18-2336

McCray v. Capra

United States Court of Appeals

For the Second Circuit

August Term 2020

Argued: September 16, 2020

Decided: August 17, 2022

No. 18-2336

TERENCE SANDY MCCRAY,

Petitioner-Appellant,

v.

MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of New York

No. 15-cv-1129, James K. Singleton, Jr., Judge.

Before: JACOBS, LYNCH, AND SULLIVAN, Circuit Judges.

Terrence Sandy McCray appeals from a judgment of the United States 

District Court for the Northern District of New York (Singleton, J.) denying his 

petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his conviction 

in New York state court for first-degree rape. McCray argues principally that the 

state trial court violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and 
2

the Sixth Amendment’s Confrontation Clause by denying him full access to the 

victim-witness’s mental health records. Because we conclude that the New York 

Court of Appeals’s application of Brady and its progeny was not unreasonable and 

that there is no binding Supreme Court precedent stating that a defendant’s right 

to confrontation extends to pretrial discovery, we AFFIRM the district court’s 

judgment denying McCray’s petition.

Judge Jacobs dissents in a separate opinion.

AFFIRMED.

JONATHAN I. EDELSTEIN, Edelstein & 

Grossman, New York, NY, for PetitionerAppellant.

PRISCILLA STEWARD, Assistant Attorney 

General (Barbara D. Underwood, 

Solicitor General, and Nikki Kowalski, 

Deputy Solicitor General for Criminal 

Matters, on the brief), for Letitia James, 

Attorney General of the State of New 

York, New York, NY, for RespondentAppellee.

RICHARD J. SULLIVAN, Circuit Judge:

Petitioner Terrence Sandy McCray appeals from a judgment of the United 

States District Court for the Northern District of New York (Singleton, J.) denying 

his petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his 

conviction in New York state court for first-degree rape. The underlying criminal 
3

case was ultimately a credibility contest. According to the victim,1 she was 

violently raped by McCray. According to McCray, he and the victim had 

consensual sex, the victim subsequently demanded money from him, he refused,

she tried to steal his pants and his cash, a brief struggle ensued, and the victim left. 

The physical evidence – including photos of the victim’s bruised face and the bite 

marks on McCray’s arm – was consistent with both stories. Before trial, the 

prosecution informed McCray that the victim had a history of mental illness,

which prompted McCray to request all of her mental health records. The trial 

court conducted an in camera review of the victim’s full mental health records, 

which totaled more than 5,000 pages, and disclosed to McCray a 

twenty-eight-page sample that it deemed representative. At trial, the prosecution 

elicited testimony from the victim regarding her mental health, and the defense 

vigorously cross-examined her on that subject. The jury returned a guilty verdict.

On direct appeal in the New York state courts, McCray challenged the 

decision to provide him with only a sample of the victim’s mental health records, 

arguing that doing so violated his right to due process under Brady v. Maryland, 

373 U.S. 83 (1963), and his right to confront his accuser under the Sixth 

1 Although the victim testified in open court, due to the nature of the crime against her and the 

content of the disputed records, we refrain from using her name in this opinion.
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Amendment’s Confrontation Clause. The New York Court of Appeals ultimately 

affirmed McCray’s conviction, holding that the trial court did not err by providing

a sample of the victim’s mental health records and finding that the sample was 

sufficiently representative of the records as a whole. McCray subsequently

petitioned for relief under 28 U.S.C. § 2254, which the district court denied. 

We must decide whether the New York Court of Appeals unreasonably 

applied clearly established federal law as determined by the Supreme Court of the 

United States. We conclude that it did not. Because the New York Court of 

Appeals’s application of Brady and its progeny was reasonable and there is no 

binding Supreme Court precedent providing that a defendant’s right to 

confrontation extends to pretrial discovery in a criminal case, we AFFIRM the 

district court’s denial of McCray’s petition.

I. BACKGROUND

Both the victim and McCray testified that they met in 2009 and went on a 

date in Albany, New York. After an evening of exploring Albany, McCray led the 

victim to the home of one of his friends, who let the couple in and then 

immediately retired to his bedroom. Alone on the living room couch, McCray and 

the victim started kissing. The victim testified that McCray wanted to have sex
5

after about fifteen minutes, but she refused, telling McCray that it was too early in 

their relationship. When McCray pressed the point, the victim got angry with him 

and stormed out of the apartment. McCray chased her down on the street outside 

to apologize. The victim eventually accepted McCray’s apology and proceeded to 

walk around Albany with him until about midnight. According to the victim, 

McCray then led her to an abandoned house, where he violently raped her. 

After she left the abandoned house, the victim – then weeping and 

struggling to speak – called 911 from a nearby payphone. She told the operator 

that McCray had beaten her, made her beg for her life, and raped her. A police 

officer approached the victim while she was on the phone and saw blood on her 

clothes and face. Photographs taken later that morning and hospital records show 

that the victim had abrasions and bruises on her left arm and left cheek, as well as 

lacerations on the inside of her mouth. A DNA test on samples of semen recovered 

from the victim’s vagina and breasts matched McCray’s DNA. 

A week later, an Albany County grand jury indicted McCray on the charge 

of first-degree rape. Before trial, the prosecution provided the defense with a 

synopsis of the victim’s mental health history, including information about her 

hospitalizations; her diagnoses of bipolar disorder, epilepsy, Tourette’s syndrome, 
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attention deficit disorder, and post-traumatic stress disorder (“PTSD”); and her 

histories of hypersexuality and auditory and visual hallucinations. The 

prosecution also disclosed the victim’s allegations that she had been the victim of 

three prior sexual-abuse incidents. Following these disclosures, McCray sought 

all of the victim’s mental health records relating to her testimonial capacity, 

memory, and/or credibility. The trial court directed that the records be submitted 

in camera so that it could review the records and determine which were material 

and needed to be disclosed to the defense. After reviewing more than 5,000 pages 

of the victim’s mental health records, the trial court provided the defense with a 

twenty-eight-page sample it deemed representative of the relevant corpus of 

documents. On direct examination, the victim told the jury about her mental 

health diagnoses and the medications she took at the time of the incident. She was 

also cross-examined at length by defense counsel about her mental health status 

and treatment. 

Following the prosecution’s case, McCray elected to testify in his own 

defense. During that testimony, McCray disputed key portions of the victim’s 

testimony and stated unequivocally that the sexual encounter was completely 

consensual. The jury ultimately returned a verdict finding McCray guilty of 
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first-degree rape. He was subsequently sentenced to twenty-two years’ 

imprisonment.

McCray appealed to the Appellate Division, Third Department, which 

affirmed his conviction. See People v. McCray (McCray I), 958 N.Y.S.2d 511, 514

(3d Dep’t 2013). He then appealed to the New York Court of Appeals, which also 

affirmed. See People v. McCray (McCray II), 23 N.Y.3d 193, 196 (2014). One of 

McCray’s key arguments on direct appeal was that the trial court violated his 

confrontation and due process rights by refusing to provide him with the victim’s

full mental health records. The New York courts rejected this argument. 

In 2015, McCray petitioned pro se for a writ of habeas corpus under 

28 U.S.C. § 2254 in the Northern District of New York. The district court denied 

the petition, finding that the New York Court of Appeals’s conclusion that the 

withheld documents were not material was not “unreasonable or contrary to Brady

or its progeny.” McCray v. Capra (McCray III), No. 15-cv-1129 (JKS), 2018 

WL 3559077, at *11 (N.D.N.Y. July 24, 2018). The district court nonetheless granted 

a certificate of appealability on the sole question of whether the nondisclosure of 

the victim’s mental health records violated Brady. McCray filed a counseled 

motion to expand the certificate of appealability to include the question of whether 
8

the nondisclosure of the victim’s mental health records also violated his Sixth 

Amendment right to confrontation, which this Court granted. 

II. STANDARD OF REVIEW

We review the denial of a section 2254 petition de novo. Scrimo v. Lee, 935 

F.3d 103, 111 (2d Cir. 2019). A federal court may not grant a writ of habeas corpus 

pursuant to section 2254 unless (1) the state court’s decision was “contrary to, or 

involved an unreasonable application of, clearly established [f]ederal law, as 

determined by the Supreme Court of the United States,” or (2) the state court’s 

decision was “based on an unreasonable determination of the facts in light of the 

evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d); see also 

Harrington v. Richter, 562 U.S. 86, 100 (2011). On a habeas petition under 

section 2254, we review the “last reasoned decision” by the state court, Ylst v. 

Nunnemaker, 501 U.S. 797, 804 (1991), only for the “reasonableness” of its 

bottom-line “result,” not the “quality of [its] reasoning,” Sellan v. Kuhlman, 261 

F.3d 303, 312 (2d Cir. 2001) (citation omitted). Thus, we extend considerable 

“deference” even to “deficient reasoning . . . , at least in the absence of an analysis 

so flawed as to undermine confidence that the constitutional claim has been fairly 

adjudicated.” Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (internal citations 
9

omitted). Put differently, our review under section 2254 is not “a substitute for 

ordinary error correction through appeal.” Richter, 562 U.S. at 102–03 (citation 

omitted). Rather, it “functions as a guard against extreme malfunctions in the state 

criminal justice systems.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation 

marks omitted).

A state court’s decision is contrary to clearly established federal law when 

it “applies a rule that contradicts the governing law set forth in [Supreme Court 

caselaw] or . . . confronts a set of facts that are materially indistinguishable from a 

decision of [the Supreme] Court and nevertheless arrives at a result different from 

[Supreme Court] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal 

quotation marks omitted); see also Fuentes v. Griffin, 829 F.3d 233, 244 (2d Cir. 2016). 

“[C]learly established law as determined by [the Supreme] Court refers to the 

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time 

of the relevant state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660–61 

(2004) (internal quotation marks omitted). Under this standard, a federal court 

may not issue a writ of habeas corpus simply because it thinks the state court 

“applied clearly established federal law erroneously or incorrectly.” Williams v. 

Taylor, 529 U.S. 362, 411 (2000). Instead, relief is warranted under section 2254 only 
10

“where there is no possibility fair[-]minded jurists could disagree that the state 

court’s decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 U.S. 

at 102; see also Mays v. Hines, 141 S. Ct. 1145, 1149 (2021); Shinn v. Kayer, 141 S. Ct. 

517, 520 (2020). As the Supreme Court has noted, if this standard is difficult to 

meet, that is “because it was meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 

2558 (2018) (quoting Richter, 562 U.S. at 102); see also Burt v. Titlow, 571 U.S. 12, 20 

(2013). 

III. DISCUSSION

McCray argues that the New York Court of Appeals unreasonably applied 

clearly established federal law in finding that the trial court’s withholding of the 

victim’s full mental health records did not violate his right to due process under 

Brady and his right to confront his accuser under the Sixth Amendment’s 

Confrontation Clause. We discuss McCray’s due process and Confrontation 

Clause claims in turn. 

A. McCray’s Due Process Claim

Due process requires disclosure of evidence that is “favorable to [the]

accused” and “material either to guilt or to punishment.” Brady, 373 U.S. at 87. 

So-called Brady material includes both evidence that is exculpatory and evidence 
11

that can be used to impeach a prosecution witness whose credibility may be 

“determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150, 154

(1972). Still, the prosecutor is not obligated to “deliver his entire file to defense 

counsel.” United States v. Bagley, 473 U.S 667, 675 (1985) (plurality opinion); see also 

Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“[The Supreme Court] ha[s] never held 

that the Constitution demands an open file policy.”). Only evidence that is material

raises due process concerns. See Wearry v. Cain, 577 U.S. 385, 392 (2016) (citing 

Brady, 373 U.S. at 87); Turner v. United States, 137 S. Ct. 1885, 1888 (2017).

The “touchstone of materiality” is whether there is a “reasonable 

probability” that the result of the trial would have been different had the relevant 

evidence been disclosed to the defendant. Kyles, 514 U.S. at 434. A reasonable 

probability is “the likelihood of a different result [that] is great enough to 

undermine confidence in the outcome of the trial.” Smith v. Cain, 565 U.S. 73, 75 

(2012) (alterations and internal quotation marks omitted). The materiality of the 

undisclosed evidence is evaluated “in the context of the entire record.” Turner, 137 

S. Ct. at 1893. Although this determination is “legally simple,” it can be “factually 

complex.” Id.
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The relative generality of the Brady rule interacts with the habeas standard 

in a way that is critical to McCray’s case. As the Supreme Court has said:

[T]he range of reasonable judgment may be narrow. Applications of 

the rule may be plainly correct or incorrect. Other rules are more 

general, and their meaning must emerge in application over the 

course of time. . . . The more general the rule, the more leeway courts 

have in reaching outcomes in case-by-case determinations.

Yarborough, 541 U.S. at 664. The Brady rule is a general rule, as it does not identify 

specific materials that prosecutors must turn over to defendants, but rather asks –

after the fact – whether the failure of those prosecutors to turn over certain 

evidence denied the defendant a fair trial – a question that is a matter of judgment 

rather than one with a clear, obvious answer.

McCray contends that “the nondisclosure of the [victim’s] full medical 

records” violated his constitutional rights and constituted an unreasonable 

application of clearly established federal law, as determined by the Supreme 

Court. McCray’s Br. at 34–35. Specifically, McCray asserts that the New York 

Court of Appeals incorrectly determined that (1) the trial court had provided him

with a sufficient, representative sample of the victim’s mental health records,

(2) there was nothing in the undisclosed records suggesting that the victim had a 

tendency to make accusations she knew to be false, and (3) one of the suppressed 

documents – recounting that the victim had accused her father of sexual assault 
13

and that the allegation was unfounded – was immaterial. Because we review the 

undisclosed evidence not piecemeal but cumulatively, see Kyles, 514 U.S. at 440–

41, and because we address only the reasonableness of the state court’s decision 

and not its rationale, see Cruz, 255 F.3d at 86, all three arguments merge into the 

first and can be addressed together.

As an initial matter, there is nothing in the Supreme Court’s caselaw to 

suggest that providing only a sample of the victim’s mental health records was 

improper. As noted above, the Supreme Court has “never held that the 

Constitution demands an open file policy,” Kyles, 514 U.S. at 437, and not every 

document that could be used to impeach a witness is so devastating that depriving 

a defendant of it “undermine[s] confidence in the outcome of the trial,” Smith, 565

U.S. at 75. Here, much of the victim’s file was duplicative of those portions of the 

file that were produced. Given that redundancy and the fact that many of the 

documents in the file were otherwise irrelevant to the victim’s credibility as a 

witness, it was not objectively unreasonable or an extreme malfunction of the 

state’s criminal justice system for the state trial court to provide only a 

representative sample of the victim’s mental health records. The question, then, is 

whether there was material information in the withheld documents. The New 
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York Court of Appeals answered that there was not. We hold that fair-minded 

jurists could agree with that conclusion.

The twenty-eight pages that were provided to McCray include a remarkable 

amount of information about the victim, including her history of hospitalizations 

for mental health episodes; information concerning her memory loss; her 

hypersexuality and sexually risky behaviors, including her history of sexual 

activity with older men; her poor judgment in sexual interactions; two previous 

incidents in which she alleged forced intercourse (one at age twelve with a 

sixteen-year-old male and one at age fourteen with a twenty-five-year-old male) 

and reported symptoms of significant trauma; her history of being physically 

abused by her father; her self-harming behaviors, including one incident where 

she carved a cross into her hand; her patterns of inappropriate and unsafe 

behaviors; her poor impulse control; her epilepsy; her psychotic symptoms, which 

include visual and auditory hallucinations; her violent responses to traumatic 

flashbacks of prior sexual abuse; the psychotropic medications that she was 

prescribed, as well as other treatments such as anger management, family therapy, 

and group therapy that she undertook; her erratic use of prescription medications 

and inconsistent compliance with her therapy programs; her “bizarre and 
15

psychotic behaviors” and mood cycling from depressive to explosive; and her 

“explosive,” “threatening,” “aggressive,” and even “rageful” behaviors when 

angry. Sealed R. at 429–55. 

In addition to information contained in the pretrial disclosure to McCray,

the victim testified on direct examination about her mental health diagnoses and 

the medications she had been taking at the time of the incident. On 

cross-examination, she reaffirmed that she had been diagnosed with PTSD and

other mental illnesses, and that she had been treated at two different mental health 

facilities around the time of the events in question. More specifically, the victim 

testified that one of the reasons she had been receiving bipolar disorder 

medications was that she could become explosively angry and physically strike 

others. She conceded that she did not always take her medication and that she 

could not recall whether she had taken her medication on the night she was raped. 

She likewise testified that she had engaged in self-harm, including cutting herself,

and that the marks the officers found on her arms after the rape were self-inflicted. 

Finally, the victim testified that she had visualized her deceased grandfather and 

that there have been times that she could sense the presence of dead people. 
16

It is against this entire record that the state court needed to compare the 

withheld documents to determine whether they were material. See Turner, 137 

S. Ct. at 1893. After conducting our own review of the undisclosed records, we 

conclude that the state court’s decision to withhold them from the defense was not 

an unreasonable application of clearly established federal law. Between the 

sample provided to McCray and the victim’s testimony in open court, McCray had 

ample material with which to impeach the victim’s credibility at trial and more 

than sufficient information to prompt defense counsel to pursue the victim’s 

mental health as a potential avenue for impeachment. Notwithstanding the 

victim’s serious and tragic struggles with mental illness, the jury still found her to 

be credible. There is nothing in the undisclosed records that could further impeach 

the victim to such an extent that our “confidence in the outcome of the trial” would 

be compromised. Smith, 565 U.S. at 75.

McCray argues that our decision in Fuentes compels the opposite result. See 

829 F.3d 233. Fuentes was a case in which “the witness’s testimony [was] the only 

evidence that there was in fact a crime.” Id. at 248. But unlike the defense in this 

case, the defense counsel in Fuentes did not have access to any of the witness’s 

relevant mental health records until he came across a “Record of Consultation” as 
17

he was leafing through the prosecution’s trial exhibits during his summation. Id. 

at 240. At that point, it was far too late for the defense to use that information to 

impeach the witness. See id. at 249. McCray, in contrast, was provided with the 

victim’s mental health records in advance of trial so that his attorneys had a 

sufficient opportunity to use them in preparing his defense and in cross-examining 

the victim. The victim also testified about her mental health on direct examination, 

which gave McCray’s attorneys ample material with which to cross-examine her 

about her mental health condition and how it might affect her credibility. 

Therefore, Fuentes does not undermine our decision here.

The dissent argues that the trial court’s decision to provide the

twenty-eight-page sample was a “miscarriage” that “is arresting,” 

“unprecedented,” and “not easily thinkable.” Dissent at 1. According to the 

dissent, McCray was “wholly denied the right to defend himself” and sentenced 

“without a trial that anyone can now deem fair.” Id. at 23. Indeed, the dissent 

insists the state’s defense of McCray’s conviction is so “disreputable” that, “[w]ere 

[Judge Jacobs] a lawyer for the [s]tate, [he] would not have been able to sign the 

brief it filed on this appeal.” Id. But whatever the dissent’s subjective views on 

the propriety of signing the state’s brief, that is not the standard we are required –
18

or permitted – to apply on a challenge pursuant to section 2254. Our inquiry is 

instead an objective one, which turns on whether the undisclosed information was 

so obviously material that no “fair[-]minded jurist could []agree on the correctness 

of [the trial court’s] decision” to withhold it. Ritcher, 562 U.S. at 101 (internal 

quotation marks omitted). We are not persuaded that this high standard has 

been met.

First, the dissent argues that the disclosed documents provided the defense 

with only the broad argument that people with mental illnesses cannot be relied 

on to tell the truth. Dissent at 4. But the full account of the disclosed documents

suggested far more than that. While the dissent states that only a “single disclosed 

document . . . involves misperception,” id. at 7, the defense in fact possessed 

thirteen different documents that touch on a wide variety of issues relating to the 

victim’s potential to misperceive situations: her memory loss, her two previous 

allegations of forced intercourse and associated trauma symptoms (including 

violent flashbacks), and her history of psychotic episodes (including visual and 

auditory hallucinations). Considered in tandem, these documents constituted 

powerful impeachment materials in and of themselves, which were more than 

enough to alert defense counsel that the victim’s difficulties with accurately 
19

perceiving reality could be a productive line of inquiry on cross examination. Not 

that defense counsel needed prompting – counsel requested the victim’s medical 

history in pretrial discovery and thoroughly cross-examined her at trial regarding 

how her mental illness might have affected her ability to accurately perceive or 

remember what happened with McCray in the abandoned house. The assertion 

that McCray was prevented from mounting a defense based on the victim’s 

“pathological failures to appreciate reality,” id. at 8, is clearly contradicted by the 

record. 

Second, the dissent makes much of a note in the victim’s Patient Care 

Activity Report stating that she confabulated stories about hospital staff. 

“Confabulate,” in both its dictionary definition and as a technical or psychological 

term, means “[t]o fill in gaps in one’s memory with fabrications that one believes 

to be facts.” Confabulate, The American Heritage Dictionary of the English 

Language (5th ed. 2011); see also The American Psychiatric Association, The 

Diagnostic and Statistical Manual of Mental Disorders 157 (4th ed. 1994) 

(“DSM-IV”) (stating that confabulation is “often evidenced by the recitation of 
20

imaginary events to fill gaps in memory”).2 Clearly, the note indicates that the 

victim may be an unreliable witness. But so do the documents that were disclosed 

to McCray, which indicate that the victim had trouble with memory loss and with

misperceiving and misremembering events. It was therefore not unreasonable for 

the New York Court of Appeals to determine that the note in the Activity Report 

was cumulative of the other impeachment materials that were provided to McCray 

prior to trial.

Third, the dissent says that two assessments indicating that the victim 

“cannot remember good experiences if she has bad experiences with someone” 

were material and should have been disclosed. Dissent at 9. The dissent spins a 

theory that McCray and the victim shared a good experience – namely, consensual 

sex in an abandoned building – followed by a bad experience pertaining to a 

post-coital struggle over money. But nothing in the documents cited by the dissent 

suggests that the victim was prone to forget good experiences within minutes of 

experiencing them, as would have had to be the case here, where the victim, 

sobbing and covered in blood, immediately ran to a payphone to call 911 and 

2 We have recognized the DSM-IV, which was the edition of the DSM in effect at the time this 

note was written, as “an objective authority on the subject of mental disorders.” Fuentes, 829 F.3d 

at 249.
21

report having been raped by McCray. Moreover, those same documents clearly 

state that when the victim does choose to remember something, her memory is 

excellent. It is dubious that these ambiguous documents would have been

especially helpful to McCray, and it was not unreasonable for the New York Court 

of Appeals to find that they were cumulative of other evidence that demonstrated 

the victim’s faulty memory and potential unreliability as a witness.

Finally, the dissent notes that the undisclosed records show that the victim 

accused her father of attempting to rape her by pinning her against a wall and that 

a mental health professional, without explanation, later deemed that allegation to 

be unfounded. According to the dissent, this prior allegation could have 

“damn[ed]” the case against McCray. Id. at 11. But the dissent fails to fully or 

accurately describe either the records at issue or the victim’s allegation against 

McCray. The records state that the victim had alleged that her father tried to rape 

her by pinning her up against the wall in a sexual position and that she could not 

recall how she got away. The victim’s allegation against McCray, however, was 

much more detailed and differed in significant respects from the allegations made 

against her father. The victim testified that once she and McCray were in the 

abandoned house, McCray backed her up against a wall, forced his tongue down 
22

her throat, and began grinding against her. She told him to stop and tried to push 

him away, but he continued, commanding, “You are going to give it to me or I’m 

going to take it.” McCray I, 958 N.Y.S.2d at 515. The victim testified that she 

punched McCray in the face, near his jaw or chin; that McCray hit her in the face 

several times and choked her from behind; that she then bit McCray’s forearm 

while he was choking her, all while begging for her life and trying to make noise 

to draw attention, until she finally gave up and fell to her hands and knees; and 

that McCray then raped her on the floor of the abandoned house. When it was 

over and the victim got up to leave, McCray told her, “Don’t go out there looking 

like that.” Id. at 516. She wiped the tears and blood from her face and then went 

out the same way they had entered, only to immediately call the police from a 

payphone and report that she had been raped. The similarities between the two 

stories are at most superficial and trivial. While the dissent insists that the 

evidence suggesting that the victim may have misinterpreted her father shoving 

her as an attempted rape would be “dynamite” to the jury, Dissent at 13, we are 

not persuaded that there is a “reasonable probability” that the result of the trial 
23

would have been different had the evidence been disclosed to McCray. Kyles, 514 

U.S. at 434.3

In sum, the dissent is incorrect to say that the withheld documents would 

have corroborated the weaker aspects of McCray’s defense in ways the disclosed 

documents did not. Dissent at 15. McCray was given a wealth of information in 

pretrial disclosures; the victim testified about her various mental health issues in 

open court; and the victim was cross-examined vigorously on her mental illness, 

her erratic behavior, and – by extension – her reliability. The jury nonetheless 

credited her testimony and convicted McCray. Based on the entire record, we 

cannot say that no fair-minded jurists would agree with the New York Court of 

Appeals that McCray received a fair trial. We therefore deny McCray’s petition 

insofar as it seeks relief based on Brady.

B. McCray’s Confrontation Clause Claim

The Confrontation Clause of the Sixth Amendment provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with 

3 The dissent notes that the withheld documents show that the victim experiences flashbacks to 

being sexually abused. Dissent at 11. While that is true, notes regarding the victim’s flashbacks 

to her prior sexual abuse were also included in the disclosed documents. Thus, any discussion 

of the victim’s flashbacks in the undisclosed documents is duplicative or cumulative of what was 

disclosed.
24

the witnesses against him.” U.S. Const. amend. VI. Supreme Court caselaw clearly 

establishes that the Confrontation Clause entitles a criminal defendant to “a 

meaningful opportunity to cross-examine witnesses against him.” Alvarez v.

Ercole, 763 F.3d 223, 229–30 (2d Cir. 2014); see also Davis v. Alaska, 415 U.S. 308, 315 

(1974). McCray argues that he was deprived of such an opportunity because the 

sample of the victim’s mental health records provided to him was insufficient. The 

New York Court of Appeals rejected this argument as a matter of law, concluding 

that the Confrontation Clause does not extend to pretrial discovery and instead 

analyzing McCray’s claims only in connection with Brady and its progeny. See 

McCray II, 23 N.Y.3d at 198.

The view that the opportunity to cross-examine witnesses is meaningful 

only when the defendant is given adequate pretrial discovery was advanced in 

Pennsylvania v. Ritchie, 480 U.S. 39 (1987), by Justice Blackmun in his concurrence, 

see id. at 61–66 (Blackmun, J., concurring), and by Justices Brennan and Marshall 

in their dissent, see id. at 66–72 (Brennan, J., dissenting). This, however, was not 

the view of the plurality, which made clear that the right to confrontation is only 

“a trial right” that “does not include the power to require the pretrial disclosure of 
25

any and all information that might be useful in contradicting unfavorable 

testimony.” Id. at 52–53 (plurality opinion).

Other than in Ritchie, the Supreme Court has not directly addressed how, if 

at all, the Confrontation Clause affects pretrial discovery. To the extent that any 

guidance may be gleaned from other Supreme Court cases, that guidance is 

consistent with the Ritchie plurality’s characterization of a defendant’s right to 

confrontation as a trial right only. See Barber v. Page, 390 U.S. 719, 725 (1968) (“The 

right to confrontation is basically a trial right.”); California v. Green, 399 U.S. 149, 

157 (1970); Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Thus, we find no basis to 

conclude that the New York Court of Appeals’s decision concerning McCray’s 

confrontation rights was “contrary to, or involved an unreasonable application of, 

clearly established [f]ederal law, as determined by the Supreme Court of the 

United States.” 28 U.S.C. § 2254(d)(1).

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.
1

DENNIS JACOBS, Circuit Judge, dissenting:

I respectfully dissent.

In a word-against-word rape case, the State turned over to the defense

documents reflecting a variety of mental disorders of the complainant that 

rendered her vulnerable; but the State did not turn over documents reflecting her 

distortions of memory and reality, and an earlier report of rape. The withheld

documents put the case in a wholly different light, raise powerful doubts about 

what happened, and would have opened the only promising avenues for 

investigation and trial strategy.

I acknowledge the high hurdle that a federal court must surmount to grant 

a writ of habeas corpus in a state case: it must be that the state court’s decision

was “objectively unreasonable,” Fuentes v. Griffin, 829 F.3d 233, 245 (2d Cir. 

2016) (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)), that is, “so 

lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded 

disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011). The standard is 

not often met; but the miscarriage here is arresting and unprecedented. It is not 

easily thinkable.
2

The facts may be put in skeletal fashion. Terence Sandy McCray and the 

complainant ended a social evening in 2009 by going to an abandoned house. 

She says that she was “follow[ing] him” around the premises when McCray 

pinned her to a wall and raped her. State Ct. R. at 380:7-8, No. 9:15-cv-1129 

(N.D.N.Y. Apr. 21, 2016), ECF No. 35-1. He says that they were seeking a private 

place for sex, and that after consensual sex, she demanded payment, grabbed his 

pants and fished for cash; and that after a tussle ensued, he fled.

As everyone agrees, the case turns on the credibility of McCray and the 

complainant. McCray was convicted by a jury in Albany County Court, and 

sentenced to 22 years in prison—where he has now been for about 13 years. 

(McCray spurned a plea agreement that would have subjected him to a 

misdemeanor conviction and time served—which says something about the 

prosecution’s view of its case.) The conviction withstood state appeals by closely 

divided panels: 3-2 in the Appellate Division, 4-3 in the Court of Appeals.

I would hold that the disposition of the Court of Appeals (after almost all 

of the exculpatory documents were known to the judges) was “objectively 

unreasonable.” Fuentes, 829 F.3d at 245 (quoting Alvarado, 541 U.S. at 665). I 

will adduce particulars, but in sum, the Constitutional deprivation under Brady
3

v. Maryland, 373 U.S. 83 (1963) was absolute—that is, none of the many 

exculpatory documents were turned over. It was incontestable error to tolerate 

that denial of the due process right to a fair trial.

The majority deems it “critical to McCray’s case” that Brady is a “general 

rule” that entails “judgment” in deciding what “specific materials” must be 

turned over, and therefore may not be a viable ground for seeking relief under 

the habeas standard. Maj. Op. at 12-13. That principle would foreclose habeas 

relief even when—as here—the Brady violation is complete, flagrant, and 

consequential, which cannot be the law.

I

As permitted in New York, the culling of the complainant’s (huge) medical 

file was done by the trial judge; that procedure for the disclosure of confidential 

documents is sanctioned by both the New York Court of Appeals, see People v. 

Gissendanner, 48 N.Y.2d 543, 551 (1979); see also People v. Contreras, 12 N.Y.3d 

268, 272 (2009), and the United States Supreme Court, see Pennsylvania v. 

Ritchie, 480 U.S. 39, 60 (1987).
4

The trial judge turned over to the defense (and prosecution) 28 pages out 

of over 5000 and placed the rest under seal, where they remain, inaccessible to 

both the defense and the prosecution. Scrutiny in the state appellate courts, in 

the district court, and in my chambers identified 45 additional pages that should 

have been produced. But the seal order has disabled McCray’s counsel from 

specifying the use and impact of the withheld documents, or how they might 

have affected trial strategy. Unless lawyers can see what has been withheld, they 

are shadow-boxing.

Six appellate judges (albeit out-voted) would grant a new trial. That 

includes me.

The New York Court of Appeals (the “Court”) wrote off the withheld

documents as “cumulative or of little if any relevance to the case.” People v. 

McCray, 23 N.Y.3d 193, 199 (2014) (“Ct. App. Op.”). Both grounds are manifestly 

wrong. The 28 pages that were disclosed demonstrate no more than that the 

complainant was vulnerable, which was a great boon to the prosecution. But the 

defense was left with the insupportable argument that people with mental illness 

cannot be relied on to tell the truth, or might misperceive a consensual encounter 

as rape. As the Court itself recounted, the 28 pages that were produced showed:
5

that the complainant had very significant mental health problems. 

Her diagnoses, as summarized in her own testimony, included 

“Bipolar, Tourettes, post-traumatic stress disorder, epilepsy.” It was 

also brought out that she suffered from attention deficit disorder and 

hypersexuality; that she had reported that she “visualized” or 

“sense[d] the presence of” dead people; that she had cut her flesh with 

sharp objects; that her bipolar disorder caused her “on occasion” to 

be “explosive and angry” and to “physically strike out at people”; that 

at the time of the incident she was taking medications, was receiving 

treatment from a mental health facility, and was also seeing a 

counselor weekly or biweekly; that she failed “once in a while” to take 

her medications, and that on the night of the alleged rape she could 

not remember whether she had taken them that day; that, after the 

alleged rape and before the trial, she had been hospitalized for an 

overdose of drugs; and that that was not her first suicide attempt, 

though she said it was her first “serious” one.

Id. at 197–98 (alteration in original).

The complainant’s vulnerability, as detailed in the documents known to 

the jury, was the mainspring of the prosecution’s case, as pressed in summation: 

“something wasn’t right about [the complainant],” possibly because of “her 

mental health conditions.” State Ct. R. at 778:12–14, No. 9:15-cv-1129 (N.D.N.Y. 

Apr. 21, 2016), ECF No. 35-5 (“Prosecutor’s Summation”). The prosecutor 

imputed to McCray the assumption that he could rape her with impunity:

“[n]obody’s going to believe [the complainant]” because “[s]he’s crazy.” Id. at 

790:22–25. And vulnerability was the prosecution’s explanation for why the rape 

took place in the context of a willing sexual encounter:
6

I submit to you the plan was not to rape her. The plan was to take 

advantage of her because he knew he could. And what happened was 

what he didn’t predict or plan, that she said no. She said no. Because 

she agreed and participated in sexual activity with him before in April 

and even earlier that night at his friend’s house, he figured he was a 

shoe-in. He had it in the bag. He was going to take her to an 

abandoned building where he knew it would be private.

Id. at 780:10–19.

The complete defense to all this would have been evidence that the 

complainant had a distorted memory or a fragile sense of reality. But the 

disclosed evidence did nothing to support such an argument. There is nothing 

about Tourette Syndrome, bipolar disorder, PTSD, epilepsy, or attention deficit 

disorder that renders the complainant an unreliable witness. And 

hypersexuality (to the extent it is anybody’s business) simply reinforces the 

prosecution’s argument that she was vulnerable.

Brady requires the disclosure of evidence that takes on force from 

“cumulative effect.” Kyles v. Whitley, 514 U.S. 419, 440 (1995). Yet the Court 

considered it sufficient if McCray had documents containing “examples” of the 

mental health issues that appeared in the withheld documents, and good enough 

if the withheld documents “were no clearer or more dramatic than the ones the 

defense already had.” Ct. App. Op., 23 N.Y.3d at 199. As example, the Court 
7

picked the single disclosed document that involves misperception: the 

complainant saw or sensed the presence of the dead. The Court deemed this

sufficiently representative of her “hallucinations or distorted perceptions.” Id. 

But there are no zombies in this case.

II

The complainant’s withheld medical history reflects memory distortion, 

misperception, and fabrication that undermine credibility generally and fatally. 

Since, as Judge Rivera observed in her potent dissent in the New York Court of 

Appeals (on behalf of three judges), “[c]ases are made or unmade by specifics, 

not generalities,” Ct. App. Op., 23 N.Y.3d at 206 (Rivera, J., dissenting), I will 

focus on the impact of particular documents that bear upon those features of 

McCray’s testimony that were most in need of corroboration. 

In this opinion, withheld documents are cited in italics to avoid repeating 

endlessly the description, “another record withheld from the defense.”

The Court held that the two accounts of what happened at the crucial 

moment set up a binary choice: either the sex was consensual or it was rape—

and it therefore could not be attributed to “a failure of recollection or a 

misunderstanding.” Ct. App. Op., 23 N.Y.3d at 199. But if the defense had in 
8

hand the evidence it was entitled to have, it could have mounted a defense that 

reconciled the opposite accounts on the basis that both witnesses were telling the 

truth: one of them with pathological failures to appreciate reality. 

As to the alleged rape itself, the withheld documents specifically adduce

symptoms that bear directly on the complainant’s ability to recall and relate the 

disputed events. The complainant “has pretty significant short term memory 

loss.” Oct. 2006 Progress Note. At times, she has felt “out of control” and 

afterward “has had no recollection of the events” that took place during the 

episode. People v. McCray, 958 N.Y.S.2d 511, 524 (3d Dep’t 2013) (McCarthy, J., 

dissenting). She has “confabulat[ed] stories about [hospital] staff.” Nov. 2006 

Patient Care Activity Rep. The “major feature” of confabulation has been 

described in scientific literature as “an inaccurate and sometimes bizarre 

narrative account of a present or past event,” sometimes characterized as 

“‘honest lying,’ in the sense that patients believe what they are saying even 

though it is demonstrably false.” Daniel L. Schacter, Jerome Kagan, & Michelle 

D. Leichtman, True and False Memories in Children and Adults: A Cognitive 

Neuroscience Perspective, 1 PSYCH. PUB. POL’Y & L. 411, 415–16 (1995). (The 
9

ordinary definition of “confabulation” is set out in the margin.1) The 

complainant also “has a very poor perception of reality” and distorts her 

interpersonal relationships. July 2006 Discharge Summ.

One such distortion of reality has direct bearing on the case. Withheld

psychiatric assessments, dated about one year apart, reveal that the complainant

has a selective memory. It is not the kind of selective memory that is fairly 

universal; the complainant “cannot remember good experiences if she has bad 

experiences with someone.” Sept. 2007 & Aug. 2008 Assessments. Consider:

McCray testified that he and the complainant shared a good experience 

(consensual sex) followed by a bad one (a struggle over money). The evidence of 

the complainant’s pathology would have thus corroborated McCray’s account. 

1 To “confabulate” means “to fill in gaps in memory by fabrication,” Confabulate, 

Merriam-Webster.com, https://www.merriamwebster.com/dictionary/confabulate (last visited December 14, 2021), or “by a 

falsification that one believes to be true,” Confabulate, Dictionary.com, 

https://www.dictionary.com/browse/confabulate?s=t (last visited December 14, 

2021); see Confabulate, Oxford Dictionary, 

https://premium.oxforddictionaries.com/us/definition/american_english/confabu

late (last visited December 14, 2021) (defining “confabulate” as “[f]abricate 

imaginary experiences as compensation for loss of memory”); see Francis P. 

Kuplicki, Fifth, Sixth, and Fourteenth Amendments: A Constitutional Paradigm 

for Determining the Admissibility of Hypnotically Refreshed Testimony, 78 J. OF 

CRIM. L. & CRIMINOLOGY 853, 856 (1988) (defining “confabulate” as “[to] fill gaps 

in [one’s] memory with plausible, but not necessarily accurate, data”).
10

Justice McCarthy made the same observation in his dissent in the Appellate 

Division: “This . . . record could be especially important, considering defendant’s 

testimony that they had consensual sex and struggled afterward when the victim 

attempted to take his money.” McCray, 958 N.Y.S.2d at 525 (McCarthy, J., 

dissenting). 

Judge Rivera’s dissent in the Court of Appeals cites this same memory 

defect as illustrative of how the documents that were disclosed “did not reveal 

the full range of medical and behavioral issues that implicate the complainant’s 

credibility.” Ct. App. Op., 23 N.Y.3d at 208 (Rivera, J., dissenting).

The jury heard from the prosecutor that McCray’s account of consensual 

sex required “believ[ing] him over everything else,” Prosecutor’s Summation at 

783:12–15; but the jury never learned of the psychiatric evidence corroborating 

McCray’s version of events. And there was no “everything else.” The physical 

evidence, as the majority notes, “was consistent with both stories.” Maj. Op. at 3.

Testimony about the aftermath was also conflicting. McCray testified that 

the complainant demanded money after sex, grabbed his pants when he refused, 

and rifled the pockets for his wallet. She denied this behavior. The withheld

documents reflect, however, that “[s]he has developed strategies to get what she 
11

wants from people,” including by acting impulsively in ways that endanger 

herself and others, such as by “grabbing the steering wheel when [her] mom is 

driving . . . .” July 2008 Clinical Diagnostic Formulation.

The prosecutor told the jury that someone so disturbed could not also be

“manipulative and clear-headed and crafty . . . .” Prosecutor’s Summation at 

787:8–9. But the withheld documents demonstrate that at the same time the 

complainant is having delusions she could have a clear enough head to grab 

what she wanted. This, too, would have corroborated McCray’s testimony and 

subverted the prosecution’s theory.

It is damning in a rape case if the defense can show that the complainant 

had previously made false rape allegations. The withheld documents reveal that, 

as early as 2004, the complainant reported that her father tried to rape her by 

pinning her against a wall. That is of course what she claims McCray did when 

he raped her. Relatedly, the withheld documents show that the complainant 

experienced flashbacks to being sexually abused. In particular, the withheld 

documents reflect that she has flashbacks to her father’s alleged sexual abuse, 

and that role playing with her boyfriend would trigger flashbacks.
12

The Court recognized that the complainant’s accusation against her father 

“provides the strongest basis for [McCray’s] argument on appeal,” Ct. App. Op., 

23 N.Y.3d at 200, but dismissed it for two reasons. First, the Court considered it

was “quite different” from the accusation against McCray. Id. But the defense (if 

armed with the withheld documents) could easily have depicted the allegations 

as quite similar: she was in the willing presence of an older man, who suddenly 

pins her to a wall for rape. Second, the Court dismissed the 2004 accusation 

against her father as too “far removed in time” to be probative of her 2009 

accusation against McCray. Id. This was likewise unreasonable. The accusation 

against her father would have been recent enough for the State to criminally 

prosecute him;2 surely it was recent enough to be relevant to McCray’s 

prosecution.

2 Depending on the severity of the crime, New York’s statute of limitations for 

sexual assault ranges from five to twenty years, N.Y. Crim. Proc. Law 

§ 30.10(2)(a-1)–(a-2), 3(e) (McKinney 2019); for rape in the first degree and some 

other sexual offenses, there is no limitation period, § 30.10(2)(a), and for some 

sexual offenses committed against children, the limitation period does “not begin 

to run until the child has reached the age of twenty-three or the offense is 

reported to a law enforcement agency . . . whichever occurs earlier,” § 30.10(f). 

The complainant would have been about 14 years old when she reported that her 

father tried to rape her, and she had not yet reached the age of 23 at the time of 

McCray’s trial.
13

A social worker referred to the allegation that the father attempted rape as 

“unfounded,” Undated Psych. Assessment, and the complainant’s mother doubted 

it.3 But neither was in a position to know; and, much more important, McCray’s 

account would have been strengthened whether her father attacked her, or 

whether she imagined the attack. If it happened, it would be powerful on crossexamination; if it didn’t, it would be dynamite.

“Prior false rape complaints may be admissible when they suggest a 

pattern casting substantial doubt on the validity of the charges made by the 

victim or indicate a significant probative relation to such charges.” People v. 

Blackman, 935 N.Y.S.2d 181, 188 (3d Dep’t 2011) (quotation marks and citation 

omitted). Obviously, if the complainant’s allegation of rape against her father 

were false or delusory, the defense would have had no trouble connecting the 

episode to her encounter with McCray. But defense counsel, having never (even 

now) seen the documents, had no opportunity to make an offer of proof. In any 

event, as the Court recognized, even “[i]nadmissible evidence can be material 

under Brady if it will be useful to the defense, perhaps as a lead to admissible 

evidence or a ‘tool in disciplining witnesses during cross-examination.’” Ct. 

3 Some mentions of the allegation, and the mother’s denial, are either highlighted 

or crossed out.
14

App. Op., 23 N.Y.3d at 199-200 (quoting United States v. Gil, 297 F.3d 93, 104 (2d 

Cir. 2002)).

The allegation against the complainant’s father, whether it was true or not,

would have been critical to the defense because it would have explained how the 

complainant might truthfully testify to a rape that did not happen—as she would if 

she had a flashback to her father’s sexual abuse during a consensual encounter

with McCray, just as (according to another withheld document) flashbacks were 

triggered by consensual sex with her boyfriend. Moreover, given her 

documented history of confabulation and significant memory distortion, defense 

counsel would have been able to explain that her memory gaps from the night in 

question were filled by details from her father’s sexual abuse; or, alternatively, 

that she compensated for short-term memory distortion by confabulating details 

quite apart from her history with her father.

The prosecutor told the jury that the complainant’s testimony could not 

possibly have been “fantasy.” Prosecutor’s Summation at 778:1. The Court 

adopted this false assumption, reasoning that the complainant “certainly did not 

fantasize or misremember that she and defendant had a violent encounter: they 

both had the wounds to prove it. And their descriptions of that encounter are so 
15

starkly different that if one version is not a lie, the other must be.” Ct. App. Op. 

at 199. But McCray testified to a violent tussle over money; so wounds do not 

discredit his account. Much more important: the Court failed to recognize—and 

the jury never learned—that the complainant’s version of events may have 

resulted from a pathological misperception of the truth, rather than a lie.

At the risk of being obvious, the withheld documents would have 

corroborated the weaker specifics of McCray’s testimony: the complainant’s 

sudden turning on a person with whom she was in a sexual encounter, her 

perception of consensual sex as rape, her impulsive grab to get the cash from his 

pants. The withheld documents would have allowed jurors to reconcile the 

conflicting accounts, treating his as true and hers as sincerely held delusion.

III

“The question is not whether the defendant would more likely than not 

have received a different verdict with the evidence, but whether in its absence he 

received a fair trial, understood as a trial resulting in a verdict worthy of 

confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Taken together, the 
16

withheld documents subvert the reliability of the complainant’s testimony and 

would have turbocharged her cross-examination. As Judge Lynch has explained:

It is the role of the jury, fairly appraised of the facts then known, to 

weigh the strengths and weaknesses of the evidence before them, 

bearing in mind the inherent limitations on the victim’s ability to 

observe, remember, and report what he saw. . . . The justice of relying 

on the jury’s conclusion, however, depends critically on the 

assumption that the jury knew all of the relevant facts . . . .

Poventud v. City of New York, 750 F.3d 121, 140 (2d Cir. 2014) (in banc) (Lynch, 

J., concurring).

IV

One apparent cause of the Court’s error was a failure to consider the 

withheld documents in the way practicing lawyers would: as springboards for 

investigation, as a mine for cross-examination, and as tools for shaping trial 

strategy. In short, the Court failed to recognize the dynamic force of disclosure

in the hands of a lawyer.

Defense counsel armed with the withheld documents would not have been 

limited to waving the pieces of paper in front of the jury. The power of such 

documents is multiplied by their potential to corroborate, to direct investigation,

and to develop the defense theory of the case. It is not for the State (whether 
17

prosecutor or judge) to pick which of these documents that bear on the sole issue 

at trial would enable defense counsel to defend the client. If three documents out 

of 5000 contain similar information, defense counsel might seek to admit all 

three, or select the most salient one—or present none of them to the jury and 

instead mine them for investigative leads. Brady material thus includes evidence 

that supports a viable defense strategy. “The records that indicate an inability to 

remember and potential history of fabrication would have been critical to the 

defendant’s preparation and cross-examination of the complainant.” Ct. App. 

Op., 23 N.Y.3d at 209 (Rivera, J., dissenting). 

Accordingly, in Fuentes v. Griffin, 829 F.3d 233 (2d Cir. 2016)—another 

word-against-word rape case—we granted the writ, ruling that the New York 

Court of Appeals’ application of Brady “was objectively unreasonable” because it 

failed “to make a reasonable assessment of the benefits to the defense of 

exploring [the complainant’s] mental state as revealed in the [withheld

psychiatric document].” Id. at 250. In that case, the complainant alleged that 

Fuentes raped her on the roof of her apartment building. Id. at 237. It was 

undisputed that some sexual encounter occurred on the roof; so, as here, “the 

issue for trial was whether the sex was consensual.” Id. Thus, as here, the 
18

complainant’s (credible) testimony was essential to the prosecution’s case. Id. at 

250–51.

The (single) suppressed document in Fuentes revealed that the 

complainant had been depressed and suicidal for two years before the alleged 

rape; and that she had a disorder that causes “feelings of inadequacy,” “excessive 

anger,” and “chronic mood symptoms [that] may contribute to interpersonal 

problems or be associated with distorted self-perception.” Id. at 249 (quotations 

omitted). Because the trial testimony “presented two diametrically opposing 

versions of what happened,” the key issue was the complainant’s “motivation for 

accusing Fuentes of engaging in conduct to which she had not consented; and the 

[withheld document] was pertinent to the issue of her motivation because it 

identified a relevant mood disorder.” Id. at 252. The Court’s decision was 

objectively unreasonable both because “the jury could well have given greater 

credence to Fuentes’s version of the events” if it had known the complainant’s 

psychiatric history, and because disclosure would have enabled defense counsel 

“to develop this line of defense further.” Id.

Similarly, the non-disclosure here prevented counsel from developing an 

effective line of defense. The central issue with the complainant’s credibility was 
19

her delusion and distorted perception. But the majority opinion conflates

impairment of memory with delusion: the difference is between forgetting 

something and remembering something that did not happen.

The withheld documents would fuel a powerful defense theory of the case, 

as well as an impeachment strategy, neither of which could be viable based on

the disclosed documents alone. When the State “has a witness’s psychiatric 

records that are favorable to the accused because they provide material for 

impeachment, those records fall within Brady principles, and that the Supreme 

Court has so recognized.” Id. at 247. The majority opinion considers arguments 

made in this dissent, and engages with them, but that exercise underscores that 

McCray’s own lawyers cannot advance arguments based on the undisclosed 

documents because they still have not seem them. 

The district court observed that the approximately 5000 pages of records 

contain just a single mention of confabulation. The district court considered that 

that was not much; but it is a great gift in a case that is all about credibility; and a

competent lawyer would conclude from the single notation that investigation

would be promising. Armed with the knowledge that the complainant had 

previously confabulated stories, defense counsel could have sought elaboration 
20

from the note’s author and others who treated her or knew her. Without timely 

pre-trial access to the withheld documents, McCray’s counsel was prevented 

from doing the job. Judge Rivera amplified this point in a compelling passage:

[I]n response to the prosecution’s strategy of characterizing the 

defendant as a manipulative, older man seeking to take advantage of 

a younger woman who acted in a sexually provocative manner, and 

who he could see suffered from some type of mental impairment, the 

defendant had to persuade the jury that the complainant’s mental 

health conditions would have led her to fabricate a story of a rape, or 

to cause her to believe and recount for the jury an incorrect version of 

the sexual encounter with the defendant. In that sense, the more the 

defendant sought to establish the general severity of the 

complainant’s mental health conditions, the more the jury could find 

persuasive the People’s version. Thus, in order for the defendant to 

present the complainant’s mental health condition objectively from 

the defense point of view—that she is too mentally ill to recall that she 

consented, or that she made up the whole story because of her 

illness—disclosure of records about her ability to recall events 

accurately and her capacity to fabricate events was crucial.

Ct. App. Op., 23 N.Y.3d at 211 (Rivera, J., dissenting).

V

It was the trial court that reviewed the complainant’s medical file and 

made the initial error of nondisclosure. The Court of Appeals unreasonably 

reviewed the trial court’s violation as a matter of discretion. See Ct. App. Op., 12 

N.E.3d at 1081 (“In sum, the issue here is whether the trial court abused its 
21

discretion in finding defendant’s interest in obtaining the records to be 

outweighed by the complainant’s interest in confidentiality . . . .”). Federal law 

affords no “discretion” to withhold evidence that is constitutionally required to 

be produced. The question is one of due process. See Brady, 373 U.S. at 87. And 

there is no allowable discretion to deprive a criminal defendant of his right to 

due process.

VI

The State now doggedly defends a conviction that it obtained thanks to a 

violation of due process. True, the initial mistake here was made by the trial 

judge. With 5000 pages of a medical file, the process of review somehow broke 

down. The critical documents were withheld from the prosecution as well as the 

defense. But after the trial, the successive state courts and the district court—and 

now my chambers—found documents that “put the whole case in . . . a different 

light” and “undermine confidence in the verdict.” Banks v. Dretke, 540 U.S. 668, 

698 (2004) (quoting Kyles, 514 U.S. at 435). A prosecutor who knowingly did 

what the trial judge did would be a menace. But good faith is irrelevant under 

Brady, 373 U.S. at 87, and functionally, there is no difference between an error by 
22

the trial judge and a dirty deed by a prosecutor: the State has deprived the 

defendant of a fair trial. To McCray, in jail for 22 years, it is all one.

It is emphatically the role of the prosecutor to correct a radical deficiency 

in a prosecution even after the exhaustion of appeals. The prosecution’s interest 

“is not that it shall win a case, but that justice shall be done.” Turner v. United 

States, 137 S. Ct. 1885, 1893 (2017) (quoting Kyles, 514 U.S. at 439). 

In Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009), an assistant 

district attorney (“ADA”) took the initiative post-trial to obtain DNA results that 

cleared the defendant, and later was sued by the defendant for failing to disclose 

the results to defendant’s counsel for three months, id. at 118–20. We held that 

the ADA was immune from suit because correcting a bad conviction is integral to 

a prosecutor’s role as an advocate. Id. at 122–24. We reasoned: “[t]he DNA 

testing obviously would have bearing on the advocacy work of deciding whether 

to oppose Warney’s [post-trial] initiatives” because “[a] prosecutor has an 

affirmative obligation, before filing an opposition, to ensure that the petition 

should in fact be opposed.” Id. at 124.

On this present appeal, the majority has rigorously applied principles of 

finality and deference. But those principles and constraints in no way bind a 
23

prosecutor. A prosecutor who continues to enjoy a misbegotten victory is as 

much a menace as one who contrives it. Here, the Attorney General knows from 

successive appellate opinions that McCray, who is still in prison, was wholly 

denied the right to defend himself. Yet the Attorney General labors hard to 

maintain the advantage. The result here is that a person is more than halfway 

through a 22-year prison sentence, without a trial that anyone can now deem fair, 

and he is still without the opportunity to see the documents that could have 

acquitted him. I don’t know what happened in that abandoned house; but it is 

clear what is happening here. This is a sinister abuse. The last-ditch defense of 

such a conviction by the Attorney General is disreputable. Were I a lawyer for 

the State, I would not have been able to sign the brief it filed on this appeal.