dissenting:
This case has two villains. The first, of course, is the appellee Ronald Hoke, who committed a brutal murder and deserves a fitting punishment.
The other villain, prosecutor Joseph Preston, left no legal or ethical corner uncut in his pursuit of Hoke’s conviction and death sentence. The district court held that Preston’s suppression of exculpatory evidence and knowing sponsorship of false testimony deprived Hoke of a fair trial. I agree with the district court, and I respectfully dissent.
I.
Inasmuch as the majority and I have very different views on which facts are relevant to this appeal, I will make a counterstatement of facts. I beg the reader’s indulgence of the inevitable repetition of some facts; I have attempted to keep them to the minimum required for coherence.
Hoke was released from a mental hospital on October 4, 1985, where he had been a voluntary patient for nearly a week. Hoke’s mental problems stem from extreme drug and alcohol abuse. He had planned to go from the hospital to Hagerstown, Maryland, to be near his family and to receive follow-up treatment.
This plan did not last long. Hoke cashed in his bus ticket and bought drugs and alcohol.1 Either that afternoon or the next, Hoke met Virginia Stell at the European Restaurant in Petersburg, Virginia. Aside from the fabricated statement of Emmett Sallis, a jailhouse snitch (of whom more soon), there is no evidence that Hoke and Stell knew one another.
Stell was 56 years old and had a reputation for easy morals. A patron of the European, Louella Robinette, saw Hoke and Stell hugging and kissing, and the pair later left together.
On October 7, Stell’s nude body was found in her apartment. She had been bound, gagged, and stabbed to death. Semen was found in her vagina and anus, and margarine was smeared on her anal ring. The apartment was in disarray.
Meanwhile, Hoke had gone back to the mental hospital. He was soon released and returned to Hagerstown. On October 15, he confessed to a police officer that he had killed a woman in Petersburg, Virginia.
Hoke gave three confessions. His story remained more or less the same: he went to Stell’s apartment, where the two had consensual vaginal and anal sex. The anal sex was Stell’s idea. He then bound, gagged, and stabbed her. Before fleeing, he decided to look around the apartment for drugs, and he did steal some pills. The only major inconsistency in his confessions concerns when his intent to kill was formed. In his third and final confession, on October 17, Hoke stated *1366that he had decided to kill Stell before they ever got to her apartment; on the other occasions and at trial, he stated that he flew into a rage when Stell slapped him over some sort of transgression.2
Soon after the murder, the Petersburg police began interviewing numerous potential witnesses. Their efforts focused on the other residents of StelTs apartment building and the regular patrons of the European Restaurant.
The police learned that Stell was sexually promiscuous. Several witnesses stated that Stell would “go with anyone.” A few witnesses even named names, which led police to interview three men, all of whom admitted having had intercourse with Stell. Lowell Eastes, a married man, said that he had had sex with Stell on several occasions, the last time about three weeks before the murder. Dale Griesert reported 15-20 sexual encounters, at various locations — the woods, a motel, a friend’s house in the country, or a parked ear. Griesert also stated that they had engaged in oral, vaginal, and (on one occasion) anal sex. The anal sex was Stell’s idea, and she brought vaseline along for that purpose. Henry Jones also admitted a single encounter with Stell. Finally, Robinette told police about her observation of Hoke and Stell openly hugging and kissing at the European.
The original prosecutor was Raymond Lu-poid. Lupoid, like Hoke and Stell, is white. Lupoid’s then-boss, Commonwealth’s Attorney Sydney Barney, is also white. Lupoid took a look at the results of the investigation — a mentally unstable, intoxicated defendant and a victim of limited repute — and decided he “didn’t have much of an opportunity to seek the death penalty at that stage.” Hoke was charged with first-degree, but not capital, murder.
There was an election that fall, and James Hume became the new Commonwealth’s Attorney. Hume is black. Lupoid left the office at the close of Barney’s term, January 1, 1986, and Joseph Preston took over the Hoke ease. Preston is also black. On February 7, Hoke was charged with capital murder.
Hoke was represented by a public defender, Richard Beck. Beck withdrew from Hoke’s case at the preliminary hearing because of a conflict of interest. Beck also represented Emmett Sallis, a Petersburg jail inmate, who was facing numerous charges and was hoping to use Hoke’s case to his advantage. John Maclin was then appointed to represent Hoke.
Maclin found the investigation hard going. He went to the European Restaurant to try to find out about Stell, but was met with tight lips and outright hostility, including at least one physical threat. He learned only that Stell had a bad reputation, with no specifics at all.
Maclin filed standard discovery requests, including one for exculpatory evidence on either the issue of guilt or punishment. In the first of several divergences from truth he authored, sponsored, or knowingly suffered, Preston replied that the Commonwealth was unaware of any exculpatory evidence other than Hoke’s “alleged drag problem.”
Plea negotiations were even less fruitful. Maclin made the capital defendant’s last-ditch offer — a life sentence in return for a guilty plea — but Preston declined any deals. Why? As he told Maclin, Preston “wanted to be the first black man to put a white man in the electric chair.”
A one-day trial was held on August 5,1986. One of Preston’s witnesses was Emmett Sal-lis, who recounted a conversation he had supposedly had with Hoke in the Petersburg jail:
Okay, I was in the same cellblock with [Hoke] and I asked him about his charge, what charge did he have. He said he had a murder charge. And he said the charge that it happened on Union Street and that he was living in Maryland and he came down here on different occasions because he knew the woman. He sold drugs to the woman or somebody in that apartment *1367complex. And he said that they had went out that day and when he came back, because he was supposed to sell some drugs to her and he found out that she had ripped him off, so he found out he couldn’t get his stuff back so he killed her.
Just a week before this testimony, Sallis had been sentenced to 1736 years in prison on numerous forgery, uttering, and petit larceny charges, all but five of which were suspended on condition that he continue to cooperate with law enforcement authorities. It is obvious that this “cooperation” meant assistance to Preston in Hoke’s case.
Sallis had originally been charged on February 3, 1986. Two days later, he met with Preston, and, two days after that, Beck withdrew as Hoke’s counsel. Sallis pled guilty to the charges within three weeks, but his sentencing was continued. On April 16, Sallis was released on a reduced bond, even though he was facing a lengthy prison term and had recently failed to appear on an unrelated grand larceny charge. Hume agreed to the reduced bond.
In sum, Sallis had obviously made a deal with Preston and Hume. On cross-examination, Sallis not only grossly understated his criminal history, but he flatly denied that the Commonwealth had offered “any deals” or “a time cut.” True to form, Preston did not correct this testimony.
Preston presented evidence to support the Commonwealth’s theory that Stell had been raped. The crime scene itself supports that inference, and experts from the medical examiner’s office opined that bruises on Stell’s arms indicated a struggle during sex. They also speculated that the margarine on Stell’s anus was, somehow, evidence of lack of consent.
In support of his theory that the sex was consensual, Hoke attempted to introduce reputation evidence of Stell’s unchaste character.3 Virginia has a so-called “rape shield” law, which generally prohibits introduction of evidence concerning a supposed rape victim’s bad reputation. The trial court seemed sympathetic to Hoke’s argument, but it prohibited the reputation evidence. It suggested that the result might be different if Hoke had evidence of specific conduct. Hoke conceded that he did not. Preston did, of course, but he listened to the colloquy between the court and defense counsel without making a peep.
In his closing argument, Preston painted a picture of Stell as a kind Samaritan:
[L]adies and gentlemen, [Hoke] had just met Virginia Stell, just met Ms. Stell on a jovial weekend, a weekend for festivities, for fun. Ms. Stell was in the European restaurant, out having a drink. Just met the defendant. Apparently, decided to befriend him, unfortunately for Ms. Virginia Stell. But she opened up her heart, ladies and gentlemen. Even invited the defendant into the domicile of her own home. The sacred home, ladies and gentlemen of the jury. The defendant told you, gave him a couple of beers, was being kind to the defendant.
Aside from being completely inconsistent with the testimony of Preston’s own witness, Sallis, this argument shows the shenanigans that Preston’s suppression of exculpatory evidence made possible. Stell “opened up her heart” and invited Hoke into “the sacred home.” I wonder if the mental images conjured in jurors’ minds by this peroration would have been different if they had heard, for example, Lois King say that Stell “wasn’t picky” and “would take anyone home,” or Frank Bridgeman recount that men had been to Stell’s apartment many times, where she “fucked them and let them have a bath.”
Through phone calls to the expert’s receptionist, Preston also obtained a copy of the report of Hoke’s psychiatric expert, which is protected by the attorney-client privilege until and unless the defense gives notice of an intent to rely on insanity or mitigating psychological evidence. Va.Code § 19.2-264.3:1(D). Preston later interviewed the psychiatrist as well. Besides contravening *1368state law, Preston’s actions probably violated the rule of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (indigent defendant with possible insanity defense is entitled to state-paid psychiatrist to assist in his defense).
The jury found Hoke guilty of capital murder on all three predicates submitted to it: rape, robbery, and abduction.4 The trial and deliberations had not taken an entire day. The trial court then immediately submitted the sentencing issue to the jury, promising them the next day’s jury pay even if they finished up that night.5 The jury quickly imposed the death penalty, finding that the crime was especially “vile” and that Hoke constituted a future danger to society.
Hoke’s conviction and penalty were upheld on direct appeal and on state collateral review. He then filed this action under 28 U.S.C. § 2254. The district court originally dismissed it without holding an evidentiary hearing. Hoke v. Thompson, 852 F.Supp. 1310 (E.D.Va.1994). Among the claims dismissed was one under Ake for Preston’s contacts with Hoke’s defense psychiatrist. The court held that any error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), because it did not have a substantial and injurious effect on the verdict.
At this point, Hoke still did not know about the suppressed witness statements. However, he moved to reconsider the dismissal of his petition, asserting that racial animus was at the root of Preston’s decision to seek the death penalty. The district court vacated its earlier dismissal and permitted Hoke to amend his petition to assert an equal protection claim.
An evidentiary hearing was set for November 21, 1994. Because Preston’s state of mind was at issue, the district court ordered the respondent to produce the prosecution file before the hearing. Alas, Preston’s file had “inexplicably disappeared.”
As a substitute for the missing file, the Commonwealth offered the Petersburg police file. Hoke did not receive this file until after the hearing. Meanwhile, evidence was taken concerning racial animus. Preston admitted making race-based appeals for support in election campaigns,6 but he denied Maelin’s assertion that he said he was going to be the first black man to put a white man in the chair. Apparently unaware that the police file was about to belie his words, Preston defended his reasons for seeking the death penalty:
The victim was a nice lady.... But she was very friendly, and that is probably how, what caused her to get killed. She befriended Mr. Hoke, offered him a place to stay, and we all know what she got in return for her attempts to be kind.... So he came to Petersburg, a nice little town where I live at, and picked one of the nicest little ladies in the community to decide to carry out this crime.
The revelations in the police file prompted Hoke to again amend his petition to assert a Brady claim and a claim under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (prosecutor’s knowing use of false testimony violates due process). A second evidentiary hearing was held.
On September 7, 1995, the district court granted the writ. The court held, first, that the Brady claim had not been waived because the facts in support of it were not known to Hoke. Second, even if the Brady claim had been defaulted, the court would find cause for the default and prejudice from the Brady violation. The court then held that the Brady claim warranted relief.
The merits of the false testimony claim were reached in a different manner. The court held that the falsity of Sallis’ testimony was obvious at trial' — no one, including Preston, agreed with Sallis that Hoke knew Stell before the day of the murder. The court *1369held that the claim was defaulted, and there was no “cause” for the default. The court held, nonetheless, that it should reach the claim to prevent a “miscarriage of justice.” Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992). The finding of “miscarriage of justice” was based on the court’s further holding that Hoke had established that he is “actually innocent” of the robbery and abduction predicates to the death penalty. Sallis’ patently false testimony is the only thing supporting those verdicts.7
Next, the court found that Preston had actually boasted about putting a white man to death. In fact, the court said it had no doubt that Preston had used those words (meaning, of course, that there is no doubt that Preston perjured himself at the first evidentiary hearing). Nonetheless, the court declined to find an equal protection violation:
[T]he comment was hopefully nothing more than prosecutorial posturing, an incendiary aside, mere “talk” or all of the above, [citing testimony that Preston “has a tendency to run his mouth”] Indeed, trial counsel was not even inclined to bring the comment to the trial judge’s attention.[cite omitted] Given the paucity of evidence demonstrating purposeful discrimination, Preston’s comment standing alone, while reflective of the tenor of the Commonwealth’s handling of this case, does not rise to the level of a deprivation of Petitioner’s equal protection rights.
II.
I think that the Brady issue is easy. The jury was told that Stell was your average, kindly 56-year-old woman, and the very thought that she had had anal sex with a man half her age, using margarine as a lubricant, probably closed the book on the rape predicate to capital murder. Had the jury known of Stell’s aggressive promiscuity, including evidence of consensual anal sex, and that she had been seen “hugging and kissing” Hoke just before her death, it is at least “reasonably probable” that the result would have been different.
The majority assures us that Maclin could have obtained this evidence if he had been diligent enough. I disagree. Maclin was treated with hostility and was subjected to at least one threat when he tried to gather information, and even the police had some difficulty coaxing the truth from Stell’s erstwhile bedmates. The district court rightly found that it was unlikely that further inquiries by Maclin would have been fruitful.
The Commonwealth cites the rape-shield statute8 and argues that the suppressed evidence would not be admissible, and cannot, therefore, constitute exculpatory evidence. I disagree. A Virginia intermediate appellate court has held that the rape shield law must be construed in a manner consistent with the Confrontation and Compulsory Process clauses. Neeley v. Commonwealth, 17 Va.App. 349, 437 S.E.2d 721 (1993). As the district court noted, the Sixth Amendment’s concern that relevant exculpatory or mitigat*1370ing evidence be presented to the jury reaches its apogee in death penalty cases.9
III.
The district court found that Hoke had a factual predicate for his Napue claim before the trial was even over, so he had to demonstrate cause and prejudice or that a miscarriage of justice would result if relief were not granted. The district court found that a miscarriage of justice would occur here, and with that much I agree.
I am not so certain that a default even occurred, however. Hoke knew that Sallis’ testimony was false, but, until the disclosure of the police file, he didn’t know that Preston knew it was false. The prosecutor is not a guarantor of his witnesses’ credibility; he must merely refrain from presenting evidence that he knows or believes to be false. Moreover, some of the falsity of Sallis’ testimony — most notably his denial that he had any deals with Preston and the extreme understatement of his criminal history — was by no means apparent at trial.
Upon reaching the merits of the Napue claim, I again find the result an easy call. Sallis lied, Preston let him lie, and the lie undermines confidence in the validity of the robbery and abduction predicates for capital murder.10 A meritorious Napue claim requires reversal if “ ‘there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). For the reasons I have already stated,11 there is much more than a reason-able likelihood; it is all but certain that the error affected the verdict as to the robbery and abduction predicates for capital murder.
IV.
Ronald Hoke should and must be punished for his crime, and, so long as it affords him a trial that complies with the Constitution, the form of that punishment is up to the Commonwealth of Virginia. It has not yet done so.
In closing, though the issue need not be reached to affirm the grant of the writ, I should say that there is one thing in the district court’s otherwise-impeccable opinion that I profoundly disagree with. No one, white or black, ought to be allowed to pick a man for death on account of his race. It has happened in our country, of course, perhaps many more times than our collective shame will ever permit us to acknowledge. Blacks, as an enslaved race for one century and an oppressed one for another, have suffered in gross disproportion. Nevertheless, the sins of the white race will not be purged by offering up Ronald Hoke as a sacrifice to a vengeful black prosecutor. I daresay that if the races of Preston and Hoke were reversed, no court in the land would excuse Preston’s racist statement as “posturing” or “mere talk.” It is unconstitutional, despicable talk, and, if for nothing else, the writ should issue on Hoke’s equal protection claim.
I would affirm.
. A psychiatric report states that he may have been under the influence of heroin, POP, cocaine, and alcohol at the time of the murder.
. At trial, Hoke testified that his October 17 statement was a result of his self-destructive state of mind — i.e., he was seeking punishment.
. Robinette, who witnessed Hoke and Stell "hugging and kissing” and could have thereby corroborated Hoke's story, was called as a prosecution witness. However, she made no mention on direct examination of the couple's suggestive actions, and Preston managed to deflect an inquiry into that subject on cross-examination by interrupting the witness with an objection. Maclin, unaware that he was close to paydirt, dropped the line of questioning.
. See Va.Code § 18.2-31 (listing predicate offenses for capital murder).
. Given the gravity of the occasion, I think that the judge's haste and the impression he gave the jury that long deliberation may not be necessary were inappropriate. Hoke does not allege that this haste rose to constitutional error, however.
.Preston has been a candidate for Commonwealth’s Attorney and for the House of Delegates.
. Hoke's admitted taking of some pills after the murder does not constitute "robbery” in the sense used in the capital murder statute. Robbery must be the purpose of the killing. Except for Sallis’ fabrication (Hoke killed Stell to "get his stuff [i.e., drugs] back”), there is no evidence from which a rational trier of fact could find that Hoke killed Stell in hopes that he could later find a few pills. Indeed, on direct appeal, the Virginia Supreme Court relied on Sallis' testimony to affirm the robbery predicate. Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, 599-600, cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989). The majority appears to question even this interpretation of Sallis' testimony — the only one that could support the robbery predicate — in favor of a simple revenge motive (Hoke “killed Stell because 'he couldn't get his stuff back.’ ”). Ante at 1360 n. 9.
The abduction predicate hangs by an even thinner thread. A murder during an abduction is punishable by death only where the intended purpose of the abduction is "to extort money or a pecuniary benefit[.]" Va.Code § 18.2-31(1) (emphasis added). If the restraint used was no greater than that required to commit the rape or robbery, the defendant cannot be convicted of all three. Cardwell v. Commonwealth, 248 Va. 501, 450 S.E.2d 146, 152-153 (1994), cert. denied,U.S. —, 115 S.Ct. 1826, 131 L.Ed.2d 747 (1995). Even with Sallis’ testimony, the evidence of an abduction with intent to extort money or drugs is thin indeed. Without it, there is no evidence at all.
. Va.Code § 18.2-67.7.
. I should add that not all of the suppressed exculpatory evidence concerned Stell’s reputation for promiscuity (e.g„ Robinette's observation of Hoke and Stell together and evidence of the lenient treatment afforded Sallis contemporaneously with his testimony against Hoke).
. If this court ruled for Hoke on his Brady claim but not on his Napue claim, or vice versa, the conviction of capital murder would perhaps be able to stand. Nonetheless, in my view Hoke would be entitled to resentencing, because a Virginia jury always has the discretion to impose life imprisonment notwithstanding that it has found
.See supra n. 7. the presence of any or all factors on which a death sentence may be predicated. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979); Va.Code § 19.2-264.2. I should say in this regard that I have little doubt that the jury's decision to impose a death sentence rested most heavily on the alleged rape, which, if it happened, was far, far more brutal than any robbery or abduction that might have occurred.