Wearry v. Cain , 136 S. Ct. 1002 ( 2016 )

Cite as: 577 U. S. ____ (2016) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MICHAEL WEARRY v. BURL CAIN, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT
COURT OF LOUISIANA, LIVINGSTON PARISH
No. 14–10008. Decided March 7, 2016
PER CURIAM.
Michael Wearry is on Louisiana’s death row. Urging
that the prosecution failed to disclose evidence supporting
his innocence and that his counsel provided ineffective
assistance at trial, Wearry unsuccessfully sought postcon-
viction relief in state court. Contrary to the state postcon-
viction court, we conclude that the prosecution’s failure to
disclose material evidence violated Wearry’s due process
rights. We reverse the state postconviction court’s judg-
ment on that account, and therefore do not reach Wearry’s
ineffective-assistance-of-counsel claim.
I
A
Sometime between 8:20 and 9:30 on the evening of April
4, 1998, Eric Walber was brutally murdered. Nearly two
years after the murder, Sam Scott, at the time incarcer-
ated, contacted authorities and implicated Michael Wearry.
Scott initially reported that he had been friends with
the victim; that he was at work the night of the murder;
that the victim had come looking for him but had instead
run into Wearry and four others; and that Wearry and the
others had later confessed to shooting and driving over the
victim before leaving his body on Blahut Road. In fact, the
victim had not been shot, and his body had been found on
Crisp Road.
Scott changed his account of the crime over the course of
four later statements, each of which differed from the
others in material ways. By the time Scott testified as the
2 WEARRY v. CAIN
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State’s star witness at Wearry’s trial, his story bore little
resemblance to his original account. According to the
version Scott told the jury, he had been playing dice with
Wearry and others when the victim drove past. Wearry,
who had been losing, decided to rob the victim. After
Wearry and an acquaintance, Randy Hutchinson, stopped
the victim’s car, Hutchinson shoved the victim into the
cargo area. Five men, including Scott, Hutchinson, and
Wearry, proceeded to drive around, at one point encoun-
tering Eric Brown—the State’s other main witness—and
pausing intermittently to assault the victim. Finally,
Scott related, Wearry and two others killed the victim by
running him over. On cross-examination, Scott admitted
that he had changed his account several times.
Consistent with Scott’s testimony, Brown testified that
on the night of the murder he had seen Wearry and others
with a man who looked like the victim. Incarcerated on
unrelated charges at the time of Wearry’s trial, Brown
acknowledged that he had made a prior inconsistent
statement to the police, but had recanted and agreed to
testify against Wearry, not for any prosecutorial favor, but
solely because his sister knew the victim’s sister. The
State commented during its opening argument that Brown
“is doing 15 years on a drug charge right now, [but] hasn’t
asked for a thing.” 7 Record 1723 (Tr., Mar. 2, 2002).
During closing argument, the State reiterated that Brown
“has no deal on the table” and was testifying because the
victim’s “family deserves to know.” Pet. for Cert. 19.
Although the State presented no physical evidence at
trial, it did offer additional circumstantial evidence link-
ing Wearry to the victim. One witness testified that he
saw Wearry in the victim’s car on the night of the murder
and, later, holding the victim’s class ring. Another wit-
ness said he saw Wearry throwing away the victim’s co-
logne. In some respects, however, these witnesses contra-
dicted Scott’s account. For example, the witness who
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reported seeing Wearry in the victim’s car did not place
Scott in the car.
Wearry’s defense at trial rested on an alibi. He claimed
that, at the time of the murder, he had been at a wedding
reception in Baton Rouge, 40 miles away. Wearry’s girl-
friend, her sister, and her aunt corroborated Wearry’s
account. In closing argument, the State stressed that all
three witnesses had personal relationships with Wearry.
The State also presented two rebuttal witnesses: the bride
at the wedding, who reported that the reception had ended
by 8:30 or 9:00 (potentially leaving sufficient time for
Wearry to have committed the crime); and three jail em-
ployees, who testified that they had overheard Wearry say
that he was a bystander when the crime occurred.
The jury convicted Wearry of capital murder and sen-
tenced him to death. His conviction and sentence were
affirmed on direct appeal. 1
B
After Wearry’s conviction became final, it emerged that
the prosecution had withheld relevant information that
could have advanced Wearry’s plea. Wearry argued dur-
ing state postconviction proceedings that three categories
of belatedly revealed information would have undermined
the prosecution and materially aided Wearry’s defense at
trial.
First, previously undisclosed police records showed that
two of Scott’s fellow inmates had made statements that
cast doubt on Scott’s credibility. One inmate had reported
——————
1 Wearry argued, inter alia, that the trial court improperly denied his
for-cause challenges, and that the prosecution discriminated on the
basis of race in jury selection in violation of Batson v. Kentucky, 476
U.S. 79 (1986). Finding both jury-selection claims credible, then-
Justice Johnson dissented from the affirmance of Wearry’s conviction.
State v. Weary, 2003–3067 (La. 4/2/06), 931 So. 2d 297, 328–337.
(Wearry’s name is misspelled in the direct-appeal case caption.)
4 WEARRY v. CAIN
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hearing Scott say that he wanted to “ ‘make sure [Wearry]
gets the needle cause he jacked over me.’ ” Id., at 22 (quot-
ing inmate affidavit). 2 The other inmate had told investi-
gators—at a meeting Scott orchestrated—that he had
witnessed the murder, but this inmate recanted the next
day. “Scott had told him what to say,” he explained, and
had suggested that lying about having witnessed the
murder “would help him get out of jail.” Pet. Exh. 13 in
No. 01–FELN–015992, pp. 104, 107. See also Pet. for
Cert. 22 (quoting police notes).
Second, the State had failed to disclose that, contrary to
the prosecution’s assertions at trial, Brown had twice
——————
2 Illustrative
of the liberties the dissent takes with the record is the
assertion that “Scott blamed [Wearry] for putting him in the position of
having to admit his own role in the events surrounding the murder.”
Post, at 2 (opinion of ALITO, J.). Introducing the inmate’s statement,
the dissent therefore suggests, might have “backfired by allowing the
prosecution to return the jury’s focus to a point the State emphasized
often during trial, namely, that Scott’s accusations were credible
precisely because Scott had no motive to tell a story that was contrary
to his own interests.” Id., at 2–3. True, according to the inmate, Scott
had complained that his identification of Wearry had resulted in a
lengthier prison term. The inmate, however, did not suggest that Scott
was angry with Wearry because he had suffered adverse consequences
as a result of Wearry’s crime. Instead, the inmate separately stated
that Scott “wouldn’t tell me who did it”—i.e., who killed Eric Walber—
“but he said I’m gonna make sure Mike gets the needle cause he jacked
over me.” Pet. Exh. 13 in No. 01–FELN–015992, p. 103. See also ibid.
(“If [Scott] would have told me who did this I would tell because I have
a heart and what they did wasn’t right”). Scott’s refusal to identify
Wearry as the culprit—while also endeavoring to “make sure Mike gets
the needle,” ibid.—suggests that Wearry did not commit the crime, but
Scott had decided to bring him down anyway. Nor, contrary to the
dissent, is there any reason to believe that Scott anticipated his partic-
ipation in this case would cost him additional years in prison. Notably,
in the first of his five accounts to police, Scott reported that he had not
been present at the time of the murder and had learned about it only
after the fact. Indeed, it is at least as plausible as the dissent’s hypoth-
esis that Scott believed implicating Wearry might win him early release
on his existing conviction.
Cite as: 577 U. S. ____ (2016) 5
Per Curiam
sought a deal to reduce his existing sentence in exchange
for testifying against Wearry. The police had told Brown
that they would “ ‘talk to the D. A. if he told the truth.’ ”
Pet. for Cert. 19 (quoting police notes).
Third, the prosecution had failed to turn over medical
records on Randy Hutchinson. According to Scott, on the
night of the murder, Hutchinson had run into the street to
flag down the victim, pulled the victim out of his car,
shoved him into the cargo space, and crawled into the
cargo space himself. But Hutchinson’s medical records
revealed that, nine days before the murder, Hutchinson
had undergone knee surgery to repair a ruptured patellar
tendon. Id., at 10–11, 15–16, 32. 3 An expert witness, Dr.
Paul Dworak, testified at the state collateral-review hear-
ing that Hutchinson’s surgically repaired knee could not
have withstood running, bending, or lifting substantial
weight. The State presented an expert witness who disa-
greed with Dr. Dworak’s appraisal of Hutchinson’s physi-
cal fitness.
During state postconviction proceedings, Wearry also
maintained that his trial attorney had failed to uncover
exonerating evidence. Wearry’s trial attorney admitted at
the state collateral-review hearing that he had conducted
no independent investigation into Wearry’s innocence and
had relied solely on evidence the State and Wearry had
provided. 4 For example, despite Wearry’s alibi, his attor-
——————
3 The dissent emphasizes a State’s witness’ testimony that
“Hutchinson had had surgery on his knee ‘about nine days before the
homicide happened.’ ” Post, at 4 (quoting 10 Record 2261 (Tr., Mar. 5,
2002)). But from this witness’ statement, neither Wearry nor the jury
had any way of knowing what the medical records would have revealed:
Hutchinson had undergone a patellar-tendon repair rather than a
routine minor procedure.
4 Wearry’s trial attorney did ask the public defender’s investigator to
look into the backgrounds of the State’s witnesses and to speak with
Wearry’s family members. But the attorney testified at the collateral-
review hearing that he did not know what persons the investigator
6 WEARRY v. CAIN
Per Curiam
ney undertook no effort to locate independent witnesses
from among the dozens of guests who had attended the
wedding reception.
Counsel representing Wearry on collateral review con-
ducted an independent investigation. This investigation
revealed many witnesses lacking any personal relation-
ship with Wearry who would have been willing to corrobo-
rate his alibi had they been called at trial. Collateral-
review counsel’s investigation also revealed that Scott’s
brother and sister-in-law would have been willing to tes-
tify at trial, as they did at the collateral-review hearing,
that Scott was with them, mostly at a strawberry festival,
until around 11:00 on the night of the murder.
Based on this new evidence, Wearry alleged violations of
his due process rights under Brady v. Maryland, 373 U.S.
83 (1963), and of his Sixth Amendment right to effective
assistance of counsel. Acknowledging that the State
“probably ought to have” disclosed the withheld evidence,
App. to Pet. for Cert. B–6, and that Wearry’s counsel
provided “perhaps not the best defense that could have
been rendered,” id., at B–5, the postconviction court de-
nied relief. Even if Wearry’s constitutional rights were
violated, the court concluded, he had not shown prejudice.
Id., at B–5, B–7. In turn, the Louisiana Supreme Court
also denied relief. Id., at A–1. Chief Justice Johnson
would have granted Wearry’s petition on the ground that
he received ineffective assistance of counsel. Id., at A–2. 5
——————
contacted and, in any event, he had serious doubts about the investiga-
tor’s qualifications and competence. Moreover, there is no indication
that the investigator ever engaged in inquiries regarding Scott’s back-
ground or his whereabouts on the night of the murder.
5 Justice Crichton would have granted Wearry’s petition and remanded
for the trial court to address his claim of intellectual disability under
Atkins v. Virginia, 536 U.S. 304 (2002). App. to Pet. for Cert. A–15.
Wearry does not raise his Atkins claim in his petition for a writ of
certiorari.
Cite as: 577 U. S. ____ (2016) 7
Per Curiam
II
Because we conclude that the Louisiana courts’ denial of
Wearry’s Brady claim runs up against settled constitu-
tional principles, and because a new trial is required as a
result, we need not and do not consider the merits of his
ineffective-assistance-of-counsel claim. “[T]he 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,
supra, at 87. See also Giglio v. United States, 405 U.S.
150, 153–154 (1972) (clarifying that the rule stated in
Brady applies to evidence undermining witness credibil-
ity). Evidence qualifies as material when there is “ ‘any
reasonable likelihood’ ” it could have “ ‘affected the judg-
ment of the jury.’ ” Giglio, supra, at 154 (quoting Napue v.
Illinois, 360 U.S. 264, 271 (1959)). To prevail on his
Brady claim, Wearry need not show that he “more likely
than not” would have been acquitted had the new evidence
been admitted. Smith v. Cain, 565 U.S. 73, ___–___
(2012) (slip op., at 2–3) (internal quotation marks and
brackets omitted). He must show only that the new evi-
dence is sufficient to “undermine confidence” in the ver-
dict. Ibid. 6
Beyond doubt, the newly revealed evidence suffices to
undermine confidence in Wearry’s conviction. The State’s
trial evidence resembles a house of cards, built on the jury
crediting Scott’s account rather than Wearry’s alibi. See
United States v. Agurs, 427 U.S. 97, 113 (1976) (“[I]f the
verdict is already of questionable validity, additional
evidence of relatively minor importance might be suffi-
cient to create a reasonable doubt.”). The dissent asserts
——————
6 Given this legal standard, Wearry can prevail even if, as the dissent
suggests, the undisclosed information may not have affected the jury’s
verdict.
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that, apart from the testimony of Scott and Brown, there
was independent evidence pointing to Wearry as the mur-
derer. See post, at 5 (opinion of ALITO, J.). But all of the
evidence the dissent cites suggests, at most, that someone
in Wearry’s group of friends may have committed the
crime, and that Wearry may have been involved in events
related to the murder after it occurred. Perhaps, on the
basis of this evidence, Louisiana might have charged
Wearry as an accessory after the fact. La. Rev. Stat. Ann.
§14:25 (West 2007) (providing a maximum prison term of
five years for accessories after the fact). But Louisiana
instead charged Wearry with capital murder, and the only
evidence directly tying him to that crime was Scott’s dubi-
ous testimony, corroborated by the similarly suspect tes-
timony of Brown. 7
As the dissent recognizes, “Scott did not have an exem-
plary record of veracity.” Post, at 3. Scott’s credibility,
already impugned by his many inconsistent stories, would
have been further diminished had the jury learned that
Hutchinson may have been physically incapable of per-
forming the role Scott ascribed to him, that Scott had
coached another inmate to lie about the murder and
thereby enhance his chances to get out of jail, or that Scott
may have implicated Wearry to settle a personal score. 8
——————
7 As for the three jailers who testified to overhearing Wearry call
himself an “innocent bystander,” post, at 4, so characterizing oneself is
the opposite of an admission of guilt.
8 Because the inmate who told police that Scott may have wanted to
settle a score did so close to the end of trial, the State argues, the
inmate’s “statement was probably . . . never seen by anyone involved
with the actual trial until . . . it was [all] over, i[f] at all.” Brief in
Opposition 18. But “Brady suppression occurs when the government
fails to turn over even evidence that is known only to police investiga-
tors and not to the prosecutor.” Youngblood v. West Virginia, 547 U.S.
867, 869–870 (2006) (per curiam) (internal quotation marks omitted).
See also Kyles v. Whitley, 514 U.S. 419, 438 (1995) (rejecting Louisi-
ana’s plea for a rule that would not hold the State responsible for
Cite as: 577 U. S. ____ (2016) 9
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Moreover, any juror who found Scott more credible in light
of Brown’s testimony might have thought differently had
she learned that Brown may have been motivated to come
forward not by his sister’s relationship with the victim’s
sister—as the prosecution had insisted in its closing ar-
gument—but by the possibility of a reduced sentence on
an existing conviction. See Napue, supra, at 270 (even
though the State had made no binding promises, a wit-
ness’ attempt to obtain a deal before testifying was mate-
rial because the jury “might well have concluded that [the
witness] had fabricated testimony in order to curry the
[prosecution’s] favor”). Even if the jury—armed with all of
this new evidence—could have voted to convict Wearry, we
have “no confidence that it would have done so.” Smith,
supra, at ___ (slip op., at 3).
Reaching the opposite conclusion, the state postconvic-
tion court improperly evaluated the materiality of each
piece of evidence in isolation rather than cumulatively, see
Kyles v. Whitley, 514 U.S. 419, 441 (1995) (requiring a
“cumulative evaluation” of the materiality of wrongfully
withheld evidence), emphasized reasons a juror might
disregard new evidence while ignoring reasons she might
not, cf. Porter v. McCollum, 558 U.S. 30, 43 (2009) (per
curiam) (“it was not reasonable to discount entirely the
effect that [a defendant’s expert’s] testimony might have
had on the jury” just because the State’s expert provided
contrary testimony), and failed even to mention the state-
ments of the two inmates impeaching Scott.
III
In addition to defending the judgment of the Louisiana
courts, the dissent criticizes the Court for deciding this
“intensely factual question . . . without full briefing and
——————
failing to disclose exculpatory evidence about which prosecutors did not
learn until after trial when that evidence was in the possession of police
investigators at the time of trial).
10 WEARRY v. CAIN
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argument.” Post, at 6. But the Court has not shied away
from summarily deciding fact-intensive cases where, as
here, lower courts have egregiously misapplied settled
law. See, e.g., Mullenix v. Luna, ante, at ___ (per
curiam); Stanton v. Sims, 571 U. S. ___ (2013) (per curiam);
Parker v. Matthews, 567 U. S. ___ (2012) (per curiam);
Coleman v. Johnson, 566 U. S. ___ (2012) (per curiam);
Wetzel v. Lambert, 565 U. S. ___ (2012) (per curiam);
Ryburn v. Huff, 565 U. S. ___ (2012) (per curiam); Sears v.
Upton, 561 U.S. 945 (2010) (per curiam); Porter v.
McCollum, supra.
Because “[t]he petition does not . . . fall into a category
in which the Court has previously evinced an inclination
to police factbound errors,” the dissent continues, “nothing
warned the State,” when it was drafting its brief in opposi-
tion, that the Court might summarily reverse Wearry’s
conviction. Post, at 5–6. Contrary to the dissent, however,
summarily deciding a capital case, when circumstances so
warrant, is hardly unprecedented. See Sears, supra, at
951–952 (vacating a state postconviction court’s denial of
relief on a penalty-phase ineffective-assistance-of-counsel
claim); Porter, supra, at 38–40 (attorney provided ineffec-
tive assistance of counsel by conducting a constitutionally
inadequate investigation into mitigating evidence). Per-
haps anticipating the possibility of summary reversal, the
State devoted the bulk of its 30-page brief in opposition to
a point-by-point rebuttal of Wearry’s claims. Given this
brief, as well as the State’s lower court filings similarly
concentrating on evidence supporting its position, the
chances that further briefing or argument would change
the outcome are vanishingly slim.
The dissent also inveighs against the Court’s “de-
part[ure] from our usual procedures . . . [to] decide peti-
tioner’s fact-intensive Brady claim at this stage . . . [rather
than] allow[ing] petitioner to raise that claim in a federal
habeas proceeding.” Post, at 7. This Court, of course, has
Cite as: 577 U. S. ____ (2016) 11
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jurisdiction over the final judgments of state postconvic-
tion courts, see 28 U.S. C. §1257(a), and exercises that
jurisdiction in appropriate circumstances. Earlier this
Term, for instance, we heard argument in Foster v. Chat-
man, No. 14–8349, which involves the Georgia courts’
denial of postconviction relief to a capital defendant rais-
ing a claim under Batson v. Kentucky, 476 U.S. 79 (1986).
See also Smith, 565 U. S., at ___ (slip op., at 2) (reversing
a state postconviction court’s denial of relief on a Brady
claim); Sears, supra, at 946. Reviewing the Louisiana
courts’ denial of postconviction relief is thus hardly the
bold departure the dissent paints it to be. The alternative
to granting review, after all, is forcing Wearry to endure
yet more time on Louisiana’s death row in service of a
conviction that is constitutionally flawed.
* * *
Because Wearry’s due process rights were violated, we
grant his petition for a writ of certiorari and motion for
leave to proceed in forma pauperis, reverse the judgment
of the Louisiana postconviction court, and remand for
further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 577 U. S. ____ (2016) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
MICHAEL WEARRY v. BURL CAIN, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT
COURT OF LOUISIANA, LIVINGSTON PARISH
No. 14–10008. Decided March 7, 2016
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
Without briefing or argument, the Court reverses a 14-
year-old murder conviction on the ground that the prose-
cution violated Brady v. Maryland, 373 U.S. 83 (1963), by
failing to turn over certain information that tended to
exculpate petitioner. There is no question in my mind
that the prosecution should have disclosed this infor-
mation, but whether the information was sufficient to
warrant reversing petitioner’s conviction is another mat-
ter. The failure to turn over exculpatory information
violates due process only “ ‘if there is a reasonable proba-
bility that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’ ”
Kyles v. Whitley, 514 U.S. 419, 433–434 (1995) (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion
of Blackmun, J.)).
The Court argues that the information in question here
could have affected the jury’s verdict and that petitioner’s
conviction must therefore be reversed. The Court ably
makes the case for reversal, but there is a reasonable
contrary argument that petitioner’s conviction should
stand because the undisclosed information would not have
affected the jury’s verdict. I will briefly discuss the main
points made in the per curiam, not for the purpose of
showing that they are necessarily wrong, but to show that
the Brady issue is not open and shut. For good reason, we
generally do not decide cases without allowing the parties
to file briefs and present argument. Questions that seem
2 WEARRY v. CAIN
ALITO, J., dissenting
quite simple at first glance sometimes look very different
after both sides are given a chance to make their case. Of
course, this process means extra work for the Court. But
it leads to better results, and it gives the losing side the
satisfaction of knowing that at least its arguments have
been fully heard. There is no justification for departing
from our usual procedures in this case.
I
The first item of information discussed by the Court is a
police report that recounts statements made about Sam
Scott, a key witness for the prosecution, by a fellow in-
mate. According to this report, Scott told the inmate: “I’m
gonna make sure Mike [i.e., petitioner] gets the needle
cause he jacked over me.” Pet. Exh. 13 in No. 01–FELN–
015992, p. 103. Scott, who had been serving a sentence on
unrelated drug charges, reportedly told the inmate that he
had been expecting to be released but that he “still [had
not] gone home because of this,” i.e., petitioner’s prosecu-
tion. Id., at 102. As stated in the report, Scott said that
he was now facing the possibility of a 10-year sentence,
apparently for his admitted role in the events surrounding
the murder. The report did not provide any further expla-
nation for Scott’s alleged statement that petitioner had
“jacked [him] over.”
The Court reads the report to suggest that Scott impli-
cated petitioner in the murder “to settle a personal score.”
Ante, at 8. But if petitioner’s counsel had actually at-
tempted to use this evidence at trial, the net effect might
well have been harmful, not helpful, to the defense. The
undisclosed police report on which the Court relies may be
read to mean that Scott blamed petitioner for putting him
in the position of having to admit his own role in the
events surrounding the murder and thereby expose him-
self to the 10-year sentence and lose an opportunity to
secure early release from prison on the drug charges. If
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ALITO, J., dissenting
defense counsel had attempted to impeach Scott with this
police report, the effort could have backfired by allowing
the prosecution to return the jury’s focus to a point the
State emphasized often during trial, namely, that Scott’s
accusations were credible precisely because Scott had no
motive to tell a story that was contrary to his own inter-
ests. See, e.g., 10 Record 2307 (Tr., Mar. 5, 2002) (“If
[Scott] keeps his mouth shut, he is out in less than five
more months. . . . [But] [i]nstead of getting out in 180
days, he is going to be doing more time”). 1
The Court next turns to an allegation that Scott had
coached another prisoner to make up lies against peti-
tioner. This prisoner never testified at trial, and there is a
basis for arguing that this information would not have
made a difference to the jury, which was well aware that
Scott did not have an exemplary record of veracity. Scott
himself admitted to fabricating information that he told
the police during their investigations. In addition, a wit-
ness who did testify against petitioner at trial also ac-
cused Scott of asking him to lie, although admittedly this
witness later denied making this accusation. Given that
the jury convicted even with these quite serious strikes
against Scott’s credibility, there is reason to question
whether the jury would have seriously considered a differ-
ent verdict because of an accusation from someone who
never took the stand.
Third, the Court observes that the prosecution failed to
turn over evidence that another witness, Eric Brown, had
——————
1 The majority claims that Scott’s unwillingness to tell this fellow
inmate who killed the victim somehow exculpates petitioner. See ante,
at 4, n. 2. In my view, one cannot reasonably infer from the inmate’s
statement, “[Scott] wouldn’t tell me who did it but he said I’m gonna
make sure Mike gets the needle cause he jacked over me,” that Scott
believed petitioner Michael Wearry to be innocent—especially against
the backdrop of Scott’s complaints about his increased imprisonment.
Pet. Exh. 13 in No. 01–FELN–015992, p. 103.
4 WEARRY v. CAIN
ALITO, J., dissenting
asked for favorable treatment from the district attorney in
exchange for testifying against petitioner. It is true—and
troubling—that the prosecutor claimed in her opening
statement that Brown had not sought favorable treatment.
But even so, it is far from clear that disclosing the contra-
dictory information had real potential to affect the trial’s
outcome. For one thing, there is no evidence that Brown
(unlike Scott) actually received any deal, despite defense
counsel’s efforts in cross-examination to establish that
Brown’s testimony might have earned him leniency from
the State. Moreover, Brown admitted during the ex-
change that he had manipulated his initial story to the
police to avoid implicating himself in criminal activity.
We know, then, that the jury harbored no illusions about
the purity of Brown’s motives, notwithstanding the prose-
cutor’s opening misstatement.
Finally, the Court says that the medical records of
Randy Hutchinson would have cast doubt on Scott’s trial
testimony that Hutchinson repeatedly dragged the victim
into and out of a car and bludgeoned him with a stick.
The records reveal that Hutchinson had knee surgery to
repair his patellar tendon just nine days before the mur-
der. But one of the State’s witnesses testified at trial that
he had seen records showing that Hutchinson had had
surgery on his knee “about nine days before the homicide
happened.” 10 Record 2261 (Tr., Mar. 5, 2002); see also
id., at 2263. The jury thus knew the most salient fact
revealed by these records—that Scott had attributed
significant strength and mobility to a man nine days
removed from knee surgery. 2 Given that these particular
——————
2 The per curiam argues that the medical records might have had a
greater effect on the jury because they mentioned the particular type of
knee surgery that petitioner had undergone, and that is certainly
possible. But what is important at this stage is that the basic fact—
that petitioner had recently undergone knee surgery—was known to
the jury, and the incremental impact of the additional details supplied
Cite as: 577 U. S. ____ (2016) 5
ALITO, J., dissenting
details about Hutchinson’s actions were a relatively minor
part of Scott’s account of the crime and the State’s case
against petitioner, the significance of the undisclosed
medical records is subject to reasonable dispute.
While the Court highlights the exculpatory quality of
the withheld information, the Court downplays the con-
siderable evidence of petitioner’s guilt. Aside from Scott’s
and Brown’s testimony, three witnesses told the jury that
they saw petitioner and others driving around shortly
after the murder in the victim’s red car, which according
to one of these witnesses had blood on its exterior. Peti-
tioner offered to sell an Albany High School class ring to
one of these witnesses and a set of new speakers to an-
other. The third witness said he saw petitioner throw away a
bottle of Tommy Hilfiger cologne. Meanwhile, the victim’s
mother testified that her son wore an Albany High class
ring that was not recovered with his body, had received
speakers as a gift shortly before his murder, and had a
bottle of Tommy Hilfiger cologne with him on the night
when he was killed. In addition, three jailers testified
that petitioner called his father after his eventual arrest
and stated that “he didn’t know what he was doing in jail
because he didn’t do anything [and] was just an innocent
bystander.” 9 Record 2120 (Tr., Mar. 4, 2002); see also id.,
at 2124, 2126.
In short, this is far from a case in which the withheld
information would have allowed the defense to undermine
“the only evidence linking [petitioner] to the crime.”
Smith v. Cain, 565 U.S. 73, ___ (2012) (slip op., at 3).
II
Whether disclosing the information at issue realistically
——————
by the medical records is far from clear. Even at the postconviction
evidentiary hearing, the defense’s and State’s medical experts disa-
greed about whether the particular procedure at issue would have left
the then-20-year-old Hutchinson incapable of the acts Scott described.
6 WEARRY v. CAIN
ALITO, J., dissenting
could have changed the trial’s outcome is indisputably an
intensely factual question. Under Brady, we must evalu-
ate the significance of the withheld information in light of
all the proof at petitioner’s trial. See Kyles, 514 U.S., at
435 (Brady is violated when the withheld “evidence could
reasonably be taken to put the whole case in such a differ-
ent light as to undermine confidence in the verdict” (em-
phasis added)); United States v. Agurs, 427 U.S. 97, 112
(1976) (Brady materiality “must be evaluated in the con-
text of the entire record” (emphasis added)). It is unusual
and, in my judgment, unreasonable for us to decide such a
question without full briefing and argument.
At this stage, all that we have from the State is its brief
in opposition to the petition for certiorari. And the State
had ample reason to believe when it submitted that brief
that the question on the table was whether the Court
should hear the case, not whether petitioner’s conviction
should be reversed. The State undoubtedly knew that we
generally deny certiorari on factbound questions that do
not implicate any disputed legal issue. See, e.g., this
Court’s Rule 10; S. Shapiro, K. Geller, T. Bishop, E. Hart-
nett, & D. Himmelfarb, Supreme Court Practice
§5.12(c)(3), p. 352 (10th ed. 2013). Nothing warned the
State that this petition was likely to produce an exception
to that general rule. The petition does not, for instance,
fall into a category in which the Court has previously
evinced an inclination to police factbound errors. Cf. Cash
v. Maxwell, 565 U. S. ____, ____ (2012) (Scalia, J., dissent-
ing from denial of certiorari) (slip op., at 8) (listing cases
from one such category).
To the contrary, we have previously told litigants that
petitions like the one here, challenging a state court’s
denial of postconviction relief, are particularly unlikely to
be granted: We “ ‘rarely gran[t] review at this stage’ ” of
litigation, even when a petition raises “ ‘arguably meritori-
ous federal constitutional claims,’ ” because we prefer that
Cite as: 577 U. S. ____ (2016) 7
ALITO, J., dissenting
the claims be reviewed first by a district court and court of
appeals in a federal habeas proceeding. Lawrence v. Flor-
ida, 549 U.S. 327, 335 (2007) (quoting Kyles v. Whitley,
498 U.S. 931, 932 (1990) (Stevens, J., concurring in denial
of stay of execution)). 3
Why, then, has the Court decided to depart from our
usual procedures and decide petitioner’s fact-intensive
Brady claim at this stage? Why not allow petitioner to
raise that claim in a federal habeas proceeding? If the
case took that course, it would not reach us until a district
court and a court of appeals had studied the record and
evaluated the likely impact of the information in question.
One consequence of waiting until the claim was raised
in a federal habeas proceeding is that our review would
then be governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under AEDPA,
relief could be granted only if it could be said that the
state court’s rejection of the claim represented an “unrea-
sonable application” of Brady. 28 U.S. C. §2254(d)(1). By
intervening now before AEDPA comes into play, the Court
avoids the application of that standard and is able to
exercise plenary review. But if the Brady claim is as open-
and-shut as the Court maintains, AEDPA would not pre-
sent an obstacle to the granting of habeas relief. On the
other hand, if reasonable jurists could disagree about the
application of Brady to the facts of this case, there is no
good reason to dispose of this case summarily. The State
——————
3 The Court implies that meritorious claims in capital cases do consti-
tute a category of factbound errors that the Court has shown willing-
ness to correct on certiorari papers alone. Ante, at 10. In support, it
cites Sears v. Upton, 561 U.S. 945 (2010) (per curiam), and Porter v.
McCollum, 558 U.S. 30 (2009) (per curiam). Notably, Porter did not
arise directly from state postconviction proceedings, but in federal
habeas. And in neither case did the Court take the dramatic step it
takes here and summarily reverse a long-final state conviction for
capital murder; both cases addressed errors related to the defendants’
sentences.
8 WEARRY v. CAIN
ALITO, J., dissenting
should be given the opportunity to make its full case.
In my view, therefore, summary reversal is highly inap-
propriate. The Court is anxious to vacate petitioner’s
conviction before the State has the opportunity to make its
case. But if we are going to intervene at this stage, we
should grant the petition and hear the case on the merits.
There is room on our docket to give this case the careful
consideration it deserves.