(dissenting) — The prosecution withheld documents proving Timothy Hicks, a jailhouse informant who testified against Jonathan Gentry, had an incentive to lie about a man on trial for his life. My confidence is shaken that, had the truth been known, at least one of the twelve jurors would have spared Gentry’s life. I would therefore yield to controlling Supreme Court precedent, grant the petition, and remand for a new trial on the penalty phase of this proceeding.
In the seminal case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court held prosecutorial disclosure and the due process right to a fair trial go together:
the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
Brady, 373 U.S. at 87 (emphasis added). The requirement is strictly enforced as reversal is required any time evidence is withheld where
there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (emphasis added).
The rule established by the Supreme Court in Brady and Bagley holds due process is denied when the information *419withheld by the prosecution undermines confidence in the outcome of the penalty phase of the proceedings. Whether the prosecution withheld the evidence in good faith is irrelevant: the touchstone is simply whether withholding the evidence undermines confidence in the outcome. To apply the test, we must therefore consider: (1) the probative value of the material withheld, and (2) the possible effect on the outcome of the proceeding. To reverse, we need not determine that the outcome would necessarily be different, only that our confidence is shaken that it would necessarily be the same.
1. Probative Value of Evidence Withheld
At Gentry’s trial Timothy Hicks, a jailhouse informant, testified that while he was imprisoned with Gentry, Gentry not only confessed to murdering this young girl, but called her a “bitch,” callously blaming the victim by claiming this small child was leading him on. Report of Proceedings (RP) at 4489 (June 4, 1991).19 Hicks also testified that he received no benefit from the state in exchange for this damning testimony against the accused. RP at 4491 (June 4, 1991). In initial closing arguments the prosecution made much of Gentry’s reference to his young victim as a “bitch,” using the term no less than 13 times. RP at 5400-19 and 5542-43 (June 25, 1991). The prosecution’s emphasis of the word “bitch” added nothing to its proof of Gentry’s guilt. However, it would inflame the listener’s anger at Gentry for further demeaning his innocent victim by referring to her in such a cold and remorseless way, thus increasing the likelihood that the jury would find no mercy in their hearts for such a callous killer. The prosecution also asserted Mr. Hicks must be believed because “[h]e didn’t try to hide anything from you. He’s not getting anything. He *420didn’t ask for anything,” RP at 5545 (June 25, 1991), and further elaborated that “[t]he defense can show absolutely no bias and no reason why Timothy Hicks came forward, except that the defendant told him about it at that card table in Shelton, Washington.” RP at 5545-46 (June 25, 1991). Of course, in truth, the defense could make no such showing because the prosecution withheld important information the defense could have used to impeach Hicks.
In closing arguments in the penalty phase the prosecution again emphasized that Gentry had referred to his victim as his “bitch,” potently juxtaposing Gentry’s cruelty and callousness against the powerful image of an innocent young girl picking flowers: “[a]nd what you saw and what you heard at the guilt phase was not that Cassie Holden was this defendant’s bitch, but that she was a little girl, out looking for some flowers.” RP at 5798 (July 2, 1991). This image would likely sway the mind of even the most merciful juror toward imposition of the death penalty.
Long before Gentry’s trial his attorneys demanded the state disclose all information “within its knowledge, possession or control, or which by the exercise of due diligence, might become known to it”:
10. To indicate the relationship, if any, of the government’s witnesses to the prosecuting authority.
11. To state whether or not an informant was involved and whether he/she will be called as a witness at any hearing or trial in this matter. To state the name and address of the informant or claim and defend the privilege of non-disclosure. If the informant does testify, defendant specifically requests that the government disclose the full extent of any cooperation and/or plea agreement entered into with the informant including identifying the full range of any benefits which the government has orally or in writing agreed to confer upon the informant explicitly or implicitly in return for his or her cooperation and testimony. To state whether the informant was under investigation for any criminal offense, charged with any criminal offense, awaiting sentencing upon *421conviction for any criminal offense, or on community supervision, probation or parole at the time of the alleged offense.
Clerk’s Papers (CP) at 194, 196 (emphasis added). To this request for disclosure the state responded with a single word—“None.” CP at 215.
But unbeknownst to Gentry’s defense team, on April 8, 1991, the Kitsap County prosecuting attorney received a letter from Hicks. The prosecutor now claims he was not required to disclose this letter because Hicks was “not asking me for a benefit, he’s asking a question.” First Am. Personal Restraint Pet., Ex. 29, at 16. But we, and the reader, can now easily test the truth of this rationale for nondisclosure by simply reading the letter, reproduced here in full:
Dear Sir,
I still have “great” concern over my parole status. I have no intentions of “boxing” myself into a compromising situation. Month after month I review the results of the parole board’s actions on people’s cases. Some of these cases are not unlike my own. Many times these people are given additional years to do as a result of being found un-parol[ ]able by the parole board. I am in limbo, I have no idea of the intention of the board towards my case.
As you know, I have voiced these concerns to you on the phone.
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One day while working on the passenger boat; I had the chance to speak to Parole Board member Carlson. I explained my circumstances (my case) he “thought” I would not see them again since my parole was never violated.
Could you “please” contac[t] Mr. Carlson at the Parole Board and obtain the official position of the board. Will I have to see them before I get out in March 1993. If I do, I have tremendous reservations testifying in the Gentry Case. I “need” to know where I stand before I go to court. I can’t go to court, *422and say what is true and correct, with the possibility of spending 3 or 4 years “inside” a
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major institution. You see, I am less than 3 years to my release date, that factor is what affords me minimum custody status. If the board gives me more time, I would be sent back inside. Life would not be pleasant if that happened.
I am not backing out on my position on the Gentry Case. My Values and commitment are steadfast. My concerns are genuine; please help me understand my position by contacting the board.
This is all I ask for my appearance in court.
If you wish, we possibly could talk on the phone again.
Respectfully
Tim Hicks
Resp. to Personal Restraint Pet. and Authorities, App. O (emphasis added) (Letter written by Tim Hicks to Kitsap County Prosecuting Attorney (date-stamped “Received” Apr. 8, 1991)).
Contrary to the majority’s claim that “[t]here is ... no circumstantial evidence the informants benefited from their testimony” as all informants had been sentenced prior to testifying (Majority at 398), the record before us clearly shows upon receipt of Hicks’s letter the prosecutor telephoned the Department of Corrections (First Am. Personal Restraint Pet., Ex. 29, at 16), and immediately following this call the Indeterminate Sentence Review Board in fact changed Hicks’s parole status to his benefit. First Am. Personal Restraint Pet., Ex. 45. It further appears, without dispute, that although the prosecutor provided Gentry’s lawyers some information about Hicks in a letter of April 10, 1991 (First Am. Personal Restraint Pet., Ex. 11), the prosecutor did not disclose the Hicks letter of April 8, nor even acknowledge its existence. In fact the letter was not discovered by Gentry’s attorneys until *423after Gentry’s trial and the consequent imposition of the supreme penalty.
The withheld letter speaks for itself. Hicks threatened not to testify absent assistance from the prosecutor. Admittedly the letter prompted that assistance and the assistance yielded results positive for Hicks.20 Had the defense possessed this information at the time of trial undoubtedly it would have used it in a serious effort to attack Hicks’s credibility. Even if the prosecutor did not perceive his telephone call to the Department of Corrections as actually providing a “benefit” to Hicks, from Hicks’s perspective a causal relation between his testimony and favorable treatment would have been a more than reasonable inference, thus providing an arguable incentive to misrepresent the facts regarding Gentry for selfish gain. But nondisclosure denied the defense this basis for impeachment. And not only was the letter withheld from the defense, but in closing the prosecution capitalized on its own nondisclosure by arguing Hicks did not get anything for his testimony and had no ulterior reason for coming forward beyond good citizenship.
2. Possible Effect on Outcome
Although Smith and Dyste testified that Gentry used the word “bitch” to describe his victim (RP at 14 (June 3, 1991); RP at 4440 (May 31, 1991)), neither had previously so stated to the police as evidenced in the police reports, and Gentry was able to attack their credibility on that basis. RP at 5475 (June 25, 1991). However, as the prosecution pointed out, the “bitch” testimony was foreshadowed by the police report of Hicks’s anticipated testimony. RP at 5543 (June 25, 1991). Thus absent the suppressed letter the defense was without a strong basis to challenge the credibility of this key witness.
*424Under Brady we must ask whether the failure to disclose Hicks’s letter to Gentry’s defense undermines judicial confidence in the outcome. “Undermine” means “to weaken or ruin by degrees.” Webster’s Third New International Dictionary 2489 (1981). Brady therefore asks not whether the outcome would probably have been different if the evidence had not been withheld, but merely whether our confidence in that outcome is weakened. Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (“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.”).
If at the death penalty phase of these proceedings Hicks’s testimony could have affected the decision of but a single juror, the standard has been met. Had each juror believed Hicks as the prosecution urged (and they probably did given the outcome) each could well have been more inclined to impose death based on a well-founded and unrebutted belief that Gentry was a cold, calculating and remorseless killer who, even after the death of his innocent child victim, would demean her as a “bitch.” The prosecution argued such a man merited no mercy—and we now know for a fact no mercy he received. See State v. Lord, 117 Wn.2d 829, 907, 822 P.2d 177 (1991) (“While he [the defendant] acknowledged doing ‘terrible’ things in his life, he showed no remorse for any of his crimes. There was sufficient evidence for a rational trier of fact to find that leniency was not merited.”), cert. denied, 506 U.S. 856 (1992).
When a jury is asked to consider imposing the death penalty it deliberates the question: “Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?” RCW 10.95.060(4). Each juror must answer the question in the affirmative before the death penalty is imposed. Id. A change of heart by even a single juror will spare the life of *425the accused. This is necessarily a very subjective exercise, dependant upon the values, attitudes and beliefs of each juror as applied to the evidence before him or her. Unlike evidence to establish guilt, the basis of the decision each juror must make on the death penalty issue cannot be objectively quantified. The jury may consider “any relevant factors” in reaching its determination. RCW 10.95.070. As each deliberates his or her individualized answer to the question, each juror will likely consider different factors to be most relevant and will likely weigh each factor differently. Therefore, when impeachment information about an inflammatory witness is withheld, one cannot determine with certainty from the remote view of the appellate court, on a cold record, whether presentation of the evidence would have induced any one jury member to change his or her mind, thus sparing the petitioner’s life. Therefore it must be concluded withholding such information “undermines confidence” in the outcome of the penalty phase of the proceedings.
3. Letter Not Otherwise Obtainable
As a fallback the majority would deny the condemned a fair trial by relying upon our statement in Benn that there is no Brady violation “ ‘if the defendant, using reasonable diligence, could have obtained the information’ at issue.” In re Personal Restraint of Benn, 134 Wn.2d 868, 916, 952 P.2d 116 (1998) (quoting Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994)).
In Williams the defense argued Brady was violated when the prosecution failed to provide the full text of a witness’s statement. Similarly in Benn we rejected a claim that Brady was violated when a summary of a fire marshal’s report had been produced, but the whole text of the report had not. In both instances we held because the defendant could have obtained the information with reasonable diligence, there was no Brady violation.
Here, the majority claims the Benn rationale excuses the nonproduction because the prosecution provided defense *426attorneys with Hicks’s criminal history. But criminal history is no substitute for the letter and it would require much more than “reasonable diligence” to discover even the existence of Hicks’s letter secreted in prosecution files, much less obtain it, from simple disclosure of Hicks’s criminal history.
Unlike Benn and Williams wherein the defendants were supplied with a summary of the document they claimed to be improperly withheld, Gentry’s attorneys were not supplied with such a summary, nor were they provided any indication the letter even existed. To the contrary, based on the categorical denial of the prosecution, Gentry’s attorneys were entitled to rely on the prosecution’s response that no such documents even existed. Defense lawyers are entitled to trust the honesty of their adversaries. RPC 3.8(d); United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (“[A]n incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.” (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))).
Given the prosecution’s misleading responses to specific requests made by the defense, more than “reasonable diligence” would have been required to discover the letter from Mr. Hicks to the prosecutor on the basis of criminal history. In fact, it would have been impossible.
I would grant the personal restraint petition, and remand for a new penalty trial based upon constitutionally adequate disclosure of the facts and circumstances associated with this proceeding.
Johnson, J., concurs with Sanders, J.
Reconsideration denied June 30, 1999.
Leonard Smith also testified that Gentry referred to the young victim as a “bitch.” RP at 14 (June 3, 1991). However, Smith came forward to testify as a direct result of Hicks’s statements to authorities. RP at 31 (June 3, 1991). Smith also admitted to owing Hicks money in the past. RP at 21 (June 3, 1991). If the defense had possessed the letter that Hicks wrote to prosecutors, it is possible that they could have used that letter to damage Smith’s credibility in addition to damaging Hicks’s credibility.
As a direct result of the prosecutor’s telephone call Hicks’s parole was reinstated, retroactive for five years. Shortly after the reinstatement of his parole, Hicks was transferred from a correctional institution (McNeil Island) to a work release facility (Tacoma Pre-Release). This transfer was based in part on “a supportive letter from Kitsap County,” the county prosecuting Gentry. First Am. Personal Restraint Pet., Exs. 45, 46, 47, and 48.