McMillian v. Johnson

Opinion

------------------------------------------------------------ PROPST, District Judge, concurring in part and dissenting in part:

I concur in the court's opinion, except as to the holding in

the last paragraph of section IV.D.2. There, the court holds that

the district court erred in assessing the evidence's materiality

from a post-trial perspective rather than from the perspective of

a reasonable official in the position of Tate, Ikner, and Benson.

I think that the district court implicitly, if not explicitly,

considered "whether every reasonable official in the position of

Tate, Ikner, and Benson would understand that withholding those

particular pieces of evidence would undermine confidence in the

outcome of McMillian's trial." It is hard to see how a holding

that evidence is "clearly exculpatory" could suggest anything else.