                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0208p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                       Petitioner-Appellant, -
 TIMOTHY R. ROSENCRANTZ,
                                                 -
                                                 -
                                                 -
                                                     No. 07-1403
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 BLAINE LAFLER,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
                No. 04-72407—Robert H. Cleland, District Judge.
                                Argued: October 21, 2008
                            Decided and Filed: June 9, 2009
            Before: BOGGS, Chief Judge; COLE and COOK, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Nancy L. McGunn, FEDERAL DEFENDER OFFICE, Detroit, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Nancy L. McGunn, FEDERAL
DEFENDER OFFICE, Detroit, Michigan, for Appellant. Debra M. Gagliardi, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
      COOK, J., delivered the opinion of the court, in which BOGGS, C. J., joined.
COLE, J. (pp. 20–28), delivered a separate dissenting opinion.
                                   _________________

                                        OPINION
                                   _________________

        COOK, Circuit Judge. A jury found Timothy Rosencrantz guilty of sexually
assaulting Elaine Lasky. He seeks habeas relief on the ground that the prosecution, by
countenancing false testimony from Lasky, violated his due process rights. As explained
here, we affirm the district court’s denial of Rosencrantz’s petition because, even assuming


                                             1
No. 07-1403         Rosencrantz v. Lafler                                              Page 2


the materiality of the testimony at issue, the prosecutorial misconduct qualifies as harmless
under Brecht v. Abrahamson, 507 U.S. 619 (1993).

                                              I.

                                A. State Court Proceedings

        The controversy in this case centers on Rosencrantz’s trial. The prosecution began
by calling Sergeant William Gooch, who testified that Lasky reported a sexual assault to the
police at 2:01 A.M. on August 17, 1995. Gooch stated that he met with Lasky by 2:06 A.M,
and she told him that around 1:45 A.M. a clean-shaven, shirtless, white male with a car tattoo
on his chest and driving a black pick-up truck assaulted her.

        Lasky testified next, giving her story that she spent the evening of August 16th at a
motel in Burton, Michigan with her friend Jack Pascoe. In contrast to Gooch’s testimony,
she told the jury that around 10:30 or 10:45 P.M., she left her room and walked to the
motel’s parking lot, where a black pick-up truck—driven by a man she identified at trial as
Rosencrantz—pulled alongside her. Lasky entered the truck intending to steal Rosencrantz’s
money, but instead Rosencrantz, armed with a knife, sexually assaulted her, inflicting cuts
to her arms, legs, and chest in the struggle. Lasky then begged him to take her back to the
motel—which he did, but not before Lasky noticed the image of a car tattooed on his chest.

        According to Lasky, Rosencrantz dropped her off at the motel thirty-five to sixty
minutes after she left. Back in her room, she initially hesitated to involve police because she
was on probation and, she said, the motel had no phone. But Lasky went on to say that she
changed her mind after an hour to an hour and fifteen minutes, during which time she
consumed two bottles of wine and took “one or two” Xanax pills, an anti-anxiety medication.
Another twenty minutes passed before she found a phone down the street and allowed
Pascoe to call the police on her behalf.

        Lasky also testified that when detectives showed her a photo line-up of six faces, she
“immediately” picked Rosencrantz’s face as her rapist. Her direct examination concluded
when the prosecutor asked Rosencrantz to bare his chest. Seeing a tattoo of a car, Lasky
confirmed that it matched that of her assailant.
No. 07-1403         Rosencrantz v. Lafler                                             Page 3


         On cross-examination, defense counsel opened by questioning Lasky about her
pretrial preparation:

         Q.     Did you have an opportunity to discuss your testimony with anybody prior
                to coming in here today?
         A.     No, Sir.
         Q.     You never talked to anybody?
         A.     No, sir.
         Q.     You didn’t go over—You weren’t over to the prosecutor’s office a few days
                ago, being brought in for any interviews? You weren’t around anything like
                that?
         A.     No, sir.
         Q.     You didn’t talk to anybody about it prior to coming in here today? You
                weren’t in any rooms up on the second floor talking to anybody about it?
         A.      No, sir, I was not.
The prosecutor remained silent during this colloquy and never reopened the topic during the
trial.

         Defense counsel continued cross-examining Lasky, questioning her about how her
account of when the assault occurred changed between her reporting to the police
(approximately 1:45 A.M.) and testifying at the preliminary hearing (approximately 1:30
A.M.), and the day of trial (approximately 10:30 P.M.). Likewise, the defense undermined
Lasky’s credibility by eliciting admissions that: she had a retail-fraud conviction; she lied
under oath during the preliminary investigation in claiming Rosencrantz forced her into the
truck at knife-point; and her story varied on whether her assailant had a beard or whether he
wore a shirt. Defense counsel also impeached Lasky by contrasting part of Lasky’s
preliminary-examination testimony, where she admitted drinking during the afternoon of the
assault, with her trial testimony, where she insisted she was sober at the time she met
Rosencrantz. And Lasky also conceded during cross-examination that she drank heavily
after the assault, and suffered from a history of alcohol problems.

         Aside from Gooch and Lasky, the state’s other witnesses included Jack Pascoe,
whose testimony supported much of Lasky’s account, and Ellen Rogers, a pool attendant in
No. 07-1403         Rosencrantz v. Lafler                                              Page 4


Flint Township, Michigan, who testified that about a month before the alleged assault, she
saw Rosencrantz with a car tattoo on his chest driving a dark pick-up.

        Rosencrantz’s defense aimed at establishing an alibi. His girlfriend claimed to be
with him in Fairview, Missouri—822 miles away from the assault—on both August 16 and
17.   Fairview restaurant owners, Linda and Gary Vanderlinden, also said they saw
Rosencrantz in mid-to-late morning on the 17th. And his Fairview landlord testified to
meeting with Rosencrantz about 2:00 P.M. on the 17th.

        The jury found Rosencrantz guilty of first-degree sexual assault and felonious
assault, and the court sentenced him to 22-1/2 to 50 years imprisonment. He succeeded in
his state court appeal to the extent that the Michigan Court of Appeals vacated the felonious
assault conviction. On the remaining conviction, Rosencrantz persisted in the Michigan
Supreme Court, eventually exhausting his state remedies.

                               B. District Court Proceedings

        Rosencrantz argued to the district court, and maintains on appeal, that the prosecutor
failed to disclose exculpatory evidence or knowingly presented false testimony on four
material points: (1) that the assault occurred shortly after 10:30 P.M., on August 16, 1995,
rather than shortly after 1:30 A.M. on August 17, 1995, (2) that Lasky felt certain in
identifying Rosencrantz as the attacker, (3) that she was sober at the time of the assault, and
(4) that Lasky met with the prosecution before trial.

        Rosencrantz asserts that he discovered that Lasky testified falsely through an
affidavit submitted by Jan Burgess, who stated that while working in the Genesee County
Sheriff’s Department from August 1993 through July 1996, interviewing detainees, she had
contact with Lasky in January 1995 and May 1996 (Rosencrantz’s trial took place in June
1996). With regard to her May 1996 encounters with Lasky, Burgess’s affidavit states in
pertinent part:

        May 1996: Re-interviewed Lasky and re-enrolled her. She said she was
        back in jail as a witness. She said she told the police she had been raped.
        She said she gave a description of the man but that she had no idea what he
        really looked like or the details of what happened because she had been
        “cracked up.”
No. 07-1403         Rosencrantz v. Lafler                                              Page 5


        May 1996: While working with Lasky in the 3rd floor activity room at
        approximately noon, a group of 5 or 6 men arrived on the floor. The activity
        deputy brought the men into the room and told me they were there to meet
        with Lasky and that I would have to leave. After leaving, I asked the deputy
        what was going on and who these men were. He pointed out [prosecutor]
        Garner Train and someone else from the prosecutor’s office. He said the
        others were detectives. This group surrounded Lasky and was often quite
        loud, although with the room closed, the deputy and I couldn’t understand
        what was being said. I left and returned twice more than afternoon to
        continue working with Lasky. Each time I returned, this group was still with
        Lasky (for a total time of at least 3-4 hours).
        The next day, I called Lasky out to continue working with her. She was very
        agitated and afraid. She said she had to do what the men wanted or she felt
        her husband would kill her. (Note: at some time during Elaine Lasky’s
        incarceration, I tested and interviewed John Lasky [Elaine’s Husband], who
        was serving a one-year sentence. He told me he would not be in jail that
        long because his “old lady” was working with the cops and would get him
        out.) . . . She said she worked with the police because her husband “made
        her” and she was so afraid of him she did whatever he told her to do.
Burgess Affidavit, at 2.

        The district court conducted an evidentiary hearing to develop the factual record on
Rosencrantz’s claim that the prosecutor knowingly presented false testimony or allowed such
testimony to stand uncorrected. Burgess and Lasky both testified at the hearing.

        Lasky testified, in pertinent part, that:

        •       she did not use drugs the day of the assault, but had been drinking;
        •       she was intoxicated at the time she entered the truck;
        •       on the day she selected Rosencrantz’s photo from a photo
                lineup, she was “probably still half drunk” from a night of
                drinking;
        •       she was not certain that Rosencrantz was the person who
                assaulted her;
        •       she met with the prosecutor Garner Train and several police
                officers approximately three times prior to trial;
        •       she did not recall whether she informed the police or
                prosecutor that she was intoxicated at the time of the assault;
        •       she informed police that she was not certain Rosencrantz
                was the person who assaulted her;
No. 07-1403           Rosencrantz v. Lafler                                               Page 6


        •         she had no conversations with the prosecutors or
                  investigators regarding any other cases besides the one in
                  which she was the complainant against Rosencrantz.
Tr., Evid. Hearing, 11/7/2006, pp. 4–15.

         Burgess testified consistent with her affidavit about the meeting she observed and
her impressions from Lasky. Noting that both Burgess and Lasky testified that Lasky met
with the prosecution team prior to trial, the district court found “their testimony in this regard
to be credible,” and in the absence of evidence to rebut, the court concluded that the
prosecution allowed false testimony to stand uncorrected when Lasky denied any pretrial
meetings.

        As for the other three instances, the district court found that the prosecutor did not
present false testimony on those—either because the testimony failed to qualify as
indisputably false, or because, if Lasky did testify falsely, the prosecutor did not know it.

        This left the court with the finding that the prosecution potentially violated
Rosencrantz’s due process rights by knowingly countenancing Lasky’s false denial of
pretrial meetings. The court examined whether that false testimony was material, and
determined that it was not. Then the court went on to decide that even if material, the false
testimony meant little when viewed in the context of all the other evidence presented to the
jury and therefore could be excused as harmless. In deciding to apply harmless-error review,
the district court looked for guidance to our decision in Carter v. Mitchell, 443 F.3d 517, 537
(6th Cir. 2006) (applying harmless error to a knowing-presentation-of-false-testimony case),
and the First Circuit’s decision in Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir. 1995)
(same). Carter, however, summarily cited harmless error as an alternative basis for denying
a false-testimony claim, and this circuit has yet to explicitly hold that a
knowing-presentation-of-false-testimony due process violation should be reviewed for
harmless error.

        The district court denied Rosencrantz habeas relief but granted a certificate of
appealability on the question whether Lasky’s false denial of the pretrial meeting with the
prosecution counted as material. This court expanded the certificate of appealability to
No. 07-1403         Rosencrantz v. Lafler                                              Page 7


include the other alleged due process violations discussed below. Rosencrantz timely
appealed.

                                             II.

        A conviction obtained by the knowing use of perjured testimony must be set aside
if “the false testimony could . . . in any reasonable likelihood have affected the judgment of
the jury . . . .” Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotation marks
omitted); see also United States v. Agurs, 427 U.S. 97, 103 (1976). Rosencrantz relies on
Giglio’s rule that a prosecutor may not deliberately deceive “a court and jurors by
[presenting] known false evidence,” 405 U.S. at 153, and on the command in Brady v.
Maryland, 373 U.S. 83 (1963), that a prosecutor must disclose evidence favorable to the
accused. By relying on both Brady and Giglio, Rosencrantz implicitly asserts a specific type
of Brady violation: one where the prosecutor failed to correct false testimony that he knew,
or should have known, to be false (a “knowing-presentation-of-false-testimony claim”).

        The difference between Brady/Giglio false-testimony claims and traditional Brady
withholding claims drives the analysis here. See Agurs, 427 U.S. at 104. To prove that the
prosecutor’s failure to correct false testimony violated due process rights, a petitioner must
demonstrate that: (1) the statement was actually false; (2) the statement was material; and (3)
the prosecution knew it was false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998);
Abdus-Samad v. Bell, 420 F.3d 614, 625–26 (6th Cir. 2005); Carter v. Bell, 218 F.3d 581,
601 (6th Cir. 2000) (placing the burden on the habeas petitioner). But in these Brady/Giglio
claims, the materiality assessment is less stringent than that for more general Brady
withholding of evidence claims. We weigh the materiality of Brady withholding claims by
asking whether “there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S.
419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). By contrast,
for Brady/Giglio claims, we ask only “if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 104 (citing
Giglio, 405 U.S. at 154); see also Carter, 443 F.3d at 535. The distinction matters here,
No. 07-1403            Rosencrantz v. Lafler                                                       Page 8


                                                                                                          1
because while a traditional Brady materiality analysis obviates a later harmless-error review
under Brecht v. Abrahamson,2 courts may excuse Brady/Giglio violations involving
known and materially false statements as harmless error. See Carter, 443 F.3d at 537;
Gilday, 59 F.3d at 268.

         In reaching the merits of the case, we note that the deferential standard supplied
by AEDPA does not apply here because no state court addressed the merits of
Rosencrantz’s knowing-presentation-of-false-testimony claims.3 Williams v. Haviland,
467 F.3d 527, 530 (6th Cir. 2006). We thus apply de novo review to the four instances
of alleged false testimony—(1) that the assault occurred shortly after 10:30 P.M., on
August 16, 1995, rather than shortly after 1:30 A.M. on August 17, 1995, (2) that Lasky
felt certain in picking Rosencrantz as the assailant, (3) that she was sober at the time of
the assault, and (4) that Lasky had not met with the prosecution before trial.

         As for the first three instances of alleged false testimony, we dispose of the them
quickly. They fail under the Coe test, either because Rosencrantz fails to demonstrate
that Lasky testified in an indisputably false manner, or because he fails to establish that
the prosecution knew the statements were false, or both. Although the final instance of
false testimony—Lasky’s statements concerning her pretrial interaction with the
prosecution—requires closer treatment, we conclude that even if Rosencrantz satisfies
the Coe test, harmless-error review excuses the violation.


         1
           The materiality standard in traditional Brady claims supplants harmless-error review because
practically speaking, the two analyses are the same. See Kyles, 514 U.S. at 435, 436 (“[O]nce there has
been Bagley error . . . it cannot subsequently be found harmless under Brecht” because “‘a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different’ necessarily entails the conclusion that the suppression must have had ‘a substantial and
injurious effect or influence in determining the jury’s verdict.’”) (internal citations omitted).
         2
          We do not apply the harmless-error standard supplied by Chapman v. California, 386 U.S. 18
(1967), because—as Justice Blackmun tells us in a portion of his Bagley opinion not joined by the
majority—the Chapman harmless error standard “is equivalent to” the materiality standard already
applicable to Brady/Giglio claims. 473 U.S. at 679 n.9 (1985); see also Ventura v. Attorney General, 419
F.3d 1269, 1279 n.4 (11th Cir. 2005).
         3
          An issue exists as to whether AEDPA deference applies to Rosencrantz’s time-line claim
because the Michigan Court of Appeals addressed that point, but it did not have the benefit of Lasky’s later
testimony at the evidentiary hearing. The parties ignore this issue, and we need not decide because
Rosencrantz’s claim fails even under de novo review. Smith v. Jones, No. 07-2275, 2009 WL 973349, at
*5 (6th Cir. April 10, 2009) (citing Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004)).
No. 07-1403            Rosencrantz v. Lafler                                                       Page 9


                                       A. Lasky’s Time Line

         According to Gooch, Lasky told him that the assault occurred at 1:45 A.M. on
August 17. Lasky testified similarly at the preliminary examination, saying that the
assault occurred at 1:30 A.M. But at trial she placed the assault closer to 10:45 P.M. the
previous night. Rosencrantz speculates that the prosecutor coaxed this change to weaken
his alibi defense. At the habeas evidentiary hearing, however, Rosencrantz failed to
question Lasky about the substance of her pretrial discussion with the prosecutor, and
the district court correctly declined to make any inferences favoring Rosencrantz on that
subject.4 The district court then reasoned that Rosencrantz failed to prove “the time-line
testimony provided at trial was false.” We agree. While Lasky vacillated in her
reporting of the time, that does not establish “indisputably false” testimony at trial in the
presence of prosecutors. Coe, 161 F.3d at 343 (“mere inconsistencies” do not show
indisputable falsity).5


         4
          Aside from Burgess’s affidavit, all that we know about the pretrial discussions between Lasky
and the prosecution comes from these questions, asked by counsel for the state at the evidentiary hearing:
         Ms. Gagliardi: You indicated in your . . . responses to the questioning that you were
         incarcerated prior to the preliminary hearing?
         Elaine Lasky: Yes, ma’am.
         Ms. Gagliardi: At Genesee County Jail. Could you tell the Court why you were
         incarcerated at that time?
         Elaine Lasky: I was charged with a shoplifting charge in Mount Pleasant and was
         under their jurisdiction . . . .
         Ms. Gagliardi: Did the police officers or the prosecutors ever discuss with you the
         shoplifting charge that you were incarcerated for at that time? Did you ever meet with
         them on those charges?
         Elaine Lasky: No. Because I was already sentenced on that. I was sentenced to one
         year at the county, the Mount Pleasant Jail. And Genesee County just held me in their
         jail.
         Ms. Gagliardi: Were there any discussions with the prosecutors or the investigators
         regarding any other case beside the one where you were the complainant against Mr.
         Rosencrantz?
         Elaine Lasky: No.
         5
           Rosencrantz’s argument suggests that Lasky’s testimony at the evidentiary hearing represents
the truth because it occurred on a later date than her trial and preliminary-examination testimony. But our
review reveals reason to doubt the credibility of Lasky’s evidentiary-hearing testimony because that
testimony—made a decade after Rosencrantz’s trial—evinces signs of a failing memory. For example,
the trial transcript shows Lasky insisting that she was sober at the time of the assault. But at the
evidentiary hearing, Lasky could not recall having testified in that way. Also during the evidentiary
hearing, Lasky had trouble distinguishing between the preliminary examination and the trial. Lasky voiced
her confusion, saying: “when you’re saying preliminary, I’m trying to get it in my head which one was
the preliminary hearing, which one was which. I can’t say positively.” (Admittedly, later in the
evidentiary hearing, Lasky seemed to appreciate the timing of these hearings.) Finally, even at the
evidentiary hearing, Lasky still could not “pin down” the assault’s exact time. Rosencrantz misapprehends
not only our indisputably-false requirement, but also the nature of our appellate review. The responsibility
No. 07-1403            Rosencrantz v. Lafler                                                       Page 10


         Moreover, cross-examination on Lasky’s time line highlighted the
inconsistencies between her trial testimony, her statements to Officer Gooch at the time
of the assault, and her testimony at the preliminary hearing. The defense focused the
jury on these inconsistencies, and it was up to the jury—not a federal court conducting
collateral review—to sort this out. See Hayes v. Brown, 399 F.3d 972, 992 (9th Cir.
2005) (en banc) (Tallman, J. dissenting) (“An appellate judge’s place is not in the jury
box, post hoc.”); United States v. Bortnovsky, 879 F.2d 30, 33 (2d Cir. 1989)
(“Presentation of a witness who recants or contradicts his prior testimony is not to be
confused with . . . perjury. It was for the jury to decide whether or not to credit the
witness.”). And wherever the truth lies—we still do not know because even at the
evidentiary hearing Lasky said she could not “pin down the exact time of day that [she
was] assaulted”—nothing about the time-line issue was unknown to the defense at the
time of trial. Though Rosencrantz hypothesizes that the prosecution procured this time
change in Lasky’s testimony during the pretrial meeting, Rosencrantz’s inferences do
not carry the burden of proving indisputable falsity.

              B. Lasky’s Certainty in Identifying Rosecrantz as the Assailant

         The indisputably-false requirement dooms another of Rosencrantz’s claims—that
the prosecution allowed Lasky to identify Rosecrantz with a level of certainty that she
did not actually possess. According to Rosencrantz, the prosecution knew Lasky
harbored doubt about whether he assaulted her. As support, Rosencrantz relies on
Lasky’s testimony at the evidentiary hearing, where she testified that at the time of the
photo line-up she “was hung over, and still, and shaking and probably still half drunk”
and that she told police she was “in no condition” to make an identification. Lasky also
claimed at the evidentiary hearing that she was never certain in her identification of
Rosencrantz and that she said as much to the police. But at trial, Lasky said that she
“immediately” picked Rosencrantz’s face from the photo line-up. Lasky also confirmed
that the tattoo on Rosencrantz’s chest matched her assailant’s tattoo. And when the



for factual accuracy primarily rests with trial judges and juries, and state appellate courts. See Kyles, 514
U.S. at 458 (Scalia, J. dissenting).
No. 07-1403         Rosencrantz v. Lafler                                            Page 11


prosecutor pressed Lasky with “[t]here’s no doubt in your mind that [Rosencrantz] is the
man that [assaulted] you?,” she answered “yes.” As the district court observed, this
situation fails to establish that the prosecutor presented false testimony because “[o]nce
the prosecutor elicited testimony from Lasky identifying [Rosencrantz] as her assailant,
it fell to defense counsel to explore the certainty of her identification,” which defense
counsel did on cross examination. Indisputable falsehood is not established by a simple
swearing contest. The district court was not convinced that Lasky’s testimony at the
evidentiary hearing established indisputably her earlier falsehood, let alone the
prosecutor’s knowledge of it, and the court did not commit clear error in so deciding.

        Without a showing of the testimony’s falsity and that the prosecutor knew it to
be false—by Lasky saying that she told the prosecution of her doubt                    at the
time—Rosencrantz fails to show a due process violation in presenting the identification
testimony. Though the evidentiary hearing suggested that Lasky either was not as
certain at trial as she let on, or that she came to second guess her identification, that does
not establish her trial testimony as indisputably false, particularly when Lasky
consistently identified her assailant as having a car tattoo on his chest and Rosencrantz
bears just such a tattoo.

                                   C. Lasky’s Sobriety

        Finally, Rosencrantz complains that the prosecutor allowed Lasky to falsely
testify that she was sober at the time of the assault. To show that this testimony qualifies
as indisputably false, Rosencrantz points to Pascoe’s post-trial affidavit where he claims
that, before the trial, he tipped prosecutors to Lasky’s pre-assault insobriety.
Rosencrantz also stresses that at the evidentiary hearing, Lasky herself said she was
drunk at the time of the assault. Nevertheless, both Lasky and Pascoe stated at trial that
she was not under the influence of alcohol at the time of the assault. These contradictory
accounts amount only to “mere inconsistencies,” and therefore Rosencrantz’s claim fails
to satisfy the indisputably-false requirement. See Coe, 161 F.3d at 343. Nor does
Rosencrantz show that, if Lasky did lie, the prosecution knew it. At the evidentiary
hearing, defense counsel asked Lasky whether she told “the police and/or the prosecutor
No. 07-1403        Rosencrantz v. Lafler                                          Page 12


in the case that you were drunk, intoxicated, at the time of the assault?” Lasky
responded: “I’m not positive of that.”

       By failing to satisfy the Coe test, Rosencrantz does not state a due process
violation for any of the first three instances of allegedly false testimony.

                   D. Lasky’s Pretrial Meeting with the Prosecution

       We approach this fourth alleged instance of false testimony differently: the
district court found that the prosecutor did indeed knowingly allow Lasky’s false denial
of the pretrial meeting and we see no clear error in that factual finding. It then assessed
whether the prosecutor’s countenancing Lasky’s lying about the fact of a meeting was
constitutionally material, and decided to excuse the lie as immaterial because its
impeachment value would have been cumulative and because it would not have
undermined Lasky’s consistent testimony that her assailant, like Rosencrantz, had the
image of a car tattooed on his chest. We review the district court’s materiality analysis
de novo as a legal conclusion. See Carter, 443 F.3d 517 at 535.

                                     1. Materiality

       In Brady/Giglio cases, false testimony qualifies as material “if there is any
reasonable likelihood that the false testimony could have affected the judgment of the
jury.’” Agurs, 427 U.S. at 104 (citing Giglio, 405 U.S. at 154). In other words, we will
only excuse the perjury as immaterial if we can “say that no reasonable jury could have
been affected by the undisclosed information.” Gilday, 59 F.3d at 269. The First
Circuit, in contrasting Brady/Giglio (false testimony) materiality with Brady/Bagley
(withholding) materiality, observed that the Brady/Giglio standard is “lower,” “more
favorable to the defendant,” and “hostile to the prosecution.” Id. at 267-68; see also
Ventura, 419 F.3d at 1284 (Brady/Bagley materiality standard “is appreciably more
stringent than” the Brady/Giglio standard). And under Giglio’s friendly-to-the-accused
standard, “in most cases involving perjury or its equivalent [the result will likely be] a
finding of constitutional error.” Gilday, 59 F.3d at 268.
No. 07-1403         Rosencrantz v. Lafler                                          Page 13


        Applying this standard here, we first stress that our review turns on the
uncorrected false evidence that no meeting took place—not the other three claimed
falsehoods, and not on the four claimed falsehoods viewed cumulatively. Although
Rosencrantz wants us to infer from the evidentiary-hearing testimony that the meeting
itself precipitated the other instances of allegedly false testimony we lack a valid premise
for such an inference. First, the evidentiary-hearing testimony failed to convince the
district court (and fails to convince us) of the indisputable falsity of the other three
claimed instances. Second, we cannot fill the evidentiary gap here by speculating that
the prosecution used the pretrial meetings to coach or coerce Lasky to testify
falsely—defense counsel failed to pursue this topic at the evidentiary hearing, and thus
no evidence exists on the substance of the meeting. Rosencrantz’s theory relies on
Burgess’s impressions of the tenor of the meetings as intimidating (though she could not
hear the conversations) and her claimed conversations with Lasky. But the district court
did not find any of that Burgess evidence to be credible. What we do have from the
district court regarding the evidentiary hearing is its finding that Lasky’s and Burgess’s
testimony (that Lasky met with the prosecution team prior to trial) was credible “in this
regard.” Focusing, then, only on Lasky’s denial of the pretrial meeting, we analyze
whether any reasonable jury could have been affected by knowing about that false
testimony.

        Given the implausibility of the untruthful answer Lasky gave—jurors would
expect the prosecuting witness to meet with the prosecution before trial—we might
assess the impact as minimal. But turning to the impact on the jury had the prosecutor
corrected Lasky, or the defense counsel confronted Lasky with her false denial, it is
reasonable to infer that exposing Lasky as untruthful—thereby tipping the jury to
another of Lasky’s inconsistencies and her willingness to lie under oath—would have
affected the jury’s view of Lasky’s credibility. The State argues that, viewed in the
context of the whole trial and with the advantage of hindsight, the likely impact of
suppressing the fact of the meeting would be minor because it would have been
cumulative of her many inconsistencies. Brown v. Smith, 551 F.3d 424, 433–34 (6th Cir.
2008) (“Evidence is cumulative when it supports a fact already established by existing
No. 07-1403          Rosencrantz v. Lafler                                        Page 14


evidence; adds very little to the probative force of the other evidence in the case; is
merely a repetition of previous testimony; or—in the case of undisclosed impeachment
evidence—when the witness has already been sufficiently impeached at trial.”) (internal
citations omitted); Mastracchio v. Vose, 274 F.3d 590, 604 (1st Cir. 2001) (concluding
that, because perjury came from an already “sullied witness,” it “was unlikely to have
tipped the balance and changed the minds of those who credited his testimony”). That
argument may succeed in many cases. But here, we will assume that Lasky’s lie about
the pretrial meeting is material because, as argued by Rosencrantz, Lasky served as the
prosecution’s star witness, essentially providing the only evidence against Rosencrantz
(though the pool attendant added to the identification evidence). Compare Shih Wei Su
v. Filion, 335 F.3d 119, 129 (2d Cir. 2003) (viewing false testimony as material where
lying witness was “prosecution’s chief witness” and the “conviction depended
significantly on [lying witness’s] testimony”), with Foley v. Parker, 488 F.3d 377, 392
(6th Cir. 2007) (denying habeas relief where, among other reasons, perjured testimony
was immaterial because lying witness “was not a crucial link in the case against [the
Defendant].”); see also Napue v. Illinois, 360 U.S. 264, 269 (1959) (“The jury’s estimate
of the truthfulness and reliability of a given witness may well be determinative of guilt
or innocence . . . .”).

                                    2. Harmless Error

         Having assumed materiality and therefore assumed a constitutional error, we
now consider the harmlessness of that error. For the reasons given, we find the error
harmless because the uncorrected testimony would likely fail to “substantially influence”
the jury’s verdict given Lasky’s uncontradicted testimony about the assailant’s tattoo and
given the many ways that defense counsel impeached Lasky. Brecht, 507 U.S. at 637.

        Our decision to review for harmlessness recognizes “that most constitutional
errors can be harmless,” Arizona v. Fulminante, 499 U.S. 279, 306 (1991), and follows
the First Circuit’s Gilday analysis in holding that courts should review Brady/Giglio
claims for harmless error but not Brady/Bagley habeas claims, given the different
No. 07-1403          Rosencrantz v. Lafler                                          Page 15


materiality standards for establishing the two types of constitutional breaches. Gilday,
59 F.3d at 267–68.

        Moreover, the error here is a trial error, not a structural one. Certainly, the
prosecutor’s behavior in this case constitutes misconduct that we condemn. But
“[d]espite the fundamental nature of the injury to the justice system caused by the
knowing use of perjured testimony by the state, the Supreme Court has not deemed
[Brady/Giglio] errors to be ‘structural’ in the sense that they ‘affect[] the framework
within which the trial proceeds.’” Shih Wei Su, 335 F.3d at 126 (citing United States v.
Feliciano, 223 F.3d 102, 111 (2d Cir. 2000) (quoting Fulminante, 499 U.S. at 307–10)
(brackets in original)). True enough, harmless-error review under Brecht did not
“foreclose the possibility that in an unusual case, a deliberate and especially egregious
error of the trial type, or one that is combined with a pattern of prosecutorial misconduct,
might so infect the integrity of the proceeding as to warrant the grant of habeas relief,
even if it did not substantially influence the jury’s verdict,” 507 U.S. at 638 n.9, but we
do not view this case as the unusual, especially egregious instance of prosecutorial
misconduct, or one that reveals any “pattern of prosecutorial misconduct.”

        Governing Supreme Court case law finds “structural errors only in a very limited
class of cases,” including: total deprivation of the right to counsel; judicial bias; the
unlawful exclusion of grand jurors of defendant’s race; denial of the right to self-
representation at trial; the denial of the right to a public trial; and erroneous reasonable-
doubt instruction to jury. Johnson v. United States, 520 U.S. 461, 468–69 (1997)
(collecting cases). The error in this case, in contrast, is a trial error—it “occurred during
the presentation of the case to the jury, and [is one] which may . . . be quantitatively
assessed in the context of other evidence presented in order to determine whether its
admission was harmless . . . .” Fulminante, 499 U.S. at 307–08; see also Hayes, 399
F.3d at 984 (commenting that knowing-presentation-of-false-testimony error is not
structural). Although the dissent makes a valid point in arguing that a literal reading of
Giglio’s rule suggests that countenancing false testimony implicates structural concerns,
the Supreme Court has yet to explicitly hold Brady/Giglio errors as structural. The
No. 07-1403        Rosencrantz v. Lafler                                          Page 16


dissent relies on a footnote in Kyles, but read in its entirety the footnote confirms that
Kyles does not settle Brecht’s impact on Brady/Giglio error. 514 U.S. at 433 n.7 (“[W]e
do not consider the question whether Kyles’s conviction was obtained by the knowing
use of perjured testimony and our decision today does not address any claim under the
first Agurs category.”).

       Reviewing for harmless error under Brecht—instead of reviewing only for
materiality and instead of reviewing under Chapman’s harmless-beyond-a-reasonable-
doubt standard—is especially appropriate on collateral review, and doing so here honors
Brecht’s weighty concerns:

       Overturning final and presumptively correct convictions on collateral
       review because the State cannot prove that an error is harmless under
       Chapman undermines the States’ interest in finality and infringes upon
       their sovereignty over criminal matters. Moreover, granting habeas relief
       merely because there is a ‘reasonable possibility’ that trial error
       contributed to the verdict, see Chapman v. California, 386 U.S. at 24, is
       at odds with the historic meaning of habeas corpus-to afford relief to
       those whom society has ‘grievously wronged.’ Retrying defendants
       whose convictions are set aside also imposes significant ‘social costs,’
       including the expenditure of additional time and resources for all the
       parties involved, the ‘erosion of memory’ and ‘dispersion of witnesses’
       that accompany the passage of time and make obtaining convictions on
       retrial more difficult, and the frustration of ‘society's interest in the
       prompt administration of justice.’
507 U.S. at 637 (internal citations and quotation marks omitted). Testing Rosencrantz’s
claim only for Brady/Giglio materiality would be tantamount to applying only
Chapman’s harmless error (the standards are equivalent) and would therefore brush aside
Brecht’s policy concerns.

       Our dissenting colleague argues that harmless-error review is inappropriate here.
Yet at oral argument, counsel for Rosencrantz, in ably arguing for reversal and in
responding to Chief Judge Boggs’s question, agreed that this court should review for
harmless error under Brecht.        Rosencrantz’s brief likewise concedes the point.
Appellant’s Br. at 29 (“[I]f the court finds the testimony material, it must then determine
whether the error was harmless”). The Ninth Circuit adopted the opposite view in Hayes
No. 07-1403        Rosencrantz v. Lafler                                          Page 17


v. Brown, but we think it erred in failing to distinguish false-testimony claims from
Brady withholding claims. See Hayes, 399 F.3d at 984–85.

       Under Brecht, a knowing-presentation error harms the accused when the error
had a “substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 637. The state bears responsibility for showing that the error had no
effect on the verdict. Gilday, 59 F.3d at 268 n.11 (citing O’Neal v. McAninch, 513 U.S.
432, 436 (1995)). If “the matter is so evenly balanced that [the judge] feels himself in
virtual equipoise as to the harmlessness of the error,” then courts may not excuse the
error as harmless. O’Neal, 513 U.S. at 435.

       The district court explained:

       The substance of the case against [Rosencrantz] would not have changed
       had Lasky’s false testimony been corrected. Ascribing a motive to
       Lasky’s change in testimony or showing that this portion of her
       testimony was untruthful would not have made a measurable difference
       in the defense’s ability to challenge her credibility. Lasky’s testimony
       that her assailant had a car tattoo on his chest remained constant from her
       initial statement to Officer Gooch through her trial testimony. In light of
       the cumulative nature of the impeachment evidence and the car tattoo
       testimony, the court is not in grave doubt about whether the false
       testimony had substantial and injurious effect or influence in determining
       the jury’s verdict. Therefore, the court finds any error harmless.
Other comments from the district court bolster this conclusion:

       [T]he jury had a compelling piece of incriminating evidence to consider:
       before there had arisen any time-line disputes or discrepancies about
       talking to the assistant prosecutor before trial, Lasky told the responding
       police officer that the perpetrator, whoever he was, possessed something
       immutable, unusual and memorable: the tattoo of a car on his chest. The
       parties do not dispute that, as of the summer of 1995, [Rosencrantz] bore
       just such a tattoo on his chest.
       We agree with the district court and harbor no “grave doubt” that Lasky’s denial
of the pretrial meeting had a “substantial and injurious effect or influence in determining
the jury’s verdict.’” Id. at 436 (quoting Brecht, 507 U.S. at 637). Instead, even if the
prosecutor had contradicted Lasky’s denial of the meeting, or defense counsel confronted
Lasky with her lie, that would not have substantially influenced the jury’s deliberation
No. 07-1403            Rosencrantz v. Lafler                                                     Page 18


given the following: (1) the independent and compelling evidence that Lasky identified
her assailant as having the tattoo on his chest—an identification she consistently made
from the time she reported the assault to the police; (2) the absence of any evidence
suggesting that Lasky could have been persuaded or coerced into offering the tattoo
testimony; (3) the absence of evidence that the police knew Rosencrantz had a tattoo
before putting his photo in the line up; (4) the many ways that defense counsel
impeached Lasky and impugned her character; (5) the modest value to have been
reasonably gained from the jury learning that Lasky lied about meeting with the
prosecutor; (6) the absence of evidence of coaching and coercing despite the opportunity
to explore the interaction between Lasky and the prosecution at the evidentiary hearing;
and (7) a Michigan jury found Rosencrantz guilty after a trial where Lasky’s credibility
and character had been thoroughly impugned by the defense, even without knowing she
lied about the meeting.6

         Our decision to excuse the error here as harmless simply analyzes the effect on
the verdict of the prosecutorial lapse—it in no way countenances it. The “deliberate
deception of a court and jurors by the presentation of known false evidence is
incompatible with rudimentary demands of justice. . . . [T]he same result obtains when
the State, although not soliciting false evidence, allows it to go uncorrected when it
appears.” Giglio, 405 U.S. at 153 (internal citations and quotation marks omitted);
Agurs, 427 U.S. at 104 (condoned perjury “involve[s] a corruption of the truth-seeking
function of the trial process”); Jones v. Kentucky, 97 F.2d 335, 338 (6th Cir. 1938)
(“[F]undamental conceptions of justice which lie at the base of our civil and political
institutions must . . . condemn as a travesty a conviction upon perjured testimony if later,
but fortunately not too late, its falseness is discovered . . . .”). Prosecutorial culpability
cannot, however, outweigh Brecht’s policy concerns. See Smith v. Phillips, 455 U.S.


         6
           And as stated above in our materiality discussion, Rosencrantz also urges this court to consider
how defense counsel might have used the admission of a pretrial meeting to further impeach Lasky on her
changed time line. But at the evidentiary hearing, Rosencrantz’s counsel did not question Lasky about
what the prosecutor said to her during the pretrial meeting. Rosencrantz’s counsel instead relied solely
on what Burgess observed from outside the room. And that evidence failed to impress the district court;
it credited Burgess only with establishing that a meeting took place. Our harmless-error review cannot
include credibility findings beyond those of the district court. See Hayes, 399 F.3d at 992 (en banc)
(Tallman, J. dissenting) (“An appellate judge’s place is not in the jury box, post hoc.”).
No. 07-1403        Rosencrantz v. Lafler                                       Page 19


209, 219 n.10 (1982) (in analyzing materiality, noting that the prosecutorial
“misconduct’s effect on the trial, not the blameworthiness of the prosecutor, is the
crucial inquiry for due process purposes.”). Rosencrantz’s case, although it presents a
close call, falls short. We excuse the error here as harmless.

                                           III.

       Viewing Rosencrantz’s claim through the habeas lens, we are convinced that any
constitutional error fails the Brecht standard. We affirm the judgment of the district
court dismissing Rosencrantz’s habeas petition.
No. 07-1403           Rosencrantz v. Lafler                                                   Page 20


                                       _________________

                                           DISSENT
                                       _________________

        COLE, Circuit Judge, dissenting. Timothy Rosencrantz was convicted of sexual
assault and sentenced to twenty-two-and-one-half to fifty years in prison based on the
testimony of the victim who materially perjured herself at trial regarding her
collaboration with the prosecution, her sobriety at the time of the attack, and her
certainty as to the identity of the assailant. The prosecution knew the victim’s testimony
was false at the time it was given, but did nothing to correct it. The prosecution’s
inaction violated Rosencrantz’s due process rights under the Fourteenth Amendment,
and Rosencrantz is entitled to postconviction relief under Brady v. Maryland, 373 U.S.
83, 86-87 (1963). The majority, however, refuses to grant Rosencrantz such relief, and
alters the straightforward rule of Brady/Giglio by holding that the prosecutorial
misconduct constituted “harmless error” under Brecht v. Abrahamson, 507 U.S. 619,
629-30 (1993). See Brady, 373 U.S. at 86-87; Giglio v. United States, 405 U.S. 150,
153-154 (1972). The majority’s position misconstrues both Brady and Brecht and fails
to appreciate that a Brady violation necessarily brings into question the substantive
fairness of the trial, and, therefore, material Brady violations are never “harmless” under
Brecht. Moreover, even if Brecht’s harmless-error analysis applied, the prosecution’s
inaction was not harmless in this case. In short, because the majority lacks any sound
reason for denying postconviction relief, I respectfully dissent.

                                                  I.

        Brady is rooted in a line of cases requiring postconviction relief for “material”
prosecutorial misconduct. See Brady, 373 U.S. at 86-87; Giglio, 405 U.S. at 153-154.1
These cases demonstrate that certain prosecutorial misconduct can so undermine
confidence in a verdict and impact the fairness of trial that a new trial is required.



         1
          In chronological order, this line of cases includes: Mooney v. Holohan, 294 U.S. 103 (1935);
Pyle v. Kansas, 317 U.S. 213 (1942); Napue v. Illinois, 360 U.S. 264 (1959); Brady v. Maryland, 373 U.S.
83, 86-87 (1963); Giglio v. United States, 405 U.S. 150 (1972); Kyles v Whitely, 514 U.S. 419 (1995).
No. 07-1403         Rosencrantz v. Lafler                                           Page 21


Giglio, for example, plainly states: “A new trial is required if ‘the false testimony could
. . . in any reasonable likelihood have affected the judgment of the jury.’” 405 U.S. at
154 (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959)); see also Kyles v. Whitley, 514
U.S. 419, 433 (1995). This Court has recognized that same rule, stating that a new trial
follows automatically from the “knowing use of perjured testimony” given “any
reasonable likelihood that the false testimony could have affected the judgment of the
jury.” Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000) (citations omitted). The
majority all but ignores this line of precedent and its per se requirement for habeas relief
in cases of “material” prosecutorial misconduct.

        In so doing, the majority treats Brady and its associated line of cases as providing
merely a threshold test for Brecht’s harmless-error analysis. (Majority Opinion (“Maj.
Op.”) at 7–8.); Brecht, 507 U.S. at 629-30. But the majority’s application of Brecht is
misplaced. Brecht sets forth a two-prong inquiry for the grant of habeas relief for trial
errors: first, the habeas petitioner must establish the existence of a constitutional “trial
error,” and second, the court must ascertain that the error was not harmless. Id. The
majority reads Brady as simply identifying the existence of a particular constitutional
“trial error”; that is, the majority reads Brady as being relevant only to the first prong of
Brecht. (Maj. Op. at 7–8.) But this interpretation effectively breaks the link between the
existence of a Brady/Giglio violation and the grant of postconviction relief. The whole
purpose of the Giglio-materiality test is to identify those due process harms requiring
post-conviction relief. 405 U.S. at 153-54. If Giglio is still good law today, then the
idea that a petitioner’s claims could satisfy the Giglio-materiality test—as the majority
concedes Rosencrantz has done—but not be entitled to a new trial is insupportable.
(Maj. Op. at 15–19.); see Giglio, 405 U.S. at 153-54.

        The majority’s error may lie in its failure to appreciate that Brecht’s use of “trial
error” as a term of art. Not every trial defect constitutes a Brecht “trial error,” and
certain defects necessarily remain wholly outside Brecht’s purview. For example, “trial
error” as used by Brecht excludes “structural” trial defects, and harmless-error analysis
does not apply to such defects. 507 U.S. at 629-30. “Structural” defects are defects that,
No. 07-1403        Rosencrantz v. Lafler                                          Page 22


by their very nature, undermine confidence in the jury’s verdict or otherwise call the
substantive fairness of the entire trial into question. Kyles v. Whitely provides indirect
support for this view. 514 U.S. at 453. In Kyles, the Supreme Court applied the Bagley-
materiality standard to the non-disclosure of exculpatory evidence at trial, stressing that
satisfaction of Bagley’s standard necessarily implied satisfaction of Brecht, thereby
rendering moot a Brecht analysis. Id. at 436; United States v. Bagley, 473 U.S. 667, 682
(1985). Thus, although Bagley does not itself apply in the present case, the Court’s
discussion of Bagley in Kyles sheds light on the sort of case in which Brecht’s analysis
is not required. The Kyles Court stated:

       [T]he question is not whether the State would have had a case to go to the
       jury if it had disclosed the favorable evidence, but whether we can be
       confident that the jury’s verdict would have been the same.
514 U.S. at 453. The implication of this statement is that Brecht’s analysis is moot where
we cannot be “confident that the jury’s verdict would have been the same.” Id.

       Brady/Giglio harm by its nature goes to the substantive fairness of trial. The
genius of Brady—and perhaps the reason that it has lent its name to a whole category of
constitutional claims—lies in its recognition that certain material prosecutorial
misconduct renders a trial ipso facto substantively unfair. See Brady, 373 U.S. at 87-88.
Where this misconduct is present, post-conviction relief is mandatory. Id. An individual
may not be imprisoned when the fairness of his trial is in question. See id. 86-87
(describing prosecutorial-abuse cases leading up to Brady). And Brecht does not alter
this fundamental rule. See Brecht, 507 U.S. at 627-39. As the Supreme Court stated in
the post-Brecht case of Kyles: “a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.” 514
U.S. at 433 (internal quotations omitted).

       Given the conceptual framework of Brady and Brecht, we should not shoehorn
Brady into Brecht’s harmless-error analysis. Rather, Brady and Brecht remain consistent
only so long as they stand apart. The Court’s only task in the present case, then, is to
No. 07-1403          Rosencrantz v. Lafler                                           Page 23


apply the Giglio test. If the test is satisfied, “a new trial is required.” Giglio, 405 U.S.
at 154.

                                              II.

          The majority does not dispute that the prosecutor’s knowing failure to correct the
perjured testimony regarding meetings occurring between the prosecution and the victim
meets the Giglio-materiality test. (Maj. Op. at 12–14.) Such material misconduct
plainly had a “reasonable likelihood” of “affect[ing] the judgment of the jury.” Giglio,
405 U.S. at 154. Because Giglio requires a “new trial” under these conditions, I would
reverse the district court and order a new trial. Id.

                                             III.

          Assuming arguendo that Brecht has overruled Giglio—as well as our prior
precedent, see Byrd, 260 F.3d at 517 (following the Giglio rule)—I still maintain that the
prosecution’s misconduct requires a new trial because those errors were not harmless
under Brecht.

          In Brecht, the Supreme Court resolved a dispute over the proper “harmless error”
analysis applicable to certain types of “trial error.” Brecht, 507 U.S. at 637-38. The
Brecht Court held that trial errors do not require postconviction relief unless the error
had a “substantial and injurious effect or influence in determining the jury’s verdict.”
Id. Stated differently, Brecht’s harmless-error analysis requires “actual prejudice”
before a “trial error” can result in habeas relief. Id.

          The majority considers four allegations of prosecutorial misconduct. Separately,
three of these errors satisfy Brecht’s harmless-error analysis. Considered jointly,
therefore, there is little doubt that the facts of this case call for a new trial.

          First, Elaine Lasky, the victim, testified at trial that she did not meet with
prosecutors prior to trial. The prosecutor did nothing to correct Lasky’s false testimony,
even though the prosecutor knew it was false. The majority properly concludes that this
constitutes a material Brady violation but fails to recognize that this fact satisfies more
No. 07-1403           Rosencrantz v. Lafler                                          Page 24


than the first prong of Brecht.         Specifically, the majority rejects the idea that
prosecutorial misconduct of this kind had a “substantial and injurious effect or influence
[on] the jury’s verdict” under Brecht. (Maj. Op. at 18.) I strongly disagree with this
conclusion. The prosecution’s inaction is troubling in several respects. First, Lasky’s
testimony eliminates any opportunity for the defense to examine Lasky’s interaction or
communication with the police and investigating officers. Second, her testimony
forecloses questioning into her dealing with the prosecution, which in this case may
have been relevant to the strength of her identification of Rosencrantz. Third, and
perhaps most troubling, is the fact that had the prosecution corrected Lasky’s testimony
it may have raised credibility concerns with the jury. Because of the prosecution’s
inaction, the jury was unaware that the key witness repeatedly and unequivocally lied
on the stand. This is precisely the sort of information that would affect any careful jury
deliberation. See United States v. Serido, 705 F.2d 459, 1982 U.S. App. LEXIS 11672,
*5 (6th Cir. 1982) (stating that “due process is violated and a new trial is required when
a prosecutor intentionally or inadvertently fails to correct materially false testimony
relevant to the credibility of a key government witness”) (citing Giglio, 405 U.S. at 150).
Under these conditions, where the prosecution knew of the perjury, the process of fair
jury deliberation is undermined such as to call into question society’s confidence in the
verdict itself. This constitutes “actual prejudice,” and satisfies the second prong of
Brecht.

          Second, at the post-trial evidentiary hearing before the district court, Rosencrantz
presented uncontroverted evidence that the victim was intoxicated at the time of the
assault and that the police were aware of this fact. The record is clear that the
prosecution allowed Lasky to testify at trial that she was sober at the time of the assault:
“I wasn’t intoxicated at all when I entered into that truck.” (JA 386.) At the subsequent
evidentiary hearing, Lasky repudiated her prior testimony under direct examination by
Rosencrantz’s attorney, Nancy McGunn:

          Ms. McGunn: Okay. This assault took place - at trial, you testified,
          rather, that this assault took place after you left the hotel room and
          entered a truck, is that correct?
No. 07-1403        Rosencrantz v. Lafler                                          Page 25


       Ms. Lasky: Yes.
       Ms. McGunn: Okay. And then at that point in the truck you were
       sexually assaulted?
       Ms. Lasky: Yes.
       Ms. McGunn: Okay. When you left the hotel room that night, were you
       intoxicated?
       Ms. Lasky: Yes.
       Ms. McGunn: Okay. You were under the influence of alcohol, at a
       minimum?
       Ms. Lasky: Yes.
       Ms. McGunn: Okay. Do you recall testifying at trial that you were not
       intoxicated when you entered the truck?
       Ms. Lasky: No, I don’t. I do not recall that.
       Ms. McGunn: Okay. If you had testified in that manner, would that have
       been incorrect?
       Ms. Lasky: Yes.
(JA 1837-38.) Moreover, Jack Pascoe—Lasky’s companion at the hotel the night of the
incident—submitted an affidavit for the post-trial evidentiary hearing corroborating
Lasky’s testimony that she was intoxicated at the time of the attack: “At the point at
which [Lasky] left the room [shortly before the assault], she was well on her way to
being intoxicated.” (Affidavit of Jack Pascoe, Oct. 30, 2006 ("Pascoe Aff.") ¶1.)
Pascoe’s affidavit states that he and Lasky were both drinking and using “a lot of powder
cocaine,” and “[he] remember[s] talking to the prosecutor and some police officers about
the night . . . [and he is] confident he told them that [Lasky] had been drinking and doing
drugs before she left the hotel room to get some ice, because she definitely had been.”
( Pascoe Aff. ¶¶2, 4.)

       While we have previously stated in Williams v. Coyle, 260 F.3d 683, 708 (6th
Cir. 2001) that “recanting affidavits are always viewed with extreme suspicion,” the
reasoning of our decision provides guidance regarding the acceptance or rejection of
such affidavits. In cases such as Williams, where the prosecutor provides testimony
No. 07-1403        Rosencrantz v. Lafler                                          Page 26


contrary to an affidavit at the evidentiary hearing, we require a greater showing to
support the recanting affidavit. Id. However, in those cases where the prosecutor does
not testify at the evidentiary hearing or offer any contradictory evidence arguing for the
rejection of the affidavit, the sworn testimony of the affiant may not be summarily
dismissed.    In the present case, there was no counter-evidence offered by the
prosecution. Moreover, Pascoe’s affidavit corroborated, and was corroborated by,
Lasky’s testimony. The district court’s summary rejection of Jack Pascoe’s affidavit was
thus improper, and should be rejected as clearly erroneous. (JA 1810); see Girts v. Anai,
501 F.3d 743, 752 (6th Cir. 2007) (Factual findings are reviewed for “clear error.”).

       Once Pascoe’s affidavit is given due weight, it is evident that Lasky lied on the
stand about an issue materially relevant to her ability to have reliably identified
Rosencrantz as the perpetrator—namely, whether or not she was intoxicated (and how
severely) at the time of the assault. Because prosecutors are charged with knowledge of
facts known to the police, the prosecution’s failure to correct Lasky’s testimony
constitutes a material Brady violation that meets the first prong of Brecht. See Kyles,
514 U.S. at 437-38 (holding that prosecutors have a duty to learn of evidence “known
to others acting on the government’s behalf in the case, including the police,” and that
such constructive knowledge is sufficient to implicate Brady). Brecht’s second prong
is satisfied because withholding the fact of Lasky’s intoxication at the time of the
assault—information relating to Lasky’s ability to identify her assailant—seriously
harmed the jury’s deliberative process. In short, this was a case where the jury weighed
the credibility and testimony of the accused against that of the accuser. Lasky’s sobriety
or intoxication at the time of the assault is precisely the sort of information that would
affect the determination of the jury’s verdict. See Brecht, 507 U.S. at 637-38. Because
withholding this information taints jury deliberation and undermines confidence in the
verdict, Rosencrantz must be afforded a new trial.

       Third, Rosencrantz also offered uncontroverted evidence at the district court’s
evidentiary hearing that the victim had reservations about her identification of
Rosencrantz as her assailant. The record is also clear that the prosecution nevertheless
No. 07-1403        Rosencrantz v. Lafler                                          Page 27


allowed Lasky to lie at trial about her confidence that she had correctly identified her
assailant. On direct examination by the Assistant Prosecuting Attorney, Garner Train,
Lasky testified about the photo-lineup identification:

        Mr. Train: Okay. Based on your seeing the man that did this to you, were
        you able to pick out the person in the line-up that did it?
        Ms. Lasky: Immediately.
(JA 375-76.) The prosecutor emphasized this point himself, repeating, “[i]mmediately,”
and then proceeded to have Lasky identify Rosencrantz as her attacker. Id. At the
evidentiary hearing, Lasky dramatically altered her account of the photo-lineup
identification:

        Ms. McGunn: Okay. Did you select a photo from the lineup that day?
        Ms. Lasky: Yes, I did.
        Ms. McGunn: Okay. In selecting that photo were you absolutely sure
        that was the person who had assaulted you?
        Ms. Lasky: No.
        ...
        Ms. McGunn: . . . Did you tell the police that you were not sure that Mr.
        Rosencrantz was the person who had assaulted you?
        Ms. Lasky: Yes.
(JA 1838-40.)

        The district court concluded that the victim’s own post-trial testimony was
“insufficient to establish that the prosecutor knowingly presented false testimony when
he permitted Lasky to testify that she identified Petitioner.”          (JA 1811.)     By
“insufficient,” the district court apparently meant legally insufficient, because the court
immediately offered its opinion on the obligation of the defense counsel to attack the
photo-lineup-identification evidence at trial. Id. The district court’s reasoning appears
to be that Lasky’s recanting photo-lineup-identification testimony may be disregarded
because defense counsel, at trial, had a fair chance to “explore the certainty of her
identification.” Id. This line is echoed by today’s majority. (Maj. Op. at 11.)
No. 07-1403         Rosencrantz v. Lafler                                           Page 28


        This legal analysis is seriously flawed. When considering Brady violations, the
obligations and actions of defense counsel are irrelevant, and the analysis should focus
on the actions of the prosecutor in contributing to a substantively unfair trial. See Giglio,
405 U.S. at 153-54 (noting that satisfying Brady “is the responsibility of the
prosecutor”). It is prosecutors who have minimum obligations under Brady, not defense
counsel. Id. Consequently, Lasky’s photo-lineup testimony at the evidentiary hearing
is legally sufficient to constitute a Brady claim.

        Thus, Lasky’s uncorrected false testimony regarding her intoxication and her
photo-lineup identification account for two more violations of Rosencrantz’s due process
rights, either of which requires a new trial. Giglio, 405 U.S. at 153-54; Kyles, 514 U.S.
at 433 n. 7; Byrd, 260 F.3d at 517. This same result is also required under the harmless-
error analysis of Brecht. Brecht, 507 U.S. at 637-638.

        Here, Rosencrantz’s conviction depended on the ability of the victim to have
confidently identified him as the perpetrator. The fact that Lasky was intoxicated at the
time of the assault and the fact that Lasky did not have confidence in her identification
of Rosencrantz at the photo lineup would, if known to the jury, have had a “substantial
. . . effect or influence” on its deliberations. But for the prosecutor’s inaction, in
violation of Brady, the jury would have known these facts. As such, we cannot with
confidence accept the jury’s verdict or the substantive fairness of the trial itself, and a
new trial is warranted.

                                            IV.

        For all of the above reasons, I respectfully dissent.
