In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4031

Julio Mendiola,

Petitioner-Appellant,

v.

James M. Schomig, Warden, Pontiac
Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3183--Charles P. Kocoras, Judge.


Argued January 4, 2000--Decided August 10, 2000



  Before Easterbrook, Manion, and Rovner, Circuit
Judges.

  Easterbrook, Circuit Judge. 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).

  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.

  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.

 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.

  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.

  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.

  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.

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.

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).

  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.

  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.

  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.

  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.
  ROVNER, Circuit Judge, dissenting. 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 7. 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.

  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:


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

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.").

  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.

  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 5.
  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:


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. . . .

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.

  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.

  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.

  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:

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.
G18-19.

  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.

  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: "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.

  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 6-7. 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.

  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.

  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.

  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.

  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.

  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
6, they tick off a list of circumstances which,
in their view, suggest that her post-trial
statement is false, ante at 6-7. 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 7.
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.

  The fact that the trial court heard Balderrama
testify as a witness at trial (see ante at 6-7)
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 6-7. 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 7; see also Higgins v. Mississippi, No.
97-3521, 2000 WL 869416, at *3 (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.

  My colleagues also suggest that Balderrama’s
statement "made little sense." Ante at 7. "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?

  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 16), 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.

  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.

  Four state judges, my brothers note in closing,
have chosen to disbelieve Balderrama’s post-trial
statement exonerating Mendiola. Ante at 8. 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 6,
8) unless and until he is given the chance to put
Balderrama on the witness stand.

  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.

  I respectfully dissent.



/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 6. 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.
