In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2850

RANDALL K. MATAYA,

Petitioner-Appellant,

v.

PHILLIP A. KINGSTON, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 00 C 775—J.P. Stadtmueller, Judge.

____________

ARGUED APRIL 13, 2004—DECIDED JUNE 3, 2004

____________

Before FLAUM, Chief Judge, and POSNER andKANNE, Circuit

Judges.

POSNER, Circuit Judge. After exhausting his state remedies,

Wisconsin lifer Randall Mataya sought federal habeas

corpus, claiming that he had been convicted in violation of

the rule of Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to turn over to the defense evidence

in its possession that would be helpful to the defendant,

including evidence useful only for impeaching a prosecution witness. United States v. Bagley, 473 U.S. 667, 676-77

(1985).
2 No. 02-2850

Pamela Claflin, age 35 and a frequenter of bars, happened

one evening to be in a bar named Ma’s Place in Manitowoc,

Wisconsin, when she was accosted by Mataya, whom

apparently she hadn’t met before. They left together, amidst

indications that she was drunk and he amorous, and drove

off in Mataya’s car, Claflin leaving hers in the bar’s parking

lot. Later that night, at some distance from the bar, a man

named Cole heard “a very loud, strange, almost terrifying

type of a scream,” unlike any animal sound he had ever

heard; minutes later he saw a car driving at a high speed

from the small park-like area at the dead end of his street.

As it happens, Cole had been involved in auto racing for

many years and had rebuilt car engines hundreds of times,

so the police conducted a test in which six automobiles, one

of them Mataya’s (of course Cole was not told which), were

driven past Cole’s home one at a time, and he picked

Mataya’s and one other car as most like the one he’d seen

and heard that night.

After midnight on the fatal night Mataya’s stepson saw

Mataya applying bleach to bloodstains on his white pants

and the next morning he saw him cleaning the interior of his

car with spot remover. Mataya told him to say nothing of

these things to the police.

A week later, Claflin having been reported missing, the

police found her corpse in the park at the end of Cole’s

street, near a pond. She was naked except for her socks, and

her body had been shoved under bushes and was almost

entirely covered by weeds, grass, and sticks. Her clothes

were scattered nearby. Claflin had worked for a cleaning

service and according to her employer had carried her

customers’ keys—50 or more of them—in a large purse that

she had with her the day she vanished. The purse was never

found.
No. 02-2850 3

Claflin’s skull had been fractured by a heavy object,

probably a rock. She had also been strangled. There were

bite marks on one of her breasts, and a dentist who has

testified frequently as an expert witness, after studying

Mataya’s teeth, testified that the bite marks had probably

been made by those teeth, which the dentist described as

“remarkable” (and therefore distinctive). One tooth was rotated 30 degrees; another tooth was missing and its absence

had caused other teeth to shift in his mouth.

Having been the last person seen with Claflin before her

disappearance, Mataya was immediately suspected of being

the murderer and was questioned by the police even before

the body was found. At first he denied that Claflin had been

in his car when he left Ma’s Place, but later he admitted she

had been but said he’d dropped her off at another bar—but

no one at the other bar saw her there. Later still he said he

had blacked out after he left Ma’s Place and didn’t remember anything that had happened afterwards. He told the

police that his wife would say he was wearing white pants

the day of the murder and didn’t come home until midnight, but that these things were untrue. When his stepdaughter asked him whether he had murdered Claflin, he

said he didn’t know.

The state’s principal witness was Donald Hertel, and it is

in connection with his testimony that the Brady issue arises.

Hertel, who admitted on the stand that he had been convicted ten times and that in exchange for his “cooperation

and testimony” he was to receive $1,000 plus a favorable

letter to the parole authorities, had known Mataya for a

decade. Shortly after the murder, Hertel had absconded

from a halfway house in which he was supposed to be living and had gone on a burglary spree with Mataya during

which Mataya had admitted having killed a woman named

Pamela. He had told Hertel, Hertel testified, that “they were
4 No. 02-2850

making out on the hood of his car and he was twisting her

nipple between his teeth and biting on her breast, and she

shoved him back and told him to stop it and take her home

or she would turn him in for attempted rape. He got mad

and shoved her against a tree, she fell down and hit herself,

hit her head on a rock, and then—ah—he crawled on top of

her and started beating her in the head, in the temple area.

He got up off of her, and she was gasping for air, and

making weird noises, so her pants around her neck and

drugged, and then he knew she was dead after the body

went limp. . . . He dragged her and he told me that he

covered her up with twigs and leaves and grass, and took

most of her clothes off of her because he wanted to make it

look like a rape. . . . He said he threw her pants away from

the body.” Hertel further testified that Mataya had told him

that the murder had taken place in a “a little wooded area

with a pond next to it,” that the woman had had a large

purse, that he had thrown the purse into the pond and

watched it sink weighed down by “a large set of keys,” and

that he had tried to get the bloodstains out of his white

pants by soaking the pants in bleach.

But what Hertel did not tell the jury, and the prosecution did not tell Mataya’s lawyer, was that Hertel had made

a deal with the prosecution under which four burglary

charges against him would be dropped in exchange for

his testifying truthfully at Mataya’s trial. Had Hertel been

prosecuted and convicted of those charges, he might have

been sentenced to 40 years in prison. The implications for

his freedom are unclear, but may have been great. He was

in prison when he negotiated the deal, because his parole on

one of his previous convictions had been revoked; we do

not know how long he was likely to remain there. He was

also under threat of having his parole on another of his

convictions revoked; the letter from the prosecutor to the

parole authorities was intended to ward off that revocation.
No. 02-2850 5

Apparently he was not facing any other new charges

besides the four burglaries. The dropping of those charges

may not have made him a free man immediately, but almost

certainly spared him many years of imprisonment.

Mataya’s trial lawyer could have used the deal, had he

known about it, to further impeach Hertel’s testimony. The

deal provided a greater inducement to Hertel to play ball

with the prosecution than the $1,000 reward plus the

supportive letter to the parole authorities. United States

v. Williams, 81 F.3d 1434, 1439-41 (7th Cir. 1996). Both

those inducements were disclosed to the jury; the implication was that they were the only inducements that he’d

been offered. Hertel also disclosed his ten convictions,

which doubtless reduced his credibility in the eyes of the

jurors; yet disclosure of the deal he had struck with the

prosecutors over the burglaries would have impeached him

even more because the deal had given him a palpable and

very substantial incentive to lie if need be, as well as freeing

him from any real threat of prosecution for perjury if he did

lie.

Brady requires the disclosure to the defendant of evidence

in the prosecution’s possession that is “material” to the

defense; and in the law of evidence “material” just means

bearing on an issue in the case. 1 McCormick on Evidence

§ 185, pp. 637-38 (John W. Strong ed., 5th ed. 1999). But the

Brady line of cases uses the word in a more demanding

sense. Brady evidence is material only if there is a reasonable

probability that disclosure to the defense would have

resulted in the jury’s acquitting the defendant. Banks v.

Dretke, 124 S. Ct. 1256, 1276 (2004); Kyles v. Whitley, 514 U.S.

419, 434 (1995); United States v. Boyd, 55 F.3d 239, 245 (7th

Cir. 1995).

Usually evidence that the prosecution’s principal witness

had been offered a strong inducement to testify against the
6 No. 02-2850

defendant would satisfy the criterion of materiality. And

there is no doubt that Hertel was the state’s principal witness against Mataya. We are not impressed by the state’s

argument that the remaining evidence made his conviction

a certainty regardless, though we’ll note later in this opinion

that the evidence of Mataya’s guilt, even without his

confession to Hertel, was considerable. Nor does the fact

that Hertel began talking to the police before there was any

agreement to drop the charges against him show, as the

state also argues, that the agreement didn’t operate as

an inducement for him to lie on the stand. A prospective

witness might lie to the police in the hope of obtaining

concessions yet be unwilling to repeat his lies on the stand

unless he obtained very generous concessions in bargaining

with the prosecution over the “price” of his cooperation.

Indeed from the get-go Hertel demanded as part of the

inducement for his testifying for the government that it

drop the burglary charges against him. He could not

negotiate the deal without revealing to the government

at least some of what he would be willing to testify to if

the deal went through. This didn’t make the revelation

independent of the deal—quite the contrary.

But what is unusual about this case, and decisive against

the Brady claim, is that Hertel’s evidence was self-validating,

which makes his motivation to fabricate irrelevant. The

concept of self-authenticating evidence is familiar in the law

of documentary evidence, Fed. R. Evid. 901, 902; Wis. Stat.

§§ 909.01, .02; cf. Fed. R. Evid. 803(6), (8); United States v.

Sutton, 337 F.3d 792, 797-98 (7th Cir. 2003), though we

cannot find any previous case that involved oral evidence.

Hertel may have been willing or even eager to lie in

exchange for the dropping of the burglary charges. But

we know that he didn’t lie. We know this because he revealed details of the crime that, with just a few exceptions,
No. 02-2850 7

he could have learned only from the murderer. All that he

knew from other sources when he started telling the police

details of Mataya’s confession to him in an effort to strike a

bargain were the name of the murder victim, that she had

been killed in a park, and that her head had struck a tree

(Mataya’s wife had repeated to Hertel, what she had learned

from the police, that Claflin had been found with bark

embedded in her head). Everything else—the heavy purse,

the strangulation (we take the garbled statement that “she

was gasping for air, and making weird noises, so her pants

around her neck and drugged, and then he knew she was

dead after the body went limp” to mean that Mataya acknowledged to Hertel strangling Claflin with her pants), the

fracturing of her skull, the proximity of a pond, the biting,

the white pants, the bleaching, and her being naked beneath

a covering of twigs, leaves, and grass—Hertel could have

learned only from the murderer. There is no suggestion that

he may have learned it from someone, not Mataya, who was

the real murderer. Nor is there evidence or reason to believe

that the police planted these facts in Hertel’s head. And

while more of the details may have come from Mataya’s

wife than she admitted on the stand, her source, like

Hertel’s, could only have been Mataya, either directly or

through her son, Mataya’s stepson, who had seen Mataya

cleaning his pants and his car and might have told his

mother. There is no reasonable possibility that Hertel simply

made up the facts that he recounted to the police and that

his fabrication just happened to correspond to the truth. The

odds against such a coincidence between fiction and fact are

astronomical.

In insisting that Hertel’s motivations were material in the

Brady sense, Mataya’s lawyers ignore a distinction that is

as old as Aristotle’s treatise on rhetoric. We learn there

that when the truth of an assertion cannot be verified, the

character of the person making it becomes important (but
8 No. 02-2850

not otherwise). Is he the kind of person who always tells the

truth or the kind who yields to a strong inducement to lie?

Given Hertel’s criminal record, there was no reason to credit

him with being a reliable witness or to doubt that he would

lie to avoid a heavy prison sentence. This would matter

greatly if his testimony had been unverifiable, as in such

cases as Giglio v. United States, 405 U.S. 150, 154-55 (1972),

and Crivens v. Roth, 172 F.3d 991, 998-99 (7th Cir. 1999). But

it was verifiable simply by comparing what he said with

what only someone who had talked to the murderer would

have known. Had a known liar found a written confession

of Mataya, and a handwriting expert confirmed that the

confession was indeed in Mataya’s hand, the fact that the

confession had been found by a liar would not undermine

its veracity. It is the same here. The correspondence between

the facts narrated by Hertel and the actual facts of the

murder establish that, like the known liar in our example,

Hertel was merely the transmission belt for Mataya’s

confession.

The confession by itself was compelling evidence of

Mataya’s guilt, and in addition it was corroborated, and not

merely by Claflin’s having indeed been murdered. Mataya’s

lawyer picks away at each piece of corroborating evidence

(the dentist’s, the stepkids’, etc.) but in doing so overlooks

another important point about proof: that a number of weak

proofs can add up to a strong proof. Rowan v. Owens, 752

F.2d 1186, 1188-89 (7th Cir. 1984); cf. United States v. Jakobetz,

955 F.2d 786, 793, 798-800 (2d Cir. 1992). Suppose, by way

of analogy, that someone claims that a coin is so weighted

that when flipped it always comes up heads. So it is flipped,

and, sure enough, it comes up heads. This is feeble evidence

to prove that it always does this because even if the coin

were perfectly balanced there would be a 50 percent chance

that the first toss would come up heads. So the coin is

flipped again and again and again and again and each time
No. 02-2850 9

it comes up heads. Now the likelihood that the coin is

perfectly balanced is much less. For example, in five tosses,

the probability that an evenly balanced coin will not turn up

tails even once is only 3.125 percent (1–.5).5

 Suppose there

were a 50 percent chance that the bite marks on Claflin’s

breast had not been made by Mataya, a 50 percent chance

that the car that Cole saw and heard was not Mataya’s (here

the maximum probability was 50 percent, and the actual

probability lower), a 50 percent chance that Mataya was not

bleaching bloodstains out of his white pants the night of the

murder, a 50 percent chance that he did not make the

incriminating statements that his wife and stepdaughter

reported, and a 50 percent chance that he did not make the

incriminating statements to the police that they reported.

Nevertheless the probability that none of these five highly

incriminating events or sets of events had occurred would

be only 3.125 percent—provided they were independent

events in the sense that if one were false this wouldn’t make

it more likely that another was false as well. Branion v.

Gramly, 855 F.2d 1256, 1265 (7th Cir. 1988). The percentage

figures are arbitrary, and we may assume without having to

decide that without Hertel’s evidence no reasonable jury

could have found Mataya guilty beyond a reasonable doubt.

Our point is only that because “it is wrong to view items of

evidence in isolation when they point in the same direction,” Rowan v. Owens, supra, 752 F.2d at 1188, Hertel’s

evidence was not only self-validating but also strongly

corroborated by the other evidence that the state presented.

Mataya argues that a distinct violation of his rights occurred when the prosecution failed to correct Hertel’s false

testimony that he had been offered no inducements to

testify beyond the reward and the favorable letter. But this

violation of the prosecution’s constitutional obligations was

not distinct from the Brady violation in any realistic sense.

Had the prosecution corrected Hertel’s falsehood on the
10 No. 02-2850

spot, as it should have done, that would have cured the

Brady violation, United States v. Knight, 342 F.3d 697, 705-06

(7th Cir. 2003); United States v. Higgins, 75 F.3d 332, 335 (7th

Cir. 1996); United States v. Scarborough, 128 F.3d 1373, 1376

(10th Cir. 1997), but the failure to correct did not make the

violation any more serious. All that Mataya is complaining

about is that Hertel’s deal with the prosecution was concealed from the jury, and the fact that the prosecution had

two opportunities to drop the mask—before trial, when it

could have told the defense about the plea bargain, and

during trial, when Hertel lied—has no bearing on the

prejudice to Mataya from the concealment. That prejudice,

as we have been at pains to show, was nil.

Although the cases distinguish as a matter of nomenclature between knowing use of false testimony and the

withholding of evidence favorable to the defense, the first

being a Napue violation (Napue v. Illinois, 360 U.S. 264

(1959)), and the second a Brady violation, see, e.g., United

States v. Boyd, supra, 55 F.3d at 243-45, the standard is the

same. United States v. Williams, supra, 81 F.3d at 1438. And

the violations are likely to merge in a case such as this in

which the value of the withheld evidence to the defense was

its potential utility for impeaching the government’s witness

as a liar. See, e.g., Giglio v. United States, supra, 405 U.S. at

153-55; cf. Banks v. Dretke, supra, 124 S. Ct. at 1271 n. 11.

When the government’s witness testifies, the prosecutor will

probably know immediately that he’s lying. (We hedge with

“probably” because he may have forgotten or never known

the impeaching fact that defense counsel is trying to elicit on

cross-examination.)

One last point, and we are done. Recall that Hertel was

given $1,000 as part of the consideration for his “cooperation and testimony.” To pay a witness, other than an

expert witness, for his testimony is irregular and in fact

is unlawful in federal trials, 18 U.S.C. § 201(c)(2); United
No. 02-2850 11

States v. Condon, 170 F.3d 687, 689 (7th Cir. 1999), though it

is claimed that federal prosecutors sometimes do pay

witnesses for their testimony, J. Richard Johnston, “Why

Is It OK for the Prosecution, But Not the Defense?,” 11

Crim. Justice, Winter 1997, p. 21, and in United States v. Boyd,

supra, 55 F.3d at 244, we noted the “scandalous” favors with

which the government in that case had showered its prize

witnesses. The practice of paying witnesses for their testimony apparently is forbidden in trials in the state courts of

Wisconsin as well. Wisconsin Supreme Court Rule of

Professional Conduct for Attorneys 3.4(b) comment. To pay

in money, that is; immunity from prosecution, a lighter

sentence, placement in a witness-protection program, and

other breaks are lawful coin in this realm. United States v.

Condon, supra, 170 F.3d at 688-91; United States v. Singleton,

165 F.3d 1297, 1302 (10th Cir. 1999) (en banc).

But it is commonplace to offer money rewards for information leading to the apprehension of a criminal, and at

argument the state’s lawyer explained that the $1,000 paid

Hertel had come from a fund for the payment of such

rewards. Yet it was the state itself that in questioning Hertel

at trial had denominated the $1,000 as compensation for

cooperation and testimony, not merely for information

leading to Mataya’s arrest, though the information Hertel

gave the police was decisive in their decision to arrest

Mataya. (They had questioned him shortly after the crime,

but had not arrested him.) Paying for testimony, as well as

concealing evidence of inducements given to a government

witness, are breaches of prosecutorial ethics, but do not, in

this case at any rate, undermine the conviction. If anything,

the fact that the jury was told that Hertel had been paid for

his testimony made him a less credible witness—or rather

would have made him such had it not been for the selfvalidating character of that testimony.

AFFIRMED.
12 No. 02-2850

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-3-04