In a death penalty case, district court's new trial order granting defendant's petition for habeas relief based on a finding that the state violated Brady is affirmed where: 1) a withheld pretrial report was exculpatory and should have been disclosed at trial; 2) it was material because, if true, it would likely change the outcome of the trial; and 3) the ultimate determination concerning the truth of the withheld report is for the state courts to resolve. District court's denial of the Rule 59(e) motion to alter or amend is affirmed and the remaining issues raised in petitioner's cross-appeal are pretermitted.
Argued: June 17, 2009
Decided and Filed: September 29, 2009
Opinion by Chief Judge Merritt
For Appellant: Stephen E. Maher, Officer of the Ohio Attorney General
For Appellee: Richard Marvin Kerger, Kerger & Hartman, LLC