In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3665

Randy Boss and Revell Boss, 

Petitioners-Appellants,

v.

Guy Pierce and Mark A. Pierson,/* 

Respondents-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 97 C 2874--James B. Moran, Judge. 

Argued April 18, 2000--Decided August 31, 2001

 Before Flaum, Chief Judge, and Ripple, and

Williams, Circuit Judges.

 Williams, Circuit Judge. Randy and

Revell Boss/1 seek writs of habeas

corpus overturning their state robbery

and murder convictions. They argue that

during their trial prosecutors

unconstitutionally withheld from them

material evidence favorable to their

defense, in violation of Brady v.

Maryland, 373 U.S. 83 (1963). The

district court concluded that this

argument did not warrant habeas corpus

relief. Because we believe the Bosses

have adequately established the elements

of a Brady violation, we reverse.

I. BACKGROUND

A. The Facts

 At the Bosses’ joint trial, the state

sought to prove that the Bosses, along

with two co-defendants who were tried

separately, Nikia Harris and Corey

Carter, robbed and beat to death Eugene

Oliver, a 52-year-old neighborhood

resident. Robert McAfee, a teenager at

the time of the attack, was the only

witness the government called to testify

about the robbery and murder./2 His

direct testimony is summarized below.

 McAfee was riding his bicycle home from

Garfield Park in Chicago on September 6,
1993, at approximately 10:45 p.m. He

stopped at the corner of Franklin and

Drake and talked to a girl who was

leaning out of a window. After about a

minute, the conversation ended, and

McAfee saw four men and a woman standing

across the street outside the senior

citizens’ home, drinking beer. Although

he did not recognize the woman, he

recognized the four men--Randy, Revell

(identified as "Vell"), Keater, and

Corey./3

 While still looking across the street,

McAfee saw Eugene Oliver leave the senior

citizens’ home and walk toward Franklin.

Randy, Vell, Keater, and Corey followed

Oliver. As they walked to the corner of

Franklin and Drake, Randy approached

McAfee and asked if he could use his

bicycle. After McAfee refused, Randy

simply took the bicycle and rode off.

McAfee gave chase.

 Meanwhile, Oliver had turned left onto

Franklin and walked to Central Park. On

McAfee’s bicycle, Randy caught up with

Oliver and threw the bicycle at Oliver’s

legs, which caused Oliver to fall to the

ground. Although McAfee could not

remember where they came from, Vell,

Keater, and Corey had by this point made

their way to Central Park. All four began

to beat Oliver. They repeatedly kicked

Oliver in the face and on his side. Randy

picked up the bicycle and threw it on

Oliver’s head three times. The beating

lasted about a minute, and left Oliver

motionless on the ground. Afterwards,

Randy reached into Oliver’s pocket and

removed something.

 As Randy, Vell, Keater, and Corey left

the scene of the attack, they walked past

McAfee, who had seen the attack from

across the street. Randy told McAfee,

"Don’t say nothing, don’t tell nobody."

McAfee also noticed that Randy had a $20

bill in his hand, and he heard Randy

talking about purchasing some beer.

 Once they were gone, McAfee retrieved

his bicycle from the park./4 The crank

was so bent he had to push the bicycle

home. Because of Randy’s threat, McAfee

kept quiet about Oliver’s beating until

he was questioned by the police.

 At trial, during cross-examination,

defense counsel questioned McAfee about a
juvenile manslaughter adjudication that

arose out of his accidental shooting of a

friend, for which he was still on

probation. McAfee admitted that he first

lied to the police regarding his role in

his friend’s death because he was scared.

With respect to the Oliver beating, he

admitted that he was scared when the

police brought him in for questioning.

Defense counsel also elicited testimony

from McAfee suggesting that the police

may have initially suspected him as

having been involved in the attack on

Oliver./5

 The four witnesses called by the defense

told a different story. Antonio Shanklin

testified that he saw four or five boys

who he had never seen before beating

Oliver. He identified McAfee as the one

who picked up a bicycle and hit Oliver

with it. Afterwards, McAfee fixed the

chain on the bicycle and rode off,

joining the other boys who had begun to

flee the scene. As they fled, they went

past Shanklin, and he had a good chance

to look at them. 

 Shanklin also testified that he had

known the Bosses for about three years,

and he was certain they were not among

the group of boys fleeing the scene. In

fact, he stated that he saw Revell on the

east side of Central Park while Oliver

was being beaten on the west side of the

park. On cross-examination, Shanklin

admitted that he came forward to testify

at the request of the Bosses’ family./6

 Contina Hill, Randy’s girlfriend and his

child’s mother, stated that on the day of

the crime, Randy was with her at the

apartment she shares with her mother and

other family members, enjoying a Labor

Day barbeque. He left the apartment only

twice. Sometime in the afternoon, he went

downstairs to the apartment of Corey

Carter’s cousin, Gregory Carter. That

night, he went out with Gregory and two

other men and returned a short time later

with beer. Randy left for good much later

that night. Sometime late that night

Revell came by and spent some time at the

Hills’ apartment. Janice Hill, Contina’s

sister, corroborated her sister’s

testimony and added that when Randy left

the apartment the second time, he was

gone approximately 15 minutes.

 Tonya Gist, a neighbor of the Hills,
testified that on the night of the crime,

near Central Park, she saw McAfee

fighting with an older man from the

senior citizens’ home. She went home, and

when she arrived, she saw Randy sitting

on the back porch she shared with the

Hills. He was still there when she locked

the gate later that evening. Also, at

some point during the evening, Gist saw

Revell on the porch.

 On the last day of the Bosses’ two-day

trial, the state gave the Bosses an

investigative report summarizing an

interview of Janice Hill conducted four

days before the trial began. This report

revealed that Janice told the state

investigator information unknown to

defense counsel: (1) that McAfee had been

bragging to people about what he and his

friends had done to Oliver; and (2) that

McAfee had told Richard Mitchell that he

had only implicated Randy, Revell, and

the other defendants in the Oliver attack

so that he would not get in trouble.

Based on this information, defense

counsel moved for a continuance so that

they could locate Richard Mitchell. The

trial judge denied the motion.

 The trial went forward, and the jury

found Randy and Revell guilty of both

first-degree murder and robbery. After

the trial, but before sentencing, new

defense counsel followed up on the Janice

Hill information. Counsel located and

talked to Richard Mitchell. According to

Mitchell, McAfee admitted that he, not

the defendants, had committed the

offense. Counsel also collected written

statements from Marcus Fowler and Ricky

Boss to the same effect. Based on this

material, counsel filed a motion for a

new trial,/7 but the trial judge denied

the motion. The trial judge then

sentenced Randy to concurrent prison

terms of fifty years for murder and seven

years for robbery, and sentenced Revell

to concurrent prison terms of forty years

for murder and seven years for robbery. 

B. Post-Conviction Proceedings

 The Bosses appealed their convictions to

the Illinois Appellate Court, claiming,

among other things, that the State’s

Attorneys prosecuting their case violated

Brady v. Maryland, supra, by withholding

the investigative report summarizing

Janice Hill’s interview with the state
investigator. The Appellate Court

affirmed their convictions. In rejecting

the Bosses’ Brady claim, the Appellate

Court concluded that the Bosses could

satisfy none of the requirements for a

Brady claim, as the investigative report

was not suppressed by the state,

favorable to the defense, or material,

under Brady. The Bosses sought review in

the Illinois Supreme Court, but their

petition was denied without an opinion.

 The Bosses then turned to federal court

and filed a petition for a writ of habeas

corpus in the District Court for the

Northern District of Illinois, raising

the same claims. Concluding that the

information in the investigative report

was not suppressed by the state, the

district court denied the writ. The

district court granted them a certificate

of appealability, and the Bosses filed

this appeal with respect to their Brady

claim./8

II. ANALYSIS

A. Habeas Corpus and 28 U.S.C. sec.

2254(d)(1)

 In considering a habeas corpus petition

filed by a state prisoner that challenges

the prisoner’s conviction or sentence on

legal grounds, federal courts employ the

standards set forth in 28 U.S.C. sec.

2254(d)(1). Under this provision, a

federal court may grant a writ of habeas

corpus only if the adjudication of the

prisoner’s claims in state court resulted

in a decision that "was contrary to, or

involved an unreasonable application of,

clearly established Federal law, as

determined by the Supreme Court of the

United States." As the Supreme Court

explained in Williams v. Taylor, 529 U.S.

362 (2000), section 2254(d)(1)

establishes two independent grounds on

which a federal court can grant habeas

corpus relief: (1) if a state court

decision is contrary to clearly

established federal law, as determined by

the Supreme Court, or (2) if a state

court decision involves an unreasonable

application of clearly established

federal law, as determined by the Supreme

Court. Id. at 404-05; see also Washington

v. Smith, 219 F.3d 620, 627-28 (7th Cir.

2000).

 The "contrary to" standard requires a
state court decision to be "substantially

different from the relevant precedent of

[the Supreme Court]." Williams, 529 U.S.

at 405. For example, a state court

decision applying a rule that contradicts

the governing law set forth by the

Supreme Court would qualify, as would a

decision that involves a set of facts ma

terially indistinguishable from a Supreme

Court case that arrives at a different

result. Id. at 405-06. By contrast, a

state court decision that draws from

Supreme Court precedent the correct legal

rule and applies it in a factually

distinguishable situation will not

satisfy the "contrary to" standard, no

matter how misguided the decision’s

ultimate conclusion. Id. at 406-07.

 Errors in the application of Supreme

Court precedent are governed by the

"unreasonable application of" standard.

"A state-court decision that correctly

identifies the governing legal rule but

applies it unreasonably to the facts of a

particular prisoner’s case" qualifies as

a decision involving an unreasonable

application of clearly established

federal law. Id. at 407-08. Whether an

application of federal law is

unreasonable is not a simple question to

answer, as "unreasonable" is a difficult

term to define without reference to a

particular set of facts. Still, Williams

provides guidance. First, reasonableness

is judged objectively, not subjectively.

Id. at 409-10. Thus, the fact that judges

may disagree about the proper application

of a precedent does not affect the

reasonableness of a particular

application of that precedent. Second,

"an unreasonable application of federal

law is different from an incorrect

application of federal law." Id. at 410

(emphasis in original). Therefore, a

federal court may not grant habeas corpus

relief simply because it has

independently concluded that the relevant

state court decision misapplies clearly

established federal law. The decision’s

application of Supreme Court precedent

must be so erroneous as to be

unreasonable.

 In Williams, the Supreme Court also

explained the meaning of the phrase

"clearly established Federal law, as

determined by the Supreme Court of the

United States." It characterized the

phrase as referring to "the holdings, as
opposed to the dicta, of this Court’s

decisions as of the time of the relevant

state-court decision." Id. at 412. There

fore, in order to grant habeas corpus

relief under section 2254(d)(1), a

federal court must be able to point to

the holding of a Supreme Court decision

handed down before the state courts

issued the decision under review. 

B. Brady Violation

 With these standards in mind, we turn to

the Bosses’ Brady claim. Under Brady v.

Maryland, supra, and its progeny, the

prosecution has an affirmative duty to

disclose evidence that is both favorable

to the defense and material to either

guilt or punishment. Kyles v. Whitley,

514 U.S. 419, 432-34 (1995); United

States v. Bagley, 473 U.S. 667, 674-75

(1985); Brady, 373 U.S. at 87. The

suppression of such evidence deprives the

defendant of a fair trial and thus

violates due process. Brady, 373 U.S. at

86-87. To establish a Brady violation, a

defendant must demonstrate that (1) the

prosecution suppressed evidence, (2) the

evidence was favorable to the defense,

and (3) the evidence was material to an

issue at trial. United States v. Walton,

217 F.3d 443, 450 (7th Cir. 2000); United

States v. Morris, 80 F.3d 1151, 1169 (7th

Cir. 1996). The state does not contest

the Bosses’ contention that the

investigative report summarizing Janice

Hill’s interview with the state

investigator was favorable to the

defense./9 Therefore, we focus our

attention on suppression and materiality,

the other two elements of a Brady claim.

 1. Suppression.

 Evidence is suppressed for Brady

purposes only if (1) the prosecution

failed to disclose evidence that it or

law enforcement was aware of before it

was too late for the defendant to make

use of the evidence, and (2) the evidence

was not otherwise available to the

defendant through the exercise of

reasonable diligence. United States v.

Earnest, 129 F.3d 906, 910 (7th Cir.

1997); Morris, 80 F.3d at 1169-70; United

States v. Zambrana, 841 F.2d 1320, 1340

(7th Cir. 1988). The state here contests

whether the information Janice Hill

related to the state investigator was
available to the Bosses through the

exercise of reasonable diligence.

Specifically, the state argues that

Janice Hill was a defense witness and,

therefore, the Bosses had ample access to

any information she possessed. Both the

district court and the Illinois Appellate

Court accepted this argument and found

that the prosecution had not suppressed

the evidence in the investigative report.

 We are of the view, however, that the

state’s argument rests on far too

expansive an understanding of what sort

of evidence should be considered

available to a defendant through the

exercise of reasonable diligence. We

regard as untenable a broad rule that any

information possessed by a defense

witness must be considered available to

the defense for Brady purposes. To begin

with, it is simply not true that a

reasonably diligent defense counsel will

always be able to extract all the

favorable evidence a defense witness

possesses. Sometimes, a defense witness

may be uncooperative or reluctant. Or,

the defense witness may have forgotten or

inadvertently omitted some important

piece of evidence previously related to

the prosecution or law enforcement. Or,

as may have been the case here, the

defense witness learned of certain

evidence in the time between when she

spoke with defense counsel and the

prosecution.

 Putting aside these situations in which

it would be nearly impossible for defense

counsel to discover evidence in the

possession of defense witnesses,

accepting the state’s position would

place a burden on defense counsel that

goes far beyond what reasonable diligence

demands. Defense counsel can certainly be

expected to ask witnesses (defense and

otherwise) questions relevant to what

counsel understands the witness’s role to

be in the case. However, defense counsel

cannot be expected to ask witnesses about

matters completely unrelated to the

witness’s role in the case. A contrary

conclusion would require defense counsel

to conduct a fishing expedition with

every defense witness (and potential

defense witness). Reasonable diligence

does not require such a practice.

 We also find it significant that a

defense witness’s knowledge is quite
different from the type of evidence

typically found to be available to

defense counsel through the exercise of

reasonable diligence. In the typical

reasonable diligence case, the question

is whether defense counsel had access to

the document containing the Brady

material, through an open file policy,

for example. See, e.g., United States v.

White, 970 F.2d 328, 337 (7th Cir. 1992).

In cases like the present one, the

question is whether defense counsel had

access to Brady material contained in a

witness’s head. See, e.g., Crivens v.

Roth, 172 F.3d 991, 997 (7th Cir. 1999).

Because mind-reading is beyond the

abilities of even the most diligent

attorney, such material simply cannot be

considered available in the same way as a

document. But, the position the state

advances would require a defense

witness’s knowledge to be treated exactly

as information in a document the defense

possesses. This stretches the concept of

reasonable diligence too far.

 Still, the ultimate question we must

answer in this case is whether the

Illinois Appellate Court’s ruling--

thatbecause Janice Hill was a defense

witness, the information she possessed

was available to the Bosses through the

exercise of reasonable diligence--"was

contrary to, or an unreasonable

application of clearly established

federal law, as determined by the Supreme

Court." 28 U.S.C. sec. 2254(d)(1). Brady

and its most notable progeny (United

States v. Agurs, 427 U.S. 97 (1976);

United States v. Bagley, supra; Kyles v.

Whitley, supra), all of which were

decided prior to the conclusion of the

Bosses direct appeal, represent the

relevant, clearly established federal

law./10 And, the Appellate Court’s

ruling is not so inconsistent with these

cases that it can be characterized as

"contrary to" them. Thus, we focus on

whether the Appellate Court’s decision is

an "unreasonable application of" Brady

and its progeny. We conclude that it was.

 When faced with the task of determining

whether a particular application of

Supreme Court precedent is unreasonable,

we have often taken a more pragmatic

approach to answering the question,

scrutinizing the practical operation and

effect of the principles at issue in the

particular facts of the case. See, e.g.,
Miller v. Anderson, 255 F.3d 455, 456-59

(7th Cir. 2001); Redmond v. Kingston, 240

F.3d 590, 591-92 (7th Cir. 2001);

Washington v. Smith, 219 F.3d 620, 627-35

(7th Cir. 2000). We ask whether the

decision is "at least minimally

consistent with the facts and

circumstances of the case" or "if it is

one of several equally plausible

outcomes," Hennon v. Cooper, 109 F.3d

330, 335 (7th Cir. 1997); Hall v.

Washington, 106 F.3d 742, 749 (7th Cir.

1997), granting a writ of habeas corpus

if the determination is "at such tension

with governing U.S. Supreme Court

precedents, or so inadequately supported

by the record, or so arbitrary" as to be

unreasonable. Hall, 106 F.3d at 749.

 For instance, in Redmond v. Kingston,

supra, this court considered whether a

Wisconsin court of appeals’ decision to

affirm a state trial court’s exclusion of

evidence (that the alleged statutory rape

victim in the case had lied about a prior

report of forcible rape) was an

unreasonable application of Supreme Court

Confrontation Clause precedent. The

defendant was on trial for allegedly

trading cocaine for sex with the minor,

who was institutionalized at the drug

rehabilitation center where the defendant

was a counselor. Her testimony was the

only evidence of the defendant’s guilt.

The Wisconsin court upheld the exclusion

of the prior false forcible rape report

against the constitutional challenge,

stating that it was cumulative of other

credibility evidence and was confusing

(the prior incident involved consent,

which was not an element in that case).

Therefore, they concluded that its

probative value was outweighed by its

inflammatory and prejudicial nature,

justifying exclusion under the state’s

rape-shield law and the Constitution. 

 We held that this decision was

unreasonable. Redmond, 240 F.3d at 591.

The "other credibility" evidence was that

the minor began using drugs at the age of

twelve, had stolen and occasionally

danced to get money for cocaine, had run

away from the institution, skipped school

and told lies in the past. We stated that

"none of the other evidence either

involved a false charge of being sexually

assaulted or furnished a motive for such

a charge." Id. Thus, the nature of the

credibility evidence excluded was
entirely different from that admitted,

and we rejected as unreasonable the

Wisconsin court’s suggestion that the

evidence was cumulative. 

 In addition, we concluded that there was

no danger of confusion to the trier of

fact, and that the assumption upon which

the Wisconsin court made its

determination was faulty. The Wisconsin

court believed that admitting the

evidence of the prior false rape report

would require (or permit) the victim to

testify that she had consensual sex with

the alleged rapist, and that would lead

to confusion and misperception of issues

in the case. Id. at 592. We rejected this

conclusion, because the only evidence

relevant to the case was that the victim

had made up a story of forcible rape

within the preceding year. This evidence

did not require any inquiry into whether

there was sexual intercourse, and we saw

no reason why anyone would reach a

conclusion to the contrary. Id. We held

that the evidence was "highly probative,

noncumulative, nonconfusing, [and]

nonprejudicial . . . [and] vital to the

central issue in the case," and should

not have been excluded. The defendant had

a constitutional right to have it

admitted. Id. 

 As our analysis in Redmond illustrates,

careful review of the evidence and

reasons supporting the decision is

required in determining the

reasonableness of a state court’s

decision. It is that type of examination

in which we engage today.

 Here, the Illinois Appellate Court’s

ruling that reasonable diligence required

the Bosses’ counsel to ask Janice Hill

about what McAfee had been saying around

the neighborhood regarding the attack on

Eugene Oliver is an unreasonable

application of Brady and its progeny. The

Bosses’ counsel could not have reasonably

expected Janice Hill to have knowledge

regarding this topic. Janice was simply

an alibi witness whom defense counsel

planned to have testify to Randy’s

whereabouts on the night of the crime.

Nothing about her role in the case

suggested that she might also have

knowledge regarding what the

prosecution’s chief witness was saying

around the neighborhood. 
 Holding that reasonable diligence

requires defense counsel to ask witnesses

about matters of which counsel could not

have reasonably expected a witness to

have knowledge is inconsistent with the

aim of Brady and its progeny. Brady and

its progeny strike a careful balance

between maintaining an adversarial system

of justice and enforcing the

prosecution’s obligation to seek justice

before victory. See, e.g., Kyles, 514

U.S. at 439 ("Unless, indeed, the

adversary system of prosecution is to

descend to a gladiatorial level

unmitigated by any prosecutorial

obligation for the sake of truth, the

government simply cannot avoid

responsibility for knowing when the

suppression of evidence has come to

portend such an effect on a trial’s

outcome as to destroy confidence in its

result."); Bagley, 473 U.S. at 675 n.6

("The Court has recognized, however, that

the prosecutor’s role transcends that of

an adversary: he is the representative

not of an ordinary party to a

controversy, but of a sovereignty whose

interest in a criminal prosecution is not

that it shall win a case, but that

justice shall be done." (internal

quotation marks and ellipses omitted));

Brady, 373 U.S. at 87-88 ("A prosecution

that withholds evidence on demand of an

accused which, if made available, would

tend to exculpate him or reduce the

penalty helps shape a trial that bears

heavily on the defendant. That casts the

prosecutor in the role of an architect of

a proceeding that does not comport with

standards of justice . . . ."). 

 Allowing the government to withhold

favorable material evidence that it

receives from defense witnesses upsets

the balance Brady and its progeny strike.

The consequence of adopting the state’s

position would work a real injustice. In

effect, it would punish the defense for

not obtaining evidence it had no reason

to believe existed.

 The Illinois Appellate Court’s ruling

regarding what reasonable diligence

requires is also inconsistent with Brady

and its progeny in a more particular

sense. The Supreme Court has described

the Brady rule as applying to information

known to the prosecution but "unknown to

the defense." Kyles, 514 U.S. at 437;

Bagley, 473 U.S. at 678 (opinion of
Blackmun, J.); Agurs, 427 U.S. at 103.

This description suggests a focus on

actual knowledge as the key consideration

in determining whether evidence is

available to the defense for Brady

purposes. Still, it would be a reasonable

application of this precedent to hold

that the Brady rule does not apply to

information the defense can be expected

to discover. Refusing to characterize as

Brady material information the defense

can be expected to discover serves to

weed out incredible claims of ignorance,

to prevent sandbagging, and is consistent

with a focus on actual knowledge. Further

extension of the limits on Brady material

to include information the defense could

not be expected to discover cannot be

reconciled with such a focus. See 5 Wayne

R. LaFave et al., Criminal Procedure sec.

24.3(b), at 486-87 (2d ed. 1999) (drawing

a similar distinction). Extending

thelimits on Brady material in this way

would be inconsistent with what the

Supreme Court has said regarding when

undisclosed evidence is available to the

defense.

 Finally, the state does not cite, and we

have not found, a single case applying

Brady and its progeny in the fashion

advanced by the state. Of the few cases

we have discovered involving whether the

defense had access to information

possessed by a witness, none demanded

inquiry into matters defense counsel

could not have been expected to ask

about. See, e.g., Crivens, 172 F.3d at

997; United States v. Hamilton, 107 F.3d

499, 510 (7th Cir. 1997); cf. United

States v. Senn, 129 F.3d 886, 892-93 (7th

Cir. 1997); United States v. RodriguezAndrade, 62 F.3d 948, 952 (7th Cir.

1995); United States v. Hedgeman, 564

F.2d 763, 769 (7th Cir. 1977). In fact,

in Hamilton, this court, finding

thatcertain information possessed by a

witness was available to the defense for

Brady purposes, made clear that it was

more than reasonable to expect an

investigator hired by the defense to

inquire after the information at issue.

107 F.3d at 508-09 (quoting the district

court’s finding that "’any investigator

worth his or her salt would have asked

Mr. Painter had he given any

statements’"). This authority (and lack

of authority) confirms our belief that it

would be an unreasonable application of

Brady and its progeny to rule that
information possessed by a defense

witness is available through the exercise

of reasonable diligence where that

information is not of a type defense

counsel could reasonably expect that

witness to possess.

 In sum, we find that the Illinois

Appellate Court unreasonably applied

Brady and its progeny in ruling that rea

sonable diligence required the Bosses’

counsel to ask Janice Hill about what

McAfee had been saying around the

neighborhood regarding the attack on

Oliver. And we also conclude that the

Bosses have satisfied the standard for

habeas corpus relief with respect to the

suppression requirement for a Brady

claim./11

 2. Materiality.

 Turning to the final prong, suppressed

evidence is material for Brady purposes

"’if there is a reasonable probability

that, had the evidence been disclosed to

the defense, the result of the proceeding

would have been different.’" Kyles, 514

U.S. at 433-34 (quoting Bagley, 473 U.S.

at 682 (opinion of Blackmun, J.)). Such a

probability exists where the suppressed

evidence, or evidence that is derived

directly from the suppressed evidence,

undermines confidence in the outcome

reached. Kyles, 514 U.S. at 434; Bagley,

473 U.S. at 682 (opinion of Blackmun,

J.); see also United States v. Dimas, 3

F.3d 1015, 1018 (7th Cir. 1993). 

 The state argues that the evidence

discovered on the basis of the

information Janice Hill provided to the

state investigator is not material

because it is cumulative of the trial

testimony of Antonio Shanklin and Tonya

Gist exculpating one or both of the

Bosses and inculpating McAfee./12

According to the state, there is no

reason to think the jury would not have

disregarded this new evidence just as it

disregarded the similar evidence it did

hear. The Illinois Appellate Court

embraced the state’s argument regarding

this issue without reservation, but the

district court declined to accept or

reject the argument.

 In our view, the state’s argument

mischaracterizes the nature of the

evidence the Bosses discovered on the
basis of Janice Hill’s statements to the

state investigator. This evidence is not

simply cumulative; it differs in at least

two significant ways from the testimony

of Antonio Shanklin and Tonya Gist.

First, according to the uncontradicted

representations of the Bosses’ counsel,

two of the three witnesses discovered

(Richard Mitchell and Marcus Fowler) are

neutral and disinterested witnesses,

which distinguishes them from Shanklin

and Gist who, as the prosecution

emphasized at trial, both have

connections to the Bosses. We have

previously recognized that independent

corroboration of the defense’s theory of

the case by a neutral and disinterested

witness is not cumulative of testimony by

interested witnesses, and can undermine

confidence in a verdict. Washington v.

Smith, 219 F.3d 620, 634 (7th Cir. 2000);

Montgomery v. Petersen, 846 F.2d 407, 415

(7th Cir. 1988). 

 Second, the testimony that the newly

discovered witnesses would have given

(that McAfee admitted participating in

the attack on Oliver and admitted that

the Bosses were not involved) is of a

different nature than that given by Gist

and Shanklin. It involves a confession by

McAfee, the state’s key witness, that he

committed the crime the defendants were

charged with and that he lied about the

defendants’ participation in that crime.

This is different and in many ways more

significant evidence than testimony that

two eyewitnesses believe they saw McAfee

take part in the attack on Oliver. Cf.

Redmond, 240 F.3d at 591-92 (discussed

supra).

 For both these reasons, the evidence the

Bosses discovered on the basis of Janice

Hill’s statements to the state

investigator cannot be characterized as

simply cumulative. It is difficult to say

with certainty that the jury would have

disbelieved the testimony of the newly

discovered witnesses just as it

disbelieved Gist and Shanklin. Making

such a statement becomes impossible when

we take into account how closely balanced

the evidence presented at trial was. The

evidence presented by the state was not

overwhelming. As we have noted, McAfee’s

testimony was the state’s only evidence

connecting the Bosses to the attack on

Oliver. Therefore, weighing McAfee’s

credibility was crucial to the jury’s
determination. The evidence the Bosses

discovered on the basis of Janice Hill’s

statements presents a direct and

substantial challenge to McAfee’s

credibility and undermines our confidence

in the jury’s verdict. Therefore, we

conclude that the withheld evidence was

material for Brady purposes.

 Although the Illinois Appellate Court’s

decision reaching the opposite conclusion

is not "contrary to" clearly established

Supreme Court precedent on Brady

materiality, the Appellate Court’s

decision is an "unreasonable application

of" that precedent. The Appellate Court

did not undertake a careful, balanced

evaluation of the nature and strength of

both the evidence the defense was

prevented from presenting and the

evidence each side presented at trial,

which is required under Kyles v. Whitley,

supra. In Kyles, the Supreme Court

exhaustively examined the suppressed evi

dence as well as the evidence introduced

at trial. It then carefully assessed what

purposes the suppressed evidence might

have served and how that evidence might

have affected the jury’s consideration of

the evidence that was introduced. 514

U.S. at 441-54. 

 By contrast, the Illinois Appellate

Court’s discussion of whether the Bosses

could satisfy the materiality requirement

is little more than a conclusion that the

excluded evidence, because it was

cumulative, was not likely to be

believed. The court did not consider the

impeachment value the new evidence might

have had or the differences between the

new evidence and the testimony of

Shanklin and Gist. Nor did the court

assess the relative strength of the

state’s case against the Bosses or how

the new evidence might call the state’s

case into question. As we noted above,

all of these considerations have

considerable significance in this case.

But we do not conclude that the Illinois

Appellate Court’s decision was

unreasonable because not well-reasoned.

Accord Hennon, 109 F.3d at 334-35.

Rather, we believe that the Illinois

Appellate Court’s conclusion, that the

evidence discovered on the basis of

Janice Hill’s statements was not material

because cumulative, was unreasonable on

the facts and circumstances of this case.

Therefore, we find that the Bosses have
satisfied the standard for habeas corpus

relief with respect to the materiality

requirement for a Brady claim.

III. CONCLUSION

 As the Bosses have satisfied the

standard for habeas corpus relief with

respect to each of the requirements for a

Brady claim, the district court erred in

denying the Bosses writs of habeas

corpus. Accordingly, we Reverse the

judgment of the district court and Remand

the case with instructions to grant the

Bosses writs of habeas corpus unless the

state retries them within 120 days.

FOOTNOTES

/* Since the filing of this appeal, both petitioners

have been moved to new prisons; Randy Boss to

Pickneyville Correctional Center and Revell Boss

to Hill Correctional Center. We have substituted

the wardens of those institutions, Guy Pierce and

Mark A. Pierson, respectively, as the respondents

in this case pursuant to Fed. R. App. P. 23(a).

/1 Collectively, we refer to them as the Bosses. To

avoid confusion, we will use first names when

referring to them separately. We will also follow

this practice for individuals in this opinion who

share the same last name.

/2 The state called four other witnesses: Chicago

Police Detective Gene Harris; Oliver’s girlfriend, Beulah Williams; Assistant Cook County

Medical Examiner Larry Simms; and paramedic Larry

Del Dotto. But none of these witnesses offered

testimony linking the Bosses to the attack on

Oliver.

/3 He later identified them in court.

/4 The bicycle was introduced in evidence, and

McAfee identified it as the bicycle used in the

attack.

/5 Detective Harris, in his testimony, insisted that

McAfee was merely a witness, but police records

and certain circumstances surrounding McAfee’s

questioning by the police cast some doubt on that

assertion.

/6 Shanklin, like each of the defense witnesses,

also admitted that he never contacted the police

or the State’s Attorney’s Office about his knowledge regarding the crime. However, Shanklin, and

both Hill sisters, testified that they did speak

to the Bosses’ attorneys not long after the

Bosses were charged.
/7 Actually, defense counsel’s second amended motion

for a new trial, supplementing two previous

motions, incorporated this newly discovered

material. 

/8 Under 28 U.S.C. sec. 2253(c), a habeas corpus

petitioner challenging her conviction or sentence

may appeal an adverse district court decision

only with respect to those issues on which she

has been granted a certificate of appealability. The

Bosses ask us to expand their certificate of

appealability to include various claims in addition to their Brady claim, but on none of these

claims have the Bosses made "a substantial showing of the denial of a constitutional right," as

they must before a certificate of appealability

can be issued, 28 U.S.C. sec. 2253(c)(2). Therefore we deny the Bosses’ request to expand their

certificate of appealability.

/9 Nor could it. As the district court recognized,

the information in the investigative report has,

at the very least, impeachment value, and impeachment evidence is favorable to the defense,

Bagley, 473 U.S. at 676; Crivens v. Roth, 172

F.3d 991, 996 (7th Cir. 1999). In considering

this element of the Bosses’ Brady claim, the

Illinois Appellate Court appears to have proceeded on the assumption that suppressed evidence

must be exculpatory to satisfy the requirements

of Brady. Such an assumption is contrary to then

clearly established Supreme Court precedent. See

Bagley, 473 U.S. at 676; Giglio v. United States,

405 U.S. 150, 154-55 (1972).

/10 We recognize that the Supreme Court has decided

other cases involving Brady claims, see, e.g.,

Strickler v. Greene, 527 U.S. 263 (1999); Wood v.

Bartholomew, 516 U.S. 1 (1995); Pennsylvania v.

Ritchie, 480 U.S. 39 (1987); Weatherford v.

Bursey, 429 U.S. 545 (1977); Moore v. Illinois,

408 U.S. 786 (1972); Giglio v. United States, 405

U.S. 150 (1972), but the three cited are the most

significant decisions that identify the legal

standards governing Brady claims. See 5 Wayne R.

LaFave et al., Criminal Procedure sec. 24.3(b),

at 473-90 (2d ed. 1999) (relying predominantly on

these cases in describing the relevant standards).

/11 We need not address Revell Boss’s alternative

argument that his attorney acted with reasonable

diligence because Janice Hill was Randy’s alibi

witness.

/12 The state does not directly address the materiality of Janice Hill’s statements themselves,

presumably on the assumption that her statements

would be inadmissible hearsay. We need not re-
solve this evidentiary issue because the evidence

discovered on the basis of Janice’s statements is

material standing alone.

 Flaum, Chief Judge, dissenting. Like the

majority, I share a sense of concern regarding

the circumstances of this case. Given the facts

before us, the preferable course of action would

have been for the trial judge to grant the

defense a continuance so that they could have

further investigated any additional information

which might have been provided by witness Janice

Hill. Nevertheless, I am unable to conclude that

the Bosses are entitled to a writ of habeas

corpus under the standard mandated by 28 U.S.C.

sec. 2254(d)(1) as interpreted in Williams v.

Taylor, 529 U.S. 362, 402-13 (2000). In my judgment, the Illinois Appellate Court’s determination, that no evidence from Hill was suppressed

by the prosecution since she was a cooperative

defense witness, cannot be labeled an unreasonable application of Brady in light of the controlling jurisprudence.

 I agree with the majority that the Illinois

court’s decision was not "contrary to . . .

clearly established Federal law, as determined by

the Supreme Court of the United States," 28

U.S.C. sec. 2254(d)(1). Thus, I address only

whether the decision is an unreasonable application of such law. The Illinois Appellate Court’s

decision fits into a line of circuit cases rejecting Brady claims based on evidence that could

have been discovered by the defense with reasonable diligence, see, e.g., Chandler v. Moore, 240

F.3d 907, 915 (11th Cir. 2001); United States v.

Grintjes, 237 F.3d 876, 880 (7th Cir. 2001);

Johns v. Bowersox, 203 F.3d 538, 545 (8th Cir.

2000), or where the defense knew or should have

known of the essential facts necessary to obtain

the exculpatory evidence, see, e.g., Coleman v.

Mitchell, 244 F.3d 533, 541 (6th Cir. 2001);

United States v. Zichettello, 208 F.3d 72, 103

(2d Cir. 2000). These cases present a reasonable

interpretation of Brady since a Brady violation

can occur only if evidence is suppressed, and,

generally, evidence available to the defense

cannot be so characterized.

 In deciding whether potentially exculpatory

evidence could have been found through reasonable

diligence, our court focuses on whether the

defense had knowledge of the material containing

such evidence and the same degree of access as

the prosecution. See United States v. Parks, 100

F.3d 1300, 1307 (7th Cir. 1996); United States v.

Morris, 80 F.3d 1151, 1170 (7th Cir. 1996). To
defeat a Brady claim, the defense need not be

aware of the specific details of the exculpatory

information or precisely what it is so long as

the defense knew of and had access to the material that contained, or the witness who possessed,

such information. See, e.g., United States v.

Senn, 129 F.3d 886, 892-93 (7th Cir. 1997);

Parks, 100 F.3d at 1037.

 Respectfully, I cannot find the Illinois Appellate Court’s decision wanting under these standards. Both of the Bosses clearly were aware of

Janice Hill, as she testified in favor of one of

the defendants, Randy. Since Randy and Revell

were tried jointly, Revell must have also known

of Hill. Additionally, the Bosses had at least as

much access to Hill as the state did considering

that she was one of their witnesses. The defense

was aware that Hill had evidence relevant to the

crime and had ample opportunity to interview Hill

in order to obtain all of the information she

knew about Eugene Oliver’s death, including

Robert McAfee’s involvement. The Bosses have not

demonstrated or suggested that Hill was uncooperative or that they otherwise would have had more

difficulty in obtaining information from Hill

than the prosecution did.

 The majority seeks to cabin the need for the

defense to be reasonably diligent through a

variety of distinctions that are, in my view,

unavailing. The reasonable diligence requirement

has frequently been applied to evidence that was

unwritten. See, e.g., United States v. Zagari,

111 F.3d 307, 320 (2d Cir. 1997); Hoke v. Netherland, 92 F.3d 1350, 1355-56 (4th Cir. 1996).

Indeed, obtaining information through questioning

often requires less diligence than sorting

through papers. Thus, the fact the proposed

evidence in question was contained in Hill’s mind

rather than a document is not a reason for

excusing the defense’s not uncovering information

known by one of their own witnesses. 

 In addition, a specific lead is not necessary

for a reasonably diligent defendant to discover

exculpatory information; knowledge of and access

to a witness usually are sufficient. See, e.g.,

Wright v. Hopper, 169 F.3d 695, 702 (11th Cir.

1999); Hoke, 92 F.3d at 1355-56; United States v.

Hicks, 848 F.2d 1, 4 (1st Cir. 1988); United

States v. Grossman, 843 F.2d 78, 85 (2d Cir.

1988). The majority’s quotation from our decision

in United States v. Hamilton, 107 F.3d 499, 508-

09 (7th Cir. 1997) demonstrates this proposition.

Hamilton does not rest on the defense’s possession of information indicating what specific

questions a witness should have been asked.

Rather, by the simple fact that the bank teller

in Hamilton was a witness the defense should have
known to ask whether he had given any prior

statements to the police. Id. Similarly, in the

days before trial the Bosses’ attorneys readily

could have asked Hill if she had learned any

additional information relevant to the case since

their previous interview.

 The Illinois Appellate Court’s decision does not

disrupt the prosecutor’s duty to seek justice

before victory. Brady was never meant to displace

our adversary system of justice, United States v.

Bagley, 473 U.S. 667, 675 (1985), and does not

require the prosecution to assist in presenting

the defense’s case, United States v. White, 970

F.2d 328, 337 (7th Cir. 1992). Even after Brady,

defendants are still required to conduct thorough

investigations of witnesses which they know may

have useful information.

 Furthermore, and perhaps most significantly,

cases denying Brady claims often have relied on

the fact that the witness with the exculpatory

material was either a defense witness or cooperated with the defense. See Stockton v. Murray, 41

F.3d 920, 925 (4th Cir. 1994); United States v.

Dean, 722 F.2d 92, 95 (5th Cir. 1983); United

States v. Natale, 526 F.2d 1160, 1171 (2d Cir.

1975). Against the backdrop of this case law, it

is difficult to conclude that the Illinois Appellate Court unreasonably applied the Supreme

Court’s directives regarding Brady.

 The foregoing is not meant to suggest in any

way a broad, strict rule that Brady is in all

circumstances inapplicable to information obtained by the prosecution from defense witnesses.

As the majority appropriately recognizes, a

defense witness may forget information, may be

reluctant to provide certain information to the

defendant, or may become hostile to the defense,

cf. In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 893 (D.C. Cir. 1999).

Perhaps the refusal to recognize the possibility

of a Brady violation in such circumstances would

be an unreasonable refusal to extend a legal

principle. Cf. Williams, 529 U.S. at 408-09.

However, we are not presented with such circumstances. The Bosses have made no claim that Hill

was unwilling or unable to provide the information she possessed. Hence, based on the record

before us, I am simply unable to find sufficient

support for the grant of the writ of habeas

corpus and must therefore respectfully dissent.