Executed April 26, 2007 06:17 p.m. CST by Lethal Injection in Texas
15th murderer executed in U.S. in 2007
1072nd murderer executed in U.S. since 1976
13th murderer executed in Texas in 2007
392nd murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
|
Ryan Heath Dickson W / M / 18 - 30 |
Carmelo Surace W / M / 61 Marie Surace W / F / 60 |
.22 Rifle |
10-04-02 |
Citations:
Dickson v. Quarterman, 462 F.3d 470 (5th Cir. 2006) (Federal Habeas).
Dickson v. State, Not Reported in S.W.3d, 2001 WL 34736485 (Tex.Cr.App. 2004) (Direct Appeal).
Final/Special Meal:
Fried chicken, fried eggs, french fries with white gravy, apple pie and ice cream, five biscuits, chili with jalapeno peppers and cheese, lemonade and five containers of milk.
Final Words:
“I’d like to say I love my mother, brother, sister, grandmother, cousins and nieces and my brothers and sisters I have never met. I do apologize to the Surace family. I am responsible for them losing their mother, their father and their grandmother. I never meant for them to be taken. I am sorry for what I did and take responsibility for what I did.”
Internet Sources:
Texas Department of Criminal Justice - Executed Offenders (Ryan Dickson)
Inmate: Dickson, Ryan Heath
Thursday, April 19, 2007 - Media Advisory: Ryan Dickson Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Ryan Heath Dickson, who is scheduled to be executed after 6 p.m. Thursday, April 26, 2007. In December 1997, Dickson was sentenced to death for the capital murder of Carmelo Surace during a robbery at an Amarillo convenience store. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
Shortly before 6 p.m. on November 27, 1994, a customer walked into a small grocery store/bicycle repair shop in the San Jacinto area of Amarillo and found the bodies of the store’s owners, Carmelo and Marie Surace. Both had been fatally shot.
Shortly after arriving at the crime scene, police officers were approached by a resident of the neighborhood who told officers she had seen four boys walking in the general direction of the grocery store and that she recognized one of the boys as someone she knew from the neighborhood. Officers were quickly able to narrow the focus to a group of young people, who were all taken in for questioning. After being given a Miranda warning, Ryan Dickson provided police with both a tape recorded statement and a written statement recounting the events that led up to the murders. In the interview, Dickson admitted he was responsible for the shooting deaths of both Carmelo and Marie Surace. Dickson’s confession was corroborated by both physical evidence and the statements of others.
PROCEDURAL HISTORY
Aug. 13, 1997 — A Potter County grand jury indicted Dickson for capital murder in the death of Carmelo Surace.
Dec. 16, 1997 — A jury found Dickson guilty of capital murder and the court assessed a sentence of death.
Oct. 22, 1999 – Dickson filed a state writ application in the trial court
Apr. 26, 2000 — The Texas Court of Criminal Appeals affirmed Dickson’s conviction and sentence.
June 28, 2000 — The Court of Criminal Appeals denied Dickson’s motion for rehearing.
Feb. 21, 2001 — The Court of Criminal Appeals denied Dickson’s application for state habeas relief.
Nov. 6, 2001 — Dickson filed a petition for writ of habeas corpus in the federal district court.
Mar. 23, 2005 — The federal district court denied Dickson’s habeas petition.
Jun. 22, 2006 — The 5th U.S. Circuit Court of Appeals granted Dickson’s request for a certificate of appealability.
Aug. 24, 2006 — The Fifth Circuit Court denied Dickson’s appeal.
Sep. 22, 2006 — The Fifth Circuit Court denied Dickson’s motion for rehearing.
Dec. 22, 2006 — Dickson petitioned the U.S. Supreme Court for certiorari review. His petition was rejected.
PRIOR CRIMINAL HISTORY
Dickson has an extensive juvenile record, including burglary and an aggravated assault when he attacked one of his caretakers with a knife.
"Man executed for '94 double homicide in Amarillo." (AP 07:56 April 27, 2007)
HUNTSVILLE, Texas – A street gang member convicted of fatally shooting an Amarillo couple during a botched beer theft at their grocery store more than a dozen years ago was executed Thursday evening.
Ryan Dickson, 30, spoke rapidly when asked if he had anything to say, expressing love to his family and apologizing to the relatives of his victims. No witnesses from his family or the victims' family attended the execution. "I am sorry for what I did, and I take responsibility for what I did," said Mr. Dickson, the 13th prisoner to be executed this year in the nation's busiest capital punishment state. He was pronounced dead at 6:17 p.m., eight minutes after the lethal drugs began running through his veins.
Mr. Dickson had frequent run-ins with the law as a juvenile, including burglary and assault arrests, was on probation at age 9 for stealing bikes and served time with the Texas Youth Commission. He was just two weeks past his 18th birthday when he was arrested in the double homicide – hours after the bodies of Carmelo Surace, 61, and his wife, Marie, 60, were found by a customer at their store.
Police found a witness who recognized four young people running from the store on Nov. 27, 1994, as being from the neighborhood. Mr. Dickson, his 14-year-old brother, Dane, and two friends soon were taken into custody. Prosecutors said Mr. Dickson told authorities he hoped the killing would earn him a teardrop tattoo to impress his colleagues in a gang known as the Varrio 16 Locos.
Armed with a .22-caliber sawed-off rifle, he went inside the Suraces' store. His brother stood guard at the door. Two other friends waited outside. He later said that Carmelo Surace must have spotted the weapon under his jacket, tried to wrest it away and was shot in the fight.
"I didn't go in there and pull a gun and start shooting people," he said in a recent interview from death row in Livingston. He also insisted Marie Surace was shot by accident as she reached under a counter for a gun. But prosecutors said Mrs. Surace was on her knees with a phone in her hand when she was shot.
At least nine Texas inmates have execution dates in the coming months.
"Convicted killer of Amarillo couple put to death," by Michael Graczyk. (April 27, 2007, 1:57AM)
HUNTSVILLE, Texas — Convicted killer Ryan Dickson described himself as a fighter with little respect for rules, but the 30-year-old condemned for killing an Amarillo couple during a robbery was cooperative with Texas prison officials and quietly went to his death.
"I am sorry for what I did and I take responsibility for what I did," he said, speaking rapidly from the Texas death chamber gurney Thursday evening after expressing love to his family and apologizing to the survivors of his victims. Eight minutes later, he was pronounced dead.
Dickson was convinced the legal system was a game he couldn't beat and had promised to be difficult. But nothing unusual occurred as he became the 13th inmate to receive lethal injection this year in the nation's busiest capital punishment state.
Attorneys trying to stop the execution of the former street gang member went to the federal courts Thursday with a last-day appeal, challenging the constitutionality of the state's lethal injection procedure. A federal judge in Amarillo, then the 5th U.S. Circuit Court of Appeals in New Orleans, turned them down. Lawyers did not appeal to the U.S. Supreme Court.
No friends or relatives of victims Carmelo Surace, 61, and his wife, Marie, 60, attended the execution. "I am responsible for them losing their mother, their father, their grandfather and grandmother," he said from the gurney. "I never meant for them to be taken." Dickson wanted no witnesses of his own to watch him die. "It's part of the circus and I refuse to be part of the circus," he said in a recent interview. "I ain't got no choice about being there, but I ain't gonna bring any of my people into it."
Dickson had frequent run-ins with the law as a juvenile, including burglary and assault arrests, was on probation at age 9 for stealing bikes and served time with the Texas Youth Commission. "Breaking into houses, cars, stuff like that," he told The Associated Press.
He fathered a daughter at age 15. He was just two weeks past his 18th birthday when he was arrested in the double homicide — hours after the bodies of Surace and his wife were found by a customer at their store in Amarillo.
Police found a witness who recognized four young people running from the store Nov. 27, 1994, as being from the neighborhood. Dickson, his 14-year-old brother, Dane, and two friends soon were taken into custody.
Prosecutors said Dickson told authorities he hoped the killing would earn him a teardrop tattoo to impress his colleagues in a gang known as the Varrio 16 Locos, or "VSL," as Dickson called it. They shared some marijuana at Dickson's home, then he decided he wanted some beer but didn't want to pay for it.
Armed with a .22-caliber sawed-off rifle, he went inside the store. His brother stood guard at the door. Two other friends waited outside. He blamed Carmelo Surace for confronting him. "I didn't go in there and pull a gun and start shooting people," Dickson insisted. He contended the store owner must have spotted the weapon hidden in his jacket, tried to wrest it away from him and was shot in the tussle.
"Nobody would have gotten shot," he said. "I would have grabbed some beer and ran out. They would have been out about $20 and we'd be at home getting drunk. That's what would have happened." He also insisted Marie Surace was shot by accident.
Dickson received death sentences for each slaying. Thursday's punishment was for Carmelo Surace's murder. His brother is serving a 15-year prison term.
Former Potter County District Attorney Rebecca King, who prosecuted the two capital murder cases against Dickson, disputed his story of the shootings, especially Marie Surace's death. The woman was trying to make a phone call, she said. "He came up after he shot the man," King said. "She had a phone in her hand. "She was on her knees. He shot her. Totally cold."
At least nine other Texas inmates have execution dates in the coming months. Scheduled next is Jose Moreno, 40, set to die May 10 for the abduction and fatal shooting of a San Antonio man 21 years ago.
"Dickson gets death once again." (Saturday, October 5, 2002 1:45 p.m. CT)
A Potter County jury on Friday sentenced Ryan Heath Dickson to death for shooting an Amarillo grocery store owner to death during a 1994 armed robbery. Jurors deliberated for several hours over two days before deciding that Dickson should die by lethal injection.
After the verdict, Dickson, 25, showed little emotion but bowed his head as 47th District Judge David Gleason told him the case would be automatically appealed. Last month, Dickson was convicted of capital murder in the Nov. 27, 1994, shooting death of Marie Surace, 60. She and her husband, Carmelo Surace, 61, were shot and killed during an armed robbery at Surace Grocery, 2903 W. Amarillo Blvd.
In 1997, another jury found Dickson guilty of capital murder in the shooting death of Carmelo Surace and sentenced him to death. That case is under federal appeal.
Dane Dickson, Ryan Dickson's brother, pleaded guilty in 1995 to two capital murder charges and received a 15-year sentence in the case. Dane Dickson served part of his sentence in juvenile facilities and was transferred to the state prison system.
During closing arguments Thursday, 47th District Attorney Rebecca King showed pictures of the Suraces and asked jurors to remember their guilty verdicts. She presented a large display of Dickson's past criminal and aggressive acts. "Two capital murders and approximately 100 criminal offenses," she said.
Defense attorney Tim Pirtle presented four smaller display boards showing Dickson's years of alleged abuse and neglect at the hands of his mother. "I'll try to paint you a picture of Ryan Dickson's life so if you decide to take his life, you'll know what he's gone through," Pirtle said.
Pirtle said Dickson hasn't com- mitted violent acts in the last five years and isn't a continuing threat to society. Defense attorney Joe Dawson acknowledged that Dickson's past has been filled with bad behavior. "But based on the past five years, do you think you have to kill him?" Dawson said to jurors.
Prosecutor Pat Murphy said all defendants tell a sad story during the punishment phase of their trials. "You can't just look back at one aspect of a person's life and remove blame," he said.
Murphy cited the testimony of two doctors who said Dickson represents a threat of future dangerousness. "His criminal history alone should tell you, and two doctors say he is not going to change," Murphy said.
Murphy said Dickson's treatment by his mother doesn't factor into the slaying of Marie Surace. "He executed her and there is nothing - not one shred of evidence - to excuse that conduct," he said.
"Dickson sentenced to death," by Jim McBride. (Friday, December 12, 1997)
Weary jurors sentenced a 21-year-old man to death Thursday for gunning down an Amarillo grocer during a holdup three years ago. After two days and more than six hours of punishment-phase deliberations, the six-man, six-woman jury decided that Ryan Heath Dickson should die by lethal injection.
Dickson was on trial for the Nov. 27, 1994, shooting death of Carmelo Surace. Surace and his wife, Marie, were shot to death at the Surace Grocery, 2903 W. Amarillo Blvd., during a robbery. Shortly before the verdict was announced, 47th District Judge David Gleason cautioned spectators against any outbursts when the decision was handed down.
As the verdict was read, Dickson lowered his head, turned quickly and walked into a secured chamber outside the courtrooms. One juror held his head in his hand and wept while another softly patted his shoulder in support. Tears also streamed down the faces of Dickson's two aunts, who slowly headed out of the silent courtroom with other trial watchers.
Members of the Surace family, who sat on the front row throughout more than 12 weeks of the case, were relieved that the lengthy saga was over - for now. "Well, we're all tired, and we're glad that this is finally over," said Rose Surace, her eyes still brimming with grief. "As far as the verdict went today, I speak for my family. I believe that the death penalty and the verdict - however it was done - as victims here that this is our voice going out through the law."
She said the family probably could have dealt with the trauma if jurors meted out a life sentence, but the family's loss is a hard one to bear. "Either way, it doesn't bring our parents back," said her sister, Anita Surace.
Rose Surace pointed out that family's ordeal may not be over yet. "There may be a trial for my mom, so we might have to do this again," she said. "This is one decision that might make us not have to do this again. . . . If that helps, then it helps our family."
District Attorney Rebecca King said whether or not her office will try Dickson for the slaying of Marie Surace may depend on how the first case winds up in the appellate courts. "I can't tell you that we're not going to try hers. I think probably we will. If it goes through the appellate system pretty quickly, then perhaps we won't have to," she said.
Prosecution testimony in the case centered heavily on Dickson's criminal background, his affinity toward a local street gang and a series of letters containing gang sayings and graffiti that he sent to a former girlfriend.
The defense case hinged largely on accounts of physical and mental abuse that Dickson repeatedly suffered at the hands of his mother since he was about 2 years old. Two of his aunts painted his mother as extremely cruel and abusive toward Dickson and his two siblings.
Defense counsel Gene Fristoe said the defense hopes to raise some points in its appeal. Under Texas law, capital murder cases automatically are appealed.
"Texas executes murderer in failed beer theft." (Fri Apr 27, 2007 11:44AM EDT)
HOUSTON (Reuters) - Texas has executed a man convicted of murdering an Amarillo couple in 1994 during an attempt to steal beer from their grocery store. Ryan Heath Dickson, 30, was executed by lethal injection on Thursday shortly after 6 p.m. (2300 GMT), becoming the 13th inmate put to death this year in Texas, which carries out more executions than any other U.S. state.
Dickson was convicted of shooting 61-year-old store owner Surace Carmelo with a sawed-off .22-caliber rifle. He then shot Carmelo's wife, Marie, 60, even though she put all the store's money on the counter, officials said.
No family members or friends were present, neither Dickson's nor the victims'. His execution was witnessed by the prison chaplain, three journalists and several prison officials.
After having tubes connected to veins in both arms, Dickson expressed love for his family and apologized to the victims and their families. "I do apologize," he said. "I am sorry for what I did and I take responsibility for what I did."
Dickson's last meal request was fried chicken, fried eggs, french fries with white gravy, apple pie and ice cream, five biscuits, chili with jalapeno peppers and cheese, lemonade and five containers of milk.
"Man executed in deaths of Amarillo couple," by Stewart Smith. (April 27, 2007)
The convicted killer of an elderly Amarillo couple was put to death by lethal injection Thursday evening.
Ryan Heath Dickson’s final statement was quick but fell only on the ears of media members and TDCJ representatives as no witnesses were in attendance. “I’d like to say I love my mother, brother, sister, grandmother, cousins and nieces and my brothers and sisters I have never met,” Dickson said. “I do apologize to the Surace family. “I am responsible for them losing their mother, their father and their grandmother. I never meant for them to be taken. I am sorry for what I did and take responsibility for what I did.”
Dickson, 31, was only 18 years old when he and his half-brother — a juvenile at the time — entered the grocery store owned by Carmelo Surace, 61, and his wife, Marie Rosalie Surace, 60. They were attempting to steal beer when Carmelo Surace confronted them. Dickson pulled a sawed-off .22 caliber rifle out from his coat and shot the store owner in the chest.
Dickson, who was said to be a member of the Varrio Sixteen Locos street gang, then shot Marie Surace in the face even after she placed all the cash in the register — about $52 — on the counter. Dickson and his half-brother then took the money and an unspecified amount of beer before going off to party with friends.
Prosecutors said Dickson told authorities he hoped the killing would earn him a teardrop tattoo to impress his colleagues in the gang. However, Dickson blamed Carmelo Surace for confronting him. “I didn’t go in there and pull a gun and start shooting people,” Dickson said in a recent interview from death row in Livingston.
He contended the store owner must have spotted the weapon hidden in his jacket, tried to wrest it away from him and was shot in the tussle. “Nobody would have gotten shot,” he said. “I would have grabbed some beer and ran out. They would have been out about $20 and we’d be at home getting drunk. That’s what would have happened.” He also insisted Marie Surace was shot by accident as she reached under a counter for a gun. Dickson, who fled the store empty-handed, received death sentences for each slaying. Thursday’s punishment was for Carmelo Surace’s murder. His brother testified against him and is serving a 15-year prison term.
Former Potter County District Attorney Rebecca King, who prosecuted the two capital murder cases against Dickson, disputed his story of the shootings, especially Marie Surace’s death. The woman was trying to make a phone call, she said. “He came up after he shot the man,” King said. “She had a phone in her hand. “She was on her knees. He shot her. Totally cold.”
At least nine other Texas inmates have execution dates in the coming months. Scheduled next is Jose Moreno, 40, set to die May 10 for the abduction and fatal shooting of a San Antonio man 21 years ago.
On November 27, 1994, police in Amarillo, Texas, were called to the Surace Grocery, a small grocery store run by Carmelo Surace and his wife, Marie. When they arrived, the officers found Marie dead and Carmelo critically injured.
The police learned that four young males—Ryan Heath Dickson, his younger brother Dane Dickson, Freddie Medina, and Jeremy Brown—had attempted to steal beer from the store. After first gathering outside the store, the two brothers entered while Medina and Brown waited outside. The Dickson brothers entered the nearby Surace Grocery, which had no customers then. Ryan Dickson headed toward the beer while his younger brother stood between the doorway and the counter. Carmelo Surace said he wouldn't sell beer to Dickson because of his age. Moments later, Dickson fired a shot, and Mr. Surace fell to the floor. Carmelo later died from his injuries.
Dane Dickson said he had not seen the weapon earlier that day but added that he was not surprised that the defendant was armed because he was in the "habit" of carrying the weapon. Dickson then walked up to the counter, behind which Marie Surace stood. She told Dickson to take the money she had removed from the cash register and leave. Dickson wanted Mrs. Surace to come out from behind the counter. Dane Dickson grabbed the money, $52, and took off. Mrs. Surace was scooting back and squatting down when he left. When he was two or three steps outside the store, he heard a gunshot. "I kept running. I was running hard. Ryan caught up with me, and we were running side by side (toward their house)," Dane Dickson said. Dickson got the money, then hid his gun under a mattress in the backyard and told other youths what had happened. Dane Dickson later hid the rifle in a garage near an abandoned structure. He subsequently told police about it. Ryan Dickson went for food and socialized hours after the shooting. Police apprehended Dickson late that night after talking to witnesses, and Dane Dickson was picked up early the next morning. Ryan Dickson was 18 at the time of the crimes. Dickson had prior juvenile arrests for burglarizing churches and being a runaway. While living at a residential facility for youth, Dickson punched a female staffer in the face when she confronted him about peeking into a girl's room. Charges were filed against Dickson for the assault, but he was allowed to return to the facility. A short time later, another incident occurred when Dickson was confronted by another staffer about a prank. Dickson stabbed the staffer in the chest. Prosecutors outlined Dickson's violent history of two capital murders and approximately 100 criminal offenses.
While awaiting trial for the Surace murders, Dickson sent letters to a young female friend claiming he had killed a black person in San Antonio and a pawn shop clerk in Fort Worth. In the letter he said, "I've done all the killing I need to. I've earned my stripes." One witness testified that, before the robbery, Dickson said he was "going to shoot the two old people in the store."
After Dickson was sentenced to death, Surace family members were relieved. The trial lasted more than 12 weeks. "Well, we're all tired, and we're glad that this is finally over," said Rose Surace, her eyes still brimming with grief. "As far as the verdict went today, I speak for my family. I believe that the death penalty and the verdict - however it was done - as victims here that this is our voice going out through the law." She said the family probably could have dealt with the trauma if jurors meted out a life sentence, but the family's loss is a hard one to bear. "Either way, it doesn't bring our parents back," said her sister, Anita Surace.
In 2002, Dickson was tried for the murder of Marie Surace and again sentenced to death. Dane Dickson pled guilty to two charges of murder and was sentenced to 15 years. Part of the sentence was served in a juvenile facility and then he was transferred to the state prison system. Ryan Dickson has proven that his jury was correct in finding that he would be a future danger to society. Prison records show that in December of 2006, Dickson stabbed a corrections officer in the eye. "I'm a fighter," he said. "It's pretty much a given that I can't beat the system, but I can create some difficulties for them after the fact. If they go ahead and kill me, that's fine."
Incredibly, Dickson blamed Carmelo Surace for confronting him, and said the store owner must have spotted the weapon hidden in his jacket, tried to wrest it away from him and was shot in the tussle. "I had a gun inside my jacket. The man came out from behind the counter. He walked in the aisle with me. He grabbed my gun, tipped the gun. ... When I jerked it back, I pulled the trigger. And that's how he was shot. I didn't go in there and pull a gun and start shooting people," Dickson said. He also insisted Marie Surace was shot by accident as she reached under a counter for a gun.
Former Potter County District Attorney Rebecca King, who prosecuted the two capital murder cases against Dickson, disputed his story of the shootings, especially Marie Surace's death. The woman was trying to make a phone call on an old-style rotary phone when she was shot, she said. "When the shooting started, I wasn't thinking about beer no more," said Dickson, who fled the store empty-handed. "I attempted to shoot over her head and we ran out. I didn't even know I shot her until later that night when they told me." King, however, said ballistics evidence disputed Dickson's account. "She was on her knees," King said. "She had the phone in her hand. He bent down. She was looking up at him. Ballistics showed it was execution-style. He shot her. Totally cold." King's co-prosecutor said about the sawed-off shotgun, "What do you think he took it down there for?'' Murphy asked. "... It was fully loaded and one in the chamber, cocked and ready to go."
UPDATE: Twelve years after murdering an Amarillo couple during an armed robbery at their grocery store, Ryan Dickson was executed Thursday evening. No witnesses from his family or the victims' family attended the execution. Dickson, 30, spoke rapidly when asked if he had anything to say, expressing love to his family and apologizing to the relatives of his victims. Dickson said, "I am sorry for what I did, and I take responsibility for what I did." Dickson was pronounced dead at 6:17 p.m., eight minutes after the lethal drugs began running through his veins.
National Coalition to Abolish the Death Penalty
Ryan Dickson, April 26, TX
Do Not Execute Ryan Dickson!
Texas is scheduled to execute Ryan Dickson on April 26, 2007 for the murders of Carmelo and Marie Surace in November 1994.
The state of Texas should not execute Ryan Dickson for his role in this crime. Executing Dickson would violate the right to life as proclaimed in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman, and degrading punishment. There is a question as to whether or not a juror in the trial phase withheld information about prior knowledge of the case. Furthermore, the trial judge has stated that he believes Dickson deserves a new trial due to evidence that the prosecution withheld.
Please write to Gov. Rick Perry on behalf of Ryan Dickson!
Dickson v. State, Not Reported in S.W.3d, 2001 WL 34736485 (Tex.Cr.App. 2004) (Direct Appeal)
Background: Defendant was convicted in the trial court, Potter County, of capital murder and sentenced to death. Defendant appealed.
Holdings: The Court of Criminal Appeals, Johnson, J., held that:
(1) juror did not withhold material information during voir dire, so as to warrant new trial;
(2) improper communication with jury by juror from defendant's prior capital murder trial did not warrant new trial;
(3) state death penalty scheme did not violate equal protection;
(4) voir dire question asking juror to state what a mitigating circumstance would be was improper; and
(5) trial counsel was not ineffective.
Affirmed.
JOHNSON, J., delivered the unanimous opinion of the Court.
On September 18, 2002, appellant was convicted of the capital murder of Marie Surace. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises five points of error. We affirm.
In his first point of error, appellant claims that the trial court erred in denying his motion for new trial based on his contention that juror Henderson withheld information during voir dire. Appellant claims that, had he known Henderson was aware that appellant had been convicted of capital murder and sentenced to death in another case, he would have used a peremptory strike to exclude Henderson from serving on the jury.
Before the trial in this case, appellant was convicted of the capital murder of Carmelo Surace and sentenced to death. Marie and Carmelo Surace were shot and killed during a robbery of their family-owned store.FN2 At the beginning of voir dire, the trial judge asked the prospective jurors whether they knew anything about this case. Several responded that they did, and the trial judge interviewed them individually. Henderson did not indicate that he knew anything about the present case at that time.FN3 However, at the beginning of individual questioning, the following exchange occurred.
FN2. Appellant's conviction and death sentence for the murder of Carmelo Surace was affirmed on direct appeal. Dickson v. State, No. 73,044 (Tex.Crim.App., delivered April 26, 2000). His post-conviction application for writ of habeas corpus challenging that conviction and sentence was denied in a written order. Ex parte Dickson, No. 47,314-01 (Tex.Crim.App., filed February 21, 2001).
FN3. Henderson did indicate in his juror questionnaire that he was familiar with some of the participants in this case.
* * *
The record reflects that, when asked whether he knew anything about the case, Henderson replied that he did and that he had learned about the case through the media. The record also reflects that appellant did not ask any questions regarding what Henderson knew about the case, though he had ample opportunity to do so. Only the state and the trial court posed those questions. If appellant wished Henderson to elaborate on his answers, he could have asked him to do so during voir dire. Henderson did not “withhold” material information during voir dire. Thus, the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's first point of error is overruled.
B. Outside Influence
In his second point of error, appellant claims that the trial court erred in denying his motion for new trial based on his contention that the jury had “been subjected to outside influences in the form of contact having been made with one or more jurors by a third party.” Specifically, he claims that Carpenter, a juror from his prior trial, improperly communicated with some or all of the jurors in this case.
At the motion for new trial hearing, Carpenter testified that he had attended the majority of the trial in this case in order to determine whether the jury in the prior case had received all available information and because he was very interested in the case. He stated that during the proceedings he sat on the “state's side” of the courtroom near the victim's family and sat on the defense side only when the “state's side” was full. Carpenter went on to say that on one or two occasions he spoke with jurors in this case while outside smoking during a break in the proceedings.
* * *
The court reporter testified that she had witnessed Carpenter attempting to get onto an elevator with members of the jury and that she instructed him not to do so because he was not allowed to talk to them. Carpenter then told her he could do anything he wanted, and she again instructed him not to speak to the jurors. Henderson, the only juror to testify at the hearing on appellant's motion for new trial, related that he was aware that Carpenter had spoken to a juror in the hallway and that the court reporter had instructed him not to talk to the jurors. He noted that, while the jurors were aware that Carpenter had served on the previous jury, Carpenter's presence had not influenced him, or to his knowledge, any of the other jurors.
* * *
As the state pointed out at the hearing on appellant's motion for new trial, “I think everybody would feel a lot more comfortable” had Carpenter not come into contact with any of the jurors. Nevertheless, the state's lack of comfort with the situation does nothing to rebut the presumed harm from Carpenter's unauthorized communication with jurors. However, the record reflects that no particulars of the case were discussed with Carpenter. It does not reflect that the jurors were influenced by the knowledge that Carpenter had served on the previous jury. Thus, the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's second point of error is overruled.
* * *
Ineffective Assistance
In his fifth point of error, appellant argues that he received ineffective assistance of counsel. Specifically, he claims that, during voir dire, his trial attorneys failed to object to the prosecutor's questions which committed prospective jurors to the proposition that a single “no” vote would result in a life sentence, failed to object to the prosecutor's “fishing expedition” questions, and failed to object to the prosecutor's questions which committed the prospective jurors to disregard the parole instruction in the charge on punishment. Appellant insists that such failure to object was detrimental to his ability to persuade the jury to give full weight and effect to the substantial mitigating evidence presented at trial.
When reviewing a claim of ineffective assistance of counsel, this Court utilizes the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong of the Strickland test, appellant must show that counsel's performance was deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Under the second prong of the Strickland test, appellant must show that counsel's deficient performance prejudiced him. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In other words, appellant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689.
Counsel's reasons for not objecting to the prosecutor's questions do not appear in the record. In Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999), we explained that, in order to defeat the presumption that counsel rendered effective assistance of counsel, “[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson at 813, citing McFarland, 928 S.W.2d at 500. Because the record is devoid of any evidence that rebuts the presumption of effective assistance, we must presume that counsel's decision not to object was reasonable trial strategy. Mallett v. State, 65 S.W.3d 59 (Tex.Crim.App.2001). Appellant's fifth point of error is overruled.
We affirm the judgment of the trial court.
Dickson v. Quarterman, 462 F.3d 470 (5th Cir. 2006) (Federal Habeas).
Background: State prisoner who had been convicted of murder and sentenced to death filed petition for federal habeas relief on Brady claim previously rejected by state court. The United States District Court for the Northern District of Texas, Mary Lou Robinson, J., 2005 WL 696759, entered order denying petition, and state prisoner appealed.
Holding: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that state appellate court's determination, in rejecting petitioner's contention that prosecutor committed Brady violation in failing to disclose evidence that could have been used to impeach government witnesses' testimony that petitioner had formed intent to kill store owners prior to entering store, that this undisclosed evidence was not material in light of other evidence of petitioner's intent to kill, including fact that he carried loaded firearm into store, was not “unreasonable application” of governing federal law. Affirmed.
EMILIO M. GARZA, Circuit Judge: Ryan Heath Dickson, a Texas death row inmate, appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition. He claims that the State failed to disclose the existence of two audiotapes containing potential impeachment evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the federal district court erred by denying his petition for habeas relief.
On November 27, 1994, police in Amarillo, Texas, were called to a small grocery store operated by Carmelo Surace and his wife, Marie. When they arrived, the officers found Marie dead and Carmelo critically injured. The police learned that four young males-Petitioner, his younger brother Dane Dickson, Freddie Medina, and Jeremy Brown-had been involved in an attempt to steal beer from the store. After first gathering outside the store, the two brothers entered while Medina and Brown remained outside. Sometime thereafter, Petitioner shot and injured Carmelo with a sawed-off rifle he had carried into the store. Before fleeing, Petitioner allegedly shot and killed Marie. Carmelo later died from his injuries.
The State charged Petitioner separately for the murder of each victim. Without multiple victims, the State had to prove that Petitioner intentionally killed Carmelo Surace during the course of a robbery to establish capital murder under Texas Penal Code section 19.03(a)(2). See Tex. Penal Code § 19.03(a)(2) (2003) (stating that a person commits capital murder if he commits murder under section 19.02(b)(1) and, inter alia, “the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat”). Although Petitioner acknowledged responsibility for killing Carmelo, he denied that he did so intentionally. He argued that Carmelo was killed during a struggle as Petitioner and *473 his brother attempted to steal items from the store.
The testimony of Medina and Brown (the boys who remained outside the store) was an important piece of the State's proof of intent at trial. Medina testified that, before going into the store, Petitioner showed the boys a gun. Brown asked him what it was for, and Petitioner responded that he was going to shoot the store owners. Brown also testified that Petitioner expressed an intent to shoot the store owners but could not recall whether he saw Petitioner with the gun outside the store or at an earlier time that day. Defense counsel argued that the only direct evidence of intent was the testimony of Brown and Medina and that this testimony was fabricated.
The jury found Petitioner guilty of capital murder, and the state court sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal.
After conviction, the State revealed that prosecutors had not given the defense access to audiotapes of pretrial interviews with Brown and Dane Dickson.FN1 During these interviews, prosecutors questioned the two about the day's events and used written statements the young men had given to police at the time of the killings to both confirm and refresh their recollection prior to trial. Transcripts of these sessions indicate that Brown and Dane Dickson questioned the accuracy of their prior written statements and expressed doubt regarding certain factual assertions that were relevant to the State's case.
FN1. One of the State's trial attorneys tape recorded his interviews with certain witnesses in criminal cases. He acknowledged that he may have recorded his interviews with other witnesses in addition to Brown and Dane Dickson but never made any of the tapes or transcripts available to the defense team. According to the prosecutor, he never considered whether the tapes should be provided to the defense team. “I don't know that I consciously thought about it one way or the other. I believed it was like-it was like taking notes to me. It was like my work product.” Although other State prosecutors were present during the interviews, none of them ensured that the audiotapes were placed in the “open file” for the defense team. Although not entirely clear, it appears that a State attorney, before or during the state habeas proceeding, discovered the audiotapes of the Brown and Dane Dickson interviews and disclosed them. No other audiotapes were discovered in the State's files.
Brown asserted in his written statement that Petitioner verbalized an intent to shoot Carmelo and Marie Surace prior to entering the store: “I asked [Petitioner] if they were going to shoot them and he said, ‘yeah.’ ” During the pretrial interview, however, Brown equivocated and seemed unsure that Petitioner had done so.
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Toward the end of the interview, prosecutors assured Brown that he did not need to worry about being prosecuted for murder because his version of events was consistent with those of the other boys: “Otherwise, you would've been in deep trouble, okay? But I-again, I want you to know right now, I mean, I-you don't need to sit and worry that we're going to drag you into the capital murder, because it's pretty clear that you did not have anything to do with the capital murder.” Ultimately, Brown's trial testimony supported the State's theory that Petitioner possessed an intent to kill prior to entering the store.
Under questioning by prosecutors before trial, Dane Dickson retracted certain factual assertions in his written statement. In that statement, he claimed to have been in the store when his brother shot Marie Surace. During his pretrial interview, however, Dane Dickson stated that he did not witness the shooting but, rather, mistakenly “incorporated” what his brother told him about the shooting into his written statement to the police. Although different from his written statement, Dane Dickson's statements during the suppressed pretrial interview are consistent with his later trial testimony and the defense theory that Carmelo was killed during a struggle.
After prosecutors disclosed the existence of the audiotapes, Petitioner filed an application for writ of habeas corpus in state court based, in part, on his claim that the State improperly withheld evidence that could have been used to impeach both witnesses. After receiving evidence and argument, the state trial court found, inter alia, the following facts:
13. Evidence at trial reveals that Carmel[l]o Surace and his wife, Marie Surace, had both been shot during a robbery of their grocery store. Evidence also suggested the weapon used was a single-shot, bolt-action, .22 caliber rifle, which had been sawed off. Some evidence was adduced showing that Mr. Surace might possibly have struggled with his assailant, might possibly have grabbed the barrel of the weapon, and might possibly have been shot as a result of the struggle. Evidence suggested that Mrs. Surace was probably shot after her husband.
14. The trial testimony of Jeremy Brown indicated that Applicant had told Jeremy of his intent to shoot the “two old people” before entering the store. The first portion of his tape recorded interview, however, is not so conclusive.
15. The trial testimony given by Dane Dickson was essentially the same as his tape recorded statement, but still there were some differences.
Ex Parte: Dickson, No. 38005-01-A, slip op. at 3-4 (47th Dist. Ct., Potter County, Tex. Sep. 22, 2000). The state trial court then issued conclusions of law:
3. Even if the non-disclosure of the tapes was inadvertent, the fact remains that Defense counsel could possibly have used the contents of the tape recorded statements during cross-examination of these witnesses at trial.
4. Especially regarding Jeremy Brown's tape recorded interview, Defense [counsel] might have been able to impeach Mr. Brown's trial testimony by showing that for the first 40 to 50 pages of said interview he wasn't sure about Mr. Dickson's intent.
5. Defense might also have shown that in Mr. Brown's tape recorded interview, it is only after he is informed that he is not likely to be prosecuted for his involvement in this crime that he reveals Mr. Dickson's statement concerning his intent to kill. Although, not a direct “deal” with a witness, Defense counsel might have been able to use the recorded interview to impeach Mr. Brown's trial testimony by showing his reliance on an implied grant of immunity, or to expose his possible bias as a witness in the case.
6. While the contents of the tape recorded interviews do not contain any directly exculpatory evidence, they do contain potential impeachment material. Harm from the non-disclosure (even though not intentional) of such impeachment material may be presumed from the result obtained in this case.
7. Had the trial testimony of Jeremy Brown been effectively impeached by the use of the recorded statement, the jury might have chosen to disregard or disbelieve Mr. Brown's trial testimony about Applicant's acknowledgment of intent, and, since this conviction is for the alleged capital murder of Carmel [l]o Surace, only, (the alleged capital murder of Marie Surace is a separate indictment which has not yet been tried), the jury might have reached a different conclusion. Id. at 4-6. Although the state trial court was “not sure that the disclosure of the recorded interviews and their use by Defense counsel at trial would have caused the jury to reach a different verdict” it recommended that Petitioner receive a new trial “[b]ecause of the importance of preserving and maintaining the integrity of the adversarial trial process, and because of the obvious import of a capital murder verdict and death sentence.” Id. at 6.
The Texas Court of Criminal Appeals (“TCCA”) adopted the state trial court's “findings and conclusions with the exception of conclusion number six wherein the trial judge determined that harm from the non-disclosure of the tape should be presumed.” Ex Parte: Dickson, No. 47314-01, slip op. at 2 (Tex.Crim.App. Feb. 21, 2001). Citing Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the TCCA then denied habeas relief.
After exhausting his state remedies, Petitioner filed a federal petition for writ of habeas corpus and renewed his Brady claim. The district court reviewed the record and recounted the evidence supporting the conviction. Applying the deferential *476 habeas standard in AEDPA, the district court concluded that the petition for writ of habeas corpus should be denied. Dickson v. Dretke, 2:01-CV-0095, slip op. at 1-2 (N.D.Tex. Mar. 23, 2005). FN2
FN2. First, despite acknowledging that Brown's pretrial interview could have been used to impeach, the district court concluded that disclosure of his earlier interview statements would not have undermined confidence in the verdict because other evidence of Petitioner's intent to kill, including Medina's trial testimony that Petitioner said he was “going to shoot the two old people in the store” before entering, corroborated his testimony. Second, the district court stated that Brown's pretrial interview would not support a showing of bias because the prosecutor's assurance of non-prosecution took place only after Brown affirmed that Petitioner had expressed an intent to kill. Finally, the district court concluded that Dane Dickson's pretrial interview could not be used to impeach because his testimony at trial was “favorable” to the defense and consistent with his statements in the pretrial interview.
Out of an abundance of caution and based upon the admonition of the Supreme Court in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), we issued a certificate of appealability (“COA”) to allow Petitioner the opportunity to fully brief the merits of his claim. Dickson v. Quarterman, 453 F.3d 643 (5th Cir.2006); see Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (“Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.”); Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (stating that the court resolves doubts in petitioner's favor in death penalty cases).
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“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). To prevail on a Brady claim, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. Evidence is material where there exists a “reasonable probability” that had it been disclosed the result at trial would have been different. Banks, 540 U.S. at 699, 124 S.Ct. 1256. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Under AEDPA, we do not decide de novo whether a state prisoner has sufficiently proven a Brady violation. See Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state court was correct as a de novo matter.”); Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002) ( en banc ) (“We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of [federal law] is erroneous or incorrect.”). Rather, we decide whether the state court's Brady determination resulted in a decision that is contrary to, or involved an unreasonable application of, clearly established federal *478 law. Busby v. Dretke, 359 F.3d 708, 717 (5th Cir.2004).FN4
FN4. “The statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001); see Neal, 286 F.3d at 246 (holding that a federal court's “focus on the ‘unreasonable application’ test under section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of evidence”).
Here, the TCCA accepted every factual finding and conclusion of law of the state habeas court except the conclusion that “harm” may be “presumed” from the result in the case. In citing Strickler and Kyles, the TCCA rejected the state trial court's conclusion that any impeachment evidence in the withheld pretrial interviews was material. We review this dispositive determination through the deferential lens provided by Congress in AEDPA. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005) (stating that, under AEDPA, the state court decision must have been not only incorrect or erroneous but objectively unreasonable).
Dickson argues that Brown's pretrial interview was material to the issue of intent because “[o]ne can only speculate on the outcome of the trial if the corroboration testimony of Mr. Medina was challenged at trial with the undisclosed tape of Mr. Brown. Both Mr. Brown and Mr. Medina may have been impeached since one story corroborated another.” But alleging a speculative outcome is insufficient. Rather, a petitioner must demonstrate a reasonable probability that the result at trial would have been different. Banks, 540 U.S. at 698-99, 124 S.Ct. 1256. Petitioner has not done so. See United States v. Moore, 452 F.3d 382, 388 (5th Cir.2006) (“[V]ague assertions do not establish any exculpatory evidence, let alone a reasonable probability that such evidence affected the outcome of the trial.”). His argument regarding Dane Dickson's pretrial interview statement is similarly deficient. Although suggesting that he could have used the statement, Petitioner does not establish how the result at trial would have been different. Id.
Even if we assume the defense could have effectively impeached Brown and Dane Dickson, other probative evidence of an intent to kill prevents us from concluding that the state court determination of immateriality resulted in a decision that involves an unreasonable application of federal law. The State offered evidence that Petitioner: (1) carried a loaded gun into the store; (2) admitted to firing the gun that killed Carmelo Surace; and (3) killed Marie Surace shortly thereafter. Furthermore, the prosecution presented evidence that Petitioner intended to rob the store by force or threat of force, including: (1) testimony that, in the weeks before the offense, Petitioner stated a desire to rob a store; (2) evidence that Petitioner stole three .22 caliber rifles prior to the robbery; and (3) evidence that Petitioner sawed off the barrel of the rifle and whittled the stock so that it could be concealed. The state court could reasonably conclude that this combined evidence rendered the undisclosed impeachment evidence immaterial because confidence in the outcome was not undermined. See Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir.1995) (examining corroborating evidence and stating that the materiality inquiry assesses whether disclosure “would have placed the case in a different light so as to undermine confidence in the jury verdict”); Edmond v. Collins, 8 F.3d 290, 294 (5th Cir.1993) (noting that nondisclosed impeachment evidence is cumulative and immaterial*479 when the witness was impeached sufficiently at trial).FN5
FN5. Although a competent defense attorney might have used the taint of bias and misrecollection as to Brown to diminish the effectiveness of Medina's testimony, we cannot say that the TCCA unreasonably concluded that the evidence was immaterial given the other evidence of intent presented at trial. See United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir.1989) (“Courts have found ... that impeachment evidence improperly withheld was not material where the testimony of the witness who might have been impeached was strongly corroborated by additional evidence supporting a guilty verdict. In contrast, where the withheld evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material.”) (citations omitted).
We affirm the district court's denial of relief because, even assuming the pretrial interview recordings contained beneficial impeachment evidence, other evidence of Petitioner's intent to kill prevents this court from concluding that the state court's immateriality determination resulted in a decision that involved an unreasonable application of federal law. See Yarborough, 541 U.S. at 665, 124 S.Ct. 2140 (“Although the question of what an ‘unreasonable application’ of law might be difficult in some cases, it is not difficult here.”).
We pause, however, to express our concern regarding the State's failure to turn over pretrial interview statements by two key witnesses in a death penalty case. The duty of a prosecutor, as the representative of the sovereign in a criminal case, is “not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); see United States v. Leon, 468 U.S. 897, 900-01, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (recognizing the goal of establishing “procedures under which criminal defendants are ‘acquitted or convicted on the basis of all the evidence which exposes the truth’ ” (quoting Alderman v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969))). “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” disclosure is required. Kyles, 514 U.S. at 439, 115 S.Ct. 1555. Accordingly, a prosecutor faithfully discharges his duty where he fully understands his obligations under Brady, not where, as here, he fails to “consciously th[ink] about it one way or the other.”
At oral argument, the State conceded the tapes contain impeachment evidence and implied that an attorney with a “better understanding” of Brady would have disclosed them.FN6 Although the trial prosecutor apparently believed these recordings were protected work product, these recorded pretrial interview statements contain no protected attorney opinion.FN7 Even *480 if the prosecutor wrongly believed the statements contained some protected attorney opinion, he should have known that the duty lay with the trial judge, not the prosecutor, to weigh the need for confidentiality against the defendant's need to use the material to obtain a fair trial.FN8
FN6. Concession of a disclosure obligation under Brady does not, of course, concede a redressable Brady violation. See Strickler, 527 U.S. at 281, 119 S.Ct. 1936 (noting that “the term ‘ Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence ... although, strictly speaking, there is never a real ‘ Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict”).
FN7. The Supreme Court has not decided “whether Brady requires a prosecutor to turn over his work product.” Mincey v. Head, 206 F.3d 1106, 1133 n. 63 (11th Cir.2000). At least one commentator states: “Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus, the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady.” 2 Charles Alan Wright, Federal Practice and Procedure § 254.2 (3d ed.2000). Although some jurisdictions recognize that “opinion work product” may enjoy some protection, see, e.g., Williamson v. Moore, 221 F.3d 1177, 1182 (11th Cir.2000), the State agreed at oral argument that the prosecutor's assertion of work product in this case was “obviously wrong.”
FN8. See In re: United States, 397 F.3d 274, 285 (5th Cir.2005) ( “In the ordinary case, a party must claim privilege with specificity, and a court can ultimately demand in camera review of privileged documents.”); Thomas v. State, 837 S.W.2d 106, 114 (Tex.Crim.App.1992) ( en banc) (asserting that an in camera inspection by the trial court accommodates the interest of the State in protecting the identity of informants and the interest of the defendant in Brady evidence); see also United States v. Phillips, 854 F.2d 273, 277 (7th Cir.1988) (“[W]hen a criminal defendant seeks to discover information contained in confidential government files, the trial court must balance the competing interests of the defendant and the government in deciding whether and in what form such discovery will be allowed.”); United States v. Dupuy, 760 F.2d 1492, 1501 (9th Cir.1985) (“Consultation with the judge is particularly appropriate when the Government has legitimate reasons for protecting the confidentiality of the material requested, for the trial judge can then weigh the Government's need for confidentiality against the defendant's need to use the material in order to obtain a fair trial.”); United States v. Bocra, 623 F.2d 281, 285 (3d Cir.1980) (“The submission of discovery materials to the court for an in camera inspection and decision as to which materials are discoverable is commonly used when the Government's need for preserving confidentiality over the materials must be balanced with the defendant's constitutional right to evidence material to his defense.”).
“Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] ... plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.’ ” Banks, 540 U.S. at 696, 124 S.Ct. 1256 (citation omitted) (alteration in original). Indeed, the preservation of our civil liberties depends upon the faithful and ethical exercise of power by those who bear the mantle of public trust. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 386, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (“The rigors of the penal system are ... mitigated by the responsible exercise of prosecutorial discretion” by a “publicly accountable prosecutor ... under an ethical obligation, not only to win and zealously to advocate for his client but also to serve the cause of justice.”). Where, as here, the actions of officials are contrary to these aspirational principles, whether for improper or guileless reason, courtroom victories may prove pyrrhic, and such conduct “should attract no judicial approbation.” Banks, 540 U.S. at 696, 124 S.Ct. 1256.FN9
FN9. See Brady, 373 U.S. at 87, 83 S.Ct. 1194 (“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”); id. at 87-88, 83 S.Ct. 1194 (“A prosecution that withholds evidence ... which, if made available, would tend to exculpate [a defendant] or reduce the penalty helps shape a trial ... that does not comport with standards of justice, even though ... his action is not ‘the result of guile[ ]’....”).
We AFFIRM the district court's denial of relief under 28 U.S.C. § 2254.