dissenting.
I. OVERVIEW
As conceded in the appellate brief of Spirko’s counsel, “John Spirko lied.” This incontestible conclusion is well-documented in the majority opinion’s recitation of the many inconsistent stories that Spirko told to Inspector Hartman. But lying is not a capital offense. And while the record leaves no doubt about Spirko’s falsifications, it leaves me with considerable doubt as to whether he has been lawfully subjected to the death penalty in light of the state’s alleged Brady violation.
The case against Spirko is far from overwhelming. It is substantially based upon three evidentiary pillars: (1) an eyewitness who was “100% sure” that Spirko’s best friend, Delaney Gibson, was at the Elgin, Ohio post office when the postmistress was abducted, (2) another eyewitness who was “70% sure” that Spirko was also at the scene, and (3) Spirko’s knowledge of factual details concerning the murder that were not known to the general public. Each of these pillars, however, has a foundation of sand. The “certain” identification of a clean-shaven Gibson is cast in grave doubt both by photographs and receipts in the possession of the state, but not disclosed to the defense, indicating that Gibson had a full beard immediately before the date of the abduction, and by statements made to investigators by several people who said that Gibson had a full beard during the entire summer of 1982. As for Spirko’s presence at the scene, a confidence level of only 70% is far from “beyond a reasonable doubt.” Finally, Spirko’s knowledge could have come from second-hand repetition rather than firsthand participation.
A striking fact about the record in this case is the complete absence of any forensic evidence linking Spirko to the crime. There are no fingerprints, footprints, fibers, blood, or stolen items to bolster the state’s case. Nor is there any written or recorded confession of guilt by Spirko or incriminating testimony by a witness who turned state’s evidence. (Although two of Spirko’s former cellmates testified at trial *615that Spirko admitted to them that he murdered Mottinger, those cellmates have subsequently recanted their testimony, either directly or indirectly.) We are thus left with nothing other than the three shaky pillars described above. This does not negate the fact that a jury could, in a fairly conducted trial, find Spirko guilty beyond a reasonable doubt; but the closeness of the question obviates the possibility of harmless error and requires us to be more sensitive to any material procedural violations by the state. See Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir.1985) (stating that “petitioner should receive the benefit of the doubt” in a capital case where “there is a real possibility that the wrong man is to be executed”).
II. ALLEGED BRADY VIOLATION
The alleged procedural violation that is key to this appeal is the very one discussed by the majority opinion — Spirko’s claim that the state failed to turn over to him exculpatory and impeachment information that would have materially aided his defense. Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “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.” Id. at 87, 83 S.Ct. 1194. The Supreme Court has summarized the components of a Brady violation as follows:
The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice exists “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
On habeas review, a federal court must ask whether the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quotation marks omitted). “Allegations of violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), present mixed questions of law and fact which this Court reviews de novo.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir.2000) (parallel citations omitted).
Because Spirko initiated his federal ha-beas corpus action in March of 1995, prior to the effective date of AEDPA, we apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Federal courts, prior to AEDPA, were required to hold an evidentiary hearing “[wjhere the facts are in dispute” and “the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 6, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).
A. Is the evidence in question favorable to Spirko?
The first step in analyzing the Brady issue is to ask whether the withheld evidence is favorable to Spirko as either exculpatory or impeaching. At trial, the state’s theory of the case was that Spirko *616and Gibson jointly abducted and murdered Mrs. Mottinger. In support of this theory, the state elicited the testimony of Opal Siebert, who lived across the street from the Elgin post office. Siebert testified that she was “100% sure” that she saw Spirko’s friend Gibson outside the post office on the morning of August 9, 1982. When interviewed on the day of the incident, Siebert described the man she had seen as clean-shaven. She also selected a photograph of a clean-shaven Gibson from an array in late January of 1983, more than five months after the crime occurred.
The withheld evidence directly contradicts both the government’s theory of the ease and Siebert’s testimony. Gibson told investigators that he was in North Carolina on August 9, 1982. His story was at least partially corroborated by interviews with Gibson’s wife, Margie, and with Margie’s sister and brother-in-law, Brenda and Michael Bentley, who accompanied the Gibsons on the trip to North Carolina. The Bentleys told investigators that they had last seen the Gibsons in Asheville, North Carolina at approximately 6 p.m. on August 8. Asheville is roughly 500 miles away from Elgin, Ohio.
Although the state informed Spirko that investigators had spoken with Margie Gibson and Michael Bentley, it failed to disclose the fact that the investigators had received physical evidence during those interviews. The Bentleys provided the investigators with receipts from an automotive store in North Carolina dated August 7 and from a hotel in Newport, Tennessee where the Bentleys stayed on the night of August 8, along with 40 photos of themselves and the Gibsons that were allegedly taken that weekend. Margie Gibson provided investigators with 18 similar photos allegedly taken during the same period of time. All of the photos showed Gibson with a full beard. These photos and the receipts corroborate Gibson’s alibi and therefore tend to prove, although they cannot conclusively demonstrate, that both the government’s theory of the case and Sie-bert’s eyewitness identification were faulty. Because the withheld physical evidence appears to be both exculpatory and impeaching, it is favorable to Spirko within the meaning of Brady.
B. Was the evidence at issue suppressed by the state?
Brady next requires us to determine whether the evidence in question was suppressed by the state. This court has held that Brady is not violated where the defendant is “aware of the essential facts that would enable him to take advantage of the exculpatory evidence,” even if the government does not disclose the evidence itself. United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990).
In Todd, the government refused to disclose reports prepared after FBI interviews with Todd’s brother and the brother’s girlfriend. Id. at 404. This court concluded that no Brady violation occurred because Todd was informed before trial that both interviewees had potentially exculpatory information, and Todd had an opportunity to interview them. Id. at 405. The “essential facts” in Todd, then, were the identities of the two potential witnesses; once Todd had that information, he was free to interview them in order to obtain the exculpatory evidence.
In the present case, in contrast, the issue is not whether Spirko could have interviewed the Gibsons and the Bentleys, but whether he could have obtained the photos and receipts that they had given to the state. The prosecution informed Spir-ko only that “pictures are purported to have been taken of the weekend in question.” This statement is misleading. A statement informing Spirko that investiga*617tors had received pictures that were purportedly of the weekend in question would have been accurate; but it was entirely incorrect for the prosecution to say that “pictures are purported to have been taken” At the time the statement was made, the prosecution knew that photos had in fact been taken and were in the state’s possession. There was nothing “purported” about those facts. But the statement to Spirko suggested that the state possessed no photos. And the prosecution made no mention of the Bentley’s receipts that tended to corroborate Gibson’s presence in North Carolina on the date of the abduction.
Unlike the situation in Todd, Spirko was not “aware of the essential facts that would enable him to take advantage of the exculpatory evidence.” 920 F.2d at 405. The “essential facts” in this case appear to be that the state possessed material photos and receipts, and these facts were not disclosed to Spirko. Todd is therefore distinguishable. Spirko has thus presented a prima facie case that the physical evidence at issue was suppressed by the state, satisfying the second component of a Brady violation.
C. Was Spirko prejudiced by the suppression of the favorable evidence?
The final step in the Brady analysis is to determine whether Spirko was prejudiced by the state’s suppression of evidence favorable to his defense. In other words, does the suppression of the pertinent evidence “undermine[ ] confidence in the outcome of the trial”? Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quotation marks omitted). This question effectively requires us to assess the probability of a different outcome if the state had disclosed its possession of the photos and receipts to Spirko. Spirko has presented some evidence on this point. His trial counsel have signed affidavits stating that they doubted the credibility of Gibson’s alibi and therefore did not pursue that line of defense. The lawyers contend that if they had known about the evidence corroborating Gibson’s alibi, they would have used that evidence to attack the state’s case at trial.
Whether this would have been sufficient to change the jury’s verdict or Spirko’s sentence is very much in dispute. The majority contends that using the Gibson alibi evidence would have actually increased Spirko’s chances of conviction and a death sentence because
the Gibson evidence not only does not eliminate Spirko as the perpetrator, it eliminates his best defense. If Gibson was not a participant in the murder, then he was not, as Spirko told the investigators and claimed at trial, the source of all of Spirko’s detailed knowledge of the crime. And if Spirko did not learn the details of this crime from Gibson, from whence did all of that detail come?
Maj. Op. at 611. But Spirko presents an equally plausible, but very different, outcome:
If the prosecution had fulfilled its Brady obligations, Mr. Spirko would not have testified as to Delaney Gibson’s alleged involvement.... Moreover, had the prosecution turned over the Brady material, Mr. Spirko’s attorneys could have used it to show that his statements to investigators concerning Delaney Gibson — like all of his other statements— were not true.... Armed with this evidence, the defense would have destroyed the prosecution’s fundamental theory of the case, would have completely undermined Mrs. Siebert’s testimony, and would have discredited Mr. Spirko’s statements to investigators concerning Delaney Gibson. Such evidence plainly *618would have had a significant impact on the overall trial....
Spirko further states that
even if [his] statements to investigators included information that only someone involved in the crime could know, such statements do not demonstrate that [he] was involved in the crime. He could well have obtained the information from someone who was (or even was not) involved in the crime or he could have obtained the information from the investigators themselves.
Spirko’s arguments are at least plausible. I am therefore unable to say with confidence that the prosecution’s failure to disclose the photos and receipts was harmless. Because “the government’s ev-identiary suppression undermines confidence in the outcome of the trial,” “[a] reasonable probability of a different result is accordingly shown.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quotation marks omitted).
The Fifth Circuit made this point in a similar case involving an alleged Brady violation: “This is a capital case ... and one moreover in which our reading of the evidence shows there is a real possibility that the wrong man is to be executed. In such a case, if ever, petitioner should receive the benefit of the doubt.” Lindsey v. King, 769 F.2d 1034, 1043 (5th Cir.1985); see also Kyles, 514 U.S. at 422, 115 S.Ct. 1555 (stating that a federal court’s “duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case”). Like the Fifth Circuit in Lindsey, we are dealing with a capital case where the defendant’s conviction and death sentence rests on relatively weak evidence- — -the three shaky pillars discussed above. I therefore believe that any doubt about whether there is a reasonable probability of a different result should be resolved in favor of Spirko.
III. EVIDENTIARY HEARING
For all of the reasons set forth above, this court should remand the case to the district court for an evidentiary hearing on Spirko’s Brady claim. Under pre-AEDPA law, which we must follow in this case, a habeas petitioner is entitled to an eviden-tiary hearing if “for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 6, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Spir-ko points out that, despite his requests, he has not received an evidentiary hearing on his Brady claim in any state or federal court. An evidentiary hearing would allow the district court to determine whether the state in fact violated Spirko’s constitutional rights by not turning over to the defense the photos and receipts in its possession. Accordingly, this court should vacate the judgment of the district court and remand the case for an evidentiary hearing on Spirko’s Brady claim.