                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                   _____________

                    No. 13-9003
                   _____________

                 JAMES A. DENNIS

                          v.

 SECRETARY, PENNSYLVANIA DEPARTMENT OF
                CORRECTIONS;
   SUPERINTENDENT, STATE CORRECTIONAL
           INSTITUTION AT GREENE;
   SUPERINTENDENT, STATE CORRECTIONAL
         INSTITUTION AT ROCKVIEW;
DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,

                                              Appellants




    On appeal from the United States District Court
       for the Eastern District of Pennsylvania
         (District Court No.: 2-11-cv-01660)
      District Judge: Honorable Anita B. Brody
     Argued on November 5, 2014 before Merits Panel
          Argued En Banc on October 14, 2015

Before: McKEE Chief Judge, AMBRO, FUENTES, SMITH,
     FISHER, CHAGARES, JORDAN, HARDIMAN,
 GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE
            and RENDELL* Circuit Judges

                  (Filed: August 23, 2016)


Ronald Eisenberg, Esquire (Argued)
Susan E. Affronti, Esquire
Ryan Dunlavey, Esquire
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

                    Counsel for Appellants




       *Honorable Marjorie O. Rendell assumed Senior
Status on July 1, 2015.




                              2
Amy L. Rohe, Esquire (Argued)
Reisman Karron Green
1700 K. Street, N.W.
Suite 200
Washington, DC 20006

Stuart B. Lev, Esquire
Federal Community Defender Office for the District of
Pennsylvania
Trial Unit
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

                    Counsel for Appellee


Catherine M. A. Carroll, Esquire
WilmerHale
1875 Pennsylvania Avenue, N. W.
Washington, DC 20006

                    Counsel for Amicus Appellees




                             3
                        OPINION


RENDELL, Circuit Judge.

        James Dennis has spent almost twenty-four years
unsuccessfully challenging his conviction for the murder of
Chedell Williams.         The Pennsylvania Supreme Court
repeatedly affirmed Dennis’s first-degree murder conviction
and sentence and denied his applications for post-conviction
relief. Thereafter, Dennis filed an application under 28
U.S.C. § 2254, and the United States District Court for the
Eastern District of Pennsylvania granted Dennis habeas
corpus relief, concluding that the Pennsylvania Supreme
Court had unreasonably applied Brady v. Maryland, 373 U.S.
83 (1963), with respect to three pieces of evidence suppressed
by the Commonwealth. The suppressed Brady material—a
receipt corroborating Dennis’s alibi, an inconsistent statement
by the Commonwealth’s key eyewitness, and documents
indicating that another individual committed the murder —
effectively gutted the Commonwealth’s case against Dennis.
The withholding of these pieces of evidence denied Dennis a
fair trial in state court. We will therefore affirm the District
Court’s grant of habeas relief based on his Brady claims.




                               4
I.    Background

      A.     Factual Background

       On October 22, 1991, Chedell Williams and Zahra
Howard, students at Olney High School, climbed the steps of
the Fern Rock SEPTA station, located in North Philadelphia.
Two men approached the girls and demanded “give me your
fucking earrings.” App. 465. The girls fled down the steps;
Howard ran to a nearby fruit vendor’s stand and Williams ran
into the intersection at Tenth and Nedro Streets. The men
followed Williams. The perpetrators tore Williams’s gold
earrings from her earlobes. One of the men grabbed her, held
a silver handgun to her neck, and shot her. The men then ran
up the street to a waiting getaway car and fled the scene. The
precise time of injury was 1:54 p.m. Emergency personnel
responded within minutes, but Williams was pronounced
dead at the hospital less than an hour later.

      B.     Police Investigation and the Trial

       The police undertook an investigation into the
Williams murder, primarily aimed at determining the identity
of the shooter. Frank Jastrzembski led a team of detectives
who pursued the investigation based on rumors that “Jimmy”
Dennis from the Abbottsford Homes projects in East Falls1
committed the crime, despite being unable to identify the
source of the rumors. Resting on tips by neighbors from the

      1
        The Fern Rock SEPTA station is located in North
Philadelphia. The Abbottsford projects are located in
Northwest Philadelphia.




                              5
projects, police proceeded with Dennis as the primary, if not
the sole, suspect.2

        Detectives obtained eyewitness reports and
identifications, very few of which aligned with Dennis’s
appearance. Nearly all of the eyewitnesses who gave height
estimates of the shooter described him as between 5’9” and
5’10.” He was described as having a dark complexion and
weighing about 170 to 180 pounds. The victim, Williams,
had a similar build as the shooter; she was 5’10” and weighed
150 pounds. Dennis, on the other hand, is 5’5” tall and
weighed between 125 and 132 pounds at the time of trial.

       Prior to trial, three eyewitnesses identified Dennis in a
photo array, at an in-person lineup, and at a preliminary
hearing: Williams’s friend, Zahra Howard; a man working on
a garage near the intersection, Thomas Bertha; and a SEPTA
employee who was standing in front of the station at the time
of the murder, James Cameron.3

       2
          Detective Jastrzembski testified at trial that neither
the alleged second individual nor the person in the car were
ever arrested, although the case was ongoing.
        3
           Chief Judge McKee’s masterful concurrence
summarizes with great detail the photo array, line up, and the
bystanders’ identifications. As Chief Judge McKee notes, a
majority of the nine eyewitnesses who viewed the photo array
were unable to identify Dennis. Anthony Overstreet was
installing stone facing on a nearby garage with Bertha at the
time of the incident. Overstreet told police that he recognized
the shooter from around Broad and Olney Streets in North
Philadelphia. Although Overstreet stated that Dennis looked
like the shooter when he reviewed the photo array, he




                               6
Zahra Howard

       Photo Array: Howard identified Dennis, saying
        “this one looks like the guy, but I can’t be sure . . .
        He looks a little like the guy that shot Chedell.”
        App. 1537. When asked if she could be sure, she
        replied “No.” Id.

       Lineup: Howard indicated that she “thought”
        Dennis was the shooter. App. 586.4

identified a different individual as the shooter during a later
in-person lineup—not Dennis. George Ritchie, who was
across the street from Bertha and Overstreet, was unable to
identify anyone as the shooter among photos provided by the
police, despite initially asserting that he would be able to
identify the perpetrators again. The two fruit vendors
Howard ran toward, David Leroy, a hot dog vendor near the
station, and Clarence Verdell, a bystander on the SEPTA
steps, did not identify Dennis from the photo array. None of
these bystanders were called to testify at trial.
        4
          The District Court reasoned that the eyewitnesses’
memory may have been supplanted by photos from the array:
“That some (but notably not all) of the witnesses went on to
identify Mr. Dennis in a life [sic] lineup two months after
providing only tentative photo array identification indicates
that their memories of the photo array may have ‘replaced’
their memories of the actual event. Or, more simply, that Mr.
Dennis was familiar to them because they had seen his photo
previously, and had no prior exposure to the other members
of the lineup.” Dennis v. Wetzel, 966 F. Supp. 2d 489, 492
n.4 (E.D. Pa. 2013) (internal quotation marks and citation
omitted), vacated and remanded sub nom. Dennis v. Sec’y,




                              7
       Preliminary Hearing and Trial: Howard testified at
        trial that she had identified Dennis as the shooter at
        a preliminary hearing. App. 474-75. She also
        made an in-court identification during trial. Id.

Thomas Bertha

       Photo Array: Bertha initially said that the first
        photo, which was a photo of Dennis, looked like
        the man running with the gun and later confirmed
        his identification.

       Lineup: When asked to identify the shooter, Bertha
        simply stated “three,” which was Dennis. App.
        586.



Pa. Dep’t of Corr., 777 F.3d 642 (3d Cir. 2015), reh’g en
banc granted, opinion vacated (May 6, 2015) (“Dennis V”).
       Chief Judge McKee’s concurrence expands on this
concern. He observes that “[a]llowing a witness to view a
suspect more than once during an investigation can have a
powerful corrupting effect on that witness’ memory.” J.
McKee Concurring Op. at 26. Research shows “that while
fifteen percent of witnesses who mistakenly identify an
innocent person during the first viewing of a lineup, that
percentage jumps to thirty-seven percent if the witness
previously viewed that innocent person’s mug shot.” Id.
Here, “[t]he witnesses who identified Dennis at trial were
given not two, but three, opportunities to view Dennis. These
multiple views could help explain why initially tentative
guesses became certain identifications by the time the
witnesses took the stand.” Id. at 33




                             8
       Trial: Bertha identified Dennis as the shooter at
        trial.

James Cameron

       Photo Array: Cameron said that Dennis looked like
        the shooter, but wavered “I can’t be sure.” App.
        1548.

       Lineup: Cameron identified Dennis, who was in the
        third position in the lineup, by simply stating
        “number three” without reservation. App. 689.

       Preliminary Hearing and Trial: At trial, Cameron
        identified Dennis as the shooter and confirmed that
        he had identified Dennis at the preliminary hearing.

       At trial, the prosecutor introduced testimony from
detectives who verified that Howard, Bertha, and Cameron
each identified Dennis in the photo array and lineup. No
other eyewitness identifications were referenced.

       Dennis was arrested on November 22, 1991. His
signed statement indicated that he stayed at his father’s house
until about 1:30 p.m. on the day in question, when his father
drove him to the bus stop and watched him get on the “K” bus
toward Abbottsford Homes to attend singing practice that
evening. Dennis rode the K bus for approximately thirty
minutes to the intersection of Henry and Midvale Avenues.
During the trip, Dennis saw Latanya Cason, a woman he
knew from Abbottsford Homes. In his statement to police,
which was read into the record at trial, Dennis asserted that
when he and Cason disembarked the bus “[he] waved to her.”




                              9
App. 710. After getting off the bus, Dennis walked to
Abbottsford Homes, where he spent the rest of the day with
his friends. Dennis’s father, James Murray, corroborated
Dennis’s story. He stated that they spent the morning
together, and that he drove Dennis to the bus stop shortly
before 2:00 p.m. to catch the K bus to Abbottsford Homes.

       The Commonwealth’s case rested primarily on
eyewitness testimony, which Assistant District Attorney
Roger King emphasized in his opening statement to the jury.
Though ADA King acknowledged that the Commonwealth
had no physical evidence—the silver handgun and the
earrings were never recovered—he contended that the
eyewitness identifications were sufficient for a conviction.
Three eyewitnesses were called to testify at trial: Zahra
Howard, Thomas Bertha, and James Cameron.

       Zahra Howard, who was present with the victim at the
time of the murder, led the Commonwealth’s case. She
recounted what had occurred, noting that the shooter was
“right in front of” her and Williams, about one or two feet
away, and that she looked the shooter in the face. App. 467–
68. About ten seconds passed between the first time she saw
the men until she turned around and ran away from the scene;
she also saw the shooter for about five to ten seconds while
he was grabbing Williams in the street. Howard identified
Dennis in a photo array, at an in-person lineup, and at a
preliminary hearing. Defense counsel focused his cross-
examination on her hesitation in prior identifications.
Howard described the shooter as wearing a black hooded
sweatshirt and a red sweat suit. In her statement, Howard
said that the shooter was about same height as Detective
Danks, who was 5’9” or 5’10,” or taller. Howard testified at




                            10
trial that she had never seen the shooter or his accomplice
before in her life.

        Thomas Bertha and his partner, Anthony Overstreet,
were installing stones on a garage near Tenth and Nedro
Streets on the day in question. After hearing the gunshot,
they came down from their ladders and looked down the
street from the sidewalk. The two perpetrators ran past them.
The shooter passed between three to eight feet in front of
Bertha, and Bertha ran after him. Bertha made visual contact
with the shooter, who was running toward him, for about
three to four seconds. Defense counsel impeached Bertha by
recalling that, at the preliminary hearing, Bertha testified that
he could not have seen the shooter for longer than about a
second. Bertha viewed the photo array and attended the
lineup, identifying Dennis at both. He described the shooter
as wearing red sweat pants, a red hooded sweatshirt, a black
cap, and a leather jacket. Bertha testified at trial that he
remembered telling the police that the shooter was 5’9” and
180 pounds.

        James Cameron was working as a SEPTA cashier on
the day of the murder. He was about eight to ten feet from
Williams when she was shot and saw the shooter for a few
seconds. Cameron saw the shooter’s face several times but
acknowledged that he “didn’t really pay attention.” App.
664. He testified at trial that he saw the shooter for about
thirty to forty seconds collectively.            This estimate
contradicted Cameron’s prior testimony at the preliminary
hearing where he claimed that about twenty seconds passed
between when he first saw the shooter and when the shooter
ran away. Cameron viewed the array, attended the lineup, and
testified at the preliminary hearing, identifying Dennis at each




                               11
instance, as well as at trial. Cameron stated that Dennis
looked like the shooter, “especially from the side.” App. 676.
He described the shooter as wearing a red sweat suit and a
dark jacket, carrying a small silver revolver. He did not
remember giving detectives a specific height and weight
description, but remembered telling them that the shooter was
“stocky.”5 App. 664.

        Aside from eyewitness testimony, the Commonwealth
presented testimony from Charles “Pop” Thompson and
Latanya Cason, who spoke about their interactions with
Dennis on October 22, 1991, the day of the murder.
Thompson was in Dennis’s singing group, which held
rehearsal at Abbottsford Homes that day. Thompson did not
remember what Dennis was wearing, but told detectives that
he saw Dennis with a gun that night. He also identified an
illustrative .32 chrome revolver, which had been admitted as a
Commonwealth exhibit, as being similar to the one he saw in
Dennis’s possession. Thompson had an open drug possession

       5
          Detectives Manuel Santiago and William Wynn
testified at trial about the eyewitnesses’ prior identifications.
Detective Santiago supervised the activities at the crime scene
on the day of the murder and compiled a photo array to show
to Howard, Bertha, and Cameron, which included eight
photographs with Dennis’s photo in the first position. Dennis
looked different in the photograph than at the time of arrest.
Santiago did not ask Howard why she could not be sure that it
was the shooter. Detective Wynn, the lineup supervisor for
the Philadelphia Police, conducted the in-person lineups for
Howard, Bertha, and Cameron. Defense counsel placed
Dennis as number three in the lineup. All participants dressed
similarly and carried large numbers for identification.




                               12
charge at the time of trial, but testified that he was not
expecting any help from the Commonwealth with the drug
charge in exchange for his testimony. Three years after trial,
Thompson attested in a statement that he had never seen
Dennis with a gun and that his testimony at trial was false.

        Latanya Cason, who knew Dennis “by living up [her]
way” at Abbottsford Homes, testified that she saw him
between 4:00 and 4:30 p.m. at Henry and Midvale Avenues
on October 22, 1991. App. 731. Cason’s estimate that she
saw Dennis between 4:00 and 4:30 p.m. was “strictly a guess”
on her part—she did not know exactly what time she saw
Dennis—but there was no question she saw him that day.
App. 745. Prior to seeing Dennis, Cason took public
transportation to the 3-2 center where she picked up her
public assistance check, signing a document to confirm pick
up. She then filled her daughter’s prescription, got some fish,
ran a few additional errands, and went home via the K bus.
Cason testified at trial that she did not see Dennis at 2:00 p.m.
that day because she was just leaving work at 2:00 p.m.
Although the Commonwealth introduced a schedule of
payment and food stamps at trial, which stated that Cason was
slated to pick up her public assistance check and food stamps
on October 22, 1991, nothing was introduced at trial
indicating the precise time of day she retrieved her benefits.

      Detective Jastrzembski executed a search warrant of
Dennis’s father’s home and seized two black jackets, a pair of
red pants, and a pair of white sneakers. The police lost the
items prior to trial. Detectives and two experts testified at
trial about physical aspects of the crime, but the




                               13
Commonwealth did not introduce any physical evidence at
trial. 6
         Dennis’s defense strategy centered on his alibi, good
character, and mistaken identity.7 His defense comprised of

       6
         The Commonwealth’s other witnesses did not testify
as to Dennis’s connection to the murder. Rather, they spoke
to the emergency response to the crime (Fireman Oakes), the
scene of the crime (Sergeant Fetscher), Williams’s body chart
(Detective Brown), and the projectile removed from her body
(Detective Reinhold). Williams’s ex-boyfriend recounted a
prior incident where Williams had been robbed at gunpoint
for the same earrings she wore on the day of the murder.
Officer Jachimowicz, a firearms expert, testified as to the type
of gun that was likely used in the murder, and although he
acknowledged that there were thousands of models of .32
caliber handguns, he asserted with certainty that the nickel
finish Harrington Richardson 733 was probably used in the
murder. Detective Dominic Mangoni transported Howard and
Bertha to the lineup. Detective Thomas Perks participated in
Dennis’s arrest. Williams’s mother and father, Barbara and
Barry, identified their daughter and testified to her future. Dr.
Sekula-Perlman, a medical examiner, ruled Williams’s death
a homicide by a shot at close range. Sergeant Fetscher took
information from witnesses at the scene, including Howard,
Bertha, and Cameron. None of these witnesses testified
substantively as to Dennis’s alleged involvement in the
murder.
       7
          Defense counsel sought to discredit eyewitness
testimony put forth by the Commonwealth, primarily that of
Zahra Howard. However, counsel’s cross-examination was
confined to highlighting Howard’s prior hesitation in
identifying Dennis. Similarly, defense counsel’s cross-




                               14
testimony by his father, James Murray, Dennis himself, a few
members of his singing group, and character witnesses.
Dennis did not have evidence to support an “other suspect”
defense.

       Dennis’s father testified that the two of them were
together from the evening of October 21, 1991, until about
1:50 p.m. on October 22, 1991. Murray lives about fifteen to
eighteen blocks from the Fern Rock Station, roughly a five-
minute drive with traffic. Murray testified that “[he] kn[ew]
for a fact that [Dennis] was on [the K bus]” at the time of
Williams’s murder because he drove Dennis to the stop and
watched from his car as Dennis boarded the bus. App. 804.
The Commonwealth pointed out that Murray had visited
Dennis forty times since his arrest.

       Willis Meredith, James Smith, and Marc Nelson,
members of Dennis’s singing group who had known Dennis
for ten years or more, testified on Dennis’s behalf about
rehearsal on the day of the murder. Meredith saw Dennis for
about twenty minutes around 2:15 or 2:30 p.m., which
aligned with Dennis’s account. Smith testified that Dennis
was dressed in dark sweats and a dark hooded shirt at
rehearsal that night—he was not wearing any red. Meredith,
Smith, and Nelson each testified that Thompson and Dennis
frequently got into arguments. Each testified that they had




examination of Cason focused on shakiness in her
recollection; counsel had nothing to indicate that her timeline
was incorrect, or that she was mistaken or testifying falsely.




                              15
not seen a handgun in Dennis’s possession.8 Other defense
witnesses, including Dennis’s brothers, friends, and church
leaders, testified to Dennis’s reputation for being honest,
truthful, peaceful, and law-abiding.9

       Finally, Dennis took the stand. He testified that he had
nothing to do with Williams’s shooting and was not in the
area at the time of her murder.10 In line with his father’s
testimony, Dennis said he spent the previous night at his
father’s house and left at 1:30 or 1:45 p.m. to take the bus to
Abbottsford Homes for singing practice. When Dennis left
his father’s house, he was wearing a dark blue jeans set; he
changed into black sweats at Merriweather’s house before
rehearsal. Dennis testified that he took the K bus, where he
“thought” he saw Tammy Cason, to Henry and Midvale
Avenues in East Falls, arriving around 2:30 p.m.11 App.

      8
          Lawrence Merriweather also testified to seeing
Dennis on the day in question. Merriweather testified that he
saw Dennis between 3:00 and 3:30 p.m.
       9
           The Commonwealth responded with character
witnesses that disputed the testimony of Dennis’s character
witnesses.
       10
           Dennis testified that Helen Everett, his girlfriend,
told him about the rumor that he, Derrick, and Rodney,
committed the murder. He testified that Derrick and Rodney
spoke with the police about the murder. Neither testified at
trial.
       11
          Anthony Sheridan, a SEPTA employee called by the
Commonwealth, testified that there was a K bus that left the
stop near Dennis’s father’s house at approximately 1:56 p.m.
and that it would take approximately half an hour to arrive at
Henry and Midvale.




                              16
1028. Dennis then went to Willis Meredith’s house for
twenty to thirty minutes. Dennis acknowledged getting into
frequent arguments with Thompson about Thompson’s desire
to be the leader of the singing group.

        Counsels’ closings reiterated the trial’s themes—
eyewitness identifications and Dennis’s alibi.       Defense
counsel pointed to eyewitness identifications as the key
question in the Commonwealth’s case, but he had no means
of impeaching Howard, the eyewitness with the closest view
of the shooter. Defense counsel highlighted Thompson’s
motive to lie, but Thompson’s testimony did not directly link
Dennis to Williams’s murder. Finally, defense counsel had to
backtrack from using Cason to bolster Dennis’s timeline due
to the timing discrepancy between her version—that they saw
one another between 4:00 and 4:30—and Dennis’s account
that he saw Cason at 2:30. In his closing statement to the
jury, counsel urged that Dennis had not, in fact, seen Cason
on the bus to detract from the inconsistency.


       ADA King similarly saw Howard as the key witness at
trial and instructed the jury that “if you believe Zahra
Howard, that’s enough to convict James Dennis.” App. 1207.
King attacked Dennis’s testimony that he saw Tammy Cason
on the K bus as incredible, and undercut Dennis’s father’s
testimony by urging that “blood is thicker than water,”
leaving no disinterested witnesses to support Dennis’s
account. App. 1208-09.




                             17
       The jury found Dennis guilty of first-degree murder,
robbery, carrying a firearm without a license, criminal
conspiracy, and possession of an instrument of a crime. It
found Dennis’s lack of significant criminal history a
mitigating factor during the penalty phase, but it also found
that the killing was committed in the course of a felony,
amounting to an aggravating circumstance.           The jury
sentenced Dennis to death.

       C.     Undisclosed Evidence

        The prosecution failed to disclose to Dennis’s counsel
three pieces of exculpatory and impeachment evidence: (1) a
receipt revealing the time that Cason had picked up her
welfare benefits, several hours before the time she had
testified to at trial, thus corroborating Dennis’s alibi (the
“Cason receipt”); (2) a police activity sheet memorializing
that Howard had given a previous statement inconsistent with
her testimony at trial, which provided both invaluable
material to discredit the Commonwealth’s key eyewitness and
evidence that someone else committed the murder (the
“Howard police activity sheet”); and (3) documents regarding
a tip from an inmate detailing his conversation with a man
other than Dennis who identified himself as the victim’s killer
(the “Frazier documents”).

              1.     Cason receipt

        Detectives interviewed Latanya Cason, the woman
identified in Dennis’s initial statement, at Abbottsford Homes
a few months after Dennis’s arrest. Cason told detectives that
she thought she remembered seeing Dennis the day of the
murder, but her timeline contradicted the one Dennis




                              18
outlined. She said that she worked until 2:00 p.m., went to
the 3-2 center to pick up her public assistance check, picked
up a prescription and some fish, boarded the K bus, and got
off near Abbottsford Homes. According to Cason, she saw
Dennis when she got off the K bus between 4:00 and 4:30
p.m., not between 2:00 and 2:30 p.m. as Dennis indicated.
The only discrepancy between Dennis’s testimony and
Cason’s was the time of their interaction. Police records
indicate that Cason gave detectives a Department of Public
Welfare (“DPW”) card marked “Schedule of check payment”
at the time of her interview, which was introduced at trial.
However, the Commonwealth possessed another DPW
document not disclosed at trial—a receipt bearing the time
Cason picked up her check. Cason testified at trial as a
witness for the prosecution and her testimony aligned with
her initial statement to detectives.

       On appeal, Dennis’s new appellate counsel obtained
Cason’s time-stamped receipt from the DPW.12 Cason stated
in an affidavit that police had a copy of the time-stamped
receipt when they interviewed her and that she gave police
her only copy of the receipt. The receipt indicated that Cason
picked up her welfare check at 13:03, or 1:03 p.m. In
complete contradiction to her trial testimony, then, Cason
could not have been working until 2:00 p.m. that day. Cason

      12
         It is not clear how counsel would have been able to
obtain Cason’s receipt on appeal because DPW regulations
placed strict limitations on the type of information it would
disclose and to whom. See 55 Pa. Code § 105.4(a)(1).
Presumably, counsel would have sought permission from
Cason, or assistance from Cason herself, in obtaining the
receipt.




                             19
attributed her prior incorrect testimony to misunderstanding
military time, so that she “may have thought that the 13:03,
which is on the receipt, was 3:03 p.m.” App. 1736. Based on
the discrete time indicated on the receipt, Cason’s affidavit
stated she would have seen Dennis “between 2:00 and 2:30
p.m. at the Abbottsford Homes, and not 4:00 to 4:30 that is in
my statement.” Id.

              2.     Howard police activity sheet

       Two days after the murder, detectives interviewed
Diane and Mannasset Pugh, Williams’s aunt and uncle.
Diane Pugh told detectives that, the night after the murder,
Zahra Howard told them that she recognized the assailants
from Olney High School, where she and Williams were
students.   Dennis did not attend Olney High School.
Howard’s assertion that she recognized the assailants from
school contradicted her prior statements to police that she had
never seen the men before and did not recognize them from
school. Police recorded in their “THINGS TO DO” list that
they planned to interview Howard about her inconsistent
statements.

       Howard further told the Pughs that two people named
“Kim” and “Quinton” had also been present at the murder.
The following day, another of Williams’s aunts, Elaine
Parker, told police that Howard mentioned Kim and Quinton
were at the scene. The Commonwealth disclosed Parker’s
statement prior to trial. However, the prosecution did not
disclose information about Howard’s inconsistent statement
to the Pughs. Mere hours after meeting with Parker and
receiving additional information that Howard had omitted or
misstated facts in her initial statement to police, two




                              20
detectives met with Howard, ostensibly to follow up on their
“things to do.” Ignoring their recorded intentions, however,
the detectives only questioned Howard about a photo array
and did not inquire about the inconsistent statements.

              3.     Frazier documents

       Prior to Dennis’s arrest, Philadelphia detectives
received a call from Montgomery County police relaying a tip
from an inmate at the Montgomery County Correctional
Facility, William Frazier. Frazier told Montgomery County
detectives that he spoke with the man who may have
murdered Williams during a three-way call with Frazier’s
friend, Tony Brown, facilitated by Frazier’s aunt. During the
call, Brown told Frazier and Frazier’s aunt that he “fucked
up” and murdered Williams when the gun went off
accidentally during a botched robbery of her earrings. App.
1692. He also said that two other men, Ricky Walker and
“Skeet,” aided in committing the crime. Frazier told
detectives that Brown had a brown car, that he “like[d] to
wear sweat suits,” and that the men knew the victim as
“Kev[’s] . . . girl.”13 App. 1694–95.

       Frazier told police that Brown and the others had hid
in Frazier’s empty apartment for two days following the
murder. Frazier provided addresses for the men, including
their parents’ and girlfriends’ addresses, an address and phone
number for his aunt, and an address for the pawn shop Brown
frequented. Frazier volunteered to take detectives on a “ride
along” to point out the houses and pawn shop.

       13
       Williams, the victim, previously dated a man named
Kevin Williams.




                              21
       Following the tip, Detectives Santiago and
Jastrzembski interviewed Walker, who admitted to knowing
Williams from Olney High School, but denied knowing
Brown or Skeet. Walker denied any involvement in the
murder, and claimed that his mother could verify that he was
sleeping when Williams was murdered. Walker admitted to
hanging out around Broad and Olney, the exact area where
Overstreet said he had seen the perpetrator before. Detectives
never verified Walker’s alibi nor showed his photo to any of
the eyewitnesses. Detectives never located Brown or Skeet.

       Detectives, including Jastrzembski, spoke with
Frazier’s landlord, who had no knowledge of anyone entering
Frazier’s apartment. Detectives did not interview Frazier’s
aunt to obtain her account of the call with Brown.

       The Commonwealth suppressed at least six documents
relating to the Frazier tip from Dennis’s trial counsel: (1)
Frazier’s initial statement to the Montgomery County police
(Oct 31, 1991); (2) Frazier’s statement to the Philadelphia
police (Nov. 1, 1991); (3) Police Activity Sheet regarding
Frazier’s landlord (Nov. 1, 1991); (4) Police Activity Sheet
regarding Ricky Walker (Nov. 2, 1991); (5) Frazier’s signed
search consent; and (6) Ricky Walker’s statement (Nov. 2,
1991). The Commonwealth concedes that these documents
were not disclosed to Dennis until a decade after trial.




                             22
       D.     Review of State Court Conviction

       Like many habeas cases, this case has a lengthy
procedural history. Only those decisions and arguments
relevant to the instant appeal are summarized below.

        On July 22, 1998, the Pennsylvania Supreme Court
affirmed Dennis’s conviction and death sentence on direct
appeal by a vote of four to three. Commonwealth v. Dennis,
715 A.2d 404 (Pa. 1998) (“Dennis I”). Dennis argued on
direct appeal that the Commonwealth violated his due process
rights by failing to disclose Cason’s time-stamped receipt
prior to trial, in opposition to Brady v. Maryland, 373 U.S. 83
(1963). 14

       On September 15, 1998, Dennis filed a timely pro se
petition pursuant to Pennsylvania’s Post Conviction Relief
Act (“PCRA”), received new counsel, and also received
discovery. In December 1999, PCRA counsel was appointed
and filed an amended petition, and, subsequently, a
supplemental amended petition and a second supplemental

       14
          The Pennsylvania Supreme Court’s 2004 decision,
Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004)
(“Dennis II”), is not relevant to this appeal. On December 12,
2000, Dennis filed a motion for discovery, seeking the
prosecutor’s jury selection notes, and the PCRA court granted
Dennis’s motion.        After granting the Commonwealth’s
request for reconsideration of the order, the PCRA court
reinstated the discovery order on July 10, 2001. In Dennis II,
the Pennsylvania Supreme Court reversed the order granting
discovery of the prosecutor’s jury selection notes and
remanded the case for completion of PCRA review.




                              23
petition on December 1, 2000, and July 10, 2002,
respectively. Two pieces of evidence at issue in this appeal
were disclosed during PCRA discovery. First, Dennis
received the police activity sheet memorializing Howard’s
statements to Diane Pugh the night after the murder, which
indicated that she recognized the shooter from Olney High
School. Second, Dennis received the six documents relating
to the Frazier lead that police had abandoned. The PCRA
court denied Dennis’s claims that the prosecution violated
Brady by failing to disclose the Howard statement and the
Frazier documents.        Dennis again appealed to the
Pennsylvania Supreme Court.

       The Pennsylvania Supreme Court affirmed the PCRA
court in part and vacated in part, and remanded two claims.
Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008) (“Dennis
III”). The court found that the Commonwealth’s failure to
disclose the Frazier documents did not violate Brady because
the prosecution was not required to disclose “every fruitless
lead” and that “inadmissible evidence cannot be the basis for
a Brady violation.” Id. at 968 (internal quotation marks
omitted) (quoting Commonwealth v. Lambert, 884 A.2d 848,
857 (2005)).

       The Pennsylvania Supreme Court remanded to the
PCRA court Dennis’s claim that the Commonwealth violated
Brady by suppressing the contents of the police activity sheet
memorializing Zahra Howard’s inconsistent statement. After
evidentiary hearings on remand, the PCRA court again
dismissed Dennis’s petition. Commonwealth v. Dennis, Case
No. 92-01-0484, slip op. (Pa. Ct. Com. Pl. Mar. 17, 2010).
The Pennsylvania Supreme Court concluded that it was not
relevant that Howard denied her prior inconsistent statement




                             24
at the evidentiary hearing before the PCRA court. See, e.g.,
Commonwealth v. Dennis, 17 A.3d 297, 309 (Pa. 2011)
(“Dennis IV”).

       The Pennsylvania Supreme Court affirmed the PCRA
denial on appeal. Id. It concluded that the police activity
sheet was not material under Brady because “Howard was
extensively cross-examined” and because “there were two
eyewitnesses other than Howard who observed the shooting
at close range . . . [and] positively identified [Dennis] as the
shooter in a photo array, in a line up, and at trial.” Id.

       Following the Pennsylvania Supreme Court ruling,
Dennis filed a habeas corpus petition under 28 U.S.C. § 2254
in the United States District Court for the Eastern District of
Pennsylvania for review of his conviction and death sentence.
The District Court granted Dennis habeas relief based on
Dennis’s Brady claims as to the Commonwealth’s failure to
disclose the Cason receipt, the Frazier documents, and the
police activity sheet containing Howard’s inconsistent
statement. Dennis V, 966 F. Supp. 2d at 518.

        The District Court concluded that the state court’s
ruling regarding the Cason receipt involved an unreasonable
determination of the facts. The Pennsylvania Supreme Court
had concluded that the receipt was not exculpatory because
(1) “[Cason’s] testimony would not support Appellant’s
alibi”; (2) it would have been cumulative of testimony by
another witness; and (3) there was no evidence that the
Commonwealth withheld the receipt from the defense.
Dennis I, 715 A.2d at 408. The District Court determined
that the receipt corroborated Dennis’s alibi, provided direct
evidence that Cason’s testimony was false, and would have




                              25
been strong impeachment evidence. Therefore, the state
court’s determination that the receipt was not “exculpatory”
was an unreasonable determination of the facts. Dennis V,
966 F. Supp. 2d at 508.

       The District Court also concluded the Pennsylvania
Supreme Court had engaged in a similarly unreasonable
determination of facts regarding whether the receipt was
actually suppressed by the police. In its opinion, the
Pennsylvania Supreme Court stated that the police came into
possession of the receipt when interviewing Cason, and that
the Commonwealth never claimed to have disclosed the
receipt to defense counsel. The District Court relied on Kyles
v. Whitley, 514 U.S. 419, 437 (1995), for the proposition that
favorable evidence in the police’s possession is imputed to
the prosecution. Dennis V, 966 F. Supp. 2d at 509–10. It also
interpreted the three-factor balancing test in United States v.
Pelullo, 399 F.3d 197 (3d Cir. 2005), to come out in favor of
required disclosure by the Commonwealth. Further, the state
court’s conclusion that the receipt was not material was an
unreasonable application of clearly established federal law
because the “receipt and Cason’s accompanying corrected
testimony would have provided independent, disinterested
corroboration of Dennis’[s] explanation for where he was at
the time of Williams’[s] murder,” would have transformed
Cason from a government witness into a defense witness who
supported Dennis’s alibi, and would have provided
impeachment evidence to challenge Cason’s testimony that
she had worked until 2:00 p.m. that day, which otherwise
could not have been challenged. Dennis V, 966 F. Supp. 2d at
511.




                              26
       The District Court also granted habeas relief on the
basis of Dennis’s Brady claim regarding the Frazier
documents, concluding that the state court had adopted an
unreasonably narrow reading of Brady. The Pennsylvania
Supreme Court had held that the prosecution did not violate
Brady by failing to disclose the Frazier documents because
Dennis did not show that the documents were admissible and
material. The District Court rejected the assertion that
inadmissible evidence cannot be the basis of a Brady claim,
reasoning that the United States Supreme Court has never
stated such a rule and that most circuit courts, including the
Third Circuit, have held to the contrary. Id. at 503.
Additionally, that the United States Supreme Court proceeded
with the Brady analysis after acknowledging that the
polygraph results at issue in Wood v. Bartholomew, 516 U.S.
1 (1995), were not admissible indicated to the District Court
that there is no admissibility requirement for Brady evidence.
Dennis V, 966 F. Supp. 2d at 503.

        The Pennsylvania Supreme Court had also held that
the prosecution need not disclose every “fruitless lead” in
order to comply with Brady. The District Court determined
that this conclusion was unreasonable under Kyles. The
Frazier documents contained “internal markers of credibility,”
such as a description of the victim as “Kev[’s] . . . girl,”
which was accurate, an admission to shooting the victim in
the correct location on her body, and a description of the
alleged perpetrators that matched other descriptions of the
shooter more closely than Dennis did. Id. at 504. The
District Court reasoned that the Frazier documents would
have led to further investigation that could have proved vital
to the defense and could have been used to impeach the police




                             27
investigation or provide a defense that another person
committed the murder. Id. at 505.

        Lastly, the District Court granted habeas relief on the
basis of Dennis’s claim that the Commonwealth violated
Brady when it withheld the police activity sheet containing
Howard’s inconsistent statements.          The District Court
concluded that the Pennsylvania Supreme Court had
unreasonably applied Brady and its progeny in rejecting the
Howard Brady claim. First, the Pennsylvania Supreme Court
had unreasonably dismissed the impeachment value of the
evidence and incorrectly concluded that cross-examination of
Howard rendered new impeachment evidence immaterial.
The District Court noted that the United States Supreme
Court has directly rejected the notion that there can be no
Brady claim relating to impeachment evidence where a
witness was already impeached with other information. See
Banks v. Dretke, 540 U.S. 668, 702 (2004) (rejecting the
state’s argument that no Brady violation occurred because the
witness was “heavily impeached at trial,” where the withheld
evidence was the only impeachment evidence that the witness
was a paid informant).15 The District Court emphasized that,
although Howard was cross-examined at trial, she was not
impeached. Dennis V, 966 F. Supp. 2d at 514–15. Second,
the District Court concluded that the Pennsylvania Supreme
Court had incorrectly applied a sufficiency of the evidence
test in direct contravention of Kyles’s directive that Brady
material be viewed in light of all of the evidence. Rather, the

      15
          The parenthetical language here is a direct quote
from the parenthetical used by the District Court in its
description of Banks. See Dennis V, 966 F. Supp. 2d at 514–
15.




                              28
state court should have focused on whether the defendant
received a fair trial in the absence of the disclosed evidence.
Id. at 516. Finally, the District Court found it unreasonable
that the state court had failed to consider the effect of the
evidence on trial counsel’s investigation, pretrial preparation,
decision to interview or call certain witnesses, or the effect of
cross-examining detectives on their investigation into
Howard. Given that the police themselves thought it was
important to follow up with Howard about her possible
statements to Pugh, the District Court concluded it was clear
that the lead was material from an investigatory point of view.
Id.

       The District Court also concluded that the
Pennsylvania Supreme Court had failed to undertake a
cumulative materiality analysis as required by Kyles. Id. at
517–18. It did not rule on Dennis’s remaining claims. Id. at
491, 501 n.19 & 510 n.27. The Commonwealth filed a timely
notice of appeal.

       A panel of this Court issued an opinion on February 9,
2015. Dennis v. Sec’y, Pa. Dep’t of Corr., 777 F.3d 642 (3d
Cir. 2015). This opinion was vacated and rehearing en banc
was granted on May 6, 2015.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §§
2241 and 2254 over Dennis’s habeas corpus petition. This
Court has appellate jurisdiction under 28 U.S.C §§ 1291 and
2253. The District Court based its decision on a review of the
state court record and did not conduct an evidentiary hearing,
so our review of its order is plenary and we apply the same




                               29
standard the District Court applied. Branch v. Sweeney, 758
F.3d 226, 232 (3d Cir. 2014); Brown v. Wenerowicz, 663 F.3d
619, 627 (3d Cir. 2011).
       The Antiterrorism and Effective Death Penalty Act
(AEDPA) dictates the manner in which we conduct our
review. Federal habeas courts cannot grant relief “with
respect to any claim that was adjudicated on the merits in
State court” unless the adjudication (1) “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).

       Under § 2254(d)(1), “clearly established federal law”
means “the governing legal principle or principles set forth by
the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).
It “refers to the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 412
(2000). AEDPA allows federal courts to grant habeas relief
only if the state court decision is contrary to, or an
unreasonable application of, clearly established federal law.
28 U.S.C. § 2254(d)(1).

       A state court decision is “contrary to” clearly
established federal law if the state court (1) “applies a rule
that contradicts the governing law” set forth in Supreme
Court precedent or (2) “confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different” from that




                              30
reached by the Supreme Court. Williams, 529 U.S. at 405–
06. Interpreting Supreme Court precedent in a manner that
adds an additional element to the legal standard for proving a
constitutional violation is “contrary to” clearly established
federal law. Id. at 393–94, 397 (reasoning that the Virginia
Supreme Court’s interpretation of Strickland v. Washington,
466 U.S. 668 (1984), which increased the burden on
petitioners, was “contrary to” Supreme Court precedent).

       A state court decision is an “unreasonable application
of federal law” if the state court “identifies the correct
governing legal principle,” but “unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413. A
strong case for habeas relief “does not mean the state court’s
contrary conclusion was unreasonable.”            Harrington v.
Richter, 562 U.S. 86, 102 (2011). Habeas relief may not be
granted on the basis that the state court applied clearly
established law incorrectly; rather, the inquiry is “whether the
state court’s application of clearly established federal law was
objectively unreasonable.”       Williams, 529 U.S. at 409
(emphasis added).        A rule’s unreasonable application
corresponds to the specificity of the rule itself: “[t]he more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Richter, 562 U.S.
at 101 (internal quotation marks and citation omitted). “A
state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s decision.” Id.
(internal quotation marks omitted).

       Finally, under 28 U.S.C. § 2254(d)(2), a state court
decision is based on an “unreasonable determination of the
facts” if the state court’s factual findings are “objectively




                              31
unreasonable in light of the evidence presented in the state-
court proceeding,” which requires review of whether there
was sufficient evidence to support the state court’s factual
findings. See Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). Determinations of factual issues made by state courts
are presumed to be correct. 28 U.S.C. § 2254(e)(1); Miller-
El, 537 U.S. at 340. However, “[d]eference does not by
definition preclude relief. A federal court can disagree with a
state court’s credibility determination and, when guided by
AEDPA, conclude the decision was unreasonable or that the
factual premise was incorrect by clear and convincing
evidence.” Miller-El, 537 U.S. at 340.

        Judges Fisher and Hardiman advance an interpretation
of Richter that far exceeds its reach. Further, their approach
would have the federal habeas courts “rewrite” state court
opinions, as Judge Jordan’s thorough concurrence observes.
We recognize that the AEDPA standard is “difficult to meet .
. . because it was meant to be. As amended by AEDPA, §
2254(d) stops short of imposing a complete bar on federal-
court relitigation of claims already rejected in state
proceedings.” Richter, 562 U.S. at 102. The highly
deferential standard “reflects the view that habeas corpus is a
guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction
through appeal.” Id. at 102–03 (internal quotation marks
omitted). This level of deference stems from deep-rooted
concerns about federalism. Williams, 529 U.S. at 436 (noting
that Congress intended to “further the principles of comity,
finality, and federalism” in passing AEDPA). That said,
Richter and its progeny do not support unchecked speculation
by federal habeas courts in furtherance of AEDPA’s goals.
While we must give state court decisions “the benefit of the




                              32
doubt,” as Judge Fisher recognizes, federal habeas review
does not entail speculating as to what other theories could
have supported the state court ruling when reasoning has been
provided, or buttressing a state court’s scant analysis with
arguments not fairly presented to it. Make no mistake about
it, the Dissents justify the state court ruling based on an
argument never presented to it. No case decided by our court
or the United States Supreme Court permits this approach.
We now write to clarify how we interpret the Supreme
Court’s jurisprudence as to when and how federal courts
ought to “fill the gaps” in state court opinions on federal
habeas review subject to AEDPA.

       The United States Supreme Court has clearly laid out
the analytical path for federal habeas courts confronted with a
state court opinion devoid of reasoning—i.e., a bare ruling.
When a state court decision lacks reasoning, the Supreme
Court instructed habeas courts to “determine what arguments
or theories supported or, as here, could have supported, the
state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of this Court.” Richter, 562 U.S. at 102
(emphasis added). Richter is that case. This is not.

       In Richter, the Court faced the question of whether
AEDPA deference “applies when a state court’s order is
unaccompanied by an opinion explaining the reasons relief
has been denied.” Id. at 98. The United States Supreme
Court admonished the Ninth Circuit’s de novo review of the
California Supreme Court’s one-sentence summary denial of
petitioner’s claim under Strickland, and held that state court
decisions that are devoid of reasoning, i.e., a bare ruling,




                              33
constitute adjudications on the merits that trigger AEDPA
deference. Richter, 562 U.S. at 98 (“[T]he habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief. This is so whether or
not the state court reveals which of the elements in a multipart
claim it found insufficient . . . .”). In other words, state courts
need not articulate a statement of reasons to invoke AEDPA
deference by federal habeas courts. Id. (“[D]etermining
whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state
court’s reasoning.”). The California Supreme Court had
provided no reasoning; accordingly, in order to determine
whether the state court had made a decision that was contrary
to, or involved an unreasonable application of, clearly
established federal law, or an unreasonable determination of
fact, the federal habeas court was required to theorize based
on what was presented to the state court.

        We suggest that the concept of “gap filling” is fairly
limited. It should be reserved for those cases in which the
federal court cannot be sure of the precise basis for the state
court’s ruling. It permits a federal court to defer while still
exploring the possible reasons. It does not permit a federal
habeas court, when faced with a reasoned determination of
the state court, to fill a non-existent “gap” by coming up with
its own theory or argument, let alone one, as here, never
raised to the state court. In Premo v. Moore, 562 U.S. 115
(2011), decided on the same day as Richter, the state court
had concluded that the petitioner had not received ineffective
assistance of counsel under Strickland, but did not specify on
which Strickland prong—performance or prejudice—
petitioner failed to meet his burden. As in Richter, the




                                34
Supreme Court instructed the Ninth Circuit to assume “that
both findings would have involved an unreasonable
application of clearly established federal law.” 562 U.S. at
123. Unsure as to which prong formed the basis for the state
court’s ruling, the federal court could fill the gap by exploring
the two prongs of Strickland.

       In contrast, when the state court pens a clear, reasoned
opinion, federal habeas courts may not speculate as to
theories that “could have supported” the state court’s
decision. The Supreme Court established this limitation on
Richter “gap filling” in Wetzel v. Lambert, 132 S. Ct. 1195
(2012), where it described the proper analytical path for state
court decisions accompanied by reasoning:

       Under § 2254(d), a habeas court must determine
       what arguments or theories supported . . . the
       state court’s decision; and then it must ask
       whether it is possible fairminded jurists could
       disagree that those arguments or theories are
       inconsistent with the holding in a prior decision
       of this Court.

Id. at 1198 (quoting Richter, 562 U.S. at 102; alterations in
original; emphasis added). This is fairly straightforward. As
explained above, the Court in Richter included the language
“or, as here, could have supported” when it initially instructed
courts on gap filling. Courts were tasked with considering
what theories “could have supported” the state court decision
in cases akin to those “as here,” or, summary denials.
Removing the clause “or, as here, could have supported” from
the instruction when the state court provides a fully-reasoned
decision removed the task of speculative gap-filling from the




                               35
habeas court’s analysis. Instead, federal habeas courts
reviewing reasoned state court opinions are limited to “those
arguments or theories” that actually supported, as opposed to
“could have supported,” the state court’s decision. The
Supreme Court’s intent to limit deference to the state court to
those reasons that it articulated in its opinion is further
supported by the Supreme Court’s instruction that the court
on remand consider whether “each ground supporting the
state court decision is examined and found to be unreasonable
under AEDPA.” Id. at 1199.

       When a state court ruling is based on a reasoned, but
erroneous, analysis, federal habeas courts are empowered to
engage in an alternate ground analysis—relying on any
ground properly presented—but, in such a case, the federal
court owes no deference to the state court. In Lafler v.
Cooper, 132 S. Ct. 1376 (2012), the state court had “simply
found that respondent’s rejection of the plea was knowing and
voluntary” in rejecting defendant’s ineffective counsel claim
and “failed to apply Strickland,” despite referencing the
performance and prejudice prongs of Strickland in its opinion.
Id. at 1390. “By failing to apply Strickland to assess the
ineffective-assistance-of-counsel claim respondent raised, the
state court’s adjudication was contrary to clearly established
federal law” and the Supreme Court analyzed the Strickland
claim de novo. Id. at 1390. The Court was not filling a gap
in Lafler. Instead, it was employing different analysis that
was very much a part of the case, and supplied an alternate
ground for concluding, on de novo review, that there was no
ineffectiveness of counsel.

      Justices of the Supreme Court have indicated in a
concurrence from the denial of a petition for certiorari that




                              36
federal courts are bound to the text of state court opinions.
Justice Ginsburg, joined by Justice Kagan, observed

       Richter’s hypothetical inquiry was necessary,
       however, because no state court opinion
       explained the reasons relief had been denied. In
       that circumstance, a federal habeas court can
       assess whether the state court’s decision
       involved an unreasonable application of clearly
       established Federal law only by hypothesizing
       reasons that might have supported it. But
       Richter makes clear that where the state court’s
       real reasons can be ascertained, the § 2254(d)
       analysis can and should be based on the actual
       arguments or theories that supported the state
       court’s decision.

Hittson v. Chatman, 135 S. Ct. 2126, 2127–28, reh’g denied,
136 S. Ct. 15 (2015) (mem.) (internal quotation marks,
alterations, and citations omitted). Other courts of appeals
have similarly limited Richter’s gap-filling instruction to the
bare ruling situation. See Johnson v. Sec’y, DOC, 643 F.3d
907, 910 (11th Cir. 2011) (“When faced with an ineffective
assistance of counsel claim that was denied on the merits by
the state courts, a federal habeas court ‘must determine what
arguments or theories supported or, [if none were stated],
could have supported, the state court’s decision[.]”(alterations
in original) (quoting Richter, 562 U.S. at 102)); see also
Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 525–26
(4th Cir. 2016) (“looking through” a state court summary
refusal to hear an appeal to the prior reasoned decision and
observing that “where there is no indication of the state
court’s reasoning, a federal habeas petitioner must show that




                              37
there was ‘no reasonable basis for the state court to deny
relief,’ and a federal habeas court must defer under AEDPA
to any reasonable ‘arguments or theories . . . [that] could have
supported[ ] the state court’s decision’” (quoting Richter, 562
U.S. at 98, 102) (internal citations omitted; alterations in
original)); Montgomery v. Bobby, 654 F.3d 668, 700 (6th Cir.
2011) (Clay, J., dissenting) (“If the state court articulated its
reasons, the habeas court must identify and evaluate those
reasons under § 2254(d); only if the state court did not
articulate its reasons must the habeas court hypothesize as to
the state court’s reasoning, and evaluate those hypothetical
reasons.”).      Federal courts should only gap-fill when
presented with a bare ruling or when it is unsure as to the
basis of the state court ruling on the issue presented. See
Premo, 562 U.S. at 123 (concluding that when the state court
neglected to articulate which prong of Strickland was
deficient, the federal habeas court ought to evaluate both
prongs of Strickland). We will not gap-fill when the state
court has articulated its own clear reasoning. Instead, we will
evaluate the state court’s analysis and review de novo any
properly presented alternative ground(s) supporting its
judgment.

       Dennis’s claims at issue on appeal stem from the
Commonwealth’s violations of Brady v. Maryland, 373 U.S.
83 (1963). Prosecutors have an affirmative duty “to disclose
[Brady] evidence . . . even though there has been no request
[for the evidence] by the accused,” which may include
evidence known only to police. Strickler v. Greene, 527 U.S.
263, 280 (1999); Kyles, 514 U.S. at 438. To comply with
Brady, prosecutors must “learn of any favorable evidence
known to the others acting on the government’s behalf . . .,




                               38
including the police.’’ Strickler, 527 U.S. at 281 (internal
quotation marks omitted) (quoting Kyles, 514 U.S. at 437).

       To prove a Brady violation, a defendant must show the
evidence at issue meets three critical elements. First, the
evidence “must be favorable to the accused, either because it
is exculpatory, or because it is impeaching.” Id. at 281–82;
see also United States v. Bagley, 473 U.S. 667, 676 (1985)
(“Impeachment evidence . . ., as well as exculpatory
evidence, falls within the Brady rule.”). Second, it “must
have been suppressed by the State, either willfully or
inadvertently.” Strickler, 527 U.S. at 282. Third, the evidence
must have been material such that prejudice resulted from its
suppression. Id.; see also Banks, 540 U.S. at 691. The
“touchstone of materiality is a ‘reasonable probability’ of a
different result.” Kyles, 514 U.S. at 434. Materiality “does
not require demonstration by a preponderance that disclosure
of the suppressed evidence would have resulted ultimately in
the defendant’s acquittal . . . [Rather], [a] ‘reasonable
probability’ of a different result is . . . shown when the
government’s evidentiary suppression undermines confidence
in the outcome of the trial.” Id. (internal quotation marks
omitted).

III.   Discussion

        The District Court held that the Pennsylvania Supreme
Court had unreasonably applied Brady and its progeny in
rejecting Dennis’s claims that the prosecution was required
under Brady to disclose the Cason receipt, the Frazier
documents, and the police activity sheet containing Howard’s
inconsistent statements. The Pennsylvania Supreme Court
issued a thorough decision on each claim. We conclude, like




                              39
the District Court, that the Pennsylvania Supreme Court’s
decisions regarding Dennis’s Brady claims rested on
unreasonable conclusions of fact and unreasonable
applications of clearly established law, or were contrary to
United States Supreme Court precedent. We will affirm the
District Court and grant habeas relief on Dennis’s Brady
claims based on the Cason receipt, the Howard police activity
sheet, the Frazier documents, and their cumulative prejudice.

       A.     Cason Receipt

              1.     Facts

        The Commonwealth did not disclose the DPW receipt
that was in the police’s possession, provided objective
impeachment evidence of a key Commonwealth witness, and
bolstered Dennis’s alibi. Cason signed the DPW receipt
when she picked up her check on October 22, 1991, the day
of Williams’s murder. The receipt’s time stamp shows Cason
picked up a $94.00 payment for “public assistance” at
“13:03,” or 1:03 p.m. During Dennis’s direct appeal, Cason
signed an affidavit detailing her recollection of the interview
she had with police prior to Dennis’s trial. According to
Cason, detectives brought a copy of the time-stamped receipt
to the interview, and she “located and gave the detective [her]
pink copy of the same receipt. The detective kept [her] copy
of the receipt.” App. 1735.

        The Commonwealth called Cason to testify at Dennis’s
trial. She testified that she left work around 2:00 p.m., picked
up her welfare check, ran errands, and saw Dennis when she
got off the K bus “between 4:00 and 4:30.” App. 733. The
receipt serves two functions: (1) it negates her testimony that




                              40
she worked until 2:00 p.m. on October 22; and (2) it
demonstrates that, contrary to Cason’s testimony at trial that
she retrieved her receipt after 3:00 p.m., Cason actually
picked up her check at 1:03 p.m. Cason admits in her
affidavit that she “may have thought that the 13:03, which
was on the receipt, was 3:03 p.m.” App. 1736. In light of the
time-stamped receipt, Cason explained in her affidavit, she
“would have seen [James] Dennis between 2:00 and 2:30 p.m.
at the Abbottsford Homes, and not 4:00 to 4:30 that is in my
statement.” Id.

             2.     State Court Decision

        The Pennsylvania Supreme Court rejected Dennis’s
Brady claim stemming from the Cason receipt. The Court
found, consistent with Cason’s affidavit, that the “police
came into possession of a Department of Public Welfare
(DPW) receipt showing that Cason cashed her check at 1:03
p.m.” Dennis I, 715 A.2d at 408. In denying Dennis’s
ineffective assistance of counsel claim, the Court held that
Cason’s new version of events “would not support [Dennis’s]
alibi [] because the murder occurred at 1:50 p.m., forty
minutes earlier than Cason’s earliest estimate” of when she
saw Dennis. Id. The Court further held that the corrected
testimony “would have been cumulative of testimony of
witness Willis Meredith, who testified that he saw [Dennis] at
the Abbottsford Homes at approximately 2:15 to 2:30 p.m.”
Id. The Court dismissed the Brady claim because the receipt
was “not exculpatory, because it had no bearing on [Dennis’s]
alibi, and there [was] no evidence that the Commonwealth
withheld the receipt from the defense.” Id.




                             41
              3.     AEDPA Review

       The state court ruling was a reasoned ruling that the
District Court could understand; no gaps needed to be filled.
Dennis was entitled to habeas relief based on the Cason
Brady claim only if he could demonstrate that the decision
was an unreasonable application of, or contrary to, clearly
established law, or an unreasonable determination of the
facts. 28 U.S.C. § 2254(d). Addressing the reasoned view of
the Pennsylvania Supreme Court, we conclude that it
unreasonably applied Brady and its progeny in evaluating the
Cason receipt and made unreasonable determinations of fact.
The receipt would have served as independent documentary
corroboration of a key witness for Dennis’s alibi defense, and
suppression by the Commonwealth violated Brady.

                     a) Favorability

       The Cason receipt provided exculpatory and
impeachment evidence that would have bolstered Dennis’s
alibi defense at trial, so it easily meets Brady’s first prong.
Banks, 540 U.S. at 691 (stating that both impeachment and
exculpatory evidence satisfy the first Brady prong).

        The Pennsylvania Supreme Court erred by failing to
recognize the impeachment value of the Cason receipt, which
would have provided documentary evidence that Cason
testified falsely at trial. The United States Supreme Court has
made plain that impeachment evidence may be considered
favorable under Brady even if the jury might not afford it




                              42
significant weight. See Kyles, 514 U.S. at 450–51 (rejecting
the state’s argument that the evidence was “neither
impeachment nor exculpatory evidence” because the jury
might not have substantially credited it; according to the
Court, “[s]uch [an] argument . . . confuses the weight of the
evidence with its favorable tendency”).16

       Dennis’s defense strategy pitted his credibility, and
that of his witnesses, against eyewitness credibility, Cason’s
testimony, and the testimony of the other prosecution
witnesses. No physical evidence was admitted at trial.
Evidence that challenged Dennis’s credibility, or that of other
defense witnesses like his father, was therefore particularly
crucial to the outcome of the trial. As the District Court aptly
noted:

       Armed with the receipt, Dennis’s counsel—at
       the very least—would have been able to show
       that Cason was mistaken about the timing of the
       afternoon, by pointing out that she could not
       possibly have worked until 2 p.m. since she was
       at the DPW center at 1:03 p.m. . . . The time
       stamped receipt would have directly
       contradicted [Cason’s testimony that she didn’t
       get off work until 2:00 p.m.].

Dennis V, 966 F. Supp. 2d at 508. Without evidence to
challenge the veracity of Cason’s testimony, Dennis’s
assertion that he saw Cason as he got off the K bus lost


       16
         This framing of Kyles was taken from Lambert v.
Beard, 537 F. App’x 78, 86 (3d Cir. 2013).




                              43
significant credibility, as did his father’s corroboration of
Dennis’s version of his timeline.

       Further, the Pennsylvania Supreme Court erroneously
concluded that the receipt was not exculpatory because it did
not affect Dennis’s alibi. Dennis I, 715 A.2d at 408. It held
that Cason’s revised recollection of the day “would not
support [Dennis’s] alibi [] because the murder occurred at
1:50 p.m., forty minutes earlier than Cason’s earliest
estimate.” Id. This conclusion fails to recognize how
Cason’s corrected testimony corroborates testimony provided
by Dennis and other witnesses, namely, his father.

       The Commonwealth argues that the Pennsylvania
Supreme Court reasonably concluded that the receipt did not
require disclosure pursuant to Brady because Cason’s
corrected testimony would not have made it impossible for
Dennis to have been at Fern Rock station when Williams was
murdered. Cason’s affidavit stated that she saw Dennis at
2:30 p.m. at Abbottsford Homes. The Commonwealth
contends that Dennis could have committed the murder at
Fern Rock at 1:50 p.m. and returned to Abbottsford Homes
by 2:30 p.m. because the shooter entered a waiting getaway
car after the murder and it was a thirteen minute drive
between the two. This view unreasonably discounts the
buttressing effect Cason’s corrected testimony would have on
Dennis’s alibi theory. Although Cason’s corrected testimony,
assuming it would mirror precisely what she said in her
affidavit, would not definitively place Dennis in a location
where it was impossible for him to commit the murder,
Cason’s testimony would have strengthened Dennis’s and his
father’s testimony that Dennis had been with his father that
afternoon and was on the bus at the time of the murder.




                             44
       Validating Dennis’s and his father’s testimony about
his alibi on the day in question is sufficient to demonstrate
favorability under Brady. Exculpatory evidence need not
show defendant’s innocence conclusively. Under Brady,
“[e]xculpatory evidence includes material that goes to the
heart of the defendant’s guilt or innocence as well as that
which may well alter the jury’s judgment of the credibility of
a crucial prosecution witness.” United States v. Starusko, 729
F.2d 256, 260 (3d Cir. 1984) (citing Giglio v. United States,
405 U.S. 150, 154 (1972)). That Cason’s corrected testimony
does not wholly undermine the prosecution’s theory of guilt
does not sap its exculpatory value. The Commonwealth had
an obligation to disclose the receipt under Brady because it
would have altered the jury’s judgment about Cason’s
credibility. Cason’s evidence is not favorable simply because
of where Cason said she saw Dennis as corrected in her
affidavit—at Abbottsford Homes. Rather, as Dennis argues,
the exculpatory value lies in corroborating testimony of
witnesses at trial who otherwise received little objective
reinforcement, and whose credibility, as a result of Cason’s
mistaken testimony in the absence of the receipt, was
seriously undermined.

        The only discrepancy between Cason’s testimony and
the alibi established by Dennis and his father was the precise
time Cason and Dennis saw one another—Cason claimed to
have seen Dennis around 4:00 or 4:30 p.m., while Dennis said
it was around 2:30 p.m. As both parties note, the other
witnesses that testified on behalf of Dennis were friends and
family, who were vulnerable to arguments of bias. To the
contrary, Cason offered disinterested testimony that
corroborated the government’s theory.          Although the




                             45
Commonwealth indicates that Cason could have been
discredited in a similar manner as Dennis’s other witnesses,
nothing in the record indicates that Cason shared the type of
close relationship with Dennis as other witnesses who
testified on his behalf.

       The receipt contradicted Cason’s testimony at trial.
Her corrected recollection, coupled with a specific
documentary basis, would have provided disinterested
corroboration of Dennis’s and his father’s testimony. The
Pennsylvania Supreme Court made an unreasonable
determination of the facts and an unreasonable application of
federal law in refusing to acknowledge the receipt’s
exculpatory and impeachment value.

                    b) Suppression of the receipt

       The Pennsylvania Supreme Court stated that “the
police came into possession of [the] receipt” when
interviewing Cason. Dennis I, 715 A.2d at 408. Later, in a
section analyzing materiality, it concluded there was “no
evidence that the Commonwealth withheld the receipt from
the defense.” Id. The Pennsylvania Supreme Court provided
no explanation for its latter statement, and we cannot be sure
whether the court was assessing the facts or interpreting the
law. If it was construing fact, it was clearly unreasonable
because the police had the receipt and therefore so did the
prosecution.17 See Kyles, 514 U.S. at 437–38. If it was

      17
          The Commonwealth argues on appeal that the
Pennsylvania Supreme Court did not make a factual finding
and that the statement that the police had the receipt was
merely framing for the later substantive discussion. In Bobby




                             46
making a conclusion of law as to the duty to disclose, the
conclusion is similarly problematic because the court ignored
Kyles. As Judge Jordan observes in his concurrence, “[i]f one
follows the instruction of Kyles, those two statements are
impossible to harmonize.” J. Jordan Concurring Op. at 16.

       Once the Pennsylvania Supreme Court determined that
the police detectives had obtained the receipt from Cason, the
Commonwealth had constructive possession and was required
to disclose the receipt to Dennis prior to trial. In 1995, three
years prior to the Pennsylvania Supreme Court’s decision, the
United States Supreme Court explained this duty:

       [T]he prosecution, which alone can know what
       is undisclosed, must be assigned the consequent
       responsibility to gauge the likely net effect of
       all [favorable] evidence and make disclosure
       when the point of “reasonable probability” is
       reached. This in turn means that the individual
       prosecutor has a duty to learn of any favorable
       evidence known to the others acting on the
       government’s behalf in the case, including the
       police. But whether the prosecutor succeeds or


v. Bies, 556 U.S. 825 (2009), cited in support by the
Commonwealth, the Supreme Court held that a state court’s
alleged factual finding could not support issue preclusion
because there was no evidence that the alleged state court
finding was supported by the record at trial or on appeal and
further was not necessary to the judgments made by the state
court. Bies bears no relation to our case where there is ample
evidence in the record that the police took possession of the
receipt, as attested by Cason herself.




                              47
      fails in meeting this obligation (whether, that is,
      a failure to disclose is in good faith or bad
      faith), the prosecution’s responsibility for
      failing to disclose known, favorable evidence
      rising to a material level of importance is
      inescapable.

Kyles, 514 U.S. at 437–38 (internal quotation marks and
citation omitted).     In ignoring Kyles’s instruction that
prosecutors must disclose evidence obtained by the police, the
Pennsylvania Supreme Court unreasonably applied clearly
established federal law. The Commonwealth’s argument that
the receipt did not appear in the prosecution file does nothing
to undercut its duty to disclose under Kyles and, as the
District Court correctly notes, borders on bad faith. It
explained:

      The Commonwealth admits that the entire
      homicide file—where one may expect a
      document recovered by the police to exist—
      went missing in March 1997, before the
      Commonwealth had submitted its direct appeal
      briefing. The Commonwealth may not point to
      a missing file and declare it the petitioner’s
      burden to prove that the receipt was, at one
      point, contained inside.

Dennis V, 966 F. Supp. 2d at 509 (citation omitted). The
Commonwealth has never asserted that it disclosed the receipt
to Dennis. We refuse to allow it to evade its duty under
Brady based on failure to adequately search or maintain its
own files.




                              48
        The Commonwealth argues that because Dennis’s
appellate counsel was able to obtain the receipt from the
DPW nearly five years post-trial, the prosecution had no
responsibility under Brady to turn it over to defense counsel
when the receipt came into its possession. Judge Fisher
adopts this approach and excuses the Commonwealth from its
Brady responsibility by injecting an argument that was not
even mentioned by the Pennsylvania Supreme Court, much
less fairly presented before it.

        The Commonwealth did not raise a       “due diligence”
argument, as such, before the state court.       Rather, in its
Response to Defendant’s Reply Brief, the       Commonwealth
argued for the first time that there was no    Brady violation
because the receipt was publicly available.    The entirety of
the alleged due diligence argument is below.

       [A]lthough defendant does not explain how he
      obtained a copy of [the Cason receipt], he
      presumably did so from the Department of
      Public Welfare, thus establishing its public
      availability.    Brady does not require the
      Commonwealth to produce evidence that was
      not in its sole possession, but was available, as
      this document apparently was.

App. 2026. As Judge Jordan observes, Pennsylvania law
generally regards arguments raised for the first time in reply
briefs as waived. J. Jordan Concurring Op. at 16 n.9.

       Further, our review on habeas is limited to the record
as presented to the state court. See Cullen v. Pinholster, 563
U.S. 170, 181–82 (2011). There was no evidence regarding




                             49
the availability of the receipt. In fact, the Commonwealth’s
assertion that the receipt was publicly available was incorrect,
as it runs counter to specific Pennsylvania regulations in
effect at the time. As they existed during Dennis’s appeal, the
DPW’s privacy regulations protected the vast majority of
private information; the only exception was that the
Commonwealth may disclose “the address and amount of
assistance a person is currently receiving” following a direct
request about a specific person. 55 Pa. Code § 105.4(a)(1).
Even if the DPW receives a subpoena requesting information
about a recipient, it must challenge that demand and “plead,
in support of its request to withhold information, that under
the Public Welfare Code (62 P.S. §§ 101–1503), the rules of
the Department prohibit the disclosure of information in
records and files, including the names of clients, except as
provided in subsection (a).” Id. § 105.4(b)(3). To the extent
that information was publicly available regarding Cason’s
public assistance payments, it was limited to Cason’s address
and her amount of assistance, which is irrelevant to her
interaction with Dennis on the day of Williams’s murder.
Only the Commonwealth held information that would support
Dennis’s alibi—the time-stamped receipt Cason provided to
the police.

       Even if we were to imagine that a diligence argument
was presented and considered by the state court, the United
States Supreme Court has never recognized an affirmative
due diligence duty of defense counsel as part of Brady, let
alone an exception to the mandate of Brady as this would
clearly be. The Supreme Court has noted that its precedent
“lend[s] no support to the notion that defendants must
scavenge for hints of undisclosed Brady material when the
prosecution represents that all such material has been




                              50
disclosed.” Banks, 540 U.S. at 695. To the contrary, defense
counsel is entitled to presume that prosecutors have
“discharged their official duties.” Id. at 696 (quoting Bracy v.
Gramley, 520 U.S. 899, 909 (1997)). Further, the duty to
disclose under Brady is absolute—it does not depend on
defense counsel’s actions. United States v. Agurs, 427 U.S.
97, 107 (1976) (“[I]f the evidence is so clearly supportive of a
claim of innocence that it gives the prosecution notice of a
duty to produce, that duty should equally arise even if no
request is made.”). Brady’s mandate and its progeny are
entirely focused on prosecutorial disclosure, not defense
counsel’s diligence.

       The emphasis in the United States Supreme Court’s
Brady jurisprudence on fairness in criminal trials reflects
Brady’s concern with the government’s unquestionable
advantage in criminal proceedings, which the Court has
explicitly recognized. See, e.g., Strickler, 527 U.S. at 281
(reasoning that the “special status” of the prosecutor in the
American legal system, whose interest “in a criminal
prosecution is not that [he] shall win a case, but that justice
shall be done . . . explains . . . the basis for the prosecution’s
broad duty of disclosure” (quoting Berger v. United States,
295 U.S. 78, 88 (1935)). Construing Brady in a manner that
encourages disclosure reflects the Court’s concern with
prosecutorial advantage and prevents shifting the burden onto
defense counsel to defend his actions.              Requiring an
undefined quantum of diligence on the part of defense
counsel, however, would enable precisely that result—it
would dilute Brady’s equalizing impact on prosecutorial
advantage by shifting the burden to satisfy the claim onto
defense counsel.




                               51
       The focus on disclosure by the prosecutor, not
diligence by defense, is reiterated in the Supreme Court’s
approval of the shift in the traditional adversarial system
Brady imposes. In United States v. Bagley, the Court
explained that “[b]y requiring the prosecutor to assist the
defense in making its case, the Brady rule represents a limited
departure from a pure adversary model” because the
prosecutor is not tasked simply with winning a case, but
ensuring justice. 473 U.S. 667, 675 n.6 (1985). Further, the
Court placed the burden of obtaining favorable evidence
squarely on the prosecutor’s shoulders. See Kyles, 514 U.S.
at 437 (“[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government’s behalf in the case.”). That the government may
be burdened by the Brady rule does not undercut its need to
comply with it. The imposition of an affirmative due
diligence requirement on defense counsel would erode the
prosecutor’s obligation under, and the basis for, Brady itself.

       Indeed, the United States Supreme Court has cautioned
against such a rule. It has rejected the notion that defense
counsel’s diligence is relevant in assessing “cause” for the
failure to raise a Brady suppression issue in state court
proceedings. In Strickler, it reasoned that because counsel
was entitled to rely on the prosecutor fulfilling its Brady
obligation, and had no reason for believing it had failed to
comply, the failure to raise the issue earlier in habeas
proceedings was justified. See Strickler, 527 U.S. at 286–89.
Similarly here, the prosecutor’s duty is clear. Dennis’s
counsel was entitled to rely on the prosecutor’s duty to turn




                              52
over exculpatory evidence.18 Assessing whether he could or
should have discovered the receipt is beside the point.19

       In Banks, the Supreme Court explicitly rejected the
notion that “the prosecution can lie and conceal and the
prisoner still has the burden to . . . discover the evidence, so
long as the potential existence of a prosecutorial misconduct
claim might have been detected.” 540 U.S. at 696 (internal
quotation marks and citations omitted). Banks concluded that
“[a] rule . . . declaring ‘prosecutor may hide, defendant must
seek,’ is not tenable in a system constitutionally bound to
accord defendants due process.” Id.; see also United States v.
Tavera, 719 F.3d 705, 712 (6th Cir. 2013) (recognizing that
“the clear holding in Banks” does away with any belief that
Brady imposes a due diligence requirement on defense
counsel); Bell v. Bell, 512 F.3d 223, 242 (6th Cir. 2008)
(Clay, J., dissenting) (“The rule emerging from Strickler and
Banks is clear: Where the prosecution makes an affirmative


       18
          Dennis’s trial counsel asserted in an affidavit he “did
not specifically request a copy of the welfare check receipt
from the Commonwealth, because [he] did not know of its
existence,” but he had “[b]y formal motion . . . request[ed] all
exculpatory evidence be produced.” App. 1725.
       19
          The Tenth Circuit and the D.C. Circuit agree that
defense counsel’s knowledge is not at issue in Brady. Banks
v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995) (“[T]he
prosecution’s obligation to turn over the evidence in the first
instance stands independent of the defendant's knowledge. . . .
The only relevant inquiry is whether the information was
exculpatory.” (internal quotation marks omitted)); accord In
re Sealed Case, 185 F.3d 887, 896–97 (D.C. Cir. 1999).




                               53
representation that no Brady material exists, but in fact has
Brady material in its possession, the petitioner will not be
penalized for failing to discover that material.”).

       While we think that the United States Supreme Court
has made it clear that Brady requires the prosecution to turn
over all material favorable evidence in its possession, we
acknowledge that it is not totally frivolous under our Third
Circuit jurisprudence for the Commonwealth to have argued,
as it did here, that because defense counsel could or should
have discovered the Cason receipt with due diligence, the
prosecution was not required to disclose it.20 That is because
our case law, as we discuss below, is inconsistent and could
easily confuse. Thus, we need to clarify our position: the
concept of “due diligence” plays no role in the Brady
analysis.21 To the contrary, the focus of the Supreme Court

      20
           Surprisingly, several courts of appeals have
endorsed some form of a due diligence requirement. For a
comprehensive overview of common features of the diligence
rule and where it emerged, see Kate Weisburd, Prosecutors
Hide, Defendants Seek: The Erosion of Brady Through the
Defendant Due Diligence Rule, 60 UCLA L. Rev. 138, 141,
147–56 (2012). Common features include that the evidence
was equally available to the prosecution and the defense, that
the evidence was known by the defendant, and that the
relevant facts were accessible by the defendant. Id. at 153–
56.
      21
         The Second Circuit also recently recognized in a
habeas case that “[t]he [United States] Supreme Court has
never required a defendant to exercise due diligence to obtain
Brady material.” See Lewis v. Conn. Comm’r of Corr., 790




                             54
has been, and it must always be, on whether the government
has unfairly “suppressed” the evidence in question in
derogation of its duty of disclosure. See Gov’t of the V.I. v.
Mills, 821 F.3d 448, 460 n.10 (3d Cir. 2016) (“The critical
question in assessing constitutional error is to what extent a
defendant’s rights were violated, not the culpability of the
prosecutor.” (quoting Marshall v. Hendricks, 307 F.3d 36, 68
(3d Cir. 2002)).

         In Brady, the United States Supreme Court held “that
the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the
evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87 (emphasis added). Suppression is
“[t]he prosecution’s withholding from the defense of evidence
that is favorable to the defendant.” Suppression of Evidence,
Black’s Law Dictionary (10th ed. 2014). Inquiries into
prosecutorial suppression are, by nature, retrospective as to
the actions of the prosecutor—they do not place affirmative
duties on defense counsel pre-trial. Agurs, 427 U.S. at 108
(“[T]he prosecutor will not have violated his constitutional
duty of disclosure unless his omission is of sufficient
significance to result in the denial of the defendant’s right to a
fair trial.”).

       The government must disclose all favorable evidence.
Only when the government is aware that the defense counsel
already has the material in its possession should it be held to


F.3d 109, 121 (2d Cir. 2015). It retained its test for when
evidence is not “suppressed” for Brady purposes, however.
Id.




                               55
not have “suppressed” it in not turning it over to the defense.
Any other rule presents too slippery a slope. In United States
v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991), and United
States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984), we
opened the door to a due diligence exception to Brady.
Starusko, 729 F.2d at 262 (“‘[T]he government is not obliged
under Brady to furnish a defendant with information which he
already has or, with any reasonable diligence, he can obtain
himself.’” (quoting United States v. Campagnuolo, 592 F.2d
852, 861 (5th Cir.1979))). In Grant v. Lockett, 709 F.3d 224,
230–31 (3d Cir. 2013), we may have widened that opening
when we combined our conclusion that defense counsel was
constitutionally ineffective in violation of the defendant’s
rights with a finding that there was no Brady violation
because counsel clearly should have discovered the
prosecutor’s key witness’s criminal record and been aware
that he was on parole when the shooting occurred and when
he testified at trial. We did note in Grant that Grant himself
had obtained the witness’s criminal records while in custody,
but we did not rest our ruling on that fact.

       In Wilson v. Beard, 589 F.3d 651, 663–64 (3d Cir.
2009), we got it right. There we concluded that “[i]f the
prosecution has the obligation, pursuant to Perdomo, to notify
defense counsel that a government witness has a criminal
record even when that witness was represented by someone in
defense counsel’s office, the fact that a criminal record is a
public document cannot absolve the prosecutor of her
responsibility to provide that record to defense counsel.” Id.
(emphasis added) (internal quotation marks and citations
omitted). Thus, we held that a criminal record, which
arguably could have been discovered by defense counsel, is
suppressed if not disclosed. Defense counsel in Wilson




                              56
certainly had the ability to obtain the alleged Brady
material—a criminal record—by virtue of his legal training.
Yet we required disclosure pursuant to Brady. We also got it
right in Pelullo when we rejected defendant’s argument that
certain documents were Brady material and somehow
“suppressed” when the government had made the materials
available for inspection and they were defendant’s own
documents. Pelullo, 399 F.3d at 212 (“[T]he government
repeatedly made the warehouse documents available to [the
defendant] and his attorneys for inspection and copying.”).

        To the extent that we have considered defense
counsel’s purported obligation to exercise due diligence to
excuse the government’s non-disclosure of material
exculpatory evidence, we reject that concept as an
unwarranted dilution of Brady’s clear mandate. Subjective
speculation as to defense counsel’s knowledge or access may
be inaccurate, and it breathes uncertainty into an area that
should be certain and sure. See Weisburd, supra, at 164
(“[P]rosecutors . . . cannot accurately speculate about what a
defendant or defense lawyer could discover through due
diligence. Prosecutors are not privy to the investigation plan
or the investigative resources of any given defendant or
defense lawyer.”). The United States Supreme Court agrees.
It has recognized that ample disclosure is “as it should be”
because it “tend[s] to preserve the criminal trial, as distinct
from the prosecutor’s private deliberations, as the chosen
forum for ascertaining the truth about criminal accusations. . .
. The prudence of the careful prosecutor should not therefore
be discouraged.” Kyles, 514 U.S. at 439–40 (internal
citations omitted).




                              57
       All favorable material ought to be disclosed by the
prosecution. To hold otherwise would, in essence, add a
fourth prong to the inquiry, contrary to the Supreme Court’s
directive that we are not to do so. In Williams v. Taylor, the
Virginia Supreme Court had interpreted the Supreme Court’s
decision in Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)
“to require a separate inquiry into fundamental fairness even
when [petitioner] [was] able to show that his lawyer was
ineffective and that his ineffectiveness probably affected the
outcome of the proceeding.” 529 U.S. 362, 393 (2000). The
Court held that the Virginia Supreme Court’s imposition of
this additional test was an unreasonable application of, and
contrary to, Strickland v. Washington, 466 U.S. 668 (1984).
Williams, 529 U.S. at 393–94. Adding due diligence, whether
framed as an affirmative requirement of defense counsel or as
an exception from the prosecutor’s duty, to the well-
established three-pronged Brady inquiry would similarly be
an unreasonable application of, and contrary to, Brady and its
progeny.

       The Pennsylvania Supreme Court’s conclusion that the
prosecution did not withhold the Cason receipt was an
unreasonable application of law and fact. The receipt was in
its possession pursuant to Kyles and, under United States
Supreme Court precedent, it is clear that there is no additional
prong to Brady and no “hide and seek” exception depending
on defense counsel’s knowledge or diligence. See Banks, 540
U.S. at 696.

       c) Materiality

    Without a doubt, Dennis suffered prejudice due to the
Commonwealth’s failure to disclose the receipt. The defense




                              58
strategy was rooted in Dennis’s alibi that he was getting on
the K bus at the time of the murder. The Commonwealth’s
withholding of the receipt transformed a witness who would
otherwise have been an alibi witness for Dennis into a witness
for the prosecution or, at least, left Dennis powerless to
impeach Cason’s false testimony if offered by the
prosecution. The state court’s conclusion that Dennis
suffered no prejudice is an unreasonable determination of fact
and law.

       Failure to disclose the Cason receipt made testimony
by a key government witness, who provided the sole
testimony contradicting Dennis’s alibi, unassailable. The
Commonwealth highlighted how weighty Cason’s testimony
was at trial. In his opening, referring to Cason as simply a
“lady from the neighborhood,” ADA King emphasized the
discrepancy between Cason’s and Dennis’s testimony:
“[Cason] had something very interesting to say. Yeah, I saw
him when I was on the bus, but it wasn’t 2:00, it was 4:00.”
App. 404. At closing, King reiterated the inconsistencies
between Cason’s and Dennis’s testimony, and added that
“[the Commonwealth] called her, not the defense. She came
in and said, I was at work at 2:00. I saw him somewhere
between 4:00 and 4:30. Try again, Jimmy. That one didn’t
work.” App. 1209. Disclosure of the receipt would have
given defense counsel evidence to demonstrate that Cason
falsely testified when she asserted that she worked until 2:00
p.m. on October 22. Disclosure would have allowed defense
counsel to undermine Cason’s credibility or would have
caused her to correct her testimony—as she did later in an
affidavit—so as to support Dennis’s version of events.
Impeachment using the receipt may have caused Cason to
explain to the jury that her prior testimony rested on a




                             59
misunderstanding of military time and allowed Cason to
correct her timeline during trial. More likely, the prosecution
would not have called Cason at all, and Dennis would have
called Cason to corroborate his testimony.22 Finally, ADA
King would not have, at closing, been able to point out the
inconsistencies between Dennis’s and Cason’s testimonies.

       Cason’s uncorrected testimony left the jury with
conflicting stories as to Dennis and Cason’s interactions on
the day of the murder. Following Cason’s testimony that she
could not have seen Dennis between 2:00 and 2:30 p.m.,
Dennis qualified his trial testimony and said that he only
“thought” he saw Cason. App. 1030. During closing,
Dennis’s counsel told the jury, “Remember what [Dennis]
told you when he got up there? It’s wrong. He didn’t see
[Cason] on the bus. He thought he saw her on the bus, but he
didn’t.” App. 1179–80. The District Court thoughtfully
explained how Dennis’s uncorrected testimony damaged
defense counsel’s strategy:

      This scrambled explanation left the jury with
      two options, equally unhelpful to Dennis:
      believe that Cason and Dennis had seen each
      other on the bus, as both testified, but that it
      happened later than Dennis said—and therefore
      find no alibi for the time of the crime; or believe
      counsel’s new story that Dennis was on the
      earlier bus, and thus could not have committed

      22
          The Commonwealth concedes that if it had the
receipt, Cason would have provided little value to the
prosecution and they would not have called her. Indeed,
Dennis probably would have.




                              60
      the crime, but never saw Cason at all. Cason’s
      corrected testimony would have transformed
      Cason from a damaging Commonwealth
      witness to a uniquely powerful, disinterested
      defense witness who would provide document-
      supported corroboration for Dennis’[s] alibi. . . .

Dennis V, 966 F. Supp. 2d at 512. The impeachment value
the receipt provided would have eliminated the conflicting
stories for the jury and, given the weight of Cason’s
testimony alleged by the prosecution at trial, could have
raised significant doubt about Dennis’s guilt. The state
court’s determination that Dennis did not suffer prejudice as a
result of Cason’s unchallenged testimony was unreasonable.
In concluding that the Commonwealth had evidence that its
witness’s testimony was false, we need not reach whether the
prosecutors here intentionally presented false evidence
because the inquiry is solely the impact that the absence of
evidence had on the trial. See Brady, 373 U.S. at 87; Mills,
821 F.3d at 460 n.10.

       In Banks, the United States Supreme Court
admonished prosecutors for letting statements by an
informant, which they believed to be false, stand uncorrected
throughout the proceedings. The Court concluded that
“prosecutors represented at trial and in state postconviction
proceedings that the State had held nothing back . . . It was
not incumbent on Banks to prove these representations false;
rather, Banks was entitled to treat the prosecutor’s
submissions as truthful.” 540 U.S. at 698. Earlier Brady
cases indicate similar concern for allowing false testimony.
See, e.g., Agurs, 427 U.S. at 103 (“[C]onviction obtained by
the knowing use of perjured testimony is fundamentally




                              61
unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the
judgment of the jury.”) (footnotes omitted). Letting Cason’s
testimony stand when the Commonwealth had evidence it
was false unquestionably violated Brady and entitles Dennis
to a new trial.

       The state court took an unreasonably narrow view of
Brady materiality by focusing on the fact that Cason would
only have been able to say that she saw him around 2:30 p.m.
Cason’s testimony need not fully corroborate Dennis’s alibi
in order to show materiality under Brady. Kyles explained
that Brady materiality does not turn on a determination of the
sufficiency of the evidence, but instead requires the court to
consider the constitutional error in light of all the evidence to
determine whether it “put[s] the whole case in such a
different light as to undermine confidence in the verdict.”
514 U.S. at 435. Transforming Cason, a disinterested
individual with documentary support, into a defense witness
meets the requirements of Brady materiality because it would
have necessarily bolstered Dennis’s alibi defense narrative
and “put the whole case in . . . a different light.” Id.

       Dennis testified that his father drove him to the bus
stop around 1:50 p.m., where he boarded the K bus. Dennis
asserted in his statement to police, which was read into the
record at trial, that he waved at Cason when “we got off” the
K bus at Abbottsford Homes, a trip that generally took about
thirty minutes. App. 710 (emphasis added). Dennis’s
statement implies that they rode the K bus together and,
setting aside the difference in timelines, Cason’s testimony
aligns with his account since Cason also took the K bus to
Abbottsford Homes and saw Dennis there after she




                               62
disembarked. Regardless of whether the receipt would have
refreshed Cason’s memory enough to cause her to testify that
she and Dennis were on the 1:56 p.m. K bus together, it
certainly would have empowered defense counsel to elicit
testimony from Cason that the location in which she saw
Dennis was consistent with her exiting the bus at the same
time he did and to acknowledge that even if she did not notice
him on the bus, she had no reason to disbelieve that he was
there.

       Cason, unlike the other witnesses Dennis called, did
not know him well. Cason testified that she knew Dennis, but
when ADA King asked her how long she had known him,
Cason replied, “I don’t really, you know, know him, I know
him by living up my way” at Abbottsford Homes. App. 731.
Because Cason simply knew Dennis from the neighborhood,
she served as a significantly less interested witness compared
to Dennis’s other testifying witnesses, who were all close
friends, family, and church leaders. As a result, she was less
vulnerable to accusations of bias, and her testimony in
support would have carried more weight with the jury. This
is particularly important given the nature of her testimony
compared to Dennis’s other witnesses. Unlike Dennis’s other
witnesses, Cason’s testimony would have been supported by
documentary proof of her timeline, the time-stamped receipt,
to provide independent credibility to her testimony. In light
of the receipt, Cason’s testimony on Dennis’s behalf would
have been doubly strong—she was disinterested, and the
receipt provided documentary corroboration for her version of
the events. 23


       The Commonwealth argues that Cason’s testimony
      23

would be duplicative of Willis Meredith’s non-alibi




                             63
        The Commonwealth criticizes the District Court’s
analysis of the Cason receipt Brady claim as a
misinterpretation of the record. Primarily, this critique rests
on the District Court’s conclusion that the Pennsylvania
Supreme Court “overlook[ed] the fact that both Cason and
Dennis testified that they saw each other on the bus.” Dennis
V, 966 F. Supp. 2d at 511. While it is true that Cason did not
testify at trial that she saw Dennis on the K bus, nor did she
deny it, and the Commonwealth’s failure to turn over the
receipt deprived defense counsel of the opportunity to refresh
Cason’s memory with the receipt or at least elicit that she saw
Dennis immediately upon exiting the bus, thereby
corroborating that they exited at the same location. Given
that her unrefreshed testimony put the encounter after 4:00
p.m., defense counsel had no reason to elicit such testimony.
But whether Cason testified that she saw Dennis on the bus or
disembarking the bus, such testimony would have reinforced
Dennis’s own testimony that he was on the bus and placed
him in a location that would have made it practically
impossible for him to murder Williams. Brady, therefore,
required that the Commonwealth disclose the receipt.




testimony. Willis Meredith, a friend of Dennis’s, testified that
he saw Dennis at Abbottsford Homes around 2:30 p.m.
Cason’s testimony is not cumulative for two reasons: (1)
Willis, like Dennis’s other witnesses, was a friend and open
to accusations of bias from the prosecution; and (2) Cason’s
testimony was corroborated by independent documentary
evidence. So, even if her testimony simply placed Dennis at
Abbottsford Homes around 2:30, it did so with more
evidentiary weight than Meredith’s.




                              64
        At minimum, Cason’s time-stamped receipt would
have empowered defense counsel to effectively impeach one
of the Commonwealth’s strongest witnesses and mitigated the
devastating effect of her testimony on Dennis’s credibility
and his father’s. At most, the Commonwealth’s case would
have been short one witness, and Dennis’s alibi defense
strategy would have been doubly strong due to (1) Cason’s
status as a disinterested defense witness with the documentary
corroboration and (2) the resulting increase in Dennis’s and
his father’s credibility. The Pennsylvania Supreme Court was
therefore unreasonable in concluding that the receipt was not
favorable to Dennis when it would have bolstered his alibi. It
was unreasonable in concluding that there was “no evidence”
that the Commonwealth had suppressed the receipt when the
state court found that detectives had the receipt in their
possession. And finally, it was unreasonable in concluding
that the receipt was not material. Had the Commonwealth
disclosed the receipt, the jury may well have credited
Dennis’s alibi defense.

      B.     Howard Police Activity Sheet

             1.     Facts

       A suppressed police activity sheet reveals that two
days after Williams’s murder, Zahra Howard, an eyewitness
and key witness for the Commonwealth at trial, made a
statement to Williams’s aunt and uncle, Dianne and
Mannasett Pugh, that was inconsistent with an earlier
statement she had made to police. Shortly after the murder,
Howard told police that she did not recognize the shooter
from school. The Pughs told police, however, that Howard
told them the day after the murder that she knew the




                             65
perpetrators from Olney High School, and that “Kim” and
“Quinton” were at the scene when the shooting occurred.
App. 1506. Quinton was Dianne Pugh’s nephew. The police
indicated in their “THINGS TO DO” list that they intended to
speak with the Pughs again and “[i]nterview Zahra Howard
again” in light of her inconsistent statement to the Pughs.
App. 1507. When police met with Howard the following day,
however, they did not ask Howard about her conversation
with the Pughs.

             2.     State court decision

        The     Pennsylvania    Supreme     Court    initially
characterized Dennis’s Brady claim regarding Howard’s
inconsistent statement as one “with at least arguable merit.”
Dennis III, 950 A.2d at 969. But the court was not prepared
to rule on the record before it, and it remanded the Howard
Brady claim to the PCRA court to address that claim in the
first instance. Id.

       The PCRA court rejected the Brady claim following an
evidentiary hearing. The District Court aptly summarized the
PCRA hearing and decision by the Pennsylvania Supreme
Court:

      Dennis sought to argue the merits of the Brady
      claim on the papers; he objected to the
      introduction of evidence from Howard and
      Diane Pugh because, he argued, their
      recollections now, a decade after the trial, about
      who the shooter was or what they told the
      police had no relevance on the question of
      whether the Commonwealth had violated Brady




                             66
by failing to disclose the activity sheet.   As
Dennis’s PCRA counsel told the court:

      The testimony has to be evaluated
      in its trial context. And all we can
      do at this point is put on paper for
      the court what we expect the
      impeachment to have been,
      assuming, for example, Zahra
      Howard denies having made the
      statement.          We have to
      demonstrate on paper how she
      could have been impeached, and
      how that evidence relates to other
      evidence in the case. . . . Her
      testimony today about what she
      remembers from 16 years ago we
      can cross-examine, but it doesn’t
      illuminate the question of
      materiality in the context of the
      trial.

NT 12/22/08 at 15. The court allowed the
testimony over Dennis’s objections.         As
expected, both Howard and Pugh denied that
Howard had ever suggested that she recognized
the assailants. Pugh’s testimony should not
carry much weight, however, given that she
declared before she was even sworn in, “I don’t
remember nothing, nothing at all. It’s been 15,
16 years so I don't remember. They just
subpoenaed me and I’m here.” Id. at 56.




                      67
        The PCRA court ultimately rejected the
Brady claim. It noted that, during the hearing,
Howard “testified credibly that she did not
know the appellant from Olney High School,
nor had she seen him prior to the murder.”
Commonwealth v. Dennis, Case No. 92–01–
0484, slip op. (Pa.Ct.Com.Pl. Mar. 17, 2010), at
13. Although the question whether Howard
recognized James Dennis (“the appellant”) or
had seen him before the murder is entirely
irrelevant to whether she told Diane Pugh that
she had seen the shooter before the murder, this
is, in fact, the entirety of the testimony that the
Commonwealth elicited from Howard at the
PCRA hearing:

       Q: And in that conversation [with
       Diane Pugh] did you ever say
       anything about recognizing the
       defendant before?
       A: No.
       Q: Did you ever see the defendant
       at Olney High School?
       A: No.
       Q: Did you ever see him around
       Olney High School?
       A: No.

NT 12/22/08 at 18. On cross, when Dennis’s
lawyer asked her about whether she said she
had ever seen the shooter before, or whether she
had ever told anyone she recognized the shooter
from Olney High School, Howard denied




                        68
recognizing the shooter or having ever said she
did. Id. at 25–27.

       Given both trial and PCRA counsel’s
thorough cross-examination of Howard, the
PCRA court determined that it was “unlikely
that any additional impeachment evidence
contained in the police activity sheet . . . would
have created a reasonable probability that the
result of the proceeding would have been
different had it been disclosed.” Dennis, slip
op. at 14. The court further noted that the
government’s case at trial “did not rest solely
on” Howard’s testimony. Id. Finally, the
contents of the activity sheet amounted to
inadmissible hearsay, which “cannot be the
basis for a Brady violation.” Id. at 15.

       The Pennsylvania Supreme Court largely
accepted the PCRA court’s determinations,
despite its seeming recognition, in Dennis III, of
the investigatory value the activity sheet would
have had and its earlier dismissal of the
admissibility issue. It agreed that Dennis had
failed to prove a reasonable probability of a
different result had the activity sheet been
disclosed. Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 309 (2011) (“Dennis IV”). It
echoed the PCRA court in noting that “Howard
was extensively cross-examined by defense
counsel in an attempt to impeach her testimony
during trial,” and that “there were two
eyewitnesses other than Howard” who




                       69
      identified Dennis; “[t]he disclosure of the
      activity sheet would have had no impact upon
      these eyewitnesses’ testimony.” Id. It did not
      specifically   address    the   question    of
      admissibility.

Dennis V, 966 F. Supp. 2d at 513–14.

              3.    AEDPA Review

        There is no question that Howard’s inconsistent
statement would have been helpful to the defense but was not
revealed to defense counsel until PCRA discovery, ten years
after trial. The Pennsylvania Supreme Court denied Dennis’s
Brady claim regarding the Howard statement on materiality
grounds. Although the court articulated the proper standard
for materiality, whether a “reasonable probability” of a
different outcome has been established, it applied Kyles in a
manner inconsistent with Supreme Court precedent.

       First and foremost, defense counsel could have used
Howard’s inconsistent statement as an effective means of
impeachment during trial. As noted above, impeachment
evidence unquestionably falls under Brady’s purview and
cannot be suppressed by the prosecution.                  The
Commonwealth notes that evidence is not necessarily
material under Brady simply because it may open up avenues
for impeachment—the focus of the inquiry is on the
“reasonable probability of a different result” under Kyles.
Such a probability exists here. The type of impeachment
evidence provided by the activity sheet would have undercut
the credibility of a key prosecution witness in a manner not
duplicated by other challenges the defense was able to level at




                              70
trial. Consequently, the impeachment material provided by
the suppressed activity sheet is material under Brady, and it
was unreasonable for the Pennsylvania Supreme Court to
hold otherwise.

       Howard was the Commonwealth’s key eyewitness
against Dennis and the Commonwealth accordingly
highlighted her testimony. ADA King emphasized the
importance of Howard’s testimony in his closing argument:
“[I]f you believe Zahra Howard, that’s enough to convict
James Dennis.” App. 1207. As Williams’s friend and the
person with the closest view of the shooter, Howard’s
testimony carried significant emotional and practical weight
with the jury. 24

       Unlike other testifying eyewitnesses, Howard had
views of the perpetrator at numerous stages during the
incident. At trial, Howard testified that she saw the shooter

      24
           Howard’s testimony undoubtedly bore more
emotional weight with the jury than the other eyewitness
testimony presented at trial due to Howard’s close friendship
with the victim. Because of Howard’s personal connection
with, and physical proximity to, Williams at the time of her
murder, stress may have played a particularly damaging role
in the strength of her identification. Chief Judge McKee
explains in his concurrence that that stress may impair a
witness’s identifications. J. McKee Concurring Op. at 29–31.
Here, the identification that the Commonwealth so
confidently framed as sufficient to support Dennis’s
conviction may have suffered the greatest from the effect of
stress.




                             71
for approximately twenty seconds total. This comported with
her testimony at the preliminary hearing. The two other
testifying eyewitnesses’ views were much briefer. Bertha
testified at the preliminary hearing that he saw the assailant
for about a second. At trial, he expanded the amount of time
he said he saw the shooter to three or four seconds. Cameron
initially testified at the preliminary hearing that he saw the
assailant for twenty seconds but upped the amount of time to
thirty to forty seconds at trial. Notably, Cameron qualified
his testimony by admitting that he “didn’t really pay
attention.”25 App. 664. In contrast to Bertha and Cameron’s,
Howard’s testimony was consistent, lengthy, and involved
numerous views of the assailant—on the subway stairs,
during the face-to-face encounter and finally, when Williams
was shot. Because of the consistency and emotional weight
of Howard’s testimony, defense counsel’s strategy was
heavily reliant on impeaching Howard by any means—
counsel attempted to “discredit her any . . . way [he] could.”
App. 1326.


      25
         Judge Fisher concedes that Bertha and Cameron may
not have been paying attention during the incident, but urges
that “the gunshot focused their view and spurred them into
action.” J. Fisher Dissent Op. at 21. As Chief Judge
McKee’s concurrence highlights, however, the presence of a
weapon at a crime scene “has a consistently negative impact
on both feature recall accuracy and identification accuracy.”
J. McKee Concurring Op. at 32. Here, the gunshot may have
startled Bertha and Cameron to attention, but research
demonstrates that the accuracy of their recollection of the
perpetrators would have been reduced, not amplified, by the
presence of the silver handgun.




                             72
       Counsel’s ability to discredit Howard was limited,
however. Without evidence that would directly contradict
Howard’s testimony at trial, defense counsel sought to
discredit Howard by pointing out her initial hesitation in
identifying Dennis as the perpetrator during the photo array.
Counsel could not challenge Howard’s trial testimony on
other grounds. But prosecutors held contradictory statements
by Howard about whether she recognized the perpetrators.
Howard had initially told police, and later testified at trial,
that she had never seen the perpetrators before and had not
recognized them from school. According to the Pughs,
however, Howard had said she recognized the shooter from
Olney High School. The Pughs (along with Parker) also
stated that Howard had also identified two other individuals,
Kim and Quinton, as being present at the scene.

        As noted by the District Court, cross-examination does
not equate to actual impeachment. Defense counsel cross-
examined Howard, but he could only engage in limited
questioning focused on challenging her hesitation
identifications of Dennis as the shooter. This is decidedly
different from the actual impeachment enabled by the activity
sheet. In Banks, a witness was heavily impeached at trial, but
the prosecution suppressed evidence that the witness served
as a paid informant. 540 U.S. at 702. Accordingly, none of
the impeachment conducted at trial covered his status as an
informant; the jury weighed his credibility without knowing
this. Id. at 702–03. The Supreme Court rejected the state’s
argument that because the witness was heavily impeached,
further impeachment evidence was immaterial. Id. at 702.
We have similarly indicated that additional impeachment
evidence helps to substantiate Brady claims in a way that
might make them material. In Lambert v. Beard, we stated




                              73
that “it is patently unreasonable to presume—without
explanation—that whenever a witness is impeached in one
manner, any other impeachment becomes immaterial.” 633
F.3d 126, 134 (3d Cir. 2011), judgment vacated on other
grounds sub nom. Wetzel v. Lambert, 132 S. Ct. 1195 (2012).
The mere fact that a witness has been heavily cross-examined
or impeached at trial does not preclude a determination that
additional impeachment evidence is material under Brady.

        Indeed, we have granted habeas relief on the basis of a
“significant difference” between the suppressed impeachment
and other types of impeachment evidence used at trial.
Slutzker v. Johnson, 393 F.3d 373, 387 (3d Cir. 2004). In
Slutzker, we held that a police report memorializing a
witness’s inconsistent statement was significantly different
from the reports used to impeach the witness at trial. In the
reports used at trial, the witness failed to identify the
defendant, but in the suppressed report, she definitively stated
that the man she saw was not the defendant. We concluded
that “[t]he latter is much more convincing impeachment
evidence, and the failure to disclose it leaves us in doubt that
the trial verdict was worthy of confidence.” Id. The police
activity sheet memorializing Howard’s statement similarly
provides distinct and persuasive impeachment material that
discredits Howard’s testimony more thoroughly than the
identification challenges defense counsel levelled at trial.

      The Commonwealth relies on United States v. Walker,
657 F.3d 160 (3d Cir. 2011), and United States v. Perez, 280
F.3d 318 (3d Cir. 2002), in arguing that the activity sheet
does not add anything significant to the record and is
consequently immaterial, even if the evidence is unique.
However, the activity sheet adds to the record in a distinct




                              74
and significant way, so Walker and Perez do not compel us to
find it immaterial. In Walker, defendants sought a new trial
based on the state’s suppression of information, unrelated to
the trial itself, about an informant witness. The informant,
who testified at defendant’s trial, was found with cocaine and
marijuana in his pocket on the day of a controlled buy
operation in an unrelated case. We held that suppression of
that information did not rise to the level of a Brady violation.
657 F.3d at 188 (noting that another witness for the
prosecution provided direct support). Unlike our case, where
Howard’s statement to the Pughs directly undercut the
credibility of her eyewitness testimony in Dennis’s case, the
alleged Brady evidence in Walker was wholly unrelated to
defendant’s case. Further, we reiterated the principle in
Walker that “there are some instances where specific
impeachment evidence is so important (for issues such as the
identity of the culprit) that it is material for Brady purposes
even when a witness has already been effectively impeached
on other issues.” Id. (emphasis added). Thus, Walker
supports the view that withholding impeachment material that
is germane to a critical aspect of the case—as here, the
identity of the perpetrator—violates Brady.

       Similarly,    Perez    does      not     support     the
Commonwealth’s contention. The alleged Brady material in
Perez was a witness’s later statement inculpating another
defendant and exculpating Perez. The initial statement,
unlike Howard’s initial statement in this case, was
corroborated by documentary evidence and co-defendant
testimony at trial. Here, Howard’s eyewitness testimony
played a pivotal emotional and practical role that could not be
replaced by other evidence. There are material differences in
impeachment value as well. In Perez, we concluded that




                              75
cross-examination on the basis of the later statement would
not have induced the co-defendant to admit to committing the
crime. Perez, 280 F.3d at 350–51. Here, the type of
statement at issue is different—Howard would have been
confronted with an inconsistent statement, but not one that
would have implicated her in the crime.

        Armed with the activity sheet, defense counsel could
have impeached Howard in a manner that very well may have
led her to admit she recognized the perpetrators from her high
school. Regardless of whether she actually recognized the
shooter, Howard’s credibility would have been placed counter
to that of the victim’s aunt and uncle, the Pughs, who would
have undoubtedly been called at trial.          Consequently,
Howard’s impeachment could have changed the jury’s
perception of her credibility.

       There are significant, material differences between the
type of cross-examination defense counsel engaged in and
what he could have done had he known of the police activity
sheet. As the District Court noted, “the activity sheet would
have shown that [Howard] either lied to Williams’[s] close
relatives—only days after the murder and in a manner that
implicated Diane Pugh’s own nephew—or she was lying at
trial.” Dennis V, 966 F. Supp. 2d at 515. Thus, the
government’s suppression necessarily undermines confidence
in the outcome of Dennis’s trial.             Discrediting the
prosecution’s central witness, and the eyewitness with the
most significant exposure to the shooter, would have had
devastating effects on the prosecution’s case at trial. The
remaining two eyewitnesses were located farther away from
the incident, had only brief glimpses of the perpetrators, or
were admittedly paying little attention.           Challenging




                             76
Howard’s identification of the shooter did little to undermine
her credibility as a witness; but armed with the inconsistent
statement, defense counsel could have undercut Howard’s
testimony sufficiently that a jury may not have convicted
Dennis. There is a reasonable probability that had the activity
sheet been disclosed, the result of the proceeding would have
been different.

       The Commonwealth argues that Howard did not make
the statements attributed to her in the activity sheet. In
support of this assertion, the Commonwealth looks to
Howard’s and the Pugh’s testimony during PCRA review—
over sixteen years after Dennis’s trial. Her statements during
PCRA review carry little weight in how we consider a jury’s
credibility determination at trial. In Kyles, the Supreme Court
explicitly rejected the contention that post-conviction
credibility determinations could replicate the jury’s credibility
determinations at trial. Kyles, 514 U.S. at 449 n.19
(“[N]either observation [during post-conviction proceedings]
could possibly have affected the jury’s appraisal of Burns’s
credibility at the time of Kyles’s trials.”). The court oriented
its analysis around how the jury would have weighed the
information, not the credibility of the post-conviction
testimony itself. Thus, the proper inquiry remains whether
use of the activity sheet by defense counsel at trial would
have resulted in a different outcome at trial. The jury makes
the credibility determination, not the Court sixteen years post-
trial.

       Although the Supreme Court instructed habeas courts
in Wood not to ignore testimony at evidentiary hearings that
would undermine the potential usefulness of alleged Brady
material, the admissions during a post-conviction hearing in




                               77
Wood differed significantly from those provided by Howard
during PCRA review. In Wood, counsel specifically admitted
that “disclosure [of the polygraph results] would not have
affected the scope of his cross-examination,” and
consequently, he did not bother to obtain admissions during
post-conviction review. Wood, 516 U.S. at 7–8. The post-
conviction testimony at issue here is markedly different.
Dennis’s trial counsel testified that discrediting Howard
through inconsistent statements was an integral part of the
trial strategy. Interpreting Howard’s statements during PCRA
hearings as indicating that she did not, in fact, make the
statements to the Pughs contained in the activity sheet would
allow the Commonwealth to cure its suppression of material
evidence through delay. This we will not do.

        The Commonwealth’s argument that the information
contained in the activity sheet was double hearsay, so not
admissible for impeachment purposes, fairs no better. The
Pennsylvania Supreme Court did not rest its decision on an
admissibility determination. Rather, it rooted its analysis in a
misapplication of the Kyles materiality standard: that “any
additional impeachment based on the activity sheet would
have created a reasonable probability that the result of the
proceeding would have been different.” Dennis IV, 17 A.3d
at 309.

        Counsel could also have used the information to
challenge the adequacy of the police investigation. Defense
counsel could have questioned Detectives Jastrzembski and
Santiago as to why they did not ask Howard questions about
her inconsistent statement when they saw her again only a
few hours after indicating that confronting her was part of
their “things to do.” Their subsequent meeting with Howard




                              78
centered on reviewing a photo array. The detectives never
asked Howard about admitting to the Pughs that she
recognized the assailants from Olney High School. They
never asked Howard about Kim and Quinton, despite having
recently left a discussion with Parker, who stated that Howard
mentioned Kim and Quinton to her as well. There is also no
indication that they conducted any further investigation into
the Pughs and whether they misheard all of these details or
had reason to fabricate Howard’s inconsistent statement.
Armed with the statement, defense counsel could have
highlighted the investigatory failures for the jury, which could
have supported Dennis’s acquittal.

       Further, defense counsel could have used the Howard
inconsistent statement to mount an “other suspect” defense at
trial. According to the Pughs, Howard stated that she
recognized the shooter from Olney High School where she
and Williams were enrolled. Dennis attended Roxborough
High School for his entire high school career. The simple
conflict between where Dennis attended school and where
Howard stated the assailants went to school would have
removed Dennis as a suspect and empowered defense counsel
to put forth an “other suspect” defense at trial, which he was
otherwise unable to do. Together with the failure to follow
up on the statements to the Pughs, defense counsel could have
urged that Dennis’s was a case where police arbitrarily put
blinders on as to the possibility that someone else committed
the crime and pursued the easy lead.

       Although     the Pennsylvania      Supreme     Court
acknowledged that “the omission is to be evaluated in the
context of the entire record,” Dennis IV, 17 A.3d at 309, it
ultimately applied the Brady materiality standard




                              79
unreasonably by using sufficiency of the evidence as a
touchstone. As pointed out by the District Court, the
Supreme Court instructed in Kyles that “[a] defendant need
not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not
have been enough left to convict.” 514 U.S. at 434–35.
Rather, “the Kyles Court rebuked the dissent for assuming
that Kyles must lose on his Brady claim because there would
still have been enough to convict, even if the favorable
evidence had been disclosed. ‘The rule is clear, and none of
the Brady cases has ever suggested that sufficiency of the
evidence (or insufficiency) is the touchstone.’” Dennis V,
966 F. Supp. 2d at 516 (quoting Kyles, 514 U.S. at 435 n.8).
State courts may not “emphasize[] reasons a juror might
disregard new evidence while ignoring reasons she might
not.” Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016).

        The Pennsylvania Supreme Court concluded that
“[t]he disclosure of the activity sheet would have had no
impact upon [two additional] eyewitnesses’ testimony” and
consequently, the activity sheet was not material under Brady.
Dennis IV, 17 A.3d at 309. In making its conclusion as to the
materiality of the activity sheet, the Pennsylvania Supreme
Court tied the materiality of the activity sheet to a
requirement that Dennis show that Cameron’s and Bertha’s
eyewitness testimony would not be sufficient to support the
jury’s finding. This analysis is entirely inconsistent with the
Court’s instructions on materiality. The Commonwealth
argues, and the Dissent appears to accept, that by citing
Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009)—which
reiterated the Supreme Court’s admonition of the sufficiency
of the evidence test—the Pennsylvania Supreme Court
applied the proper standard.          However, unreasonable




                              80
application of federal law under AEDPA occurs when the
state court identifies the proper principle, but “unreasonably
applies that principle to the facts of the prisoner’s case.”
Williams, 529 U.S. at 413. Indeed, in Lafler, the state court
had identified the two Strickland prongs—prejudice and
performance—yet the United States Supreme Court
concluded that the state court had unreasonably used the
“knowing and voluntary” standard and disregarded
Strickland. 132 S. Ct. at 1390.

       Here, the Commonwealth’s argument that the
Pennsylvania Supreme Court knew the proper standard for
materiality does little to demonstrate that it actually applied it
reasonably. Instead of engaging in a holistic materiality
inquiry per Kyles, the Pennsylvania Supreme Court proceeded
down an analytical path that hinged the activity sheet’s Brady
materiality on the sufficiency of the evidence, namely, the
strength of Bertha and Cameron’s eyewitness testimony, in
direct contravention of how the Supreme Court has defined
materiality.

        Judge Fisher’s Dissent relies on the Supreme Court’s
decision in Strickler to support the Pennsylvania Supreme
Court’s approach to materiality in Dennis IV. Like the
activity sheet, the exculpatory materials at issue in Strickler
would have cast doubt on the testimony of a key prosecution,
Anne Stoltzfus. In Strickler, the Court of Appeals for the
Fourth Circuit below had identified the Kyles standard for
materiality and had concluded that “without considering
Stoltzfus’ testimony, the record contained ample, independent
evidence of guilt, as well as evidence sufficient to support the
findings of vileness and future dangerousness that warranted
the imposition of the death penalty.” Strickler, 527 U.S. at




                               81
290. The United States Supreme Court soundly rejected the
Fourth Circuit’s approach upon review in Strickler. It
instructed that “[t]he standard used by [the Fourth Circuit]
was incorrect” and reiterated that “the materiality inquiry is
not just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s
conclusions.” Id. (“[T]he question is whether ‘the favorable
evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the
verdict.’” (quoting Kyles, 514 U.S. at 435)).              The
Pennsylvania Supreme Court did precisely what the Strickler
Court rejected—it evaluated whether, after considering
Howard’s testimony, the remaining eyewitness testimony was
sufficient for Dennis’s conviction. Dennis IV, 17 A.3d at 309
(“[T]here were two eyewitnesses other than Howard who
observed the shooting at close range. . . . The disclosure of
the activity sheet would have had no impact upon these
eyewitnesses’ testimony.”).

        Further, the materiality of the impeachment evidence
in Strickler is distinguishable from the police activity sheet at
issue here because the evidence against petitioner in Strickler
was far more extensive and varied than the Commonwealth’s
case against Dennis. As Judge Fisher recognizes, there was
“considerable forensic and other physical evidence” linking
the petitioner to the crime in Strickler. 527 U.S. at 293. The
Supreme Court ultimately concluded that “[t]he record
provide[d] strong support for the conclusion that petitioner
would have been convicted of capital murder and sentenced
to death, even if Stoltzfus had been severely impeached.” Id.
at 294. Thus, the Strickler Court held that petitioner had not
shown materiality under Brady.




                               82
        The record laid by the Commonwealth in Dennis’s
case pales in comparison to the one mounted by the
government in Strickler. For instance, the police in Strickler
recovered hairs from clothing found with the victim that were
microscopically akin to petitioner’s, and petitioner’s
fingerprints were found on the inside and outside of the
victim’s car. 527 U.S. at 293 n.41. No similar physical
evidence exists on the record in Dennis’s case. The Supreme
Court recognized the importance of Stoltzfus’s testimony, as
it was the only disinterested narrative account provided at
trial, but ultimately concluded in its holistic materiality
inquiry that petitioner failed to show that there was “a
reasonable probability that his conviction or sentence would
have been different had these materials been disclosed.” Id.
at 296. The conclusion that petitioner failed to show
materiality against the variety and extensiveness of the
evidence against petitioner in Strickler differs from the
Pennsylvania Supreme Court indication that two other
eyewitness accounts were sufficient for a jury to convict
Dennis.

        In sum, the Pennsylvania Supreme Court unreasonably
applied Brady and its progeny in denying Dennis’s Brady
claim based on the Howard inconsistent statement. It
unreasonably disregarded the impeachment value of the
evidence in discrediting the Commonwealth’s key eyewitness
and the adequacy of the investigation. It unreasonably
applied a sufficiency of the evidence test by tying the
materiality of the activity sheet to the sufficiency of the
remaining inculpatory eyewitness testimony. And finally, the
Pennsylvania Supreme Court failed to consider that the
activity sheet would have enabled defense counsel to raise a




                             83
defense he was otherwise unable to present—that a student at
Olney High School committed the murder. There is a
reasonable probability that, had the activity sheet been
disclosed, the jury would have had a reasonable doubt as to
Dennis’s guilt.

       C.     Frazier Documents

              1. Facts

        Prior to Dennis’ arrest, Philadelphia police received a
lead from Montgomery County Detectives that someone other
than Dennis may have murdered Williams. William Frazier,
an inmate at the Montgomery County Correctional Facility
called police and told them that Tony Brown “shot . . . [a]
female in the middle of the street near the Fern Rock station”
after the girl resisted his efforts to take her earrings, which
Brown sold at a pawn shop for $400. App. 1689–90.

        Frazier heard Brown’s confession during a three way
call facilitated by his aunt, Angela Frazier. Frazier recounted
the conversation in a signed statement given to Philadelphia
Police less than two weeks after Williams’s murder. Brown
admitted that he—along with Frazier’s cousin, Ricky Walker,
and a man called “Skeet”—had “fucked up” and killed
Chedell Williams. App 1692. Frazier told police that Brown
knew Williams, and identified her as “Kev with the blue
pathfinder . . . his girl.” App. 1694.

       During the call, Brown asked Frazier if he heard about
“the incident on the news about the girl that [was] killed over
a pair of earrings,” and Brown confessed “that was us.” App.
1692. Frazier reported “[Tony] said that he and Ricky got out




                              84
of the car and Skeet was driving. They approached the girl,
Tony pulled his gun out and told her to give up the earrings . .
. she refused. So he put the gun to her neck . . . [and] it
accidentally went off.” Id. Walker briefly joined the call and
reported that they were scared, and that they left Frazier’s
apartment, where they sought cover after the murder, in the
middle of the night so that no one would see them. Frazier
reported that Brown and Walker sounded “extremely nervous
and upset.” App. 1694. Frazier described Tony as 5’7”, two
inches taller than Dennis, with light brown skin. Like the
assailant, Tony “like[d] to wear sweat suits;” he had also
committed robberies in the past and owned “a collection of
guns.” App. 1693–95.

       Frazier gave detectives addresses for Brown and
Walker, the address where Skeet used to live. Frazier also
gave police Angela Frazier’s address and phone number,
Brown’s mother’s address, and an address of the pawn shop,
along with a description of the proprietor. Frazier agreed to
go on a ride along to show detectives the addresses he
reported. The Philadelphia police, including Jastrzembski,
spoke with Frazier’s landlord, who confirmed that Frazier
rented the apartment located at the address he provided.
Although the landlord reported that nobody had been in the
apartment since Frazier’s arrest, the men used unconventional
means to enter Frazier’s apartment the night of the murder—
they climbed through Frazier’s right window. 26

       26
          While this matter was pending before the panel, the
government located Frazier in federal prison and interviewed
him. During this interview, Frazier admitted the story he told
police in 1991 was, in his words, “bullshit,” that the “three-
way” phone call with his aunt and “Tony Brown” “never




                              85
       Detectives interviewed Walker, who told them that he
“c[ouldn’t] stand” his cousin, Frazier. App. 1703. Walker
denied knowing Tony Brown and Skeet and denied any
involvement with, or knowledge about, Williams’s murder.
He told detectives that he was at his house with his mother on
the day of the murder.          Police did not conduct an
investigation into Walker’s alibi or alert defense counsel to
any of the information on Frazier’s tip.

             2.     State court decision

        The Pennsylvania Supreme Court affirmed the PCRA
court’s denial of Dennis’s Brady claim as to the Frazier
documents on the grounds that Dennis failed to demonstrate
that the documents were material and admissible. The
Pennsylvania Supreme Court relied on its decision in
Commonwealth v. Lambert, 884 A.2d 848 (2005), in which it
emphasized that the prosecution need not “disclose to the
defense every fruitless lead followed by investigators of a
crime” and asserted that “inadmissible evidence cannot be the
basis for a Brady violation.” Lambert, 884 A.2d at 857
(citation omitted). The court concluded: “In the absence of
any argument regarding the gravamen of Lambert . . .
[Dennis] has failed to establish a basis for relief” regarding
the Frazier documents. Dennis III, 950 A.2d at 968.
However, as Dennis points out, the Pennsylvania Supreme


happened,” and that he did not know anyone named “Tony
Brown” or “Skeet.” Response to Pet. Rh’g at 17 n.13.
Ultimately, Frazier’s admission many years post-trial does
not change our analysis of whether, given the information the
Commonwealth had at the time of the tip, they were required
to disclose the lead documents pursuant to Brady.




                             86
Court retreated from its decision in Lambert in a later opinion
so as to comport with Supreme Court precedent regarding the
need for admissibility. Commonwealth v. Willis, 46 A.3d
648, 670 (Pa. 2012) (“[W]e hold that admissibility at trial is
not a prerequisite to a determination of materiality under
Brady. . . . Therefore, nondisclosed favorable evidence which
is not admissible at trial may nonetheless be considered
material for Brady purposes[.]”).

              3.     AEDPA Review

        The state court addressed the merits of the Frazier
claim and, as a result, Dennis may obtain habeas relief only if
he can demonstrate that the decision was an unreasonable
application of, or contrary to, clearly established law, or an
unreasonable determination of the facts. 28 U.S.C. § 2254(d).
It is undisputed that the first two elements of Brady are met.
The Frazier documents indicated that someone other than
Dennis committed the crime, and were thus exculpatory, and
there is no question that the state did not disclose the
documents until PCRA discovery.                 However, the
Pennsylvania Supreme Court unreasonably applied Brady and
its progeny in concluding that the Frazier documents were
immaterial. Also, in appending an admissibility requirement
onto Brady, the Pennsylvania Supreme Court acted contrary
to clearly established law, as defined by the United States
Supreme Court.

        The Pennsylvania Supreme Court’s justification that
the Frazier documents were a “fruitless lead” was
unreasonable. There is no requirement that leads be fruitful
to trigger disclosure under Brady, and it cannot be that if the
Commonwealth fails to pursue a lead, or deems it fruitless,




                              87
that it is absolved of its responsibility to turn over to defense
counsel Brady material. The rationale behind Brady itself
rests on the principle that prosecutors bear an obligation to
structure a fair trial for defendants:

       Society wins not only when the guilty are
       convicted but when criminal trials are fair; our
       system of the administration of justice suffers
       when any accused is treated unfairly. . . . A
       prosecution that withholds evidence . . . which,
       if made available, would tend to exculpate him
       or reduce the penalty helps shape a trial that
       bears heavily on the defendant. That casts the
       prosecutor in the role of an architect of a
       proceeding that does not comport with
       standards of justice, even [if] . . . his action is
       not the result of guile[.]

Brady, 373 U.S. at 87–88 (internal quotation marks and
footnote omitted). Structuring a fair trial for defendants
demands that prosecutors freely disclose material that is
helpful to the defense.     Consequently, making Brady
disclosure depend on a prosecutor’s own assessment of
evidentiary value, as opposed to the benefit to defense
counsel, is anathema to the goals of fairness and justice
motivating Brady.

        The lead was not fruitless, it was simply not rigorously
pursued. Detectives did not interview Angela Frazier, who
facilitated the three-way call and was on the phone when
Brown confessed to the murder. Detectives did not question
Walker again—who admitted to having a bias against
Frazier—after he stated that he did not know any Brown or




                               88
Skeet, nor did they attempt to verify Walker’s alibi on the day
of the murder. Detectives did not investigate the owner of the
pawn shop where Brown purportedly sold Williams’s
earrings. Detectives did not obtain the photos of Brown,
Skeet, and Walker that were in Frazier’s apartment.
Detectives went to an incorrect address seeking information
about Skeet and spoke with a woman named Janice Edelen,
who said she did not know any man called Skeet. Finally,
detectives did not visit the addresses Frazier provided until
ten years after the murder.         Armed with the Frazier
documents, Dennis’s counsel would have been prepared to
pursue the lead himself or at least informed the jury of the
police’s misguided focus on Dennis and failure to pursue the
lead.

       The Pennsylvania Supreme Court grafted an
admissibility requirement onto the traditional three-prong
Brady inquiry when it rejected Dennis’s Brady claim as to the
Frazier documents on the ground that he failed to
affirmatively show that the documents were admissible. The
Pennsylvania Supreme Court’s characterization of
admissibility as dispositive under Brady was an unreasonable
application of, and contrary to, clearly established law as
defined by the United States Supreme Court.

       The Commonwealth articulates the Pennsylvania
Supreme Court’s decision somewhat differently. It argues
that our role on habeas review is determining “whether, under
Supreme Court precedent, it was objectively unreasonable for
the Pennsylvania Supreme Court to reject Dennis’s claim that
he only had to argue or allege that disclosure ‘might’ have
affected his investigation or preparation for trial.” Appellants
Br. 74. This framing incorrectly states what the Pennsylvania




                              89
Supreme Court did in Dennis III. It did not simply discount
Dennis’s argument that defense counsel could have prepared
differently had the documents been disclosed—it appended an
admissibility requirement to Brady in contravention of clearly
established law.

        The Pennsylvania Supreme Court cited Wood v.
Bartholomew, 516 U.S. 1 (1995), as attaching an
admissibility requirement to Brady. The United States
Supreme Court’s holding in Wood compels the opposite
conclusion, however. The Supreme Court held in Wood that
there was no Brady violation when the prosecution did not
disclose the results of two polygraph examinations that were
inadmissible at trial. Wood, 516 U.S. at 6. The Wood Court
noted that Brady governs “evidence,” and that the polygraph
results, since they were inadmissible under state law, were
“not ‘evidence’ at all.” Id. at 5–6. However, under
Washington law, polygraphic examinations cannot be
admissible for any purpose at trial, even for impeachment
purposes. Id. at 5. At most, the Court’s holding in Wood
could support the proposition that evidence that cannot be
used in any manner at trial under state law may be immaterial
under Brady. The holding does not reach so far as to allow
state courts to attach a general admissibility requirement onto
the Brady inquiry as the Pennsylvania Supreme Court did in
Dennis III.

      Further, the Wood Court analyzed the effect of
suppressing the polygraph results, despite their
uncontroverted inadmissibility. After acknowledging their
inadmissibility, the Wood Court proceeded to examine
whether, if disclosed, the results would have led to the
discovery of evidence that would have influenced the course




                              90
of trial, including pre-trial preparations. See Wood, 516 U.S.
at 7 (considering whether trial counsel would have prepared
differently given the results, though ultimately concluding
that disclosure would not have resulted in a different
outcome). The Supreme Court’s decision to continue its
inquiry in light of wholly inadmissible alleged Brady material
is telling. As the District Court aptly observed, “[i]f
inadmissible evidence could never form the basis of a Brady
claim, the Court’s examination of the issue would have ended
when it noted that the test results were inadmissible.” Dennis
V, 966 F. Supp. 2d at 503.

        The Supreme Court’s choice in Wood to consider the
way in which suppression of the polygraph results affected
preparation and trial aligns with the way in which materiality
is discussed in Kyles. Kyles makes clear that evidence is
material under Brady when the defense could have used it to
“attack the reliability of the investigation.” 514 U.S. at 446.
As noted by the District Court, in Kyles, defense counsel
could have used the information at issue “to throw the
reliability of the investigation into doubt and to sully the
credibility” of the lead detective. Id. at 447. The proper
inquiry for the Pennsylvania Supreme Court was to consider
whether disclosure of the Frazier documents would have
impacted the course of trial, which includes investigative
activities. Here, disclosure of the Frazier documents would
have empowered defense counsel to pursue strategies and
preparations he was otherwise unequipped to pursue.

       Imposition of an admissibility requirement does not
comport with the United States Supreme Court’s longstanding
recognition that impeachment evidence may be favorable and
material, and if so, is unquestionably subject to Brady




                              91
disclosure. The Court stated definitively in Strickler that
“[o]ur cases make clear that Brady’s disclosure requirements
extend to materials that, whatever their other characteristics,
may be used to impeach a witness.” 527 U.S. at 282 n.21
(emphasis added). As to both the first Brady prong,
favorability, and the third Brady prong, materiality, the
Supreme Court has held that impeachment evidence falls
under Brady’s purview. Id. at 281–82 (the evidence “must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching.”); Kyles, 514 U.S. at 445
(concluding that evidence was material because “the effective
impeachment of one eyewitness can call for a new trial even
though the attack does not extend directly to others”).
Further, nearly all of the cases decided by the United States
Supreme Court since Brady have dealt with impeachment
evidence. See Wearry v. Cain, 136 S. Ct. 1002 (2016) (per
curiam), Wetzel v. Lambert, 132 S. Ct. 1195 (2012); Smith v.
Cain, 132 S. Ct. 627 (2012); Cone v. Bell, 556 U.S. 449
(2009); Banks v. Dretke, 540 U.S. 668 (2004); Strickler v.
Greene, 527 U.S. 263 (1999); United States v. Bagley, 473
U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976);
Moore v. Illinois, 408 U.S. 786 (1972); Giglio v. United
States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66
(1967). It would be difficult to find stronger support for the
proposition that admissibility is not a requirement under
Brady, and the Supreme Court’s repeated consideration of
impeachment material in Brady cases—without any
reservation whatsoever—compels us to conclude that it is
unreasonable to graft an admissibility requirement onto
Brady’s traditional three-pronged inquiry.

      Beyond the recognition that impeachment evidence is
covered by Brady, the essence of the United States Supreme




                              92
Court’s Brady jurisprudence focuses on the benefits of
disclosure to the defense, not admissibility. This is evidenced
by the definition of materiality itself. Kyles provides that
evidence is material “if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” 514 U.S. at 433–
34 (1995) (quoting Bagley, 473 U.S. at 682 (opinion of
Blackmun, J.)) (emphasis added). Quite simply, under Brady,
the focus of the inquiry is on whether the information had
“been disclosed to the defense,” not whether it was
admissible at trial. See id. An admissibility requirement
improperly shifts that focus.

       The United States Supreme Court’s focus on
disclosure is mirrored in the way in which it has applied the
“reasonable probability” standard used to assess materiality
under Brady. When the Court has reviewed applications of
the “reasonable probability” standard, it has weighed the
strength of the suppressed evidence against the strength of
disclosed evidence to evaluate its impact, not critiqued the
character of the evidence itself. See Strickler, 527 U.S. at
290–94. In Strickler, the Court denied a Brady claim on
materiality grounds because “the record provides strong
support for the conclusion that petitioner would have been
convicted of capital murder and sentenced to death, even if
[an eyewitness] had been severely impeached.” Id. at 294.
Thus, the focus was on disclosure, given the effect of other
available material, not the character of the material itself.

       The Supreme Court’s later decision in Cone v. Bell
similarly affirmed its longstanding focus on disclosure
regardless of admissibility at trial.   There, the Court
considered impeachment evidence including police bulletins,




                              93
statements contained in official reports, and FBI reports to be
Brady material. Cone, 556 U.S. at 470–71. Neither the Sixth
Circuit nor the District Court below fully considered whether
the suppressed documents would have persuaded the jury to
impose a lesser sentence. Id. at 475 (“It is possible that the
suppressed evidence, viewed cumulatively, may have
persuaded the jury that Cone had a far more serious drug
problem than the prosecution was prepared to acknowledge,
and that Cone’s drug use played a mitigating, though not
exculpating, role in the crimes he committed.”). Cone held
that the courts below had failed to “thoroughly review the
suppressed evidence or consider what its cumulative effect on
the jury would have been” regarding Cone’s sentence. Id. at
472. By remanding the case for full consideration of the
Brady claim despite the fact that the suppressed evidence was
not necessarily admissible, the Court indicated that the
admissibility of suppressed evidence ought not to change the
materiality inquiry itself, which is understood as “a
reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.” Id.
at 470, 476.

      Our recent decision in Johnson v. Folino, 705 F.3d 117
(3d Cir. 2013) further affirms the view that inadmissible
evidence is often very material:

      [I]nadmissible evidence may be material if it
      could have led to the discovery of admissible
      evidence. Furthermore . . . we think that
      inadmissible evidence may be material if it
      could have been used effectively to impeach or
      corral witnesses during cross-examination.
      Thus, the admissibility of the evidence itself is




                              94
      not dispositive for Brady purposes. Rather, the
      inquiry is whether the undisclosed evidence is
      admissible itself or could have led to the
      discovery of admissible evidence that could
      have made a difference in the outcome of the
      trial sufficient to establish a “reasonable
      probability” of a different result.

Id. at 130 (citations omitted).     Here, however, the
Pennsylvania Supreme Court ignored how the United States
Supreme Court has evaluated materiality and instead made
inadmissibility a determinative factor, indeed, the
determinative factor.

       The Pennsylvania Supreme Court’s characterization of
admissibility as a separate, independent prong of Brady
effectively added admissibility as a requirement. This runs
afoul of Supreme Court precedent. The Pennsylvania
Supreme Court required “evidence sought under Brady be
material and admissible.” Dennis III, 950 A.2d at 968
(emphasis added). The Supreme Court has never added a
fourth “admissibility” prong to Brady analysis. Like the
imposition of a due diligence prong, adding an admissibility
prong would alter Brady’s traditional three-prong inquiry in a
manner that the Supreme Court rejected in Williams. See
Williams, 529 U.S. at 393.

       Most federal courts have concluded that suppressed
evidence may be material for Brady purposes even where it is
not admissible. See United States v. Morales, 746 F.3d 310,
314 (7th Cir. 2014) (listing cases). However, the Seventh and
Fourth Circuits have indicated that inadmissible evidence
cannot be material. Morales, 746 F.3d at 314; see also




                             95
Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011)
(“Logically, inadmissible evidence is immaterial under [the
Brady] rule”); Hoke v. Netherland, 92 F.3d 1350, 1356 n.3
(4th Cir. 1996). Jardine and Hoke involved evidence that
was prohibited from being used under state evidence laws and
their assertions regarding an admissibility requirement were
not determinative to their holdings. Jardine, 658 F.3d at 777
(noting that the undisclosed material was inadmissible under
state law and could not be used to impeach, but concluding
that no Brady violation occurred only after evaluating other
avenues through with the material could be used); Hoke, 92
F.3d at 1355–56 (holding that the undisclosed information
about the murder victim’s sexual history would not have been
material in light of overwhelming physical and other evidence
and resolving the case on grounds other than admissibility).
Morales is similarly unpersuasive, as it observed that the
Courts of Appeals for the First, Second, Third, Sixth, and
Eleventh Circuits have read Brady to include material but
inadmissible evidence. 746 F.3d at 314. The Morales court
even conceded that “[w]e find the Court’s methodology in
Wood to be more consistent with the majority view in the
courts of appeals than with a rule that restricts Brady to
formally admissible evidence.” Id. at 315. 27

       27
          Although the United States Supreme Court recently
recognized that circuit splits may indicate a possibility of fair-
minded disagreement under AEDPA, it did so where the
circuit split emerged out of an express reservation left by the
Supreme Court on the precise question decided by the state
court. In White v. Woodall, the Kentucky Supreme Court
decided that a no-adverse inference instruction, required by
the Fifth Amendment to protect a non-testifying defendant at
the guilt phase, is not required at the penalty phase. 134 S.




                               96
       The Frazier documents were material under Brady.
Dennis’s counsel could have used the information contained
in the Frazier documents to challenge detectives at trial
regarding their paltry investigation of the lead. As we
previously noted, the lead was “fruitless” because the
Commonwealth failed to take sufficient action to determine if
it was fruitful—the Commonwealth essentially abandoned it.
The Commonwealth does not dispute that trial counsel could



Ct. 1697, 1701 (2014) reh’g denied, 134 S. Ct. 2835 (2014).
In so doing, the Kentucky Supreme Court relied on the
Supreme Court’s decision in Mitchell v. United States, 526
U.S. 314 (1999), to support its denial. Mitchell included an
express reservation on the question the state court decided.
See White, 134 S. Ct. at 1703. In the wake of reservation in
Mitchell, “[t]he Courts of Appeals . . . recognized
that Mitchell left [the sentencing question] unresolved; their
diverging approaches to the question illustrate the possibility
of fairminded disagreement.” White, 134 S. Ct. at 1703 n.3.
Thus, the United States Supreme Court opined that the
Kentucky Supreme Court’s rejection of respondent’s Fifth
Amendment claim was not objectively unreasonable because
there was an intentional lack of guidance from the Court. The
United States Supreme Court has made no such express
reservations when it comes to Brady materiality or an
admissibility requirement. Consequently, to the extent that
language from our sister circuits might be read to recognize a
general admissibility requirement in Brady, we respectfully
conclude that they have erred. Discrepancies as to the
interpretation of Wood ought not to substantiate the
Pennsylvania Supreme Court’s erroneous application of the
Brady materiality standard in this case.




                              97
have used the information in the suppressed documents to
question the detectives.

        Further, had the Commonwealth not suppressed the
Frazier documents, Dennis could have presented an “other
person” defense at trial, which he was otherwise not able to
do. The Frazier documents bring to light that Walker
admitted to going to Olney High School—the school
Williams and Howard attended—and he recognized Williams
from school. Thus, the documents not only support an
alternative shooter theory, but the very same alternative
shooter theory that defense counsel could have been prepared
to raise had the Howard activity sheet also been disclosed.
Alterations in defense preparation and cross-examination at
trial are precisely the types of qualities that make evidence
material under Brady. Consequently, it was unreasonable for
the Pennsylvania Supreme Court to conclude that the Frazier
documents were not material.          There is a reasonable
probability that had the jury heard an “other person” defense,
the result of the proceeding would have been different.

        The Pennsylvania Supreme Court unreasonably
applied federal law and applied law in a manner contrary to
Supreme Court precedent. The Commonwealth’s suppression
of the Frazier documents violated Brady as they were
favorable to the defense, and could have been used by defense
counsel as exculpatory and impeachment evidence. Dennis is
entitled to a new trial.

      D.     Cumulative Materiality

     While the suppression of the Cason receipt, the
Howard police activity sheet, and the Frazier documents




                             98
support ordering a new trial, the cumulative effect of their
suppression commands it. Had the Brady material been
disclosed, there is a reasonable probability that the outcome
of the trial would have been different, and its suppression
undermines confidence in the verdict.

        The District Court engaged in a cumulative materiality
analysis in addition to granting each individual Brady claim.
Dennis V, 966 F. Supp. 2d at 517–18. This analysis was
proper. When the issue ripened in Dennis IV and the
Pennsylvania Supreme Court could have assessed the
cumulative prejudice of withholding the Cason receipt,
Frazier documents, and police activity sheet containing
Howard’s statements, it declined to do so explicitly. We are
required to presume that the state court considered and
rejected Dennis’s cumulative materiality argument. Johnson
v. Williams, 133 S. Ct. 1088, 1097 (2013). Just as the
Pennsylvania Supreme Court’s rejections of Dennis’s Brady
claims constituted unreasonable application of federal law, its
rejection of the cumulative materiality of the suppressed
evidence, though not done explicitly, was an unreasonable
application of Brady and its progeny.


       The Supreme Court in Kyles instructed that the
materiality of withheld evidence must be “considered
collectively, not item by item.” 514 U.S. at 436. The
importance of cumulative prejudice cannot be overstated, as it
stems from the inherent power held by the prosecution, which
motivated Brady. Id. at 437 (“[T]he prosecution . . . alone
can know what is undisclosed[] [and] must be assigned the
consequent responsibility to gauge the likely net effect of all
such evidence and make disclosure when the point of




                              99
‘reasonable probability’ is reached.”). The Supreme Court
recently reiterated that state courts are required to evaluate the
materiality of suppressed evidence cumulatively. Wearry,
136 S. Ct. at 1007 (“[T]he state postconviction court
improperly evaluated the materiality of each piece of
evidence in isolation rather than cumulatively.”)

        As acknowledged by the District Court, the cumulative
impeachment value of the suppressed evidence would have
undermined the Commonwealth’s case. The Cason receipt
would have impeached the Commonwealth’s primary
response to Dennis’s alibi by providing documentary proof
that Cason testified falsely and would have transformed her
into a witness for the defense. The inconsistent statement
contained in the police activity sheet would have impeached
Howard’s credibility, undoubtedly the Commonwealth’s most
important eyewitness.       Her impeachment by the Pugh
statement would challenge her credibility, not simply the
reliability of her identification during the photo array and
lineup, which was what defense counsel was limited to at
trial. Discrediting Cason and Howard may very well have
raised sufficient doubt among the jury to acquit Dennis.
Moreover, the Frazier documents could have supported the
existence of another suspect who attended Howard’s high
school, and the significance of this becomes even more
pronounced when considered with Howard’s statements to the
Pughs that the suspect attended her high school.

       Together, the suppressed documents provided ample
material to challenge the Commonwealth’s investigation
following the murder. As the District Court stated:




                               100
      Defense would have had a strong case to make
      that the Commonwealth abandoned promising
      leads: Police failed to meet with Frazier’s aunt,
      to verify Walker's alibi, or to include Walker
      and Brown in photo arrays or line-ups; police
      also failed to follow up with Howard about the
      statement she allegedly made to the Pughs, to
      take a formal statement from the Pughs, or to
      interview Quinton. The Commonwealth
      allowed Cason to testify incorrectly that she
      worked until 2 p.m., and failed to investigate
      Dennis’[s] alibi given the actual timing of
      Cason’s       activities.    Discrediting      the
      investigation is a crucial corollary to presenting
      an innocence/alibi defense: If the defense could
      lead the jury to believe that the Commonwealth
      conducted a shoddy investigation, the jury
      would have been more likely to listen to and
      believe Dennis’[s] alibi.

Dennis V, 966 F. Supp. 2d at 518. The withholding of the
Brady material would have given defense counsel unique
ability to discredit the Commonwealth’s primary witnesses,
bolster his alibi defense using objective documentary support
from a disinterested party, highlight the shoddiness of the
Commonwealth’s investigation, and perhaps point to another
perpetrator. The cumulative effect of the suppression of these
documents requires habeas relief.

IV.   Conclusion

       For the foregoing reasons, we will affirm the judgment
of the District Court and grant Dennis a conditional writ of




                             101
habeas corpus. Petitioner shall be released unless the
Commonwealth commences a new trial against him within
ninety days after issuance of the mandate.




                         102
McKEE, Chief Judge, concurring.

                        I. Introduction

       More than three decades ago, Justice Brennan
cautioned:

       [E]yewitness testimony is likely to be believed
       by jurors, especially when it is offered with a
       high level of confidence, even though the
       accuracy of an eyewitness and the confidence of
       that witness may not be related to one another at
       all. All the evidence points rather strikingly to
       the conclusion that there is almost nothing more
       convincing than a live human being who takes
       the stand, points a finger at the defendant, and
       says ‘That’s the one!’1

James Dennis was sentenced to death because three
eyewitnesses appeared at trial and confidently pointed their
fingers at him when asked if they saw Chedell Williams’ killer
in the courtroom. The prosecution later told the jury that if they
believed these witnesses, they should convict James Dennis of
first degree murder. And they did.

        The Dissent would deny Dennis relief in large part
because it believes that “the evidence against Dennis was
strong.”2 According to the Dissent, “it is hard to discount the
identification testimony of three eyewitnesses.”3 Yet, nearly
half a century of scientific research teaches that eyewitness
testimony can be one of the greatest causes of erroneous
convictions. The jurors in Dennis’ trial, like many juries, were
never properly instructed about the dangers of eyewitness
identifications. The jury charge given in this case failed to
equip them with the knowledge necessary to accurately assess
the reliability of the three eyewitnesses who pointed their
fingers at James Dennis and said, “He’s the one.”

1
  Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J.,
dissenting) (alterations and emphasis in original) (quoting
Elizabeth Loftus, Eyewitness Testimony 19 (1979)).
2
  Dissent at 1 (Fisher, J.).
3
  Id.
                                1
        I therefore write separately to underscore the problems
inherent in eyewitness testimony and the inadequacies of our
standard jury instructions relating to that evidence. Jury
instructions must educate jurors on the relevant scientific
findings regarding eyewitness reliability in order to mitigate
the dangers associated with inaccurate eyewitness
identifications. The standard instructions, which were used
here, are not only insufficient, they are misleading. However, I
join the Majority’s thoughtful explanation of why Dennis is
entitled to relief under AEDPA’s stringent standard of review
in its entirety.

        In the last thirty years, over 2,000 studies have
examined human memory and cognition and their relationship
to the reliability of eyewitness identifications.4 This impressive
body of scholarship and research has revealed that eyewitness
accounts can be entirely untrustworthy. As the International
Association of Chiefs of Police has concluded, “[o]f all
investigative procedures employed by police in criminal cases,
probably none is less reliable than the eyewitness
identification.”5

      Yet, the law has not caught up to the science. The
Innocence Project has documented that, nationwide,
eyewitness misidentifications have been a factor in seventy-
five percent of the wrongful convictions that were
subsequently overturned by DNA evidence.6 One of the most

4
  State v. Henderson, 27 A.3d 872, 892 (N.J. 2011), holding
modified by State v. Chen, 27 A.2d 930 (N.J. 2011); Charles
A. Morgan III et al., Accuracy of Eyewitness Memory for
Persons Encountered During Exposure to Highly Intense
Stress, 27 Int’l J.L. & Psychiatry 265, 265 (2004).
5
  Int’l Ass’n of Chiefs of Police, Training Key No. 600:
Eyewitness Identification 5 (2006), available at
http://www.ripd.org/Documents/APPENDIX/2/Supporting%2
0Materials/IP%20113%20IACP%202006.pdf.
6
  The Innocence Project, Reevaluating Lineups: Why
Witnesses Make Mistakes and How to Reduce the Chance of a
Misidentification 3 (2009), available at
http://www.innocenceproject.org/wp-
content/uploads/2016/05/eyewitness_id_report-5.pdf; see also
                                2
powerful and prominent examples of such a wrongful
conviction is the story of Ronald Cotton and Jennifer
Thompson. In July 1984, a man broke into Thompson’s
apartment and raped her at knife point.7 When shown a photo
array three days later, Thompson tepidly selected Cotton as her
attacker.8 “I think this is the guy,”9 she said, pointing to
Cotton’s photo. The lead detective then asked her if she was
sure, and she responded, “Positive.”10 But belying her
professed certainty, she then asked the detective, “Did I do
OK?”11 He reassured her, “You did great.”12 About a month
later, Thompson viewed a live lineup, in which Cotton was the
only one repeated from the prior photo array.13 When
Thompson positively identified Cotton from that lineup, she
stated that she was certain he was the one who had attacked
her.14 Cotton was then arrested and charged with one count of
rape. At his trial, Thompson testified that she was “absolutely


Brandon L. Garrett, Convicting the Innocent: Where Criminal
Prosecutions Go Wrong 8-9, 279 (2011) (finding same in 190
of 250 DNA exoneration cases); Brief for Am. Psychol. Ass’n
as Amicus Curiae Supporting Petitioner at 14-15, Perry v.
New Hampshire, 132 S. Ct. 716 (2012) (“[S]tudies have
consistently found that the rate of inaccurate identifications is
roughly 33 percent.”).
7
  60 Minutes, Eyewitness: How Accurate is Visual Memory?,
CBS News, Mar. 6, 2009,
http://www.cbsnews.com/news/eyewitness-how-accurate-is-
visual-memory.
8
  Id.
9
  Committee on Scientific Approaches to Understanding and
Maximizing the Validity and Reliability of Eyewitness
Identification in Law Enforcement and the Courts, Committee
on Science, Technology, and Law, Committee on Law and
Justice, Division of Behavioral and Social Sciences and
Education, National Research Council, Identifying the
Culprit: Assessing Eyewitness Identification 10 (2014).
10
   Id.
11
   Id.
12
   Id.
13
   Id.; 60 Minutes, supra.
14
   National Research Council, Identifying the Culprit, supra,
at 10.
                               3
sure” that Cotton was her rapist.15 There was no corroboration
of her identification, and she admitted that she had not been
wearing her eyeglasses at the time of the attack.16 Nonetheless,
a jury convicted Cotton on the strength of Thompson’s positive
identification.17 Cotton was sentenced to life in prison plus
fifty-four years.18

        The story does not end there. In prison, Cotton learned
that a fellow inmate named Bobby Poole had admitted raping
Thompson to another inmate. Based on this information,
Cotton managed to win a new trial.19 At that retrial, Thompson
had an opportunity to view Poole. Her reaction: “I have never
seen him in my life.”20 As Thompson later recounted in an
interview about the case, when she was asked to look at Poole
during Cotton’s second trial, she was angry: “I thought, ‘how
dare you. How dare you question me? How dare you try to
paint me as someone who could possibly have forgotten what
my rapist looked like, I mean, the one person you would never
forget. How dare you.’”21

        Based on Thompson’s unequivocal affirmation of her
identification of Cotton, he was once again convicted. He
served over a decade in prison before DNA tests finally
confirmed that Cotton was innocent and Poole was, in fact, the
rapist.22 As one legal commentator described this case, “[t]he
fallibility of eyewitness testimony and the malleability of
memory could not be clearer, as here a crime victim had seen



15
   Id.
16
   Jules Epstein, Eyewitnesses and Erroneous Convictions: An
American Conundrum, in Controversies in Innocence Cases
in America 41, 43 (Sarah Lucy Cooper ed., 2014).
17
   National Research Council, Identifying the Culprit, supra,
at 10.
18
   Id.
19
   Epstein, supra, at 43.
20
   National Research Council, Identifying the Culprit, supra,
at 10.
21
   60 Minutes, supra.
22
   National Research Council, Identifying the Culprit, supra,
at 10.
                               4
the scientifically proven perpetrator but instead saw Cotton’s
face as that of her assailant.”23

       As I will elaborate below when I discuss the even more
remarkable story of John White’s erroneous conviction,
Cotton’s story cannot readily be dismissed as a fluke.
Moreover, problems of erroneous identification remain even
where more than one eyewitness identifies the same person as
the perpetrator. In thirty-eight percent of misidentification
cases documented by the Innocence Project, multiple
eyewitnesses misidentified the same innocent person. 24
Almost without exception, eyewitnesses who identify the
wrong person express complete confidence that they chose the
real perpetrators.25

        We should therefore find precious little solace in the
fact that three eyewitnesses fingered James Dennis. As I will
discuss, the procedures used to elicit the identifications of
Dennis and the circumstances surrounding the crime raise
serious questions about the accuracy of those identifications.
The voluminous studies conducted on the subjects of memory
and eyewitness identifications make it painfully clear that
many of the identification procedures used in this case were
inconsistent with the fundamental concept of neutral inquiry.
As a result, these identifications lack many of the basic indicia
of reliability. Yet, the jury that convicted Dennis was
completely unaware of these problems. In addition, the jurors
were never even informed that five other eyewitnesses, with
similar or better opportunities to observe the shooting, either
could not identify Dennis as Chedell Williams’ killer or
identified someone else. Accordingly, the three courtroom
identifications do little to assuage my concerns about the
reliability of the identification testimony that the jury
considered. Rather, I cannot help but wonder if an innocent
man may have spent more than two decades on death row.

        It is as obvious as it is tragic that mistaken
identifications have disastrous effects for the unjustly accused.

23
   Epstein, supra, at 43 (citation omitted).
24
   The Innocence Project, Reevaluating Lineups, supra, at 3.
25
   National Research Council, Identifying the Culprit, supra,
at 11.
                               5
That is particularly true where—as here—the death penalty is
imposed. But wrongful convictions are not the only
consequence of our continued failure to incorporate the
teachings of scientific research into judicial proceedings.
Mistaken identifications “also erode public confidence in the
criminal justice system as a whole.”26 In addition, when
someone is wrongfully convicted, the real perpetrator remains
free to victimize again. Thus, this is an issue of far-reaching
importance to the defense, prosecutors, police departments, as
well as to judges: All have an interest in minimizing the
possibility of erroneous identifications. The New Jersey
Supreme Court accurately described the situation in its
landmark decision discussing eyewitness identifications: “At
stake is the very integrity of the criminal justice system and the
courts’ ability to conduct fair trials.”27

         Before I begin my discussion of the science as applied
to this case, I want to emphasize that my point here is not to
cast aspersions on the motives of the police or prosecutors
involved in this investigation or to insinuate that they
intentionally used suggestive procedures to convict Dennis. On
the contrary, I have no reason to believe they were motivated
by anything other than a sincere desire to bring the killer of
Chedell Williams to justice. The science surrounding
eyewitness identifications and reliability was simply not as
well-understood at the time of Dennis’ investigation and trial
as it is today.

                    II. The Identifications

                         A. The Crime

       As the Majority recounts and the Dissent emphasizes,
the shooting at issue here occurred in broad daylight, at the
intersection of Tenth Street and Nedro Avenue, in
Philadelphia. This intersection is adjacent to the Fern Rock

26
   National Research Council, Identifying the Culprit, supra,
at 22 (citing Int’l Ass’n of Chiefs of Police, National Summit
on Wrongful Convictions: Building a Systemic Approach to
Prevent Wrongful Convictions (2013)).
27
   State v. Henderson, 27 A.3d 872, 879 (N.J. 2011), holding
modified by State v. Chen, 27 A.3d 930 (N.J. 2011).
                                6
SEPTA station, where steps lead up to a ticketing office. On
October 22, 1991, Chedell Williams and her friend Zahra
Howard walked up these steps so that Williams could purchase
a SEPTA Transpass. As they climbed the steps on opposite
sides of a railing that extended up the middle, two men
approached them head on. A man with a red sweat suit—whom
witnesses later uniformly described as the shooter—initially
approached Howard on her side of the railing and demanded
her earrings. The women fled, and Howard managed to hide
behind a nearby fruit stand while the man in the red sweat suit
pursued Williams into the intersection of Tenth and Nedro.
Howard later stated that, up until that point, she had not seen a
gun. Howard watched as the man in the red struggled to take
Williams’ earrings, pulled her close to him, and shot her in the
neck with a “silver revolver.”28 Williams fell to the ground, and
both men ran north on Tenth Street.

        Five other witnesses gave similar accounts of the
shooting in police interviews conducted the day of the murder.
First, James Cameron, a SEPTA cashier, stated that he was
standing at Tenth Street and Nedro Avenue, chatting with
another SEPTA employee, when he saw a man grab Williams
in the street, pull out a “dull silver gun,” and shoot her.29

      As the two perpetrators fled, they ran past Anthony
Overstreet and Thomas Bertha. Overstreet and Bertha were
working on a house on North Tenth Street, near the intersection
where the shooting occurred. After hearing screaming
followed by a gunshot, both men saw Williams fall to the
ground as the two perpetrators ran directly toward them. Both
Overstreet and Bertha observed the man in the red sweat suit
holding a chrome-plated gun in his hand.

       Overstreet’s initial interview with police is particularly
important because he expressed confidence that he would be
able to identify the shooter if he saw him again. Overstreet was
about six feet from the perpetrators as they ran past him. In his
interview, he recounted that they “both looked right in my
face” as they fled.30 Moreover, Overstreet told officers that “he

28
   J.A. 1495.
29
   J.A. 1496.
30
   J.A. 1494.
                               7
would definitely be able to identify them” because “he ha[d]
seen the man with the red hooded jumpsuit who had the gun
before.”31 Overstreet then explained that he might have known
the shooter from the “area of Broad & Clearview St[reets]
where he used to hang.”32 He later clarified that he thought he
had seen the shooter at a house where Overstreet used to smoke
cocaine, and he gave the police the address of that house.

       Another eyewitness who expressed confidence he could
identify the shooter was George Ritchie. At the time of the
shooting, Ritchie was repairing a car on Tenth Street. “He
heard 2 [black men] hollering and running away from the train
station and towards him in the middle of 10th St.” 33 Ritchie
was about twenty-five feet away from them and “saw them
clearly.”34 He told police that “he did get a good look at these
two [black males] and can identify them if he sees them
again.”35

        Another eyewitness, Clarence Verdell, had an
opportunity to view the perpetrators immediately prior to the
shooting and provided the police with a detailed description of
the accomplice’s face. Verdell saw the perpetrators as they
initially chased Williams and Howard down the ticketing
office steps. A moment later, Verdell heard what sounded like
a firecracker. He then turned and saw Williams fall to the
ground. Verdell never saw the gun and had never seen either
the girls or the males before. He told his interviewer that he
would be able to recognize the accomplice, but did not get a
good look at the shooter.

       Finally, police interviewed David LeRoy, a vendor who
sold hot dogs at Tenth and Nedro. He stated that he saw the
shooter pull Williams toward him and kill her. He noted that
the shooter had on a red hat, pulled down to his eyes.

      Two weeks after the crime, the police interviewed a fruit
vendor and his son, Joseph DiRienzo and Joseph DiRienzo, Jr.

31
   Id.
32
   Id.
33
   J.A. 1493.
34
   Id.
35
   Id.
                               8
They had also been present at the murder scene and echoed the
description of the crime provided by the other witnesses.

                      B. The Photo Arrays

        A few days after the shooting, the police heard rumors
that James Dennis might have been the shooter, and they
decided to show witnesses photo arrays containing his picture.
The detectives compiled three arrays of eight photographs
each. Dennis’ picture was placed in the first position of the first
array, and police used this array to solicit an identification of
the shooter (the second array was used to attempt identification
of the accomplice, and the third was shown thereafter to offer
the witnesses one more opportunity to identify a suspect). At
trial, Detective Manuel Santiago explained how he compiled
the array: he used the “most recent photo”36 that he could find
of Dennis and then “went into [police] files and obtained
photos of young black males, which would not be too unlike
the photo of Mr. James Dennis.”37 When Detective Santiago
showed the witnesses the arrays, he instructed them: “I’m
going to show you a photograph spread with eight photos. See
if you recognize anyone.”38

        Only four of the nine eyewitnesses could make any
identification from the arrays: Zahra Howard, Thomas Bertha,
Anthony Overstreet, and James Cameron indicated that Dennis
“look[ed] familiar.”39 However, none of these witnesses was
initially certain about their “identifications.” For example,
when Detective Santiago showed Howard the arrays, she
pointed to Dennis and stated, “[t]his one looks like the guy, but
I can’t be sure.”40 Detective Santiago next showed the same
spreads to James Cameron. When asked if he recognized
anyone, Cameron stated, “#1 looks familiar but I can’t be
sure.”41 When provided the same arrays, Bertha pointed to
Dennis and stated, “[t]hat looks like the one that was running


36
   J.A. 165.
37
   Id.
38
   J.A. 161.
39
   J.A. 1548.
40
   J.A. 1537.
41
   J.A. 1548.
                                9
with the gun.”42 Santiago probed further: “Can you be sure that
photo #1 is the male that you saw get away from the girl and
run at you with the gun after the gunshot?”43 It was then that
Bertha replied, “Yes I can.”44 Detective Santiago’s follow-up
question and Bertha’s response bear an eerie resemblance to
the follow-up question asked of Jennifer Thompson (“Are you
sure?”) after her response (“Positive”) following her initial
tentative selection of Ronald Cotton from a photo array.

        A different detective showed Anthony Overstreet the
arrays. After Overstreet had reviewed the first array, the
detective asked “[i]s there anyone in these photos that you can
identify?”45 Overstreet replied: “Yes, in the first set of photos,
#1 looks like the male who shot the girl.”46 The detective then
asked Overstreet to repeat his identification: “The male that
you identified, is he the male you saw running up the street
with the gun?” “Yes he is,” Overstreet confirmed.47 Thus,
when asked about the male that he had “identified,” Overstreet
moved from saying that Dennis’ picture “looked like” the
shooter to affirming that Dennis “is” the shooter. This may, at
first, appear to be a meaningless distinction that is nothing
more than innocuous reply to a simple follow-up question.
However, as I will discuss in greater detail below, such subtle,
and seemingly innocent, probes can sow seeds that blossom
into certain, albeit inaccurate, identifications.48

        Significantly, none of the remaining five eyewitnesses
selected Dennis from the photo arrays. When a detective
showed Verdell the spreads, he stated, “The best I can say is
it’s either #1, #5, or #8. I concentrated more on the male that
was directly behind Chedell and I believe him to be the
accomplice.”49 Verdell returned to the police station a few days
later to reexamine the photos. The second time around, he
stated “it would be either #1 or #8 who was the [shooter]. I lean

42
   J.A. 1555.
43
   J.A. 1556.
44
   Id.
45
   J.A. 1565.
46
   Id.
47
   J.A. 1566.
48
   See infra Part III.A.4.
49
   J.A. 1576.
                               10
more towards #1 because of the build of the male but he
definitely doesn’t have that cut of hair now. I definitely do not
remember him having his hair cut that way.”50 Neither David
LeRoy nor either of the DiRienzos identified Dennis from the
arrays.

        Finally, the Commonwealth denies that police ever
showed George Ritchie a photo array. Ritchie vigorously
disputes this claim. In 2005, Ritchie testified at Dennis’ Post-
Conviction Relief hearing that officers showed him an array
during their investigation but became frustrated when Ritchie
was unable to identify the shooter from the photos. Assuming
arguendo that the Commonwealth’s claim regarding Ritchie is
true, that means that the police and prosecution did not attempt
to learn if Ritchie would have identified Dennis or someone
else as the shooter even though Ritchie had initially expressed
confidence in his ability to identify the shooter.

                               C. The Lineup

         On December 19, 1991, about a month and a half after
the police showed the witnesses the photo arrays, officers
conducted an in-person lineup involving Dennis and five
fillers. Fillers are non-suspects who are added to the line-up to
provide the witnesses with choices. Although Dennis’ attorney
requested that all eyewitnesses be present, only the witnesses
who had identified Dennis from the photo array (Howard,
Cameron, Bertha, and Overstreet) participated.

       The police had those four witnesses view the lineup at
the same time, in the same room. Accordingly, nothing
prevented the witnesses from observing each other’s reactions.
As I elaborate below, studies consistently caution against
conducting a lineup in this fashion.51 At trial, one of the
officers that helped conduct the lineup, Detective William
Wynn, testified that the following instructions were given to
the four witnesses:

         We’re going to view a lineup of six men. They’ll
         be numbered from one through six from your left

50
     J.A. 1581.
51
     See infra Part III.A.4.
                                    11
         to your right. . . . I want you to look at each man
         carefully, see if you can identify any of these
         men as being involved in your incident. If you
         can identify any of these men, just remember the
         number of the man that you can identify, and
         when we’re through looking at all six men, I’ll
         order them out of this viewing area or box, as we
         call it. At that time I will call you outside of the
         lineup room, one at a time by name, and ask you
         as to whether or not you can make an
         identification. If you can, just tell me the number
         of the man that you can identify. If you can’t,
         simply tell that you cannot. It’s important that
         while you’re in the lineup room, there will be no
         pointing, talking, shouting or displaying of
         emotions so as not to influence one another’s
         decision. It will be important to you not only this
         evening but also at a later date.52

After the witnesses viewed each person in the lineup, the police
called them out of the room, one by one, and asked if they
could make an identification.

       Cameron and Bertha identified Dennis. Howard pointed
out Dennis, but was less sure, stating only “I think it was
[him].”53 Overstreet—the witness who initially expressed the
most confidence in his ability to identify the shooter due to his
alleged prior exposure to him—identified an entirely different
person from the lineup.

                    D. In-Court Identifications

       At Dennis’ trial over a year later, the prosecution called
only the three witnesses who had picked him from the photo
arrays and lineup. When asked whether Chedell Williams’
killer was in the courtroom, Bertha, Cameron, and Howard
each confidently pointed to Dennis, even though all three had
expressed doubt in their earlier identifications.

         III. The Science of Eyewitness Identifications

52
     J.A. 226-27.
53
     J.A. 228-29.
                                 12
        As I noted at the outset, we have long known that
eyewitness identifications are not always as reliable as
witnesses (and jurors) may believe them to be. In 1927, long
before the explosion of research in this area, Justice Felix
Frankfurter wrote: “[t]he hazards of [eyewitness identification]
testimony are established by a formidable number of instances
in the records of English and American trials.”54 In 1932, well
before the availability of DNA analysis, Yale Law professor
Edwin M. Borchard documented almost seventy cases
involving eyewitness errors that caused miscarriages of
justice.55 Over thirty years later, the Supreme Court
acknowledged this problem in United States v. Wade.56 There,
the Court famously proclaimed that “[t]he vagaries of
eyewitness identification are well-known; the annals of
criminal law are rife with instances of mistaken
identification.”57

       In the ensuing decades, the scientific community has
made significant strides in understanding this phenomenon.58
A combination of basic and applied research on human visual
perception and cognition has revealed that the reliability of
eyewitness identifications is largely contingent on the
conditions under which memories are created, stored, and then

54
   Felix Frankfurter, The Case of Sacco and Vanzetti: A
Critical Analysis for Lawyers and Laymen 30 (Universal
Library ed., 1962).
55
   Edwin M. Borchard, Convicting the Innocent; Sixty-Five
Actual Errors of Criminal Justice (1932).
56
   388 U.S. 218 (1967).
57
   Id. at 228.
58
   See, e.g., Gary L. Wells, Nancy K. Steblay, & Jennifer E.
Dysart, Double-Blind Photo Lineups Using Actual
Eyewitnesses: An Experimental Test of a Sequential Versus
Simultaneous Lineup Procedure, 39 L. & Hum. Behav. 1, 1
(2015); Laura Smalarz & Gary L. Wells, Contamination of
Eyewitness Self-Reports and the Mistaken-Identification
Problem, 24 Current Directions Psychol. 120, 120 (2015);
Brian L. Cutler & Steven D. Penrod, Mistaken Identification:
The Eyewitness, Psychology, and the Law (1995); Eyewitness
Testimony: Psychological Perspectives (Gary L. Wells &
Elizabeth A. Loftus eds., 1984).
                              13
later recalled. “At its core, eyewitness identification relies on
brain systems for visual perception and memory: The witness
perceives the face and other aspects of the perpetrator’s
physical appearance and bearing, stores that information in
memory, and later retrieves the information for comparison
with the visual percept of an individual in a lineup.”59 Research
has shown that certain variables can impact the processes of
these memory functions with serious implications for the
reliability of the subsequent memories. These variables
generally fall into two basic categories: system variables and
estimator variables.

                      A. System Variables

        System variables are the procedures and practices law
enforcement use to elicit eyewitness identifications.60
Examples of system variables include the instructions law
enforcement officers give to witnesses when they ask them to
provide identifications, the comments of police to witnesses
during the identification process, and the types of procedures
(lineup, photo array, etc.) used to solicit the identification.
These factors are important not only because they heavily
influence the reliability of identifications, but also because they
largely lie within the exclusive control of the criminal justice
system. The following section explores a few critical system
variables and their effects on the accuracy of eyewitness
identifications.

          1. Blinded versus Non-Blinded Procedures

       One of the most important system variables that law
enforcement can control is the blinding of identification
procedures.61 Blinding occurs when the officer administering
an identification procedure, such as a photo array, knows who
the suspect is but cannot determine when the witness is

59
   National Research Council, Identifying the Culprit, supra,
at 14-15.
60
   See id. at 16, 72, 76.
61
   See State v. Henderson, 27 A.3d 872, 896-97 (N.J. 2011),
holding modified by State v. Chen, 27 A.2d 930 (N.J. 2011);
National Research Council, Identifying the Culprit, supra, at
24-25, 26.
                                14
viewing the suspect’s photo. “In one common ‘blinded’
procedure, the officer places each photo in a separate envelope
or folder and then shuffles the envelopes/folders so that only
the witness sees the images therein.”62 This blinding can also
be doubled: for example, when an officer who neither knows
the suspect’s identity nor position in the photo array shows the
array to an eyewitness. Such blinding is used to prevent the
officer from giving the witness conscious or unconscious cues
that can affect the witness’ identification.63

        Common sense suggests that identification procedures
administered without some degree of blinding are inherently
untrustworthy, and research confirms this.64 Typically, the
greater the level of blinding, the more reliable the procedure.
One of the foremost experts on eyewitness identifications has
concluded that blind lineup administration is “the single most
important characteristic that should apply to eyewitness
identification.”65 Social psychologists believe this is crucial to
avoiding the “expectancy effect”: “the tendency for
experimenters to obtain results they expect . . . because they
have helped to shape that response through their
expectations.”66 In a seminal meta-analysis of 345 studies
across eight broad categories of behavioral research,
researchers found that “[t]he overall probability that there is no
such thing as interpersonal expectancy effects is near zero.”67
“Even seemingly innocuous words and subtle cues—pauses,
gestures, hesitations, or smiles—can influence a witness’
behavior.”68 Moreover, the witness usually remains completely

62
   National Research Council, Identifying the Culprit, supra,
at 25.
63
   Id. at 25.
64
   See Henderson, 27 A.3d at 896-97; National Research
Council, Identifying the Culprit, supra, at 24-25, 26.
65
   Henderson, 27 A.3d at 896 (internal quotation marks
omitted).
66
   Robert Rosenthal & Donald B. Rubin, Interpersonal
Expectancy Effects: The First 345 Studies, 3 Behav. & Brain
Sci. 377, 377 (1978).
67
   Id.
68
   Henderson, 27 A.3d 896 (citing Ryann M. Haw & Ronald
P. Fisher, Effects of Administrator-Witness Contact on
Eyewitness Identification Accuracy, 89 J. Applied Psychol.
                               15
unaware of the signals she has been given or their effect on her
identification.

        Outside the realm of law enforcement, in scientific
experiments for instance, it is standard practice to use blinding.
The importance of blind administration is so great that a failure
to implement such a policy can affect even seemingly objective
processes, such as the analysis of DNA samples. In one
experiment, researchers gave seventeen experienced DNA
analysts a mixed sample of DNA evidence from an actual
crime scene—a gang rape committed in Georgia.69 All
seventeen analysts worked at the same accredited government
laboratory in the United States.70 Years earlier, prosecutors had
relied on this evidence to convict a man named Kerry
Robinson.71 In the real investigation, two analysts from the
Georgia Bureau of Investigation concluded that Robinson
“could not be excluded” as a suspect based on his DNA profile
relative to the crime scene sample.72 Nevertheless, of the
seventeen analysts involved in the study of this case, only one
agreed that Robinson “could not be excluded.”73 Four analysts
found that the evidence was inconclusive, and the other twelve
said he could be excluded.74 All seventeen analysts were
blinded to contextual information about the case. 75 Experts
speculated that a failure to blind the DNA testing in the real
investigation could explain the inconsistency between the
results the Georgia Bureau of Investigation and the seventeen
independent analysts obtained. “The difference between you
giving them the data and saying ‘what do you make of it?’ and


1106, 1107 (2004) and Steven E. Clark, Tanya E. Marshall, &
Robert Rosenthal, Lineup Administrator Influences on
Eyewitness Identification Decisions, 15 J. Experimental
Psychol.: Applied 63, 66-73 (2009)).
69
   Linda Geddes, Fallible DNA Evidence Can Mean Prison or
Freedom, 2773 The New Scientist: Special Report 1, 5
(2010).
70
   Id.
71
   Id.
72
   Id.
73
   Id.
74
   Id.
75
   Id.
                               16
the local district attorney giving them the data and saying
‘We’ve arrested someone, is his profile in here?’ is huge.”76

      The Supreme Court has recognized the significance of
such cues for decades. In 1967, in United States v. Wade, the
Court ruled that a pretrial lineup is a “critical stage” of
prosecution at which a defendant had a right to the presence of
counsel.77 The Court explained:

       The fact that the police themselves have, in a
       given case, little or no doubt that the man put up
       for identification has committed the offense, and
       that their chief pre-occupation is with the
       problem of getting sufficient proof, because he
       has not “come clean,” involves a [] danger that
       this persuasion may communicate itself even in
       a doubtful case to the witness in some way.78

The importance of conscious and unconscious police
persuasion cannot be overstated in the context of a trial because
it negates the effect that strenuous cross-examination may
otherwise have on the witness’ confidence in her identification.
“[E]ven though cross-examination is a precious safeguard to a
fair trial, it cannot be viewed as an absolute assurance of
accuracy and reliability.”79 Obviously, if an eyewitness is
completely unaware that her identification has been shaped by
subliminal cues communicated by investigators, it is incredibly
difficult, if not impossible, to dissuade that witness of the
accuracy of her identification. As was true for Jennifer
Thompson in the rape case discussed earlier, vigorous cross-
examination may serve only to reinforce the witness’ certainty
of her identification.80 The Supreme Court recognized in Wade
that once a pretrial identification is made, the identifying
witness becomes “the sole jury.”81 Thus, “[t]he trial which


76
   Id. at 6 (internal quotation marks omitted).
77
   388 U.S. 218, 236-37 (1967).
78
   Id. at 235 (internal alterations, quotation marks, and
citation omitted).
79
   Id.
80
   See 60 Minutes, supra.
81
   Wade, 388 U.S. at 235.
                               17
might determine the accused’s fate may well not be that in the
courtroom but that at the pretrial confrontation.”82

        None of the identifications in Dennis’ case were
obtained through processes that included blinding. The officers
who showed the photo arrays and conducted the lineup knew
that Dennis was the suspect, and they knew his position in the
arrays and in the lineup. As the above studies make clear, it is
entirely possible that the officers investigating Williams’
killing gave the witnesses unconscious cues about their
suspicions. Dennis’ jurors would have been in a far better
position to assess the reliability of the three courtroom
identifications had they been informed of the importance of
blinding procedures and their absence here.

               2. Pre-Identification Instructions

       The instructions police give witnesses prior to
attempting to elicit an identification constitute a second
important system variable. There is broad consensus that police
must instruct witnesses that the suspect may not be in the lineup
or array and that the witness should not feel compelled to
identify anyone.83 In two meta-analyses, researchers found that
providing this information to witnesses in advance
significantly increased the reliability of the results in target-
absent lineups.84 In one study, the number of people that chose
innocent fillers in target-absent lineups increased by forty-five
percent when the lineup administrators failed to tell the
subjects that they need not choose a suspect.85


82
   Id.
83
   State v. Henderson, 27 A.3d 872, 897 (N.J. 2011), holding
modified by State v. Chen, 27 A.2d 930 (N.J. 2011).
84
   See Steven E. Clark, A Re-examination of the Effects of
Biased Lineup Instructions in Eyewitness Identification, 29
Law & Hum. Behav. 395, 418-20 (2005); Nancy M. Steblay,
Social Influence in Eyewitness Recall: A Meta-Analytic
Review of Lineup Instruction Effects, 21 Law & Hum. Behav.
283, 285-86, 294 (1997).
85
   See Roy S. Malpass & Patricia G. Devine, Eyewitness
Identification: Lineup Instructions and the Absence of the
Offender, 66 J. Applied Psychol. 482, 485 (1981).
                               18
        One hardly needs to engage in a protracted review of the
wealth of data on this point to appreciate its implications.
Without such instructions, witnesses may misidentify innocent
suspects merely because they assume the suspect is present and
the person misidentified bears the strongest resemblance to the
actual perpetrator. Research confirms this.86 It is therefore
critical that courts inform jurors of this system variable where
present. Such information enables jurors to consider the impact
that the absence of such instructions may have had on witness
identifications.

        The record in Dennis’ case shows that the investigators
failed to give such instructions to the witnesses. Accordingly,
there is a real risk that the witnesses identified Dennis because
he most closely resembled Williams’ killer. Indeed, that is a
fair interpretation of this record. Upon seeing Dennis’ photo,
Howard did not say “that’s him,” or “I think this is the shooter.”
Instead, she tentatively told officers: “This one looks like the
guy, but I can’t be sure.”87 Like Howard, Bertha and Cameron
also initially responded to these arrays in a manner that
strongly suggests that they selected Dennis because his
photograph bore a closer resemblance to the shooter than any
of the fillers. They qualified their selection of Dennis by
saying: “Number 1 looks familiar but I can’t be sure”88; and
“that looks like the one that was running with the gun.”89 It
simply cannot be assumed that either statement was the
equivalent of proclaiming: “that’s him,” or “he’s the one.”

           3. Photo Array and Lineup Construction

        Researchers have also found that the way that a photo
array or live lineup is constructed can affect the reliability of
the resulting identifications. A number of considerations are
critical. First, not surprisingly, mistaken identifications are
more likely where the suspect stands out in comparison to the


86
   See Clark, Effects of Biased Lineup Instructions, supra, at
421; Steblay, Social Influence in Eyewitness Recall, supra, at
284.
87
   J.A. 1537 (emphasis added).
88
   J.A. 1548 (emphasis added).
89
   J.A. 1555 (emphasis added).
                               19
fillers.90 Using fillers that are relative look-alikes forces a
witness to examine her memory, whereas placing the suspect
among a group of individuals that bear little resemblance to
him causes him to stand out. “[A] biased lineup may [also]
inflate a witness’ confidence in the identification because the
selection process seemed easy.”91 As of yet, there is no clear
agreement among researchers about whether fillers should
more closely resemble a witness’ pre-lineup description of the
suspect or the actual suspect.92 However, whether the fillers
more closely resemble the suspect or the witness’ pre-lineup
description, the fillers’ appearances should not make the
suspect stand out.

        Second, all lineups should include a minimum of five
      93
fillers. The logic here, which appears to be a matter of general
agreement, is again clear: the greater the number of choices,
the less the chance of making a lucky guess, and the more the


90
   See Roy S. Malpass, Colin G. Tredoux, & Dawn
McQuiston-Surrett, Lineup Construction and Lineup
Fairness, in 2 The Handbook of Eyewitnesses Psychology
155, 156-58 (2007).
91
   State v. Henderson, 27 A.3d 872, 898 (N.J. 2011), holding
modified by State v. Chen, 27 A.2d 930 (N.J. 2011) (citing
David F. Ross et al., When Accurate and Inaccurate
Eyewitnesses Look the Same: A Limitation of the ‘Pop-Out’
Effect and the 10-to 12-Second Rule, 21 Applied Cognitive
Psychol. 677, 687 (2007) and Gary L. Wells & Amy L.
Bradfield, Measuring the Goodness of Lineups: Parameter
Estimation, Question Effects, and Limits to the Mock Witness
Paradigm, 13 Applied Cognitive Psychol. S27, S30 (1999)).
92
   Compare Steven E. Clark & Jennifer L. Tunnicliff,
Selecting Lineup Foils in Eyewitness Identification
Experiments: Experimental Control and Real-World
Simulation, 25 L. & Hum. Behav. 199, 212 (2001), and Gary
L. Wells, Sheila M. Rydell, & Eric P. Seelau, The Selection of
Distractors for Eyewitness Lineups, 78 J. Applied Psychol.
835, 842 (1993), with Stephen Darling, Tim Valentine, &
Amina Memon, Selection of Lineup Foils in Operational
Contexts, 22 Applied Cognitive Psychol. 159, 165-67 (2008).
93
   See Nat’l Inst. of Justice, U.S. Dep’t of Justice, Eyewitness
Evidence: A Guide for Law Enforcement 29 (1999).
                              20
witness is forced to rely on her own memory to identify the
suspect.

        Third, for similar reasons, lineups should not feature
more than one suspect. In its landmark decision on the issue of
eyewitness identification, the Supreme Court of New Jersey
emphasized that, “if multiple suspects are in the lineup, the
reliability of a positive identification is difficult to assess, for
the possibility of ‘lucky’ guesses is magnified.”94

        The trial judge here noted that the composition of the
lineup was somewhat suggestive because Dennis was slightly
shorter than the rest of the participants, causing him to stand
out. The jurors were therefore able to consider this disparity as
they evaluated the reliability of the identifications. However,
the court did not provide the jury with an explanation of how
this may have affected the witnesses’ identifications of Dennis
in that lineup. Nor did it give the jurors information that would
allow them to consider the lineup construction in context with
all of the other factors that were involved in the identifications
of Dennis.

      4. Interactions with Witnesses: Witness Feedback

       Another critical system variable is whether law
enforcement provides a witness with any feedback or other
information in the course of her identification. As I touched on
in my discussion of blinding procedures, “[t]he nature of law
enforcement interactions with the eyewitness before, during,
and after the identification plays a role in the accuracy of
eyewitness identifications and in the confidence expressed in
the accuracy of those identifications by witnesses.”95 Elizabeth
Loftus, a pioneering researcher in the field of human memory
and cognition, has thoroughly documented the effects of
received information on memory accuracy. In one study, she

94
   Henderson, 27 A.3d at 898 (internal quotation marks
omitted).
95
   National Research Council, Identifying the Culprit, supra,
at 91 (citing Steven. E. Clark, Tanya E. Marshall, & Robert
Rosenthal, Lineup Administrator Influences on Eyewitness
Identification Decisions, 15 J. of Experimental Psychol.:
Applied 63 (2009)).
                                21
showed college students a video of a car crash on a country
road.96 Afterward, she asked them to estimate how fast the car
was going. Half the students were asked how fast the car was
going when it “passed the barn” along the country road; the
other half were simply asked how fast the car was going “along
the country road.”97 A week later, she asked the same students
whether they had seen a barn in the film. Approximately
seventeen percent of the students who were given the “passed
the barn” cue recalled seeing the barn in the video.98 In
contrast, less than three percent of the non-barn cue group
remembered a barn.99 In reality, there was no barn in the
video.100 This demonstrates the very subtle—yet extremely
powerful—effect statements at the time of memory recall can
have.

        In the eyewitness identification context, such
information often comes in the form of pre- or post-
identification information that may reinforce an identification.
For example, research confirms the intuitive proposition that
when investigators give cues that suggest “you got the right
guy,” the witness’ confidence in the identification is artificially
inflated. A meta-analysis of twenty studies covering 2,400
identifications found that witnesses who received feedback
“expressed significantly more retrospective confidence in their
decision compared with participants who received no
feedback.”101 Such feedback not only causes a witness to
misjudge the reliability of her identification, it can also result
in the witness embellishing the opportunity she had to observe
the perpetrator and the crime. “Those who receive a simple
post-identification confirmation regarding the accuracy of their
identification significantly inflate their reports to suggest better
witnessing conditions at the time of the crime, stronger

96
   See Elizabeth F. Loftus, Leading Questions and the
Eyewitness Report, 7 Cognitive Psychol. 560, 566 (1975).
97
   Id.
98
   Id.
99
   Id.
100
    Id.
101
    Amy B. Douglass & Nancy M. Steblay, Memory
Distortion in Eyewitnesses: A Meta-Analysis of the Post-
identification Feedback Effect, 20 Applied Cognitive
Psychol. 859, 863 (2006).
                                22
memory at the time of the lineup, and sharper memory abilities
in general.”102 Furthermore, confirmational feedback need not
be immediate to corrupt a witness’ memory. One study showed
that the effects of confirmational feedback may be the same
even when it occurs two days after an identification.103 Other
research further substantiates that these effects can withstand
the passage of time.104

        The particular perils of witness feedback are evident in
many of the documented cases of false identifications. Here
again, the story of Ronald Cotton and Jennifer Thompson is
illustrative: officer feedback led Thompson to harden her false
memory of Cotton as her rapist. In the process, her memory
was effectively immunized from any impact cross-examination
may otherwise have had on her confidence, which impeded the
jury’s ability to properly assess her testimony.

       I realize, of course, that law enforcement officials are
not completely in control of the feedback witnesses receive.
Interactions among witnesses outside the confines of police
proceedings, for instance, can affect the reliability of the
witnesses’ identifications.105 For example, if one witness talks

102
    Id. at 864-65; see also Gary L. Wells & Amy L. Bradfield,
“Good, You Identified the Suspect”: Feedback to
Eyewitnesses Distorts Their Reports of the Witnessing
Experience, 83 J. Applied Psychol. 360 (1998).
103
    See Gary L. Wells, Elizabeth A. Olson, & Steve D.
Charman, Distorted Retrospective Eyewitness Reports as
Functions of Feedback and Delay, 9 J. Experimental
Psychol.: Applied 42, 49-50 (2003).
104
    See Jeffrey S. Neuschatz et al., The Effects of Post-
Identification Feedback and Age on Retrospective Eyewitness
Memory, 19 Applied Cognitive Psychol. 435, 449 (2005).
105
    See, e.g., Rachel Zajac & Nicola Henderson, Don’t It
Make My Brown Eyes Blue: Co-Witness Misinformation
About a Target’s Appearance Can Impair Target-Absent
Line-up Performance, 17 Memory 266, 275 (2009)
(“[P]articipants who were [wrongly] told by the [co-witness]
that the accomplice had blue eyes were significantly more
likely than control participants to provide this information
when asked to give a verbal description.”); Lorraine Hope et
al., “With a Little Help from My Friends . . .”: The Role of
                              23
to another, she can alter or reinforce the other’s memory of the
same event. “[P]ost-identification feedback does not have to be
presented by the experimenter or an authoritative figure (e.g.
police officer) in order to affect a witness’ subsequent crime-
related judg[]ments.”106 In one study, after witnesses made
incorrect identifications, they were told either that their co-
witness made the same or a different identification.107 Not
surprisingly, confidence rose among the witnesses that were
told that their co-witness had agreed with them and fell among
those told that co-witnesses had disagreed.108

      Though law enforcement officials may not be able to
completely insulate witnesses from this system variable, police
did not even attempt to guard against it here. The witnesses

Co-Witness Relationship in Susceptibility to Misinformation,
127 Acta Psychologica 476, 481 (2008) (noting that all
participants “were susceptible to misinformation from their
co-witness and, as a consequence, produced less accurate
recall accounts than participants who did not interact with
another witness”); Helen M. Paterson & Richard I. Kemp,
Comparing Methods of Encountering Post-Event
Information: The Power of Co-Witness Suggestion, 20
Applied Cognitive Psychol. 1083, 1083 (2006) (“Results
suggest that co-witness information had a particularly strong
influence on eyewitness memory, whether encountered
through co-witness discussion or indirectly through a third
party.”); John S. Shaw III, Sena Garven, & James M. Wood,
Co-Witness Information Can Have Immediate Effects on
Eyewitness Memory Reports, 21 Law & Hum. Behav. 503,
503, 516 (1997) (“[W]hen participants received incorrect
information about a co-witness’s response, they were
significantly more likely to give that incorrect response than
if they received no co-witness information.”); C.A. Elizabeth
Luus & Gary L. Wells, The Malleability of Eyewitness
Confidence: Co-Witness and Perseverance Effects, 79 J.
Applied Psychol. 714, 717-18 (1994).
106
    Elin M. Skagerberg, Co-Witness Feedback in Line-ups, 21
Applied Cognitive Psychol. 489, 494 (2007).
107
    Luus & Wells, The Malleability of Eyewitness Confidence,
supra, at 717-18.
108
    Id.; see also Skagerberg, supra, at 494-95 (showing similar
results).
                              24
who identified Dennis viewed the lineup in the same room and
at the same time. Detective Wynn’s instruction to the witnesses
not to react or show emotion during the lineup reduces the risk
of feedback, but this instruction did not eliminate it. Therefore,
the risk that the witnesses’ reactions may have influenced the
results of the lineup cannot be discounted, and the jurors should
have been instructed about this possibility.

        Furthermore, the record of Bertha’s photo array
identification establishes the existence of at least some officer-
to-witness feedback. Detective Santiago asked Bertha to affirm
his identification: “Can you be sure that photo #1 is the male
that you saw get away from the girl and run at you with the gun
after the gunshot?”109 Only then did Bertha state he was
“sure”110 Dennis was the shooter as opposed to his initial
statement that Dennis’ photo merely “look[ed] like”111 the
shooter.

        I am not suggesting that Detective Santiago’s question
ultimately negated Bertha’s ability to make an in-court
identification. Nor am I suggesting that Detective Santiago
intentionally tried to reinforce Bertha’s confidence in his
identification or “prime” him for a subsequent in-court
identification. I am, however, suggesting that the jury should
have been informed of how Detective Santiago’s response to
Bertha’s initial selection of Dennis’ photo may have affected
the reliability of Bertha’s lineup identification and, as I next
explain, his subsequent in-court identification as well.

                      5. Multiple viewings

       Another crucial system variable—and one that was
clearly present here—is the opportunity to engage in multiple
viewings of a suspect. Allowing a witness to view a suspect
more than once during an investigation can have a powerful
corrupting effect on that witness’ memory. It creates a risk that
the witness will merely identify a suspect based on her past
views of him rather than her memory of the relevant event.
Meta-analysis has revealed that while fifteen percent of

109
    J.A. 1556.
110
    Id.
111
    J.A. 1555.
                               25
witnesses mistakenly identify an innocent person during the
first viewing of a lineup, that percentage jumps to thirty-seven
percent if the witness previously viewed that innocent person’s
mug shot.112 This phenomenon is known as “mug shot
exposure.” Related studies have also shown the existence of
“mug shot commitment.” This refers to the fact that once
witnesses positively identify an innocent person from a mug
shot, “a significant number” then “reaffirm[] their false
identification” in a later photo lineup.113 This is true even when
the real suspect is actually present in the lineup.114
Nonetheless, multiple viewings seem to have no impact on the
reliability of a lineup identification “when a picture of the
suspect was not present in photographs examined earlier”115 by
the witness.

        The incredible story of John White that I mentioned at
the outset serves as a powerful example of the impact that
multiple viewings can have on witness identifications. In 1979,
John White was accused of breaking into the home of a
seventy-four-year-old woman and then beating and raping
her.116 After the victim picked White out of a photo array, he
was placed in a live lineup.117 White was the only person
repeated in both the photo array and live lineup. The victim


112
    Kenneth A. Deffenbacher, Brian H. Bornstein, & Steven
D. Penrod, Mugshot Exposure Effects: Retroactive
Interference, Mugshot Commitment, Source Confusion, and
Unconscious Transference, 30 L. & Hum. Behav. 287, 299
(2006).
113
    See Gunter Koehnken, Roy S. Malpass, Michael, S.
Wogalter, Forensic Applications of Line-Up Research, in
Psychological Issues in Eyewitness Identification 205, 219
(Siegfried L. Sporer, Roy S. Malpass, Gunter Koehnken eds.,
1996).
114
    Id.
115
    Id. at 218. However, as noted earlier, Dennis’ picture was
presented in photo arrays that witnesses saw prior to viewing
the lineup.
116
    The Innocence Project, John Jerome White,
http://www.innocenceproject.org/cases/john-jerome-white/
(last visited July 5, 2016).
117
    Id.
                               26
identified White from that live lineup.118 DNA analysis later
revealed that the victim’s actual assailant was not White, but a
man named James Parham. By the cruelest of ironies, Parham
had actually been placed in the live lineup with White as a filler
when the victim identified White as her assailant. Despite
having an opportunity to view her real rapist in the lineup, the
victim affirmed her initial selection of White. Her erroneous
identification led to a life sentence for White, who served
twenty-seven years before the DNA evidence exonerated
him.119

      A leading researcher offered the following explanation
of White’s case:

       The witness had already identified John White
       from a photographic lineup. And, John White
       was the only person who was in both the
       photographic lineup and the live lineup. Hence,
       what we have here, I believe, is a strong
       example of how a mistaken identification from
       one procedure (a photo lineup) is repeated in
       the next procedure (a live lineup) even though
       the real perpetrator is clearly present in the
       second procedure. Repeating the same mistake
       can occur for several reasons. One possibility is
       that the initial mistaken identification changed
       the memory of the witness; in effect John
       White’s face “became” her memory of the
       attacker and the face of Parham no longer
       existed once she mistakenly identified John
       White. Another possibility is that she
       approached the live lineup with one goal in
       mind - find the man she had identified from the
       photos. Perhaps she never really looked at
       Parham because she quickly saw the man she
       identified from photos and did not need to look
       further.120


118
    Id.
119
    Id.
120
    Gary Wells, The Mistaken Identification of John Jerome
White,
                               27
        The witnesses who identified Dennis at trial were given
not two, but three, opportunities to view Dennis. These
multiple views could help explain why initially tentative
guesses became certain identifications by the time the
witnesses took the stand. The possibility cannot be ignored that
the witnesses here, like the victims in White and Cotton’s
cases, selected Dennis in the live lineup because they were
looking for the man they had already identified from the photo
arrays. The jurors should have been informed of the impact of
multiple viewings so that they could have considered that
effect in determining how much weight to afford the lineup
identifications and/or the in-court identifications. Absent that
information, the jurors were ill equipped to assess the
possibility that Howard, Bertha, and Cameron’s lineup and in-
court identifications of Dennis may have been based on prior
viewings of his picture rather than their memories of the crime.

        These system variables on the accuracy of eyewitness
identifications highlight the importance of the procedures law
enforcement officials use when soliciting identifications. As
the Oregon Supreme Court has explained, “it is incumbent on
courts and law enforcement personnel to treat eyewitness
memory just as carefully as they would other forms of trace
evidence, like DNA, bloodstains, or fingerprints, the
evidentiary value of which can be impaired or destroyed by
contamination. Like those forms of evidence, once
contaminated, a witness’ original memory is very difficult to
retrieve.”121

                    B. Estimator Variables

      Estimator variables are the conditions present during
memory formation or storage. They can also have a substantial
impact on the reliability of eyewitness identifications.122

https://public.psych.iastate.edu/glwells/The_Misidentification
_of_John_White.pdf (last visited July 6, 2016).
121
    State v. Lawson, 291 P.3d 673, 689 (Or. 2012).
122
    See State v. Henderson, 27 A.3d 872, 895 (N.J. 2011),
holding modified by State v. Chen, 27 A.2d 930 (N.J. 2011);
National Research Council, Identifying the Culprit, supra, at
1, 72, 92-93.
                              28
Crucial estimator variables include, but are not limited to, the
amount of stress on the observer, the presence of weapons, and
visibility conditions. Unlike system variables, estimator
variables are beyond the control of the criminal justice system.
Nevertheless, asking jurors to consider eyewitness
identifications without properly instructing them on the impact
that such estimator variables may have had erects yet another
barrier to accurate evaluation of identifications.

                            1. Stress

       First, high levels of stress at the time of memory
formation can negatively impact a witness’ ability to
accurately identify the perpetrator.123 Stressful conditions
impair a witness’ ability to identify key characteristics of an
individual’s face.124 A meta-analysis of the effect of high stress
on eyewitness identifications found that stress hampers both
eyewitness recall and identification accuracy.125

        A recent study examining the effects of stress on
identifications at a U.S. Military mock prisoner-of-war camp
illustrates this phenomenon.126 In this study, 509 active-duty
military personnel, with an average of 4.2 years in the service,
underwent two types of interrogations.127 After twelve hours of
confinement, participants experienced either a high-stress
interrogation involving real physical confrontation followed by
a low-stress interrogation without physical confrontation, or


123
    See Charles A. Morgan III et al., Accuracy of Eyewitness
Identification Is Significantly Associated with Performance
on a Standardized Test of Face Recognition, 30 Int’l J.L. &
Psychiatry 213 (2007); Kenneth A. Deffenbacher et al., A
Meta-Analytic Review of the Effects of High Stress on
Eyewitness Memory, 28 L. & Hum. Behav. 687 (2004);
Morgan et al., Accuracy of Eyewitness Memory, supra.
124
    See Charles A. Morgan III et al., Misinformation Can
Influence Memory for Recently Experienced, Highly Stressful
Events, 36 Int’l J.L. & Psychiatry 11, 15 (2013).
125
    Deffenbacher et al., Effects of High Stress, supra, at 699.
126
    Morgan et al., Accuracy of Eyewitness Memory, supra, at
266.
127
    Id. at 267-68.
                               29
vice versa.128 The interrogations were separated by
approximately four hours, and about half the participants
received the high-stress interrogation first, while the other half
experienced the low-stress interrogation first.129 Both
interrogations lasted about forty minutes.130 Twenty-four hours
after the interrogations, the participants were asked to identify
their interrogators from live lineups, sequential photo arrays,
or simultaneous photo arrays.131 Across all identification
procedures, subjects had far more difficulty accurately
identifying their high-stress interrogators.132 Sixty-two percent
of subjects could identify their low-stress interrogators in live
lineups, while only thirty percent of subjects could accurately
identify their high-stress interrogators from such lineups.133
Furthermore, fifty-six percent of subjects erroneously
identified a person who was not their interrogator (false
positive) during live lineups, while only thirty-eight percent of
subjects did so for their low-stress interrogations.134

       This study is particularly stunning when one considers
that the subjects all had a prolonged and unobstructed
opportunity to view their interrogators, and the interrogators
were all within arm’s reach of their subjects. The subjects’
ability to see the faces of their interrogators was therefore
exponentially better than the opportunity witnesses to most
violent crimes have to see perpetrators. Their views were
certainly better than those of Howard, Bertha, and Cameron.
As the study’s authors explained,

       [c]ontrary to the popular conception that most
       people would never forget the face of a clearly
       seen individual who had physically confronted
       them and threatened them for more than 30
       min[utes], . . . [t]hese data provide robust
       evidence that eyewitness memory for persons
       encountered during events that are personally

128
    Id. at 268.
129
    Id.
130
    Id.
131
    Id. at 269-70.
132
    Id. at 272.
133
    Id.
134
    Id.
                               30
       relevant, highly stressful, and realistic in nature
       may be subject to substantial error.135

Notably, this study further found that memories formed during
a stressful event are highly susceptible to modifications from
misinformation received after the event. That has particular
relevance here given the presence of the system variables
described above.

       Stress almost certainly affected all of the witnesses who
saw Chedell Williams gunned down. The shooting
undoubtedly caused Howard—the prosecution’s star
witness—a significant amount of stress. Not only was she
herself chased, but she also watched as the perpetrator grabbed
her best friend and shot her at point-blank range. It is not
surprising that multiple witnesses recalled hearing Howard
screaming. Stress also likely affected Bertha’s ability to later
make an accurate identification. He saw the shooter as the
shooter rushed him, head on, pistol in hand. Jurors cannot
properly assess eyewitness identification testimony where
stress was present at memory formation unless this variable is
explained to them.

                       2. Weapon Focus

         The presence of weapons is a second, and related,
estimator variable. The National Research Council has stated,
“[r]esearch suggests that the presence of a weapon at the scene
of a crime captures the visual attention of the witness and
impedes the ability of the witness to attend to other important
features of the visual scene, such as the face of the perpetrator
. . . . The ensuing lack of memory of these other key features
may impair recognition of a perpetrator in a subsequent
lineup.”136 In 1992, an analysis of weapon focus studies
concluded that the presence of a weapon significantly reduced
witnesses’ ability to recall their perpetrators.137 A more recent
study of the pertinent literature confirms that weapon presence

135
    Id. at 274.
136
    National Research Council, Identifying the Culprit, supra,
at 93.
137
    Nancy K. Steblay, A Meta-analytic Review of the Weapon
Focus Effect, 16 L. & Hum. Behav. 413, 415-17 (1992).
                               31
has a consistently negative impact on both feature recall
accuracy and identification accuracy.138

       Here, the jury was never informed that visibility of the
perpetrator’s gun may well have hampered the witnesses’
ability to observe and/or form an accurate memory of the
assailant’s face. Howard, Bertha, and Cameron all provided
clear descriptions of the gun, revealing their focus on it. But
the jury was never informed of how this powerful estimator
variable may have affected them.

                       3. Memory Decay

       The period between memory formation and memory
recall is known as the “retention interval” and constitutes
another important estimator variable. A meta-analysis of fifty-
three facial memory studies found “that memory strength will
be weaker at longer retention intervals than at briefer ones.”139
Most of the studies analyzed in this meta-analysis examined
retention intervals of less than one month, many of them less
than one week. This meta-analysis also found agreement
among experts that “the rate of memory loss for an event is
greatest right after an event and then levels off over time.”140
Furthermore,

       [t]he effect of the retention interval also is
       influenced by the strength and quality of the
       initial memory that is encoded, which, in turn,

138
    Jonathan M. Fawcett et al., Of Guns and Geese: A Meta-
Analytic Review of the ‘Weapon Focus’ Literature, Psychol.,
Crime & L. 1, 22 (2011).
139
    Kenneth A. Deffenbacher et al., Forgetting the Once-Seen
Face: Estimating the Strength of an Eyewitness’s Memory
Representation, 14 J. Experimental Psychol.: Applied 139,
142 (2008); see also Carol Krafka & Steven
Penrod, Reinstatement of Context in a Field Experiment on
Eyewitness Identification, 49 J. Personality & Soc.
Psychol. 58, 65 (1985) (finding a substantial increase in the
misidentification rate in target-absent arrays from two to
twenty-four hours after event).
140
    Deffenbacher et al., Forgetting the Once-Seen Face,
supra, at 143.
                               32
       may be influenced by other estimator variables
       associated with witnessing the crime (such as the
       degree of visual attention) and viewing factors
       (such as distance, lighting, and exposure
       duration).141

The in-court identifications of Dennis were made nearly one
year after the crime occurred—a very significant retention
interval under the relevant studies. Research is hardly
necessary to appreciate the difficulty of trying to accurately
recall the details of this chaotic and traumatizing event—
lasting only a matter of seconds—a year later. The jurors
should have been informed of that difficulty and its possible
impact on the accuracy of these identifications. They were not.

        4. Exposure Duration, Distance, and Lighting

       As one would expect, exposure duration, distance, and
lighting affect the accuracy of eyewitness identifications.142
The charge that was given here did alert the jurors to the impact
of these factors on the accuracy of an identification.143

141
    National Research Council, Identifying the Culprit, supra,
at 99.
142
    Brian H. Bornstein et al., Effects of Exposure Time and
Cognitive Operations on Facial Identification Accuracy: A
Meta-Analysis of Two Variables Associated with Initial
Memory Strength, 18 Psychol., Crime & L. 473 (2012) (meta-
analysis of the effect of exposure duration on facial
identification accuracy); R.C.L. Lindsay et al., How
Variations in Distance Affect Eyewitness Reports and
Identification Accuracy, 32 Law & Hum. Behav. 526 (2008)
(study of the effect of distance on identification accuracy).
143
    Race-bias—referring to the relative races of the witness
and perpetrator—is another crucial estimator variable.
Although this variable does not raise concerns here because
the three eyewitnesses and the perpetrator were all Black, it is
nevertheless worth noting because it again shows the extent to
which circumstances (other than opportunity to observe) can
greatly impact the reliability of an eyewitness identification.
Research has thoroughly documented a phenomenon known
as “own-race bias” wherein people more accurately identify
faces within their own race as compared to those of members
                               33
However, as I explain in the following section, it did not
adequately convey the impact these factors can have on in-
court identifications.

      C. The Dissent’s Dismissal of Estimator Variables

        As the Majority recounts, nearly all of the eyewitnesses
who mentioned the shooter’s height in their initial police
interviews described him as between 5’8” and 5’10”.144 The
witnesses also described the shooter as having a dark
complexion and weighing about 170 to 190 pounds. James
Dennis is 5’5” tall and weighed between 125 and 132 pounds
at the time of trial.

        The Dissent dismisses and tries to rationalize away this
considerable size discrepancy. In an attempt to reinforce the
reliability of the three witnesses, the Dissent relies on research
that concludes eyewitnesses tend to underestimate the height
and weight of taller and heavier targets and overestimate the
height and weight of shorter and lighter targets.145 The

of a different racial group. See National Research Council,
Identifying the Culprit, supra, at 96; Roy S. Malpass &
Jerome Kravitz, Recognition for Faces of Own and Other
Race, 13 J. Personality & Soc. Psychol. 330 (1969). The
Innocence Project analyzed 297 DNA exonerations and found
that a cross-racial misidentification occurred in forty-two
percent of the cases in which an erroneous eyewitness
identification was made. Edwin Grimsley, What Wrongful
Convictions Teach Us about Racial Inequality, The
Innocence Project (Sept. 26, 2012),
http://www.innocenceproject.org/Content/What_Wrongful_C
onvictions_Teach_ Us_About_Racial_Inequality.php.
144
    In fact, one eyewitness—Joseph DiRienzo Jr.—described
the shooter’s height in terms of his own height: “about my
height, about 5’9”.” J.A. 1649.
145
    Dissent at 3 (Fisher, J.) (citing Christian A. Meissner,
Siegfried L. Sporer, & Jonathan W. Schooler, Person
Descriptions as Eyewitness Evidence, in 2 Handbook of
Eyewitness Psychology 3, 8 (Rod C.L. Lindsay et al. eds.,
2007) and Rhona H. Flin & John W. Shepherd, Tall Stories:
Eyewitnesses’ Ability to Estimate Height and Weight
Characteristics, 5 Hum. Learning 29, 34 (1986)).
                               34
Dissent’s use of that research is cruelly ironic. The finding of
those studies was not that we should disregard eyewitness
inaccuracy, as the Dissent’s citation implies. Those researchers
found just the opposite. The studies discovered that eyewitness
identifications are frequently unreliable.146 As two of the
researchers explained, “[t]he width and range of subjects’
errors for the targets’ height and weight in this study showed
clearly that some subjects experience great difficulty in
accurately     judging      another     individual’s    physical
characteristics.” 147



        The Dissent also focuses on the strength of three
estimator variables. The Dissent reminds us that “the visual
conditions were excellent,”148 the witnesses saw the shooter at
“close range,”149 and none of the identifications were cross-
racial.150 This is not only misleading, it also ignores many other
system and estimator variables that were at least as important
(if not more important) than the ones the Dissent focuses upon.

       I agree that the lighting was good. However, the lighting
here was likely no better than that in the rooms where the
military personnel who failed to recognize the faces of their
interrogators were questioned under stressful conditions.151
The witnesses here were in close proximity to the shooter.
However, they were not as close as Jennifer Thompson was to
Ronald Cotton or John White’s accuser was to him. Moreover,
these witnesses only had a matter of seconds to view the
perpetrators. Howard saw the shooter as he rushed towards her,
Cameron in the seconds the crime occurred, and Bertha as the
shooter ran past him. All of the witnesses’ views occurred
under highly stressful circumstances and their focus appears to
have been as much on the gun in the shooter’s hand as on the

146
    Meissner, Sporer, & Schooler, Person Descriptions as
Eyewitness Evidence, supra, at 8 (citing the Flin and
Shepherd study); Flin & Shepherd, Tall Stories, supra, at 36.
147
    Flin & Shepherd, Tall Stories, supra, at 36.
148
    Dissent at 2 (Fisher, J.).
149
    Id.
150
    Id. at 3 (citing Arizona v. Youngblood, 488 U.S. 51, 72
n.8).
151
    Morgan et al., Accuracy of Eyewitness Memory, supra, at
268.
                               35
shooter’s face. As I will explain in greater detail below, the
charge that the jurors received did not focus their attention on
any of those considerations.

       The lack of blinding, the presence of officer feedback,
the fact that the record suggests that the witnesses thought they
had to select someone from the photo arrays, the multiple
viewings of Dennis, and the witnesses’ viewing of the live
lineup in the same room, all suggest that the identifications
may have been corrupted by cues from law enforcement and/or
other witnesses.

       We would be justifiably skeptical of any clinical trial
where the researcher knew which sample was a placebo or who
received the placebo. Yet, we do not think twice about allowing
someone to be convicted of a crime and sentenced to death on
the basis of identification procedures where the investigator
presenting the photo array or lineup is fully aware of who the
suspect is. The witnesses who identified Dennis at trial had not
one, but three opportunities to view Dennis. And none of the
procedures included any level of blinding. Nothing in this
record suggests that anyone other than Dennis was present in
both the photo array and lineup. Yet, the jury was not made
aware of the potential importance of any of these
considerations. That should sound a note of caution in
assessing the reliability of these identifications.

       Finally, we should not ignore the fact that the majority
of the witnesses that police interviewed after the crime were
unable to identify Dennis as the shooter. Jurors did not know
that Joseph DiRienzo, Joseph DiRienzo, Jr., Clarence Verdell,
and David LeRoy all were unable to identify Dennis from the
photo array. Although Anthony Overstreet did identify Dennis
from this array, he did not think Dennis was the shooter once
he had an opportunity to view him in the lineup. Overstreet had
expressed the most confidence in his ability to positively
identify the shooter during the initial police interviews.152

152
   The fact that Overstreet and other non-identifying
witnesses could theoretically have been called by defense
counsel is no answer. No defense attorney in her right mind
would put such witnesses on the stand, knowing that the
witnesses had seen photographs of the defendant and would
                               36
When the totality of circumstances is viewed in context, the
evidence of Dennis’ guilt is not as uncompromising as the
Dissent suggests.

        Moreover, concerns about the reliability of these
identifications should not be assuaged by evidence that was
introduced in an attempt to corroborate the identification
testimony. As the Majority explains, aside from eyewitness
testimony, the Commonwealth presented testimony from
Charles Thompson, who told detectives that he saw Dennis
with a gun the night of the murder. Thompson identified an
illustrative .32 chrome revolver (previously admitted as a
Commonwealth exhibit) as being similar to the one he saw in
Dennis’s possession. As the Majority notes, Thompson had an
open drug-possession charge at the time of trial, but testified
that he was not expecting help from the Commonwealth in
exchange for his testimony. Years after trial, Thompson
recanted his testimony, averring that he had never seen Dennis
with a gun and that his testimony at trial was false.

        I realize, of course, that it can be argued that
Thompson’s recantation is not necessarily relevant to the force
of the eyewitness identifications because it happened after trial.
However, his testimony clearly corroborated the identification
evidence, and it underscores the dangers of the inadequate
identification instructions. The fact that the jurors were not
given a sufficient basis to assess the identifications of Dennis
severely undermined the potential force of Dennis’ alibi
testimony. Why would jurors believe such testimony
(especially since it was offered by his father) when three
neutral witnesses identified Dennis as the shooter? Had the
jurors been able to assess the identifications with an
appropriate understanding of the variables I have discussed,
Dennis’s alibi testimony may well have had much greater
force, and jurors would have been in a better position to weigh
Dennis’ alibi against Thompson’s testimony that appeared to
corroborate the three eyewitnesses. That is particularly true
when we factor in the evidence of the Cason receipt that the

know the person sitting at counsel table was the person the
police had arrested for the crime. A criminal justice system
seeking fairness and justice should not countenance the
creation of such an absurd dilemma.
                               37
Majority explains.153 The Cason receipt could have further
bolstered Dennis’ alibi testimony and raised a reasonable doubt
about the accuracy of the eyewitness identifications.

         IV. Manson v. Brathwaite and its Progeny

        In 1977, the Supreme Court established a basic
framework for determining whether admission of a particular
identification violates a defendant’s Fourteenth Amendment
right to due process in Manson v. Brathwaite.154 Under the
Manson test, a court must first assess whether the eyewitness
identification procedure at issue was, under the “totality of the
circumstances,” unnecessarily suggestive.155 If the
identification procedure was not unnecessarily suggestive, the
inquiry ends. However, if it was unduly suggestive, a court
must considers five factors to determine whether the resulting
identification is nonetheless reliable. Those factors, drawn
from the Supreme Court’s prior decision in Neil v. Biggers,156
are: (1) “the opportunity of the witness to view the criminal at
the time of the crime,” (2) “the witness’ degree of attention,”
(3) “the accuracy of the witness’ prior description of the
criminal,” (4) “the level of certainty demonstrated by the
witness at the confrontation,” and (5) “the length of time
between the crime and the confrontation.”157 These factors are
weighed against “the corrupting effect of the suggestive
identification itself.”158 Manson emphasizes that “reliability is
the linchpin in determining the admissibility of identification
testimony.”159

        Since Manson, more than 2,000 scientific studies have
been conducted on the reliability of eyewitness
identifications.160 As I have explained, we now understand that

153
    See Maj. Op. at 13, 17, 18-20.
154
    432 U.S. 98 (1977).
155
    Id. at 106 (internal quotation marks omitted).
156
    409 U.S. 188 (1972).
157
    Id. at 199-200; Manson, 432 U.S. at 114.
158
    Manson, 432 U.S. at 114.
159
    Id.
160
    State v. Henderson, 27 A.3d 872, 892 (N.J. 2011), holding
modified by State v. Chen, 27 A.2d 930 (N.J. 2011); Morgan
et al., Accuracy of Eyewitness Memory, supra, at 265.
                               38
even seemingly neutral identification procedures can lead to
unreliable results due to a myriad of subtle variables. We also
now know that a witness’ subjective confidence in the accuracy
of her identification has limited correlation to the reliability of
her identification. As the National Research Council
emphasized in its recent report on eyewitness identifications,
the Manson test “treats factors such as the confidence of a
witness as independent markers of reliability when, in fact, it
is now well established that confidence judgments may vary
over time and can be powerfully swayed by many factors.” 161
        The Supreme Court recently reaffirmed the approach
laid out in Manson in Perry v. New Hampshire.162 There, an
eyewitness saw a man break into a car, called the police, and
then told the responding officer that a man standing in the
building’s parking lot was the perpetrator.163 That man was
then arrested and convicted in state court. On appeal to the
Supreme Court, he argued that the highly suggestive nature of
the identification process entitled him to a suppression hearing
prior to trial in order to determine the admissibility of the
identification.164 The Supreme Court rejected this argument. It
held that the Due Process Clause of the Fourteenth Amendment
only requires such a hearing when law enforcement arranged
the unnecessarily suggestive circumstances under which the
identification was obtained.165 The Court “linked the due
process check, not to suspicion of eyewitness testimony
generally, but only to improper police arrangement of the
circumstances surrounding an identification.”166

       In reaching this conclusion, the Court acknowledged the
scientific research on eyewitness reliability.167 It recognized

161
    National Research Council, Identifying the Culprit, supra,
at 6.
162
    132 S. Ct. 716 (2012).
163
    Id. at 721-22.
164
    Id. at 722-23.
165
    Id. at 730.
166
    Id. at 726 (emphasis added).
167
    Id. at 727 (“As one of Perry’s amici points out, many other
factors bear on “the likelihood of misidentification,”—for
example, the passage of time between exposure to and
identification of the defendant, whether the witness was under
stress when he first encountered the suspect, how much time
                                39
the importance of this body of science and urged more robust
jury instructions. As the Court explained, “[e]yewitness-
specific jury instructions, which many federal and state courts
have adopted, [] warn the jury to take care in appraising
identification evidence.”168 The Court also stressed the
importance of evidentiary rules “to exclude relevant evidence
if its probative value is substantially outweighed by its
prejudicial impact or potential for misleading the jury.”169
Thus, instead of considering the relevant system and estimator
variables “under the banner of due process,”170 the Supreme
Court advocated that courts incorporate the relevant scientific
findings through other avenues, such as jury instructions and
evidentiary rules.

       Some state courts have heeded Perry’s call and created
new procedures and evidentiary frameworks that minimize the
risks associated with erroneous eyewitness identifications.
Most notably, in a unanimous decision, the Supreme Court of
New Jersey re-wrote the state’s rules governing the admission
of eyewitness identifications in State v. Henderson.171 Prior to
that decision, New Jersey courts relied on the Manson test to
determine whether certain identifications were admissible.172
Henderson, however, held that the Manson test did “not offer
an adequate measure for reliability or sufficiently deter
inappropriate police conduct.” The court also concluded that
Manson “overstates the jury’s inherent ability to evaluate




the witness had to observe the suspect, how far the witness
was from the suspect, whether the suspect carried a weapon,
and the race of the suspect and the witness.” (internal citation
omitted)).
168
    Id. at 728-29 (internal footnote omitted).
169
    Id. at 729.
170
    Id. at 727 (“To embrace Perry’s view would thus entail a
vast enlargement of the reach of due process as a constraint
on the admission of evidence.”).
171
    27 A.3d 872 (N.J. 2011), holding modified by State v.
Chen, 27 A.2d 930 (N.J. 2011).
172
    See id. at 918; State v. Madison, 536 A.2d 254, 258-59
(N.J. 1988) holding modified by State v. Henderson, 27 A.3d
872 (N.J. 2011).
                               40
evidence offered by eyewitnesses who honestly believe their
testimony is accurate.”173

        To remedy these problems, the court pioneered a two-
part revision to the judicial procedures related to eyewitness
identifications. First, the court changed the requirements
related to pre-trial hearings on the admissibility of eyewitness
identifications. After Henderson, a defendant can now obtain a
pre-trial hearing if she can show “some evidence of
suggestiveness that could lead to a mistaken identification.”174
The court specified that this “evidence, in general, must be tied
to a system—and not an estimator—variable.”175 The trial

173
    Henderson, 27 A.3d at 878.
174
    Id. at 920.
175
    Id. The New Jersey Supreme Court instructed courts to
consider the following non-exhaustive list of system variables
when deciding whether to hold a pre-trial hearing:

       1. Blind Administration. Was the lineup
       procedure performed double-blind? If double-
       blind testing was impractical, did the police use
       a technique like the “envelope method”
       described above, to ensure that the
       administrator had no knowledge of where the
       suspect appeared in the photo array or lineup?
       2. Pre-identification Instructions. Did the
       administrator provide neutral, pre-identification
       instructions warning that the suspect may not be
       present in the lineup and that the witness should
       not feel compelled to make an identification?
       3. Lineup Construction. Did the array or lineup
       contain only one suspect embedded among at
       least five innocent fillers? Did the suspect stand
       out from other members of the lineup?
       4. Feedback. Did the witness receive any
       information or feedback, about the suspect or
       the crime, before, during, or after the
       identification procedure?
       5. Recording Confidence. Did the administrator
       record the witness’ statement of confidence
       immediately after the identification, before the
       possibility of any confirmatory feedback?
                               41
court can end this hearing at any time “if it finds from the
testimony that defendant’s threshold allegation of
suggestiveness is groundless.”176 But if the defendant’s claim
is meritorious, the trial judge must weigh both system and
estimator variables177 to decide whether, under the “totality of


       6. Multiple Viewings. Did the witness view the
       suspect more than once as part of multiple
       identification procedures? Did police use the
       same fillers more than once?
       7. Showups. Did the police perform a showup
       more than two hours after an event? Did the
       police warn the witness that the suspect may not
       be the perpetrator and that the witness should
       not feel compelled to make an identification?
       8. Private Actors. Did law enforcement elicit
       from the eyewitness whether he or she had
       spoken with anyone about the identification
       and, if so, what was discussed?
       9. Other Identifications Made. Did the
       eyewitness initially make no choice or choose a
       different suspect or filler?

Id. at 920-21.
176
    Id. at 920.
177
    The New Jersey Supreme Court told courts to consider the
following, non-exhaustive list of estimator variables in
assessing the reliability of an eyewitness identification:

       1. Stress. Did the event involve a high level of
       stress?
       2. Weapon focus. Was a visible weapon used
       during a crime of short duration?
       3. Duration. How much time did the witness
       have to observe the event?
       4. Distance and Lighting. How close were the
       witness and perpetrator? What were the lighting
       conditions at the time?
       5. Witness Characteristics. Was the witness
       under the influence of alcohol or drugs? Was
       age a relevant factor under the circumstances of
       the case?
                              42
the circumstances,” the defendant has “demonstrated a very
substantial likelihood of irreparable misidentification.”178 If
the trial court concludes that the defendant has met this burden,
the court must suppress the identification evidence.179

       Second, the New Jersey Supreme Court directed the
state judicial system to develop “enhanced jury charges on
eyewitness identification for trial judges to use.”180 As the
court explained, “[w]e anticipate that identification evidence
will continue to be admitted in the vast majority of cases. To
help jurors weigh that evidence, they must be told about
relevant factors and their effect on reliability.”181




       6. Characteristics of Perpetrator. Was the
       culprit wearing a disguise? Did the suspect have
       different facial features at the time of the
       identification?
       7. Memory decay. How much time elapsed
       between the crime and the identification?
       8. Race-bias. Does the case involve a cross-
       racial identification?
       ...
       9. Opportunity to view the criminal at the time
       of the crime.
       10. Degree of attention.
       11. Accuracy of prior description of the
       criminal.
       12. Level of certainty demonstrated at the
       confrontation.
       Did the witness express high confidence at the
       time of the identification before receiving any
       feedback or other information?
       13. The time between the crime and the
       confrontation. (Encompassed fully by “memory
       decay” above.)

Id. at 921-22.
178
    Id. at 920.
179
    Id.
180
    Id. at 878.
181
    Id.
                               43
       Henderson also emphasized that the “factors that both
judges and juries will consider are not etched in stone.”182
Rather, “the scientific research underlying them will continue
to evolve, as it has in the more than thirty years since
Manson.”183 Accordingly, the court clarified that its decision
does not “limit trial courts from reviewing evolving,
substantial, and generally accepted scientific research.”184

        Finally, the New Jersey Supreme Court suggested that,
where appropriate, trial courts consider giving instructions
during the trial before eyewitness identification testimony is
elicited. Such instructions would help inform juries, up front,
of the problems that can arise from seemingly unequivocal
courtroom identifications.185

        After Henderson, in July 2012,186 the New Jersey
Supreme Court released its expanded set of jury instructions
governing evaluation of identifications. These instructions
explain that scientific research has shown eyewitness
identifications can be unreliable, and they emphasize that
eyewitness evidence “must be scrutinized carefully.”187 To this
end, the instructions identify a specific set of factors that jurors
should consider when deciding whether eyewitness
identification evidence is reliable, including estimator and
system variables.188 These instructions are consistent with the
Supreme Court’s analysis in Perry and will better equip jurors
to evaluate the reliability of eyewitness identifications.189

182
    Id.
183
    Id.
184
    Id. at 922.
185
    Id. at 924.
186
    These instructions were released a year after the opinion in
Henderson.
187
    Supreme Court of New Jersey, New Jersey Criminal
Model Jury Instructions, Identification: In-Court
Identifications Only 2 (2012),
http://www.judiciary.state.nj.us/pressrel/2012/jury_instructio
n.pdf.
188
    Id. at 3-9.
189
    New Jersey is not alone in its response to the vast body of
research on the reliability of eyewitness identifications. In
2011, the Justices of the Massachusetts Supreme Judicial
                                44
        The Supreme Court of Oregon has likewise reformed
the state judicial system’s approach to eyewitness
identifications. However, Oregon has taken a slightly different
approach. In State v. Lawson,190 the court addressed the
reliability issue from an evidentiary standpoint as opposed to a
due process one. Prior to Lawson, Oregon courts adhered to a
rule under which trial courts could not consider whether an
identification was unreliable until some evidence of
suggestiveness was first introduced.191 In rejecting that
approach, the Oregon Supreme Court explained:

       Such a requirement [] conflates evidentiary
       principles with due process concerns. A
       constitutional due process analysis might
       properly consider suggestiveness as a separate
       prerequisite to further inquiry because the Due
       Process Clause is not implicated absent some

Court convened a study group to “offer guidance as to how
our courts can most effectively deter unnecessarily suggestive
identification procedures and minimize the risk of a wrongful
conviction.” Massachusetts Supreme Judicial Court Study
Group on Eyewitness Evidence, Report and
Recommendations to the Justices 1 (2013) (internal quotation
marks omitted). The report made five recommendations
aimed at minimizing misidentifications: (1) acknowledge
variables affecting identification accuracy; (2) develop a
model policy and implement best practices for police
departments; (3) expand use of pretrial hearings; (4) expand
use of improved jury instructions; and (5) offer continuing
education to judges and bar leaders. Id. at 2-5. Like
Henderson, the Massachusetts report recommended that,
when a defendant contests the reliability of an eyewitness
identification, the trial judge should conduct a pretrial hearing
to determine whether law enforcement used suggestive
identification procedures to elicit that identification. Id. at
109-16. If a suggestive procedure was used, the report
recommended that courts assess whether those procedures
impacted the reliability of the identification. Id. at 111. The
report suggested that courts consider both estimator and
system variables in pre-trial hearings. Id.
190
    291 P.3d 673 (Or. 2012).
191
    See id. at 688; State v. Classen, 590 P.2d 1198 (Or. 1979).
                               45
       form of state action, such as the state’s use of a
       suggestive identification procedure. As a matter
       of state evidence law, however, there is no reason
       to hinder the analysis of eyewitness reliability
       with      purposeless     distinctions    between
       suggestiveness and other sources of unreliability.
       . . . A trial court tasked with determining a
       constitutional claim must necessarily assume
       that the evidence is otherwise admissible; were it
       inadmissible on evidentiary grounds, the court
       would never reach the constitutional question.
       However, a trial court tasked with considering a
       question of evidentiary admissibility clearly
       cannot begin by assuming admissibility.192

Lawson then fashioned a new approach to examining
eyewitness identifications from existing rules of evidence.
Under this revised test, “when a criminal defendant files a
pretrial motion to exclude eyewitness identification evidence,
the state as the proponent of the eyewitness identification must
establish all preliminary facts necessary to establish
admissibility of the eyewitness evidence.”193 If the challenged
eyewitness evidence implicates the Oregon equivalents of
Federal Rules of Evidence 602194 and 701,195 the state must


192
    Lawson, 352 P.3d at 688-89 (citing Perry v. New
Hampshire, 132 S. Ct. 716, 730 (2012) (“[T]he Due Process
Clause does not require a preliminary judicial inquiry into
reliability of an eyewitness identification when the
identification was not procured under unnecessary suggestive
circumstances arranged by law enforcement.”)).
193
    Id. at 696-97 (emphasis added).
194
    Fed. R. Evid. 602 (“A witness may testify to a matter only
if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Evidence
to prove personal knowledge may consist of the witness’s
own testimony.”).
195
    Fed. R. Evid. 701 (“If a witness is not testifying as an
expert, testimony in the form of an opinion is limited to one
that is: (a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific,
                              46
prove that the eyewitness has personal knowledge of the matter
on which she will testify, and her identification “is both
rationally based on [her] first-hand perceptions and helpful to
the trier of fact.”196 This flips the burdens in due process cases
such as Manson and Henderson. Rather than the defendant
proving that the identification at issue is unreliable, the state
must first prove that the identification meets the evidentiary
requirements of Rules 602 and 701.

        If the state successfully shows that the identification
evidence is admissible, the burden then shifts to the defendant
to establish that “the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, or by
considerations of undue delay or needless presentation of
cumulative evidence.” 197 Thus, Oregon courts now rely on the
state equivalent of Federal Rule of Evidence 403198 to exclude
unreliable eyewitness identifications that are otherwise
admissible. If a trial court concludes that the defendant has
made such a showing, “the trial court can either exclude the
identification, or fashion an appropriate intermediate remedy
short of exclusion to cure the unfair prejudice or other dangers
attending the use of that evidence.”199

       State courts are not alone in their responses to the
scientific research. Federal circuit courts of appeals have also
acknowledged the unreliability of certain eyewitness




technical, or other specialized knowledge within the scope of
Rule 702.”).
196
    Lawson, 291 P.3d at 697.
197
    Id.
198
    Fed. R. Evid. 403 (“The court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence.”).
199
    Lawson, 291 P.3d at 697.
                               47
testimony.200 In United States v. Brownlee,201 we recognized
the importance of expert testimony in safeguarding against
unreliable eyewitness identifications. There, we held that a
district court properly admitted expert testimony concerning
the effects of race, hair covering, weapons focus, and exposure
on the identification accuracy of multiple witnesses.202 We
further held that the district court improperly excluded expert
testimony comparing the show-up procedure used in that case
(a procedure where law enforcement presents a single
individual arguably fitting a witness’ description to that
witness for identification) and other identification procedures
and analyzing the suggestiveness of the show-up and its
potential effect on the identifications. We also held that the
district court improperly excluded expert testimony on
confidence malleability, post-event suggestiveness, and
confidence of accuracy.203 In doing so, we joined the growing
chorus in acknowledging that

       The recent availability of post-conviction DNA
       tests demonstrate that there have been an
       overwhelming number of false convictions
       stemming from uninformed reliance on
       eyewitness misidentifications. . . . In fact,
       mistaken eyewitness identifications are
       responsible for more wrongful convictions than
       all other causes combined. Eyewitness evidence
       presented from well-meaning and confident
       citizens is highly persuasive but, at the same
       time, is among the least reliable forms of
       evidence.204

We then explained that expert testimony can play a crucial role
in counteracting the falsely persuasive effect of unreliable


200
    See, e.g., United States v. Bartlett, 567 F.3d 901, 906 (7th
Cir. 2009), cert. denied, 558 U.S. 1147 (2010); United States
v. Brownlee, 454 F.3d 131, 141-44 (3d Cir. 2006).
201
    454 F.3d 131 (2006).
202
    Id. at 137.
203
    Id. at 141.
204
    Id. at 141-42 (internal quotation marks, citations, and
alterations omitted).
                               48
eyewitness testimony.205 As the National Research Council has
recognized, expert testimony on eyewitness identifications
may hold certain advantages over jury instructions as a method
to explain the relevant science to juries.206 Expert witnesses:
(1) “can explain scientific research in a more flexible manner,
by presenting only the relevant research to the jury”; (2) are
more “familiar with the research and can describe it in detail”;
(3) “can convey the state of the research at the time of the trial”;
(4) “can be cross-examined by the other side”; and (5) “can
more clearly describe the limitations of the research.”207
Therefore, expert testimony on eyewitness accuracy is a crucial
tool for educating juries on the science surrounding
identifications.

       It is against this backdrop that we must assess the jurors’
acceptance of the three eyewitness identifications of Dennis
and the adequacy of the charge that guided their deliberations.

                      V. The Jury Charge

       In Watkins v. Sowders, Justice Brennan wrote: “Surely
jury instructions can ordinarily no more cure the erroneous
admission of powerful identification evidence than they can
cure the erroneous admission of a confession.”208 Although
Justice Brennan was referring to the admissibility of certain
eyewitness identifications rather than their reliability, his
caution underscores the limited utility of a bare bones jury
instruction that does not properly inform jurors about the many
factors that can undermine courtroom identifications. This is
particularly so given the powerful countervailing effect of
jurors’ predisposition to believe eyewitness testimony.

      Studies have documented that jurors tend to
misunderstand how memory works and often believe it to be
much more reliable and less susceptible to outside influence


205
    See id. at 144.
206
    National Research Council, Identifying the Culprit, supra,
at 40.
207
    Id.
208
    449 U.S. 341, 350 (1981) (Brennan, J. dissenting)
(emphasis added).
                                49
than it actually is.209 One survey of 1,000 potential jurors in
Washington, D.C. found that almost two-thirds of the
respondents thought the statement “I never forget a face”
applied “very well” or “fairly well” to them.210 Another thirty-
seven percent thought the presence of a weapon would enhance
the witness’ reliability, while thirty-three percent either
believed that the weapon would have no effect or were unsure
what effect the weapon would have.211 Finally, thirty-nine
percent of respondents believed that when an event is violent,
it makes a witness’ memory for details more reliable, while
thirty-three percent responded either that this would have no
effect or that they were unsure of the effect violence during the
commission of the crime would have.212 The studies I have
discussed show how wrong these beliefs are. There is no reason
to believe the jurors who convicted Dennis were any more
enlightened about memory formation and recall than the
respondents in these studies.

        Yet, the jurors who convicted James Dennis were only
provided with a “plain vanilla” instruction. They had no
knowledge of the potential distortion that can be caused by the
factors discussed here. The trial court’s entire jury instruction
regarding how the jurors should evaluate the eyewitness
identifications was as follows:

               There have been several Commonwealth
       identification witnesses. . . . However, a mistake
       can be made in identifying a person even by a
       witness attempting to be truthful.
               Where the opportunity for positive
       identification is good and the witness is positive
       in his or her identification and his or her
       identification is not weakened by prior failure to
       identify but remains, even after cross-
       examination, positive and unqualified, the

209
    Epstein, supra, 46-48; Elizabeth F. Loftus, Timothy P.
O’Toole, & Catharine F. Easterly, Juror Understanding of
Eyewitness Testimony: A Survey of 1000 Potential Jurors in
the District of Columbia l (2004).
210
    Loftus, O’Toole, & Easterly, supra, at 6.
211
    Id. at 8.
212
    Id. at 9.
                               50
testimony as to identification need not be
received with caution and can be treated as a
statement of fact.
        On the other hand, where a witness is not
in a position to clearly observe the assailant or is
not positive, as to identify, or his or her positive
statements as to identity are weakened by
qualification or by inconsistencies or by failure
to identify the defendant on one or more prior
occasions, then the testimony as to identification
must be received with caution. You have heard
the testimony in this case to the effect, and I
leave it to your judgment and for your
determination, but my recollection is that there
were some prior identifications that were less
than unqualified or positive. I think that’s been
gone over at length by counsel. Under those
circumstances, you should receive the testimony
with caution. But it’s for you to determine
whether or not this is so, you decide whether the
testimony was weakened and what the evidence
was.
        If, according to these rules, you decide
that caution is required in determining whether
or not to accept the testimony of the identifying
witnesses, then you must take into consideration
the following matters: A, whether the testimony
of the identification witness is generally
believable; B, whether his or her opportunity to
observe was sufficient to allow him or her to
make an accurate identification; C, how the
identification was arrived at; D, all of the
circumstances indicating whether or not the
identification was accurate; and E, whether the
identification testimony is supported by other
evidence. And you must conclude that it is so
supported before you can accept it as being
accurate.
        My advice to you is this. In this case, my
recollection, that’s why I’m not being so
emphatic, my recollection is that one of the
witnesses said, “I think[,]”[] another witness, for
example, said, at a certain time, “I can’t be sure.”

                        51
       Witnesses who testified that way, their testimony
       as to identification should be received with
       caution and you should follow the rules that I’ve
       given you.213

        Absent from this instruction is any explanation of the
relevant system or estimator variables that so crucially impact
the reliability of witness identifications. The caution the trial
court urged is of precious little help given that omission. Jurors
need to be informed of the applicable variables before they will
be in a position to exercise the caution that this instruction
urged. Without those detailed instructions, jurors simply are in
no position to fully appreciate that “[t]he witness’ recollection
of [a] stranger can be distorted easily by the circumstances or
by later actions of the police.”

        Moreover, as should be evident from my discussion, the
italicized text instructing the jurors that they need not be
cautious about accepting the identification of a witness who
appears certain of her identification and had a good opportunity
to observe the crime is extraordinarily dangerous. Contrary to
the court’s instruction, that testimony cannot be accepted as
fact. Social science aside, one need only consider the professed
certainty of the accusers of Ronald Cotton and John White to
understand just how problematic such a charge is. We again
face a familiar and problematic reality: How ill-equipped these
jurors were to assess the accuracy of the three eyewitnesses
who pointed to Dennis and said “that’s the one.”

            VI. Conclusion: Un-Ringing the Bell

        In 1977, Justice Marshall emphasized that “‘the
vagaries of eyewitness identification are well-known; the
annals of criminal law are rife with instances of mistaken
identification.’”214 They are known far better today. As Justice
Marshall continued: “It is, of course, impossible to control one
source of such errors[—]the faulty perceptions and unreliable
memories of witnesses[—]except through vigorously

213
  J.A. 1237-39.
214
  Manson v. Braithwaite, 432 U.S. 98, 119 (1977)
(Marshall, J., dissenting) (internal alteration omitted) (quoting
United States v. Wade, 388 U.S. 218, 228 (1967)).
                               52
contested trials conducted by diligent counsel and judges.”215
Given the quantity and quality of research that has been
conducted since Justice Marshall wrote those words, we judges
must do a better job of educating ourselves and jurors about the
dynamics of eyewitness identifications. Although no system so
dependent on the limits of human abilities will ever be able to
totally eliminate the problems endemic in eyewitness
testimony, the integrity of the criminal justice system demands
that we do better.

        “[J]urors seldom enter a courtroom with the knowledge
that eyewitness identifications are unreliable. Thus, while
science has firmly established the inherent unreliability of
human perception and memory, this reality is outside the jury’s
common knowledge and often contradicts jurors’
‘commonsense’ understandings.”216 Therefore, thorough and
appropriately focused jury instructions that reflect the
scientific findings are critical to allowing jurors to discharge
their solemn obligation to assess evidence.217 Such instructions
will also encourage police to use more neutral procedures in
investigating crimes. If law enforcement officials know that
juries will be informed about best practices for obtaining
identifications, police will have a very strong incentive to

215
    Id.
216
    United States v. Brownlee, 454 F.3d 131, 142 (3d Cir.
2006) (internal quotation marks and citations omitted).
217
    It is important to note that jury instructions are only one of
several promising remedies. As we mentioned in our
discussion of Brownlee, expert testimony regarding the
reliability of eyewitness identifications can also help jurors
accurately assess the reliability of such identifications. The
National Research Council has also recommended that, where
appropriate, trial judges make basic inquiries into eyewitness
identification evidence. National Research Council,
Identifying the Culprit, supra, at 109-10. As the National
Research Council suggested, “while the contours of such an
inquiry would need to be established on a case-by-case basis,
at a minimum, the judge could inquire about prior lineups,
what information had been given to the eyewitness before the
lineup, what instructions had been given to the eyewitness in
connection with administering the lineup, and whether the
lineup had been administered ‘blindly.’” Id. at 110.
                               53
adopt protocols consistent with those best practices. As the
National Research Council has explained, such instructions
therefore “create an incentive for agencies to adopt written
eyewitness identification procedures and to document the
identifications themselves.”218

        It is difficult to un-ring the bell that an unreliable
eyewitness identification tolls. Therefore, in the first instance,
it is law enforcement—not the courts—that can best ensure
against an undue risk of convicting the innocent. However,
robust jury instructions can minimize the dangers associated
with inaccurate eyewitness identifications. In this case, had the
jury been appropriately informed of the problems associated
with the procedures used to solicit the identifications, as well
as the numerous estimator variables that could have affected
them, the jurors may well have concluded that James Dennis
was not the one who shot Chedell Williams.




218
      Id. at 110.
                               54
         APPENDIX: Eyewitness Identifications

Table 1—Photo Array Identifications

Name                    Reaction to Array                            J.A. Cite

Zahra        Howard, Selects Dennis: “This looks like the guy, but I 1537
Second victim        can’t be sure.”

Thomas        Bertha, Selects Dennis: “This one, #1. . . . That looks 1555
Construction worker   like the one that was running with the gun.”

Anthony Overstreet, Selects Dennis: “[I]n the first set of photos, #1 1565
Construction worker looks like the man who shot the girl.”

James     Cameron, Selects Dennis: “#1 looks familiar but I can’t 1548
SEPTA employee     [be] sure.”

David LeRoy,            Could not identify anyone from arrays.       1510
Hot dog vendor

George         Ritchie, Ritchie says he could not make an 1384-85
Repairing car nearby    identification when shown the photos. The
                        Commonwealth maintains the police never
                        showed Ritchie an array.

Clarence     Verdell,   Could not identify anyone from arrays: “I 1580
Pedestrian    (passed   originally had said the possibilities on this
Williams and Howard     spread were 1, 5, and 8. I say now that it
on the stairs at the    wasn’t #5, it would be either #1 or #8 who was
station)                the [shooter]. I lean more towards #1 because
                        of the build of the male but he definitely
                        doesn’t have that cut of hair now. I definitely
                        do not remember him having his hair cut that
                        way. He was behind Chedell’s girlfriend
                        when I saw them.”

Joseph DiRienzo Jr., Could not identify anyone from arrays.          1650
Son of fruit stand
vendor

Joseph DiRienzo,        Could not identify anyone from arrays.       1653
Fruit stand vendor


                           55
Table 2—Lineup Identifications
 Name                  Lineup Identification                  J.A. Cite

 Zahra       Howard, Positively identifies Dennis: “I think it 228-29
 Second victim       was – I think it was three.”

 Thomas       Bertha, Identifies Dennis.                      228
 Construction worker

 Anthony Overstreet, Identifies a different person in the 228
 Construction worker lineup.

 James   Cameron, Identifies Dennis.                          228
 SEPTA employee




                            56
JORDAN, Circuit Judge, concurring in part and concurring in
the judgment:

       To say this case is troubling is a serious
understatement. James Dennis was convicted of murder and
sentenced to death based almost entirely upon the testimony
of three problematic eyewitnesses and despite a dearth of
physical evidence. On direct appeal, the Pennsylvania
Supreme Court affirmed his conviction and death sentence in
an opinion that is no credit to that court’s usual standards.
See Dennis I, 715 A.2d 404 (Pa. 1998). It rejected in a mere
three sentences Dennis’s Brady claim with respect to the
Cason receipt, a piece of evidence thoroughly described in
today’s Majority opinion. Here is the entirety of the state
court’s analysis:

       Finally, it is clear that there clearly was no
       Brady violation. The DPW receipt was not
       exculpatory, because it had no bearing on
       Appellant’s alibi, and there is no evidence that
       the Commonwealth withheld the receipt from
       the defense. Accordingly, Appellant’s claims of
       ineffectiveness regarding Cason and the DPW
       receipt have no arguable merit.

Id. at 408.

       Perhaps the most remarkable aspect of that drive-by
discussion is the assertion that the Cason receipt was not
exculpatory because “it had no bearing on [Dennis]’s alibi.”
Id. In reality, the pertinence and importance of the receipt
could not be more glaring. It shows exactly what time




                              1
witness Latanya Cason received her public assistance check,
thus shifting the timeline of events that she laid out during her
trial testimony so that, instead of contradicting Dennis’s
testimony, she almost perfectly corroborated his alibi. The
previously-undisclosed receipt thus transforms Cason from a
damning prosecution witness into a powerful witness for the
defense.

       Every judge of our en banc Court has now concluded
that the Pennsylvania Supreme Court’s contrary
determination was not only wrong, but so obviously wrong
that it cannot pass muster even under AEDPA’s highly-
deferential standard of review. In other words, it is the
unanimous view of this Court that any fairminded jurist must
disagree with the Dennis I court’s assessment of the
materiality and favorability of the Cason receipt. Yet
somehow a majority of the Pennsylvania Supreme Court
endorsed Dennis’s conviction and death sentence. The lack
of analytical rigor and attention to detail in that decision on
direct appeal is all the more painful to contemplate because
the proof against Dennis is far from overwhelming. He may
be innocent.

       But the strength of the case against James Dennis need
not be the focus of our attention. This case can and should be
resolved on a single point: the Brady claim concerning the
Cason receipt. That is one reason why I cannot join the more
expansive opinion of my colleagues in the Majority. Their
correct conclusion that the error in Dennis I regarding the
Cason receipt is by itself enough to warrant habeas relief
means that we have no call to address the Brady claims with
respect to the Howard police activity report and the Frazier
documents. And, in fact, I disagree with the Majority’s




                               2
analysis of those latter two claims and fully agree with my
dissenting colleagues’ rejection of them, which is another
reason I cannot join the Majority opinion.

       Moreover, I also agree with the Dissent’s position,1 set
forth in its discussion of the Cason receipt, that imposing a
“reasonable diligence” requirement upon defense counsel
does not violate a clearly established holding of the Supreme
Court. The “reasonable diligence” requirement is, in effect, a
rule that a Brady claim will not lie when the evidence in
question was available to the defense by the exercise of
reasonable diligence. E.g., Brown v. Cain, 104 F.3d 744, 750
(5th Cir. 1997). We are obligated by AEDPA to uphold a
state court’s decision unless it is “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). Under AEDPA, whether any of us
thinks that imposing a reasonable diligence requirement is a
good idea or the best interpretation of Brady is irrelevant.
What matters is that one can reasonably perceive such a
requirement being allowed by Supreme Court jurisprudence.2

       1
         All references to the “Dissent” refer to Judge Fisher’s
dissenting opinion, unless the reference is explicitly made to
Judge Hardiman’s dissent.
       2
         Although the Majority is correct that the “Supreme
Court has never recognized an affirmative due diligence duty
of defense counsel as part of Brady” (Majority Op. at 50),
there is no Supreme Court opinion that forecloses the
adoption of that duty. The Supreme Court has emphasized
that the Brady rule requires disclosure of evidence that is
“unknown to the defense,” United States v. Agurs, 427 U.S.




                               3
97, 103 (1976), and that the rule is rooted in “the defendant’s
right to a fair trial,” id. at 108. Based on that language,
several courts of appeals have concluded that information is
not unknown to the defense for Brady purposes if it can be
obtained by the exercise of reasonable diligence, and that
requiring diligence on the part of defense counsel does not
implicate the right to a fair trial. See, e.g., Lugo v. Munoz,
682 F.2d 7, 10 (1st Cir. 1982) (“Since the information at issue
here was available to the defense attorney through diligent
discovery, we find that the prosecutor’s omission was not of
sufficient significance to result in the denial of the
defendant’s right to a fair trial” (internal quotation marks
omitted).); United States v. Brown, 628 F.2d 471, 473 (5th
Cir. Unit A 1980) (“Truth, justice, and the American way do
not … require the Government to discover and develop the
defendant’s entire defense.”); United States v. Hedgeman,
564 F.2d 763, 769 (7th Cir. 1977) (establishing a diligence
requirement and noting that “the prosecutor will not have
violated his constitutional duty of disclosure unless his
omission is of sufficient significance to result in the denial of
the defendant’s right to a fair trial”). The Dissent has also
collected cases to that effect. (See J. Fisher Dissent Op. at 13-
14 n.1.) In any event, on AEDPA review it is sufficient for
our purposes that there is no Supreme Court decision clearly
holding that there is not a reasonable diligence requirement.
See Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting
that a state-court error on habeas review must be one that is
“well understood and comprehended in existing law beyond
any possibility for fairminded disagreement”).




                               4
We ourselves have applied it repeatedly,3 so we can hardly
say that it constitutes an unreasonable application of federal
law.

       Of course, the Pennsylvania Supreme Court never said
anything at all in its Dennis I decision about defense
counsel’s lack of diligence in locating the Cason receipt. But,
under Harrington v. Richter, habeas review requires that we
engage in so-called “gap-filling,” and apply AEDPA
deference to whatever reasonable “arguments or theories …
could have supported[] the state court’s decision,” if that
decision does not provide reasoning for its conclusions.4 562
U.S. 86, 102 (2011). Thus, despite the fact that the

      3
         See Grant v. Lockett, 709 F.3d 224, 231 (3d Cir.
2013) (“It is therefore clear that trial counsel could have
discovered [the otherwise-suppressed evidence] had he
exercised reasonable diligence.”); United States v. Pelullo,
399 F.3d 197, 213 (3d Cir. 2005) (“[T]he burden is on the
defendant to exercise reasonable diligence.”); United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (“[T]he
government is not obliged under Brady to furnish a defendant
with information which he already has or, with any
reasonable diligence, he can obtain himself” (internal
quotation marks omitted).).
      4
         More specifically, Richter says: “Under § 2254(d), a
habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of th[e Supreme] Court.” 562 U.S. at 102.




                              5
Pennsylvania Supreme Court never itself discussed diligence,
Richter might prompt us to apply a reasonable diligence
requirement and reject Dennis’s Cason receipt Brady claim –
exactly as the Dissent has suggested – if there were a gap in
the state-court decision for us to fill. The problem I have with
the Dissent is that I see no gap in the state court’s reasoning,
at least not in the sense contemplated in Richter. My
dissenting colleagues are not filling a gap here; they are re-
writing the opinion of the Pennsylvania Supreme Court,
adding and then elaborating a theory that was never litigated
in state court.

        The reality of what happened in Dennis I is more
straightforward. The Pennsylvania Supreme Court simply
erred. Its opinion stated both that “the police came into
possession of” the Cason receipt and that “there [was] no
evidence that the Commonwealth withheld the receipt from
the defense.” Dennis I, 715 A.2d at 408. There was,
however, no recognition that those statements are
fundamentally at odds. Under the Supreme Court’s opinion
in Kyles v. Whitley, any evidence in the possession of the
police is, for Brady purposes, also in the possession of the
prosecution. 514 U.S. 419, 437 (1995). If a piece of
favorable, material evidence is in the possession of the police
but is not turned over to the defense, it is necessarily withheld
by the prosecution in violation of Brady. See id. (prosecutors
are responsible for “any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police”).

      By entirely failing to apply Kyles, the Pennsylvania
Supreme Court acted “contrary to … clearly established
Federal law, as determined by the Supreme Court of the




                               6
United States.” 28 U.S.C. § 2254(d)(1).5 In light of the state
court’s error, I would review Dennis’s Brady claim with
respect to the Cason receipt “unencumbered by the deference
AEDPA normally requires,” Panetti v. Quarterman, 551 U.S.
930, 948 (2007), to determine whether Dennis is “in custody
in violation of the Constitution or laws … of the United
States.” 28 U.S.C. § 2254(a).6 On that de novo review, I

      5
        At the same time, the court went so far astray in
applying Brady that its decision also “involved an
unreasonable application of … clearly established Federal law
… .” 28 U.S.C. § 2254(d)(1).
      6
         It is important to understand the interplay between
§§ 2254(a) and 2254(d). “Section 2254(a) permits a federal
court to entertain only those applications alleging that a
person is in state custody ‘in violation of the Constitution or
laws or treaties of the United States.’” Cullen v. Pinholster,
563 U.S. 170, 181 (2011). Section 2254(d) imposes an
“additional restriction” on habeas relief in cases where a
claim “has been adjudicated on the merits in State court
proceedings.” Id. (internal quotation marks omitted). In
those circumstances, habeas relief is barred unless the state
court’s decision is “contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). Section 2254(d) thus sets forth a necessary, but
not sufficient, prerequisite to habeas relief only for those
claims adjudicated on the merits in state court. If that high
bar is cleared – i.e., the state court’s decision is so
unreasonable or contrary to federal law as established by the
Supreme Court – we are still restricted to granting habeas
relief only if the petitioner has shown he is in custody in
violation of federal law under § 2254(a). In that second




                              7
would hold that the evidence in question meets all three
requirements of Brady – the Cason receipt is material and
favorable, and it was suppressed by the Commonwealth – for
the reasons set out in Part III.A of the Majority opinion. I
therefore concur in the judgment. I also agree with Part II of
the Majority opinion and write separately to explain my view
of the limits of Richter gap-filling and the proper scope of
AEDPA deference.

       Recall that in Dennis I, the Pennsylvania Supreme
Court said, “there is no evidence that the Commonwealth
withheld the [Cason] receipt from the defense.” 715 A.2d at
408. My dissenting colleagues believe “it is not clear what
the court meant by [that].” (J. Fisher Dissent Op. at 8.) They
then proceed to fill the “gap” they think is created by the
ambiguity they perceive, saying, “the Pennsylvania Supreme
Court could have meant that the receipt was not withheld
because it was available to the defense with reasonable
diligence.” (J. Fisher Dissent Op. at 11.)

       The precedent that establishes a gap-filling
requirement, Richter, dealt with a state court decision that
was unsupported by any reasoning. 562 U.S. at 96-97. The
state court issued a summary order, with no written opinion,
denying a prisoner’s ineffective assistance of counsel claim.


analysis, we review the petitioner’s claim de novo, without
deference to the state court’s legal conclusions. Panetti, 551
U.S. at 953 (“When a state court’s adjudication of a claim is
dependent on an antecedent unreasonable application of
federal law, the requirement set forth in § 2254(d)(1) is
satisfied. A federal court must then resolve the claim without
the deference AEDPA otherwise requires.”).




                              8
Id. The gap in the state court’s reasoning was obvious – there
was no reasoning at all. The Supreme Court held that, even
in those circumstances, “[w]here a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Id. at 98. Thus
federal courts must fill gaps in a state court’s reasoning so
that there is something against which to measure a
petitioner’s efforts. In short, “a habeas court must determine
what arguments or theories … could have supported[] the
state court’s decision” and afford AEDPA deference to those
theories. Id. at 102.

        Premo v. Moore extended Richter’s gap-filling
directive a bit beyond cases devoid of all reasoning. 562 U.S.
115 (2011). There, a prisoner claimed ineffective assistance
of counsel because his attorney had failed to file a motion to
suppress a confession. Id. at 119. In concluding that such a
motion “would have been fruitless,” id., the state court’s
opinion expressly referenced trial counsel’s explanation that
“suppression would serve little purpose” because the
defendant had made full and admissible confessions to others.
Id. at 123. The state court did not, however, specify which of
the two prongs of the ineffective assistance of counsel
standard from Strickland v. Washington, 466 U.S. 668 (1984)
– deficient performance or prejudice – formed the basis of its
rejection of the claim. Premo, 562 U.S. at 123. The Supreme
Court therefore held that the Court of Appeals for the Ninth
Circuit had to fill that gap by assuming “that both findings
would have involved an unreasonable application of clearly
established federal law.” Id. Critical to the ultimate denial of
habeas relief, the Supreme Court believed that the state
court’s justification for rejecting the petitioner’s claim was




                               9
sufficient to address either prong of Strickland.7
Accordingly, the Supreme Court’s decision was not an
exercise in speculation but was rooted in the state court’s
actual reasoning. Premo did not require consideration of an
entirely new argument that had not already been identified
and accepted by the state court. See id. at 124 (“[T]he [state
court’s] first and independent explanation – that suppression
would have been futile – confirms that [counsel’s]
representation was adequate under Strickland.”). The “gap”
that the Court filled was thus quite narrow.

        The very next year, the Supreme Court put a limit on
gap-filling. In Lafler v. Cooper, it upheld a grant of habeas
corpus. 132 S. Ct. 1376 (2012). The petitioner, Anthony
Cooper, had shot at a woman’s head but missed, instead
hitting her in the buttock, hip, and abdomen. Id. at 1383. The
prosecution offered Cooper two plea deals, and Cooper
expressed interest. Id. He ended up rejecting the offers,
though, because (he later alleged) his attorney convinced him

      7
         See Premo, 562 U.S. at 126-27 (on performance: “It
is not clear how the successful exclusion of the confession
would have affected counsel’s strategic calculus. The
prosecution had at its disposal two witnesses able to relate
another confession. … Moore’s counsel made a reasonable
choice to opt for a quick plea bargain.”); id. at 129 (on
prejudice: “The state court here reasonably could have
determined that Moore would have accepted the plea
agreement even if his second confession had been ruled
inadmissible. By the time the plea agreement cut short
investigation of Moore’s crimes, the State’s case was already
formidable and included two witnesses to an admissible
confession.”).




                             10
that the prosecution would be unable to establish intent to
murder because he shot his victim below the waist. Id. After
he was convicted on all charges, Cooper claimed ineffective
assistance of counsel. Id. The Michigan Court of Appeals
rejected his claim, analyzing it as follows:

       [T]he record shows that defendant knowingly
       and intelligently rejected two plea offers and
       chose to go to trial. The record fails to support
       defendant’s contentions that defense counsel’s
       representation was ineffective because he
       rejected a defense based on [a] claim of self-
       defense and because he did not obtain a more
       favorable plea bargain for defendant.

People v. Cooper, No. 250583, 2005 WL 599740, at *1
(Mich. Ct. App. Mar. 15, 2005) (per curiam) (internal
citations omitted). After the district court granted Cooper’s
petition for habeas relief, the Sixth Circuit affirmed,
emphasizing the problem in the state court’s decision with
this comment: “it is not clear from the [state] court’s
abbreviated discussion (only two sentences of the opinion is
even arguably responsive to petitioner’s claim) what the court
decided, or even whether the correct legal rule was
identified.” Cooper v. Lafler, 376 F. App’x 563, 568-69 (6th
Cir. 2010), vacated by 132 S. Ct. 1376 (2012).

       While it ultimately affirmed the habeas decision, the
Supreme Court concluded that the state court’s two-sentence
analysis “may not be quite so opaque as the Court of Appeals
for the Sixth Circuit thought … .” Lafler, 132 S. Ct. at 1390.
The state court had identified Cooper’s ineffective-assistance-
of-counsel claim, but had failed to apply the proper Strickland




                              11
standard to assess it. Instead, the state court had “simply
found that respondent’s rejection of the plea was knowing and
voluntary.” Id. Although the Michigan court recited the
Strickland standard, the Supreme Court concluded that the
state court had mistakenly relied upon an entirely different
standard (i.e., the “knowing and voluntary” standard), which
was contrary to Strickland. By relying upon the wrong
standard altogether, “the state court’s adjudication was
contrary to clearly established federal law.” Id. As a
consequence, the Supreme Court declined to apply AEDPA
deference to the state court decision and, instead, engaged in
de novo review of Cooper’s Strickland claim, concluding that
his counsel’s deficient performance and the prejudice
therefrom required relief. Id. at 1390-91. The Supreme
Court’s analysis in Lafler suggests that we should be hesitant
to deem a state court opinion to be so lacking in analysis that
it is comparable to an “order … unaccompanied by an
opinion explaining [its] reasons.” Richter, 562 U.S. at 98. In
other words, we ought not engage in error correction under
the guise of gap-filling.

        That holds true here. In Dennis I, the Pennsylvania
Supreme Court correctly identified Brady and its requirement
that, for relief to be warranted, the evidence in question must
be both exculpatory and withheld. Nevertheless, the court
applied a standard contrary to Brady and its progeny when it
concluded that the prosecution did not withhold evidence that
the police had in their possession. Cf. Sears v. Upton, 561
U.S. 945, 952 (2010) (per curiam) (“Although the court
appears to have stated the proper … standard, it did not
correctly conceptualize how that standard applies to the
circumstances of this case.”). Kyles is very clear in
explaining that, for purposes of a Brady analysis, the




                              12
prosecution functionally possesses all favorable evidence in
the possession of the police. See 514 U.S. at 437 (“[T]he
individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s
behalf in the case, including the police.”). Just as the
Michigan state court in Lafler failed to apply Strickland to
assess an ineffective assistance claim, so too the Pennsylvania
Supreme Court failed to apply Kyles to assess Dennis’s Brady
claim with respect to the Cason receipt. Rather than applying
Kyles, the court simply found that there was no evidence that
the prosecutor possessed the Cason receipt. Compare Lafler,
132 S. Ct. at 1390 (“Rather than applying Strickland, the state
court simply found that respondent’s rejection of the plea was
knowing and voluntary. An inquiry into whether the rejection
of a plea is knowing and voluntary, however, is not the
correct means by which to address a claim of ineffective
assistance of counsel.”). Lafler implies a limit on the gap-
filling called for by Richter and Premo. As was done in
Lafler, we should take the state court’s decision as written,
rather than construct our own “not unreasonable” theory to
justify that court’s conclusion.

       Justice Scalia’s dissent in Lafler further supports the
analogy between that case and this one. Indeed, his opinion
reads much like the Dissent here. First, he pointed out that
the Michigan state court had recited the Strickland standard.
Lafler, 132 S. Ct. at 1396 (Scalia, J., dissenting). He next
read the subsequent paragraph of the state court’s decision as
an attempt to apply that standard. Id. He then concluded that
the state court did not apply a standard “contrary to” federal
law. Instead, by direct analogy to Premo, he argued that his
colleagues should have assessed whether the state court
opinion constituted an unreasonable application of clearly




                              13
established federal law, subject to Richter’s gap filling
requirement:

      Since it is ambiguous whether the state court’s
      holding was based on a lack of prejudice or
      rather the court’s factual determination that
      there had been no deficient performance, to
      provide relief under AEDPA this Court must
      conclude that both holdings would have been
      unreasonable applications of clearly established
      law.

Id. Justice Scalia’s effort to salvage the state court decision
in Lafler provides some support for the Dissent’s approach
here. But Justice Scalia was himself writing a dissent. Had
the Supreme Court wanted us to save every problematic state
court opinion by gap-filling and application of AEDPA
deference, Justice Scalia’s opinion would have been the
majority position.

        I can discern no ambiguity in the Pennsylvania
Supreme Court’s Brady analysis regarding the Cason receipt.
The Dennis I opinion is clear about it. Very brief and very
wrong, but clear. The analysis under the suppression prong
of Brady can be distilled from two sentences of the opinion.
First, the court says, “During their investigation … the police
came into possession of” the Cason receipt.8 Dennis I, 715

      8
         The Commonwealth argues that this sentence is not
necessarily a factual finding to which we must defer under
§ 2254(e)(1), but was instead the Pennsylvania Supreme
Court’s recapitulation of Dennis’s argument. The Majority
rightly rejects that argument. (See Majority Op. at 46 n.17.)




                              14
The plain language of Dennis I indicates that the statement
was a finding of fact. See Paulson v. Newton Corr. Facility,
Warden, 703 F.3d 416, 420 (8th Cir. 2013) (interpreting, in a
habeas case, a state-court opinion consistent with its “plain
language”). When the Pennsylvania Supreme Court was
referring to arguments from the parties, it said so: in the very
next paragraph of that opinion, every sentence contains some
version of the words “appellant argues.” No such language
appears in the disputed sentence (or its entire surrounding
paragraph, for that matter). Thus, it certainly appears that the
Pennsylvania Supreme Court was making a statement of
historical fact when it said that “the police came into
possession of” the Cason receipt. Dennis I, 715 A.2d at 408.
        Without the deference afforded to an express factual
finding, it would be an open question whether the police
actually possessed the Cason receipt. When Dennis first
offered Cason’s affidavit alleging that the police took her
receipt, he himself argued that a “remand for an evidentiary
hearing” would be “necessary to establish the record” before
the Brady issue could be resolved. (App. 2012; see also App.
1891, 2021.) Likewise, the Commonwealth understood
Cason’s affidavit to be merely a proffer of her “proposed
testimony,” and argued that such testimony would have
lacked the support of “competent evidence.” (App. 1923.)
Further complicating matters, Cason’s 1997 recollection of
her interview with the police is in conflict with the police’s
contemporaneous record of that encounter in 1992 (which did
not enter the court record until after Dennis I, during PCRA
proceedings). Were we here on de novo review of that factual
finding, we could well question whether the police did, in
fact, have the Cason receipt. As it stands, the state court’s




                              15
A.2d at 408. It then says, “there is no evidence that the
Commonwealth withheld the receipt from the defense.” Id.
If one follows the instruction of Kyles, those two statements
are impossible to harmonize. But if one ignores Kyles and
assumes there exists some dividing line between the police
and the prosecution, the court’s reasoning is plain. To the
Pennsylvania Supreme Court, the fact that the police had the
receipt does not mean that the Commonwealth had the receipt,
and thus the Commonwealth did not suppress what it did not
have. There is no hint that “reasonable diligence” was part of
the analysis.    The Commonwealth did not advance a
reasonable diligence argument,9 nor did the court reference a
diligence requirement anywhere in its opinion. In failing to
apply Kyles, the state court’s opinion was “contrary to” and
“involved an unreasonable application of[] clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).

       My dissenting colleagues treat the contradictory
sentences in Dennis I like a “Magic Eye” image, staring past
the obvious error until the illusion of a fillable gap
materializes. They do so, I assume, because it is hard to
accept that a court would make such a clear error of law: How


factual findings are “presumed to be correct.” 28 U.S.C.
§ 2254(e)(1).
       9
         In its sur-reply brief before the state court, the
Commonwealth mentioned the potential “public availability”
of the receipt. (App. 2026.) Under Pennsylvania law,
however, arguments raised for the first time in reply briefs are
generally regarded as waived. Commonwealth v. Potts, 566
A.2d 287, 296 (Pa. Super. Ct. 1989).




                              16
could the state court possibly have concluded both that the
police possessed the receipt and that the prosecution did not
withhold it? That conclusion makes absolutely no sense if
one assumes the state court knew of and applied Kyles. See
Lopez v. Schriro, 491 F.3d 1029, 1046 (9th Cir. 2007)
(Thomas, J., concurring in part and dissenting in part) (noting
that we start with the “presumption that state judges know
and follow the law”). But state courts, just like us, do
sometimes err. And when they do, we are not free to label
significant errors as “gaps” to be corrected under Richter and
Premo.

       Limiting our habeas review to the actual, expressed
reasoning of a state court is itself a form of deference. The
principles of comity and federalism underlying AEDPA’s
highly-deferential standard compel us to acknowledge the
state court’s reasoning if we can fairly discern it. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991) (describing an
“unexplained” state-court order as one from which that
court’s rationale is “undiscoverable”).10 We would do real

       10
          In Ylst, the Supreme Court held that when there is
one reasoned state judgment rejecting a federal claim, any
later unexplained orders upholding that judgment or rejecting
the same claim will be presumed to rest upon the same
ground. 501 U.S. at 803. In emphasizing the difficulty of
discerning the reasoning behind an unexplained state-court
order – or one “whose text or accompanying opinion does not
disclose the reason for the judgment,” id. at 802 – the Court
said: “Indeed, sometimes the members of the court issuing an
unexplained order will not themselves have agreed upon its
rationale, so that the basis of the decision is not merely
undiscoverable but nonexistent.” Id. at 803. Although Ylst




                              17
damage to those principles were we to begin re-writing state
court opinions to save them. Sometimes what appears to be a
fundamental misstep is exactly that. Since the passage of
AEDPA, the narrow purpose of federal habeas review has
been to address just such missteps. See Richter, 562 U.S. at
103 (“As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.”).

       There is yet another reason to think that Dennis I
presents nothing more complicated than a Kyles error: the
Commonwealth advocated it. Before the Pennsylvania
Supreme Court, the Commonwealth advanced the incorrect
theory that it was not required to turn over favorable evidence
in the possession of the police. It emphasized that, “even
though Cason claims in her affidavit that [the receipt] was
taken by the police,” the failure to produce that document
could not constitute a Brady violation because “there [wa]s no
reason to believe it was in the Commonwealth’s possession to
be produced.” (App. 2026.) That argument presupposes,
contrary to Kyles, that there exists a divide between
discoverable evidence taken by the police and discoverable
evidence in the prosecutor’s case file.

      At the time, that argument may have had some basis in
Pennsylvania law, although it was already untenable because


predates the passage of AEDPA, the Richter Court cited it
favorably, 562 U.S. at 99-100, thus indicating the continued
validity of its presumption.




                              18
of Kyles. In 1995, when Kyles was decided, the Pennsylvania
rules governing discovery and evidence disclosure were not
based on the premise that evidence possessed by the police is
possessed by the prosecution. See Pa. R. Crim. Pro. 305B
(Repealed) (requiring mandatory disclosure of evidence
favorable to the accused only when it “is within the
possession or control of the attorney for the
Commonwealth”).       Even after Kyles was decided, the
Pennsylvania Superior Court continued to hew to the out-
moded state-law rule. See Commonwealth v. McElroy, 665
A.2d 813, 819 (Pa. Super. Ct. 1995). The Pennsylvania
Supreme Court likewise continued to apply its discovery rules
as written. See Commonwealth v. Gribble, 703 A.2d 426,
435-36 (Pa. 1997). It did not explicitly abrogate the faulty
state rule of discovery until 2001. See Commonwealth v.
Burke, 781 A.2d 1136, 1142 (Pa. 2001). Dennis I was
decided in 1998. Thus, the court was not leaving a gap in its
Dennis I opinion. It was accepting the Commonwealth’s
unsound argument, and it practically said so.

       The wisdom of Richter gap-filling is open to
reasonable criticism. A widely respected judge has expressed
the view that gap-filling is unfair and incentivizes unreasoned
decisions; it is a perspective that my colleague Judge
Hardiman evidently shares, as described in his Dissent. See
Mann v. Ryan, 774 F.3d 1203, 1225 (9th Cir. 2014)
(Kozinski, J., concurring in part and dissenting in part)
(Richter “has the perverse effect of encouraging state courts
to deny relief summarily, to insulate their orders from
tinkering by the federal courts.”), on reh’g en banc, No. 09-
99017, 2016 WL 3854234 (9th Cir. July 15, 2016). Given
those criticisms, it has been suggested that we should engage
in Richter gap-filling, and thus apply AEDPA deference, even




                              19
when a state court does give a reasoned basis for its
conclusions. See id. at 1224 (Kozinski, J., concurring in part
and dissenting in part) (“After Richter, it seems clear that we
should assess the reasonableness of a state court’s decision,
not its reasoning.”). Judge Hardiman would follow that
approach here. (See J. Hardiman Dissent Op. at 4 (“I would
hold that regardless of the thoroughness – or even the
correctness – of the Pennsylvania Supreme Court’s stated
reasoning, its judgment may not be upset so long as its
decision did not contravene or unreasonably apply clearly
established federal law … .”).) And, indeed, his approach
may have some appeal as a matter of policy – he has
identified those policy justifications well – but, as a matter of
law, I do not believe we can go so far. Lafler does not accept
that logic.

       Nor does the Supreme Court’s opinion in Wetzel v.
Lambert, a post-Richter decision in which the Court dealt
with a fully-reasoned (i.e., gapless) state court opinion. 132
S. Ct. 1195 (2012) (per curiam). Wetzel described the
required analytical path as follows:

       Under § 2254(d), a habeas court must determine
       what arguments or theories supported … the
       state court’s decision; and then it must ask
       whether it is possible fairminded jurists could
       disagree that those arguments or theories are
       inconsistent with the holding in a prior decision
       of this Court.

Id. at 1198 (quoting Richter, 562 U.S. at 102). The ellipsis in
that quotation is significant, as the Court wholly excised the
“or, as here, could have supported” language from its




                               20
quotation of Richter when describing how federal courts
review a reasoned state-court decision. Compare supra note
4. Rather than extending Richter, both Lafler and Wetzel
suggest that gap-filling is reserved for only those cases where
we cannot discern the basis for the state court’s conclusions.11

       11
          That reading of Richter has ample support in other
circuits. See, e.g., Cannedy v. Adams, 706 F.3d 1148, 1158
(9th Cir. 2013) (“[I]t does not follow from Richter that, when
there is a reasoned decision by a lower state court, a federal
habeas court may no longer ‘look through’ a higher state
court’s summary denial to the reasoning of the lower state
court.”); Johnson v. Secretary, DOC, 643 F.3d 907, 930 n.9
(11th Cir. 2011) (“The Court’s instruction from Harrington
does not apply here because the Florida Supreme Court did
provide an explanation of its decision … .”); Sussman v.
Jenkins, 642 F.3d 532, 534 (7th Cir. 2011) (distinguishing
Richter because that case “addresses the situation in which a
state-court decision ‘is unaccompanied by an explanation,’”
whereas in the instant case “the state appellate court issued an
opinion”).
        To read Richter to apply to a state court’s ultimate
decisions, irrespective of stated reasoning, also requires that
we assume the Richter Court intended to overrule some
precedents sub silentio. In particular, Ylst established a
presumption that “[w]here there has been one reasoned state
judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon
the same ground.” 501 U.S. at 803. Judge Hardiman
endeavors to narrow the Ylst presumption to only apply when
we are uncertain as to whether the state court decided a claim
“on the merits.” (J. Hardiman Dissent Op. at 15 n.7.) So, in
his view, we look through to the last reasoned state court




                              21
decision to determine whether the case was decided on the
merits, and then, having answered that question, take no
account of the reasoning in that state court decision. But, in
applying the Ylst presumption, the Supreme Court has
analyzed and discussed the expressed reasoning of lower state
courts. See Johnson v. Williams, 133 S. Ct. 1088, 1097-99
(2013); see also Hittson v. Chatman, 135 S. Ct. 2126, 2128
(2015) (Ginsburg, J., concurring in the denial of certiorari)
(“There is no reason not to ‘look through’ … to determine the
particular reasons why the state court rejected the claim on
the merits.”). The proper application of the Ylst presumption
raises all of the same policy problems Judge Hardiman has
noted – just one step lower in the state review process. If we
“look through” an unreasoned state court decision, Ylst
presumably requires that we then review the reasoning given
in the lower state court. If not, then why bother “looking
through” at all? If we truly read Richter in the way Judge
Hardiman proposes – and took his reasoning to its logical
conclusion – it would require that we void the Ylst
presumption, because we need not “look through” unreasoned
judgments when we actually review only decisions and not
their reasoning. But, in the words of the Supreme Court, “a
presumption which gives [unreasoned orders] no effect –
which simply ‘looks through’ them to the last reasoned
decision – most nearly reflects the role they are ordinarily
intended to play.” Ylst, 501 U.S. at 804 (emphasis in
original). It is hard to accept that the Richter Court intended
to implicitly overrule Ylst, particularly because the Court
cited Ylst favorably. See Richter, 562 U.S. at 99-100. The
Court also applied the Ylst presumption just this past term,
thus confirming its continued viability. See Kernan v.
Hinojosa, 136 S. Ct. 1603, 1605-06 (2016) (per curiam).




                              22
       And, under Judge Hardiman’s approach, Ylst is not the
only precedent that would have to fall. Compare J. Hardiman
Dissent Op. at 14-15 (“Where the state court denies relief but
addresses only certain prongs of a test or components of a
claim, the reviewing federal court should likewise consider
what reasons regarding an unaddressed prong or component
could have supported the decision.”), with Wiggins v. Smith,
539 U.S. 510, 534 (2003) (reviewing a Strickland claim, and
concluding that its “review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the
state courts below reached this prong of the Strickland
analysis”), and Palmer v. Hendricks, 592 F.3d 386, 400 (3d
Cir. 2010) (citing Wiggins for the proposition “that because
the state courts did not decide the prejudice issue on the
merits, AEDPA’s deferential standards do not apply to our
resolution of the prejudice question”). In Wiggins, the
Supreme Court did not defer to the state court’s order in
assessing the second prong of the petitioner’s Strickland
claim because “neither of the state courts below reached this
prong of the Strickland analysis.” 539 U.S. at 534. The
Court thus acted contrary to Judge Hardiman’s proposed
holding here – it engaged in de novo review of the second
prong even though “the state court denie[d] relief but
addresse[d] only certain prongs of a test or components of a
claim … .” (J. Hardiman Dissent Op. at 14.) Judge
Hardiman forthrightly acknowledges that his proposed
holding is in tension with Wiggins, but then suggests that
Richter (as the later of the two cases) undermines Wiggins. I
do not believe that Richter intended that result, especially
because the two cases can be reconciled.




                             23
       That is not the case here. Were Dennis in exactly the
same position but the Dennis I opinion contained one or two
fewer sentences, there would perhaps be a gap to fill and I
would be joining my dissenting colleagues in applying
AEDPA deference, but there is no gap. The Dennis I opinion
suffers from erroneous and not opaque reasoning. It may
seem odd that so much hinges on so little, with a man’s life
depending on the difference between bad reasoning and no
reasoning. That, however, is the analytical distinction drawn
by Supreme Court precedent, including Richter, Premo, and
Lafler.12

       12
          Again, if we determine that a state court’s reasoning
is contrary to clearly established federal law, we then engage
in de novo review of the claim in question. See supra note 6;
Panetti, 551 U.S. at 948-54. In his dissent, Judge Hardiman
posits a hypothetical in which our decision to grant habeas
relief could turn on the state court’s method of drafting its
decision. If the state court issues a summary order, we would
apply Richter and deny habeas relief by application of
AEDPA deference. If, however, it issues a reasoned decision,
and that reasoning is contrary to clearly-established federal
law, we would grant habeas relief – to the very same claimant
– after de novo review of the underlying claim. My colleague
thinks that outcome absurd, but, whether we like it or not, that
is what the Supreme Court directs us to do. Under AEDPA,
we must defer (1) to the reasoning actually elaborated in a
state court decision, and (2) to any basis that can reasonably
support a state court’s decision, but only if its own reasoning
cannot be fairly discerned. The latter is the import of Richter.
If the Supreme Court wanted us to afford AEDPA deference
to all state court decisions regardless of the extent of their
reasoning, that would be a rule of considerable consequence




                              24
        Given the magnitude of the Pennsylvania Supreme
Court’s error regarding the Cason receipt, this case presents
the sort of “extreme malfunction[] in the state criminal justice
system” that demands our intervention. Richter, 562 U.S. at
102 (internal quotation marks omitted). I therefore concur in
Part III.A of the Majority’s opinion, insofar as it explains why
it is proper to grant Dennis habeas relief on de novo review of
the Cason receipt Brady claim, and I concur in Part II of the
Majority opinion and in the judgment.



for habeas petitioners. Presumably the Supreme Court would
have said (or at least suggested) as much in Richter, Premo,
Lafler, Wetzel, or any of the other numerous habeas appeals it
has considered in recent years and that Judge Hardiman has
collected in his dissent. If anything, though, the Court has
said the contrary. See Panetti, 551 U.S. at 954 (“§ 2254 does
not preclude relief if either the reasoning or the result of the
state-court decision contradicts” clearly-established Supreme
Court precedent (internal quotation marks and alteration
omitted, emphasis added).).
        A petitioner does not get any windfall under the
approach I have outlined based on Supreme Court precedent.
If his claim does not have merit, it will fail even under de
novo review. Under Judge Hardiman’s approach, by contrast,
state prosecution teams do get a windfall. They would prevail
unless every conceivable route to victory is “contrary to …
clearly established Federal law, as determined by the
Supreme Court of the United States.”                28 U.S.C.
§ 2254(d)(1). In other words, the prosecution wins even if it
never argued a sensible position and the state court gave only
a completely erroneous basis for its decision. I do not believe
we can or should read Richter as going that far.




                              25
FISHER, Circuit Judge, dissenting, with whom SMITH,
CHAGARES and HARDIMAN, Circuit Judges, join.

     A Philadelphia jury convicted James Dennis of murder
and sentenced him to death. The Pennsylvania Supreme Court
affirmed his conviction and sentence. His petition for
postconviction relief was denied, and, after several interven-
ing decisions, this denial was affirmed by the Pennsylvania
Supreme Court. The Majority overturns these state-court
decisions by concluding that the prosecution failed to disclose
to Dennis exculpatory material in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The Majority is particularly
concerned about the reliability of eyewitness testimony and
about a “shodd[y]” investigation by the Philadelphia police.
Maj. Op. 89. By taking this approach, the Majority goes off
course for two reasons. First, the evidence against Dennis was
strong—it is hard to discount the identification testimony of
three eyewitnesses. Second, and more importantly, the
Majority fails to adhere to the narrowly circumscribed scope
of habeas review. Congress has decreed that we may not grant
a writ of habeas corpus unless the judgment of the state court
was clearly unreasonable, not merely incorrect. Applying this
standard of review to a case such as this one is difficult, but
the Supreme Court has repeatedly reversed those courts of
appeals that have not faithfully followed this mandate. The
Pennsylvania Supreme Court did not unreasonably apply
clearly established federal law, and for that reason I dissent.

                              I
     On a sunny fall afternoon in 1991, Chedell Williams and
her friend Zahra Howard got off the bus that had brought




                              1
them from their high school and climbed the steps of the Fern
Rock SEPTA station in Philadelphia. Two men accosted them
and demanded their earrings. Williams ran into the street to
escape. One of the men chased her, grabbed her, and ripped
her earrings out of her ears. He raised a silver revolver and
fired one shot into her neck from less than an inch away.
Williams collapsed and died. The shooter fled. Three
eyewitnesses, including Howard, observed the shooter at
close range. They each identified the shooter in a photo array,
in a lineup, and at trial: the shooter was James Dennis.

     The Majority discusses in detail the testimony of the
three eyewitnesses who testified at trial that Dennis shot
Williams: Zahra Howard, Thomas Bertha, and James
Cameron. The Majority calls out discrepancies between the
eyewitnesses’ descriptions of the shooter’s height and weight
(said to be 5′9″ or 5′10″ and 170 to 180 pounds) and Dennis’s
actual size (5′5″ and 125 to 135 pounds). The reliability of the
eyewitness identifications is irrelevant to the legal question
we must decide—which is whether the Pennsylvania Supreme
Court unreasonably applied Brady and its progeny. Neverthe-
less, a few points about the identifications are worth
mentioning. First, the visual conditions were excellent. The
murder occurred in the afternoon and the weather was clear.
Second, the witnesses saw the shooter at close range and had
unobstructed views of his face. Howard was one to two feet
away from the shooter and looked him in the face. Bertha and
the shooter made eye contact from less than eight feet away,
and Bertha was able to observe the expression on the
shooter’s face. Cameron saw the face of the shooter from
eight to ten feet away. Third, none of the identifications was




                               2
cross-racial. See Arizona v. Youngblood, 488 U.S. 51, 72 n.8
(1988) (Blackmun, J., dissenting) (noting studies showing that
cross-racial identifications are less accurate than same-race
identifications). And fourth, witnesses generally overestimate
the height and weight of men who are below population
averages, as Dennis was. Christian A. Meissner et al., Person
Descriptions as Eyewitness Evidence 3, 8, in 2 Handbook of
Eyewitness Psychology (Rod C.L. Lindsay et al., eds. 2007)
(noting a tendency for witnesses to underestimate the height
of taller targets and overestimate the height of shorter
targets); Rhona H. Flin & John W. Shepherd, Tall Stories:
Eyewitnesses’ Ability to Estimate Height and Weight
Characteristics, 5 Human Learning 29, 34 (1986) (noting the
same effect for both height and weight); see id. at 36 (citing a
study finding that “witnesses tend to overestimate the height
of criminals”).

     The defense vigorously cross-examined these witnesses
and elicited some discrepancies between their testimony and
prior statements and between estimates of the shooter’s height
and weight and Dennis’s. Nevertheless, the jury found the
eyewitnesses’ testimony credible. In addition to that testimony,
the prosecution called Charles Thompson, a member of
Dennis’s singing group, who testified that he saw Dennis with
a small silver handgun several hours after the murder.
Whatever one might feel about the testimony of these
witnesses or the testimony of eyewitnesses in general, the
evidence that convinced the jury to convict Dennis was not,
as the district court described it, “scant evidence at best.”
Dennis v. Wetzel, 966 F. Supp. 2d 489, 491 (E.D. Pa. 2013).




                               3
      Dennis’s Brady claims concern three documents that he
asserts the prosecution should have turned over to him before
trial: a receipt from the Department of Public Welfare (DPW),
a police activity sheet reporting a conversation with
Williams’s aunt and uncle, and police records describing the
investigation of a jailhouse tip. The receipt relates to a
possible alibi witness, Latanya Cason. Dennis told police that
he was riding a bus at the time of the murder—shortly before
2:00 p.m.—and that he saw Cason and waved to her as he left
the bus. Cason testified at trial that she saw Dennis at 4:00 or
4:30 p.m., which did not support his alibi. Cason visited the
DPW before seeing Dennis that day. Dennis asserts that the
police had a time-stamped receipt from Cason’s DPW visit
and that, had the receipt been turned over to the defense,
Cason would have testified that she saw Dennis at 2:00 or
2:30 p.m. The subject of Dennis’s second claim is a police
activity sheet containing detectives’ notes of an interview
with Williams’s aunt and uncle, Diane and Mannasett Pugh.
According to the notes, the Pughs told detectives that Zahra
Howard told them she recognized the shooter from her high
school. This conflicts with Howard’s statements to police and
testimony at trial that she had never seen the shooter before.
The third Brady claim concerns police records of an
investigation of a tip by an inmate, William Frazier, who told
police that his friend, Tony Brown, admitted to Frazier that
Brown shot Williams. Police never located Tony Brown, and
Frazier later admitted that he made up the entire story.

    The district court concluded that the prosecution violated
Brady by suppressing each of these three items and found that
the Pennsylvania Supreme Court’s determinations to the




                               4
contrary unreasonably applied clearly established Supreme
Court precedent. I disagree with the Majority’s affirmance of
the district court and will explain my reasons in detail.

                               II
     The source of my disagreement with the Majority is its
failure to apply the deferential standard of review prescribed
by the Antiterrorism and Effective Death Penalty Act
(AEDPA). When a state prisoner applies for a writ of habeas
corpus on a claim that was adjudicated on the merits in state
court, a federal court may not grant the application unless the
state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). A state
court’s application of the law or determination of the facts is
not unreasonable merely because it is—in the eyes of the
reviewing federal court—wrong. The decision must be “so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fair-minded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).

     We must give state-court decisions “the benefit of the
doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This
duty to give state-court decisions deference applies even
when a state court does not give a reasoned explanation of its
decision. “Where a state court’s decision is unaccompanied
by an explanation, the habeas petitioner’s burden still must be




                               5
met by showing there was no reasonable basis for the state
court to deny relief.” Richter, 562 U.S. at 98. In such a
situation, the reviewing federal court must consider arguments
and theories that “could have supported” the decision. Id. at
102.

     The AEDPA standard is intentionally difficult to meet.
The standard reflects state courts’ competence to resolve
federal constitutional questions and states’ strong interest in
controlling their criminal justice systems. Federal habeas
corpus is designed to “‘guard against extreme malfunctions in
the state criminal justice systems,’ not [to] substitute for
ordinary error correction through appeal.” Id. at 102–03
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(Stevens, J., concurring)). Among the courts of appeals,
however, there has been some reluctance to adhere to the
AEDPA standard as defined by the Supreme Court. In recent
terms, the Court has issued a string of reversals, many as
summary per curiam opinions, for failure to apply the correct
standard of review under AEDPA. See, e.g., Woods v.
Etherton, 136 S. Ct. 1149 (2016) (per curiam); Woods v.
Donald, 135 S. Ct. 1372 (2015) (per curiam); Glebe v. Frost,
135 S. Ct. 429 (2014); Lopez v. Smith, 135 S. Ct. 1 (2014)
(per curiam); Marshall v. Rodgers, 133 S. Ct. 1446 (2013)
(per curiam); Parker v. Matthews, 132 S. Ct. 2148 (2012) (per
curiam); Renico v. Lett, 559 U.S. 766 (2010). There are many
more. I fear that this case may join that list.

     The Majority holds that the Pennsylvania Supreme Court
unreasonably applied the United States Supreme Court’s
decisions in the line of cases discussing prosecutors’ duty to
turn over favorable evidence to the defense. In Brady v.




                              6
Maryland, the Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” 373 U.S. at 87. The Court later ruled
that the duty to disclose exculpatory evidence applies whether
a defendant requests it or not. United States v. Agurs, 427
U.S. 97, 107 (1976). The Court explained that a Brady
violation has three components: evidence that is (1) favorable
to the defendant, (2) suppressed by the prosecution, and (3)
material. Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Favorable evidence includes both exculpatory evidence and
evidence that could be used to impeach prosecution
witnesses. United States v. Bagley, 473 U.S. 667, 676 (1985).
Evidence can be suppressed even if it is only known to the
police and not to the prosecutor—“the individual prosecutor
has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police.” Kyles v. Whitley, 514 U.S. 419, 437
(1995). Evidence is material if “there is a reasonable
probability that the suppressed evidence would have produced
a different verdict.” Strickler, 527 U.S. at 281. The materiality
of suppressed evidence must be assessed cumulatively, “not
item by item.” Kyles, 514 U.S. at 436.

                              III

                               A
     The Pennsylvania Supreme Court addressed the Brady
claim based on Latanya Cason’s DPW receipt (and an
ineffective assistance of counsel claim based on his counsel’s




                               7
failure to investigate Cason) without providing much
reasoning or detail. The court noted that Cason testified that
she saw Dennis at around 4:00 or 4:30 p.m. the day of the
murder based on her recollection that she had left work to
cash her welfare check at about 2:00 p.m. “During their
investigation, however, the police came into possession of a
Department of Public Welfare (DPW) receipt showing that
Cason cashed her check at 1:03 p.m.” Commonwealth v.
Dennis, 715 A.2d 404, 408 (Pa. 1998) (“Dennis I ”). The court
found that the receipt was not material because even if the
defense knew of the receipt, Cason’s corrected testimony
“would not support [Dennis’s] alibi … because the murder
occurred at 1:50 p.m., forty minutes earlier than Cason’s
earliest estimate.” Id. The court concluded: “Finally, it is clear
that there clearly was no Brady violation. The DPW receipt
was not exculpatory, because it had no bearing on [Dennis’s]
alibi, and there is no evidence that the Commonwealth
withheld the receipt from the defense.” Id.

    I agree with the Majority that the Cason receipt was
favorable to Dennis and was material, but I disagree with the
Majority’s conclusion that the receipt was suppressed.
Despite the Pennsylvania Supreme Court’s representations
about clarity, it is not clear what the court meant by “there is
no evidence that the Commonwealth withheld the receipt
from the defense.” The Majority acknowledges that the
Pennsylvania Supreme Court “provided no explanation.” Maj.
Op. 46. Yet the Majority assumes that the Pennsylvania
Supreme Court made an unreasonable finding of fact or
conclusion of law that the prosecution had no duty to disclose




                                8
the receipt because it was in possession of the police—a
finding clearly foreclosed by Kyles, 514 U.S. at 437–38.

     When a state court does not give a reasoned explanation,
we are not permitted to assume or guess what the most likely
explanation is. “Where a state court’s decision is unaccompa-
nied by an explanation, the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the
state court to deny relief.” Richter, 562 U.S. at 98 (emphasis
added). In other words, when there is an analytical gap in a
state court’s reasoning, we must consider “what arguments or
theories … could have supported … the state court’s
decision.” Id. at 102.

     Although the state-court decision at issue in Richter was
a summary disposition, the Supreme Court’s instruction to
consider arguments that could have supported the state court’s
decision is not limited to summary dispositions. In Premo v.
Moore, 562 U.S. 115 (2011), which was decided the same day
as Richter, the Supreme Court considered theories that could
have supported a reasoned, written decision with an analytical
gap. In state postconviction relief proceedings, Moore argued
that his counsel had been unconstitutionally ineffective under
Strickland v. Washington, 466 U.S. 668 (1984). The state
court rejected his Strickland argument, but, as the Supreme
Court noted, the “state court did not specify” whether the
ineffectiveness claim failed “because there was no deficient
performance under Strickland or because Moore suffered no
Strickland prejudice, or both.” Moore, 562 U.S. at 123. In
order for a federal court to grant habeas relief, both prongs
would need to have involved an unreasonable application of
clearly established federal law. Id. The Supreme Court found




                              9
that the state court “reasonably could have concluded that
Moore was not prejudiced by [his] counsel’s actions. Under
AEDPA, that finding ends federal review.” Id. at 131.

     Because the Pennsylvania Supreme Court provided no
explanation for why it found that the receipt was not withheld
from the defense, there is an analytical gap. This gap is more
open-ended than the two possibilities the state court could
have considered in Moore and narrower than a summary
disposition, such as Richter, where the universe of possible
theories is broad. But our obligation to consider what theories
could have supported the Pennsylvania Supreme Court’s
decision is no less than in Richter and Moore.

     Judge Jordan, in his opinion concurring in part and
concurring in the judgment, takes the position that there is no
gap to be filled under Richter and Moore. He believes that the
only way to explain the Pennsylvania Supreme Court’s
statements that the police had the receipt but that the
Commonwealth did not withhold the receipt is that the court
failed to apply Kyles. Judge Jordan concludes that the
Pennsylvania Supreme Court “simply found that there was no
evidence that the prosecutor possessed the Cason receipt.”
Concurring Op. 13. This is a reasonable explanation, but it is
not the only explanation. The Pennsylvania Supreme Court’s
opinion lacks sufficient analysis to tell what it meant by
“there is no evidence the Commonwealth withheld the receipt
from the defense.” Dennis I, 715 A.2d at 408. If we “take the
state court’s decision as written,” Concurring Op. 13, rather
than assuming that the state court made a mistake, there is an
analytical gap.




                              10
     The Majority also takes the position that the
Pennsylvania Supreme Court violated Kyles. The Majority
notes, however, that “[t]he Pennsylvania Supreme Court
provided no explanation for its … statement [that there was
‘no evidence that the Commonwealth withheld the receipt
from the defense’], and we cannot be sure whether the court
was assessing the facts or interpreting the law.” Maj. Op. 46.
Despite this lack of clarity, the Majority is evidently certain
that it knows “the precise basis for the state court’s ruling.”
Id. at 34. Unlike the Majority, I am unable to discern the
precise basis for the state court’s ruling, and, for that reason,
this is one of those cases in which consideration of theories
that could have supported the state court’s decision is
required.

     This required consideration leads to the conclusion that
there is a viable gap-filling theory here: the Pennsylvania
Supreme Court could have meant that the receipt was not
withheld because it was available to the defense with
reasonable diligence. The reasonable diligence “branch of the
Brady doctrine” is evident, albeit inconsistent, in our own
precedents. See United States v. Perdomo, 929 F.2d 967, 973
(3d Cir. 1991) (“Evidence is not considered to be suppressed
if the defendant either knew or should have known of the
essential facts permitting him to take advantage of any
exculpatory evidence.” (emphasis added)); United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (“[T]he
government is not obliged under Brady to furnish a defendant
with information which he already has or, with any
reasonable diligence, he can obtain himself.” (quoting United
States v. Campagnuolo, 592 F.2d 852, 861 (5th Cir. 1979)).




                               11
But see Wilson v. Beard, 589 F.3d 651, 664 (3d Cir. 2009)
(“[T]he fact that a criminal record is a public document
cannot absolve the prosecutor of her responsibility to provide
that record to defense counsel.” (internal quotation mark
omitted)).

      Despite this inconsistency, we reinforced the conclusion
that Brady has a reasonable diligence component in Grant v.
Lockett, 709 F.3d 224, 231 (3d Cir. 2013). In Grant, the
prosecution failed to disclose that its key witness—the only
person who testified that Grant was the shooter—was on
parole at the time of the shooting. Grant’s postconviction
relief counsel was able to discover that the witness was on
parole, and his trial counsel could have looked up the
witness’s criminal history in records kept by the clerk of
court. We concluded that Grant’s Brady claim “lacked merit”
because “trial counsel could have discovered [the witness’s]
parole status had he exercised reasonable diligence.” Id. at
230, 231.

     The Majority correctly notes that our case law on Brady
reasonable diligence “is inconsistent and could easily
confuse” and clarifies that reasonable diligence “plays no role
in the Brady analysis.” Maj. Op. 54. This clarification to our
case law is helpful, and were we reviewing this case on direct
appeal it would be entirely appropriate. The “no reasonable
diligence” rule may indeed represent the best interpretation of
the Supreme Court’s Brady case law. But this rule is
nonetheless an interpretation of Supreme Court precedent. It
does not represent a clearly established holding of the Court,
and it does not mean that any other interpretation is
unreasonable.




                              12
     The reasonableness of interpreting Brady to have a
reasonable diligence component is supported by the decisions
of other courts of appeals. The Majority notes with surprise
that “several Courts of Appeals have endorsed some form of a
due diligence requirement.” Maj. Op. 54 n.20. “Several”
understates the matter. A majority of the courts of appeals
have applied a reasonable diligence requirement at one time
or another.1 The number of courts (including our court, ten

1. First Circuit: United States v. Rodriguez, 162 F.3d 135,
   147 (1st Cir. 1998) (“The government has no Brady
   burden when the necessary facts for impeachment are
   readily available to a diligent defender ….”).
   Second Circuit: United States v. Payne, 63 F.3d 1200,
   1208 (2d Cir. 1995) (“[E]vidence is not considered to
   have been suppressed within the meaning of the Brady
   doctrine if the defendant or his attorney either knew, or
   should have known, of the essential facts permitting him
   to take advantage of that evidence.” (internal quotation
   marks and alteration omitted)).
   Fourth Circuit: United States v. Wilson, 901 F.2d 378,
   381 (4th Cir. 1990) (“[W]here the exculpatory
   information is not only available to the defendant but also
   lies in a source where a reasonable defendant would have
   looked, a defendant is not entitled to the benefit of the
   Brady doctrine.”).
   Fifth Circuit: United States v. Dixon, 132 F.3d 192, 199
   (5th Cir. 1997) (“Brady does not obligate the government
   to produce for a defendant evidence or information




                             13
already known to him, or that he could have obtained
from other sources by exercising reasonable diligence.”
(internal quotation marks and alteration omitted)); United
States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977)
(“[N]umerous cases have ruled that the government is not
obliged under Brady to furnish a defendant with
information which he already has or, with any reasonable
diligence, he can obtain himself.”).
Sixth Circuit: Matthews v. Ishee, 486 F.3d 883, 891 (6th
Cir. 2007) (“Where … the factual basis for a claim is
reasonably available to the petitioner or his counsel from
another source, the government is under no duty to
supply that information to the defense.” (internal
quotation marks omitted)).
Seventh Circuit: Boss v. Pierce, 263 F.3d 734, 740 (7th
Cir. 2001) (“Evidence is suppressed for Brady purposes
only if … the evidence was not otherwise available to the
defendant through the exercise of reasonable diligence.”).
Eighth Circuit: United States v. Zuazo, 243 F.3d 428,
431 (8th Cir. 2001) (“The government does not suppress
evidence in violation of Brady by failing to disclose
evidence to which the defendant had access through other
channels.”).
Ninth Circuit: Raley v. Ylst, 470 F.3d 792, 804 (9th Cir.
2006) (“[W]here the defendant is aware of the essential
facts enabling him to take advantage of any exculpatory
evidence, the Government does not commit a Brady




                         14
out of the twelve regional courts of appeals) and decisions
applying a reasonable diligence requirement hardly evince a
clearly established Supreme Court rule that reasonable
diligence plays no role in the Brady analysis. Even if the
Majority is correct and all these decisions erroneously applied
Brady, it is hard to conclude that the error is “well understood
and comprehended in existing law” and “beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at
103. Surely, given the number of federal circuit judges who
have concluded that reasonable diligence is a consideration in
the analysis of a Brady claim, “it is possible fairminded jurists
could disagree” that reasonable diligence is inconsistent with
Supreme Court precedent. Id. at 102.

     Under the specific facts of this case, the Pennsylvania
Supreme Court easily could have concluded that Latanya
Cason’s DPW receipt was available to Dennis’s counsel had
his counsel exercised reasonable diligence. Dennis was aware
of Cason—the police only interviewed her after Dennis told


    violation by not bringing the evidence to the attention of
    the defense.” (quoting United States v. Brown, 582 F.2d
    197, 200 (2d Cir. 1978)).
    Eleventh Circuit: LeCroy v. Sec’y, Fla. Dep’t of Corr.,
    421 F.3d 1237, 1268 (11th Cir. 2005) (“To establish that
    he suffered a Brady violation, the defendant must prove
    that … the defendant did not possess the evidence and
    could not have obtained it with reasonable diligence
    ….”).




                               15
them she had seen him. Dennis’s appellate counsel obtained
the receipt from the DPW. And Dennis argued that his trial
counsel would have located the receipt with “minimal
investigation.”2 (App. 1800.) It was not an unreasonable
application of clearly established Supreme Court precedent
for the Pennsylvania Supreme Court to conclude that there
was no Brady violation where trial counsel could have
discovered the evidence by exercising reasonable diligence
and investigating his own client’s alibi witness. See United
States v. Senn, 129 F.3d 886, 893 (7th Cir. 1997) (“[T]he
defendants are hoisted by their own petard: without having
obtained the Broward County file they would not have a
Brady argument, but the ease with which they obtained their
file defeats their claim.”).

     The Majority contends the Supreme Court did “away
with any belief that Brady imposes a due diligence
requirement” in Banks v. Dretke, 540 U.S. 668 (2004). Maj.
Op. 53. But Banks, which was decided after the Pennsylvania




2. The Majority asserts that the DPW receipt was not
   publicly available because DPW regulations prevent
   disclosure of information about welfare recipients. Maj.
   Op. 49–50. Dennis did not argue this point below or raise
   it on appeal, and, to the extent the DPW privacy
   regulations applied to the receipt, Dennis’s admission that
   the receipt was available with minimal investigation
   makes the regulations irrelevant.




                             16
Supreme Court’s decision in Dennis I,3 is distinguishable. In
Banks, the prosecution withheld evidence that one
prosecution witness had been “intensively coached” by
prosecutors before his testimony and another witness was a
paid police informant. 540 U.S. at 677–78. The prosecution
failed to correct these witnesses’ testimony when the
witnesses denied talking to anyone about their testimony or
receiving payments from police. Id. The Supreme Court
refused to adopt a rule allowing the prosecution to “lie and
conceal” evidence so long as the prisoner might have been
able to detect the “potential existence” of prosecutorial
misconduct. Id. at 696. Unlike the DPW receipt at issue in the
present case, the evidence in Banks of the witness coaching
and police payments was solely in the hands of the
prosecution. No amount of diligent investigation would have
uncovered that evidence. Banks is not directly applicable to
evidence that could have been discovered after “minimal
investigation.” See Bell v. Bell, 512 F.3d 223, 235 (6th Cir.
2008) (en banc) (concluding that Banks did not call into
question precedents applying a reasonable diligence
requirement).




3. See Williams v. Taylor, 529 U.S. 362, 412 (2000) (“[T]he
   phrase ‘clearly established Federal law, as determined by
   the Supreme Court of the United States’ … refers to the
   holdings, as opposed to the dicta, of this Court’s decisions
   as of the time of the relevant state-court decision.”
   (emphasis added)).




                              17
     Under these circumstances, I cannot conclude that the
Pennsylvania Supreme Court’s denial of Dennis’s Brady
claim based on the receipt was an unreasonable application of
clearly established Supreme Court precedent.

                             B
     The Pennsylvania Supreme Court reasonably determined
that the Pugh statement was immaterial under Brady. The
statement was found in a police activity sheet that showed
that Chedell Williams’s aunt and uncle, Diane and Mannasett
Pugh, told police that Zahra Howard told them that she
recognized the shooter from school. This alleged statement is
contrary to what Howard repeatedly told police and testified
about at trial—that she had never seen the shooter before he
accosted Williams and her at the SEPTA station.

     The postconviction relief court held an evidentiary
hearing about this Brady claim. Howard testified that she
never told Williams’s family that she had seen the shooter
before. When confronted by the purported statement in the
police activity sheet, she denied ever having made it. Diane
Pugh testified that, as far as she could remember, Howard
never said she recognized the shooter before the murder.

     The Pennsylvania Supreme Court concluded that the
police activity sheet showing the Pugh statement was not
material under Brady because there was no reasonable
probability of a different result had the sheet been turned
over. Commonwealth v. Dennis, 17 A.3d 297, 308–09 (Pa.
2011) (“Dennis IV ”). The Pennsylvania Supreme Court noted
that Howard “was extensively cross-examined at trial” about




                             18
her identification of Dennis, including about whether she had
ever seen the shooter before, and she steadfastly testified that
Dennis was the shooter and that she had never seen him
before. Id. at 309. Two eyewitnesses other than Howard
identified Dennis in a photo array, in a line up, and at trial,
and these witnesses would not have been affected by any
impeachment of Howard. Id. For these reasons, the
Pennsylvania Supreme Court held that Dennis “still received
a fair trial resulting in a verdict worthy of confidence.” Id.
This conclusion was not an unreasonable interpretation of
Supreme Court precedent.

     The Majority correctly notes that heavy impeachment of
a witness does not render further impeachment immaterial.
See Banks, 540 U.S. at 702. In Banks, the prosecution
suppressed information that a key witness was a government
informant, and the government argued this information was
“merely cumulative” because the witness was heavily
impeached at trial. Id. None of the testimony at trial
concerned the witness’s status as an informant, however. The
Court concluded this missing information was material
because the jury was ignorant of the witness’s “true role” in
the case. Id.

     The impeachment value of the activity sheet in this case
was minor. Howard’s identification of Dennis was cross-
examined at trial. She credibly testified in the postconviction
relief hearing that she never made the statements attributed to
her in the activity sheet. The activity sheet’s double hearsay
makes it inherently weak. This is not the kind of evidence
considered material in Banks.




                              19
     The Majority asserts that had the activity sheet been
disclosed, “defense counsel could have impeached Howard in
a manner that very well may have led her to admit she
recognized the perpetrators from her high school.” Maj. Op.
76. There is no basis in the record for this speculation, which
is undercut by Howard’s consistency in all her sworn
testimony at trial and during the postconviction relief hearing.
Such a dramatic courtroom reversal is more likely in a
Matlock or Perry Mason script than in reality. The unlikely
nature of this speculation does not create a reasonable
probability of a different result or “undermine confidence in
the outcome,” as required for Brady materiality.4 Kyles, 473
U.S. at 682.

     The Pennsylvania Supreme Court’s consideration of the
strength of the other evidence against Dennis was also not
unreasonable. The materiality of the activity sheet “must be
evaluated in the context of the entire record.” Agurs, 427 U.S.
at 112. And “evidence impeaching an eyewitness may not be
material if the State’s other evidence is strong enough to
sustain confidence in the verdict.” Smith v. Cain, 132 S. Ct.

4. The Majority adopts the district court’s conclusion that
   the activity sheet would have shown that Howard either
   lied to the Pughs or lied at trial. Maj. Op. 76. Given
   Howard’s testimony at trial and the postconviction relief
   hearings, an alternative conclusion is as least as likely: in
   a crowded and grieving house immediately after the
   murder, the Pughs misunderstood or later misreported
   what Howard said.




                              20
627, 630 (2012). The Pennsylvania Supreme Court could
reasonably have concluded, in the context of the entire record,
that any impeachment value of the activity sheet would not
undermine confidence in the verdict. Bertha and Cameron
also identified Dennis in a photo array, in a line up, and at
trial. Impeachment of Howard would not have affected the
weight of their testimony.

     The Majority emphasizes the importance of Howard as
“the eyewitness with the most significant exposure to the
shooter” and minimizes Bertha and Cameron as “located
farther away” with “only brief glimpses of the perpetrators”
or “paying little attention.” Maj. Op. 76. But in this case,
“farther away” was only eight feet from the shooter for
Bertha and ten feet from the shooter for Cameron, and each
had an unobstructed view of the shooter’s face. To the extent
Bertha and Cameron had not been paying attention to the
commotion, the gunshot focused their view and spurred them
into action. Bertha stepped into the street as the shooter ran
past, stopped as the shooter raised his gun, and then followed
behind him. Cameron and the shooter made eye contact.
When the shooter fled, Cameron ran to aid Williams. The
eyewitness testimony of Bertha and Cameron was powerful
evidence of guilt.

     The Majority criticizes the Pennsylvania Supreme Court
for applying a “sufficiency of the evidence” standard in lieu
of the appropriate Brady materiality standard. Nowhere,
however, did the Pennsylvania Supreme Court articulate the
wrong standard. The Pennsylvania Supreme Court recognized
that Brady materiality is not a question of sufficiency of




                              21
evidence in Commonwealth v. Weiss, 986 A.2d 808 (Pa.
2009), and it cited Weiss in Dennis IV.5

     The Majority nevertheless concludes that, even if the
Pennsylvania Supreme Court knew the correct standard, it
unreasonably applied that standard to the facts of this case.
The Majority focuses on the Pennsylvania Supreme Court’s
statement that “disclosure of the activity sheet would have
had no impact upon [Bertha’s and Cameron’s eyewitness]
testimony.” Dennis IV, 17 A.3d at 309. According to the
Majority, this is evidence that the Pennsylvania Supreme
Court was proceeding down a wrong “analytical path.” Maj.
Op. 81. But there is nothing inherently wrong with this
analytical path. The United States Supreme Court has, at
times, made similar statements.

    For instance, in Strickler v. Greene, the prosecution
withheld exculpatory materials that would have been


5. See Weiss, 986 A.2d at 816 (remanding to the
   postconviction relief court to “consider whether
   disclosure of the impeachment evidence to competent
   counsel would have made a different result reasonably
   probable,” which “will necessarily entail a review of all
   the evidence presented at trial, not for its sufficiency, but
   for the potential negative effect disclosure of the alleged
   impeachment evidence would have had thereon”); id. at
   815 (“The United States Supreme Court has made clear
   that Bagley’s materiality standard is not a sufficiency of
   the evidence test.”).




                              22
“devastating ammunition for impeaching” the prosecution’s
key witness, Anne Stoltzfus. 527 U.S. 263, 296 (1999)
(Souter, J., dissenting). At the petitioner’s capital murder trial,
Stoltzfus testified “in vivid detail” about the abduction of the
murder victim. Id. at 266 (majority opinion). Stoltzfus was the
only disinterested eyewitness who testified. The exculpatory
materials were police notes of interviews with Stoltzfus and
letters Stoltzfus wrote to the police that cast serious doubt on
her testimony. The Court found all the elements of Brady met
except for materiality. Although the Court recognized the
importance of Stoltzfus’s eyewitness testimony, that was not
the only evidence before the jury. Other eyewitnesses placed
the petitioner at the shopping mall where the abduction
occurred, and “considerable forensic and other physical
evidence” linked the petitioner to the crime. Id. at 293. The
Court concluded that “[t]he record provides strong support for
the conclusion that petitioner would have been convicted of
capital murder and sentenced to death, even if Stoltzfus had
been severely impeached.” Id. at 294. Thus, the petitioner did
not convince the Court that there was “a reasonable
probability that the jury would have returned a different
verdict if her testimony had been either severely impeached
or excluded entirely.” Id. at 296. The Pennsylvania Supreme
Court’s reasoning in this case is not appreciably different
from the reasoning in Strickler.

     The Majority’s remaining reason for concluding that the
Pennsylvania Supreme Court unreasonably applied the facts
is that the Majority considered the same facts and reached a
different conclusion. This is not a proper basis for granting
habeas relief. There is a reasonable possibility that impeach-




                                23
ment of Howard might have produced a different result, but
the Pennsylvania Supreme Court did not unreasonably apply
the facts or law in concluding that Dennis did not establish a
reasonable probability of a different result. See id. at 291. I
would not grant habeas relief on this claim.

                               C
     Dennis’s final Brady claim concerns documents about
the police investigation of a lead from William Frazier.
Frazier, an inmate at the Montgomery County Correctional
Facility, contacted police and informed them that he knew
who shot Chedell Williams. He told a story about a three-way
call he received in jail with his aunt and a friend named Tony
Brown. During the call, Tony Brown admitted that he
accidentally shot Williams while robbing her. Tony Brown
told Frazier that he was accompanied by his friend Ricky
Walker, who was Frazier’s cousin, and another man, “Skeet,”
who drove the car.

     Despite Frazier’s being a jailhouse informant who
obviously wanted to parlay information for something in
return (even if only a day out of jail), the police investigated
his tip. They took Frazier on a ride-along to Tony Brown’s
house, Ricky Walker’s house, the pawnshop where Tony
Brown allegedly sold Williams’s earrings, Skeet’s house, and
Frazier’s girlfriend’s house. Police interviewed Frazier’s
landlord and Walker. Walker told police that he never heard of
anyone named Tony Brown or “Skeet.” He explained that he
“can’t stand” Frazier, who racked up $1,000 in charges on a
phone calling card Walker had lent to him. Despite this
investigation, police found no trace of a Tony Brown. This is




                              24
not surprising. Frazier later admitted that he concocted the
entire story.6

     The Pennsylvania Supreme Court rejected Dennis’s
Brady claim about the Frazier lead documents because the
documents were inadmissible hearsay. Commonwealth v.
Dennis, 950 A.2d 945, 968 (Pa. 2008) (“Dennis III ”). This
conclusion is not an unreasonable application of clearly
established Supreme Court precedent.

       Authority is split about whether inadmissible evidence
can be the basis for a Brady violation. Our court, along with
the First, Second, Sixth, and Eleventh Circuit Courts of
Appeals, has concluded that admissibility is not a prerequisite
for a Brady claim. See, e.g., Johnson v. Folino, 705 F.3d 117,
130 (3d Cir. 2013) (“[I]nadmissible evidence may be material
if it could have led to the discovery of admissible evidence.”).


6. The Majority asserts that the Frazier “lead was not
   fruitless, it was simply not rigorously pursued.” Maj. Op.
   88. The police did pursue this lead, however, going so far
   as to take Frazier out of his jail cell and bring him with
   them on his tour of Philadelphia. The Majority questions
   why police did not interview more of the people involved
   in Frazier’s tale. Police can always do more investigative
   work, but they have limited resources. And simply put,
   this lead coming from a jailhouse snitch was a dead end.
   The police should not be faulted for deciding not to waste
   more time on what Frazier himself admitted was
   “bullshit.” Response to Pet. Rh’g 17 n.13.




                              25
The Fourth and Seventh Circuits have concluded otherwise.
Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011)
(“Logically, inadmissible evidence is immaterial under this
rule.”); Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir.
1996) (“[T]hese statements may well have been inadmissible
at trial … and therefore, as a matter of law, ‘immaterial’ for
Brady purposes.”).

      The Majority recognizes the contrary decisions of the
Fourth and Seventh Circuits and “respectfully conclude[s]
that they have erred.” Maj. Op. 97 n.26. But in order to grant
habeas relief, the Majority must conclude that these courts did
more than err—the decisions must be so clearly wrong that
they are objectively unreasonable. Does the Majority really
believe that our fair-minded colleagues on the Fourth and
Seventh Circuits are that wrong? As the Supreme Court has
noted, the courts of appeals’ “diverging approaches to [a]
question illustrate the possibility of fairminded disagree-
ment.” White v. Woodall, 134 S. Ct. 1697, 1703 n.3 (2014).
Circuit precedent cannot create or refine clearly established
Supreme Court law, and lower federal courts “may not
canvass circuit decisions to determine whether a particular
rule of law is so widely accepted among the Federal Circuits
that it would, if presented to [the Supreme] Court, be
accepted as correct.” Marshall v. Rodgers, 133 S. Ct. 1446,
1451 (2013) (per curiam). Although “[m]ost federal courts
have concluded that suppressed evidence may be material for
Brady purposes even where it is not admissible,” Maj. Op. 95,
that does not transform such a rule into clearly established
Supreme Court precedent.




                              26
      The Majority does not cite any direct holding of the
Supreme Court establishing a rule that admissibility is
irrelevant under Brady. The Majority instead relies on “the
Supreme Court’s repeated consideration of impeachment
material in Brady cases.” Maj. Op. 92. The Supreme Court’s
consideration of impeachment material does not compel the
broad conclusion that admissibility is irrelevant.

     Because reasonable judges could—and indeed do—
disagree about whether Brady material must be admissible,
the Pennsylvania Supreme Court did not unreasonably apply
clearly established Supreme Court precedent when it found
that the inadmissibility of the Frazier lead documents
prevented Dennis’s Brady claim.7

                             IV
     The Majority asserts that the Cason receipt, Pugh
statement, and Frazier documents “effectively gutted the
Commonwealth’s case against Dennis” and that the failure to
turn over these documents denied Dennis a fair trial. Maj. Op.
4. Not true. Dennis’s inability to obtain the Cason receipt
before trial was, as Dennis himself argued, due to his trial
counsel’s failure to conduct even a minimal investigation. The

7. Because the Pennsylvania Supreme Court could
   reasonably have determined that the Cason receipt was
   not suppressed and reasonably determined that the Frazier
   documents were not subject to Brady, materiality was an
   issue with only the Pugh statement. Accordingly, there is
   no need to conduct a cumulative materiality analysis.




                             27
double hearsay Pugh statement was credibly refuted by
Howard. Even if Howard were impeached, based on the
eyewitness testimony of Bertha and Cameron, there was not a
reasonable probability of a jury’s returning a different verdict.
Frazier’s story was fabricated. It was not an unreasonable
application of clearly established federal law to consider the
inadmissibility of the Frazier documents. In granting habeas
relief for each of these Brady claims, the Majority failed to
correctly apply the deferential AEDPA standard. I respectfully
dissent.




                               28
HARDIMAN, Circuit Judge, dissenting, joined by SMITH
and FISHER, Circuit Judges.

       At the outset of its analysis of James Dennis’s Brady
claims, the Majority notes that the Antiterrorism and
Effective Death Penalty Act (AEDPA) “dictates” our review.
Majority Op. 30. The opinion describes with precision
AEDPA’s strictures. Federal courts are prohibited from
granting habeas corpus relief unless the state-court
adjudication (1) “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States,” or (2) “resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” Id.
(quoting 28 U.S.C. § 2254(d)). These fetters on our review,
the Majority notes, come close to “imposing a complete bar
on federal-court relitigation of claims already rejected in
state-court proceedings.” Id. at 32 (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)).

      It is one thing to recite these demanding limits; it is
quite another to abide by them.1 And as Judge Fisher’s

      1
        The inability of federal courts to follow AEDPA has
reached epidemic proportions. As I pointed out in 2012, since
2000
      the Supreme Court has granted certiorari in
      ninety-four cases arising under AEDPA, forty-
      six of which involved questions of federal court
      deference to decisions of state courts. Thirty-
      four of those cases (approximately seventy-four
      percent) have been reversed because the court




                              1
       of appeals failed to afford sufficient deference
       to the state court. Remarkably, twenty-two of
       those cases—almost fifty percent—were
       reversed without dissent.
Garrus v. Sec’y of Pennsylvania Dep’t of Corr., 694 F.3d
394, 412–14 (3d Cir. 2012) (en banc) (Hardiman, J.,
dissenting) (collecting cases).
       In the four short years since we decided Garrus, the
errors have continued apace. By my count, of the nineteen
cases arising under AEDPA in which the Supreme Court has
granted certiorari, fourteen involved questions of federal
court deference to state-court decisions. Thirteen of those
cases were reversed—ten without dissent. See Kernan v.
Hinojosa, 136 S. Ct. 1603, 1606 (2016) (per curiam)
(reversing the Ninth Circuit’s treatment of a summary
decision as a non-merits adjudication and noting that “the
Ninth Circuit has already held that state-court denials of
claims identical to [the petitioner’s] are not contrary to clearly
established federal law”); Woods v. Etherton, 136 S. Ct. 1149,
1153 (2016) (unanimously reversing the Sixth Circuit because
“a fairminded jurist—applying the deference due the state
court under AEDPA—could certainly conclude that the court
was not objectively unreasonable in deciding that appellate
counsel was not incompetent under Strickland, when she
determined that trial counsel was not incompetent under
Strickland”); White v. Wheeler, 136 S. Ct. 456, 461–62
(2015) (unanimously reversing the Sixth Circuit’s grant of
habeas relief because it “did not properly apply the deference
it was required to accord the state-court ruling”); Davis v.
Ayala, 135 S. Ct. 2187, 2208 (2015) (reversing the Ninth
Circuit’s grant of the writ on the ground that fairminded




                                2
jurists could disagree as to whether a state court’s exclusion
of a defendant’s attorney from part of a Batson hearing was
harmless error); Woods v. Donald, 135 S. Ct. 1372, 1377
(2015) (unanimously reversing the Sixth Circuit’s grant of
habeas relief because the state court’s conclusion that the
petitioner’s counsel was not per se ineffective “was not
contrary to any clearly established holding” of the Court);
Glebe v. Frost, 135 S. Ct. 429, 430 (2014) (unanimously
reversing the Ninth Circuit’s conclusion that the state court
“unreasonably applied clearly established federal law by
failing to classify the trial court’s restriction of closing
argument as structural error” because no Supreme Court
precedent clearly established that such mistakes rank as
structural error); Lopez v. Smith, 135 S. Ct. 1, 5 (2014)
(unanimously reversing the Ninth Circuit where it “had no
basis to reject the state court’s assessment that [the petitioner]
was adequately apprised of the possibility of conviction on an
aiding-and-abetting theory”); White v. Woodall, 134 S. Ct.
1697, 1702–04 (2014) (reversing the Sixth Circuit’s grant of
habeas relief because the state court’s determination that the
trial court’s jury instructions did not violate clearly
established federal law was not “objectively unreasonable”);
Burt v. Titlow, 134 S. Ct. 10, 17–18 (2013) (reversing without
dissent the Sixth Circuit’s judgment that the state court’s
conclusion that counsel’s performance was ineffective was
unreasonable); Nevada v. Jackson, 133 S. Ct. 1990, 1994
(2013) (per curiam) (unanimously reversing the Ninth
Circuit’s grant of habeas relief where the state court
reasonably applied federal law in determining that the
petitioner had not been denied the right to present a complete
defense when he was not allowed to present certain extrinsic
evidence); Metrish v. Lancaster, 133 S. Ct. 1781, 1792 (2013)




                                3
dissenting opinion cogently explains, they quickly fall by the
wayside once the Majority turns to actually reviewing
Dennis’s claims. I join Judge Fisher’s opinion in full, but
write separately to note that I would reverse the District
Court’s judgment even if there were no “analytical gap[s]” in
the Pennsylvania Supreme Court’s decision rejecting
Dennis’s Brady claims. Fisher Dissent 9–10. Consistent with
the text of AEDPA and the precedents of the United States
Supreme Court, I would hold that regardless of the
thoroughness—or even the correctness—of the Pennsylvania
Supreme Court’s stated reasoning, its judgment may not be
upset so long as its decision did not contravene or
unreasonably apply clearly established federal law and did
not rest on an unreasonable determination of the facts.
Whatever its flaws, the state court’s decision passes this test.

                               I

(unanimously reversing the Sixth Circuit’s grant of the writ
where Supreme Court had “never found a due process
violation in circumstances remotely resembling [the
petitioner’s] case”); Johnson v. Williams, 133 S. Ct. 1088,
1097 (2013) (reversing without dissent the Ninth Circuit’s
grant of relief based on the faulty conclusion that the state
court had overlooked a meritorious Sixth Amendment claim);
Ryan v. Gonzales, 133 S. Ct. 696, 700 (2013) (killing two
birds with one stone in unanimously reversing both the Sixth
Circuit’s and Ninth Circuit’s grants of relief where the courts
wrongly concluded that federal law provides a right to
incompetent prisoners to suspend their federal habeas
proceedings); but see Brumfield v. Cain, 135 S. Ct. 2269,
2281 (2015) (finding the state court’s determination of the
facts regarding a defendant with an IQ of 75 unreasonable).




                               4
       It is a virtue of our judicial system that courts explain
their decisions in writing. When an explanation is not good
enough—whether due to a legal, logical, factual, or other
defect—the decision it supports is often reversed. AEDPA
displaces this traditional approach to error review by
imposing strict constraints on the writ of habeas corpus
designed to stay the hand of federal courts over all but the
most glaring of state-court errors. We may issue the writ only
“where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with” the
precedents of the Supreme Court. Harrington v. Richter, 562
U.S. 86, 102 (2011). For a prisoner in state custody to obtain
habeas relief from a federal court, he must demonstrate that
the state court’s decision on the claim presented before the
federal court “was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at
103. “If this standard is difficult to meet,” the Supreme Court
has explained, “that is because it was meant to be.” Id. at 102.

                               A

       By its terms, AEDPA applies to federal review of
state-court decisions—not to the specific explanations that
support them. See 28 U.S.C. § 2254(d). This distinction might
seem technical, but the Supreme Court’s decision in
Harrington v. Richter rendered it critical. There, the Court
was faced with the question of AEDPA’s application to a
state-court decision that dismissed in a one-sentence summary
order a habeas petitioner’s ineffective assistance of counsel
claim. 562 U.S. at 96–97. The Court was presented with two
issues: whether the state-court decision constituted an
“adjudicat[ion] on the merits” under AEDPA, and if so, how
the Court should go about determining whether the decision




                               5
was unreasonable under AEDPA given that the opinion
provided no reasoning. Id. at 97–102.

       The Court’s answer to the first question rested on a
straightforward application of AEDPA. Since the text of
AEDPA “refers only to a ‘decision’” resulting from an
“adjudication”—making no mention of the need for a
“statement of reasons”—the Court held that summary
decisions unaccompanied by an explanation usually qualify as
merits adjudications under AEDPA. Id. at 98. Hence, even
where the state-court decision under federal review is devoid
of reasoning, AEDPA’s deference requirements apply. It
followed that “the habeas petitioner’s burden still must be met
by showing there was no reasonable basis for the state court
to deny relief.” Id. (emphasis added). This rule obtains
regardless of “whether or not the state court reveals which of
the elements in a multipart claim it found insufficient, for §
2254(d) applies when a ‘claim,’ not a component of one, has
been adjudicated.” Id.

       The Court’s answer to the second question in
Richter—how to assess the reasonableness of a summary
state-court decision under AEDPA—is particularly instructive
here. The Court held that AEDPA requires federal courts to
consider what explanations would nevertheless support the
decision under federal law. As the Court explained, “a habeas
court must determine what arguments or theories supported
or, as here, could have supported, the state court’s decision;
and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of this
Court.” Id. at 102 (emphasis added). At a minimum, then,
when a state-court decision is unaccompanied by an




                              6
explanation, Richter requires us to ascertain whether it was
reasonable.

       Circuit courts of appeals have divided over whether
Richter extends beyond the precise circumstances of that
case.2 Those courts that have chosen to cabin Richter can
readily point to a limiting principle: single-sentence decisions
versus multiple-sentence decisions. That distinction strikes
me as unprincipled, however, because neither Richter’s logic
nor AEDPA’s text limits the reason-supplying rule to cases in
which the state-court “decision” is expressed in just one
sentence. A decision is a decision, after all, and AEDPA does
not distinguish among one-sentence decisions, one-paragraph
decisions, or ten-page decisions; all of them are subject to the
same deferential standard. Although the first portion of
Richter focused on the fact that the state-court decision
provided no explanation for the outcome, the reasonableness
standard articulated in the rest of the opinion is tied to
AEDPA’s general standard itself. “Where a state court’s
decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id.
(emphasis added). In other words, regardless of how
extensive or sparse the reasoning of a state-court opinion, the
same AEDPA reasonableness test applies to all decisions on
the merits.

       2
           See Noam Biale, Beyond A Reasonable
Disagreement: Judging Habeas Corpus, 83 U. Cin. L. Rev.
1337, 1391 (2015) (“Since Richter . . . the circuits have split
on whether the opinion’s ‘could have supported’ language for
decisions unaccompanied by a reasoned opinion applies to
decisions that do include a reasoned opinion.”).




                               7
       This approach to AEDPA’s reasonableness standard
finds support in Premo v. Moore. There, the petitioner
claimed his counsel was ineffective for failing to move for
suppression of the petitioner’s confession before advising him
regarding a guilty plea. 562 U.S. 115, 119 (2011). The state
court concluded that the petitioner had not established
ineffective assistance of counsel under Strickland v.
Washington, reasoning that a “motion to suppress would have
been fruitless in light of the other admissible confession by
[the petitioner], to which two witnesses could testify.” Id. at
119 (internal quotation marks omitted). Even though the state
court “did not specify whether this was because there was no
deficient performance under Strickland or because [the
petitioner] suffered no Strickland prejudice, or both,” the
Supreme Court stated that for a federal habeas court to
properly eschew AEDPA deference, it “had to conclude that
both findings would have involved an unreasonable
application of clearly established federal law.” Id. at 131
(emphasis added).

       Although the state court’s reasoning was quite bare
and did not explicitly engage the Strickland prongs, the Court
held that its decision was entitled to AEDPA deference
because reasons existed that would have supported the
decision. Specifically, it highlighted that counsel had
explained in state court that his decision to discuss plea
bargaining before challenging the petitioner’s confession was
based on his rationale that “suppression would serve little
purpose in light of [the petitioner’s] other full and admissible
confession.” Id. at 123–24. “The state court,” the Supreme
Court explained, “would not have been unreasonable to
accept this explanation.” Id. at 124 (emphasis added). Indeed,
the Court found it unnecessary to consider a second




                               8
justification that counsel had offered in the underlying
proceedings because the first “confirms that his representation
was adequate under Strickland, or at least that it would have
been reasonable for the state court to reach that conclusion.”
Id. (emphasis added). In short, presented with a state-court
decision that was not a summary disposition but that provided
only some vague reasoning for its decision, the Premo Court
looked to the record to posit a rationale that would have
supported that decision, finding it not to be an unreasonable
application of federal law.3 We should approach Dennis’s
case the same way.4


       3
         The Majority and Judge Jordan conclude that the
Supreme Court’s decision in Lafler v. Cooper “implies a
limit” to the reason-supplying rule announced in Richter.
Jordan Concurrence 13. I do not read Lafler that way.
Significantly, habeas relief in that case rested on the Supreme
Court’s holding that Michigan Court of Appeals’ application
of Strickland was “contrary to”—not an “unreasonable
application of”—clearly established federal law. 132 S. Ct.
1376, 1390 (2012). Specifically, rather than applying the
Strickland ineffective-assistance-of-counsel standard, the
state court applied a (completely wrong) “knowing and
voluntary” plea rejection rule. Id. Because a decision is
categorically “contrary to” clearly established federal law if
the state court “applies a rule that contradicts the governing
law,” Williams v. Taylor, 529 U.S. 362, 405 (2000), AEDPA
deference was inappropriate, so de novo review applied.
Lafler, 132 S. Ct. at 1390. Consequently, the case was not
amenable to Richter’s “could have supported” analysis to
determine whether the state court decision was an
unreasonable application of federal law. For these reasons, I




                              9
disagree with the Majority and Judge Jordan that Lafler
instructs federal courts to “take the state court’s decision as
written” and apply Richter only in the small subset of cases in
which the state court left so-called “gaps” to be filled. Jordan
Concurrence 13.
        Nor do I read Wetzel v. Lambert to imply any limit on
Richter. Although the opinion in that case did not include
Richter’s “theories [that] . . . could have supported” language
in its recitation of AEDPA’s general standard, see 132 S. Ct.
1195, 1198 (2012), the Court did not reject that approach by
implication. Rather, in Wetzel the reasons for upholding the
state court’s decision under AEDPA were expressed by the
state court. The petitioner claimed the prosecution violated
Brady by suppressing a police activity sheet consisting of a
photo display marked with written notations suggesting that
“someone other than or in addition to” the petitioner had
committed the crime. Id. at 1196–97. We granted habeas
relief, but the Supreme Court vacated and remanded,
explaining that we had “overlooked the determination of the
state courts that the notations were . . . ‘not exculpatory or
impeaching’ but instead ‘entirely ambiguous.’” Id. at 1198.
The Court criticized us for “focus[ing] solely on the [state
court’s] alternative ground that any impeachment value that
might have been obtained from the notations would have been
cumulative.” Id. The problem was that “[i]f the conclusion in
the state courts about the content of the document was
reasonable—not necessarily correct, but reasonable—
whatever those courts had to say about cumulative
impeachment evidence would be beside the point.” Id. Hence,
by failing to recognize—as the state courts did—the
“‘ambiguous’ nature of the notations” and the “‘speculat[ive]’
nature of [the petitioner’s] reading of them,” we ran afoul of




                              10
                                B



AEDPA. Id. Far from implying a limitation on Richter,
Wetzel merely requires federal habeas courts to review state
court opinions in search of a reasonable reading that would
support the decision under federal law.
       4
         Some courts have begun to recognize Richter’s true
reach. See, e.g, Holland v. Rivard, 800 F.3d 224, 235 (6th Cir.
2015) (concluding that although “a state court decision
unaccompanied by any explanation differs from a state court
decision based on erroneous reasoning . . . Richter suggests
that this is not a meaningful distinction” and that AEDPA
requires a habeas petitioner to show that there was “no
reasonable basis for the state court to deny relief . . . whether
or not the state court reveals [its reasoning]”); Trottie v.
Stephens, 720 F.3d 231, 240–41 (5th Cir. 2013) (“We review
only the ultimate legal determination by the state court—not
every link in its reasoning.”); Brady v. Pfister, 711 F.3d 818,
827 (7th Cir. 2013) (Wood, J.) (“[I]t is clear that a bad reason
does not necessarily mean that the ultimate result was an
unreasonable application of established doctrine. . . . If a state
court’s rationale does not pass muster . . . for Section
2254(d)(1) cases, the only consequence is that further inquiry
is necessary.”); Mann v. Ryan, 774 F.3d 1203, 1224–25 (9th
Cir. 2014) (Kozinski, J., concurring and dissenting) (“I have
misgivings about whether, in light of the Supreme Court’s
decision in Richter, we are still entitled to reverse a state
court’s reasonable decision based on what we consider to be
its incorrect reasoning. . . . After Richter, it seems clear that
we should assess the reasonableness of a state court’s
decision, not its reasoning.”).




                               11
        My understanding of Richter is supported by notions
of consistency and coherence as well. If we were to limit
Richter to cases involving one-sentence decisions, the
outcome of federal review would turn on the state court’s
opinion-writing technique. Consider a federal court faced
with a state-court decision that rejected a petitioner’s claim
that his conviction was invalid because it stemmed from an
illegal arrest. Assume the record was unclear with respect to
whether the arresting officer had probable cause, but that
fairminded jurists could disagree as to whether a Supreme
Court precedent demanded the conclusion that there was no
probable cause. If the state court rejected the petitioner’s
claim via summary disposition, Richter requires the
reviewing federal court to infer the supportive rationale.
Because the record would arguably support probable cause
for the arrest, the conviction would be affirmed. But what if
the very same claim had been rejected in a partially reasoned
state-court opinion with problematic gaps in the logic from
which adverse inferences could be drawn or in an opinion that
gave incorrect reasons to justify the decision (say, by stating
that the arrest was valid because there was “reasonable
suspicion”)? Absurdly, appellate courts that circumscribe
Richter in the way the Majority has here would require the
reviewing federal court to ignore the supportive rationale on
de novo review (where a weak case for probable cause
wouldn’t be enough) and grant relief.

       The asymmetry illustrated by my hypothetical makes a
mess of the scheme established by AEDPA. How could a
state-court decision be “reasonable” under AEDPA where the
state court gives no reasons to explain itself but where we can
think of one, yet be “unreasonable” under AEDPA where—
although the very same good reason to support the decision




                              12
exists—the decision is supported by undeveloped or incorrect
reasons?5 See Mann, 774 F.3d at 1224–25 (Kozinski, J.,
concurring and dissenting) (“A habeas petitioner is not
entitled to any reasoning at all, so reversing a state court’s
reasonable decision on the grounds of incorrect reasoning
risks treating defendants inconsistently: Those who are given
incorrect reasoning get relief while those who aren’t given
any reasoning do not.”). To make AEDPA reasonableness
turn on a state court’s drafting decision is inconsistent with
AEDPA’s directive that federal courts review the
reasonableness of decisions, not opinions. And because it
makes AEDPA deference inversely proportional to the
amount of information the state court provides, it creates a
perverse incentive for state courts to earn the deference of
federal courts by saying less.6




      5
         Such arbitrariness is all the more perplexing in light
of the fact that AEDPA “does not require citation of
[Supreme Court] cases—indeed, it does not even require
awareness of [Supreme Court] cases.” Early v. Packer, 537
U.S. 3, 8 (2002).
      6
         See Hodges v. Colson, 727 F.3d 517, 537 n.5 (6th
Cir. 2013) (“[If Richter is limited to summary dispositions],
the more information the state court provides, the less
deference we grant it. This is contrary not only to the
language of the statute, which speaks of ‘claims’ not
components of claims, but also contrary to the spirit of §
2254(d), which is designed to give more deference to a state
court judgment on the merits.”).




                              13
                               II

        To sum up, I would hold that when gaps or errors
afflict a state court’s habeas adjudication, federal courts may
not reverse unless the decision itself is unreasonable. In
Dennis’s case, this principle is most pertinent to the Cason
receipt. As Judge Fisher explains, the reasons proffered by the
Pennsylvania Supreme Court for rejecting Dennis’s Brady
claims regarding the Howard police activity report and the
Frazier documents are themselves sufficient to pass AEDPA
review without any inference from us. The Pennsylvania
Supreme Court’s analysis of the Cason receipt, on the other
hand, is incomplete and might ungenerously be read as
incorrect. For the reasons explained by Judge Fisher,
however, a rationale consistent with Supreme Court precedent
supports the decision, and so it must stand. I would simply
add that AEDPA would require us to supply this rationale
even if the state court’s treatment of the Cason receipt were in
fact wrong. After all, “[a] state court could write that it
rejected a defendant’s claim because Tarot cards dictated that
result, but its decision might nonetheless be a sound one.”
Brady, 711 F.3d at 827 (Wood, J.).

       In my view, AEDPA requires federal courts to take the
following approach to habeas review. Where the state court
denies relief summarily, Richter requires federal courts to
consider what arguments or theories could have supported the
state court’s decision such that fairminded jurists could
disagree whether those arguments or theories are inconsistent
with the holding in a prior decision of the Supreme Court.
Where the state court denies relief but addresses only certain
prongs of a test or components of a claim, the reviewing
federal court should likewise consider what reasons regarding
an unaddressed prong or component could have supported the




                              14
decision. And where, as here, the state court denies relief
through vague, ambiguous, incomplete, or even incorrect
reasoning, AEDPA still requires the reviewing federal court
to consider what theories could have supported the decision
under AEDPA.7


       7
         I disagree with Judge Jordan that my understanding
of Richter conflicts with Ylst v. Nunnemaker and Wiggins v.
Smith. Both of those cases involved the threshold question of
whether the petitioners’ claim had been decided on the merits.
The Ylst Court was faced with an “unexplained” State
supreme court order denying the petitioner’s habeas petition,
wherein it was unclear whether the court rested its denial on a
procedural default (the basis of the lower court’s holding) or
on the merits of his Miranda claim. 501 U.S. 797, 801 (1991).
The Supreme Court reversed the Ninth Circuit’s conclusion
that the decision was on the merits, explaining that, “where,
as here, the last reasoned opinion on the claim explicitly
imposes a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard that bar
and consider the merits.” Id. at 803. To the extent that Ylst
requires us to “look through” unreasoned state court opinions
to the last reasoned opinion, I have no quarrel with Judge
Jordan that we ought to first consider whether the state
court’s stated explanation is reasonable before deigning to
supply reasons of our own under Richter. As for Wiggins, we
have explained that the reason the Court declined to apply
deference with respect to the prejudice prong of the
petitioner’s Strickland claim was that the state courts had not
decided the Strickland prejudice issue “on the merits.”
Palmer v. Hendricks, 592 F.3d 386, 400 (3d Cir. 2010); see
also Wiggins, 539 U.S. 510, 534 (2003) (“[O]ur review is not




                              15
        By ignoring these principles, the Majority empowers
itself to reweigh evidence that is decades old. Like the
District Court, the Majority takes a fresh look at the evidence
and concludes, contrary to the consistent testimony of three
eyewitnesses, that the alleged Brady violations “effectively
gutted the Commonwealth’s case against Dennis.” Majority
Op. 4 (emphasis added). AEDPA proscribes such searching
review. Because fairminded jurists could disagree as to
whether the Pennsylvania Supreme Court’s decision was
inconsistent with federal law, we owe it our deference. I
respectfully dissent from the Majority’s decision to do
otherwise.

circumscribed by a state court conclusion with respect to
prejudice, as neither of the state courts below reached this
prong of the Strickland analysis.”). Because AEDPA
deference only extends to “any claim that was adjudicated on
the merits in State court proceedings,” 28 U.S.C.A. § 2254(d),
the determination whether the state-court decision under
federal review was made on the merits is prior to the
consideration, vel non, of whether adequate reasons exist in
support of that decision. I do nevertheless agree with Judge
Jordan that Wiggins is in some tension with my approach
because it engaged in de novo review of the second prong of
Strickland even though the state court denied relief but
addressed only the first prong. However, Richter—decided
after Wiggins—speaks clearly on this point. “[A] habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief . . . . whether
or not the state court reveals which of the elements in a
multipart claim it found insufficient, for § 2254(d) applies
when a ‘claim,’ not a component of one, has been
adjudicated.” Richter, 562 U.S. at 98.




                                16
