(dissenting):
I respectfully dissent. The opinion of my Brothers, carefully considered though it is, tends to obscure certain facts which are undeniable. They are as follows:
(1) Almost immediately after the homicide was committed, the investigating officers interviewed a woman who supplied them with facts which, if given as testimony and believed, would have materially strengthened the appellant’s defense.
(2) The name of the woman, as well as the material evidence which she furnished, was, for some reason, concealed by the prosecution until after the termination of a trial in which appellant was found guilty.
(3) There has never been a factual hearing by any court or court officer empowered to make a determination regarding the particular point with which I am now concerned.
As I see it, the majority reaches its conclusion by an indirect course, thereby avoiding a head-on confrontation with the controlling issue. That issue may be stated very simply: Is the prosecution excused from an unconstitutional concealment of material, exculpatory evidence in its possession because, and only because, the concealed evidence was acquired two years before the defendant’s trial from a person whom the prosecutor and his investigating officers believed was not reliable? The California Supreme Court held, in effect, that the prosecution was excused because of the lapse of time and police distrust based, apparently, upon nothing more solid than instinct. I cannot agree with that conclusion.
Our court has very recently evidenced its respect for the rule that if the prosecution “deliberately concealed evidence which might clearly have operated in * * * favor” of an accused, his “right to due process [has] been violated and he [is] entitled to new trial.” Lee v. United States, 388 F.2d 737, 738 (9th Cir. 1968) (emphasis added), citing Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Thomas v. United States, 343 F.2d 49 (9th Cir. 1965). In Lee the prosecuting attorney employed the same procedure as that adopted by the prosecutor in the case before us — that is, he withheld information from the defense until immediately after the conclusion of the trial. Our court held that a hearing was required, thereby rejecting, at least by implication, the rationale of the majority here that a defendant may be denied the benefit of favorable information in the hands of the prosecution where it may be inferred from the prosecutor’s surrender of the knowledge after his triumph that the pri- or concealment was not improperly motivated. I respectfully submit that the prosecutor’s motive is immaterial. A government enjoys an immense advantage over a private individual whom it engages as an adversary. Its financial and investigative resources are almost always incomparably superior to those of the individual. When one is accused of a crime and the government acquires evidence which might clearly operate in favor of the accused, the government is required to divulge it.
“A criminal trial is not a game in which the State’s function is to outwit and entrap its quarry. The State’s pursuit is justice, not a victim. If it has in its exclusive possession specific, concrete evidence which is not merely cumulative or embellishing and which may exonerate the defendant or be of material importance to the defense * * * the State is obliged to bring it to the attention of the court and the defense.”
Giles v. State of Maryland, 386 U.S. 66, 100, 87 S.Ct. 793, 810, 17 L.Ed.2d 737 (1967) (Fortas, J., concurring) (emphasis added). The accused should not be penalized because memory failure on the part of the prosecution continues until the time when memory’s restoration would introduce no complicating elements into the trial.
The majority laboriously, as well as effectively, analyzes the testimony pre*94sented at the trial and apparently attempts to weigh it against the testimony which, presumably, would have been given by the individual whose knowledge was concealed. After weighing the assumed testimony and the credibility of this person, whom neither it nor any other court has ever seen or heard, the majority reaches the conclusion that the testimony, had it been given, would not have aided the accused. It therefore seems to me that the true test — whether or not the concealed evidence might clearly have operated in the accused’s favor— is being ignored.
It is true, of course, that under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the District Court was not required to grant an evidentiary hearing if, from review of the record of the state court proceedings, it could fairly determine that the factual issues tendered by appellant had been resolved, after full and fair hearing, in the state courts. In denying appellant’s petition for habeas corpus, the district judge held that appellant had been afforded such a hearing. In this regard, the record reveals that the California Supreme Court, on petition for habeas corpus, had ordered a reference hearing to resolve issues of fact which were raised in appellant’s petition. The findings of the referee, upon some of which the state court relied in denying the petition, were adverse to appellant’s claims.
As to the questions actually referred to the referee, I agree with the district judge that the hearing did comport with standards required by Townsend. However, the California Supreme Court was presented with one significant question “[i]n addition to the * * * questions submitted to the referee * * In re Lessard, 62 Cal.2d 497, 510, 42 Cal.Rptr. 583, 592, 399 P.2d 39, 48 (1965). That question related to appellant’s claim of concealment by the prosecution of material evidence. As noted by the majority, appellant’s position was stated by the California court as follows:
“The [appellant’s] argument rests upon the fact that on the day after the killing a police inspector questioned the telephone operator of the motel, Mrs. Gustavson; that she testified at the reference hearing that she told the inspector that a man in ‘a grey suit with sort of pinkish specks,’ asked for the victim at 6:00 p. m.; that she rang the room, and that the victim said: T am expecting him.’ She then allowed this unidentified stranger to proceed back to the victim’s room. She said that she remembered the time because a guest had just inquired about the 6 p. m. telephone night rates. Mrs. Gustavson also testified that the officers brought a suspect to her for identification; that she told them that the man so presented was taller than the actual visitor; that the former was shabby looking, but the latter neatly dressed.
“The prosecution did not tell the defense about these statements. According to Mr. Michos, an attorney for the petitioner subsequent to the trial, the prosecutor, Mr. Giubbini, told him about the statements only after the trial. The prosecutor had then said that he had not further pursued the matter because he felt Mrs. Gustavson to be unreliable and the incident unimportant.”
62 Cal.2d at 511-512, 42 Cal.Rptr. at 592-593, 399 P.2d at 48-49.
In resolving this additional issue against appellant, the state court did not determine, as the majority now presumes to do, that the allegedly suppressed evidence was insufficiently material or substantial. Indeed, it does not appear to me that it might properly have done so. The body of the victim was discovered at approximately 11 o’clock in the morning of June 17, 1959. The deputy coroner originally reported his estimate that death had occurred ten to twelve hours before. In his trial testimony he modified this estimate by expressing his opinion that death ‘might’ have occurred as long as ten to fourteen *95hours before the body was discovered. Thus, if the original estimate was accurate, the victim was killed within the two-hour period following 11 o’clock of the evening preceding the discovery of the body. If, on the other hand, the deputy coroner’s altered estimate was correct, it would still follow that the victim could not have been slain earlier than 9 o’clock in the evening of June 16th. During the trial, the appellant admitted that he had been drinking with the deceased during the afternoon of June 16th and had, in fact, visited the deceased’s motel room. He insisted, however, that he left the room without harming the deceased, and, as stated by the California Supreme Court, “some evidence indicated that petitioner boarded a bus to Seattle between 9:00 p. m. and 9:30 p. m. on June 16th * * 62 Cal.2d at 511, 42 Cal.Rptr. at 592, 399 P. 2d at 48. Had this evidence been believed by the jury, and had there been acceptance of the validity of the deputy coroner’s original report as to the time of death, the appellant could not logically have been held to have committed the homicide. In these circumstances, I must conclude that evidence that “an unidentified stranger,” one other than appellant, had been allowed by the motel’s telephone operator to proceed to the victim’s room during the crucial time period was significantly material in support of the defense which was offered. It seems to me that no judge or group of judges has such omniscience as to enable him or it, without a hearing and without having seen the witness, to reject positively the claim that the evidence might have operated in favor of the accused.1
The California court’s disposition of the issue rested upon two principal considerations, and my Brothers have choosen not to analyze them. They were (1) that two years had elapsed between the time police officers interviewed the telephone operator and the time of trial and (2) that when they acquired the information, the officers and the prosecutor “felt * * * [the operator] to be unreliable and the incident unimportant.” 62 Cal.2d at 612, 42 Cal.Rptr. at 593, 399 P.2d at 49. If the stated grounds furnish no support for the state court’s conclusion, the validity of the conclusion itself it open to serious question. I do not argue that the prosecution was required to make a voluntary disclosure of every bit and scrap of information which it might have accumulated in the course of its investigation. On the other hand, all agree that deliberate concealment of material evidence which might clearly have operated in favor of an accused constitutes infringement of due process requirements. See Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). See also United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964). Surely, concealment or suppression of such evidence cannot properly be justified because of the mere passage of time or because the adversaries of an accused may have formed their unilateral opinion, subjective, undisclosed, and perhaps mistaken, that the evidence is “unreliable” or “unimportant.”
I would reverse.
. But the majority writes: “Mrs. Gustav-son’s testimony * * * would have materiality, but it could hardly be regarded as being able to have much force against the inexorable array of incriminating circumstances with which Lessard was surrounded.”