THOMAS, J., dissenting given power to effectuate her responsibilities through, inter alia, requesting assistance as may be necessary in carrying out her duties. 5 U. S. C. App. §6(a)(3). The head of the agency must furnish information and assistance to the IG, "insofar as is practicable and not in contravention" of law. §6(b)(1). Perhaps, then, when agency management directs an employee to appear at an OIG interview, management acts as OIG's agent. The proposition seems especially dubious in this case, as P agreed to be interviewed. The record does not reveal that NASA's management compelled him to attend the interview nor does it reveal that P was threatened with discipline if he did not attend the interview. The Eleventh Circuit, to be sure, indicated that OIG's investigator threatened P with discipline if he did not answer the questions put to him. But that threat, assuming it indeed was made, had little to do with attendance and more to do with the conduct of the interview. As the Authority has interpreted §7114(a)(2)(B), as the Court notes, ante, at 242, n. 7, no unfair labor practice is committed if an employee who requests representation is given the choice of proceeding without representation and discontinuing the interview altogether. Perhaps it could be argued that by threatening P with discipline if he did not answer the questions put to him, rather than giving P the choice of proceeding without representation, that OIG's investigator invoked agency management's authority to compel (continued) attendance. Along those lines, respondent AFGE contends that OIG's representative must have been acting for agency management by threatening P with discipline because only NASA's Administrator and his delegates, 5 U.S. C. § 302(b)(1); 42 U. S. C. § 2472(a), have the authority to discipline agency employees. Brief for Respondent AFGE 15-16. If OIG's investigator did mention that P could face discipline, he was either simply stating a fact or clearly acting ultra vires. OIG has no authority to discipline or otherwise control agency employees. Since the mere in THOMAS, J., dissenting vocation of agency management's authority is not enough to vest that authority with OIG's investigator, the argument, then, must be that it was reasonable for P to believe that OIG's investigator might have the ability to exercise agency management's authority. That is a question we simply cannot answer on this record. And more important, I do not think that § 7114(a)(2)(B) can be read to have its applicability turn on an after-the-fact assessment of interviewees' subjective perceptions, or even an assessment of their reasonable beliefs. * In light of the Inspector General's independence—guaranteed by statute and commonly understood as a practical reality—an investigator employed within NASA's OIG will not, in the usual course, represent NASA's management within the meaning of §7114(a)(2)(B). Perhaps there are exceptional cases where, under some unusual combination of facts, investigators of the OIG might be said to represent agency management, as the statute requires. Cf. FLRA v. United States Dept. of Justice, 137 F. 3d 683, 690-691 (CA2 1997) ("So long as the OIG agent is questioning an employee for bona fide purposes within the authority of the [Inspector General Act] and not merely accommodating the agency by conducting interrogation of the sort traditionally performed by agency supervisory staff in the course of carrying out their personnel responsibilities, the OIG agent is not a 'representative' of the employee's agency for purposes of section 7114(a)(2)(B)"), cert. pending, No. 98-667. This case, however, certainly does not present such facts. ing reasons, I respectfully dissent. For the forego Syllabus STRICKLER v. GREENE, WARDEN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-5864. Argued March 3, 1999-Decided June 17, 1999 The Commonwealth of Virginia charged petitioner with capital murder and related crimes. Because an open file policy gave petitioner access to all of the evidence in the prosecutor's files, petitioner's counsel did not file a pretrial motion for discovery of possible exculpatory evidence. At the trial, Anne Stoltzfus gave detailed eyewitness testimony about the crimes and petitioner's role as one of the perpetrators. The prosecutor failed to disclose exculpatory materials in the police files, consisting of notes taken by a detective during interviews with Stoltzfus, and letters written by Stoltzfus to the detective, that cast serious doubt on significant portions of her testimony. The jury found petitioner guilty, and he was sentenced to death. The Virginia Supreme Court affirmed. In subsequent state habeas corpus proceedings, petitioner advanced an ineffective-assistance-of-counsel claim based, in part, on trial counsel's failure to file a motion under Brady v. Maryland, 373 U. S. 83, for disclosure of all exculpatory evidence known to the prosecution or in its possession. In response, the Commonwealth asserted that such a motion was unnecessary because of the prosecutor's open file policy. The trial court denied relief. The Virginia Supreme Court affirmed. Petitioner then filed a federal habeas petition and was granted access to the exculpatory Stoltzfus materials for the first time. The District Court vacated petitioner's capital murder conviction and death sentence on the grounds that the Commonwealth had failed to disclose those materials and that petitioner had not, in consequence, received a fair trial. The Fourth Circuit reversed because petitioner had procedurally defaulted his Brady claim by not raising it at his trial or in the state collateral proceedings. In addition, the Fourth Circuit concluded that the claim was, in any event, without merit. Held: Although petitioner has demonstrated cause for failing to raise a Brady claim, Virginia did not violate Brady and its progeny by failing to disclose exculpatory evidence to petitioner. Pp. 280–296. (a) There are three essential components of a true Brady violation: the 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. The record in this case unquestionably Syllabus establishes two of those components. The contrast between (a) the terrifying incident that Stoltzfus confidently described in her testimony and (b) her initial statement to the detective that the incident seemed a trivial episode suffices to establish the impeaching character of the undisclosed documents. Moreover, with respect to some of those documents, there is no dispute that they were known to the Commonwealth but not disclosed to trial counsel. It is the third component-whether petitioner has established the necessary prejudice-that is the most difficult element of the claimed Brady violation here. Because petitioner acknowledges that his Brady claim is procedurally defaulted, this Court must first decide whether that default is excused by an adequate showing of cause and prejudice. In this case, cause and prejudice parallel two of the three components of the alleged Brady violation itself. The suppression of the Stoltzfus documents constitutes one of the causes for the failure to assert a Brady claim in the state courts, and unless those documents were "material" for Brady purposes, see 373 U. S., at 87, their suppression did not give rise to sufficient prejudice to overcome the procedural default. Pp. 280-282. (b) Petitioner has established cause for failing to raise a Brady claim prior to federal habeas because (a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the prosecution's open file policy as fulfilling the prosecution's duty to disclose such evidence; and (c) the Commonwealth confirmed petitioner's reliance on the open file policy by asserting during state habeas proceedings that petitioner had already received everything known to the government. See Murray v. Carrier, 477 U. S. 478, 488, and Amadeo v. Zant, 486 U. S. 214, 222. Gray v. Netherland, 518 U. S. 152, and McCleskey v. Zant, 499 U. S. 467, distinguished. This Court need not decide whether any one or two of the foregoing factors would be sufficient to constitute cause, since the combination of all three surely suffices. Pp. 282-289. (c) However, in order to obtain relief, petitioner must convince this Court that there is a reasonable probability that his conviction or sentence would have been different had the suppressed documents been disclosed to the defense. The adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the suppressed evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U. S. 419, 434. Here, other evidence in the record provides strong support for the conclusion that petitioner would have been convicted of capital murder and sentenced to death, even if Stoltzfus had been severely impeached or her testimony excluded entirely. Notwithstanding the obvious significance Opinion of the Court of that testimony, therefore, petitioner cannot show prejudice sufficient to excuse his procedural default. Pp. 289-296. 149 F.3d 1170, affirmed. STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, GINSBURG, and BREYER, JJ., joined in full, in which KENNEDY and SOUTER, JJ., joined as to Part III, and in which THOMAS, J., joined as to Parts I and IV. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which KENNEDY, J., joined as to Part II, post, p. 296. Miguel A. Estrada argued the cause for petitioner. With him on the briefs were Barbara L. Hartung, Mark E. Olive, and John H. Blume. Pamela A. Rumpz, Assistant Attorney General of Virginia, argued the cause for respondent. With her on the brief was Mark L. Earley, Attorney General.* JUSTICE STEVENS delivered the opinion of the Court.† The District Court for the Eastern District of Virginia granted petitioner's application for a writ of habeas corpus and vacated his capital murder conviction and death sentence on the grounds that the Commonwealth had failed to disclose important exculpatory evidence and that petitioner had not, in consequence, received a fair trial. The Court of Appeals for the Fourth Circuit reversed because petitioner had not raised his constitutional claim at his trial or in state collateral proceedings. In addition, the Fourth Circuit concluded that petitioner's claim was, "in any event, without merit.” App. 418, n. 8.1 Finding the legal question presented by this *Gerald T. Zerkin filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal. Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. †JUSTICE THOMAS joins Parts I and IV of this opinion. JUSTICE KENNEDY joins Part III. 1The opinion of the Court of Appeals is unreported. The judgment order is reported, Strickler v. Pruett, 149 F. 3d 1170 (CA4 1998). The opinion of the District Court is also unreported. |