224 F.3d 589 (7th Cir. 2000)
Julio Mendiola, Petitioner-Appellant,v.James M. Schomig, Warden, Pontiac  Correctional Center, Respondent-Appellee.
No. 98-4031
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 4, 2000
Decided August 10, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 C 3183--Charles P. Kocoras, Judge.
Before Easterbrook, Manion, and Rovner, Circuit  Judges.
Easterbrook, Circuit Judge.


1
During the wake for a  member of the Latin Kings street gang, four non-  members drove by. Incensed, gang members standing  outside the funeral home opened fire on the car,  which sped away. Within a block the car crashed  into other vehicles. Three of the four occupants  made it to safety on foot. Manuel Gutierrez, the  fourth, did not. As a mob beat Gutierrez, one  assailant shot Gutierrez six times, killing him.  A jury concluded that Julio Mendiola fired the  fatal bullets, and he was sentenced to 50 years'  imprisonment for first-degree murder. His  conviction was affirmed by the state's appellate  court, and a federal judge denied his petition  for collateral relief. 1998 U.S. Dist. Lexis 16995  (N.D. Ill. Oct. 21, 1998). Mendiola's sole  contention on this appeal is that the prosecutor  withheld material exculpatory evidence, violating  the due process clause of the fourteenth  amendment. See Brady v. Maryland, 373 U.S. 83  (1963).


2
Eyewitness testimony supplied the basis of the  conviction. Francisco Carabez identified Mendiola  as the shooter. Immediately after the murder,  Carabez and his friend Angelo Torres went looking  for the killer. Carabez described the shooter's  appearance and clothing to Torres, and when the  two found Mendiola within a block of the crime  Carabez unhesitatingly identified him to Torres  based on his clothing as well as his visage.  Carabez later identified Mendiola in a photo  spread, a lineup, and the courtroom. Torres  corroborated Carabez's description of the events  immediately after the murder. Mendiola's defense  was an alibi (that he had been drinking beer with  two friends in a car some distance from the  murder); one of the supposed drinking companions  verified this story; several witnesses testified  that Mendiola was not the shooter; Mendiola  himself testified that he had nothing to do with  the killing or, for that matter, the Latin Kings.  This defense was undercut by a police officer's  testimony that the tattoo of a crown on  Mendiola's back is the insignia of the Latin  Kings, that the officer had observed Mendiola  associate with other gang members and use the  gang's slogans and gestures, that in a booking  photograph Mendiola posed using a hand gesture  employed by the Latin Kings, and that soon after  being arrested Mendiola had given accounts of his  whereabouts that conflicted with the alibi  offered at trial. Another officer testified that,  when arrested, Mendiola had admitted membership  in the Latin Kings. Some if not all of the  witnesses who testified on Mendiola's behalf had  links to that gang, and the prosecutor argued  that their testimony should be discounted  accordingly.


3
Although the murder took place in daylight on a  busy street, police and prosecutors had  difficulty finding people willing to cooperate.  Only one witness to the attack other than Carabez  testified for the prosecution, and that witness,  Maria Balderrama, was unable (or unwilling) to  identify the shooter. Balderrama, who was 12 at  the time of the shooting and trial, testified  that she had been playing on the street when the  affray erupted. She corroborated Carabez's  description of the attempted escape, the mob  descending on Gutierrez, the beating, and the  murder. But when asked for identifying details,  all Balderrama would say was that the shooter was  "not that tall and not that short," and "not that  fat and not that skinny." She viewed a lineup but  did not identify anyone. She did not recall what  the slayer was wearing. On cross examination,  Balderrama stated that she did not get a good  look at the killer and did not see his face. The  detective who conducted the lineup testified that  Balderrama had appeared to be very scared and  hesitated even to view the lineup until she was  assured that the people in the lineup could not  see her--an assurance that obviously did not  apply to the trial.


4
On the day of sentencing, Mendiola filed a  motion for a new trial. The principal support for  that motion was the transcript of a statement  that Balderrama made to Mendiola's lawyer, in his  office, two weeks after the trial. Balderrama  told counsel in response to leading questions  that, during her time on the stand, she came to  believe that Mendiola was not the shooter.  According to her statement, after the completion  of her testimony she expressed this opinion to  one of the two prosecutors, who asked her not to  tell Mendiola's lawyer. It is uncontested that  the state never informed defense counsel that  Balderrama wanted to change her testimony from an  agnostic position to one favoring Mendiola.  Failure to convey that information, Mendiola  insisted, violated the prosecution's obligation  under the due process clause to disclose material  exculpatory information.


5
The trial judge denied Mendiola's request for a  new trial and also declined to hold an  evidentiary hearing to learn whether Balderrama  would repeat in court the statements made in  defense counsel's office. The judge concluded  that, no matter what Balderrama later said, she  had not exculpated Mendiola immediately after  leaving the stand, and that, as a result, the  prosecution had not violated its constitutional  obligation. In an unpublished opinion, the court  of appeals observed that it, too, was entitled to  draw inferences from the record, and it agreed  with the trial judge that "the content of Maria  Balderrama's post-trial statement regarding the  conduct of the assistant State's Attorneys in  this case [is] highly incredible." Then the  appellate court added that, even if Balderrama's  post-trial statement were true, her change of  mind would not have been material exculpatory  evidence, because Balderrama had denied seeing  the shooter's face. When denying Mendiola's  petition, the district court concluded that the  state court's decision on the materiality issue  did not represent an unreasonable application of  clearly established federal law, see 28 U.S.C.  sec.2254(d)(1), making federal collateral relief  unavailable.


6
If Balderrama told the prosecutor that she was  confident that Mendiola did not shoot Gutierrez,  then the critical question is whether "there is  a reasonable probability" that this information  would have altered the outcome of the trial.  Strickler v. Greene, 527 U.S. 263, 280 (1999);  Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).  Although this sounds like a demand for  quantification, Strickler and Kyles say that the  inquiry is subjective: "[t]he question is not  whether the defendant would more likely than not  have received a different verdict with the  evidence, but whether in its absence he received  a fair trial, understood as a trial resulting in  a verdict worthy of confidence." Kyles, 514 U.S.  at 434, reiterated by Strickler, 527 U.S. at 289-  90. When the constitutional standard is flexible,  and the state court takes the rule seriously and  produces an answer within the range of defensible  positions, sec.2254(d)(1) requires the federal  court to deny the petition. "[W]hen the  constitutional question is a matter of degree,  rather than of concrete entitlements, a  'reasonable' decision by the state court must be  honored." Lindh v. Murphy, 96 F.3d 856, 871 (7th  Cir. 1996) (en banc), reversed on other grounds,  521 U.S. 320 (1997). See also Williams v. Taylor,  120 S. Ct. 1495, 1518-23 (2000); Gardner v.  Barnett, 199 F.3d 915 (7th Cir. 1999) (en banc);  Tenner v. Gilmore, 184 F.3d 608 (7th Cir. 1999).  That Balderrama had denied under oath seeing the  incident clearly enough to make an  identification, had disclaimed seeing the  shooter's face and was unable even to describe  his body type, means that her testimony did not  support his conviction other than by  corroborating Carabez's description of the  sequence of events. Her change of mind did not  affect this aspect of her testimony, the only one  that mattered. Yet it cannot be gainsaid that  Mendiola would have been helped by support from  Balderrama, for the prosecutor could not have  responded that she was affiliated with the Latin  Kings--although the prosecutor would have  emphasized the incompatibility between  Balderrama's new position and her earlier  professed inability to see details about the  shooter's appearance. Because arguments can be  made both ways, it is hard to call the state  court's resolution unreasonable, in the objective  sense adopted by the Supreme Court in Williams.


7
But we need not rest on that ground, because  both the trial court and the state appellate  court found that Balderrama did not tell the  prosecutor that she had come to believe that  Mendiola did not shoot Gutierrez. The appellate  court's statement--that "the content of Maria  Balderrama's post-trial statement regarding the  conduct of the assistant State's Attorneys in  this case [is] highly incredible"--was not, as  Mendiola would have it, a throw-away line. It was  an independent ground of decision, offered only  after the court observed that it had an  independent right to draw inferences from the  record. Under federal law, that finding of fact  is dispositive.


8
In a proceeding instituted by an application for  a writ of habeas corpus by a person in custody  pursuant to the judgment of a State court, a  determination of a factual issue made by a State  court shall be presumed to be correct. The  applicant shall have the burden of rebutting the  presumption of correctness by clear and  convincing evidence.


9
28 U.S.C. sec.2254(e)(1). Mendiola has not  established by "clear and convincing evidence"  that Balderrama's post-trial statement,  effectively a partial recantation of her trial  testimony, must be preferred to the testimony  given under oath. Mendiola has not seriously  tried to do this; he has no evidence other than  Balderrama's statement. Instead his principal  contention is that conclusions reached by state  judges in the absence of an evidentiary hearing  are not "really" findings of fact and fall  outside sec.2254(e).


10
The foundation of Mendiola's position--that only  trial judges may make factual findings, and then  only after hearings dedicated to the contested  issue--is unsound. Sumner v. Mata, 449 U.S. 539,  546-47 (1981), holds that state appellate courts'  findings are entitled to the same respect that  trial judges' findings receive. What is more,  sec.2254(e)(1) does not require findings to be  based on evidentiary hearings. This is a major  difference between sec.2254(e), part of the  Antiterrorism and Effective Death Penalty Act of  1996, and its predecessor 28 U.S.C. (1994 ed.)  sec.2254(d). The former statute required  deference to "a determination after a hearing on  the merits of a factual issue" unless one of  eight conditions was satisfied. Section 2254(e),  by contrast, omits any mention of a hearing. If  a state court's finding rests on thin air, the  petitioner will have little difficulty satisfying  the standards for relief under sec.2254. But if  the state court's finding is supported by the  record, even though not by a "hearing on the  merits of [the] factual issue", then it is  presumed to be correct.


11
Plenty of support for the finding is apparent  in this record. The trial judge heard  Balderrama's testimony at trial, which supplied  ample basis for the judge to disbelieve a later  inconsistent story. See United States v. Provost,  969 F.2d 617, 619-20 (8th Cir. 1992). Cf. United  States v. Stewart, 198 F.3d 984 (7th Cir. 1999)  (statements made under oath when pleading guilty  are conclusive, and the judge may reject without  a hearing a defendant's later contention that his  sworn statements were untrue). Balderrama's  statement to Mendiola's lawyer made little sense.  Why would she testify as she did and then sing a  different song immediately after leaving the  stand? The trial judge observed not only  Balderrama but also the prosecutors. In response  to Mendiola's post-trial motion, both prosecutors  denied that Balderrama had told them that she had  concluded that Mendiola did not shoot Gutierrez.  Neither prosecutor testified under oath (and one  relayed his recollections by hearsay through the  other), but both had reputational interests in  telling the truth. When dealing with contentions  that prosecutors have exercised peremptory  challenges improperly, judges are entitled to  credit prosecutors' explanations without placing  them under oath. Purkett v. Elem, 514 U.S. 765  (1995); Hernandez v. New York, 500 U.S. 352  (1991). We see no greater reason why a formal  hearing is required when the subject is what a  witness told a prosecutor. If Balderrama's post-  trial statement is correct, then two prosecutors  put their law licenses and careers in jeopardy  for no good reason; the trial judge (and the  state's appellate court) were entitled to think  it more plausible that Balderrama did not recant  until the post-trial interview with Mendiola's  lawyer.


12
Disbelief of recantations is sensible--and not  just because the formality of a court, the  presence of the litigants, and the gaze of a  judge induce witnesses to hew more closely to the  truth than they do when speaking in private and  attempting to appease the losing side's advocate.  Disbelief is reasonable because it protects  witnesses after trial, and thus promotes truthful  testimony during trial. See Hyseer v. Florida,  315 U.S. 411, 422 (1942). Some witnesses fall  prey to influences--perhaps the persuasive  influence of a skilled advocate asking leading  questions, perhaps the less wholesome influence  of the defendant's friends. See Charles Alan  Wright, 3 Federal Practice and Procedure  sec.557.1 (2d ed. 1982). Both may have been at  work with Balderrama. People fear the Latin Kings  for a reason. By disbelieving recantations,  judges protect witnesses such as Balderrama.  Knowledge that obtaining a recantation will not  affect the outcome of the trial makes it less  likely that defendants and their friends will  hound witnesses after trial. Witnesses who are  nonetheless pursued may protect themselves by  telling defendants' friends (and lawyers) what  they want to hear, knowing that recantation will  not jeopardize an accurate verdict already  delivered.


13
Four state judges (one trial judge, three  appellate judges) chose to believe Balderrama on  the witness stand over Balderrama in the office  of Mendiola's lawyer, and to believe two members  of the bar rather than to credit a recantation by  a fearful witness. That decision has not been  undercut by clear and convincing evidence, so the  judgment of the district court is affirmed.


14
ROVNER, Circuit Judge, dissenting.


15
It is our  obligation in habeas corpus to defer to the state  courts, not to clean up after them. The trial  judge in this case left a gaping hole in the  record when he "found" that Maria Balderrama lied  and the prosecutor she accused of suppressing  evidence told the truth, without bothering to  hear either one of them testify. Rather than  remanding for an evidentiary hearing, the  Illinois appellate court compounded the problem  when, "draw[ing] inferences of fact from the  record," it dismissed Balderrama's post-trial  statement as "highly incredible." Today, my  colleagues conclude not only that no harm was  done, but that it is an entirely "sensible"  approach for courts to disbelieve recantations as  a matter of principle, whatever the  circumstances. See ante at 593. Their reasoning  would summarily foreclose relief not only to  Mendiola, but to any defendant convicted on the  testimony of an eyewitness who later recants, and  I cannot join it.

1.

16
Maria Balderrama was a key prosecution witness  whose impartiality the prosecutors trumpeted in  closing arguments. She did not identify Mendiola  as the man who shot Manuel Gutierrez, but she  corroborated the testimony of the one and only  witness who did--Francisco Carabez. The  prosecutor's own words reveal how important she  was to the State's case


17
What else do you have, ladies and gentlemen?  Maria Balderamma [sic]. Let's talk about Maria  Balderamma [sic] for a second. Thirteen-year-old  girl that came in and told you what she saw. She  saw and she heard the victim begging for his  life. She tells you he's laying there on the  ground saying, I'm not nothing, I'm not nothing,  don't shoot me, please don't shoot. She says the  man took out the gun, fired the gun numerous  times. And what's her description of the shooter?  Not too tall, not too short. Was he fat? No, not  really fat. Was he thin? No, not really thin. Not  what the Latin King members, the defense  witnesses, tell you a concocted defense of some  short, fat guy. Maria Balderamma [sic] was right  across the street. She says she couldn't see his  face. She was trembling when she viewed the  lineup.


18
What she tells you, ladies and gentlemen,  supports everything that Francisco Carabez said,  everything he said about what happened.


19
F141-42 (emphasis added). See also id. at F149  ("And you know Francisco Carabez is telling the  truth because it's supported by all of the  evidence in this case."); F197 ("Two credible  witnesses, Angelo Torres, is enough. Maria  Balderamma [sic] is enough.").


20
Balderrama's sworn post-trial statement was as  material as her testimony at trial. What she  alleges is that while she was on the witness  stand, she realized that Mendiola was not the  person who shot Gutierrez. She recognized  Mendiola (whom she did not know by name) from the  neighborhood, where she had seen him eating out  with his parents on one occasion and in church on  two others. C117-18. And she was "positive" that  Mendiola was not the shooter, because Mendiola  did not have a ponytail, did not have dark skin,  and was taller than the person she had seen kill  Gutierrez. C118-19. Balderrama goes on to allege  that immediately after she testified (and while  the trial was still underway), she approached one  of the prosecutors and repeatedly told him that  "[t]hat is not the guy" who shot Gutierrez. C123.  He instructed her to say nothing to either  Mendiola's attorneys or his parents, however, and  until the trial was over, she heeded that  instruction. C123-24.


21
If Balderrama is telling the truth, the  prosecutor suppressed exculpatory evidence in  violation of Brady v. Maryland, 373 U.S. 83, 83  S. Ct. 1194 (1963). By Balderrama's account, she  got enough of a look at the shooter and had  enough of a visual acquaintance with Mendiola to  know that he was not the killer. Her testimony to  that effect would have left the State without the  corroboration of Carabez's testimony that it so  emphasized in arguments to the jury. That  corroboration cannot be dismissed as cumulative  or immaterial. By all accounts, the events that  culminated in the murder of Gutierrez unfolded  very quickly in a chaotic environment. Because  there was no physical evidence implicating  Mendiola in the murder, the State's case rested  almost entirely on eyewitness testimony--and in  great measure upon the testimony of a single  witness, Carabez. Balderrama was the only  prosecution witness who could confirm Carabez's  account of what occurred and his description of  the person who shot Gutierrez. (Torres could only  testify as to what Carabez told him.) She also  was, as my colleagues acknowledge, one of very  few witnesses whose credibility was unimpeached.  Ante at 592.


22
One need only look to United States v. Agurs,  427 U.S. 97, 96 S. Ct. 2392 (1976), for  confirmation that the assertions in Balderrama's  post-trial statement are material. In Agurs, the  Supreme Court held that the prosecutor's  suppression of exculpatory evidence in violation  of Brady will demand a new trial "if the omitted  evidence creates a reasonable doubt that did not  otherwise exist[.]" Id. at 112, 96 S. Ct. at  2402. By way of illustration, the Court remarked


23
If, for example, one of only two eyewitnesses to  a crime had told the prosecutor that the  defendant was definitely not its perpetrator and  if this statement was not disclosed to the  defense, no court would hesitate to reverse a  conviction resting on the testimony of the other  eyewitnesses. . . .


24
Id. at 112 n.21, 96 S. Ct. at 2402 n.21, quoting  Comment, Brady v. Maryland and The Prosecutor's  Duty to Disclose, 40 U. Chi. L. Rev. 112, 125  (1972). This is almost exactly the situation we  have here. One of the two eyewitnesses who were  central to the State's case purportedly told the  prosecutor that Mendiola was not the assailant,  and this exculpatory information was kept from  the defense until after he was convicted. In view  of the fact that the State relied upon Balderrama  to bolster the testimony of the only witness who  could identify Mendiola as the killer, her  statement (if credited) creates "a reasonable  probability that, had the evidence been disclosed  to the defense, the result of the proceeding  would have been different." Strickler v. Greene,  527 U.S. 263, 119 S. Ct. 1936, 1948 (1999)  (quoting United States v. Bagley, 473 U.S. 667,  682, 105 S. Ct. 3375, 3383 (1985)); Kyles v.  Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555,  1565 (1995).1

2.

25
The key question, of course, is whether  Balderrama's post-trial assertions are credible.  But for what has transpired in this case, there  would be no need to point out that credibility  assessments require an evidentiary hearing. We  honor that rule probably more than a hundred  times a year in reviewing summary judgment  rulings alone. See Anderson v. Liberty Lobby,  Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513  (1986). The reasons are as familiar as the rule.  Ascertaining whether a witness is telling the  truth--as yet an entirely unscientific task--  demands an opportunity for the factfinder to look  her in the eye, observe her demeanor, note the  dryness of her brow, hear the inflections in her  voice, and in general to observe how she holds up  on cross-examination. E.g., Anderson v. City of  Bessemer City, N.C., 470 U.S. 564, 575, 105 S.  Ct. 1504, 1512 (1985); United States v.  Mancillas, 183 F.3d 682, 701 n.22 (7th Cir. 1999)  (quoting United States v. Garcia, 66 F.3d 851,  856 (7th Cir. 1995)), cert. denied, 120 S. Ct.  1271 (2000). Cold paper records supply none of  this information.


26
What Mendiola appropriately asked for, and what  he was entitled to, was a brief evidentiary  hearing so that the court could determine whether  Balderrama or the prosecutor was telling the  truth. Balderrama's statement, which Mendiola  submitted in support of his request, laid more  than an adequate foundation for the hearing. Her  statement was given under oath, and it set forth  in detail when and why she realized that Mendiola  was not the person she had seen shoot Gutierrez,  as well as the circumstances and content of the  conversation in which she disclosed this  information to the prosecutor. Nothing more was  required to demonstrate that an evidentiary  hearing was necessary.


27
But rather than devote twenty minutes or so to  such a hearing, or to articulate sound reasons  why a hearing was unnecessary, the trial judge  simply "found" that Balderrama was lying. The  sole piece of evidence that the court actually  had before it at that point was Balderrama's  sworn statement. Beyond that, it had only an out-  of-court verbal assurance from the prosecutor  identified in Balderrama's statement denying that  there had ever been a conversation in which she  told him that Mendiola was not the shooter. G6,  G12. That assurance was relayed to the court by  the prosecutor's colleague. Nonetheless, the  court proceeded to find the hearsay repetition of  the prosecutor's denial to be more credible than  Balderrama's sworn statement


28
I find there was no violations [sic] of the  document Brady versus Maryland because I accept  [Assistant State's Attorney] Mr. Berlin's word  through the representations of [his colleague]  Mr. Rogers here in court. Mr. Berlin being an  officer of the court that he never had a  conversation with Maria Balderamma [sic] or she  stated that Mr. Mendiola was not the shooter. I  find that conversation did not exist; that Maria  Balderamma [sic] a young lady from the community  for whatever motivated her, made in fact a false  statement to the defense attorneys in the  presence of the court reporter post-trial. That  assertion due to the fact I find Mr. Berlin to be  a credible outstanding state's attorney. He's not  in any way encroached nondisclosure under Brady  versus Maryland.


29
G18-19.


30
This was an extraordinary turn of events.  Without having heard a single witness testify,  and based solely on the unsworn assurances of a  prosecutor who was not even before the court,2  the court simply took the prosecution's word and labeled Balderrama a liar. It did not say that  her post-trial statement was incredible as a  matter of law, it did not say that her statement  was immaterial. It simply chose not to believe  her, without any of the process that normally  attends such credibility determinations.

3.

31
Faced with the blatant impropriety of the trial  court's credibility determination, the Illinois  Appellate Court felt the need in the first  instance to become a factfinder itself. "[A]n  appellate court may draw inferences of fact from  the record before it," the court proclaimed.  People v. Mendiola, No. 1-95-2874, Order, at 20  (Ill. App. July 21, 1997) (hereinafter, "Order"),  citing Ill. Sup. Ct. Rule 366(a)(4).3 And without  further ado--indeed, without any explanation at  all--the court simply announced


32
"We find the  content of Maria Balderrama's post-trial  statement regarding the conduct of the assistant  State's Attorneys in this case to be highly  incredible." Order at 20.


33
The appellate court's finding is even less  sound than the trial court's. The trial judge, at  least, had heard Balderrama testify at trial and,  within the confines of the courtroom, had seen  the prosecutors at work. See ante at 592-93. The  appellate court, by contrast, had only a cold  record before it. It had no business making  credibility determinations. See Cabana v.  Bullock, 474 U.S. 376, 388 n.5, 106 S. Ct. 689,  698 n.5 (1986).4 What the court meant to say,  perhaps, when it "found" Balderrama's post-trial  statement to be "highly incredible," was that no  reasonable finder of fact could believe it--that  her statement was incredible as a matter of law.  See, e.g., Anderson v. Bessemer City, N.C., 470  U.S. at 575, 105 S. Ct. at 1512; Kidd v. Illinois  State Police, 167 F.3d 1084, 1095-96 (7th Cir.  1999). That won't fly either. To accuse a  prosecutor of misconduct, as Balderrama did, is  a grave matter. None of us wants to believe that  an officer of the court would instruct a witness  to keep exculpatory information to herself. But  is it beyond the realm of possibility?  Regrettably, it is not. See Lockett v. Blackburn,  571 F.2d 309 (5th Cir. 1978) (State encouraged and  helped confidential informants who witnessed  defendant's sale of heroin to undercover agent to  leave state before trial, rendering defendant  unable to subpoena them); see also, e.g., United  States v. Boyd, 833 F. Supp. 1277 (N.D. Ill.  1993) (Aspen, J.), aff'd, 55 F.3d 239 (7th Cir.  1995); Walker v. City of New York, 974 F.2d 293,  294-95 (2d Cir. 1992), cert. denied, 507 U.S.  961, 113 S. Ct. 1387 (1993), and cert. denied,  507 U.S. 972, 113 S. Ct. 1412 (1993); Ex Parte  Davis, 957 S.W.2d 9, 10-11 (Tex. Crim. App.  1997), cert. denied, 523 U.S. 1023, 118 S. Ct.  1307 (1998); Commonwealth v. Smith, 615 A.2d 321,  322-23 (Pa. 1992). Balderrama's allegations are  straightforward and plausible, and we are given  no other reason to believe that her testimony--if  she were ever allowed to give it--could not be  credited. So far as the record reveals, she is  not delusional, she suffers no impairments in her  perception, nor is she an incompetent witness--  she was, after all, a jewel in the State's case  against Mendiola. A factfinder would of course be  free not to believe her, but before she can be  deemed incredible, her testimony must be heard.


34
Grudgingly indulging the assumption that  Balderrama's statement might be true, the  Illinois appellate court alternatively posited  that it was not material in the Brady sense--that  it was unlikely to have affected the outcome of  the trial, in other words. Order at 20-21; see  Strickler, 119 S. Ct. at 1948, 1952; Kyles, 514  U.S. at 434, 115 S. Ct. at 1565-66. For three  reasons, each of which again revolves around her  credibility, the court was confident that a jury  would have discounted Balderrama's allegations: (1) "young Maria's post-trial statement lacks  credibility because it seems to result from  defense counsel's leading questions"; (2) her  statement "was contradicted by nearly every other  witness"; and (3) cross-examination by Mendiola's  attorney at trial "significantly undercut Maria's  ability to inculpate or exculpate any suspect."  Order at 21-21 (emphasis in original). The  district court thought that this was a reasonable  materiality assessment, and sustained the state  court judgment on that basis. Mendiola v. Carter,  No. 98 C 3183, 1998 WL 748276, at *8 (N.D. Ill.  Oct. 22) (Kocoras, J.). On closer inspection,  however, the appellate court's materiality  evaluation turns out to be as flawed as the rest  of its analysis.


35
That Mendiola's lawyers may have asked some  leading questions when they elicited Balderrama's  post-trial statement is entirely beside the  point. Her statement was submitted solely as  prima facie proof of the need for a hearing. See  G8. In that sense, it was no different from an  affidavit, which typically is drafted by an  attorney in terms favorable to his client. Had  the trial court allowed Mendiola to put  Balderrama on the witness stand, his attorneys no  doubt would have questioned her in an appropriate  manner; and the State, I might add, would have  enjoyed the opportunity to cross-examine her. But  one party cannot conduct a hearing on his own,  and so we are left with the record as it is. To  discount the evidentiary value of Balderrama's  statement because of its form ignores the fact  that it is the trial court that is to blame for  refusing to hold a hearing, not Mendiola.


36
To say that Balderrama's statement "was  contradicted by nearly every other witness"  (Order at 21) is flat-out wrong. What  contradicted Balderrama, the court believed, was  the testimony of several eyewitnesses that the  man who shot Gutierrez "wore a hood." Order at  19. If he was wearing a hood, the appellate court  apparently reasoned, Balderrama could not  possibly have known that he wore his hair in a  ponytail--and the ponytail is one of the reasons  she gives for her late realization that Mendiola  was not the shooter. C118. Yet, one can wear a  hooded sweatshirt or jacket without wearing the  hood up, and if the shooter's hood was down  during any portion of the encounter, it would  have been possible for Balderrama to see a  ponytail. In fact, of the five eyewitnesses who  testified about the shooting, only one--Carabez--  indicated that the assailant raised his hood at  the beginning of the encounter. B68, B91. Three  others testified that the killer left his hood  down until after he shot Gutierrez. D150, E38,  E65. The fifth--Balderrama--could not recall  whether he had a hood or not. B124.


37
Finally, to suggest that Balderrama's ability to  inculpate or exculpate anyone as Gutierrez's  assailant had already been cast into doubt at  trial ignores the basis for Balderrama's  assertion that Mendiola was not the shooter.  Balderrama had indeed effectively conceded on  cross-examination that she did not get a good  look at the killer and did not see his face.  B123-24. The two characteristics that in her mind  ruled out Mendiola as the assailant, however--his  complexion and lack of a ponytail (C118-19)--are  not features that require a good look at  someone's visage to discern. Nothing in this  record gives us reason to doubt that Balderrama  in fact saw a ponytail and dark complexion on the  assailant. (Carabez, for example, testified that  the shooter's complexion was "[b]rownish." B73.)  The State itself was content to rely on her  description of the shooter to bolster Carabez's  identification of Mendiola. F142.

4.

38
My colleagues' own effort to rescue the state  courts' finding fares no better and in one  important respect, I believe, makes matters  worse. Declaring first that there is "[p]lenty of  support" in the record for the state courts'  assessment of Balderrama's credibility, ante at  592, they tick off a list of circumstances which,  in their view, suggest that her post-trial  statement is false, ante at 592-93. None of these  factors, however, supports the trial court's  decision to dismiss Balderrama as a liar without  first holding a hearing. Second, my colleagues  make the sweeping declaration that "[d]isbelief  of recantations is sensible" because it "promotes  truthful testimony during trial." Ante at 593.  Maybe, maybe not. But not all recantations are  false, and a generalized pronouncement that trial  courts are free to disregard any and all  recantations as a matter of policy rules out any  relief to those convicted on the basis of perjury  or otherwise inaccurate testimony.


39
The fact that the trial court heard Balderrama  testify as a witness at trial (see ante at 592-93)  lends little or no support to the determination  that her post-trial statement is incredible. That  point would be relevant if Balderrama were  attempting to withdraw or change her prior  testimony. Had she identified Mendiola as the  shooter at trial, for example, the trial court  would indeed have had some basis for assessing  the veracity of her post-trial assertion that  Mendiola was not the shooter--having already  heard and seen the witness say that X is true  under oath, a court has a frame of reference for  assessing the credibility of her subsequent  statement that X is false. See, e.g., United  States v. Provost, 969 F.2d 617, 619-20 (8th Cir.  1992), cert. denied, 506 U.S. 1056, 113 S. Ct.  986 (1993), cited ante at 592-93. Put another way,  when a witness wishes to take back what she has  already asserted under oath, she has some  explaining to do; and if a reasonable explanation  is not forthcoming, the court need not let her  testify a second time. See United States v.  Stewart, 198 F.3d 984, 986 (7th Cir. 1999), cited  ante at 593; see also Higgins v. Mississippi, 217 F.3d 951, 954, 955 (7th Cir. June 30).  Balderrama's statement is not a true recantation  in this sense, however. At trial, Balderrama  never implicated Mendiola as the person who shot  Gutierrez. Instead, she recounted the sequence of  events that culminated in the shooting and gave  a vague description of the shooter. In no respect  does her post-trial statement conflict with the  substance of her testimony. The statement  certainly does convey information that Balderrama  did not disclose at trial, but in virtually every  instance, this was information that she was never  asked about at trial. She was never asked, for  example, whether the shooter wore his hair in a  ponytail. She was never asked if Mendiola  appeared taller, shorter, darker, or lighter than  the shooter. She was never asked, in fact,  whether she recognized Mendiola at all. Her post-  trial statement thus stands in contrast to a true  recantation, which often amounts to a confession  of perjury. To the extent it requires  explanation, she gives it.


40
My colleagues also suggest that Balderrama's  statement "made little sense." Ante at 593. "Why  would she testify as she did," they ask, "and  then sing a different song immediately after  leaving the stand?" Id. (emphasis in original).  As I have just explained, however, Balderrama's  post-trial statement does not amount to a  different song so much as an additional verse. So  far as the record discloses, when Balderrama took  the witness stand, no one thought that she could  or would identify Mendiola as Gutierrez's  assailant. She had not picked Mendiola out of the  line-up (see B116), she had not seen the  shooter's face (B115-16), and could only describe  the shooter in general terms (B116, B124). Her  own realization that she did recognize Mendiola  (as someone other than the shooter) did not occur  until she was on the witness stand. C119. Because  no one else was the wiser at that point, she was  not asked while on the stand whether she  recognized him. The fact that she (allegedly)  spoke up immediately after she finished  testifying if anything lends credibility to her  account of events. Would my colleagues think her  allegations more credible if she had waited a  month or two (or a year or two) before  approaching the prosecutor?


41
The notion that the trial judge was entitled to  credit the prosecutor's unsworn, hearsay denial  because prosecutors have "reputational interests  in telling the truth" (ante at 7) makes  insufficient room for the real world. Yes,  prosecutors, like other attorneys, have an  interest in preserving their credibility;  confessing small sins serves that interest. But  I hardly think it likely that a prosecutor who  actually instructs a witness to suppress  exculpatory information is going to be  forthcoming about it, when it is only her word  against his. If indeed a prosecutor has engaged  in the kind of serious misconduct that Balderrama  alleges, arguably it would not be in his  "reputational interest" to acknowledge the  impropriety. Confessing to conduct that amounts  to the obstruction of justice will not do much to  advance a prosecutor's career. Whatever we might  think in the abstract, the important point is  that we know that some prosecutors do engage in  this sort of misconduct (see, e.g., cases cited  supra at 597), and that they don't always tell the  truth about it. Balderrama's allegations are  within the realm of possibility. Under the  circumstances, the trial judge was obligated to  hear both Balderrama and the prosecutor testify  before deciding who was telling the truth.


42
Finally, the suggestion that there are  "sensible" policy reasons to disbelieve  recantations categorically (ante at 7) is  bothersome. Recantations should be viewed with a  healthy dose of skepticism, for all of the  reasons my colleagues have cited. But as we know,  witnesses don't always wait until after they  leave the courtroom to dissemble. Just as a  witness may recant her testimony later to appease  the defendant and his allies, she may also lie in  the first instance, perhaps to appease the  prosecution, to protect someone else, or to  exculpate herself. In short, the recantation on  occasion represents the truth.5 Deciding when  that is so is by no means an easy task, and when  the trial judge has given the witness's change of  heart due consideration, his judgment is entitled  to our deference. But when a court rejects a  plausible recantation out of hand, without any of  the process that attends a valid credibility  assessment, we owe the court's finding no  respect. To sustain such a summary determination,  as we do today, is to unnecessarily exalt the  sovereignty of state courts over due process and  the pursuit of truth.

5.

43
Four state judges, my brothers note in closing,  have chosen to disbelieve Balderrama's post-trial  statement exonerating Mendiola. Ante at 593. With  all due respect to my colleagues on the Illinois  courts, it would not matter if 100 of them had  done so, since not one has actually heard what  Balderrama has to say. And given that Balderrama  and the prosecutor are the only two people who  know whether her allegations are true, Mendiola  cannot possibly marshal the clear and convincing  evidence needed to show that the state courts'  credibility assessment is wrong (see ante at 592, 593) unless and until he is given the chance to put  Balderrama on the witness stand.


44
The gravity of the trial court's mistake is  demonstrated by the lengths to which the Illinois  appellate court, and now this court, have gone to  compensate for it. Had the trial judge simply  done his job and conducted an evidentiary hearing  that would have enabled him to decide whether  Balderrama's post-trial statement is truthful, we  would not be here today. Instead, we find  ourselves struggling to prop up credibility  assessments fashioned of smoke and mirrors. It is  not our province to second-guess state courts,  but neither is it our province to gloss over  their mistakes. This case should be remanded to  the district court for the evidentiary hearing  that the state courts have refused to give  Mendiola.


45
I respectfully dissent.



NOTES:


1
 See, e.g., Kyles, 514 U.S. at 445, 115 S. Ct. at  1571 ("the effective impeachment of one  eyewitness can call for a new trial even though  the attack does not extend directly to others .  . . .") (citing Agurs); Cannon v. Alabama, 558  F.2d 1211, 1215-16 (5th Cir. 1977) (new trial  ordered where government failed to disclose  eyewitness who had identified someone other than  defendant as perpetrator), cert. denied, 434 U.S.  1087, 98 S. Ct. 1281 (1978); Jackson v.  Wainwright, 390 F.2d 288, 298-99 (5th Cir. 1968)  (new trial ordered where prosecution failed to  disclose pre-trial statements of eyewitness who  said assailant had lighter complexion than  defendant); United States ex rel. Meers v.  Wilkins, 326 F.2d 135, 138-40 (2d Cir. 1964) (new  trial ordered where prosecution failed to  disclose two eyewitnesses who told police that  defendant did not participate in robbery);  Watkins v. Miller, 92 F. Supp. 2d 824, 843-47  (S.D. Ind. 2000) (Hamilton, J.) (habeas corpus  granted where prosecution failed to disclose,  inter alia, existence of eyewitness who observed  abduction of murder victim at time when defendant  had solid alibi and who gave description of  abductor that could not have been defendant);  United States v. Sheehan, 442 F. Supp. 1003,  1008-09 (D. Mass. 1977) (new trial ordered where  government failed to disclose existence of only  eyewitness who saw unmasked faces of bank robbers  and who was unable to identify defendant as one  of the robbers); In re Kapatos, 208 F. Supp. 883,  888-89 (S.D.N.Y. 1962) (habeas corpus granted and  new trial ordered where State failed to disclose  pre-trial statement and grand jury testimony of  witness who indicated that defendant was not one  of two men he saw fleeing scene of murder).


2
 "Hearsay testimony is presumptively unreliable  under the common law because the opposing party  has no opportunity to cross-examine and test the  declarant's truthfulness under oath before the  factfinder." United States v. Shukri, 207 F.3d  412, 417 (7th Cir. 2000), citing 5 John H.  Wigmore, Evidence in Trials at Common Law sec. 1368, at  37, sec. 1420, at 251 (rev. ed. 1974), and  McCormick on Evidence sec. 245, at 728 (Edward W.  Cleary ed., 3d ed. 1984). The prosecutor's out-  of-court statement in this case bears none of the  indicia of reliability that would overcome this  presumption. See, e.g., Fed. R. Evid. 804(b).


3
 The supreme court rule grants a variety of  discretionary powers to a reviewing court in  Illinois to exercise "on such terms as it deems  just," including the authority to "draw  inferences of fact." Rule 366(a)(4). Illinois  appellate courts resort to this authority when  they make a finding that the facts of record  virtually compel, e.g., In re Marriage of  Bennett, 587 N.E.2d 577, 579-81 (Ill. App. 1992),  and likewise when they reject a factual assertion  that is wholly inconsistent with the record,  e.g., In re Marriage of Johnson, 565 N.E.2d 162,  163-64 (Ill. App. 1990). Nothing in the rule,  however, authorizes a reviewing court to resolve  a genuine swearing contest. See, e.g., Zaderaka  v. Illinois Human Rights Com'n, 545 N.E.2d 684,  688 (Ill. 1989).


4
 Of course I agree that appellate courts have the  ability and authority under appropriate  circumstances to make factual determinations,  Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct.  764, 769 (1981) ("Sumner I"), and that such  determinations are presumed to be correct, 28  U.S.C. sec. 2254(e)(1). See ante at 592. Thus, for  example, when a state appellate court examines  the record and determines that the trial judge  did not rely on an impermissible factor in  sentencing the defendant, Wainwright v. Goode,  464 U.S. 78, 85, 104 S. Ct. 378, 382-83 (1983),  that a witness gave an accurate, detailed  description of the defendant, Sumner v. Mata, 455  U.S. 591, 597, 102 S. Ct. 1303, 1307 (1982) (per  curiam) ("Sumner II"), or that the record reveals  or does not reveal racial discrimination in the  selection of jurors, Mitchell v. Rees, 114 F.3d  571, 576-77 (6th Cir. 1997), cert. denied, 522  U.S. 1120, 118 S. Ct. 1062 (1998), we owe that  assessment deference. See Sumner II, 455 U.S. at  597-98; 102 S. Ct. at 1307; Sumner I, 449 U.S. at  546-47, 101 S. Ct. at 769. But the presumption of  correctness falls away when the appellate court  engages in factfinding without the sort of  information or process that render factual  assessments reliable. Making a credibility  assessment based on a paper record alone is a  classic example. Bullock, 474 U.S. at 388 n.5,  106 S. Ct. at 698 n.5.


5
 Illinoisans will no doubt recall Cathleen Crowell  Webb, who stirred a nationwide controversy in  1985 when she recanted her charge that Gary  Dotson had kidnapped and raped her in 1977. Her  recantation led the Governor to commute Dotson's  sentence, although it did not initially persuade  the Illinois courts to vacate his conviction. See  People v. Dotson, 516 N.E.2d 718 (Ill. App.  1987). Notably, however, the trial judge in  Dotson at least heard Webb's recantation on the  witness stand before rejecting it as incredible.  See id. at 719. Years later, when DNA testing  ruled out Dotson as the source of biological  material found on Webb's undergarments, a new  trial was ordered and the State dropped the  charges against him. See Matt O'Connor, State  dismisses Dotson rape case, Chicago Tribune, Aug. 15,  1989, at 1.


