SOBELOFF, Chief Judge.
The appellant contends that his conviction in a Maryland state court should be set aside on federal habeas corpus because the prosecutor failed, either through lack of his personal knowledge or for some other reason, to disclose at the trial potentially exculpatory evidence in the possession of the police, thereby causing prejudice to the appellant.
On April 12, 1957, William Barbee was arrested for shooting Jimmy McGee a few days earlier. The police gained possession of a .32 calibre revolver which, according to admissions made by Barbee to the police and repeated at the trial, belonged to him.
Approximately one week later, while in jail awaiting disposition of the McGee case, Barbee was placed in a "line-up" and identified by Officer Donald Fisher of the Baltimore City Police Department as the man who had shot him thirteen months earlier. On the strength of this identification the petitioner was indicted for assault with intent to murder and for unauthorized use of a motor vehicle. The trial was for the 1956 Fisher shooting and for the charge of unauthorized use of an automobile. The petitioner had pleaded guilty and was awaiting sentence on the charge arising from the more recent McGee incident.
At the state trial the following chronology was developed through the testimony of Officer Fisher and two eyewitnesses.
Each of the witnesses was shown Barbee's revolver and asked whether he had seen it before. In each instance the witness answered that the revolver exhibited to him was "similar" to the one used in the Fisher shooting, but he was unable to make a positive identification. The weapon was not actually introduced in evidence, but according to the court reporter's account, was offered by the prosecutor for "identification purposes only." Barbee was found guilty.
Throughout the state and federal post-conviction proceedings Barbee has maintained that he was deprived of due process at his trial. He claims, and the transcript of the federal hearing provides substantiation, that the prosecution produced his revolver in court, offered it for identification and elicited from state witnesses incriminating statements in respect to it without disclosing at any time to the court or to defense counsel reports of ballistics and fingerprint tests made by the police department. These reports cast grave doubt upon Barbee's involvement in the Fisher shooting. Nondisclosure of these documents, he says, was fundamentally unfair notwithstanding the fact that it is not shown that the State's Attorney was himself guilty of an intentional suppression. Indeed, there is nothing to indicate that this official had been told by the police of the existence of the reports.
The state makes a four-pronged answer. Its position is that the appellant is entitled to no relief because he has failed to show: (1) that the undisclosed evidence had any probative value; (2) that his counsel ever asked that the results of the tests be revealed to him or the court; (3) that the prosecuting attorney had any knowledge of the existence of the reports; or (4) that any prejudice resulted from the nondisclosure.
First. That the police reports in question had substantial evidentiary significance is made plain by the testimony of Lieutenant Epple of the Police Department Crime Laboratory at the federal habeas corpus hearing. He stated that Barbee's fingerprints had been submitted to the laboratory for comparison with those found on the automobile driven by Officer Fisher's assailant, and the results were negative. In addition, he read from the ballistics report an account of the police investigation of the crime and the discovery of two spent bullets, one retrieved on the street near the call box, the other found in Officer Fisher's false teeth. From the tests performed on these bullets and the test shots fired with Barbee's revolver, the police report concluded that this weapon was "not wanted in any pending cases in our file." Lieutenant Epple specifically testified that, according to this report, neither of the bullets could have come from Barbee's pistol which the prosecutor had presented in court "for identification." His testimony was that Barbee's gun was a .32 calibre Iver-Johnson, while one bullet recovered from the automobile at the scene of the shooting was .38 calibre, and the object recovered from the officer's false teeth was described as "a part of a bullet" with no further description as to its calibre or otherwise.
Second. It is no answer that Barbee's attorney failed to ask for the results of the tests. While a diligent defense counsel might have learned about the police reports, this is too speculative a consideration to outweigh any unfairness that actually resulted at the trial.
Third. Nor is the effect of the nondisclosure neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. Failure of the police to reveal such material evidence in their possession is equally harmful to a defendant whether the information is purposely, or negligently, withheld. And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure.
The duty to disclose is that of the state, which ordinarily acts through the prosecuting attorney; but if he too is the victim of police suppression of the material information, the state's failure is not on that account excused. We cannot condone the attempt to connect the defendant with the crime by questionable inferences which might be refuted by undisclosed and unproduced documents then in the hands of the police. To borrow a phrase from Chief Judge Biggs, this procedure passes "beyond the line of tolerable imperfection and falls into the field of fundamental unfairness."
In a recent case, where items of evidence had been erroneously admitted, the Supreme Court declined to speculate that the error might have been harmless in the face of sufficient, properly-admitted evidence upon which the defendant could have been convicted. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). In the present case, where evidence was withheld by the police which had a direct bearing upon and could reasonably have weakened or overcome testimony adverse to the defendant, we will not indulge in the speculation that the undisclosed evidence might not have influenced the fact finder.
Admittedly, the eyewitness identification, resting on year-old memories, would, if accepted, be legally sufficient. However, because of the lapse of time from the event to the recall, the trier of fact might well have entertained reservations as to the accuracy and reliability of this testimony. All doubt might have been removed by the seeming corroboration of the gun produced in court. While such corroboration was itself subject to overthrow by the ballistics report, the police department maintained silence. The report might not have been proof of the defendant's innocence, but if its contents had been made known, it might well have nurtured, even generated, a reasonable doubt as to guilt. One cannot possibly say with confidence that such a defect in the trial was harmless. A procedure so burdened with the tendency to harm accords a defendant less than due process.
Accordingly, the decision of the District Court is reversed and the case remanded for the issuance of a writ of habeas corpus unless the state elects to retry the defendant within a reasonable time, in which case he shall remain in custody pending such new trial.
Reversed and remanded with directions.
However, there is nothing whatever in the record to support the conclusion announced by the state judge. In fact, this conclusion was reached six years after the trial in the criminal court, and four years after the denial of relief under the state post-conviction act, and without the benefit of a trial transcript.
The state court had denied Barbee's first petition on February 3, 1959, erroneously declaring that the original conviction was upon "a statement of facts by the State's Attorney." This error was inadvertently adopted by the Maryland Court of Appeals. See Barbee v. Warden, 220 Md. 647, 151 A.2d 167 (1959). When the federal court received Barbee's application for federal habeas corpus, this error was called to its attention. The District Judge suspended proceedings in his court pending reopening of the case in the state court. The state court thereupon heard testimony from the police lieutenant and the prisoner, and affirmed the original dismissal of the petition with the above-mentioned additional comment as to the lawyer's knowledge.
It is baffling how the state judge could conclude that the original lawyer knew of the reports, since the judge did not have before him a transcript of the trial held six years earlier — a trial conducted before another judge.
See also the recent case of Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), which differs from ours in that it dealt with a suppression of evidence favorable to the accused after a request for its production, but the Court's language is highly pertinent: