McCray v. Capra

45 F.4th 634

• Court: Court of Appeals for the Second Circuit
• Decided: August 17, 2022
• Docket: 18-2336
• Status: Published

Opinion

18-2336 McCray v. Capra

United States Court of Appeals For the Second Circuit

August Term 2020

Argued: September 16, 2020 Decided: August 17, 2022

No. 18-2336

TERENCE SANDY MCCRAY,

Petitioner-Appellant,

v.

MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of New York No. 15-cv-1129, James K. Singleton, Jr., Judge.

Before: JACOBS, LYNCH, AND SULLIVAN, Circuit Judges.

Terrence Sandy McCray appeals from a judgment of the United States District Court for the Northern District of New York (Singleton, J.) denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his conviction in New York state court for first-degree rape. McCray argues principally that the state trial court violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Sixth Amendment’s Confrontation Clause by denying him full access to the victim-witness’s mental health records. Because we conclude that the New York Court of Appeals’s application of Brady and its progeny was not unreasonable and that there is no binding Supreme Court precedent stating that a defendant’s right to confrontation extends to pretrial discovery, we AFFIRM the district court’s judgment denying McCray’s petition.

Judge Jacobs dissents in a separate opinion.

AFFIRMED.

JONATHAN I. EDELSTEIN, Edelstein & Grossman, New York, NY, for Petitioner- Appellant.

PRISCILLA STEWARD, Assistant Attorney General (Barbara D. Underwood, Solicitor General, and Nikki Kowalski, Deputy Solicitor General for Criminal Matters, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Respondent- Appellee.

RICHARD J. SULLIVAN, Circuit Judge:

Petitioner Terrence Sandy McCray appeals from a judgment of the United

States District Court for the Northern District of New York (Singleton, J.) denying

his petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his

conviction in New York state court for first-degree rape. The underlying criminal

2 case was ultimately a credibility contest. According to the victim, 1 she was

violently raped by McCray. According to McCray, he and the victim had

consensual sex, the victim subsequently demanded money from him, he refused,

she tried to steal his pants and his cash, a brief struggle ensued, and the victim left.

The physical evidence – including photos of the victim’s bruised face and the bite

marks on McCray’s arm – was consistent with both stories. Before trial, the

prosecution informed McCray that the victim had a history of mental illness,

which prompted McCray to request all of her mental health records. The trial

court conducted an in camera review of the victim’s full mental health records,

which totaled more than 5,000 pages, and disclosed to McCray a

twenty-eight-page sample that it deemed representative. At trial, the prosecution

elicited testimony from the victim regarding her mental health, and the defense

vigorously cross-examined her on that subject. The jury returned a guilty verdict.

On direct appeal in the New York state courts, McCray challenged the

decision to provide him with only a sample of the victim’s mental health records,

arguing that doing so violated his right to due process under Brady v. Maryland,

373 U.S. 83 (1963), and his right to confront his accuser under the Sixth

1Although the victim testified in open court, due to the nature of the crime against her and the content of the disputed records, we refrain from using her name in this opinion.

3 Amendment’s Confrontation Clause. The New York Court of Appeals ultimately

affirmed McCray’s conviction, holding that the trial court did not err by providing

a sample of the victim’s mental health records and finding that the sample was

sufficiently representative of the records as a whole. McCray subsequently

petitioned for relief under 28 U.S.C. § 2254, which the district court denied.

We must decide whether the New York Court of Appeals unreasonably

applied clearly established federal law as determined by the Supreme Court of the

United States. We conclude that it did not. Because the New York Court of

Appeals’s application of Brady and its progeny was reasonable and there is no

binding Supreme Court precedent providing that a defendant’s right to

confrontation extends to pretrial discovery in a criminal case, we AFFIRM the

district court’s denial of McCray’s petition.

I. BACKGROUND

Both the victim and McCray testified that they met in 2009 and went on a

date in Albany, New York. After an evening of exploring Albany, McCray led the

victim to the home of one of his friends, who let the couple in and then

immediately retired to his bedroom. Alone on the living room couch, McCray and

the victim started kissing. The victim testified that McCray wanted to have sex

4 after about fifteen minutes, but she refused, telling McCray that it was too early in

their relationship. When McCray pressed the point, the victim got angry with him

and stormed out of the apartment. McCray chased her down on the street outside

to apologize. The victim eventually accepted McCray’s apology and proceeded to

walk around Albany with him until about midnight. According to the victim,

McCray then led her to an abandoned house, where he violently raped her.

After she left the abandoned house, the victim – then weeping and

struggling to speak – called 911 from a nearby payphone. She told the operator

that McCray had beaten her, made her beg for her life, and raped her. A police

officer approached the victim while she was on the phone and saw blood on her

clothes and face. Photographs taken later that morning and hospital records show

that the victim had abrasions and bruises on her left arm and left cheek, as well as

lacerations on the inside of her mouth. A DNA test on samples of semen recovered

from the victim’s vagina and breasts matched McCray’s DNA.

A week later, an Albany County grand jury indicted McCray on the charge

of first-degree rape. Before trial, the prosecution provided the defense with a

synopsis of the victim’s mental health history, including information about her

hospitalizations; her diagnoses of bipolar disorder, epilepsy, Tourette’s syndrome,

5 attention deficit disorder, and post-traumatic stress disorder (“PTSD”); and her

histories of hypersexuality and auditory and visual hallucinations. The

prosecution also disclosed the victim’s allegations that she had been the victim of

three prior sexual-abuse incidents. Following these disclosures, McCray sought

all of the victim’s mental health records relating to her testimonial capacity,

memory, and/or credibility. The trial court directed that the records be submitted

in camera so that it could review the records and determine which were material

and needed to be disclosed to the defense. After reviewing more than 5,000 pages

of the victim’s mental health records, the trial court provided the defense with a

twenty-eight-page sample it deemed representative of the relevant corpus of

documents. On direct examination, the victim told the jury about her mental

health diagnoses and the medications she took at the time of the incident. She was

also cross-examined at length by defense counsel about her mental health status

and treatment.

Following the prosecution’s case, McCray elected to testify in his own

defense. During that testimony, McCray disputed key portions of the victim’s

testimony and stated unequivocally that the sexual encounter was completely

consensual. The jury ultimately returned a verdict finding McCray guilty of

6 first-degree rape. He was subsequently sentenced to twenty-two years’

imprisonment.

McCray appealed to the Appellate Division, Third Department, which

affirmed his conviction. See People v. McCray (McCray I), 958 N.Y.S.2d 511, 514

(3d Dep’t 2013). He then appealed to the New York Court of Appeals, which also

affirmed. See People v. McCray (McCray II), 23 N.Y.3d 193, 196 (2014). One of

McCray’s key arguments on direct appeal was that the trial court violated his

confrontation and due process rights by refusing to provide him with the victim’s

full mental health records. The New York courts rejected this argument.

In 2015, McCray petitioned pro se for a writ of habeas corpus under

28 U.S.C. § 2254 in the Northern District of New York. The district court denied

the petition, finding that the New York Court of Appeals’s conclusion that the

withheld documents were not material was not “unreasonable or contrary to Brady

or its progeny.” McCray v. Capra (McCray III), No. 15-cv-1129 (JKS), 2018

WL 3559077, at *11 (N.D.N.Y. July 24, 2018). The district court nonetheless granted

a certificate of appealability on the sole question of whether the nondisclosure of

the victim’s mental health records violated Brady. McCray filed a counseled

motion to expand the certificate of appealability to include the question of whether

7 the nondisclosure of the victim’s mental health records also violated his Sixth

Amendment right to confrontation, which this Court granted.

II. STANDARD OF REVIEW

We review the denial of a section 2254 petition de novo. Scrimo v. Lee, 935

F.3d 103, 111 (2d Cir. 2019). A federal court may not grant a writ of habeas corpus

pursuant to section 2254 unless (1) the state court’s decision was “contrary to, or

involved an unreasonable application of, clearly established [f]ederal law, as

determined by the Supreme Court of the United States,” or (2) the state court’s

decision was “based on an unreasonable determination of the facts in light of the

evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d); see also

Harrington v. Richter, 562 U.S. 86, 100 (2011). On a habeas petition under

section 2254, we review the “last reasoned decision” by the state court, Ylst v.

Nunnemaker, 501 U.S. 797, 804 (1991), only for the “reasonableness” of its

bottom-line “result,” not the “quality of [its] reasoning,” Sellan v. Kuhlman, 261

F.3d 303, 312 (2d Cir. 2001) (citation omitted). Thus, we extend considerable

“deference” even to “deficient reasoning . . . , at least in the absence of an analysis

so flawed as to undermine confidence that the constitutional claim has been fairly

adjudicated.” Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (internal citations

8 omitted). Put differently, our review under section 2254 is not “a substitute for

ordinary error correction through appeal.” Richter, 562 U.S. at 102–03 (citation

omitted). Rather, it “functions as a guard against extreme malfunctions in the state

criminal justice systems.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation

marks omitted).

A state court’s decision is contrary to clearly established federal law when

it “applies a rule that contradicts the governing law set forth in [Supreme Court

caselaw] or . . . confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from

[Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal

quotation marks omitted); see also Fuentes v. Griffin, 829 F.3d 233, 244 (2d Cir. 2016).

“[C]learly established law as determined by [the Supreme] Court 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.” Yarborough v. Alvarado, 541 U.S. 652, 660–61

(2004) (internal quotation marks omitted). Under this standard, a federal court

may not issue a writ of habeas corpus simply because it thinks the state court

“applied clearly established federal law erroneously or incorrectly.” Williams v.

Taylor, 529 U.S. 362, 411 (2000). Instead, relief is warranted under section 2254 only

9 “where there is no possibility fair[-]minded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 U.S.

at 102; see also Mays v. Hines, 141 S. Ct. 1145, 1149 (2021); Shinn v. Kayer, 141 S. Ct.

517, 520 (2020). As the Supreme Court has noted, if this standard is difficult to

meet, that is “because it was meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 2555,

2558 (2018) (quoting Richter, 562 U.S. at 102); see also Burt v. Titlow, 571 U.S. 12, 20

(2013).

III. DISCUSSION

McCray argues that the New York Court of Appeals unreasonably applied

clearly established federal law in finding that the trial court’s withholding of the

victim’s full mental health records did not violate his right to due process under

Brady and his right to confront his accuser under the Sixth Amendment’s

Confrontation Clause. We discuss McCray’s due process and Confrontation

Clause claims in turn.

A. McCray’s Due Process Claim

Due process requires disclosure of evidence that is “favorable to [the]

accused” and “material either to guilt or to punishment.” Brady, 373 U.S. at 87.

So-called Brady material includes both evidence that is exculpatory and evidence

10 that can be used to impeach a prosecution witness whose credibility may be

“determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150, 154

(1972). Still, the prosecutor is not obligated to “deliver his entire file to defense

counsel.” United States v. Bagley, 473 U.S 667, 675 (1985) (plurality opinion); see also

Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[The Supreme Court] ha[s] never held

that the Constitution demands an open file policy.”). Only evidence that is material

raises due process concerns. See Wearry v. Cain, 577 U.S. 385, 392 (2016) (citing

Brady, 373 U.S. at 87); Turner v. United States, 137 S. Ct. 1885, 1888 (2017).

The “touchstone of materiality” is whether there is a “reasonable

probability” that the result of the trial would have been different had the relevant

evidence been disclosed to the defendant. Kyles, 514 U.S. at 434. A reasonable

probability is “the likelihood of a different result [that] is great enough to

undermine confidence in the outcome of the trial.” Smith v. Cain, 565 U.S. 73, 75

(2012) (alterations and internal quotation marks omitted). The materiality of the

undisclosed evidence is evaluated “in the context of the entire record.” Turner, 137

S. Ct. at 1893. Although this determination is “legally simple,” it can be “factually

complex.” Id.

11 The relative generality of the Brady rule interacts with the habeas standard

in a way that is critical to McCray’s case. As the Supreme Court has said:

[T]he range of reasonable judgment may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. . . . The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.

Yarborough, 541 U.S. at 664. The Brady rule is a general rule, as it does not identify

specific materials that prosecutors must turn over to defendants, but rather asks –

after the fact – whether the failure of those prosecutors to turn over certain

evidence denied the defendant a fair trial – a question that is a matter of judgment

rather than one with a clear, obvious answer.

McCray contends that “the nondisclosure of the [victim’s] full medical

records” violated his constitutional rights and constituted an unreasonable

application of clearly established federal law, as determined by the Supreme

Court. McCray’s Br. at 34–35. Specifically, McCray asserts that the New York

Court of Appeals incorrectly determined that (1) the trial court had provided him

with a sufficient, representative sample of the victim’s mental health records,

(2) there was nothing in the undisclosed records suggesting that the victim had a

tendency to make accusations she knew to be false, and (3) one of the suppressed

documents – recounting that the victim had accused her father of sexual assault

12 and that the allegation was unfounded – was immaterial. Because we review the

undisclosed evidence not piecemeal but cumulatively, see Kyles, 514 U.S. at 440–

41, and because we address only the reasonableness of the state court’s decision

and not its rationale, see Cruz, 255 F.3d at 86, all three arguments merge into the

first and can be addressed together.

As an initial matter, there is nothing in the Supreme Court’s caselaw to

suggest that providing only a sample of the victim’s mental health records was

improper. As noted above, the Supreme Court has “never held that the

Constitution demands an open file policy,” Kyles, 514 U.S. at 437, and not every

document that could be used to impeach a witness is so devastating that depriving

a defendant of it “undermine[s] confidence in the outcome of the trial,” Smith, 565

U.S. at 75. Here, much of the victim’s file was duplicative of those portions of the

file that were produced. Given that redundancy and the fact that many of the

documents in the file were otherwise irrelevant to the victim’s credibility as a

witness, it was not objectively unreasonable or an extreme malfunction of the

state’s criminal justice system for the state trial court to provide only a

representative sample of the victim’s mental health records. The question, then, is

whether there was material information in the withheld documents. The New

13 York Court of Appeals answered that there was not. We hold that fair-minded

jurists could agree with that conclusion.

The twenty-eight pages that were provided to McCray include a remarkable

amount of information about the victim, including her history of hospitalizations

for mental health episodes; information concerning her memory loss; her

hypersexuality and sexually risky behaviors, including her history of sexual

activity with older men; her poor judgment in sexual interactions; two previous

incidents in which she alleged forced intercourse (one at age twelve with a

sixteen-year-old male and one at age fourteen with a twenty-five-year-old male)

and reported symptoms of significant trauma; her history of being physically

abused by her father; her self-harming behaviors, including one incident where

she carved a cross into her hand; her patterns of inappropriate and unsafe

behaviors; her poor impulse control; her epilepsy; her psychotic symptoms, which

include visual and auditory hallucinations; her violent responses to traumatic

flashbacks of prior sexual abuse; the psychotropic medications that she was

prescribed, as well as other treatments such as anger management, family therapy,

and group therapy that she undertook; her erratic use of prescription medications

and inconsistent compliance with her therapy programs; her “bizarre and

14 psychotic behaviors” and mood cycling from depressive to explosive; and her

“explosive,” “threatening,” “aggressive,” and even “rageful” behaviors when

angry. Sealed R. at 429–55.

In addition to information contained in the pretrial disclosure to McCray,

the victim testified on direct examination about her mental health diagnoses and

the medications she had been taking at the time of the incident. On

cross-examination, she reaffirmed that she had been diagnosed with PTSD and

other mental illnesses, and that she had been treated at two different mental health

facilities around the time of the events in question. More specifically, the victim

testified that one of the reasons she had been receiving bipolar disorder

medications was that she could become explosively angry and physically strike

others. She conceded that she did not always take her medication and that she

could not recall whether she had taken her medication on the night she was raped.

She likewise testified that she had engaged in self-harm, including cutting herself,

and that the marks the officers found on her arms after the rape were self-inflicted.

Finally, the victim testified that she had visualized her deceased grandfather and

that there have been times that she could sense the presence of dead people.

15 It is against this entire record that the state court needed to compare the

withheld documents to determine whether they were material. See Turner, 137

S. Ct. at 1893. After conducting our own review of the undisclosed records, we

conclude that the state court’s decision to withhold them from the defense was not

an unreasonable application of clearly established federal law. Between the

sample provided to McCray and the victim’s testimony in open court, McCray had

ample material with which to impeach the victim’s credibility at trial and more

than sufficient information to prompt defense counsel to pursue the victim’s

mental health as a potential avenue for impeachment. Notwithstanding the

victim’s serious and tragic struggles with mental illness, the jury still found her to

be credible. There is nothing in the undisclosed records that could further impeach

the victim to such an extent that our “confidence in the outcome of the trial” would

be compromised. Smith, 565 U.S. at 75.

McCray argues that our decision in Fuentes compels the opposite result. See

829 F.3d 233. Fuentes was a case in which “the witness’s testimony [was] the only

evidence that there was in fact a crime.” Id. at 248. But unlike the defense in this

case, the defense counsel in Fuentes did not have access to any of the witness’s

relevant mental health records until he came across a “Record of Consultation” as

16 he was leafing through the prosecution’s trial exhibits during his summation. Id.

at 240. At that point, it was far too late for the defense to use that information to

impeach the witness. See id. at 249. McCray, in contrast, was provided with the

victim’s mental health records in advance of trial so that his attorneys had a

sufficient opportunity to use them in preparing his defense and in cross-examining

the victim. The victim also testified about her mental health on direct examination,

which gave McCray’s attorneys ample material with which to cross-examine her

about her mental health condition and how it might affect her credibility.

Therefore, Fuentes does not undermine our decision here.

The dissent argues that the trial court’s decision to provide the

twenty-eight-page sample was a “miscarriage” that “is arresting,”

“unprecedented,” and “not easily thinkable.” Dissent at 1. According to the

dissent, McCray was “wholly denied the right to defend himself” and sentenced

“without a trial that anyone can now deem fair.” Id. at 23. Indeed, the dissent

insists the state’s defense of McCray’s conviction is so “disreputable” that, “[w]ere

[Judge Jacobs] a lawyer for the [s]tate, [he] would not have been able to sign the

brief it filed on this appeal.” Id. But whatever the dissent’s subjective views on

the propriety of signing the state’s brief, that is not the standard we are required –

17 or permitted – to apply on a challenge pursuant to section 2254. Our inquiry is

instead an objective one, which turns on whether the undisclosed information was

so obviously material that no “fair[-]minded jurist could []agree on the correctness

of [the trial court’s] decision” to withhold it. Ritcher, 562 U.S. at 101 (internal

quotation marks omitted). We are not persuaded that this high standard has

been met.

First, the dissent argues that the disclosed documents provided the defense

with only the broad argument that people with mental illnesses cannot be relied

on to tell the truth. Dissent at 4. But the full account of the disclosed documents

suggested far more than that. While the dissent states that only a “single disclosed

document . . . involves misperception,” id. at 7, the defense in fact possessed

thirteen different documents that touch on a wide variety of issues relating to the

victim’s potential to misperceive situations: her memory loss, her two previous

allegations of forced intercourse and associated trauma symptoms (including

violent flashbacks), and her history of psychotic episodes (including visual and

auditory hallucinations). Considered in tandem, these documents constituted

powerful impeachment materials in and of themselves, which were more than

enough to alert defense counsel that the victim’s difficulties with accurately

18 perceiving reality could be a productive line of inquiry on cross examination. Not

that defense counsel needed prompting – counsel requested the victim’s medical

history in pretrial discovery and thoroughly cross-examined her at trial regarding

how her mental illness might have affected her ability to accurately perceive or

remember what happened with McCray in the abandoned house. The assertion

that McCray was prevented from mounting a defense based on the victim’s

“pathological failures to appreciate reality,” id. at 8, is clearly contradicted by the

record.

Second, the dissent makes much of a note in the victim’s Patient Care

Activity Report stating that she confabulated stories about hospital staff.

“Confabulate,” in both its dictionary definition and as a technical or psychological

term, means “[t]o fill in gaps in one’s memory with fabrications that one believes

to be facts.” Confabulate, The American Heritage Dictionary of the English

Language (5th ed. 2011); see also The American Psychiatric Association, The

Diagnostic and Statistical Manual of Mental Disorders 157 (4th ed. 1994)

(“DSM-IV”) (stating that confabulation is “often evidenced by the recitation of

19 imaginary events to fill gaps in memory”). 2 Clearly, the note indicates that the

victim may be an unreliable witness. But so do the documents that were disclosed

to McCray, which indicate that the victim had trouble with memory loss and with

misperceiving and misremembering events. It was therefore not unreasonable for

the New York Court of Appeals to determine that the note in the Activity Report

was cumulative of the other impeachment materials that were provided to McCray

prior to trial.

Third, the dissent says that two assessments indicating that the victim

“cannot remember good experiences if she has bad experiences with someone”

were material and should have been disclosed. Dissent at 9. The dissent spins a

theory that McCray and the victim shared a good experience – namely, consensual

sex in an abandoned building – followed by a bad experience pertaining to a

post-coital struggle over money. But nothing in the documents cited by the dissent

suggests that the victim was prone to forget good experiences within minutes of

experiencing them, as would have had to be the case here, where the victim,

sobbing and covered in blood, immediately ran to a payphone to call 911 and

2We have recognized the DSM-IV, which was the edition of the DSM in effect at the time this note was written, as “an objective authority on the subject of mental disorders.” Fuentes, 829 F.3d at 249.

20 report having been raped by McCray. Moreover, those same documents clearly

state that when the victim does choose to remember something, her memory is

excellent. It is dubious that these ambiguous documents would have been

especially helpful to McCray, and it was not unreasonable for the New York Court

of Appeals to find that they were cumulative of other evidence that demonstrated

the victim’s faulty memory and potential unreliability as a witness.

Finally, the dissent notes that the undisclosed records show that the victim

accused her father of attempting to rape her by pinning her against a wall and that

a mental health professional, without explanation, later deemed that allegation to

be unfounded. According to the dissent, this prior allegation could have

“damn[ed]” the case against McCray. Id. at 11. But the dissent fails to fully or

accurately describe either the records at issue or the victim’s allegation against

McCray. The records state that the victim had alleged that her father tried to rape

her by pinning her up against the wall in a sexual position and that she could not

recall how she got away. The victim’s allegation against McCray, however, was

much more detailed and differed in significant respects from the allegations made

against her father. The victim testified that once she and McCray were in the

abandoned house, McCray backed her up against a wall, forced his tongue down

21 her throat, and began grinding against her. She told him to stop and tried to push

him away, but he continued, commanding, “You are going to give it to me or I’m

going to take it.” McCray I, 958 N.Y.S.2d at 515. The victim testified that she

punched McCray in the face, near his jaw or chin; that McCray hit her in the face

several times and choked her from behind; that she then bit McCray’s forearm

while he was choking her, all while begging for her life and trying to make noise

to draw attention, until she finally gave up and fell to her hands and knees; and

that McCray then raped her on the floor of the abandoned house. When it was

over and the victim got up to leave, McCray told her, “Don’t go out there looking

like that.” Id. at 516. She wiped the tears and blood from her face and then went

out the same way they had entered, only to immediately call the police from a

payphone and report that she had been raped. The similarities between the two

stories are at most superficial and trivial. While the dissent insists that the

evidence suggesting that the victim may have misinterpreted her father shoving

her as an attempted rape would be “dynamite” to the jury, Dissent at 13, we are

not persuaded that there is a “reasonable probability” that the result of the trial

22 would have been different had the evidence been disclosed to McCray. Kyles, 514

U.S. at 434. 3

In sum, the dissent is incorrect to say that the withheld documents would

have corroborated the weaker aspects of McCray’s defense in ways the disclosed

documents did not. Dissent at 15. McCray was given a wealth of information in

pretrial disclosures; the victim testified about her various mental health issues in

open court; and the victim was cross-examined vigorously on her mental illness,

her erratic behavior, and – by extension – her reliability. The jury nonetheless

credited her testimony and convicted McCray. Based on the entire record, we

cannot say that no fair-minded jurists would agree with the New York Court of

Appeals that McCray received a fair trial. We therefore deny McCray’s petition

insofar as it seeks relief based on Brady.

B. McCray’s Confrontation Clause Claim

The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

3The dissent notes that the withheld documents show that the victim experiences flashbacks to being sexually abused. Dissent at 11. While that is true, notes regarding the victim’s flashbacks to her prior sexual abuse were also included in the disclosed documents. Thus, any discussion of the victim’s flashbacks in the undisclosed documents is duplicative or cumulative of what was disclosed.

23 the witnesses against him.” U.S. Const. amend. VI. Supreme Court caselaw clearly

establishes that the Confrontation Clause entitles a criminal defendant to “a

meaningful opportunity to cross-examine witnesses against him.” Alvarez v.

Ercole, 763 F.3d 223, 229–30 (2d Cir. 2014); see also Davis v. Alaska, 415 U.S. 308, 315

(1974). McCray argues that he was deprived of such an opportunity because the

sample of the victim’s mental health records provided to him was insufficient. The

New York Court of Appeals rejected this argument as a matter of law, concluding

that the Confrontation Clause does not extend to pretrial discovery and instead

analyzing McCray’s claims only in connection with Brady and its progeny. See

McCray II, 23 N.Y.3d at 198.

The view that the opportunity to cross-examine witnesses is meaningful

only when the defendant is given adequate pretrial discovery was advanced in

Pennsylvania v. Ritchie, 480 U.S. 39 (1987), by Justice Blackmun in his concurrence,

see id. at 61–66 (Blackmun, J., concurring), and by Justices Brennan and Marshall

in their dissent, see id. at 66–72 (Brennan, J., dissenting). This, however, was not

the view of the plurality, which made clear that the right to confrontation is only

“a trial right” that “does not include the power to require the pretrial disclosure of

24 any and all information that might be useful in contradicting unfavorable

testimony.” Id. at 52–53 (plurality opinion).

Other than in Ritchie, the Supreme Court has not directly addressed how, if

at all, the Confrontation Clause affects pretrial discovery. To the extent that any

guidance may be gleaned from other Supreme Court cases, that guidance is

consistent with the Ritchie plurality’s characterization of a defendant’s right to

confrontation as a trial right only. See Barber v. Page, 390 U.S. 719, 725 (1968) (“The

right to confrontation is basically a trial right.”); California v. Green, 399 U.S. 149,

157 (1970); Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Thus, we find no basis to

conclude that the New York Court of Appeals’s decision concerning McCray’s

confrontation rights was “contrary to, or involved an unreasonable application of,

clearly established [f]ederal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

25 DENNIS JACOBS, Circuit Judge, dissenting:

I respectfully dissent.

In a word-against-word rape case, the State turned over to the defense

documents reflecting a variety of mental disorders of the complainant that

rendered her vulnerable; but the State did not turn over documents reflecting her

distortions of memory and reality, and an earlier report of rape. The withheld

documents put the case in a wholly different light, raise powerful doubts about

what happened, and would have opened the only promising avenues for

investigation and trial strategy.

I acknowledge the high hurdle that a federal court must surmount to grant

a writ of habeas corpus in a state case: it must be that the state court’s decision

was “objectively unreasonable,” Fuentes v. Griffin, 829 F.3d 233, 245 (2d Cir.

2016) (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)), that is, “so

lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011). The standard is

not often met; but the miscarriage here is arresting and unprecedented. It is not

easily thinkable.

1 The facts may be put in skeletal fashion. Terence Sandy McCray and the

complainant ended a social evening in 2009 by going to an abandoned house.

She says that she was “follow[ing] him” around the premises when McCray

pinned her to a wall and raped her. State Ct. R. at 380:7-8, No. 9:15-cv-1129

(N.D.N.Y. Apr. 21, 2016), ECF No. 35-1. He says that they were seeking a private

place for sex, and that after consensual sex, she demanded payment, grabbed his

pants and fished for cash; and that after a tussle ensued, he fled.

As everyone agrees, the case turns on the credibility of McCray and the

complainant. McCray was convicted by a jury in Albany County Court, and

sentenced to 22 years in prison—where he has now been for about 13 years.

(McCray spurned a plea agreement that would have subjected him to a

misdemeanor conviction and time served—which says something about the

prosecution’s view of its case.) The conviction withstood state appeals by closely

divided panels: 3-2 in the Appellate Division, 4-3 in the Court of Appeals.

I would hold that the disposition of the Court of Appeals (after almost all

of the exculpatory documents were known to the judges) was “objectively

unreasonable.” Fuentes, 829 F.3d at 245 (quoting Alvarado, 541 U.S. at 665). I

will adduce particulars, but in sum, the Constitutional deprivation under Brady

2 v. Maryland, 373 U.S. 83 (1963) was absolute—that is, none of the many

exculpatory documents were turned over. It was incontestable error to tolerate

that denial of the due process right to a fair trial.

The majority deems it “critical to McCray’s case” that Brady is a “general

rule” that entails “judgment” in deciding what “specific materials” must be

turned over, and therefore may not be a viable ground for seeking relief under

the habeas standard. Maj. Op. at 12-13. That principle would foreclose habeas

relief even when—as here—the Brady violation is complete, flagrant, and

consequential, which cannot be the law.

I

As permitted in New York, the culling of the complainant’s (huge) medical

file was done by the trial judge; that procedure for the disclosure of confidential

documents is sanctioned by both the New York Court of Appeals, see People v.

Gissendanner, 48 N.Y.2d 543, 551 (1979); see also People v. Contreras, 12 N.Y.3d

268, 272 (2009), and the United States Supreme Court, see Pennsylvania v.

Ritchie, 480 U.S. 39, 60 (1987).

3 The trial judge turned over to the defense (and prosecution) 28 pages out

of over 5000 and placed the rest under seal, where they remain, inaccessible to

both the defense and the prosecution. Scrutiny in the state appellate courts, in

the district court, and in my chambers identified 45 additional pages that should

have been produced. But the seal order has disabled McCray’s counsel from

specifying the use and impact of the withheld documents, or how they might

have affected trial strategy. Unless lawyers can see what has been withheld, they

are shadow-boxing.

Six appellate judges (albeit out-voted) would grant a new trial. That

includes me.

The New York Court of Appeals (the “Court”) wrote off the withheld

documents as “cumulative or of little if any relevance to the case.” People v.

McCray, 23 N.Y.3d 193, 199 (2014) (“Ct. App. Op.”). Both grounds are manifestly

wrong. The 28 pages that were disclosed demonstrate no more than that the

complainant was vulnerable, which was a great boon to the prosecution. But the

defense was left with the insupportable argument that people with mental illness

cannot be relied on to tell the truth, or might misperceive a consensual encounter

as rape. As the Court itself recounted, the 28 pages that were produced showed:

4 that the complainant had very significant mental health problems. Her diagnoses, as summarized in her own testimony, included “Bipolar, Tourettes, post-traumatic stress disorder, epilepsy.” It was also brought out that she suffered from attention deficit disorder and hypersexuality; that she had reported that she “visualized” or “sense[d] the presence of” dead people; that she had cut her flesh with sharp objects; that her bipolar disorder caused her “on occasion” to be “explosive and angry” and to “physically strike out at people”; that at the time of the incident she was taking medications, was receiving treatment from a mental health facility, and was also seeing a counselor weekly or biweekly; that she failed “once in a while” to take her medications, and that on the night of the alleged rape she could not remember whether she had taken them that day; that, after the alleged rape and before the trial, she had been hospitalized for an overdose of drugs; and that that was not her first suicide attempt, though she said it was her first “serious” one.

Id. at 197–98 (alteration in original).

The complainant’s vulnerability, as detailed in the documents known to

the jury, was the mainspring of the prosecution’s case, as pressed in summation:

“something wasn’t right about [the complainant],” possibly because of “her

mental health conditions.” State Ct. R. at 778:12–14, No. 9:15-cv-1129 (N.D.N.Y.

Apr. 21, 2016), ECF No. 35-5 (“Prosecutor’s Summation”). The prosecutor

imputed to McCray the assumption that he could rape her with impunity:

“[n]obody’s going to believe [the complainant]” because “[s]he’s crazy.” Id. at

790:22–25. And vulnerability was the prosecution’s explanation for why the rape

took place in the context of a willing sexual encounter:

5 I submit to you the plan was not to rape her. The plan was to take advantage of her because he knew he could. And what happened was what he didn’t predict or plan, that she said no. She said no. Because she agreed and participated in sexual activity with him before in April and even earlier that night at his friend’s house, he figured he was a shoe-in. He had it in the bag. He was going to take her to an abandoned building where he knew it would be private.

Id. at 780:10–19.

The complete defense to all this would have been evidence that the

complainant had a distorted memory or a fragile sense of reality. But the

disclosed evidence did nothing to support such an argument. There is nothing

about Tourette Syndrome, bipolar disorder, PTSD, epilepsy, or attention deficit

disorder that renders the complainant an unreliable witness. And

hypersexuality (to the extent it is anybody’s business) simply reinforces the

prosecution’s argument that she was vulnerable.

Brady requires the disclosure of evidence that takes on force from

“cumulative effect.” Kyles v. Whitley, 514 U.S. 419, 440 (1995). Yet the Court

considered it sufficient if McCray had documents containing “examples” of the

mental health issues that appeared in the withheld documents, and good enough

if the withheld documents “were no clearer or more dramatic than the ones the

defense already had.” Ct. App. Op., 23 N.Y.3d at 199. As example, the Court

6 picked the single disclosed document that involves misperception: the

complainant saw or sensed the presence of the dead. The Court deemed this

sufficiently representative of her “hallucinations or distorted perceptions.” Id.

But there are no zombies in this case.

II

The complainant’s withheld medical history reflects memory distortion,

misperception, and fabrication that undermine credibility generally and fatally.

Since, as Judge Rivera observed in her potent dissent in the New York Court of

Appeals (on behalf of three judges), “[c]ases are made or unmade by specifics,

not generalities,” Ct. App. Op., 23 N.Y.3d at 206 (Rivera, J., dissenting), I will

focus on the impact of particular documents that bear upon those features of

McCray’s testimony that were most in need of corroboration.

In this opinion, withheld documents are cited in italics to avoid repeating

endlessly the description, “another record withheld from the defense.”

The Court held that the two accounts of what happened at the crucial

moment set up a binary choice: either the sex was consensual or it was rape—

and it therefore could not be attributed to “a failure of recollection or a

misunderstanding.” Ct. App. Op., 23 N.Y.3d at 199. But if the defense had in

7 hand the evidence it was entitled to have, it could have mounted a defense that

reconciled the opposite accounts on the basis that both witnesses were telling the

truth: one of them with pathological failures to appreciate reality.

As to the alleged rape itself, the withheld documents specifically adduce

symptoms that bear directly on the complainant’s ability to recall and relate the

disputed events. The complainant “has pretty significant short term memory

loss.” Oct. 2006 Progress Note. At times, she has felt “out of control” and

afterward “has had no recollection of the events” that took place during the

episode. People v. McCray, 958 N.Y.S.2d 511, 524 (3d Dep’t 2013) (McCarthy, J.,

dissenting). She has “confabulat[ed] stories about [hospital] staff.” Nov. 2006

Patient Care Activity Rep. The “major feature” of confabulation has been

described in scientific literature as “an inaccurate and sometimes bizarre

narrative account of a present or past event,” sometimes characterized as

“‘honest lying,’ in the sense that patients believe what they are saying even

though it is demonstrably false.” Daniel L. Schacter, Jerome Kagan, & Michelle

D. Leichtman, True and False Memories in Children and Adults: A Cognitive

Neuroscience Perspective, 1 PSYCH. PUB. POL’Y & L. 411, 415–16 (1995). (The

8 ordinary definition of “confabulation” is set out in the margin. 1) The

complainant also “has a very poor perception of reality” and distorts her

interpersonal relationships. July 2006 Discharge Summ.

One such distortion of reality has direct bearing on the case. Withheld

psychiatric assessments, dated about one year apart, reveal that the complainant

has a selective memory. It is not the kind of selective memory that is fairly

universal; the complainant “cannot remember good experiences if she has bad

experiences with someone.” Sept. 2007 & Aug. 2008 Assessments. Consider:

McCray testified that he and the complainant shared a good experience

(consensual sex) followed by a bad one (a struggle over money). The evidence of

the complainant’s pathology would have thus corroborated McCray’s account.

1 To “confabulate” means “to fill in gaps in memory by fabrication,” Confabulate, Merriam-Webster.com, https://www.merriam- webster.com/dictionary/confabulate (last visited December 14, 2021), or “by a falsification that one believes to be true,” Confabulate, Dictionary.com, https://www.dictionary.com/browse/confabulate?s=t (last visited December 14, 2021); see Confabulate, Oxford Dictionary, https://premium.oxforddictionaries.com/us/definition/american_english/confabu late (last visited December 14, 2021) (defining “confabulate” as “[f]abricate imaginary experiences as compensation for loss of memory”); see Francis P. Kuplicki, Fifth, Sixth, and Fourteenth Amendments: A Constitutional Paradigm for Determining the Admissibility of Hypnotically Refreshed Testimony, 78 J. OF CRIM. L. & CRIMINOLOGY 853, 856 (1988) (defining “confabulate” as “[to] fill gaps in [one’s] memory with plausible, but not necessarily accurate, data”).

9 Justice McCarthy made the same observation in his dissent in the Appellate

Division: “This . . . record could be especially important, considering defendant’s

testimony that they had consensual sex and struggled afterward when the victim

attempted to take his money.” McCray, 958 N.Y.S.2d at 525 (McCarthy, J.,

dissenting).

Judge Rivera’s dissent in the Court of Appeals cites this same memory

defect as illustrative of how the documents that were disclosed “did not reveal

the full range of medical and behavioral issues that implicate the complainant’s

credibility.” Ct. App. Op., 23 N.Y.3d at 208 (Rivera, J., dissenting).

The jury heard from the prosecutor that McCray’s account of consensual

sex required “believ[ing] him over everything else,” Prosecutor’s Summation at

783:12–15; but the jury never learned of the psychiatric evidence corroborating

McCray’s version of events. And there was no “everything else.” The physical

evidence, as the majority notes, “was consistent with both stories.” Maj. Op. at 3.

Testimony about the aftermath was also conflicting. McCray testified that

the complainant demanded money after sex, grabbed his pants when he refused,

and rifled the pockets for his wallet. She denied this behavior. The withheld

documents reflect, however, that “[s]he has developed strategies to get what she

10 wants from people,” including by acting impulsively in ways that endanger

herself and others, such as by “grabbing the steering wheel when [her] mom is

driving . . . .” July 2008 Clinical Diagnostic Formulation.

The prosecutor told the jury that someone so disturbed could not also be

“manipulative and clear-headed and crafty . . . .” Prosecutor’s Summation at

787:8–9. But the withheld documents demonstrate that at the same time the

complainant is having delusions she could have a clear enough head to grab

what she wanted. This, too, would have corroborated McCray’s testimony and

subverted the prosecution’s theory.

It is damning in a rape case if the defense can show that the complainant

had previously made false rape allegations. The withheld documents reveal that,

as early as 2004, the complainant reported that her father tried to rape her by

pinning her against a wall. That is of course what she claims McCray did when

he raped her. Relatedly, the withheld documents show that the complainant

experienced flashbacks to being sexually abused. In particular, the withheld

documents reflect that she has flashbacks to her father’s alleged sexual abuse,

and that role playing with her boyfriend would trigger flashbacks.

11 The Court recognized that the complainant’s accusation against her father

“provides the strongest basis for [McCray’s] argument on appeal,” Ct. App. Op.,

23 N.Y.3d at 200, but dismissed it for two reasons. First, the Court considered it

was “quite different” from the accusation against McCray. Id. But the defense (if

armed with the withheld documents) could easily have depicted the allegations

as quite similar: she was in the willing presence of an older man, who suddenly

pins her to a wall for rape. Second, the Court dismissed the 2004 accusation

against her father as too “far removed in time” to be probative of her 2009

accusation against McCray. Id. This was likewise unreasonable. The accusation

against her father would have been recent enough for the State to criminally

prosecute him; 2 surely it was recent enough to be relevant to McCray’s

prosecution.

2Depending on the severity of the crime, New York’s statute of limitations for sexual assault ranges from five to twenty years, N.Y. Crim. Proc. Law § 30.10(2)(a-1)–(a-2), 3(e) (McKinney 2019); for rape in the first degree and some other sexual offenses, there is no limitation period, § 30.10(2)(a), and for some sexual offenses committed against children, the limitation period does “not begin to run until the child has reached the age of twenty-three or the offense is reported to a law enforcement agency . . . whichever occurs earlier,” § 30.10(f). The complainant would have been about 14 years old when she reported that her father tried to rape her, and she had not yet reached the age of 23 at the time of McCray’s trial.

12 A social worker referred to the allegation that the father attempted rape as

“unfounded,” Undated Psych. Assessment, and the complainant’s mother doubted

it. 3 But neither was in a position to know; and, much more important, McCray’s

account would have been strengthened whether her father attacked her, or

whether she imagined the attack. If it happened, it would be powerful on cross-

examination; if it didn’t, it would be dynamite.

“Prior false rape complaints may be admissible when they suggest a

pattern casting substantial doubt on the validity of the charges made by the

victim or indicate a significant probative relation to such charges.” People v.

Blackman, 935 N.Y.S.2d 181, 188 (3d Dep’t 2011) (quotation marks and citation

omitted). Obviously, if the complainant’s allegation of rape against her father

were false or delusory, the defense would have had no trouble connecting the

episode to her encounter with McCray. But defense counsel, having never (even

now) seen the documents, had no opportunity to make an offer of proof. In any

event, as the Court recognized, even “[i]nadmissible evidence can be material

under Brady if it will be useful to the defense, perhaps as a lead to admissible

evidence or a ‘tool in disciplining witnesses during cross-examination.’” Ct.

3Some mentions of the allegation, and the mother’s denial, are either highlighted or crossed out.

13 App. Op., 23 N.Y.3d at 199-200 (quoting United States v. Gil, 297 F.3d 93, 104 (2d

Cir. 2002)).

The allegation against the complainant’s father, whether it was true or not,

would have been critical to the defense because it would have explained how the

complainant might truthfully testify to a rape that did not happen—as she would if

she had a flashback to her father’s sexual abuse during a consensual encounter

with McCray, just as (according to another withheld document) flashbacks were

triggered by consensual sex with her boyfriend. Moreover, given her

documented history of confabulation and significant memory distortion, defense

counsel would have been able to explain that her memory gaps from the night in

question were filled by details from her father’s sexual abuse; or, alternatively,

that she compensated for short-term memory distortion by confabulating details

quite apart from her history with her father.

The prosecutor told the jury that the complainant’s testimony could not

possibly have been “fantasy.” Prosecutor’s Summation at 778:1. The Court

adopted this false assumption, reasoning that the complainant “certainly did not

fantasize or misremember that she and defendant had a violent encounter: they

both had the wounds to prove it. And their descriptions of that encounter are so

14 starkly different that if one version is not a lie, the other must be.” Ct. App. Op.

at 199. But McCray testified to a violent tussle over money; so wounds do not

discredit his account. Much more important: the Court failed to recognize—and

the jury never learned—that the complainant’s version of events may have

resulted from a pathological misperception of the truth, rather than a lie.

At the risk of being obvious, the withheld documents would have

corroborated the weaker specifics of McCray’s testimony: the complainant’s

sudden turning on a person with whom she was in a sexual encounter, her

perception of consensual sex as rape, her impulsive grab to get the cash from his

pants. The withheld documents would have allowed jurors to reconcile the

conflicting accounts, treating his as true and hers as sincerely held delusion.

III

“The question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Taken together, the

15 withheld documents subvert the reliability of the complainant’s testimony and

would have turbocharged her cross-examination. As Judge Lynch has explained:

It is the role of the jury, fairly appraised of the facts then known, to weigh the strengths and weaknesses of the evidence before them, bearing in mind the inherent limitations on the victim’s ability to observe, remember, and report what he saw. . . . The justice of relying on the jury’s conclusion, however, depends critically on the assumption that the jury knew all of the relevant facts . . . .

Poventud v. City of New York, 750 F.3d 121, 140 (2d Cir. 2014) (in banc) (Lynch,

J., concurring).

IV

One apparent cause of the Court’s error was a failure to consider the

withheld documents in the way practicing lawyers would: as springboards for

investigation, as a mine for cross-examination, and as tools for shaping trial

strategy. In short, the Court failed to recognize the dynamic force of disclosure

in the hands of a lawyer.

Defense counsel armed with the withheld documents would not have been

limited to waving the pieces of paper in front of the jury. The power of such

documents is multiplied by their potential to corroborate, to direct investigation,

and to develop the defense theory of the case. It is not for the State (whether

16 prosecutor or judge) to pick which of these documents that bear on the sole issue

at trial would enable defense counsel to defend the client. If three documents out

of 5000 contain similar information, defense counsel might seek to admit all

three, or select the most salient one—or present none of them to the jury and

instead mine them for investigative leads. Brady material thus includes evidence

that supports a viable defense strategy. “The records that indicate an inability to

remember and potential history of fabrication would have been critical to the

defendant’s preparation and cross-examination of the complainant.” Ct. App.

Op., 23 N.Y.3d at 209 (Rivera, J., dissenting).

Accordingly, in Fuentes v. Griffin, 829 F.3d 233 (2d Cir. 2016)—another

word-against-word rape case—we granted the writ, ruling that the New York

Court of Appeals’ application of Brady “was objectively unreasonable” because it

failed “to make a reasonable assessment of the benefits to the defense of

exploring [the complainant’s] mental state as revealed in the [withheld

psychiatric document].” Id. at 250. In that case, the complainant alleged that

Fuentes raped her on the roof of her apartment building. Id. at 237. It was

undisputed that some sexual encounter occurred on the roof; so, as here, “the

issue for trial was whether the sex was consensual.” Id. Thus, as here, the

17 complainant’s (credible) testimony was essential to the prosecution’s case. Id. at

250–51.

The (single) suppressed document in Fuentes revealed that the

complainant had been depressed and suicidal for two years before the alleged

rape; and that she had a disorder that causes “feelings of inadequacy,” “excessive

anger,” and “chronic mood symptoms [that] may contribute to interpersonal

problems or be associated with distorted self-perception.” Id. at 249 (quotations

omitted). Because the trial testimony “presented two diametrically opposing

versions of what happened,” the key issue was the complainant’s “motivation for

accusing Fuentes of engaging in conduct to which she had not consented; and the

[withheld document] was pertinent to the issue of her motivation because it

identified a relevant mood disorder.” Id. at 252. The Court’s decision was

objectively unreasonable both because “the jury could well have given greater

credence to Fuentes’s version of the events” if it had known the complainant’s

psychiatric history, and because disclosure would have enabled defense counsel

“to develop this line of defense further.” Id.

Similarly, the non-disclosure here prevented counsel from developing an

effective line of defense. The central issue with the complainant’s credibility was

18 her delusion and distorted perception. But the majority opinion conflates

impairment of memory with delusion: the difference is between forgetting

something and remembering something that did not happen.

The withheld documents would fuel a powerful defense theory of the case,

as well as an impeachment strategy, neither of which could be viable based on

the disclosed documents alone. When the State “has a witness’s psychiatric

records that are favorable to the accused because they provide material for

impeachment, those records fall within Brady principles, and that the Supreme

Court has so recognized.” Id. at 247. The majority opinion considers arguments

made in this dissent, and engages with them, but that exercise underscores that

McCray’s own lawyers cannot advance arguments based on the undisclosed

documents because they still have not seem them.

The district court observed that the approximately 5000 pages of records

contain just a single mention of confabulation. The district court considered that

that was not much; but it is a great gift in a case that is all about credibility; and a

competent lawyer would conclude from the single notation that investigation

would be promising. Armed with the knowledge that the complainant had

previously confabulated stories, defense counsel could have sought elaboration

19 from the note’s author and others who treated her or knew her. Without timely

pre-trial access to the withheld documents, McCray’s counsel was prevented

from doing the job. Judge Rivera amplified this point in a compelling passage:

[I]n response to the prosecution’s strategy of characterizing the defendant as a manipulative, older man seeking to take advantage of a younger woman who acted in a sexually provocative manner, and who he could see suffered from some type of mental impairment, the defendant had to persuade the jury that the complainant’s mental health conditions would have led her to fabricate a story of a rape, or to cause her to believe and recount for the jury an incorrect version of the sexual encounter with the defendant. In that sense, the more the defendant sought to establish the general severity of the complainant’s mental health conditions, the more the jury could find persuasive the People’s version. Thus, in order for the defendant to present the complainant’s mental health condition objectively from the defense point of view—that she is too mentally ill to recall that she consented, or that she made up the whole story because of her illness—disclosure of records about her ability to recall events accurately and her capacity to fabricate events was crucial.

Ct. App. Op., 23 N.Y.3d at 211 (Rivera, J., dissenting).

V

It was the trial court that reviewed the complainant’s medical file and

made the initial error of nondisclosure. The Court of Appeals unreasonably

reviewed the trial court’s violation as a matter of discretion. See Ct. App. Op., 12

N.E.3d at 1081 (“In sum, the issue here is whether the trial court abused its

20 discretion in finding defendant’s interest in obtaining the records to be

outweighed by the complainant’s interest in confidentiality . . . .”). Federal law

affords no “discretion” to withhold evidence that is constitutionally required to

be produced. The question is one of due process. See Brady, 373 U.S. at 87. And

there is no allowable discretion to deprive a criminal defendant of his right to

due process.

VI

The State now doggedly defends a conviction that it obtained thanks to a

violation of due process. True, the initial mistake here was made by the trial

judge. With 5000 pages of a medical file, the process of review somehow broke

down. The critical documents were withheld from the prosecution as well as the

defense. But after the trial, the successive state courts and the district court—and

now my chambers—found documents that “put the whole case in . . . a different

light” and “undermine confidence in the verdict.” Banks v. Dretke, 540 U.S. 668,

698 (2004) (quoting Kyles, 514 U.S. at 435). A prosecutor who knowingly did

what the trial judge did would be a menace. But good faith is irrelevant under

Brady, 373 U.S. at 87, and functionally, there is no difference between an error by

21 the trial judge and a dirty deed by a prosecutor: the State has deprived the

defendant of a fair trial. To McCray, in jail for 22 years, it is all one.

It is emphatically the role of the prosecutor to correct a radical deficiency

in a prosecution even after the exhaustion of appeals. The prosecution’s interest

“is not that it shall win a case, but that justice shall be done.” Turner v. United

States, 137 S. Ct. 1885, 1893 (2017) (quoting Kyles, 514 U.S. at 439).

In Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009), an assistant

district attorney (“ADA”) took the initiative post-trial to obtain DNA results that

cleared the defendant, and later was sued by the defendant for failing to disclose

the results to defendant’s counsel for three months, id. at 118–20. We held that

the ADA was immune from suit because correcting a bad conviction is integral to

a prosecutor’s role as an advocate. Id. at 122–24. We reasoned: “[t]he DNA

testing obviously would have bearing on the advocacy work of deciding whether

to oppose Warney’s [post-trial] initiatives” because “[a] prosecutor has an

affirmative obligation, before filing an opposition, to ensure that the petition

should in fact be opposed.” Id. at 124.

On this present appeal, the majority has rigorously applied principles of

finality and deference. But those principles and constraints in no way bind a

22 prosecutor. A prosecutor who continues to enjoy a misbegotten victory is as

much a menace as one who contrives it. Here, the Attorney General knows from

successive appellate opinions that McCray, who is still in prison, was wholly

denied the right to defend himself. Yet the Attorney General labors hard to

maintain the advantage. The result here is that a person is more than halfway

through a 22-year prison sentence, without a trial that anyone can now deem fair,

and he is still without the opportunity to see the documents that could have

acquitted him. I don’t know what happened in that abandoned house; but it is

clear what is happening here. This is a sinister abuse. The last-ditch defense of

such a conviction by the Attorney General is disreputable. Were I a lawyer for

the State, I would not have been able to sign the brief it filed on this appeal.