                                            Filed:   November 1, 1999

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 99-6119
                           (CA-97-2295-PJM)



Brady George Spicer,

                                               Petitioner - Appellee,

           versus


Roxbury Correctional Institute, etc., et al,

                                            Respondents - Appellants.



                              O R D E R



     The court amends its opinion filed October 18, 1999, as

follows:

     On page 12, third full paragraph, lines 1-2: the phrase

“Spicer’s statement to his attorney” is corrected to begin “Brown’s

statement ....”

                                       For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRADY GEORGE SPICER,
Petitioner-Appellee,

v.
                                                                     No. 99-6119
ROXBURY CORRECTIONAL INSTITUTE,
Warden; ATTORNEY GENERAL OF THE
STATE OF MARYLAND,
Respondents-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-97-2295-PJM)

Argued: June 8, 1999

Decided: October 18, 1999

Before WILKINSON, Chief Judge, and NIEMEYER and KING,
Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Chief Judge Wilkinson joined.
Judge King wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ann Norman Bosse, Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Nancy Maggitti Cohen,
COHEN & MCCABLE, L.L.C., Annapolis, Maryland, for Appellee.
ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellants.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

The grave question over the fairness and accuracy of the trial that
the State of Maryland provided to Brady George Spicer on charges
that he brutally assaulted Francis Denvir arises from the state's viola-
tion of Spicer's due process rights under Brady v. Maryland, 373 U.S.
83 (1963). To correct the fatal flaw and to assure that Spicer receives
a fair trial, we affirm the district court's order granting Spicer's peti-
tion for the writ of habeas corpus under 28 U.S.C. § 2254 and direct-
ing the state either to retry Spicer within four months or to release
him unconditionally from custody.

I

Shortly before noon on February 22, 1990, an assailant approached
Francis Denvir from behind, while he was seated at his desk, and
struck him on the back side of his head and the side of his face,
knocking him unconscious. The assailant then continued to beat Den-
vir savagely in the head and face, leaving him seriously and perma-
nently injured.

Denvir was the manager and part-owner of a popular bar and res-
taurant in downtown Annapolis, Maryland, known as Armadillo's. At
the time of his assault, Denvir was in a small office upstairs from the
bar, signing payroll checks. Between $1,500 and $2,000 in cash,
banded in stacks, lay on Denvir's desk and remained there after the
assault. Denvir neither saw nor heard the assailant enter his office
because he had his back to the door and he was listening to audition
tapes through headphones.

As the assault was taking place, Henry Connick, an Armadillo's
bartender, heard 10 to 15 thumps, which he described as a "methodi-

                     2
cal banging," and went upstairs to investigate. When he entered the
office, he saw Denvir on the floor and the assailant standing over
Denvir, with a liquor bottle in his right hand. Connick ran back down
the stairs and out the door of the bar, and the assailant followed, drop-
ping the liquor bottle at the foot of the stairs. When the assailant ran
out the door past Connick, Connick chased the fleet-footed assailant
for several blocks before giving up and returning to the bar.

Sam Novella, who was cutting tile in an alley near Armadillo's,
saw the chase and obtained "a very quick view" of "a black gentlemen
running very fast and an employee of Armadillo's chasing him."

This violent, midday crime at a popular bar in the heart of Annapo-
lis garnered significant media attention. The Annapolis Police did not
believe that robbery was the motive for the crime because the money
on Denvir's desk remained untouched and the assailant had continued
to attack Denvir even after rendering him unconscious. Moreover,
Denvir received hang-up calls at his home after the attack and was
reluctant to talk to police about the incident. Some police officers
were left with the impression that Denvir knew more than he was
willing to tell. While the police pursued many leads and investigated
a number of suspects, the assault remained unsolved for over six
months, and the investigation was placed on a "suspended" status.

In September 1990, Larry Brown, who had been arrested on three
counts of distributing cocaine, first introduced Brady George Spicer's
name in connection with the Armadillo's assault in his efforts to plea
bargain with prosecutors. Brown's lawyer, Gary Christopher, a public
defender, asked Brown if he had any information to assist prosecu-
tors. As Christopher later recounted, he "made clear to [Brown that]
it was very important to . . . present as much evidence as we could
to the State in order to interest them in working out a deal." To this
end, Christopher told Brown that he did not want all of the details, but
he did need "the major things."

Brown told Christopher that a few days before the assault, an indi-
vidual, whom he knew as "Spicy," asked him questions about Arma-
dillo's, such as whether or not they were hiring and what he knew
about a man who counts money upstairs in the morning. Those ques-
tions made Brown suspicious that "Spicy" was planning a robbery.

                     3
Brown stated that the next time he saw "Spicy" was a day or two after
the Armadillo's assault and that "Spicy" had made some expression
of thanks, presumably for not disclosing their prior conversation.

Believing that this information that Brown related would be insuf-
ficient to induce the state prosecutor to bargain, Christopher "pressed
[Brown] for any further information he might have as to whether . . .
he saw Spicy the day of the offense or whether he could connect him
any more closely to the offense and he could not." When Brown spe-
cifically denied seeing "Spicy" the day of the assault, Christopher fur-
ther "pressed him" on that because, as Christopher later related, "I
was concerned, what he told me was not enough to go to the Grand
Jury with. . . . [I]t would be very much to[his] benefit if [he] knew
any other detail that could help -- that could make the package more
attractive, as it were." Brown nevertheless maintained that he had not
seen "Spicy" on the day of the assault.

With that information, Christopher contacted Steve Sindler, the
prosecutor on Brown's drug charges, and related the information that
Brown had told him. Eventually, Brown pled guilty and agreed to tes-
tify against Spicer in exchange for a suspended sentence. When pros-
ecutor Sindler interviewed Brown without Christopher present,
Brown stated, for the first time, that he had seen Spicer running from
the crime scene on the day of the assault. Brown also testified before
the grand jury that he had witnessed Spicer's flight from Armadillo's.
Sindler recognized the discrepancy between Brown's testimony and
his account to Christopher but "didn't think anything of it." He
explained that he preferred to rely on what Brown told him directly
rather than what Brown's attorney had earlier related about Brown's
original version of the events.

In October 1991, Spicer was charged with assault with intent to
murder and other lesser offenses arising out of the attack on Denvir
at Armadillo's. At the time, Spicer was serving a one-year sentence
for an unrelated theft. In an interview with David Cordell, the investi-
gator for the Anne Arundel County State's Attorney's Office, Spicer
denied any involvement and requested a polygraph test, which he was
not given. In addition, he told Cordell, as well as his own attorney,
that he had shattered his kneecap approximately 18 months prior to
the Armadillo's incident and, following an operation, was unable to

                    4
run -- unlike the assailant described by Connick and Novella. Spicer
even showed Cordell a scar from the operation. Spicer's attorney
obtained the medical records confirming an operation to repair a frac-
tured patella during the indicated time frame, although this informa-
tion was not presented to the jury.

On May 14, 1992, 12 days after being released from the theft sen-
tence, Spicer appeared in court of his own accord-- no detainer had
been issued -- believing that the Armadillo's charges were a matter
of mistaken identity. At his trial, the prosecution introduced no physi-
cal evidence linking Spicer to the Armadillo's assault. The prosecu-
tion's case relied exclusively on testimony from three purported
eyewitnesses: Henry Connick, the Armadillo's bartender; Sam
Novella, the man who had been installing tile near Armadillo's; and
Larry Brown.

Connick, the bartender, made a courtroom identification of Spicer,
who, Spicer's attorney observed, was the only African-American
male in the courtroom other than a deputy. Connick stated that "[h]e
doesn't look exactly the same today as he did then. He's heavier now.
. . . He looks different than his pictures, here. You can see he's
changed. He looks considerably different, now. But I'm positive
that's him." Cross-examination revealed that within hours of the
Armadillo's incident, Connick had described the perpetrator to the
police as a black male, 5'9" tall, weighing 165 pounds. Spicer is 6'4"
tall and weighs over 200 pounds. Connick also testified that, during
the course of the investigation, he had identified several other individ-
uals in five photo arrays as "not positive, but could be," intending to
convey that those individuals looked the most like the perpetrator. In
January 1991, Connick selected Spicer's photograph from another
array, stating that "number three has the same complexion, same
facial features, and [he] is almost positive that number three is the
person that he chased out of Armadillo's office."

Sam Novella was the prosecution's next eyewitness. Defense coun-
sel had sought to suppress any pretrial photo-identifications that
Novella and Connick had made. But when the prosecution advised the
court at the suppression hearing that it was unable to locate Novella
and did not plan to use him as a witness at trial, the court proceeded
with the suppression hearing without Novella's presence and denied

                     5
the motion. The state, as it turned out, did produce Novella at trial,
and Novella testified without objection from defense counsel. Novella
related that he had been installing ceramic tile at a nearby restaurant
when he saw "a black gentleman running very fast and an employee
of Armadillo's chasing him." When asked if he saw the perpetrator
in the courtroom, Novella stated, "Well, it has been a long time, but
he [Spicer] looks very, very familiar. I can say that." Novella's testi-
mony revealed that when shown a photo array with Spicer's picture
prior to trial, he claimed that all six photographs closely resembled
the person he had seen running and that although Spicer's photograph
was the closest one, "the skin tone wasn't right."

Larry Brown was the final eyewitness for the prosecution. He testi-
fied that he had been working at the fish market in downtown Annap-
olis on the day of the crime and that he had seen Spicer run past,
followed by Connick. He also testified that upon seeing Spicer several
days after the incident, he told Spicer that the police were trying to
make him testify against Spicer. According to Brown, Spicer
responded, "Don't even feed into that." In response to a question from
the prosecution, Brown also testified that his testimony in court was
the same as what he originally had told his attorney prior to the plea
bargain. During cross-examination, Brown stated that he had known
Spicer for two years before the Armadillo's incident, but then, when
questioned more closely, he acknowledged that his grand jury testi-
mony correctly stated that he had known Spicer for only two weeks.
Brown also testified repeatedly that the incident occurred on February
2, 1990, 20 days earlier than it actually occurred.

After the close of evidence and during deliberations, the jury sent
out a note which read: "The victim testified he was hit in the right rear
of the head with the first blow. Is the defendant righthanded or left-
handed. During the trial he has been taking notes lefthanded." The
court responded, "I can't answer that. All of the evidence is in that
was to be presented by counsel and therefore, I can't answer the ques-
tion for you." The jury convicted Spicer on all counts except for the
robbery and attempted robbery counts, which the trial judge had dis-
missed earlier for lack of evidence.

After the verdict, several Annapolis City police officers who had
investigated the case, as well as David Cordell, the State's Attorney's

                     6
investigator who had interviewed both Brown and Spicer, met with
Frank Weathersbee, the State's Attorney for Anne Arundel County to
express their concerns that Spicer had been wrongfully convicted.

Also, after the verdict but before Spicer's sentencing, Gary Chris-
topher, Larry Brown's attorney, learned through newspaper reports
that Brown had testified to having witnessed Spicer running away
from the crime scene. Knowing that he had conveyed Brown's denial
of having been an eyewitness on the day of the assault to prosecutor
Sindler, Christopher believed that Sindler's failure to disclose that
information to Spicer's counsel was a Brady1 problem because it pre-
vented Spicer from impeaching Brown with a prior inconsistent state-
ment. Christopher therefore contacted Spicer's counsel and offered to
testify on Spicer's behalf on a motion for a new trial or at a post-
conviction hearing.

On July 9, 1992, the trial court conducted a hearing on Spicer's
motion for a new trial based on Christopher's testimony that Brown
originally had denied being an eyewitness. Spicer also sought a two-
week continuance to investigate information from a fellow inmate
who claimed to have heard Brown boasting that he had lied on the
witness stand about seeing Spicer on the day of the Armadillo's inci-
dent in order to reduce his own sentence.2 The trial court denied both
motions.

The court then conducted the sentencing hearing. During allocution
Spicer vigorously protested his innocence as he had done consistently
since being charged with the assault:

        Never in my wildest dreams would I believe that my life
        would be destroyed this way, on a miscarriage of justice. I
        had no knowledge of this crime, yet I'm here today with my
_________________________________________________________________

1 In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held
that a state denies a defendant due process by failing to disclose to the
defendant before trial evidence favorable to the defendant that is material
either to guilt or to punishment.

2 At oral argument, counsel for Spicer advised the court that Brown has
since recanted his trial testimony that he was an eyewitness to Spicer's
flight from Armadillo's.

                    7
         life on the line as well as my family's. . . . I had no reason
         to attack Mr. [Denvir]. And I truly feel sorry for him and his
         family. But I feel even more sorry if they find happiness in
         seeing an innocent man being sent to jail.

         * * *

         I'm still in shock behind this whole situation because, you
         know, I know I'm innocent. I know I didn't commit this
         crime, and I never thought that I would be one of the statis-
         tics that would have to be -- to be -- have to come before
         you and serve time for something that -- for a crime that I
         didn't commit.

         * * *

          I pleaded guilty to every charge I've ever had in my life.
         I always pleaded guilty if it was something that I did.
         You've got my record right there. Always pleaded guilty
         because that's the only way I know I could get a fair deal.
         Now I'm getting a raw deal and I'm innocent. . . . (Defen-
         dant crying).

After hearing his statement, the court said to Spicer, "I keep telling
you, Mr. Spicer, that I personally did not find you guilty. A jury of
your peers found you guilty. They had the evidence." Because of the
gravity of harm to Denvir, the trial judge noted that "this case does
cry out for the maximum sentence." The court thereupon sentenced
Spicer to 30 years imprisonment, 10 years more than the maximum
suggested guideline. The Maryland Court of Special Appeals affirmed
the judgment, and the Maryland Court of Appeals declined further
review.

Spicer then commenced state post-conviction proceedings, alleging
prosecutorial misconduct, Brady violations, and ineffective assistance
of counsel. At the hearing on his motions, both Christopher and
Sindler testified concerning the prosecution's failure to inform
Spicer's counsel that Brown's statements to the prosecutor and to the
grand jury did not match the account he had given Christopher, which

                    8
Christopher had conveyed to the prosecutor. Christopher testified, as
he had done at the hearing on the motion for a new trial, that Brown
had denied having been an eyewitness to Spicer's flight on the day
of the assault and that Christopher had recounted that information to
Sindler. Sindler corroborated Christopher's testimony and stated that
he "recognized that what Mr. Christopher told me wasn't what Mr.
Brown had told me, but I didn't think anything of it, because I didn't
really pay much attention to what Mr. Christopher told me."

The state court denied Spicer's bid for post-conviction relief. On
the Brady claim, the court concluded that it was "not persuaded that
there was a Brady violation." Even though the court acknowledged
that "impeachment evidence may be considered Brady material," it
observed that "the Court of Special Appeals has advised that
`[g]enerally speaking, [materiality] requires that the evidence be
directly exculpatory and not of mere utility for impeachment pur-
poses,'" quoting Icgoren v. State, 653 A.2d 972, 993 (Md. App.
1995). The court found that Brown's statements to the state were not
inconsistent and that "neither Brady nor the line of cases following
Brady required the State to inform defense counsel of a potential dis-
crepancy between what Brown's attorney indicated Brown knew and
what Brown actually told the Prosecutor."3 As to the ineffective assis-
tance of counsel claim predicated on numerous alleged deficiencies,
the court concluded that Spicer had failed to establish prejudice. The
Court of Special Appeals denied the application for review of the trial
court's ruling on these issues.
_________________________________________________________________

3 The state court's entire ruling on the Brady issue relating to withhold-
ing Brown's statement is as follows:

           While impeachment evidence may be considered Brady mate-
          rial, the Court of Special Appeals has advised that "[g]enerally
          speaking, [materiality] requires that the evidence be directly
          exculpatory and not of mere utility for impeachment purposes."
          Icgoren v. State, 103 Md. App. 407, 451, 653 A.2d 972 (1995).
          The Court finds that Brown never made any inconsistent state-
          ment to the State regarding his being an eyewitness to the chase
          and concludes that neither Brady nor the line of cases following
          Brady required the State to inform defense counsel of a potential
          discrepancy between what Brown's attorney indicated Brown
          knew and what Brown actually told the prosecutor.

                    9
Spicer filed this petition for habeas relief on July 16, 1997. The dis-
trict court granted the petition, concluding that the state court had
unreasonably applied Brady and its progeny and that trial counsel's
decision not to object to Novella's testimony constituted ineffective
assistance of counsel. The State of Maryland filed this appeal.

II

The State of Maryland contends that the district court erred in con-
cluding that the state court unreasonably applied Brady, see 28 U.S.C.
§ 2254(d), and in refusing to accord a presumption of correctness to
factual findings purportedly made by the state court on the Brady
issue, see 28 U.S.C. § 2254(e)(1). It argues that Brady was not impli-
cated because the state post-conviction court found that only a "poten-
tial" discrepancy existed between Brown's statements to his attorney
and his statements to prosecutors. The state also contends that the dis-
trict court erred in finding that the withheld evidence in this case was
material, arguing instead that it was "of scant impeachment value."

We review de novo a district court's decision on a petition for writ
of habeas corpus based on a state court record, applying the same
standard of review that governed the district court on habeas review
under 28 U.S.C. § 2254(d). That provision provides that a federal
court must not issue the writ with respect to any claim that

          was adjudicated on the merits in State court proceedings
          unless the adjudication of the claim --

           (1) resulted in a decision that was contrary to, or
          involved an unreasonable application of, clearly established
          Federal law, as determined by the Supreme Court of the
          United States; or

           (2) resulted in a decision that was based on an unrea-
          sonable determination of the facts in light of the evidence
          presented in the State court proceeding.

28 U.S.C. § 2254(d).

                     10
Clearly established federal law, determined in Brady v. Maryland,
373 U.S. 83 (1963), and its progeny, provides that a state violates a
defendant's due process rights when it fails to disclose to the defen-
dant prior to trial, "evidence favorable to an accused . . . where the
evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution." Id. at 87. The Brady
rule is not intended to "displace the adversary system as the primary
means by which truth is uncovered, but to ensure that a miscarriage
of justice does not occur." United States v. Bagley, 473 U.S. 667, 675
(1985) (footnote omitted). This limited departure from the adversary
system "illustrates the special role played by the American prosecutor
in the search for truth in criminal trials." Strickler v. Greene, 119
S. Ct. 1936, 1948 (1999). The prosecutor's unique role "transcends
that of an adversary: [the prosecutor] `is the representative not of an
ordinary party to a controversy, but of a sovereignty . . . whose inter-
est . . . in a criminal prosecution is not that it shall win a case, but
that justice shall be done.'" Bagley, 473 U.S. at 675 n.6 (quoting
Berger v. United States, 295 U.S. 78, 88 (1935)); see also Kyles v.
Whitley, 514 U.S. 419, 437 (1995) (noting that"the individual prose-
cutor has a duty to learn of any favorable evidence known to the oth-
ers acting on the government's behalf in the case, including the
police"). At the same time, Brady does not create a full-scale,
constitutionally-mandated discovery right for criminal defendants.
Such a rule would impose an oppressively heavy burden on prosecu-
tors and would drastically undermine the finality of judgments. See,
e.g., Kyles, 514 U.S. at 437; Bagley, 473 U.S. at 675 n.7.

Thus, while the prosecutor's "special status" embraces a "broad
duty of disclosure," it also entails the "conclusion that not every viola-
tion of that duty necessarily establishes that the outcome was unjust."
Strickler, 119 S. Ct. at 1948. Three "essential components" of a Brady
violation circumscribe the duty: (1) the evidence at issue must be
favorable to the defendant, whether directly exculpatory or of
impeachment value; (2) it must have been suppressed by the state,
whether willfully or inadvertently; and (3) it must be material. Id.

Our task is to determine, within this framework, whether the prose-
cution in Spicer's case violated Brady when it failed to disclose to
Spicer's attorney information that Brown -- who told the prosecutor,
the grand jury, and the trial jury that he witnessed Spicer fleeing

                     11
Armadillo's on the day of the assault -- had previously told his attor-
ney on multiple occasions that he had not seen Spicer at all on that
day.

A

Brown's prior inconsistent statement about whether he was an eye-
witness clearly satisfies the first requirement of a Brady violation --
that the evidence be "favorable" to the defendant. Evidence that can
be used to impeach a witness is unquestionably subject to disclosure
under Brady. See Strickler, 119 S. Ct. at 1948 (explaining that "the
duty [imposed by Brady] encompasses impeachment evidence");
Bagley, 473 U.S. at 676 (holding that impeachment evidence "falls
within the Brady rule"); Giglio v. United States, 405 U.S. 150, 154
(1972). In fact, the Court has recognized that "if disclosed and used
effectively, [impeachment evidence] may make the difference
between conviction and acquittal." Bagley, 473 U.S. at 676.

In denying Spicer's Brady claim on post-conviction review, the
state court apparently misunderstood the scope of Brady, failing to
appreciate that impeachment evidence is unequivocally subject to dis-
closure. The state court only recognized that impeachment evidence
"may be considered Brady material" because the Maryland Court of
Special Appeals had concluded that under Brady the materiality com-
ponent generally required evidence to "be directly exculpatory and
not of mere utility for impeachment purposes" (quoting Icgoren, 653
A.2d at 993) (emphasis added). This conclusion is contrary to clearly
established federal law to the extent that it fails to recognize unequiv-
ocally that impeachment evidence falls within the parameters of
Brady and therefore must be disclosed if material. See 28 U.S.C.
§ 2254(d)(1).

Moreover, the state court failed to appreciate that Brown's state-
ment to his attorney, specifically, was impeachment evidence and
therefore potential Brady material. The court took care to point out
that Brown's statements to the state -- i.e. to the State's Attorney, the
grand jury, and to a jury at trial -- were consistent and therefore
could provide no basis for impeachment. However, the court failed to
recognize the significance of the inconsistency between Brown's
statements to the state and his earlier contrary statements to his attor-

                     12
ney. Characterizing this inconsistency as only a "potential discrep-
ancy," the trial court improperly discounted its relevance in
impeaching Brown.

By portraying this difference between Brown's statements to his
attorney and his statements to the prosecutor as merely a "potential
discrepancy," the state court failed to recognize the impeachment
value of the statements to Brown's attorney. The state court appears
to have determined that these statements were not of impeachment
character because they had not been made directly by Brown to the
state. However, the impeaching nature of the statements does not
depend on whether the state was a direct or indirect audience. For
purposes of determining whether evidence is "favorable" to the defen-
dant, it is the content of the statements, not their mode of communica-
tion to the state, that is important. The state court appears improperly
to have incorporated an evidentiary or ripeness requirement into the
relatively straightforward determination of whether evidence can be
used to impeach a witness and is therefore "favorable" under Brady.

The impeachment quality of the evidence is clear. Over the course
of half a dozen meetings between Brown and his attorney, Christo-
pher, during which Christopher emphasized "the need to present as
much evidence as we could to the State in order to interest them in
working out a deal," Brown consistently told Christopher that he had
seen "Spicy" a few days before the assault and a few days after the
assault, but not on the day of the assault. In fact, Christopher testified
that he had "pressed" Brown on this point, advising him that "it would
be very much to [his] benefit if [he] knew any other detail . . . that
could make the package more attractive." Even then, Brown insisted
that he had not seen Spicer on the day of the assault.

After some preliminary negotiations, Christopher conveyed to
Sindler what Brown had told him about Brown's contacts with Spicer
in the days before and after, but not the day of, the Armadillo's inci-
dent. When Sindler interviewed Brown outside the presence of his
attorney, however, Brown, for the first time, claimed to have seen
Spicer being chased by another man as he ran from Armadillo's on
the day in question.

Sindler confirmed Christopher's statement that Brown's story had
changed from what Christopher had related to the prosecutor to what

                     13
Brown told the prosecutor directly, and Sindler also acknowledged
that he "recognized that what Mr. Christopher told me wasn't what
Mr. Brown had told me." In fact, he specifically "recall[ed] at the time
knowing that there was the part about [Spicer] running away from
Armadillos [that] was not said by Gary Christopher to me. Then I
know that when I met with Larry Brown, he said that." In short,
Christopher's and Sindler's compatible recollections confirm the
inconsistency between the different versions of events offered by
Brown.

The discrepancy between Brown's testimony in court and his prior
statements to his attorney would have provided Spicer with signifi-
cant impeachment material aimed at the very heart of Brown's testi-
mony -- that he had been an eyewitness who could identify Spicer
at the scene. The impeachment value of this information increases, as
we discuss further in Part II(C), because, of all the purported eyewit-
nesses, only Brown knew Spicer; the other witnesses had never seen
him before and had difficulty identifying him.

Accordingly, the fact that Brown told at least two different versions
of what he did or did not see on the day of the assault, coupled with
the significance of the distinction -- whether or not Brown was an
eyewitness -- demonstrates that this information, if disclosed to the
defense in Spicer's trial, could have been used to impeach Brown. As
impeachment evidence, it was subject to disclosure under Brady and
its progeny if it was material.

B

The second element of Brady requires us to determine whether the
prosecution suppressed this impeaching evidence, irrespective of
whether the suppression was willful or inadvertent. Suppressed evi-
dence is "information which had been known to the prosecution but
unknown to the defense." United States v. Agurs, 427 U.S. 97, 103
(1976).

There is no question that in this case the prosecution never
informed Spicer's counsel that Brown's version of Spicer's involve-
ment in the Armadillo's incident had changed. The state acknowl-
edges that its prosecutor recognized that Brown's earlier statements

                    14
to his attorney did not correspond to what Brown told prosecutors
directly and that its prosecutors did not provide that information to
Spicer's counsel before trial. The prosecutor's actions appear to have
been based on a misunderstanding of his disclosure obligation under
Brady. But this misunderstanding, or even his error in judgment about
it, cannot justify releasing the prosecutor from the obligation. See
Kyles, 514 U.S. at 438-39.

State prosecutor Sindler recognized that what Brown had told him
personally did not match what Brown's attorney had related to him
earlier: Brown told the prosecutor directly that he was an eyewitness
to Spicer's flight from Armadillo's, yet Brown told his own attorney
that he was not an eyewitness, a fact that the attorney conveyed to the
prosecutor. Sindler admitted that he "recognized that what Mr. Chris-
topher told me wasn't what Mr. Brown had told me." He also
acknowledged more specifically that he

          recall[ed] at the time knowing that there was the part about
          [Spicer] running away from Armadillo's [that] was not said
          by Gary Christopher to me. Then I know that when I met
          with Larry Brown, he said that. It didn't really impress me
          favorably or unfavorably, because I didn't think what Gary
          had said to me was really what I would take any action
          upon.

Thus, the record shows clearly that the prosecutor was aware of both
Brown's first version of the events and the fact that that version did
not square with Brown's later claim to have been an eyewitness to the
chase.

The explanation for the state's failure to produce this information
about the inconsistent statement to Spicer's attorney appears to be that
prosecutor Sindler was concentrating on the quality of evidence he
needed for the grand jury and for trial and not on his Brady obliga-
tion. This oversight is revealed in his testimony as follows:

          Q. And why didn't you really pay much attention to what
          Mr. Christopher told you [i.e. Brown's inconsistent
          statement]?

                    15
          A. Because I knew that before I would act upon anything
          that a snitch would tell me, that I would speak to the
          person and know first hand. Generally -- I mean, often
          times it is the case that they -- a person will-- an
          attorney will say that their client has information.

           As a prosecutor you -- if you are going to base your
          case on a person testifying -- you would talk to that
          person firsthand.

This testimony indicates that Sindler did not focus on Christopher's
statement as to what Brown had said concerning the Armadillo's inci-
dent as potential Brady material, despite the fact that he recognized
that Brown's claim to have been an eyewitness was "not" what Chris-
topher had told him Brown had said. The prosecutor, although con-
scious of the distinction, was indifferent to it because he was skeptical
of the reliability of Brown's attorney's version and therefore dis-
counted it for his own prosecutorial purposes in preparing to seek an
indictment. This course of action is clearly logical and proper in car-
rying out the adversarial part of the prosecutor's responsibilities. But
it neglects the independent prosecutorial duty under Brady to evaluate
information the prosecution receives to determine whether it is excul-
patory and material and therefore subject to mandatory disclosure.

We emphasize, however, that we do not hold that the prosecutor is
obligated under Brady to seek out or to uncover inconsistencies in the
versions of events that a witness presents to his own attorney in prep-
aration for plea negotiations. The prosecution cannot be responsible
for producing exculpatory material that flows in private discussions
from a witness to his attorney. Nor do we hold that the prosecutor is
obligated to disclose potentially exculpatory material contained in the
back-and-forth hypothesizing that commonly occurs during plea
negotiations between the prosecution and defense attorneys. But when
the prosecutor receives information that he, as an objectively reason-
able prosecutor, should recognize as exculpatory or of impeachment
value, he is under a duty to disclose it to the defendant if it is material.

Our conclusion that the state withheld Brady material in this case
also is not intended to suggest any bad faith on the part of the prose-
cutor. On the contrary, the record discloses no such evidence. But the

                     16
Brady requirement applies regardless of the prosecutor's motives or
good faith. See Brady, 373 U.S. at 87. As the Supreme Court has
stated, "[i]f the suppression of evidence results in constitutional error,
it is because of the character of the evidence, not the character of the
prosecutor." Agurs, 427 U.S. at 110. Thus, even when the prosecu-
tor's actions in suppressing exculpatory evidence are in flagrant bad
faith, if the evidence at issue is not material, no Brady violation has
occurred. See Brown v. French, 147 F.3d 307, 312-13 (4th Cir. 1998).
Conversely, where, as here, the prosecution has acted in good faith
but simply misunderstood the scope of its Brady obligation, constitu-
tional error has occurred if the exculpatory evidence at issue is mate-
rial.

C

Materiality is the final limitation that circumscribes the prosecu-
tor's duty under Brady to disclose information favorable to the
defense. The touchstone of materiality is a "concern that the sup-
pressed evidence might have affected the outcome of the trial." Agurs,
427 U.S. at 104. Accordingly, an individual alleging a Brady violation
must demonstrate that "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." Bagley, 473 U.S. at 682. Although this
analysis can entail an examination of the nature and strength of the
prosecution's case, the materiality test is not an evaluation of the suf-
ficiency of the non-suppressed evidence, nor does it require the defen-
dant to prove, by a preponderance of the evidence, that he would have
been acquitted if the suppressed evidence had been disclosed. See
Kyles, 514 U.S. at 434-35. As the Supreme Court recently reiterated,

          the materiality inquiry is not just a matter of determining
          whether, after discounting the inculpatory evidence in light
          of the undisclosed evidence, the remaining evidence is suffi-
          cient to support the jury's conclusions. Rather, the question
          is whether "the favorable evidence could reasonably be
          taken to put the whole case in such a different light as to
          undermine confidence in the verdict."

Strickler, 119 S. Ct. at 1952 (quoting Kyles, 514 U.S. at 434). Accord-
ingly, even though the evidence at issue was "favorable" to Spicer

                     17
because it could have been used to impeach one of the government's
witnesses and even though the prosecutor possessed the information,
the prosecutor would only be required to disclose it under Brady if it
was "material," such that prejudice ensued from its suppression. See
Strickler, 119 S. Ct. at 1948.

The state post-conviction court appears to have concluded that the
evidence at issue was not material. After citing the "reasonable proba-
bility" materiality standard from Bagley, the state court asserted that:

          While impeachment evidence may be considered Brady
          material, the Court of Special Appeals has advised that
          "[g]enerally speaking, [materiality] requires that the evi-
          dence be directly exculpatory and not of mere utility for
          impeachment purposes." Icgoren v. State, 103 Md. App.
          407, 451, 653 A.2d 972 (1995).

This statement of law flatly contradicts clearly established federal law
which rejects a distinction between impeachment evidence and
directly exculpatory evidence for Brady purposes and holds that
impeachment material is subject to Brady disclosure. See Strickler,
119 S. Ct. at 1948; Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 154-
55. The state court's presumption that it would be more difficult to
demonstrate materiality with impeachment evidence is at odds with
this body of precedent. Further, it undermines the reasonableness of
the court's final determination that the evidence was not material.
Thus, the state court's decision involved "an unreasonable application
of clearly established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1).

In its brief, the state maintains that the evidence withheld was not
material:

          The difference between Mr. Christopher's proffer and
          Brown's testimony was of scant impeachment value,
          because, so far as the record suggests, it could have been
          attributable to some decision or lapse by Mr. Christopher.
          Viewed thusly, and viewed in the light of the other vulnera-
          bilities in Brown's testimony that did come to light in the

                    18
          jury's presence, any inconsistency was not reasonably likely
          to have affected the jury's verdict.

In addressing this argument, we recognize that the materiality inquiry
is a context-specific determination. See United States v. Ellis, 121
F.3d 908, 918 (4th Cir. 1997) (explaining that to determine whether
evidence is material for purposes of Brady, "we evaluate the whole
case, taking into account the effect that the suppressed evidence, had
it been disclosed, would have had on the evidence considered at
trial"). As a result of this approach, the same evidence could be mate-
rial in one setting and immaterial in another. In this case, we agree
with the district court's determination that the impeachment evidence
suppressed by the prosecution was material.

At Spicer's trial, the prosecution presented no physical evidence
linking Spicer to the crime. Compare Strickler, 119 S. Ct. at 1954
(noting, in finding impeachment evidence immaterial, that "there was
considerable forensic and other physical evidence linking petitioner to
the crime" (footnote omitted)), and Brown, 147 F.3d at 312 (conclud-
ing that allegedly exculpatory evidence was immaterial given the
"overwhelming physical evidence" including petitioner's "ring found
underneath the victim's liver"). Indeed, Spicer's name was not even
linked to the crime until over six months after it was committed, and
then only when Brown suggested that Spicer might be involved.
Spicer's conviction rested entirely on the vulnerable identification tes-
timony of three witnesses: Brown, Novella, and Connick. If Brown
in fact was not an eyewitness -- a position that he took with his attor-
ney prior to plea negotiations and that he has now taken again accord-
ing to Spicer's counsel at oral argument -- and given that Novella
admittedly could not identify Spicer except to say he looked "very,
very familiar," then the prosecution would be left with only the identi-
fication evidence of Connick to implicate Spicer.

Connick's evidence could well suggest that he identified the wrong
person. On the day of the assault, Connick described the assailant as
5'9" tall, weighing 165 pounds. In fact, Spicer is 6'4" tall and weighs
over 200 pounds. At trial, Connick testified that the assailant held the
assault weapon in his right hand (consistent with blows to the victim's
head struck from behind on the right side). In a note to the court, how-
ever, the jury observed that Spicer wrote with his left hand. Finally,

                     19
Connick testified that the assailant ran away very fast, too fast for
Connick to catch over a period of several blocks. In fact, Spicer had
had a crushed kneecap and an operation that precluded him from run-
ning fast. In addition to these objective discrepancies in Connick's
identification of Spicer, Connick also had difficulty in picking Spicer
out of a photo array.

It is not our role to function as a jury. But to assess whether
Brown's prior inconsistent statement was material, we must examine
it in light of the other evidence presented to the jury. See Ellis, 121
F.3d at 918. Thus, we identify the inconsistencies in Connick's testi-
mony and the equivocation in Novella's testimony only to provide the
context in which the jury heard Brown testify that he saw his
acquaintance Spicer flee the scene of Armadillo's. We conclude that
in this context, the withheld evidence was material. Indeed, Brown's
testimony about being an eyewitness to Spicer's flight might have
been critical because he knew Spicer and could correctly identify him.
If the jury doubted that Brown was an eyewitness, it would be left
without any conclusive, or perhaps even persuasive, identification
evidence.

The state argues that the evidence to impeach Brown is not mate-
rial because Brown had already been impeached with evidence of his
prior convictions, as well as the extremely favorable terms of his plea
agreement, so that any additional impeachment evidence would be of
marginal value. But this argument ignores the salience of the subject
matter of the impeachment -- whether or not Brown was an eyewit-
ness at all. Impeachment with a prior inconsistent statement relating
to the central issue that the jury was required to decide is a far more
serious blow to the prosecution's case than simply pointing out the
common situation that Brown's testimony resulted from a plea bar-
gain.

The state also argues that because the jury was already exposed to
the weaknesses in the government's case, Spicer cannot demonstrate
that there was a "reasonable probability" of a different outcome.
Maryland's argument rests on a misconception of the materiality stan-
dard. As we have previously held, "Kyles explains what is not
required in demonstrating materiality -- a defendant does not have to
show by a preponderance of the evidence that disclosure of the evi-

                    20
dence would have resulted in acquittal." Ellis, 121 F.3d at 915-16 (cit-
ing Kyles, 514 U.S. at 431-32, and Hayes v. Alabama, 85 F.3d 1492,
1498 (11th Cir. 1997) (interpreting Kyles to mean that undisclosed
evidence can require a new trial even if it is more likely than not that
a jury seeing the new evidence will still convict)). Stated differently,
Spicer need not prove that if he had been able to impeach Brown with
the suppressed testimony, the jury would have acquitted him. The test
for materiality is "not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence." Kyles, 514 at 434.

Withheld, "favorable" evidence of the kind identified in this case,
in a context where the undisclosed material could have been used to
render the evidence of guilt ambiguous has a more significant impact
than where the evidence of guilt is otherwise ample. In this case, that
significant impact requires us to conclude that Spicer did not receive
a fair trial resulting in a verdict "worthy of confidence."

To allay the concern of our dissenting colleague that prosecutors
might be unduly burdened with any Brady duty arising from the rou-
tine and casual discussions of plea-bargaining, we wish to emphasize
the limited scope of our holding and the peculiar facts to which it
applies. Brown gave a statement to his attorney (for presentation to
the prosecutor) that, while he could implicate Spicer, he was not an
eyewitness to Spicer's presence on the day of the assault, and later he
stated to the prosecutor that he was an eyewitness. The prosecutor
acknowledged that at the time he recognized the inconsistency of
these statements and that he did not tell Spicer's attorney about them.
Because his explanation for his actions and the state court's ruling on
them failed to accommodate the requirements of Brady, the applica-
tion of Brady in this case does not arise from ambiguous facts but
from the state's misconception of its Brady duty.

III

We address briefly the district court's alternative basis for granting
the writ of habeas corpus. The district court concluded that Spicer's
trial counsel was constitutionally ineffective for failing to object to
the testimony of Novella, the government's second eyewitness, who

                     21
had seen the perpetrator run past him as he was installing tile near
Armadillo's. The district court found that Spicer had established both
deficiency of counsel's performance and prejudice, as required by
Strickland v. Washington, 466 U.S. 668 (1984).

Before trial, Spicer's counsel filed a motion in limine to suppress
photo identification evidence from both Novella and Connick. Even
though Novella failed to appear at the suppression hearing, leading
the prosecutor to tell the court that he did not intend to call Novella
at trial, Novella later appeared and was in fact called as a witness at
trial without objection from Spicer's attorney. Moreover, Spicer's
attorney did not object when Novella testified that Spicer looked
"very, very familiar." The state post-conviction court found that
Spicer's counsel's decisions not to object to Novella's testifying and
to his testimony "could constitute sound trial strategy, falling within
the wide range of professionally competent assistance."

Our evaluation of trial counsel's performance is "highly deferen-
tial." Wilson v. Greene, 155 F.3d 396, 403 (4th Cir.) (citing
Strickland, 466 U.S. at 689, and Truesdale v. Moore, 142 F.3d 749
(4th Cir. 1998)), cert. denied, 119 S. Ct. 536 (1998). While Novella's
inability to pick Spicer out of a photo array before trial and his sur-
prise appearance at trial might have invited objections to his testifying
and to his testimony, an alternative trial strategy was nevertheless
available. Electing not to object to a witness based on what the wit-
ness is expected to say could have facilitated an effective offensive
strategy for the defense. Spicer's attorney might reasonably have
believed that, given the flimsiness of Novella's identification, cross-
examining Novella would be more devastating to the government
than excluding his testimony. We believe that Spicer simply has not
"overcome the presumption that the challenged action may be consid-
ered an appropriate and necessary trial strategy under the circum-
stances." Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995) (citing
Strickland, 466 U.S. at 689).

In addition, the record reveals no reason to conclude that the trial
judge would have granted a motion to exclude Novella as a witness
or to preclude his answer that Spicer appeared "very, very familiar"
if objections had been made. The trial court had already refused to
suppress evidence relating to the pretrial identification by Connick,

                     22
and there was little reason to believe that objections challenging
Novella's identification were more likely to succeed.

Accordingly, we reverse this additional ground relied on by the dis-
trict court in support of its writ.

IV

In summary, we affirm the district court's decision to grant the writ
of habeas corpus to Brady George Spicer on the ground that the pros-
ecution suppressed exculpatory, material evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and we affirm the district
court's order that Spicer be released from custody unconditionally
unless he is retried within four months. We reverse the district court
to the extent that the issuance of the writ is premised upon a finding
of unconstitutionally ineffective assistance of counsel. Accordingly,
the judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART.

KING, Circuit Judge, dissenting:

With all respect for my colleagues in the majority, I cannot concur
in their conclusion that a Brady violation occurred in this case. To be
sure, the facts portrayed by the majority regarding the conviction of
Brady George Spicer for the brutal beating and attempted murder of
Francis Denvir suggest troubling questions that strike at the heart of
our criminal justice system. Our system, however, has been and
remains the best ever devised for ferreting out and punishing the
guilty, while vindicating the innocent.

In its pursuit of the guilty, the government often enlists the assis-
tance of brigands and blackguards to ensure that the worst among
them receive their just desserts. Time and again we have acknowl-
edged the risk that inheres in harboring our hopes for a true and hon-
orable adjudication in those who are, by nature and inclination,
generally untrustworthy and dishonorable.

But our criminal justice system has always willingly accepted that
risk, confident that the greater good -- the public interest -- is

                    23
thereby better served. Now, faced with an unpleasant consequence of
the choice that society has made, the majority tailors from whole cloth
a remedy for the injustice it perceives, i.e., that Brady Spicer may
have been wrongly convicted. From the tapestry of that remedy, how-
ever, hangs a loose thread -- an unprecedented expansion of Brady
and the unwarranted issuance of the Great Writ.

I.

At the heart of every Brady dispute lies the conduct of the prose-
cuting attorney. The majority bases its grant of relief in this case on
the supposed neglect of Steven Sindler -- the Assistant State's Attor-
ney for Anne Arundel County who prosecuted Spicer-- to inform
Spicer's lawyer, James Salkin, that witness Larry Brown had made
"inconsistent" statements concerning his contact with Spicer in the
days surrounding the attack on Denvir at Armadillo's. It should be
instructive, then, to examine the relevant facts from Sindler's point of
view.

A.

Sometime during the summer of 1990, Sindler was contacted by
Gary Christopher, an attorney in the Anne Arundel County office of
the Maryland Public Defender. Christopher was interested in working
out a deal for Brown, his client, who had recently been indicted on
drug charges. Sindler was told that Brown "could give him the perpe-
trator" of the crimes committed against Denvir about six months pre-
viously. J.A. 601 (state post-conviction testimony of Gary
Christopher).

Within a week or two, after Sindler had consulted with his boss to
confirm the state's interest in a potential deal with Brown, he met
again with Christopher, who made the following proffer:

          He said that Larry Brown had been working downtown in
          the downtown area in the market house shucking oysters,
          and that Mr. Spicer had been hanging out down there, run-
          ning errands and I believe he said sleeping on the street and
          everything . . . . [Brown] was friendly with Brady Spicer, or

                     24
          acquainted with him through this running of errands, and . . .
          Mr. Spicer had asked him things about Armadillos . .. .
          Then the incident occurred and that sometime after that inci-
          dent there was conversation between the two, something to
          the effect that gee, thanks for being -- that Mr. Spicer said
          to Larry Brown, well, thanks for being cool or something
          like that, something in -- that general type of conversation.

J.A. 847-48 (state post-conviction testimony of Steven Sindler).

Sindler "didn't really pay much attention" to the details of Christo-
pher's proffer,1 because he wanted to talk with Brown himself before
finalizing any plea bargain: "[B]efore I would act upon anything that
a snitch would tell me, . . . I would speak to that person and know
firsthand. Generally . . . an attorney will say[only] that their client
has information." J.A. 851.2

B.

About a month later, Brown arrived in Sindler's office to discuss
the incident at Armadillo's directly with Sindler. Significantly, Chris-
topher was absent from this meeting. Although he had just accompa-
nied Brown to a plea proceeding in court, Christopher left his client
alone with the prosecutors after, in his words, "deliver[ing] him to
their hands." J.A. 604.3
_________________________________________________________________

1 Neither Sindler nor Christopher were sufficiently interested in the
details of the proffer to write anything down. Neither the prosecutor's
file nor that of the witness's lawyer contained any writing confirming the
contents or parameters of the proffer.

2 Indeed, recalling his initial contact with Sindler regarding Brown,
Christopher acknowledged that he was "not sure whether I told him what
I knew at that time or whether I held back on that .. . ." J.A. 601.

3 I am dismayed at Christopher's apparent abandonment of his client at
such a critical stage of the proceedings. Had his interview with Sindler
not borne fruit, Brown faced the prospect of twenty years in prison. More
importantly, had Christopher been present at Brown's interview, any
misunderstanding between lawyer and client concerning the extent of the
latter's involvement in the Spicer case would have been easily and
immediately rectified.

                    25
Brown told his story to Sindler, filling in the details of Christo-
pher's sketchy proffer. With regard to the attack on Denvir, which
occurred as Brown was shucking oysters across the street from Arma-
dillo's, Brown said that he had seen Spicer running from the restau-
_________________________________________________________________

Christopher's conduct following Spicer's trial is even more troubling,
and is not to be encouraged. Christopher acted in a manner that was con-
sistently disloyal to his client. To begin with, he should have been -- but
was not -- present while Brown testified at Spicer's trial. Afterward,
upon perceiving that Brown's testimony was "inconsistent" with his rec-
ollection of what Brown had told him (notwithstanding his advice that
Brown not provide him with "all the details," see infra note 5), Christo-
pher went directly to Spicer's attorney.

What Christopher failed to do, however, speaks much more loudly: (1)
he failed to confront Brown with the supposed inconsistency, thereby
giving his client an opportunity to clarify the point; (2) he failed to seek
Brown's permission to disclose to others his confidential client commu-
nications; (3) he failed to make any effort to approach the prosecutor,
Sindler, to clear up the issue; and (4) he failed to seek out the trial court
for possible remedial steps, or to secure the court's authority to disclose
his client's confidential communications.

As a result of his actions (and inactions), Christopher found himself on
the witness stand seeking to contradict his client's trial testimony, accus-
ing his client of a criminal act, and making improper disclosure of confi-
dential client communications:

          Once an attorney-client relationship has been established and
          privilege has attached to confidential communications between
          the attorney and client, the privilege is absolute, continuing . . .
          to protect those communications as long as the confidentiality is
          preserved. Once protected by the privilege, a communication
          may not be the subject of compelled disclosure regardless of the
          need or good cause shown for such disclosure.

1 Paul R. Rice, Attorney-Client Privilege in the United States § 2:5 (2d
ed. 1999); see Maryland Rules of Professional Conduct Rule 1.6(a) ("A
lawyer shall not reveal information relating to representation of a client
unless the client consents after consultation . . . ."). Defendants and wit-
nesses in criminal proceedings are entitled to greater loyalty from their
lawyers -- appointed or retained -- than that demonstrated by Christo-
pher in this case.

                     26
rant. Sindler "didn't think anything" of Christopher's earlier failure to
mention that Brown had actually been an eyewitness, because Chris-
topher's proffer had only been a "description of what his client might
say." J.A. 851, 867 (emphasis added). As a result, Sindler "didn't
think that [the statements] were contradictory." J.A. 867.4

Indeed, consistency -- not contradiction -- was the hallmark of
Brown's account of Spicer's connection to the Denvir beating. With
Sindler present, Brown repeated the same story under oath to the
grand jury, and again at Spicer's trial. On the strength of all the evi-
dence, including the testimony of Henry Connick and Sam Novella,
the jury found Spicer guilty.

II.

The majority notes the applicable standard of review, ante at 10,
but it bears repeating: a federal court is prohibited from granting
habeas relief on any claim that was adjudicated at the state level
unless the state court either (1) unreasonably determined the relevant
facts or (2) unreasonably applied the law to the facts. See 28 U.S.C.
§ 2254(d). We must evaluate what is "reasonable" in light of all the
evidence (with regard to the facts), and within the context of clear
Supreme Court mandates (with regard to the law). See id.

The prosecution's failure to disclose specific evidence to the
accused does not violate Brady unless the evidence is both favorable
and material. Strickler v. Greene, 119 S. Ct. 1936, 1948-49 (1999).
Christopher's proffer to Sindler fails to satisfy either criterion.

A.

Though evidence impeaching a prosecution witness is doubtlessly
"favorable," United States v. Bagley, 473 U.S. 667, 676 (1985),
impeachment with the witness's prior inconsistent statement presup-
_________________________________________________________________

4 Sindler explained that "[i]t wasn't relevant to me at the time [of Chris-
topher's proffer] whether Brown would be an eyewitness . . . or not.
What was relevant was that Larry Michael Brown gave me the name of
Mr. Spicer." J.A. 874.

                     27
poses two things. First, the earlier statement must indeed be that of
the witness. Second, the statement must actually be inconsistent.

The prior statement that Sindler failed to disclose was not that of
his witness, Brown, but that of Brown's lawyer. Nothing that Brown
testified to before the grand jury or at Spicer's trial was inconsistent
with anything that he had ever said in Sindler's presence; the pur-
ported discrepancy is instead between what Brown told Sindler
directly, and what Christopher represented that Brown had said ear-
lier.

The lack of identity between the speakers is crucial to this appeal,
particularly considering that Christopher's statement was given in the
context of a proffer to Sindler. Proffers by counsel attempting to
negotiate a plea, immunity, or other benefit for their clients are, by
their very nature, unreliable for ascertaining specific facts. The fol-
lowing is an apt description of the proffer process:

          Through incremental steps, we get information about what
          the witness can tell us, and we are willing to say at each step
          what our reaction is to the information we have received
          . . . . Counsel will come in for a witness and advise us that
          he has a witness who is prepared to cooperate . . . . At that
          point, we will usually take a hypothetical proffer from the
          attorney that identifies general areas of subject matter, tim-
          ing, sometimes specifics . . ., sometimes more general infor-
          mation . . . . If, at that point, the proffer is generally
          acceptable to the prosecutor, we will advise the attorney that
          if the testimony comes in along those lines, we would be
          interested in accepting a fuller proffer.

Robert E. Bloch, et al., Representing Corporate Employees During an
Antitrust Grand Jury Investigation, 56 Antitrust L.J. 901, 920 (1988)
(statement of Judy L. Whalley, Deputy Director of Operations, Anti-
trust Division, United States Department of Justice).

Even after defense counsel has submitted a "fuller proffer," it is
virtually always the case that the prosecutor requires the witness to
make a personal statement. An examination of this process makes it

                     28
clear that the preliminary, hypothetical representations of counsel are
not considered to be those of the witness:

          There is no way that we can fully judge the candor, credibil-
          ity, and cooperativeness of a witness without meeting with
          that witness directly . . . . In order to grant such reassurances
          as we can in that situation, we use proffer letters . . . . The
          proffer letter states that during the witness interview, we will
          agree not to use the statements of the witness directly
          against the witness in the future.

Id. at 920-21 (emphasis added); see also Fed. R. Crim. P. 11(e)(6)
(statements made to government attorneys during the course of failed
plea discussions not generally admissible against the defendant in
subsequent proceedings). Obviously, if the parties to the negotiation
process in any way imagined that the prior statements of counsel
could potentially incriminate the client-witness, those statements
would be included within the scope of the proffer letter. It therefore
speaks volumes that the typical letter omits any reference to counsel's
initial overtures.

It should be clear from the foregoing that proffers made by defense
attorneys to prosecutors rarely encompass certainty. Most often, the
proffer and negotiation process instead resembles a poker game, rife
with understatement, bluff, and bluster. Lawyers for criminal defen-
dants are understandably leery of turning up their hole cards, i.e., their
clients' knowledge of other crimes, unless it is likely that they will
garner a few chips in return. Most significantly, neither side contem-
plates that the informal proffer will ever be used by either side, or
anyone else, for any purpose.

In practice, the process often does not entail even the limited struc-
ture and formality of the one described above. Many times the prose-
cutor and defense counsel will be familiar with each other from their
past professional dealings. The attorneys may have developed a cor-
dial relationship, and, away from the office, they may be friends. A
chance encounter in the courthouse hallway can, in a matter of
moments, migrate from amiable banter to discussion of a potential
plea.

                     29
Any agreement arising out of this type of impromptu negotiation
is bound to be sketchy, and may amount to nothing more than a tacit
understanding to talk again later. Neither side will walk away from
the meeting knowing precisely what it has bargained for, but each will
be confident that it has given away little of substantive value.

Such are the realities of the modern plea negotiation process, and
it was in light of these realities that the state habeas court specifically
found that "Brown never made any inconsistent statement to the State
regarding his being an eyewitness to the chase." J.A. 990 (Memoran-
dum of Opinion and Order of August 9, 1996, denying Spicer's peti-
tion for post-conviction relief). This finding properly focuses on
Brown's statements, and not those of Christopher in his proffer to
Sindler, rendered unreliable by the context in which they were made.

The state habeas court concluded that "neither Brady nor the line
of cases following Brady required the State to inform defense counsel
of a potential discrepancy between what Brown's attorney indicated
Brown knew and what Brown actually told the Prosecutor." Id. The
state court's application of the law to the facts before it was not only
"reasonable" within the meaning of § 2254(d), it was unassailable.
The Supreme Court has never invoked Brady to grant habeas relief on
facts remotely similar to those in this case.

In characterizing the difference between the statements of Brown
and his lawyer as a "potential discrepancy," the state habeas court
acknowledged the reality that negotiation is something less than an
exact science. Absent Christopher's eventual testimony to the con-
trary, it is easy to imagine that he might have held back key pieces
of information in order to gauge Sindler's response to the tidbits
already on the table. Under that likely scenario, Brown and Christo-
pher would have shared a common understanding regarding the mat-
ters to which Brown could testify. Consequently, Christopher's
proffer would have been, at most, an incomplete account of the truth
related to him by his client.5 That being the case, it could not be credi-
_________________________________________________________________

5 The record does not indicate that Christopher at any time revealed to
Sindler his belief that Brown did not witness Spicer's alleged flight, or
that Sindler was ever informed that Brown had denied being an eyewit-

                     30
bly argued that Sindler would have any conceivable duty to disclose
to Spicer or Salkin the details of the proffer.

Yet the majority holds that Sindler violated his duty in this case
because, as it turned out, Brown's testimony did not comport with
Christopher's understanding. Such Monday-morning quarterbacking
unfairly makes a scapegoat of Sindler, who could quite reasonably
assume that the story he was hearing from Brown was the same one
that Christopher had been told, and that any variation between what
Brown claimed to know and Christopher's account of the same was
wholly attributable to the latter's negotiation tactics. Indeed, from
Sindler's perspective, it would have made little sense for Brown to
have told him more than Brown had revealed to his own lawyer.

There is simply no way that Sindler could have known of Brown's
embellishment without investigating the matter further, i.e., contact-
ing Christopher for the purpose of confronting Brown. It is well-
established, however, that a prosecutor's duty to the defendant does
not extend so far. See United States v. Walker, 559 F.2d 365, 373 (5th
Cir. 1977) ("While Brady requires the Government to tender to the
defense all exculpatory evidence in its possession, it establishes no
obligation on the Government to seek out such evidence."); United
States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975) ("Brady clearly
does not impose an affirmative duty upon the government to take
action to discover information which it does not possess.").

Without the necessary follow-up, it was impossible for Sindler to
conclude that Brown's statements in his presence were in fact incon-
sistent with what Brown had told Christopher. Without the requisite
inconsistency, Christopher's bare proffer had no impeachment value,
and was therefore not "favorable" to Spicer's defense. Evidence that
is not favorable to the accused need not be disclosed under Brady, as
_________________________________________________________________

ness. Likewise, there is no suggestion that Christopher even once repre-
sented to Sindler that the proffer was a complete account of the evidence
available from Brown. Indeed, it seems unlikely that Christopher
believed that he had a full account from his client, inasmuch as he had
advised Brown beforehand not to provide him with"all the details." J.A.
479.

                    31
the state habeas court correctly observed. The state court's interpreta-
tion of Brady in this case was not an "objectively unreasonable appli-
cation of established [legal] principles to new facts," requiring our
correction under § 2254(d). Green v. French, 143 F.3d 865, 870 (4th
Cir. 1998), cert. denied, 119 S. Ct. 844 (1999).

B.

The state habeas court's irreproachable finding that the evidence of
Christopher's proffer was not favorable to Spicer's defense is a suffi-
cient basis, standing alone, to deny the relief requested in this case.
For the sake of completeness, however, I will briefly address two
other reasons why Spicer's Brady claim must fail: (1) the proffer's
lack of materiality; and (2) Spicer's ready access to the evidence of
Brown's supposed mendacity from a source other than Sindler.

1.

Evidence is "material" for Brady purposes "if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." Strickler, 119
S. Ct. at 1948 (quoting Bagley, 473 U.S. at 682) (additional citation
omitted). The Supreme Court has noted that "evidence" that is inad-
missible is not evidence at all, and thus cannot affect the outcome of
trial. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per curiam).

Christopher's proffer to Sindler was plainly inadmissible under
Maryland law. See Elmer v. State, 724 A.2d 625, 630 (Md. 1999).
Elmer involved the trial of two defendants for an unlawful shooting
and related offenses. At issue was the prosecutor's cross-examination
of one defendant who had testified that it was he, and not his co-
defendant, who had fired the weapon that had injured the victim.
Attempting to impeach this testimony, the prosecutor asked the wit-
ness whether he had previously asserted the opposite, i.e., that his co-
defendant had pulled the trigger. The basis for the prosecutor's ques-
tion was a proffer by the witness's lawyer during plea negotiations,
in which counsel indicated that his client would testify that the co-
defendant was the triggerman.

                     32
The Maryland high court held that the prosecutor's attempt to get
the substance of the proffer before the jury was improper, noting that
"the entire area of inquiry was infused with the client/attorney privi-
lege [and] the inadmissibility of plea bargaining discussions . . . ." Id.
at 12. The import of this holding is obvious: Christopher's proffer in
this case, like the proffer in Elmer, is not competent evidence.
Because any testimony pertaining to Christopher's proffer was
required to have been excluded from Spicer's trial, such evidence
could not -- under Bartholomew -- be material within the meaning
of Brady.6 Sindler's failure to disclose the substance of the proffer
was, therefore, not a constitutional violation.7
_________________________________________________________________

6 The Court in Bartholomew dismissed as "mere speculation" the rea-
soning of the court of appeals that the results of a polygraph test adminis-
tered to a key prosecution witness, inadmissible at trial, were nonetheless
subject to disclosure on the theory that the information "might have led
[the defendant's] counsel to conduct additional discovery that might have
led to some additional evidence that could have been utilized." Id. at 6
(emphasis added). Similarly, in this case, it would be mere speculation
to posit that the disclosure of Christopher's proffer would have led coun-
sel for Spicer to discover admissible evidence useful for impeaching
Brown's credibility. As stressed by the majority, ante at 19-20, the entire
case against Spicer consisted of the testimony of three eyewitnesses,
including Brown. An investigation of Brown's credibility would there-
fore have been crucial to Spicer's defense in any event. It is difficult to
see how such an important preparation would be conducted with any
more care or diligence by counsel armed with the supposition that Brown
intended to fabricate at least part of his testimony. Indeed, counsel had
to assume that Brown was lying, insofar as his story was irreconcilable
with Spicer's protestations of innocence.

7 In its discussion of the materiality of the "impeachment evidence" that
it hypothesizes would have negated Spicer's eyewitness testimony, the
majority downplays the significance of the remaining evidence before
the jury. Ante, at 20 ("If the jury doubted that Brown was an eyewitness,
it would be left without any conclusive, or perhaps even persuasive,
identification evidence"). Spicer, however, does not assert in this pro-
ceeding that the evidence was insufficient to convict him, and the major-
ity apparently concurs in that assessment.

In my opinion, the evidence of Spicer's guilt was substantial. Even if
the jury had viewed with skepticism Brown's account of the events on
the day of the beating, it could yet credit Brown's testimony that Spicer

                    33
2.

Even if Christopher's proffer could somehow be classified as
Brady material, the law is clear that Sindler need not have disclosed
it to Salkin if it were "available to the defendant from other sources"
through Salkin's reasonable diligence. See United State v. Wilson, 901
F.2d 378, 380 (4th Cir. 1990) (quoting United States v. Davis, 787
F.2d 1501, 1505 (11th Cir. 1986)); accord, Barnes v. Thompson, 58
F.3d 971, 975 & n.4 (4th Cir. 1995).

In this case, Salkin actually spoke with Christopher prior to
Brown's appearance at Spicer's trial. J.A. 618, 641 (state post-
conviction testimony of James Salkin). Salkin testified that, during his
considerable tenure as a criminal defense lawyer, he had occasionally
questioned attorneys for adverse witnesses about specific statements
their clients had previously made, for possible use on cross-
examination. J.A. 621.

And indeed, this particular courthouse encounter began with a hint
of revelation: Christopher mentioned "in a vague way" that Salkin had
"better watch out for Larry Brown." J.A. 618. Salkin believed that
Christopher was trying to indicate to him that Brown"was a person
you had to be wary of." J.A. 621.

Revelation, however, was not to be had. Notwithstanding Christo-
pher's willingness to come forth and Salkin's own past practice,
Salkin did not inquire of Christopher as to the latter's expectations
regarding Brown's testimony. Instead, he merely attempted to have
Christopher elaborate on his rather nebulous warning:
_________________________________________________________________

had approached him afterward to thank him for not giving his name to
those investigating the crime. Moreover, Henry Connick, the bartender
at Armadillo's, positively identified Spicer as the culprit in the attack on
Denvir; although it is true that Connick's physical description of the man
he chased did not match that of Spicer, such incongruities are not uncom-
mon among persons who have undergone the stress of witnessing a crime
from an uncomfortably short distance. Finally, Connick's identification
was bolstered by that of Sam Novella, who witnessed the chase and testi-
fied that Spicer looked "very, very familiar."

                    34
          [Salkin]: . . . . My recollection is I asked him what's the
          problem, why are you sort of alerting me, and he was-- I
          think he told me he couldn't tell me.

          Q: Did you ask him what it was that Mr. Brown was going
          to testify to at the trial?

          A: I don't know if I asked him that question, but I thought
          I knew the answer.

          Q: What did you think the answer was?

          A: That my client was the person he had seen run out of
          the building and run up the street.

          Q: You never --

          A: And that he knew him from before.

          Q: But you never asked him that.

          A: No. I just asked him what -- you know, why-- you
          know, what is the problem or what is the real -- what is
          really going on.

J.A. 641-42.

Had Salkin asked Christopher a specific question regarding
Brown's probable trial testimony, he would have quickly discovered
that Christopher's impression was different from his own. Christo-
pher, who "came up to [Salkin] and started talking" (J.A. 641), very
likely would have been receptive to such an apparently innocuous
question; as far as Christopher knew, his understanding of Brown's
story comported with his client's official statement, the substance of
which was already known to Salkin from the case file or otherwise.

Although the information that Salkin could have obtained from
Christopher was of doubtful utility, the point is that it should have
been obtained from Christopher; Sindler was not the sole available

                    35
source. Our precedents simply do not permit the finding of a Brady
violation under such circumstances.

III.

The majority's grant of habeas relief in this case rests upon its con-
clusion that a prosecutor violated his duty to disclose to the defense
that one of his witnesses made a "prior inconsistent statement" that
was (1) not the witness's statement; (2) not inconsistent; (3) not
admissible in any event; and (4) reasonably available from an alter-
nate source. The majority's willingness to find a Brady violation on
these unprecedented facts appears to stem from its concern that there
is a "grave question over the fairness and accuracy" of the trial
accorded Brady George Spicer. Ante, at 2.

The "grave question" concerning the reliability of the jury's verdict
centers on the testimony of an incarcerated drug dealer who pur-
chased his freedom at the cost of Spicer's. Brown was given the
opportunity to avoid a potential twenty-year prison sentence because
the Anne Arundel County prosecutors were more interested in solving
a high-profile case involving the savage beating of a popular restaura-
teur in broad daylight.

There was nothing wrong with that decision; it is the job of prose-
cutors to ensure that the brunt of the state's retributive power is
brought to bear on those who commit the most egregious breaches of
the peace. Often, however, the only way that justice can be served is
by offering sufficient inducement to a minion of the dark (but notori-
ously disloyal) fraternity of hoodlums and thieves to throw his brother
to the wolves. Before we can punish, we must prove, and such proof
is rarely within the domain of the virtuous.

Our system of justice depends on the ability of those charged with
its administration to wield the occasional carrot along with the stick.
In order to remove from our midst the most serious offenders, prose-
cutors must be given the leeway to entice lesser wrongdoers to bear
witness. On occasion, the enticement proves too strong, and these wit-
nesses lie. Others, at a later date, merely claim to have lied; these
recantations, not made under oath, are quite rightly viewed with a
jaundiced eye.

                    36
The majority knows all this, of course. Yet it tinkers dangerously
with a system proven to be highly reliable, out of fear that it may not
be infallible. The inevitable result of this kind of tinkering is a system
that may or may not be more reliable, but also one that will surely be
less efficient, and perhaps even unworkable.

The contours of the new responsibilities thrust upon prosecutors by
the majority are, at best, uncertain. How should a prosecutor deter-
mine whether a witness's statement is actually "inconsistent" with an
earlier proffer made by counsel? Are all potential discrepancies,
regardless of their evidentiary value, now material for Brady pur-
poses? Should prosecutors, as a prerequisite to negotiating a plea,
require full written disclosure of everything to which a potential wit-
ness can testify? If so, will defense lawyers be willing to accept such
a condition?

Assuredly, some lawyers will not be willing. As a result of the
additional burdens on the bargaining process, it is likely that fewer
pleas will be negotiated. The majority's decision will thus ensure that
while our system will trap its share of minnows, hooking the bigger
fish will be ever more difficult. Although it today heeds those who
claim that the net was cast too broadly, the majority may well be con-
strained tomorrow to lament the "one that got away."

I would reverse the district court's grant of the writ of habeas cor-
pus in this case.8 I therefore respectfully dissent from the majority's
affirmance of the same.
_________________________________________________________________

8 I agree with the majority's conclusion that the district court inappro-
priately granted relief on the alternative ground that Spicer's trial counsel
was constitutionally ineffective. See ante, at 21-22.

                     37
