276
Opinion of the Court
State Proceedings
Petitioner was tried in Augusta County, where Whitlock's body was found, on charges of capital murder, robbery, and abduction. Because the prosecutor maintained an open file policy, which gave petitioner's counsel access to all of the evidence in the Augusta County prosecutor's files,13 petition-er's counsel did not file a pretrial motion for discovery of possible exculpatory evidence.14 In closing argument, petitioner's lawyer effectively conceded that the evidence was sufficient to support the robbery and abduction charges, as well as the lesser offense of first-degree murder, but argued that the evidence was insufficient to prove that petitioner was guilty of capital murder. Id., at 192-193.
The judge instructed the jury that petitioner could be found guilty of the capital charge if the evidence established beyond a reasonable doubt that he "jointly participated in the fatal beating" and "was an active and immediate partici-13 In the federal habeas proceedings, the prosecutor gave the following sworn answer to an interrogatory requesting him to state what materials were disclosed by him to defense counsel pursuant to Brady: "I disclosed my entire prosecution file to Strickler's defense counsel prior to Strickler's trial by allowing him to inspect my entire prosecution file including, but not limited to, all police reports in the file and all witness statements in the file." App. 368. Petitioner's trial counsel had shared the prosecutor's understanding of the "open file" policy. In an affidavit filed in the state habeas proceeding, they stated that they "thoroughly investigated" petitioner's case. "In this we were aided by the prosecutor's office, which gave us full access to their files and the evidence they intended to present. We made numerous visits to their office to examine these files . . . . As a result of this cooperation, they introduced nothing at trial of which we were previously unaware." Id., at 223.
14 In its pleadings on state habeas, the Commonwealth explained: "From the inception of this case, the prosecutor's files were open to the petition-er's counsel. Each of the petitioner's attorneys made numerous visits to the prosecutor's offices and reviewed all the evidence the Commonwealth intended to present. . . . Given that counsel were voluntarily given full disclosure of everything known to the government, there was no need for a formal [Brady] motion." Id., at 212-213.
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