(dissenting).
I.
When Melvin Shark — the state’s principal witness against Maurice Robinson — was sentenced for his part in the killing of K.O. Floyd, the prosecutor told the sentencing judge:
That will bring us around to what, in fact, Mr. Shark was told by me in all candor that I would speak for him in this respect at his sentence, that Your Honor would note his cooperation in testifying against his codefendant and codefendants.
... [Y]our Honor, it is true that without his testimony proving the case against his codefendant would have been difficult, if not impossible....
*888... [H]is cooperation in both the trials has to be noted because we would not have had the opportunity to convict the person who actually pulled the trigger on Mr. Kayo Floyd, and that was Maurice Robinson, without the help of Melvin Shark, albeit to help himself....
At the trial of Maurice Robinson, the prosecutor had in his opening statement informed the jury that Melvin Shark “was told, and the extent of any promise made to him when his sentence came, his cooperation would be made known to the sentencing judge but no deal in terms of time, years, anything like that.” But when the prosecutor put Shark on the stand, he did not elicit from his star witness confirmation of the bargain he had told the jury about. And when, on cross-examination, defense counsel inquired about the bargain, Shark denied — falsely, and under oath — that any such bargain had been struck:
Q. Is it not a fact, sir, that the prosecutor promised you that if you would get on that stand and testify today for the State against Mr. Robinson, they would tell the Judge of your cooperation?
A. Well, he didn’t promise me he’d talk to the Judge about that.
Q. He didn’t say that?
A. He didn’t promise me he’d go back in and talk to the Judge and tell him I cooperated. Was nothing promised to me.
Q. And that’s the truth?
A. Yes. Only thing was promised to me was I’d be taken care of.
Being “taken care of,” Shark testified, meant “protective custody.” Later, Shark also acknowledged that he was promised immunity with respect to his testimony against Robinson — “if I say anything today in this courtroom, it wouldn’t be used against me.... ” But Shark never recanted his perjured denial that the prosecutor had promised that “when [Shark’s] sentence came, his cooperation would be made known to the sentencing judge ...”
Defense counsel, in his closing, undertook to remind the jury that the prosecutor had, in his opening, described a promise made to Shark — a promise that Shark, on the witness stand, denied the existence of, and about which there was no other testimony. The prosecutor, in his closing, did not tell the jury that Shark’s denial that a bargain had been struck was perjury. Instead, the prosecutor, in his closing, reshaped the bargain:
Yes, the State called him as a witness but what did Melvin Shark expect? I opened to you and told you certain things were promised to him, yes. What [was] his deal? His big deal? His lawyer was present when we discussed it. And he explained his answers.... “I know that the Judge can sentence me and I know the Prosecutor doesn’t have any power over the Judge because the jury found me guilty. No plea bargaining. Jury verdict, guilty. So the Prosecutor does not have the power to recommend anything to the Judge anymore in terms of years, months, days.” So what did he testify for? And this is where it’s coming out now: Well, what did he say was facing him over there in the code, a different code, not the code we live by here, but in the jail here: Subjected to some physical beatings if the word gets out. So what did he want from the State? “I want protective custody. I’m subject to being severely beaten if I testify against another defendant.”
II.
The court acknowledges that “[t]he prosecutor had a duty to correct the perjured testimony of his witness” — a duty the prosecutor elected not to fulfill. The court concludes, nonetheless, that Maurice Robinson is not entitled to the curative writ of habeas corpus because the prosecutor’s “error was harmless.” Why was the error harmless? Because “[t]he evidence of the prosecutor’s promise to tell the sentencing judge of Shark’s cooperation would have added only incrementally to the evidence presented on the agreement and Shark’s credibility.” Therefore, the court reasons, the error cannot be said to have “‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, - U.S. -, -, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. *889United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).
I am unable to agree.
As the prosecutor, in his closing, elected to reshape the bargain he had made with Shark, the “promise made to him ... [that] his cooperation would be made known to the sentencing judge” faded away and was replaced by another promise: “So what did he want from the State? ‘I want protective custody. I’m subject to being severely beaten if I testify against another defendant.’”
Of course Shark wanted protective custody. Protective custody was not, however, an end in itself. Shark wanted protective custody so that he could give testimony against Robinson with little risk of reprisal from other inmates. Indeed, Shark would have had no need for protective custody — or for immunity from adverse use of his testimony — had Shark not decided to comply with the prosecutor’s proposal that h.e testify against Robinson in exchange for the prosecutor’s undertaking to tell the sentencing judge about Shark’s cooperation. In short, the prosecutor’s promise to speak to the sentencing judge on Shark’s behalf was the real quid for the quo of Shark’s testimony. And to do what the prosecutor did — to lead the jury to focus on the promise of protective custody as the centerpiece of what Shark “want[ed] from the State” — was to draw the jury away from Shark’s paramount, and per-juriously denied, objective in testifying against Robinson. By applying cosmetics to Shark’s perjured testimony, the prosecutor beclouded defense counsel’s efforts to show the jury the true magnitude of Shark’s incentive to give testimony pleasing to the prosecutor.
In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court reviewed a state court murder conviction in which the trial judge refused to permit defense counsel to elicit, on cross-examination of an important prosecution witness, the fact that “a criminal charge against him — being drunk on a highway” “had been dropped in exchange for his promise to speak with the prosecutor about the murder.” Id. at 676, 106 S.Ct. at 1434. The Court, speaking through Justice Rehnquist, agreed with the Delaware Supreme Court that the trial judge’s ruling contravened the accused’s rights under the Confrontation Clause, since it prevented him “from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.’ ” Id. at 680, 106 S.Ct. at 1436.1
In Delaware v. Van Arsdall the constitutional error was, of course, unintended. In the case at bar, the action of the prosecutor — compounding his chief witness’ perjury — was advertent. And it was calculated to obscure from the jury’s view the major part of what the jury might have deemed “a prototypical form of bias.” Accordingly, I cannot agree with the court that the truth, which the prosecutor helped Shark to hide, “would have added only incrementally to the evidence presented on the agreement and Shark’s credibility.” With matters in this posture, I do not share the court’s confidence that the prosecutor’s conduct did not have “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, — U.S. at -, 113 S.Ct. at 1722. Presumably, it was the prosecutor’s intention that his conduct would have exactly such “influence in determining the jury’s verdict.”
Therefore, I dissent.
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges, and POLLAK**, District Judge.*890SUR PETITION FOR REHEARING
July 14, 1994
The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court in banc, is denied. Judge Stapleton would grant rehearing.
. In Delaware v. Van Arsdall, the Delaware Supreme Court had concluded that the trial court’s erroneous ruling required reversal of the conviction. The Supreme Court vacated the Delaware Supreme Court's judgment, remanding for a determination whether the erroneous ruling was harmless beyond a reasonable doubt, the pre-Brecht standard.