FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRANKLIN MURDOCH, JR.,
Petitioner-Appellant,
No. 05-55665
v.
D.C. No.
ROY CASTRO, Warden; BILL CV 99-06900
LOCKYER, Attorney General, RSWL
Attorney General of the State of
OPINION
California,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
October 26, 2006—Pasadena, California
Filed June 12, 2007
Before: Myron H. Bright,* A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Bright
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
7133
7136 MURDOCH v. CASTRO
COUNSEL
Seymour I. Amster, Van Nuys, California, for the petitioner-
appellant.
Rama R. Maline, Deputy Attorney General, Los Angeles, Cal-
ifornia, for the respondent-appellee.
OPINION
TASHIMA, Circuit Judge:
For the second time, Charles Murdoch, a California state
prisoner, appeals from the judgment of the district court deny-
ing his petition for a writ of habeas corpus. In his previous
appeal, we held that the exclusion of a privileged letter could
violate a defendant’s Sixth Amendment right to confrontation
and cross-examination, depending on the content of the letter.
Murdoch v. Castro, 365 F.3d 699, 705 (9th Cir. 2004)
(“Murdoch I”). We therefore remanded for the district court
to review the letter and to determine whether the attorney-
client privilege must yield to the petitioner’s right of cross-
examination. Id. at 706. On remand, after reviewing the letter,
the district court held that there was no constitutional viola-
tion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and
we affirm.
I. BACKGROUND
On May 17, 1983, four men robbed the Horseshoe Bar in
Long Beach, California. In the course of the robbery, one
MURDOCH v. CASTRO 7137
bystander was shot and killed; another was stabbed and
severely wounded. The men recovered approximately $200
from the cash register and left behind a fingerprint. The crime
went unsolved until 11 years later, when advances in finger-
print technology enabled police to identify Dino Dinardo as
one of the perpetrators.
Officers arrested Dinardo on June 30, 1994, in Berkeley,
California. When first questioned, Dinardo denied any
involvement in the crime, but later recanted, admitting his
involvement in the robbery, and identifying Murdoch as one
of his accomplices. Both Dinardo and Murdoch were charged
with murder accompanied by special circumstances.
Dinardo was tried first. At a suppression hearing that pre-
ceded his trial, Dinardo testified that his confession to the
Long Beach police had been coerced, and that he had given
the confession in exchange for a promise that he would be
released to see his wife and daughter. Dinardo was convicted
and was sentenced to 25 years’ to life imprisonment. At sen-
tencing, the judge suggested to Dinardo that his sentence
could be reduced were he to testify against Murdoch. Dinardo
agreed and received in return a reduction of his conviction to
voluntary manslaughter and a reduced sentence of 12 years’
imprisonment.
Dinardo was a key witness at Murdoch’s trial. He testified
that, in 1983, Murdoch had approached him “to do a job” and
that the two of them, together with two other men, robbed the
Horseshoe Bar. According to Dinardo, when they entered the
bar, Murdoch carried a .22 caliber rifle and announced loudly,
“Don’t nobody move. This is a stick-up.” Dinardo took this
as his cue to empty the cash register. He fumbled with the
buttons on the register, heard a gunshot, emptied the register,
and ran out the back door, joining the other two men in the
getaway car, with Murdoch joining them about a minute later.
He recalled seeing Murdoch in possession of the rifle both in
the bar and in the car. Dinardo testified that the first time he
7138 MURDOCH v. CASTRO
learned that someone had been shot in the robbery was the
day of his arrest, 11 years after the crime.
During Murdoch’s trial, Murdoch’s attorney, Dinardo’s
attorney, the prosecutor, and the presiding judge discussed a
letter addressed to Dinardo’s former counsel. The letter was
first brought to the court’s attention by the prosecutor, who
indicated that in her interviews of Dinardo, he told her of the
existence of a letter in which he, Dinardo, stated that he was
coerced by the police into implicating Murdoch in the crime.
Dinardo’s new counsel asserted the attorney-client privilege
and work-product doctrine as grounds for refusing to disclose
the letter. The court concluded that Dinardo’s letter to his for-
mer counsel was protected by the attorney-client privilege and
thus could not be used, on cross-examination, to impeach
Dinardo.
Although Dinardo was not cross-examined about the letter,
Murdoch’s counsel succeeded in eliciting testimony that chal-
lenged Dinardo’s credibility as a witness. Dinardo testified
that he had been convicted of the same murder for which
Murdoch was now being tried and that by testifying in Mur-
doch’s trial, he would “get out in about five years” rather than
21 or more years. He admitted that when he was initially
questioned by the police, he had lied and denied that he had
ever been inside the Horseshoe Bar. He admitted that he
would have done “whatever it took” to get out of custody and
be reunited with his daughter. He also testified to convictions
for grand theft in 1982 and petty theft in 1984. On re-direct
examination by the prosecutor, Dinardo testified that during
the police questioning, he named a “Charles or Chuck” as
someone else involved in the crime, but he could not remem-
ber the last name. He was shown photographs at the end of
the interview, and he identified Murdoch as one of his accom-
plices. On re-cross, he stated that he had testified in his own
trial that his confession had been coerced. He also admitted
that, had the fingerprints not identified him as one of the rob-
MURDOCH v. CASTRO 7139
bers, he would have continued to lie to the police about his
involvement.
In addition to Dinardo, other witnesses from the Horeshoe
Bar testified and provided in-court identification of Murdoch.
The bartender, Dyanne Spence, described looking into Mur-
doch’s eyes down the barrel of a rifle pointed at her face.
“He’s been scaring me for years,” she said. She also testified
that she had identified Murdoch at a live lineup at the county
jail in 1994 and that she was sure “beyond a shadow of a
doubt” that Murdoch had committed the crime.
Murdoch was convicted of first-degree murder with a
robbery-murder special circumstance, and sentenced to life
imprisonment without parole. The California Court of Appeal
affirmed the conviction, and denied Murdoch’s petition for a
writ of habeas corpus. The California Supreme Court denied
Murdoch’s petition for review.
Murdoch then filed a federal petition for a writ of habeas
corpus, which the district court dismissed. On appeal, we
vacated the order denying Murdoch’s habaeas petition and
remanded the case to the district court stating:
Today, we address a situation where a substantial
showing has been made that, depending upon the
content of Dinardo’s letter, the Confrontation Clause
and attorney-client privilege are potentially at odds
— a set of facts the Supreme Court has not yet
examined. Its precedents, however, clearly provide
that evidentiary privileges or other state laws must
yield if necessary to ensure the level of cross-
examination demanded by the Sixth Amendment.
Murdoch I, 365 F.3d at 702. We concluded that if the contents
of Dinardo’s letter “are as generally described by the prosecu-
tor and as Murdoch believes,” then Murdoch “has arguably
met his burden” of showing that the jury might have received
7140 MURDOCH v. CASTRO
a significantly different impression of the witness’ credibility
had Murdoch been able to pursue his proposed line of cross
examination. Id. at 705. General impeachment for bias impli-
cated Dinardo’s reliability to a lesser extent than actual state-
ments inconsistent with his testimony, such as those which the
letter purportedly contained. Id. Without knowing the con-
tents of the letter, however, we could not make a determina-
tion of whether Murdoch’s confrontation rights had been
violated. We accordingly remanded the case to the district
court with instructions that the court obtain the letter, inspect
it in camera, and determine whether the state court’s decision
to deny Murdoch access to the letter violated Murdoch’s Sixth
Amendment right of confrontation. Id. at 706.
On remand, the magistrate judge, in his report and recom-
mendation, began from the premise that “[e]ssentially, the
Ninth Circuit held that the attorney-client privilege might
have to yield in a particular case if the right of confrontation
would be violated by enforcing the privilege.” The report
addressed four issues: (1) whether the contents of the letter
were examined by the state courts during the petitioner’s post-
conviction proceedings; (2) whether the state courts weighed
the probative value of the letter and petitioner’s right to con-
front witnesses against Dinardo’s attorney-client privilege; (3)
whether weighing the rights at stake would indicate a consti-
tutional violation; and, if so, (4) whether the violation repre-
sented harmless error.
Regarding the first two issues, the magistrate judge con-
cluded that although the state courts had read the contents of
the letter, their decisions were “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
within the meaning of 28 U.S.C. § 2254(d)(1), in that they
failed to perform any balancing of Murdoch’s Sixth Amend-
ment rights against the privilege.
The report next examined the contents of the letter to deter-
mine whether a constitutional violation had occurred. It con-
MURDOCH v. CASTRO 7141
cluded that the letter’s intrinsic probative value was low,
given that of the four factual assertions in the letter, “trial tes-
timony rebutted the first three, and half of the fourth.” This
observation segued into a discussion of Murdoch’s rights to
cross-examine, which in turn relied on an analysis of the pro-
bative value of the letter. The magistrate judge summarized
the contents of the letter as asserting the following facts: (1)
After Dinardo’s arrest in Berkeley, Long Beach Police Detec-
tive Pavek coerced a statement from Dinardo by promising
not to charge Dinardo in exchange for Dinardo’s statement;
(2) In his statement, Dinardo was forced to identify petitioner
Murdoch as a participant in the crime; (3) Dinardo does not
actually know Murdoch, although Dinardo is acquainted with
Murdoch’s brother; and (4) Murdoch and Dinardo did not
commit any crime.
The magistrate judge then summarized trial testimony that
rebutted these factual assertions. Because the factual asser-
tions in the letter had been “contradicted by trial testimony”
or “were demonstrably false in the light of other testimony,”
the “intrinsic probative value of the letter was and is low.”
Thus, the exclusion of the letter from evidence did not sub-
stantially diminish Murdoch’s right to effective cross-
examination. The magistrate judge also concluded that the
decision to exclude the letter was subject to harmless error
analysis, and, further concluded, under the Brecht v.
Abrahamson standard, 507 U.S. 619, 637 (1993), that there
was no “grave doubt” as to whether the jury would have
reached a different result had the letter been admitted. While
acknowledging that “Dinardo’s testimony was crucial,” the
magistrate found that “Dinardo’s prior inconsistent statement
was inextricably linked with other statements which either
conflicted with other evidence or were demonstrably false.”
Therefore, he concluded that any error resulting from the
exclusion of the letter was harmless.
The district court adopted the findings and recommendation
of the magistrate judge and denied Murdoch’s habeas petition.
7142 MURDOCH v. CASTRO
Murdoch filed a timely notice of appeal. We granted a certifi-
cate of appealability on the issue of “whether the district court
erred by ruling that the state trial court did not violate the
Sixth Amendment right to confrontation when it denied him
access to Dinardo’s letter.”
II. STANDARD OF REVIEW
We review de novo the district court’s denial of a § 2254
habeas petition. Insyxiengmay v. Morgan, 403 F.3d 657, 665
(9th Cir. 2005). Under the Antiterrorism and Effective Death
Penalty Act of 1996, a habeas petition challenging a state
court conviction will not be granted unless the decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
III. DISCUSSION
As noted, this is the second time we have examined
whether California’s attorney-client privilege bars Murdoch
from seeing or using an exculpatory letter written by the
state’s witness to his lawyer. The starting point of our analysis
is thus the law-of-the-case doctrine, which “ ‘posits that when
a court decides upon a rule of law, that decision should con-
tinue to govern the same issues in subsequent stages in the
same case.’ ” Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 816 (1988) (quoting Arizona v. California, 460
U.S. 605, 618 (1983)). “This rule of practice promotes the
finality and efficiency of the judicial process by ‘protecting
against the agitation of settled issues.’ ” Id. (quoting 1B J.
MOORE, J. LUCAS, & T. CURRIER, MOORE’S FEDERAL PRACTICE
118 (1984)). “For the doctrine to apply, the issue in question
must have been ‘decided explicitly or by necessary implica-
tion in [the] previous disposition.’ ” Milgard Tempering v.
Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990) (quot-
MURDOCH v. CASTRO 7143
ing Liberty Mutual Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th
Cir. 1982)) (alteration in original).1
[1] In Murdoch’s prior appeal, we held that, under the right
set of facts, Supreme Court precedent suggests the Sixth
Amendment right to confrontation could support admission of
the letter, even against a valid claim of attorney-client privi-
lege. Murdoch I, 365 F.3d at 706. We vacated the district
court’s denial of Murdoch’s habeas petition and remanded the
case with instructions that the district court review the letter
in camera to determine “whether, as applied to the totality of
facts in this case, the denial of access to Dinardo’s letter
resulted in an unconstitutional denial of Murdoch’s Sixth
Amendment right to confront witnesses.” Id. A necessary
implication of our decision — and hence, law of the case —
is that the confrontation clause could support introduction of
the letter as evidence. Otherwise, there would have been no
ground upon which to vacate the decision of the district court.2
[2] We therefore proceed to the question of whether Mur-
doch’s Sixth Amendment rights were violated by the exclu-
sion of the privileged letter.3 The Sixth Amendment
1
No party contends that the law of the case does not apply. Thus, we
need not inquire whether any exception to that doctrine should apply. See
United States v. Lummi Indian Tribe, 235 F.3d 443, 452-53 (9th Cir. 2000)
(enumerating the exceptions to the doctrine).
2
Also necessarily implicit in our decision in Murdoch I was that
Supreme Court precedent had “clearly established,” as required by 28
U.S.C. § 2254(d)(1), that under the proper circumstances, shielding a wit-
ness’ letter to his attorney under the attorney-client privilege could violate
a defendant’s confrontation rights under the Sixth Amendment. We note
that other circuits have arrived at the same conclusion as Murdoch I that,
under Supreme Court precedent, the attorney-client privilege must some-
times yield to the Sixth Amendment right to confrontation. See Mills v.
Singletary, 161 F.3d 1273 (11th Cir. 1998); United States v. Rainone, 32
F.3d 1203, 1206 (7th Cir. 1994).
3
Like the panel before us, we are bound by the state court’s interpreta-
tion of its evidence law — that Dinardo’s letter is protected by the
attorney-client privilege. Murdoch I, 365 F.3d at 703 n.1 (quoting Jammal
v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (“We are not a state
supreme court of errors; we do not review questions of state evidence
law.”)).
7144 MURDOCH v. CASTRO
guarantees Murdoch the right “to be confronted with the wit-
nesses against him.” U.S. CONST. AMEND. VI. “Confrontation
means more than being allowed to confront the witness physi-
cally. ‘Our cases construing the (confrontation) clause hold
that a primary interest secured by it is the right of cross-
examination.’ ” Davis v. Alaska, 415 U.S. 308, 315 (1974)
(quoting Douglas v. Alabama, 380 U.S. 415, 418 (1965)).
[3] Although Murdoch’s attorney cross-examined and re-
cross-examined Dinardo, this alone does not resolve whether
Murdoch was afforded his right to cross-examination, because
“the Confrontation Clause requires that a defendant be given
an opportunity for effective cross-examination.” Murdoch I,
365 F.3d at 704 (emphasis added). Effectiveness requires that
“the trier of fact [have] a satisfactory basis for evaluating the
truth of the prior statement.” California v. Green, 399 U.S.
149, 161 (1970). “When exploring the credibility of a prose-
cution witness who testifies against a criminal defendant, it is
axiomatic that the defendant may employ the witness’s prior
inconsistent statements in order to impeach the credibility of
the witness.” United States v. Adamson, 291 F.3d 606, 612
(2002). “ ‘Wide latitude in cross-examination is especially
appropriate when the key witness is an accomplice of the
accused.’ ” Murdoch I, 365 F.3d at 704 (quoting Burr v. Sulli-
van, 618 F.2d 583, 587 (9th Cir. 1980)); see also United
States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994) (the
right to cross-examination is “ ‘especially important with
respect to accomplices or other witnesses who may have sub-
stantial reason to cooperate with the government’ ”) (quoting
United States v. Onori, 535 F.2d 938, 945 (5th Cir. 1976)).
Here, Murdoch’s counsel was able, by effective cross-
examination, to raise doubts as to Dinardo’s biases and moti-
vations. Dinardo testified that his sentence was reduced to
“about five years” in exchange for his testimony. He testified
about his previous theft convictions, both before and after the
robbery in question. He testified to prior inconsistent state-
ments: that at the time of his arrest he initially denied any
MURDOCH v. CASTRO 7145
involvement in the crime; that he “would have said whatever
it took to get out of custody” including “point[ing] out some-
one else” involved in the crime; that he pleaded “not guilty”
at his own trial and “avoid[ed] responsibility” for the crime;
and that his story had changed from earlier claims that the
police had coerced his confession. Dinardo equivocated on
the stand when confronted with prior inconsistent testimony:
“I testified to that? . . . I — I can’t remember testifying like
that. If I could see it, I could probably remember.” In sum,
Dinardo’s cross-examinations were effective.
[4] The confrontation clause “guarantees only ‘an opportu-
nity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the
defense might wish.’ ” United States v. Owens, 484 U.S. 554,
559 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 739
(1987)). “ ‘A limitation on cross examination does not violate
the Confrontation Clause unless it limits relevant testimony
and prejudices the defendant, and denies the jury sufficient
information to appraise the biases and motivations of the wit-
ness.’ ” United States v. Bridgeforth, 441 F.3d 864, 868 (9th
Cir. 2006) (quoting United States v. Holler, 411 F.3d 1061,
1066 (9th Cir. 2005)). We conclude that here the jury was
provided ample information on which to measure Dinardo’s
biases, particularly given his admission that he earlier denied
any involvement on his or Murdoch’s part in the crime.
Although we can imagine a letter of such probative value
that its exclusion would render cross-examination constitu-
tionally defective, Dinardo’s letter is not such a letter. We
agree with the reasoned analysis of the magistrate judge that
the letter is of low probative value. The assertions in the letter
run contrary to the testimony of Murdoch’s brother, his for-
mer roommate, the investigating detective, the eye-witnesses
at the crime, and the fingerprints at the crime scene. Although
questioning about the letter may have added some marginal
benefit to Murdoch’s cross-examination, its absence did not
7146 MURDOCH v. CASTRO
deny the jury sufficient information to appraise the biases and
motivations of the witness.
[5] In light of the low probative value of the letter and the
otherwise effective cross-examination, we hold that Mur-
doch’s constitutional right to confrontation did not require the
disclosure of Dinardo’s letter to Murdoch’s counsel.4 Accord-
ingly, the district court’s denial of Murdoch’s petition for a
writ of habeas corpus is AFFIRMED.
BRIGHT, Circuit Judge, dissenting:
Persuaded by a jury’s verdict against him, Dino Dinardo
now admits his role in the robbery of the Horseshoe Bar in
1983 and murder of a bystander. Buoyed by the hope of a
lesser sentence and his professed remorse for his role in the
crime, Dinardo became the state’s central witness against
Charles Murdoch. In Murdoch I this court concluded that
“[t]he record strongly suggests that without Dinardo’s accom-
plice testimony, the prosecution’s case against Murdoch was
weak.” 365 F.3d 699, 701 (9th Cir. 2004).
We must now determine whether a letter, given by Dinardo
to his counsel before his trial but withheld from Murdoch
because of the attorney-client privilege, would have been so
crucial to Murdoch’s effective cross-examination of Dinardo
that the court’s failure to disclose it violated Dinardo’s Sixth
Amendment right to confrontation. The majority discounts the
value of the letter because it contains the routine and unsub-
stantiated denials of a man charged with a crime and because,
in any event, Dinardo was effectively cross-examined without
it. I reach a different conclusion and therefore respectfully
dissent.
4
Because we hold that Murdoch’s Sixth Amendment rights were not
violated, we need not reach the issue of whether a violation would have
constituted harmless error under Brecht, 507 U.S. at 637.
MURDOCH v. CASTRO 7147
I.
The court in Murdoch I, without the benefit of the privi-
leged letter which was then unavailable, resolved a threshold
question: it concluded that a criminal defendant’s rights under
the Sixth Amendment may overcome a third party’s assertion
of the attorney-client privilege. See id. at 706. It also specu-
lated that Dinardo’s letter could provide additional impeach-
ment evidence that would render his testimony useless to the
state, and thus remanded the case for the district court to
obtain and review in camera the contents of the letter:
Other than Dinardo’s predictable denial when
arrested for his involvement in the crime, the privi-
leged letter is the only evidence of prior (purport-
edly) inconsistent statements by Dinardo regarding
Murdoch’s involvement in the robbery and murder.
General impeachment for bias based on his plea bar-
gain questioned Dinardo’s reliability and trustwor-
thiness in a much different (and lesser) way than
would actual statements inconsistent with what he
was then saying on the stand. Thus, Murdoch’s abil-
ity to fully cross examine Dinardo was severely lim-
ited by the privilege ruling.
Murdoch I, 365 F.3d at 705. We, however, are not limited to
engaging in conjecture. The text of the letter is now before us.
Because the attorney-client privilege still shields the letter
by virtue of the majority’s opinion, I shall not interfere with
the privilege by describing the letter’s content in any greater
detail than the majority or the magistrate judge. It is, however,
possible to accurately and almost fully reconstruct the letter
from those materials and Dinardo’s testimony against Mur-
doch. I have endeavored to do so here.
Dinardo’s letter is dated December 1, 1994, about five
months after his arrest on June 29, 1994. The robbery and
7148 MURDOCH v. CASTRO
murder occurred over eleven years earlier on May 17, 1983.
At the time of his arrest and also at the time he wrote the let-
ter, Dinardo knew that a fingerprint found on the Horseshoe
Bar’s cash register connected him to the crime. His testimony
at Murdoch’s trial also indicates that, on his initial arrest, he
was unaware that the police suspected him of complicity in
the murder that occurred during the robbery. Dinardo thought
the police had arrested him only for robbery, but learned of
the murder charge when he arrived at the jail in Long Beach,
California.
This is my reconstruction of the letter that Dinardo sent to
his counsel as he awaited trial:
I would like to make a statement about the facts sur-
rounding my arrest for robbery and murder. I was
taking care of my young daughter when Long Beach
police arrested me at my home in Berkeley. Two
policemen, Detective Pavek and his partner, took me
to the Berkeley Police Department and interviewed
me. I wanted to get back to my daughter as I worried
about her welfare. At that time, Detective Pavek
coerced a statement from me and promised not to
charge me if I made a statement that Charles Mur-
doch participated in the crime. But, I do not actually
know Mr. Murdoch, although I know his brother.
Mr. Murdoch and I did not commit any crime.
I draw particular attention to the final sentence, which I take
from the magistrate judge’s characterization of the letter: Mr.
Murdoch and I “did not commit any crime.”
The magistrate judge asserted that this statement is a denial
both of Dinardo’s participation in the crime and Murdoch’s.
As such, he continues, it is at least half false because police
found Dinardo’s fingerprint on the cash register. However, it
is clear in the letter that Dinardo does not disavow his own
participation in the crime. After all, he knew that he had left
MURDOCH v. CASTRO 7149
his fingerprint. The sentence serves, at least implicitly, to say
that Murdoch was not with Dinardo at the scene of the crime,
which written statement directly contradicts Dinardo’s trial
testimony.
What a boon to Murdoch. After showing Dinardo the letter
to refresh his recollection, Murdoch’s counsel could have
undermined any reliance on his testimony that Murdoch par-
ticipated in the crime. The majority depicts Dinardo’s letter as
“run[ning] contrary to” his and others’ testimony at Mur-
doch’s trial. I agree, but the truth of Dinardo’s statements in
the letter is beside the point. Murdoch’s counsel was able on
cross-examination to show only that Dinardo initially denied
his involvement in the crime, made some inconsistent state-
ment, and, because he hoped to gain a reduction of his sen-
tence, had an incentive to provide testimony favorable to the
state regardless of its truthfulness.
The majority concludes this was sufficient to undermine the
jury’s confidence in Dinardo but, as this court in Murdoch I
suggested, general impeachment is inferior to impeachment
based on a prior inconsistent statement. See Murdoch I, 365
F.3d at 705.
The letter and its disavowal of Murdoch’s involvement in
the crime would have been the pièce de résistance, leading
inextricably to the conclusion that Dinardo was not only gen-
erally unreliable but also untrustworthy regarding the one ele-
ment of his testimony that the jury (as its verdict
demonstrates) must have believed.
The concluding question on cross-examination of Dinardo
seems obvious: “Were you lying then or are you lying now?”
What juror would give credence to any statement of Dinardo?
The prosecution’s case relying on this lying witness would
collapse.
7150 MURDOCH v. CASTRO
II.
The remaining evidence, as the court in Murdoch I sug-
gested when it remarked that the state’s case was otherwise
“weak,” 365 F.3d at 701, cannot sustain Murdoch’s guilt. The
evidence consisted primarily of three eyewitness identifica-
tions, but each is flawed. Dyanne Spence, a bartender at the
Horseshoe Bar, provided the most confident identification
after viewing Murdoch in a 1994 live line-up, testifying that
he carried the rifle during the robbery “beyond a shadow of
a doubt.” But, at the time of the crime, she could not posi-
tively identify his image in a photographic line-up. Carol Hal-
liburon, a patron of the bar, testified that Murdoch “look[ed]
very similar” to the rifle-bearer. Finally, Edward Snow,
another patron, equivocated when he testified:
Q Do you see anybody in the courtroom today
that you saw that night?
A It’s been 13 years. And I can’t be positive.
Q Do you see somebody who looks familiar?
A I would say the person sitting next to the gen-
tleman here — [Murdoch]
Other testimony demonstrated only a social relationship
between Dinardo and Murdoch. Without belief in Dinardo’s
accomplice testimony, this collection of tenuous identifica-
tions is alone insufficient to relegate Murdoch to prison for
life without the possibility of parole.
III.
The value of Dinardo’s letter to Murdoch’s counsel is
unquestionable. Our examination of the letter following the
court’s remand in Murdoch I has borne out the prior court’s
suspicion. Murdoch may have been able to generally impeach
MURDOCH v. CASTRO 7151
Dinardo without the letter, but the letter would have provided
a prior inconsistent statement undermining the heart of his
testimony. See Murdoch I, 365 F.3d at 705. Its impact would
not have been marginal, as the majority concludes, but rather
decisive, and therefore the writ of habeas corpus should be
granted.