dissenting:
Persuaded by a jury’s verdict against him, Dino Dinardo now admits his role in the robbery of the Horseshoe Bar in 1983 and murder of a bystander. Buoyed by the hope of a lesser sentence and his professed remorse for his role in the crime, Dinardo became the state’s central witness against Charles Murdoch. In Murdoch I this court concluded that “[t]he record strongly suggests that without Dinardo’s accomplice testimony, the prosecution’s case against Murdoch was weak.” 365 F.3d 699, 701 (9th Cir.2004).
We must now determine whether a letter, given by Dinardo to his counsel before his trial but withheld from Murdoch because of the attorney-client privilege, would have been so crucial to Murdoch’s effective cross-examination of Dinardo that the court’s failure to disclose it violated Dinardo’s Sixth Amendment right to confrontation. The majority discounts the value of the letter because it contains the routine and unsubstantiated denials of a man charged with a crime and because, in any event, Dinardo was effectively cross-examined without it. I reach a different conclusion and therefore respectfully dissent.
I.
The court in Murdoch I, without the benefit of the privileged letter which was then unavailable, resolved a threshold question: it concluded that a criminal defendant’s rights under the Sixth Amendment may overcome a third party’s assertion of the attorney-client privilege. See id. at 706. It also speculated that Dinar-do’s letter could provide additional impeachment evidence that would render his testimony useless to the state, and thus remanded the case for the district court to obtain and review in camera the contents of the letter:
Other than Dinardo’s predictable denial when arrested for his involvement in the crime, the privileged letter is the only evidence of prior (purportedly) inconsistent statements by Dinardo regarding Murdoch’s involvement in the robbery and murder. General impeachment for bias based on his plea bargain questioned Dinardo’s reliability and trustworthiness in a much different (and lesser) way than would actual statements inconsistent with what he was then saying on the stand. Thus, Murdoch’s ability to fully cross examine Dinardo was severely limited by the privilege ruling.
Murdoch I, 365 F.3d at 705. We, however, are not limited to engaging in conjecture. The text of the letter is now before us.
Because the attorney-client privilege still shields the letter by virtue of the majority’s opinion, I shall not interfere with the privilege by describing the letter’s content in any greater detail than the majority or the magistrate judge. It is, however, possible to accurately and almost fully reconstruct the letter from those materials and Dinardo’s testimony against Murdoch. I have endeavored to do so here.
Dinardo’s letter is dated December 1, 1994, about five months after his arrest on June 29, 1994. The robbery and murder occurred over eleven years earlier on May *107117, 1983. At the time of his arrest and also at the time he wrote the letter, Dinar-do knew that a fingerprint found on the Horseshoe Bar’s cash register connected him to the crime. His testimony at Murdoch’s trial also indicates that, on his initial arrest, he was unaware that the police suspected him of complicity in the murder that occurred during the robbery. Dinar-do thought the police had arrested him only for robbery, but learned of the murder charge when he arrived at the jail in Long Beach, California.
This is my reconstruction of the letter that Dinardo sent to his counsel as he awaited trial:
I would like to make a statement about the facts surrounding my arrest for robbery and murder. I was taking care of my young daughter when Long Beach police arrested me at my home in Berkeley. Two policemen, Detective Pavek and his partner, took me to the Berkeley Police Department and interviewed me. I wanted to get back to my daughter as I worried about her welfare. At that time, Detective Pavek coerced a statement from me and promised not to charge me if I made a statement that Charles Murdoch participated in the crime. But, I do not actually know Mr. Murdoch, although I know his brother. Mr. Murdoch and I did not commit any crime.
I draw particular attention to the final sentence, which I take from the magistrate judge’s characterization of the letter: Mr. Murdoch and I “did not commit any crime.”
The magistrate judge asserted that this statement is a denial both of Dinardo’s participation in the crime and Murdoch’s. As such, he continues, it is at least half false because police found Dinardo’s fingerprint on the cash register. However, it is clear in the letter that Dinardo does not disavow his own participation in the crime. After all, he knew that he had left his fingerprint. The sentence serves, at least implicitly, to say that Murdoch was not with Dinardo at the scene of the crime, which written statement directly contradicts Dinardo’s trial testimony.
What a boon to Murdoch. After showing Dinardo the letter to refresh his recollection, Murdoch’s counsel could have undermined any reliance on his testimony that Murdoch participated in the crime. The majority depicts Dinardo’s letter as “run[ning] contrary to” his and others’ testimony at Murdoch’s trial. I agree, but the truth of Dinardo’s statements in the letter is beside the point. Murdoch’s counsel was able on cross-examination to show only that Dinardo initially denied his involvement in the crime, made some inconsistent statement, and, because he hoped to gain a reduction of his sentence, had an incentive to provide testimony favorable to the state regardless of its truthfulness.
The majority concludes this was sufficient to undermine the jury’s confidence in Dinardo but, as this court in Murdoch I suggested, general impeachment is inferior to impeachment based on a prior inconsistent statement. See Murdoch I, 365 F.3d at 705.
The letter and its disavowal of Murdoch’s involvement in the crime would have been the piece de resistance, leading inextricably to the conclusion that Dinardo was not only generally unreliable but also untrustworthy regarding the one element of his testimony that the jury (as its verdict demonstrates) must have believed.
The concluding question on cross-examination of Dinardo seems obvious: “Were you lying then or are you lying now?” What juror would give credence to any statement of Dinardo? The prosecution’s *1072case relying on this lying witness would collapse.
II.
The remaining evidence, as the court in Murdoch I suggested when it remarked that the state’s case was otherwise “weak,” 365 F.3d at 701, cannot sustain Murdoch’s guilt. The evidence consisted primarily of three eyewitness identifications, but each is flawed. Dyanne Spence, a bartender at the Horseshoe Bar, provided the most confident identification after viewing Murdoch in a 1994 live line-up, testifying that he carried the rifle during the robbery “beyond a shadow of a doubt.” But, at the time of the crime, she could not positively identify his image in a photographic lineup. Carol Halliburon, a patron of the bar, testified that Murdoch “look[ed] very similar” to the rifle-bearer. Finally, Edward Snow, another patron, equivocated when he testified:
Q Do you see anybody in the courtroom today that you saw that night?
A It’s been 13 years. And I can’t be positive.
Q Do you see somebody who looks familiar?
A I would say the person sitting next to the gentleman here — [Murdoch]
Other testimony demonstrated only a social relationship between Dinardo and Murdoch. Without belief in Dinardo’s accomplice testimony, this collection of tenuous identifications is alone insufficient to relegate Murdoch to prison for life without the possibility of parole.
III.
The value of Dinardo’s letter to Murdoch’s counsel is unquestionable. Our examination of the letter following the court’s remand in Murdoch I has borne out the prior court’s suspicion. Murdoch may have been able to generally impeach Dinardo without the letter, but the letter would have provided a prior inconsistent statement undermining the heart of his testimony. See Murdoch I, 365 F.3d at 705. Its impact would not have been marginal, as the majority concludes, but rather decisive, and therefore the writ of habeas corpus should be granted.