The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:
Argued: December 10, 2010
Before:LYNCH and CHIN, Circuit Judges, KORMAN, District Judge.*fn2
Respondents-appellants Gary Greene, the Superintendent of Great Meadow Correctional Facility, and Eric T. Schneiderman, the New York Attorney General, appeal from the December 30, 2009, order and judgment of the United States District Court for the Eastern District of New York (Carol B. Amon, J.) granting habeas corpus relief under 28 U.S.C. § 2254 to petitioner-appellee Darrell Watson. Watson had been convicted of first-degree murder for shooting and killing Patrick Morris. At his trial in New York Supreme Court, King's County, Watson admitted that he participated in the robbery during which Morris was shot, but maintained that he was not guilty of first-degree murder because his co-defendant Rakeem Harvey (a/k/a "Keemie") had shot Morris. Watson's claims are based on a note that the prosecution disclosed to defense counsel (the "Harvey Note"), which stated, in relevant part:
Keemie Harvey, a/k/a Keemie Cooke.
Keemie had gun went off accident.
Defense counsel unsuccessfully sought to cross-examine the lead detective about the Harvey Note in an effort to show that, despite having this information, the police did not adequately investigate whether Harvey was, in fact, the shooter. Watson argues that the preclusion of such cross-examination violated his rights under the Sixth Amendment's Confrontation Clause.
The district court granted habeas, finding that the state appellate courts unreasonably applied clearly established federal law by rejecting Watson's Confrontation Clause argument. Because we conclude that the state courts did not unreasonably apply clearly established federal law, we reverse.
I. The Crime and Investigation
On the night of July 11, 1998, Patrick Morris sat in a parked car in Fort Greene, Brooklyn, waiting for his friends to use the bathroom in a friend's apartment. Watson and Harvey robbed Morris with a gun. Morris resisted, and he was shot and killed. Both Watson and Harvey eventually admitted to participating in the robbery. The principal remaining question was which one of them shot Morris.*fn3
The police arrested Watson soon after the incident. When questioned, Watson made a number of contradictory statements. At first, he completely denied any involvement in the crime. Later, he admitted that he was present, but maintained that he only acted as a lookout for Harvey and another man named Jahad. In that account, Watson said that Jahad was the shooter, and that during the crime Jahad was wearing a gray hooded sweatshirt with "Tommy" on the chest and sleeve. Watson's girlfriend, however, told police officers that Watson himself had been wearing a gray hooded sweatshirt when he arrived at her apartment the night of the crime, and gave the sweatshirt to the officers. When confronted with this information and with the sweatshirt itself, Watson provided yet another version of the night's events, admitting that he owned the sweatshirt, that he wore it the night of the crime, and that he and Harvey had committed the robbery. He then claimed, however, that Harvey was the shooter and that he had not known that Harvey had a gun. Watson was eventually indicted on ten counts, including first-degree murder.
A few weeks after the crime, Police Officer Sherry Pierce, who was not involved in the investigation of Morris's murder, but whose family knew Harvey's family, telephoned the investigating detectives after seeing Harvey on wanted posters. She reported that she had overheard during a discussion among members of her family that Harvey had a gun on the night of Morris's murder and that it went off accidentally. An unknown detective took notes of this telephone report, creating the Harvey Note, which was placed in the detectives' case file in July 1998. Detective Warren Bond, the lead detective on the case, read it within three months of the crime.
After the crime, Harvey fled to Georgia, where he lived under an alias. When Harvey was arrested there for drunk driving in July 1999, Bond went to Georgia and spent a day and a half questioning him. During that time, Bond never confronted Harvey with the information recorded in the Harvey Note, never told Harvey that Watson's account of the crime placed the gun in Harvey's hands, and never asked Harvey whether he had shot Morris. In fact, according to Harvey, Bond told Harvey at the outset of the interview that he knew Harvey was not the shooter, and that Harvey could therefore help himself by admitting what he had done.
Harvey eventually pled guilty to first-degree robbery pursuant to a plea agreement, and later testified against Watson at trial - claiming that Watson was the shooter - in return for a sentence of 8 to 16 years' imprisonment.
A. Disclosure of the Harvey Note and the Defense Response
The prosecutor first disclosed a copy of the Harvey Note to the defense on the second day of jury selection. At that point, the prosecution did not know who had written the Note, or who had reported the information transcribed in it. The prosecution eventually identified Officer Pierce as the source of the information, but the prosecution's efforts to discover which detective had spoken to her were unsuccessful. When the prosecution interviewed Pierce to learn more about the information in the Harvey Note, Pierce reported that it "was like vague information. . . . She indicated essentially that she heard he was involved. Somebody might have said he had the gun, but she [could not] specify who." Pierce told defense counsel that "there are people in her family that know Mr. Rakeem Harvey a/k/a Rakeem Cook" or know his family, and that she "was in the room and she overheard a number of conversations," which ranged from "Rakeem Harvey did this, that he didn't do it, to him having the gun and didn't have the gun."
The prosecution and the defense both questioned Bond about the Harvey Note outside the presence of the jury. Bond testified that he did not write it and did not knowwho did. He testified that he read it within three months of the crime, and that after doing so he contacted Pierce, who told him that she had heard that Harvey had a gun that went off accidentally, but did not tell Bond where she had heard this information. Bond stated that it was "information that was already basically known that Keemie was involved," so it was "not of any importance to me, because the defendant, Darrell Watson, had already said that Keemie had the gun."*fn4
When defense counsel indicated that she wanted to use the Harvey Note at trial, the court asked how defense counsel planned to get it into evidence, and "what is the evidentiary value of that statement [in the Harvey Note] . . . . [i]n view of the fact that it seems to be, at a minimum, [not only] hearsay but double hearsay, and it may[ ]be triple hearsay." Defense counsel initially argued that it was admissible as a ...