dissenting.
David Murrell was convicted by a jury in a Wisconsin state court of five counts of first-degree reckless injury while armed and was sentenced to prison for 75 years. The only issue presented by the appeal is whether the state courts were unreasonable in rejecting his claim of ineffective assistance of counsel at his trial — technically, whether they were unreasonable in applying to the facts of the case the decision of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Since the state concedes that Murrell’s trial lawyer fell below the minimum required level of professional competence in representing him, all that we must decide is whether the state courts were unreasonable in finding that the defendant would surely have been convicted even if his lawyer had been up to snuff. I think they were.
Murrell was one of nearly 500 people who were enjoying themselves one night in 1993 at a nightclub in Milwaukee’s inner city. While he was in the bathroom gambling, a fight broke out between several of his “friends” and members of another group, the “One-Way Boys.” It is apparent from the record that these were gangs, and not friendly ones either; had there been no preexisting animosity between them, a shooting would not have been likely to ensue from someone’s bumping into another person on the dance floor. The contestants included Carl Owens and members of the rival gang including the brothers Jermaine and Mario Burrage, though Jermaine denied that he was a member, while acknowledging that his friends were. Shooting broke out and five men were injured (happily none fatally), including Mario Burrage. Murrell and Owens were prosecuted together for the shootings. Jermaine Burrage testified that just prior to the shooting he had gone into the bathroom, where he had seen Murrell, and that Owens had burst in and asked Murrell to give him a gun “because it’s drama.” In response, according to Burrage, Murrell drew out a semiautomatic pistol, loaded and cocked it, left the bathroom, and fired five or six shots into the crowd. Before trial Burrage had also said that Murrell had left the bathroom in the company of Owens and that the two had been standing side by side during the shooting. But at trial Burrage testified that he did not remember where Owens had been standing. As a result, the judge ordered the case against Owens dismissed.
As a member of a rival gang whose brother had been one of the victims of the shooting, and having contradicted his prior statement regarding Owens, Burrage was not a highly credible witness. He testified that he had given the account that he gave at trial to a police officer or security guard at the scene of the shooting, but the evidence at trial was that no one had taken a statement from him; nor did any officer or guard match the description that Burrage *1123gave of the person to whom he had given the statement. He first called the police the morning after the shooting. His story was discrepant with other evidence offered at the trial as well, and it also contradicted itself with respect to the size of the gun, what hand Murrell had held it in, where Murrell was when he started to shoot, and who else was in the bathroom.
The key evidence against Murrell was given by a security guard at the nightclub named Christopher Davis. Davis testified that he had seen Murrell leave the club after the shooting, clutching his side as if he were hiding a weapon, and that when he asked Murrell to stop, Murrell ran away and tossed a pistol under a car. The pistol was later recovered — and sure enough it was the one that had been used in the shootings. This iced the case against Murrell.
Yet at a probation revocation hearing conducted before the trial, Davis had testified that he had not seen Murrell holding or tossing the gun, that rather the nightclub’s bouncer, Danny DeNeal, had told him that he (DeNeal) had seen Murrell drop the gun. Davis had made a similar statement to Murrell’s original lawyer, who had turned it over to Murrell’s trial lawyer, who had done nothing with it. The lawyer was also shown a statement that DeNeal had given to the police the night of the shootings to the effect that he had seen a man, who from his description could not have been Murrell, run from the scene of the crime and toss the gun — the very gun that had done the shooting— under a parked car. The lawyer did nothing with this statement either. He neither impeached Davis with his prior inconsistent statements — one of which, the one at the probation revocation hearing, had been under oath — nor called DeNeal as a witness. He acknowledged having no tactical reason for these omissions, which is why the state does not argue that he rendered competent professional assistance to Mur-rell. At a state postconviction hearing, DeNeal recanted his statement that he had seen who had tossed the gun; this cast a shadow over Davis’s testimony that De-Neal had told him the night of the shooting that he had seen Murrell toss the gun.
Impeaching Davis with his prior inconsistent statements and calling DeNeal as a witness to contradict Davis’s present testimony would have neutralized Davis as a prosecution witness, leaving the state’s entire case to rest on the narrow shoulders of Burrage — who, to repeat, was a member of a rival gang, whose brother had been shot, and who was an unreliable witness, having in effect recanted at trial a key portion of his statement to the police. Had Davis been neutralized in the manner indicated, Murrell might well have been acquitted. In his closing argument, the prosecutor emphasized that Davis’s credibility had not been impaired — indeed not, because of the failure of Murrell's lawyer either to impeach Davis with Davis’s prior inconsistent statements or to put DeNeal on the stand to contradict Davis’s testimony.
In finding (by a split vote) that the lawyer’s pratfalls had not prejudiced Mur-rell, the state appellate court erroneously stated that Davis’s testimony that he had seen Murrell toss a gun had been corroborated by the testimony of other officers; actually they were merely repeating what Davis had told them and thus uttering inadmissible and unreliable hearsay. State v. Peters, 166 Wis.2d 168, 479 N.W.2d 198, 201-02 (1991). My colleagues repeat this mistake. ■ It is true as they point out that much of Davis’s testimony was corroborated, but not the crucial part of it. On cross-examination by Murrell’s trial lawyer, Davis emphatically repeated his emphatic direct testimony that he had seen Murrell toss the gun. Compare this with his testimony at the revocation hearing:
*1124Q: Did you ever actually observe David Murrell with a gun in his possession?
A: No, I didn’t.
Q: You didn’t actually see David Mur-rell drop a gun.
A: No, I didn’t.
What is true as my colleagues emphasize is that Davis also testified at that hearing that someone had called out “ ‘He dropped it, he dropped it.’ I looked down, and lo and behold, it was there on the ground, right — he had just passed that point, I know that.” But at trial he testified that he had not heard anyone say “he dropped the gun.” It was he who had said it: “No one screamed there was a gun until after that gun hit the ground. That’s when I screamed ‘there’s a gun.’ ”
All this would be of little moment had there been no one besides Murrell (except Davis) in the parking lot, so that only Murrell could have dropped the gun. But the only evidence to support this suggestion was the testimony of one of the officers that Davis and Murrell were the “first two people [that he saw] leaving the area.” Davis himself testified that there was a “stampede” and that Murrell left after the stampede; another officer referred to a “mass exodus.” The surveillance videotape confirmed that at least one person left the club before the person who the state argued was Murrell clutching his side left seven seconds later, and that that person also appeared to be holding something. At least two more people ran out just seconds after Murrell.
According to the state appellate court, another officer identified Murrell as the man seen on the video leaving the club clutching his side, and thus corroborated a part at least of Davis’s testimony, though not the critical part. The court was again mistaken about the record. The officer said he was unable to identify the person clutching his side because of the poor quality of the videotape, and that he had based his identification of Murrell not on his own first-hand knowledge but on what Davis had told him: more hearsay, which would have unraveled had Davis been impeached by his testimony at the revocation hearing.
My point is not that the state courts misapplied the rules of evidence, a matter (in the first instance at least) of state law; it is that in assessing the harm to the defendant from his lawyer’s performance they misconstrued the trial record and as a result slighted that harm. The fact that they considered Davis believable was vitiated by the errors that I have noted, and anyway the question is not whether they believed Davis but whether a competent lawyer would have so undermined Davis’s credibility as to persuade the jury to acquit Murrell.
As for DeNeal, it is true as the court pointed out that at the postconviction hearing he recanted his statement that he had seen someone who could not have been Murrell toss the gun. But his new version was that neither he nor Davis had seen who tossed the gun, and the jury might have believed this and so rejected Davis’s testimony — or believed DeNeal’s original statement, made to the police on the night of the shootings, that he and Davis had pursued several patrons who had fled the scene of the shooting; that he had observed a short, black male with a shaved head and multi-colored sweater (not Mur-rell) dump a handgun underneath a car in the parking lot; that he had told Davis that the man dropped the gun; and that he (DeNeal) remained near the gun until the police officers arrived. This statement was consistent with Davis’s statement at the revocation hearing that DeNeal, not Davis, had seen someone toss the gun, but of course if believed it would tend to exonerate Murrell.
To this my colleagues respond that De-Neal’s statement about the short bald guy *1125was false and his testimony at the postcon-viction hearing “outlandish.” But as the ground for Davis’s belief that Murrell was the gun-tosser was DeNeal’s say-so, it is hard to see how DeNeal’s lack of credibility is helpful to the state. As my colleagues remark, though without embracing the implications of the remark, “if DeNeal could not be trusted to tell the truth when he was under oath, we fail to see how something he said outside the courtroom, when he was not under penalty of perjury, would have been accepted by the jury.” Precisely; and it was outside the courtroom that DeNeal supposedly told Davis that Murrell had dropped the gun. It is not as if DeNeal were a Mend of Mur-rell’s, with a motive to lie to protect him; he was not; on the contrary, he was a colleague of Davis — both were members of the nightclub’s security staff — and attempted to apprehend the shooter.
A friend of Murrell’s, an eyewitness to the shooting named Horton, asked Murrell before the trial to tell Murrell’s lawyer to contact him. The lawyer did not do so. Horton would have testified that he had been looking at Murrell when he heard the shots, and that Murrell had not fired them. Horton’s testimony would not have done much for Murrell, standing alone — except to neutralize Burrage’s unconvincing testimony. (Horton, it is true, was a friend of Murrell — but Burrage was an enemy.) If in addition to calling Horton as a witness, Murrell’s lawyer had brought out the fact that Davis had not seen who had dropped the gun — that in testifying that it was Murrell, Davis had just been parroting DeNeal, a thoroughly unreliable witness— Murrell might well have been acquitted. The state courts were unreasonable in concluding otherwise. He is entitled to a new trial.