence presented at trial could not, and even that
the evidence of other lies could not.
It provided direct proof that Patrick was willing to lie specifically
about Benn's involvement in a murder and to accuse him falsely of a capital
offense. Patrick, when
confronted with his lies at the state habeas evidentiary hearing, confessed that
"I would lie-- I would always lie about me.
I would always do that. I
was a liar." The jury,
however, never heard that Patrick had lied about anything.
The evidence regarding Patrick's tale of the videotape was "direct
proof" of his lack of credibility, and the failure to disclose his
fabrication was prejudicial.
(3) Patrick's exposure to prosecution
 The Brady rule requires prosecutors to disclose
any benefits that are given to a government informant, including any lenient
treatment. See, e.g., Giglio,
405 U.S. at 150, 92 S.Ct. 763
(failure to disclose promise of immunity).
During Benn's trial, Patrick was stopped for a traffic offense and
arrested because he had outstanding warrants.
He called the prosecutor from jail
and the prosecutor arranged for him to be released without being charged.
This benefit was never disclosed to the defense. Also during Benn's
trial, the Fife police department asked the prosecution to charge Patrick with
burglary, but the prosecutor's office dismissed the charges.
Once again, this information was withheld from the defense. The
prosecution also arranged to postpone the filing of a warrant that was supposed
to issue because Patrick had violated his probation.
The warrant was delayed for two weeks--until after the Benn trial ended.
The government failed to inform defense counsel about this benefit as
We have explained the
reason why information regarding prosecution-provided benefits constitutes Brady material. In Singh
v. Prunty, 142 F.3d 1157 (9th
Disclosure of an agreement to provide such benefits, as well as
evidence of the benefits themselves, could have allowed the jury to reasonably
conclude that [the informant] had a motive other than altruism for testifying on
behalf of the State. Such a
finding could have substantially impeached [the informant's] credibility as a
Here, too, a jury could have reasonably concluded that Patrick had
"a motive other than altruism."
The state contends
that the information regarding benefits was cumulative and immaterial because
the defense cross-examined Patrick about his immunity from arrest
during the trial and about the reduced sentence he received in exchange for his
testimony. The reduced sentence that Patrick received did not
provide any significant benefit to him.
With good time credits for his work in prison, Patrick would have served
only an additional 35 days had he received the longer sentence originally sought
by the prosecutors. In
addition, the state effectively downplayed the importance of this benefit in
closing arguments by stating, "[t]he reward that he got was that in a 6 to
12 month sentence, he got six months instead of nine months.
Moreover, as we pointed out earlier, the state cannot satisfy its Brady *1058 obligation to disclose
exculpatory and impeachment evidence "by making some evidence available and
asserting that the rest would be cumulative. Rather, the state is obligated to disclose 'all
material information casting a shadow on a government witness's credibility.'
132 F.3d at 481-82
(internal citations omitted). Here,
the number and nature of the undisclosed benefits was such that they would have
impeached Patrick more effectively than the evidence that he was immune from
arrest during the trial. The
undisclosed benefits that Patrick received added significantly to the benefits
that were disclosed and certainly would have "cast a shadow" on
Patrick's credibility. Thus,
their suppression was material.
(4) Patrick's experience as an informant
At trial, Patrick denied that he had ever previously been an informant in a
murder case, but in fact he had. The
state argues that this undisclosed evidence about Patrick's history was not
material; however, in Shaffer,
789 F.2d at 689,
we stated that undisclosed evidence that an informant had previously
participated in a heroin investigation was important impeachment evidence that
could have been used to discredit the informant's trial testimony that he had
not previously participated in that type of investigation.
The circumstances in Benn are identical.
(5) Prejudice Resulting from the Suppression
of the Impeachment Evidence,
 In determining whether the suppression of
impeachment evidence is sufficiently prejudicial to rise to the level of a Brady violation, we analyze the totality of
the undisclosed evidence "in the context of the entire record."
427 U.S. at 112, 96 S.Ct. 2392;
see also Bagley,
473 U.S. at 682, 105 S.Ct. 3375
(opinion of Blackmun, J.).
FN11. While the good faith or bad faith of the state
is irrelevant when material impeachment evidence has been withheld from the
defense, see Brady,
373 U.S. at 87, 83 S.Ct. 1194,
the Supreme Court applies a stricter standard of materiality--a standard of
materiality that is more favorable to the defendant--when the prosecutor has
knowingly relied on or condoned the use of
perjured testimony, see Bagley,
473 U.S. at 680, 105 S.Ct. 3375
("[T]he fact that testimony is perjured is considered material unless
failure to disclose it would be harmless beyond a reasonable doubt."); Agurs,
427 U.S. at 103, 96 S.Ct. 2392
(holding that, under this "stricter" standard of materiality, a
conviction "must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury");
see also United
States v. Endicott, 869 F.2d 452,
455 (9th Cir.1989)
("[I]f the prosecution knowingly uses perjured testimony, or if the
prosecution knowingly fails to disclose that testimony used to convict a
defendant was false, the conviction must be set aside if there is any reasonable
likelihood that the false testimony could have affected the jury
verdict."). The Court
explained that a stricter standard of materiality is necessary in these cases
because they involve "prosecutorial misconduct and, more importantly ....'a
corruption of the truth-seeking function of the trial process.' " Bagley,
473 U.S. at 680, 105 S.Ct. 3375
427 U.S. at 104, 96 S.Ct. 2392);
see also Bernal-Obeso,
989 F.2d at 337.
Here, there is evidence that the state lied to defense counsel when
it "falsely claim[ed]" that Patrick was in a witness protection
program. There is also evidence that the state knowingly allowed Patrick to
commit perjury when it stood by and said nothing while Patrick perjured himself
by stating that he did not use drugs while
acting as an informant. Similarly, the prosecution said nothing when Patrick
lied at trial about never having previously served as an informant in a murder
case. There is also evidence
of other prosecutorial misconduct that corrupted the truth- seeking function of
the trial. For example, the
prosecution blatantly violated state discovery rules by failing to disclose
Patrick's identity to the defense until the day before trial, even though the
prosecution had recorded his statement over a year earlier; the prosecution did not even attempt to obtain information
about Patrick's informant history despite a court order to do so;
and the detective who prepared the March 30, 1988 report
"selectively omit[ted]" information that the fire was accidental. See
discussion supra Section I.B.2. Consequently, a stricter standard of
materiality applies to the Brady analysis. It is, however, unnecessary to apply that standard in
this case because the prejudice resulting from the suppression of the
impeachment evidence here was so great that it would satisfy any rational
standard of materiality.
the withheld impeachment evidence would not simply have been cumulative of the
impeachment evidence introduced at trial, but would have created substantial
doubt as to Patrick's credibility, it is important to analyze the significance
of Patrick's testimony to the prosecution's case. Patrick's
testimony was critical because it directly contradicted Benn's evidence that he
acted in self-defense and that he did not premeditate the killings.
Moreover, it provided the only direct evidence of the aggravating factor
of common scheme or plan. Patrick
was the only witness to testify to the state's primary theory that Benn killed
Dethlefsen and Nelson for threatening to reveal an arson-insurance-fraud scheme.
He was also the only witness to suggest that Benn wanted to kill
Dethlefsen because Dethlefsen changed his will so as to remove Benn as a
beneficiary. Without those
theories (and it is difficult to believe that the jury would have accepted the
will theory), the only motive the prosecution suggested was that Benn was upset
because he thought that Dethlefsen was harassing his ex-girlfriend--a motive
that supported the defense's theory (that Benn became upset when he saw a note
with his ex-girlfriend's phone number on it in Dethlefsen's house and a
spontaneous argument ensued) as much as the prosecution's.
testimony that Benn attempted to hire someone to kill Hartman while in prison
undercut Benn's defense, because the jury was more likely to believe that Benn
was guilty of premeditating the murders of Dethlefsen and Nelson after being
told that he plotted to kill Hartman from prison.
The state'sfailure to
disclose to the defense that Patrick was a potential witness prior to the day
before trial exacerbated the harm that resulted from its
failure to provide impeachment information about him, because the defense did
not have sufficient time to investigate Patrick and prepare for cross-
justices in the Washington Supreme Court's state habeas case stated that the
withheld information concerning Patrick was so significant that a new trial was
required. See In
re Benn, 952 P.2d at 155-56.
The district court agreed with the Washington Supreme Court's dissent
that "[t]he significance of Patrick's testimony cannot be
v. Wood, 2000 WL 1031361, at *5
Both statements are correct.
Analyzed collectively, the withheld impeachment evidence reveals that Patrick, a
critical witness for the state, was "completely unreliable, a liar for
hire, [and] ready to perjure himself for whatever advantage he could squeeze out
of the system." Id. We hold that the suppression of the
impeachment evidence undermines confidence in the outcome of Benn's trial and
was therefore prejudicial. We
further hold that the Washington Supreme Court's decision to the contrary was
clearly erroneous and constitutes an unreasonable application of clearly
established Supreme Court law.
*1060 C. THE
PROSECUTION'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE THAT THE FIRE AT BENN'S
TRAILER WAS ACCIDENTAL AND NOT THE RESULT OF ARSON IS SUFFICIENT, STANDING
ALONE, TO CONSTITUTE A Brady violation.
The prosecution failed to disclose that Deputy Fire Marshal Ted Thompson and
Electrical Inspector Walter Erickson both conclusively determined that the fire
in Benn's trailer was accidental. The
state did disclose its March 30, 1988 report stating on the basis of these
experts' investigation that there was "no fault or failure" of the
lead electrical wire and no evidence of tampering with the fuse panel.
The report did not state that the deputy fire marshal and electrical
inspector had concluded that arson was not the cause of the trailer fire;
that the furnace was the same type that Erickson had in his own home;
or that there had been a manufacturer's recall of this type of furnace
because it tended to cause fires. Rather,
the report suggested that Coleman furnaces did not cause fires.
conclusion that the fire was accidental, and the reasons therefor, was material
evidence that could have served to rebut the arson- insurance-fraud theory that
the prosecution offered to prove motive, premeditation, and the aggravating
circumstance of common scheme or plan.
We reject the Washington Supreme Court's conclusion that the cause of the
fire was not critical to the prosecution's insurance fraud theory because, as
the state trial court stated, the arson-insurance-fraud theory evidence was
"the kind of evidence that the State must and needs to prove if it's going
to prove the aggravating factor that is involved in this case.... Without it,
the State doesn't have a case for aggravated murder. ..." The district court reiterated this
point when it stated that evidence of the accidental nature of the fire, if
presented to the jury, would have "gravely undercut[ ] the fear of police
exposure" that the prosecution asserted led Benn to kill Dethlefsen and
v. Wood, 2001 WL 1031361, at 3113
The prosecutor also stressed the importance of the arson-fraud- insurance
theory to the jury. In his closing argument, he stated: "And aggravating circumstances exist ... the common
scheme or plan, the single act .... [H]e indeed wanted both men dead.
He told the persons he confided in about the fact that Mike was
threatening over the fire insurance money as well as Jack." [FN13]
FN12. The state points out that Benn did tell his
brother, Monte, that he was nervous about fire insurance fraud charges being
filed against him because he claimed a greater financial loss than he incurred.
However, as the district court observed, a threat to tell the police that a
person claimed more than he should have after a fire is materially different
from a threat to tell the police that the person conspired to commit an arson,
played a role in starting the fire, and then claimed an excessive loss following
the fire. See Benn
v. Wood, 2001 WL 1031361, at *3
At oral argument, the state contended that the mere fact that Benn shot both
Dethlefsen and Nelson was sufficient to show a common scheme or plan and that
the arson-insurance-fraud theory was, therefore, unnecessary.
In order to prove a "common scheme or plan" under Washington
state law, however, "there must be a nexus between the killings" that
goes beyond the mere firing of the fatal shots.
v. Finch, 137 Wash.2d 792, 975 P.2d
967, 994 (1999).
Specifically, "[t]he term [common plan or scheme] refers to a larger
criminal design, of which the charged crime is only part.
To prove the existence of this aggravator the killings must be connected
by a larger criminal plan. Thus,
the 'nexus' exists when an overarching criminal plan connects both
murders." Id. The arson-insurance-fraud scheme was
what the state relied on to prove "an overarching criminal plan."
The state argues that its failure to disclose this exculpatory information did *1061
not constitute a Brady violation because Benn was aware of the
February 12, 1988 report in which the deputy fire marshal tentatively concluded
that the fire was accidental. The
February report's tentative conclusion, however, was displaced by the
conclusions in the later March 30, 1988 report. The March report suggested that, after further
investigation, the experts had reached a different conclusion. Specifically, the
report stated that Al Pearson, a furnace technician, said that "he could
find and think of no situation in which a furnace [such as a Coleman] had caused
a fire in a mobile home."
The state, relying on United
States v. Marashi, 913 F.2d 724
States v. Aichele, 941 F.2d 761,
764 (9th Cir.1991),
asserts that there was no Brady violation because Benn could have
discovered the experts' conclusions by interviewing them.
does not support the state's position.
There, we simply held that the prosecution's failure to disclose an IRS
agent's notes revealing the identity of a private detective was not prejudicial
to the defense because the defendant's own conduct showed that the evidence was
not material. We relied in
part on the fact that the defendant had access to and chose not to interview the
individual who hired the private detective as support for that holding.
913 F.2d at 733- 34.
Here, contrary to Marashi,
there is no doubt of the materiality of the suppressed evidence.
involved the obligation of a United States Attorney to turn over California
State Department of Corrections files that were under the exclusive control of
California officials. We held
that because the United States Attorney had no control over the state's files
there was no Brady violation. See also United
States v. Santiago, 46 F.3d 885,
894 (9th Cir.1995)
(holding that the federal government did have an obligation to turn over
information in the possession of the Bureau of Prisons and limiting the
principle in Aichele
to federal prosecutions in which material is held exclusively by a state
agency). The Aichele
court then added, by way of dictum, that if a defendant can ascertain the
material on his own, there is no suppression.
Certainly, that observation is overbroad, at the very least. We need not
consider, however, whether the dictum in Aichele
accurately states the law, particularly after Kyles
v. Whitley, 514 U.S. 419, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995), or what the limitations on that dictum might be. For whatever its
merit, and we express no view, the Aichele
dictum would not apply in circumstances such as those present here.
v. Arave, 130 F.3d 385 (9th
case, our Brady analysis was not affected by the
defendant's knowledge of and ability to interview the prosecution's expert and
obtain the undisclosed material. There,
the medical expert testified at trial that the victim was killed in a creek
where her body was found. That
testimony contradicted the defense theory that the victim was killed by others
at Paradis' house when Paradis was not home and that Paradis then just helped
dump the body in the creek. After
the trial, defense counsel discovered that the prosecutor had written notes of
the briefing conducted by the medical expert shortly after he performed the
autopsy. The written notes
showed that at that time the medical expert had expressed the opinion that the
victim did not die in the creek. The
prosecution did not disclose this fact.
We held that the undisclosed material constituted impeachment evidence,
although the defendant obviously knew of the expert's existence and could have
obtained the suppressed information from him.
130 F.3d at 392.
The facts in Benn are similar.
Benn, like Paradis, knew of the experts' existence but had been supplied
with evidence by the state that the experts' view supported the state's theory. A defendant furnished with such inculpatory evidence by
the state is not required to assume that the state has concealed material
information and has thereby obligated him to ascertain the Brady material on his own.
In the case before us, moreover, the state not only failed to disclose
the crucial information about the accidental nature of the fire, but it actually
misled the defense by disclosing a part of the experts' findings that, read
alone, would lead to a conclusion directly opposite to the one they reached.
Evidence that the fire in Benn's trailer was not caused by arson and had
been determined by fire officials to be accidental would have substantially
undermined the state's principal theory of motive and its main support for the
aggravating factor of common scheme or plan, as well as its contention that the
killings were premeditated. Thus,
we hold that the state's failure to disclose exculpatory evidence about the
nature of the fire constitutes a Brady violation, independent of the Brady violation that resulted from the
state's suppression of impeachment evidence.
We also hold that the state court ruling regarding the exculpatory
evidence was clearly erroneous and thus constituted an "unreasonable
application" of clearly established Supreme Court precedent.
we stated that "we expect prosecutors and investigators to take all
reasonable measures to safeguard the system against treachery.
This responsibility includes the duty as required by Giglio to turn over to the defense in
discovery all material information casting a shadow on a government witness's
F.2d at 334.
Here, the state failed to take any measures to safeguard the
system against treachery. To the contrary, the state suppressed material
exculpatory and impeachment evidence that would have destroyed the credibility
of its principal witness, severely undermined its theory of motive, and left it
without substantial evidence of premeditation or an aggravating circumstance.
Because the suppressed
impeachment evidence and the suppressed exculpatory evidence are each, standing
alone, sufficiently prejudicial to merit relief under Brady, they a fortiori are sufficiently
prejudicial when analyzed together. Given the importance of both Patrick's testimony and
the arson- insurance-fraud theory to the prosecution's case, as well as the
sheer volume and damaging nature of the improperly withheld evidence, we
conclude that the Washington Supreme
Court's determination that there was no Brady violation was clearly erroneous and
constitutes an unreasonable application of Supreme Court precedent.
To say that we have a firm conviction that the state court erred in its
application of Brady and its progeny would be a gross
understatement indeed. Because
our holding of a Brady violation necessarily comprehends a
holding that the Brecht prejudice standard is met, we hold that
Benn is entitled to habeas relief. Weaffirm
the district court's decision granting Benn's petition for a writ of habeas
TROTT, Circuit Judge, Concurring:
Lord Acton, the
celebrated 19th century British historian and student of politics, formulated an
observation about government and human nature that aptly, and regrettably, fits
this case: "Power tends to
corrupt, and absolute power corrupts absolutely."
It was for this reason that over one hundred years earlier, the Framers
of *1063 our Constitution meticulously separated the powers given by the
People to our government and erected against each a structural series of checks
and balances designed to confront the potential for abuse.
Then, by enacting the Bill of Rights, the Framers made certain that basic
principles of a fair and just trial could not be episodically overridden, even
by a unanimous legislature, an overzealous executive, or a wayward judiciary.
In large measure, the
Framers were influenced by Charles de Secondat, baron de Montesquieu, an astute
student of history and politics in his own right, who, in his seminal work The
Spirit of the Laws, said:
Democratic and aristocratic states are not in their own nature
free. Political liberty is to be found only in moderate governments;
and even in these it is not always found.
It is there only when there is no abuse of power:
but constant experience shows us that every man invested with power is
apt to abuse it, and to carry his authority as far as it will go.
Is it not strange, though true, to say that virtue itself has need of
To prevent this abuse, it is necessary, from the very nature of
things, power should be a check to power.
This case provides us
with a textbook example of the abuse of executive power contemplated by
Montesquieu, Lord Acton, and the Framers of our Constitution. Rather than adhere
to the clear letter of the law, which itself is the ultimate check against
arrogation of power, the prosecutor apparently deliberately withheld from the
trial court and from the jury admissible evidence that would cause any
fairminded person to have grave reservations about the credibility of a key
government witness. The
State's transgressions are well identified in dissent
by Justice Johnson of the Supreme Court of Washington:
The State withheld information from Benn's attorneys prior to and
during his trial that the State was under direct court order to produce.
The State violated the trial court's discovery order by failing to
promptly provide a taped statement and documents received from Patrick regarding
Benn's case. The State also violated a direct court order to produce information
specific to Patrick's previous dealings with law enforcement officers.
Testimony from the reference hearing also shows the State failed to
list Patrick as a State witness until the eve of trial and prevented Benn's
attorneys from interviewing Patrick until the day before trial by erroneously
claiming Patrick was involved in a witness protection program.
The State's misconduct deprived Benn of his Sixth Amendment right to
fully cross-examine Patrick.
re Benn, 134 Wash.2d 868, 952 P.2d
116, 153 (1998)
(Johnson, J., dissenting).
The law and the
truth-seeking mission of our criminal justice system, which promise and demand a
fair trial whatever the charge, are utterly undermined by such prosecutorial
duplicity. Although our
Constitution guarantees to a person whose liberty has been placed in jeopardy by
the State the right to confront witnesses in order to test their credibility,
that right was willfully impaired in this
case. By unlawfully
withholding patently damaging and damning impeachment evidence, the prosecutor
knowingly and willfully prevented Benn from confronting a key witness against
him. Such reprehensible conduct shames our judicial system.
take an oath of office when they become stewards of the executive power of
government. That oath
uniformly includes a promise at all times to support and defend the Constitution
of the United States. Fortunately, the great majority of all prosecutors
appreciate the solemnity of this oath.
However, if a prosecutor fails to abide by this *1064 undertaking,
it is the duty of the judiciary emphatically to say so. Otherwise, that oath
becomes a meaningless ritual without substance.
To his credit,
Washington's Attorney General does not defend the prosecutor's indefensible
behavior, each aspect of which is accurately described in Judge Reinhardt's
thorough opinion. In oral
argument, counsel for the respondent readily conceded egregious wrongdoing, but
argued nevertheless that on this record, the wrongdoing did not prejudice the
petitioner. With all due
deference to the Supreme Court of the State of Washington, I respectfully
disagree, as do my colleagues, with the State's assessment of this issue. Thus,
I join in Judge Reinhardt's explanation of our reasons and conclusions compelled
here by the Constitution, and in my colleagues' decision in this case.
Benn must be given that to which he is fully entitled and which he has
not yet received: a fair trial.