Cite as: 547 U. S. ____ (2006) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
DENVER A. YOUNGBLOOD, JR. v. WEST VIRGINIA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF APPEALS OF WEST VIRGINIA
No. 05–6997. Decided June 19, 2006
PER CURIAM.
In April 2001, the State of West Virginia indicted peti
tioner Denver A. Youngblood, Jr., on charges including
abduction of three young women, Katara, Kimberly, and
Wendy, and two instances of sexual assault upon Katara.
The cases went to trial in 2003 in the Circuit Court of
Morgan County, where a jury convicted Youngblood of two
counts of sexual assault, two counts of brandishing a
firearm, and one count of indecent exposure. The convic
tion rested principally on the testimony of the three
women that they were held captive by Youngblood and a
friend of his, statements by Katara that she was forced at
gunpoint to perform oral sex on Youngblood, and evidence
consistent with a claim by Katara about disposal of certain
physical evidence of their sexual encounter. Youngblood
was sentenced to a combined term of 26 to 60 years’ im
prisonment, with 25 to 60 of those years directly attribut
able to the sexual-assault convictions.
Several months after being sentenced, Youngblood
moved to set aside the verdict. He claimed that an inves
tigator working on his case had uncovered new and excul
patory evidence, in the form of a graphically explicit note
that both squarely contradicted the State’s account of the
incidents and directly supported Youngblood’s consensual-
sex defense. The note, apparently written by Kimberly
and Wendy, taunted Youngblood and his friend for having
been “played” for fools, warned them that the girls had
vandalized the house where Youngblood brought them,
and mockingly thanked Youngblood for performing oral
2 YOUNGBLOOD v. WEST VIRGINIA
Per Curiam
sex on Katara. The note was said to have been shown to a
state trooper investigating the sexual-assault allegations
against Youngblood; the trooper allegedly read the note
but declined to take possession of it, and told the person
who produced it to destroy it. Youngblood argued that the
suppression of this evidence violated the State’s federal
constitutional obligation to disclose evidence favorable to
the defense, and in support of his argument he referred to
cases citing and applying Brady v. Maryland, 373 U. S. 83
(1963).
The trial court denied Youngblood a new trial, saying
that the note provided only impeachment, but not exculpa
tory, evidence. The trial court did not discuss Brady or its
scope, but expressed the view that the investigating
trooper had attached no importance to the note, and be
cause he had failed to give it to the prosecutor the State
could not now be faulted for failing to share it with
Youngblood’s counsel. See App. C to Pet. for Cert. (Tr. 22–
23 (Sept. 25, 2003)).
A bare majority of the Supreme Court of Appeals of
West Virginia affirmed, finding no abuse of discretion on
the part of the trial court, but without examining the
specific constitutional claims associated with the alleged
suppression of favorable evidence. 217 W. Va. 535, 548,
618 S. E. 2d 544, 557 (2005) (per curiam). Justice Davis,
dissenting in an opinion that Justice Starcher joined,
unambiguously characterized the trooper’s instruction to
discard the new evidence as a Brady violation. Id., at
550–552, 618 S. E. 2d, at 559–561. The dissenters con
cluded that the note indicating that Youngblood engaged
in consensual sex with Katara had been suppressed and
was material, id., at 550, n. 6, 618 S. E. 2d, at 559, n. 6
(citing Kyles v. Whitley, 514 U. S. 419, 435, 437–438 (1995)),
both because it was at odds with the testimony provided by
the State’s three chief witnesses (Katara, Kimberly, and
Wendy) and also because it was entirely consistent with
Cite as: 547 U. S. ____ (2006) 3
Per Curiam
Youngblood’s defense at trial that his sexual encounters
with Katara were consensual, 217 W. Va., at 551–552, 618
S. E. 2d, at 560–561. Youngblood then filed this petition
for a writ of certiorari.
A Brady violation occurs when the government fails to
disclose evidence materially favorable to the accused. See
373 U. S., at 87. This Court has held that the Brady duty
extends to impeachment evidence as well as exculpatory
evidence, United States v. Bagley, 473 U. S. 667, 676 (1985),
and Brady suppression occurs when the government fails to
turn over even evidence that is “known only to police inves
tigators and not to the prosecutor,” Kyles, 514 U. S., at 438.
See id., at 437 (“[T]he individual prosecutor has a duty to
learn of any favorable evidence known to the others acting
on the government’s behalf in the case, including the po
lice”). “Such evidence is material ‘if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different,’ ” Strickler v. Greene, 527 U. S. 263, 280 (1999)
(quoting Bagley, supra, at 682 (opinion of Blackmun, J.)),
although a “showing of materiality does not require demon
stration by a preponderance that disclosure of the sup
pressed evidence would have resulted ultimately in the
defendant’s acquittal,” Kyles, 514 U. S., at 434. The reversal
of a conviction is required upon a “showing that the favor
able evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in
the verdict.” Id., at 435.
Youngblood clearly presented a federal constitutional
Brady claim to the State Supreme Court, see Brief for
Appellant in No. 31765 (Sup. Ct. App. W. Va.), pp. 42–47,
as he had to the trial court, see App. C to Pet. for Cert. (Tr.
6, 44–45, 50, 51 (Sept. 25, 2003)); id., at 13, 17 (Sept. 29,
2003). And, as noted, the dissenting justices discerned the
significance of the issue raised. If this Court is to reach
the merits of this case, it would be better to have the
4 YOUNGBLOOD v. WEST VIRGINIA
Per Curiam
benefit of the views of the full Supreme Court of Appeals
of West Virginia on the Brady issue. We, therefore, grant
the petition for certiorari, vacate the judgment of the State
Supreme Court, and remand the case for further proceed
ings not inconsistent with this opinion.
It is so ordered.
Cite as: 547 U. S. ____ (2006) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
DENVER A. YOUNGBLOOD, JR. v. WEST VIRGINIA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF APPEALS OF WEST VIRGINIA
No. 05–6997. Decided June 19, 2006
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
In Lawrence v. Chater, 516 U. S. 163 (1996) (per cu
riam), we greatly expanded our “no-fault V & R practice”
(GVR) beyond its traditional bounds. Id., at 179 (SCALIA,
J., dissenting). At the time, I remarked that “[t]he power
to ‘revise and correct’ for error has become a power to void
for suspicion” of error, id., at 190 (quoting Marbury v.
Madison, 1 Cranch 137, 175 (1803); alterations omitted).
And I predicted that “ ‘GVR’d for clarification of _____’ ”
would “become a common form of order, drastically alter
ing the role of this Court.” 516 U. S., at 185. Today, by
vacating the judgment of a state court simply because “[i]f
this Court is to reach the merits of this case, it would be
better to have the benefit of the views of the full Supreme
Court of Appeals of West Virginia on the Brady
issue,” ante, at 3–4, the Court brings this prediction to
fulfillment.
In Lawrence, I identified three narrow circumstances in
which this Court could, consistent with the traditional
understanding of our appellate jurisdiction (or at least
consistent with entrenched practice), justify vacating a
lower court’s judgment without first identifying error: “(1)
where an intervening factor has arisen [e.g., new legisla
tion or a recent judgment of this Court] that has a legal
bearing upon the decision, (2) where, in a context not
governed by Michigan v. Long, 463 U. S. 1032 (1983),
clarification of the opinion below is needed to assure our
jurisdiction, and (3) (in acknowledgment of established
2 YOUNGBLOOD v. WEST VIRGINIA
SCALIA, J., dissenting
practice, though not necessarily in agreement with its
validity) where the respondent or appellee confesses error
in the judgment below.” 516 U. S., at 191–192 (dissenting
opinion). Needless to say, today’s novel GVR order falls
into none of these categories. There has been no interven
ing change in law that might bear upon the judgment.
Our jurisdiction is not in doubt, see ante, at 3; State v.
Frazier, 162 W. Va. 935, 942, n. 5, 253 S. E. 2d 534, 538,
n. 5 (1979) (petitioner’s Brady claim was properly pre
sented in his motion for a new trial). And the State has
confessed no error—not even on the broadest and least
supportable theory of what constitutes an error justifying
vacatur. See, e.g., Alvarado v. United States, 497 U. S.
543, 545 (1990) (Rehnquist, C. J., dissenting) (vacating
when the Solicitor General confessed error in the lower
court’s “ ‘analysis,’ ” but not its judgment); Stutson v.
United States, 516 U. S. 193 (1996) (per curiam) (vacating
when the Solicitor General confessed error in a position
taken before the Court of Appeals, on which the court
might have relied; discussed in Lawrence, supra, at 184–
185 (SCALIA, J., dissenting)); Department of Interior v.
South Dakota, 519 U. S. 919, 921 (1996) (SCALIA, J., dis
senting) (vacating when “the Government, having lost
below, wishes to try out a new legal position”). Here, the
Court vacates and remands in light of nothing.
Instead, the Court remarks tersely that it would be
“better” to have “the benefit” of the West Virginia court’s
views on petitioner’s Brady claim, should we eventually
decide to take the case. Ante, at 3–4. The Court thus
purports to conscript the judges of the Supreme Court of
Appeals of West Virginia to write what is essentially an
amicus brief on the merits of an issue they have already
decided, in order to facilitate our possible review of the
merits at some later time. It is not at all clear why it
would be so much “better” to have the full court below
address the Brady claim. True, we often prefer to review
Cite as: 547 U. S. ____ (2006) 3
SCALIA, J., dissenting
reasoned opinions that facilitate our consideration—
though we may review even a summary disposition. See
Lawrence, supra, at 186 (SCALIA, J., dissenting). But the
dissenting judges in the case below discussed petitioner’s
Brady claim at some length (indeed, at greater length
than appears in many of the decisions we agree to review),
and argued that it was meritorious. See 217 W. Va. 535,
549–552, 618 S. E. 2d 544, 558–561 (2005) (Davis, J.,
joined by Starcher, J., dissenting). Since we sometimes
review judgments with no opinion, and often review judg
ments with opinion only on one side of the issue, it is not
clear why we need opinions on both sides here.
To tell the truth, there is only one obvious sense in
which it might be “better” to have the West Virginia court
revisit the Brady issue: If the majority suspects that the
court below erred, there is a chance that the GVR-in-light
of-nothing will induce it to change its mind on remand,
sparing us the trouble of correcting the suspected error. It
is noteworthy that, to justify its GVR order, the Court does
not invoke even the flabby standard adopted in Lawrence,
namely whether there is “a reasonable probability that the
decision below rests upon a premise that the lower court
would reject if given the opportunity for further considera
tion,” 516 U. S., at 167. That is because (there being no
relevant intervening event to create such a probability)
the only possibility that the West Virginia court will alter
its considered judgment is created by this Court’s GVR
order itself. A case such as this, which meets none of the
usual, outcome-neutral criteria for granting certiorari set
forth in this Court’s Rules 10(a)–(c), could attract our
notice only if we suspected that the judgment appealed
from was in error. Those whose judgments we review
have sometimes viewed even our legitimate, intervening-
event GVR orders as polite directives that they reverse
themselves. See, e.g., Sharpe v. United States, 712 F. 2d
65, 67 (CA4 1983) (Russell, J., dissenting) (“Once again, I
4 YOUNGBLOOD v. WEST VIRGINIA
SCALIA, J., dissenting
think the majority has mistaken gentleness in instruction
for indefiniteness in command. The Supreme Court was
seeking to be gentle with us but there is, I submit, no
mistaking what they expected us to do”). How much more
is that suspicion justified when the GVR order rests on
nothing more than our statement that it would be “better”
for the lower court to reconsider its decision (much as a
mob enforcer might suggest that it would be “better” to
make protection payments).
Even when we suspect error, we may have many rea
sons not to grant certiorari outright in a case such as
this—an overcrowded docket, a reluctance to correct “the
misapplication of a properly stated rule of law,” this
Court’s Rule 10, or (in this particular case) even a neo-
Victorian desire to keep the lurid phrases of the “graphi
cally explicit note,” ante, at 1, out of the U. S. Reports.
But none of these reasons justifies “a tutelary remand, as
to a schoolboy made to do his homework again.” Law
rence, 516 U. S., at 185–186 (SCALIA, J., dissenting). In
“the nature of the appellate system created by the Consti
tution and laws of the United States,” id., at 178, state
courts and lower federal courts are constitutionally dis
tinct tribunals, independently authorized to decide issues
of federal law. They are not, as we treat them today, “the
creatures and agents of this body,” id., at 178–179. If we
suspect that a lower court has erred and wish to correct its
error, we should grant certiorari and decide the issue
ourselves in accordance with the traditional exercise of our
appellate jurisdiction.
It is particularly ironic that the Court inaugurates its
“GVR-in-light-of-nothing” practice by vacating the judg
ment of a state court. Our no-fault GVR practice had its
origins “in situations calling forth the special deference
owed to state law and state courts in our system of feder
alism.” Id., at 179. We first used it to allow the state
court to decide the effect of an intervening change in state
Cite as: 547 U. S. ____ (2006) 5
SCALIA, J., dissenting
law. Ibid. (citing Missouri ex rel. Wabash R. Co. v. Public
Serv. Comm’n, 273 U. S. 126 (1927)). Likewise, our other
legitimate category of no-fault GVR—to ensure our own
jurisdiction—“originate[d] in the special needs of federal
ism.” Lawrence, 516 U. S., at 181. In vacating the judg
ment of a state court for no better reason than our own
convenience, we not only fail to observe, but positively
flout the “special deference owed to . . . state courts,” id.,
at 179. Like the Ouroboros swallowing its tail, our GVR
practice has ingested its own original justification.
Chief Justice Marshall wrote in Marbury v. Madison
that “[i]t is the essential criterion of appellate jurisdiction,
that it revises and corrects the proceedings in a cause
already instituted . . . .” 1 Cranch, at 175. At best, today’s
unprecedented decision rests on a finding that the state
court’s “opinion, though arguably correct, [is] incomplete
and unworkmanlike,” Lawrence, 516 U. S., at 189 (SCALIA,
J., dissenting)—which all Members of the Court in Law
rence agreed was an illegitimate basis for a GVR, see id.,
at 173 (per curiam). At worst, it is an implied threat to
the lower court, not backed by a judgment of our own, that
it had “better” reconsider its holding.
I suppose it would be available to the West Virginia
Supreme Court of Appeals, on remand, simply to reaffirm
its judgment without further elaboration. Or it could
instead enter into a full discussion of the Brady issue,
producing either a reaffirmance or a revision of its judg
ment. The latter course will of course encourage and
stimulate our new “GVR-in-light-of-nothing” jurispru
dence. Verb. sap.
For these reasons, I respectfully dissent.
Cite as: 547 U. S. ____ (2006) 1
KENNEDY, J., dissenting
SUPREME COURT OF THE UNITED STATES
DENVER A. YOUNGBLOOD, JR. v. WEST VIRGINIA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF APPEALS OF WEST VIRGINIA
No. 05–6997. Decided June 19, 2006
JUSTICE KENNEDY, dissenting.
The Court’s order to grant, vacate, and remand (GVR) in
Lawrence v. Chater, 516 U. S. 163 (1996) (per curiam), had
my assent. In that case there was a new administrative
interpretation that the Court of Appeals did not have an
opportunity to consider. Id., at 174. The Court today
extends the GVR procedure well beyond Lawrence and the
traditional practice of issuing a GVR order in light of some
new development. See id., at 166–167. Since the issuance
of a GVR order simply for further explanation is, as
JUSTICE SCALIA explains, see ante, p. ___, both improper
and contrary to our precedents, I respectfully dissent.