Full opinion text
MEMORANDUM OPINION COLLYER, District Judge. In January 1976, Michael A. Diamen, Joseph W. Eastridge, Stephen C. Jones, and Joseph N. Sousa were convicted in the Superior Court of the District of Columbia of first-degree murder, while armed, for the stabbing death of Johnnie Battle. A fifth co-defendant, Richard C. Richter, was convicted of assault. The Government’s theory of the case at trial was that a group associated with a motorcycle gang, the Pagans, was involved in a racially-charged confrontation with three Black men, including Mr. Battle, outside the Godfather Lounge (“Godfather”) in Washington, DC. After a series of verbal exchanges, Mr. Battle retrieved a handgun from his car and fired into the group, wounding one of the Pagans. Mr. Battle fled on foot down Wisconsin Avenue. Messrs. Jones, Dia-men, Eastridge, and Sousa allegedly “gave chase, with their knives drawn, chasing ... Mr. Johnnie Battle up to Wisconsin Avenue, across Wisconsin Avenue, where Mr. Battle is seen tripping on a curb, falling backwards, with his arms up, and being stabbed repeatedly by these four defendants .... ” Trial Tr. at 64. After numerous unsuccessful appeals and post-trial motions, Messrs. Eastridge and Sousa (“Petitioners”) filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241, asking this Court to vacate their murder convictions. In April 2005, a Supplemental Petition was filed to allege a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) based on the failure of the prosecutor to release allegedly-exeulpatory evidence. Mr. Jones is not part of this litigation and did not appeal his sentence. The Petition is supported by new evidence unearthed by Centurion Ministries, a non-profit prisoner-advocacy center, during an eight-year investigation of the case. Illuminated by the light of this new evidence, the fog has lifted. Mr. Jones and unindicted members of the Pagans murdered Mr. Battle. Based on the full record, no reasonable juror would now find Petitioners guilty beyond a reasonable doubt. The Court finds that this is the rare case in which Petitioners can prove their “actual innocence” of the crime charged as well as violations of their constitutional rights at trial. The Petition will be granted and the parties directed to confer on an appropriate order. I. FINDINGS: WHAT REALLY HAPPENED Upon consideration of the extensive trial record, supplementary documents and exhibits submitted with the Petition, the testimony received during an evidentiary hearing in December 2004 (“2004 Hearing”), the Court’s analysis of the demeanor and candor of the witnesses, and the parties’ briefs, the Court makes the following findings. 1. A club of Pagans gathered at the home of its president, Richard Richter, in Arlington, VA, on November 1, 1974, to celebrate Mr. Richter’s birthday. Club members in attendance were Steven Jones, who had just been initiated into the Pagans, and his girlfriend, Pamela Heim; Chesley Barber; Charles Jennings; John Wood; Tommy Greenwood; Bruce Hunter; Jill Summers; Michael Diamen; and Petitioners Eastridge and Sousa. 2. The party moved to a local bar known as “JJ’s,” where some members of the club became involved in a fight. Mr. Jones allegedly cut his hand during the fight. The group quickly left JJ’s and, after a brief .stop at Mr. Richter’s house, traveled into the District of Columbia to visit the Godfather, a lounge on Wisconsin Avenue N.W. 3. The Pagans traveled in two cars. The first car belonged to Mr. Richter and contained Ms. Heim and Mr. Jones, Tommy Greenwood, Jill Summers, Bruce Hunter, and Mr. Richter. Trial Tr. at 1733 (Heim). The second car, a green Plymouth, belonged to Mr. Eastridge and contained Messrs. Eastridge, Sousa, Dia-men, Barber, Jennings, and Wood. Id. at 1734. Because Mr. Eastridge had been drinking too heavily to drive, Mr. Sousa drove his vehicle. The two cars parked on Fessenden Street, around the corner from the Godfather. 4. The Pagans were not welcomed at the Godfather. They entered and went to the lower level but, upon instructions from the bar’s owner, Tommie Motlagh, bouncer Stephen Mathers told them they would not be served and should leave. 5. As the Pagans were climbing the steps to leave, they encountered three Black men, Johnnie Battle, Armón Allen, and Joseph Brown. Mr. Richter challenged Messrs. Battle and Brown on whether they had called him a nasty name. Both men denied having done so, and the two groups left the Godfather, with the Pagans trailing Mr. Battle and his friends out of the doorway and then north and west onto Fessenden Street, where both parties had left their cars. 6. Along the way, Mr. Allen became separated from his friends and had an altercation with Mr. Richter, who thought Mr. Allen had a knife and who pulled out his own knife. Mr. Richter stepped toward Mr. Allen with his knife drawn. After realizing that Mr. Allen was holding a comb, he stepped back, put his knife away, and continued toward his vehicle. 7. Fearing for Mr. Allen’s safety, however, Mr. Battle went to his car and retrieved a gun. With Mr. Brown, he then headed back to the corner of Fessenden and Wisconsin, where they had last seen Mr. Allen. As they did so, they encountered the group of Pagans. Mr. Jones threw popcorn at Mr. Battle and said, “Monkeys don’t like popcorn?” 8. Mr. Brown put his head down to avoid looking at the Pagans and kept on moving. When he looked back, Mr. Battle was surrounded by the Pagans, who were holding knives. 9. Mr. Battle raised his gun and shot into the group of Pagans, striking Bruce Hunter. Mr. Brown ran to the Godfather. “Just before I went in there, I took a glance ... and saw [Mr. Battle] running with the gun and the group of guys behind him with knives.” Trial Tr. at 139 (Brown). Mr. Allen also heard the gunfire and ran toward the Godfather. He looked to the corner and “it looked like seven or eight people swung around the corner altogether. I didn’t know what it was. So, I just stepped inside the door.” Trial Tr. at 105 (Allen). 10. Later on, both men could recognize Messrs. Eastridge, Sousa, Diamen, and Jones as having been among the Pagans but could not identify who chased Mr. Battle. 11. Mr. Battle ran toward Wisconsin Avenue but did not go to the Godfather. He crossed Wisconsin at an angle and ran south on the sidewalk to where 42nd Street and Emery Place intersect Wisconsin. He ran east on Emery Place for half a block and turned south again down an alley. 12. Mr. Jones followed Mr. Battle in hot pursuit. A teenager, he was the youngest and fastest of the Pagans. Mr. Jones and some other Pagans chased Mr. Battle south on Wisconsin Avenue, east on Emery Place, and then south down the alley. 13. Mr. Jones caught up with Mr. Battle as he crossed Ellicott Street at the end of the alley and entered the driveway of the Roundtable Restaurant. Mr. Battle stumbled, Mr. Jones caught his legs and tripped him, and then fell upon him, using his fists. Two or more Pagans joined in the fight, using knives. 14. In less time than it takes to tell, Mr. Battle suffered seventeen knife wounds and was dead. 15. Mr. Jones and one other Pagan leapt off of Mr. Battle and raced back up the alley, going north. As they ran, the other Pagan threw his knife into a backyard. The two men separated and Mr. Jones encountered Mr. Sousa driving the green Plymouth, inside of which were Messrs. Eastridge and Diamen. 16. Two other Pagans ran in another direction and returned on foot to Virginia. 17. In response to Mr. Battle’s gun shots, Mr. Eastridge first ran west on Fessenden Street, away from Wisconsin Avenue, thinking to hide in an alley. When he realized that Mr. Battle was being chased toward Wisconsin Avenue, he followed. He rounded the corner of Fes-senden and Wisconsin and headed south on Wisconsin for a short distance". He saw the chase cross Wisconsin and head onto Emery Place. He then turned around and ran back north on Wisconsin Avenue. 18. When Mr. Eastridge had almost gotten back to Fessenden, he saw Mr. Sousa round the corner in the car and climbed in. Mr. Eastridge had been drinking from his own bottle of whiskey and carried it with him as he ran. 19. Mr. Sousa ducked down behind the Plymouth when the shots were fired. When he straightened up, he saw Mr. Richter assist Mr. Hunter into Mr. Richter’s car and drive off, turning at the corner to go south on Wisconsin Avenue. He hopped into the green Plymouth and pulled out, heading toward Wisconsin. 20. Before reaching the corner, Mr. Sousa paused to pick up Mr. Diamen. As he rounded the corner, going south on Wisconsin, he saw and picked up Mr. Eas-tridge, who got into the back seat. 21. The United States agrees that the above recitation constitutes the most reasonable reading of the entire record of evidence. At oral argument after the 2004 Hearing, the United States stated: AUSA: A reasonable inference, a reasonable interpretation of what happened is as follows. That after Hunter was shot, Sousa was at his car, Eastridge was as well at his car that Sousa was driving. Eastridge began to run around the corner and follow where Jones and the whole group was [going] and went across Wisconsin Avenue .... Mr. Eas-tridge got to a certain point where just a little bit past the corner and turned around. He could have been running back up to Mr. Sousa’s car. Then got into Mr. Sousa’s car and they did make a left on Ellicott just as Motlagh saw them. THE COURT: So Mr. Sousa stayed at the car and got in it. AUSA: While he was getting in the car. THE COURT: Right AUSA: Mr. Eastridge was running to the car. THE COURT: Right. So Mr. Eas--tridge was running toward the corner. Mr. Sousa got in the car. Mr. Sousa started up the ear towards Wisconsin Avenue, and encountered Mr. [Diamen] on the street or on the sidewalk or wherever and picked him up. AUSA: Correct. THE COURT: And then rounded the corner and at that point they encountered Mr. Eastridge who had run partway down the street, down Wisconsin Avenue, and turned around and ran back again and they picked up Mr. Eas-tridge. AUSA: Yes, your Honor, that’s what the Government can conclude from the evidence from the testimony of the witnesses as [a] reasonable inference of what happened. Oral Argument 4/8/05 at 22-23. 22. The most reasonable interpretation of all the evidence is that Petitioners did not chase Mr. Battle and did not participate directly in murdering him. 23. The Plymouth then drove south on Wisconsin Avenue and made a sharp left at the intersection of Wisconsin, 42nd Street and Emery Place, where Mr. Eas-tridge had seen the chase headed. They drove east on Emery to 41st Street, turned left and went north on 41st to Fessenden, and turned left again, completing a square as they came to the intersection of Fessen-den and Wisconsin. The United States disputes this finding. 24. Along the way, they found Mr. Jones, who had run up the alley from Ellicott Street, on either Emery or Fes-senden and stopped to pick him up. Mr. Jones’s hands were bloody and Mr. Eas-tridge handed him some newspaper to wipe them. 25. The most reasonable interpretation of all the evidence is that Petitioners did not turn into Ellicott Street, the site of the murder, and did not aid and abet others in murdering Mr. Battle, although they attempted to assist Mr. Jones to escape. The United States disputes this finding. 26. As they reached Wisconsin and looked south toward the Godfather, the Pagans could see a police car. They turned right, going north. 27. The green Plymouth was seen and identified by Mr. Motlagh, who had come outside upon hearing gunshots and had told someone to call the police. Mr. Mo-tlagh identified it as the second car that he had seen driving down Wisconsin (the first being the Richter car). 28. The responding police officer followed the green Plymouth north on Wisconsin Avenue. He stopped the car and noticed a Jim Beam whiskey bottle on the floor between Mr. Eastridge’s legs. Another officer brought Mr. Motlagh to the stopped car, and Mr. Motlagh identified the occupants as among those who had recently left the Godfather. 29. Blood was found in the left back seat of the car and the back of the left front seat, near where Mr. Jones had been seated. Bloody newspapers were found in the back seat, again near where Mr. Jones had been seated. 30. A dusty knife was found under the seat where Mr. Sousa had been seated. A small knife was recovered from Mr. Eas-tridge. A knife in its sheath was also recovered from Mr. Jones. The following day, a knife was found near a grassy area along Wisconsin Avenue where Mr. Dia-men had allegedly sat while waiting to be processed by the police. None of these knives had blood on them. 31. A Puma knife with some signs of blood, which fit a knife sheath found near where Mr. Richter’s car had been parked on Fessenden Street, was recovered from a backyard halfway up the alley between Ellieott Street, the site of the murder, and Emery Place. 32. Mr. Jones had severe cuts on his hands and his clothing was soaked in blood. Mr. Diamen’s own blood was found near a tear in his pants; no other blood was found on his person or clothing. Mr. Sousa had blood on his shirt in an amount too small to type; no other blood was found on his person or clothing. No blood was found on Mr. Eastridge. Petitioners were sentenced to twenty years to life. Mr. Sousa served nineteen years in jail before being released on parole; Mr. Eastridge served twenty-nine years before being released on parole. The terms of their paroles include significant restrictions. They served this time as convicted murderers for a crime which it is more likely than not that no reasonable juror, based on the full evidentiary record, would find them guilty beyond a reasonable doubt. II. LEGAL STANDARDS The writ of habeas corpus is a remedy of common law origin that protects individuals against arbitrary and wrongful imprisonment by permitting a judicial challenge to the legality of detention. See McNally v. Hill, 293 U.S. 131, 136-37, 55 S.Ct. 24, 79 L.Ed. 238 (1934). The writ is constitutionally recognized: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const, art. 1, § 9, cl. 2. Through the Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73 (1789), and the Habeas Act of 1867, Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (codified as 28 U.S.C. §§ 2241-55 (1976)), Congress statutorily authorized such a remedy for both state and federal prisoners. Permitting challenges to the validity of imprisonment is not without costs and may pose a threat to principles of finality and comity. See McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (the costs of a habeas, petition are more extreme where a claim is first presented in a “second or subsequent” petition); Murray v. Carrier, 477 U.S. 478, 487, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (petitions may interfere with a State’s sovereign power to punish offenders and efforts to honor constitutional rights). Repeat habeas claims, in particular, can slow the administration of justice and impose a financial burden on the judicial system. Accordingly, Congress has limited the availability of the writ and fashioned rules disfavoring repetitious petitions. See Kuhlmann v. Wilson, 477 U.S. 436, 450, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (Congress amended 28 U.S.C. § 2244(b) to encourage finality in judgments). While the Supreme Court has acknowledged such limitations on successive and abusive petitions, see id. at 444 n. 6, 106 S.Ct. 2616, its decisions are tempered by an abiding appreciation for “the equitable nature of habeas corpus” which precludes the “application of strict rules of res judi-cata.” Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See also Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) (habeas corpus traditionally governed by equitable principles). These decisions have measured “the limited circumstances under which the interests of the prisoner in relit-igating constitutional claims held meritless on a prior petition may outweigh the countervailing interests served by according finality to the prior judgment.” Kuhl-mann, 477 U.S. at 452, 106 S.Ct: 2616 (justice requires “federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence”). In Schlup, the Supreme Court refined the “miscarriage of justice” exception to restrictions on successive review of ha-beas claims, “seeking] to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the. extraordinary case.” 513 U.S. at 324, 115 S.Ct. 851. Where a habeas petition is otherwise barred, a petitioner may obtain habeas relief if “ ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’ ” Id. at 327, 115 S.Ct. 851 (quoting Carrier, 477 U.S. at 496, 106 S.Ct. 2639). To establish “actual innocence” that overcomes the presumption of guilt that attaches after trial and conviction, a petitioner must produce “new reliable evidence ... that was not presented at trial,” id. at 324, 115 S.Ct. 851, and demonstrate that, in light of all the evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,” id. at 327, 115 S.Ct. 851. The “actual innocence” inquiry is properly informed by all the evidence, including “relevant evidence that was either excluded or unavailable at trial.” Id. at 327-28, 115 S.Ct. 851. See Bousley v. United States, 523 U.S. 614, 631-32, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (under Schlup, “new evidence” is to be evaluated along with the “old evidence” consisting of the transcript of the trial). Notably, the reviewing court is not bound by the rules of admissibility that govern at trial and is empowered to make credibility determinations retrospectively. Id. at 327, 115 S.Ct. 851. After reviewing the totality of the evidence, the court must make a “probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 329,115 S.Ct. 851. However, Schlup also instructs that a colorable showing of innocence alone is insufficient grounds for vacating a conviction. Rather, this showing must be accompanied by an independent claim that a constitutional error occurred at trial. Specifically, a successive habeas petitioner may effectively challenge his conviction by demonstrating that, in light of the new evidence, a constitutional error at trial “probably resulted” in his conviction. Id. at S26-27,115 S.Ct. 851. Petitioners assert that an evidentiary Rule imposed by the trial judge violated their Fifth Amendment due process right to present “evidence that someone other than [themselves] committed the charged crimes,” Johnson v. United States, 552 A.2d 518, 516 (D.C.1989), and their Sixth Amendment right to confront and cross-examine all Government witnesses against them, Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Under the Rule, “no lawyer was to ask questions that would inculpate or exculpate any other defendant unless he cleared it with the defense attorney.” Trial Tr. at 601 (Judge). Petitioners’ lawyers were barred from making arguments or introducing evidence through direct or cross-examination that could “bring into play any other defendant.” Voir Dire Tr. at 150 (regarding oral argument). Accord Trial Tr. at 601 (regarding testimony). The Rule had a real impact on the trial. When Mr. Eastridge’s post-trial motion alleging ineffective assistance of counsel was denied, the judge explained: The second reason for ruling the cross-examination does not reach the level of gross incompetence pertains to the court’s severe restriction regarding cross-examination at the trial. In an effort to prevent prejudice to the four codefendants, the court ruled prior to trial that no defense counsel could cross-examine a witness so as to inculpate or exculpate any other defendant unless the cross-examination was cleared first with that defendant’s counsel. See Trial Transcript, pages 601, 1799, 1802, 2276-77. In fairness to trial counsel, this ruling made it very difficult to cross-examine Mrs. Willetts on this incident without further implicating codefendant Sousa in the crime. Indeed, the rule proved so restrictive to Sousa’s attorney that he did not even attempt any cross-examination of a witness whose sworn testimony was very damaging to his client. (Trial Transcript, page 1691.) United States v. Eastridge, 110 Wash. L. Rep. 1181, 1187 (1982) (emphasis added). In this Court, Petitioners argue that the restrictions of the Rule were unconstitutional. III. OVERVIEW OF 1975 TRIAL The defendants were tried in the winter of 1975. The prosecution theory was that Messrs. Jones, Eastridge, Sousa, and Di-amen chased and stabbed Mr. Battle. See Trial Tr. 1098 (Laughery) (“One of the things that the Government is going to be proving in this case, attempting to prove, is that these four defendants ran after and struggled with and finally stabbed to death Johnn[ie] Battle.”). Prosecutors called a number of witnesses, including police officers, experts and eyewitnesses, and introduced into evidence numerous knives, blood evidence,' and other physical items. Joseph Brown and Armón Allen set the stage for the prosecution’s case against the defendants by recounting the details of the evening of November 1, 1974, from their perspectives, as described above. Pamela Heim described the encounter outside the Godfather and testified to hearing shots. When she saw- Mr. Battle with a gun in his hand, Messrs. Sousa and Eastridge were standing next to their car, getting ready to get into it. Id. at 1757. After the shots, everyone scattered and she assisted the wounded man, Mr. Hunter, into Mr. Richter’s car. Id. at 1759. Thereafter, Ms. Heim drove Mr. Richter, Mr. Greenwood, Ms. Summers, and Mr. Hunter to a hospital in Virginia,, leaving seven men behind. Id., at 1760. Although the Eastridge/Sousa green Plymouth was on Fessenden Street when the Richter car drove away, Ms. Heim testified that she did not know what happened to Messrs. Diamen, Jones, Eastridge, or Sousa after the shots were fired. She did not testify to the whereabouts of Messrs. Barber, Jennings, and Wood. Id. at 1762. Stephen Mathers was the doorman at the Godfather on November 1, 1974 and confirmed that the Pagan group consisted of ten to twelve persons. Trial Tr. at 494-L. After hearing shots, Mr. Mathers watched as Mr. Battle ran by the Godfather entrance and continued south across Wisconsin Avenue. Id. at 425-26. Mr. Mathers could not state with certainty the number of persons chasing Mr. Battle. See id. at 427 (there were “[t]hree, four, maybe five people.”). Although he was not able to identify the chasers, he stated that one carried a knife and some wore “Levi jackets and all. The crowd that we had just had inside.” Id. at 427-28. Tommie Motlagh, the owner of the Godfather, was with Mr. Mathers at the entrance to the lounge. Mr. Motlagh heard shots from the direction of Fessenden Street and told someone to call the police. Id. at 494-X — 494-Y. “After I tell them to make a phone call, I saw Joe Brown and his friend running down Wisconsin Avenue.” Id. These two entered the Godfather. He then “saw the third man running down the street and two men that were running behind him, and one of them had the knife in his hand.” Id. at 494-Z. These men ran down Wisconsin Avenue to the end of the block and crossed Wisconsin. Id. Mr. Motlagh was able to describe one of the “two : ten” chasing Mr. Battle with particularity. “One of them had dark hair, with a moustache and goatee, and he had a tattoo on his arm, the one who had a knife in his hand.” Id. at 494-Z — 495. “He had a white T-shirt' on and a black leather wrist [band] and the blue jeans.” Id. at 495. Mr. Motlagh then noticed a car containing three-to-five people, including a few women, drive down Wisconsin Avenue. After this first car drove away, a second car, an old green Plymouth, turned southbound from Fessenden Street onto Wisconsin Avenue, in the direction of the chasers. Mr. Motlagh’s testimony established that there were multiple persons in this car. Id. at 495-A — 495-B (stating variously that there were “two-three people in it” and “[t]hree or four guys”). This car “made a left turn at Ellicott.” Id. at 495-A. Stephen Maday was a patron of the Godfather on the night of November 1, 1974. After observing some of the initial non-violent encounter between the Pagans and the Black men, Mr. Maday crossed Wisconsin Avenue. From the other side of the street, he “saw approximately four to six individuals chasing one individual.” Trial Tr. at 1825 (Maday). Thereafter, another “individual passed me, headed north on Wisconsin Avenue.” Id. at 1826. This individual had “a whiskey type bottle” in his hand. Id. Unlike the others, the individual with the bottle was not running south, but was “jogging” north on Wisconsin. Id. at 1832, 1841. Mr. Maday said that this individual was not one of those who chased Johnnie Battle. Id. at 1832. The Government later admitted that the person with the whiskey bottle was Mr. Eastridge. Id. at 2790. The prosecution produced only one witness who professed to have seen the attack. David Brady worked and lived near the Godfather. On the evening of November 1, 1974, Mr. Brady and his girlfriend were getting into a car located on “42nd and Wisconsin Avenue — 42nd and Ellicott.” Trial Tr. at 1177 (Brady). Mr. Brady testified that he heard the verbal altercation between Messrs. Battle, Brown, and Allen and the Pagans and then saw one of the Black men running “across Wisconsin Avenue, through the park.” Id. at 1179. A number of White men were chasing him southbound. Mr. Brady thought there were about four to six men chasing Mr. Battle. Id. at 1183. “Well, he got to Emery ... and Wisconsin Avenue, as he was going onto the curb. And I seen, as he was falling, one of the white dudes was getting to him at that time.” Id. at 1179. Mr. Brady described a fall, one of the chasers falling on top of the victim, and the other chasers joining in the melee. “Well he kicked his foot from underneath him, and at that time they had started getting him by that time. By that time, the rest of the guys had got to him by then.” Id. at 1180. After the Pagans started to hit and knife Mr. Battle, Mr. Brady said he just drove -away on Ellicott Street. Id. at 1183-84: Mr. Motlagh waited for police outside the Godfather. Eugene Ur was the first officer to respond and Mr. Motlagh told him of the chase he had seen. He then saw the green Plymouth at the east side of the intersection of Wisconsin and Fessen-den and told Officer Ur that it was the same car he had seen earlier. Officer Ur immediately gave chase, and stopped the car on Wisconsin Avenue, north of Fessen-den Street. “Mr. Sousa was the operator of the vehicle. Mr. Diamen was sitting on the right front passenger seat. Mr.. Jones was sitting directly behind the driver in the rear seat, and Mr. Eastridge was sitting on the — in the rear seat on the passenger side.” Trial Tr. at 662(Ur). Mr. Jones had “a newspaper in his hands and ... he had cuts on his hands.” Id. at 665. When Officer Ur looked inside the car, he found a knife and some blood in the area where Mr. Jones was seated. Id. at 667. The defendants were secured and another officer asked Mr. Motlagh “if that’s same people in the car ... ?” Trial Tr. at 495-H (Motlagh). In response to this rather ambiguous question, Mr. Motlagh replied “Yes,” Id. at 495-1. During examination, Mr. Motlagh clarified that the four men that were in the car stopped by the police were simply four of the larger group of Pagans that had been at the Godfather earlier that night. See id. at 495-1 (“The same people that left the Godfather, right.”); id. at 495-J (affirming that they were “four of the people that [Mr. Mo-tlagh] saw with Mr. Richter’s party at the Godfather”). John White and Ronald Eddie were the first to discover Mr. Battle’s body at the entrance to the parking lot of the Roundtable Restaurant at the east side of the intersection of Wisconsin and Ellicott. The Roundtable Restaurant was located two blocks (250-300 yards) south of the Godfather on Wisconsin Avenue. Mr. Battle was badly bruised and had “bleeding around the face; also, bleeding on the chest, from what I could gather, and there was also a pool of blood coming from his head.” Trial Tr. at 349 (White). His body was “bleeding profusely, because it was running that far, from the time we got there, from the head, all the way to the gutter of the street.” Id. The bleeding was so extensive that, during the course of administering cardiopulmonary resuscitation, Mr. White’s hands became covered with blood. “There were wounds on the body.... It seemed to be either his face was swollen to some nature .... ” Trial Tr. at 373 (Eddie). Neither man observed anyone in the area at the time they discovered the body. Police officers searched the defendants and the green Plymouth. Messrs. Eas-tridge and Jones possessed folding knives; Messrs. Sousa and Diamen had no weapons. Trial Tr. at 1066-69 (Villarreal). These knives had no blood stains and no signs that they were used in the attack against Mr. Battle. See id. at 1082-85 (acknowledging that the knife found on Mr. Jones had stains but that they did not appear to be blood stains). The police recovered various items from the green Plymouth, including “a partially full bottle of Jim Beam whiskey from the rear floor of the auto,” “a hunting knife from the— beneath the front seat, on the driver’s side,” and “a piece of newspaper from the rear floor of the car.” Trial Tr. at 1214 (McGinnis). The defendants’ clothing and personal effects were also secured. A local resident, who lived on Wisconsin Street between Ellicott Street and Emery Place, discovered a knife on the back steps of her house the day after the murder. This knife was bloody with “three little dents in it to hold your hand in. It was a ridgey-edge knife, and it had a point on the end, and it was quite thick, about twelve inches long, I would say.” Trial Tr. at 1455 (Cleary). The police report listed it as a “hunting knife,” a “Bowie Knife, brand name Puma, and was about a 10” blade and a bone hand[le]. It also had what appeared to be blood on it.” P.D. 123 Report of Investigation, 2004 Hearing Exh. 22. The police discovered the sheath for this knife on Fessenden Street. See P.D. 698 Supplementary Evidence Report, 2004 Hearing Exh. 23. The prosecution produced forensic evidence as well. An expert from the Federal Bureau of Investigation concluded that some of Mr. Jones’s clothing was heavily stained with Type “O” blood and that both Mr. Battle and Mr. Jones had that blood type. The expert could not determine if the blood came from Mr. Jones or Mr. Battle. Although a few items of clothing obtained from Messrs. Sousa and Diamen had blood stains, the marks were too small to type test. Id. at 587. Mr. Eastridge’s clothing was entirely free of blood. Of the knives initially recovered and tested, only the Bowie knife was stained with blood. See Trial Tr. at 626 (Simms). Dr. William Brownlee opined that Mr. Battle’s wounds were probably caused by two knives of different sizes and, further, that some of the numerous knives entered into evidence were of a size and shape that could have inflicted the wounds that Mr. Battle suffered. Trial Tr. at 1911-18 (Brownlee). Dorothy Willetts’s testimony at trial was the capstone to the prosecution’s case against Messrs. Eastridge and Sousa. Ms. Willetts was a volunteer witness who had contacted the prosecutors before trial and informed them that Mr. Eastridge and Mr. Sousa had repeatedly confessed to the murder. Ms. Willetts testified that she and her husband went to a restaurant called “The Jockey Club” near Richmond, Virginia, about two weeks after she gave birth to a child. The Willettses shared a table with Patricia Moser and Rita Kerr. Trial Tr. at 1658-61 (Willetts). Messrs. Eastridge and Sousa, who had been released from jail pending trial, came over and sat down and Mr. Sousa confessed that “while you were having the kid, we were killing a nigger in D.C.” Id. at 1662. When Ms. Willetts inquired further, Mr. Sousa allegedly responded, “ ‘Not me; he did it.’ And he looked at Wayne [Eastridge].” Id. According to Ms. Willetts, they each implicated the other, claiming that Mr. Eas-tridge cut off Mr. Battle’s ear and Mr. Sousa cut off his nose. Id. Mr. Eastridge then purportedly exclaimed, “ ‘Well, I just can’t help it when I get to stabbing. I can’t help it. I can’t quit. I kept going.’ ” Id. Ms. Willetts testified that Mr. Sousa again made incriminating remarks in March or April 1975, at a nightclub called “Horns.” Ms. Willetts was out with her husband and Ms. Moser, and observed Mr. Sousa threatening a waitress that, unless the waitress gave him the correct change, “he would cut her like he did that nigger in D.C.” Id. at 1668. Ms. Willetts further testified that Mr. Sousa again incriminated himself at the “Scottish Inn” on November 9, 1975. While with her husband and Sandra and Michael Kurz, Ms. Willetts testified that she overheard Mr. Sousa in the middle of a conversation with Bran Dillard. “I said to Nick [Sousa] that I hadn’t lied on him before in court, and that I wanted him to know that I didn’t intend to lie if I was called as a witness up here.” Id. at 1673. Mr. Sousa reportedly responded ‘Yeah, I know; that’s what worries me .... With what you could say, I might get forty years.” Id. Without additional detail of times and places, Ms. Willetts also testified that Messrs. Eastridge and Sousa repeatedly discussed the killing in her presence: they acknowledged cutting off the victim’s nose and ears on “seven or eight-ten” occasions. Id. at 1675. “Nick and Wayne would talk about it back and forth to each -other just practically every time we were with them .... ” Id. Indeed, Ms. Willetts testified that the last time she heard discussion of the mayhem was on June 7, 1975. Id. at 1677. At the close of the Government’s case, the defendants moved for judgment of acquittal, arguing, among other points, that no direct forensic or witness testimony tied them to the murders. In response, the prosecutor argued, “[T]he question before this jury, is whether these defendants are guilty; not whether these defendants are the only persons who are guilty, but whether these defendants are guilty.” Id. at 2087. The trial judge denied all the motions and the defendants called witnesses on their behalf. The defendants attempted to discredit Ms. Willetts, the only witness to put knives in the hands of Messrs. Eastridge and Sousa. Each defendant also testified on his own behalf. Donald Lambert, a friend of Mr. Sousa, testified that he was at the Scottish Inn in November 1974 on one of the nights that Ms. Willetts claimed inculpatory statements were made. Ms. Willetts approached their table and bumped into Mr. Sousa. Although they exchanged words, Mr. Lambert claimed the encounter was unremarkable; he could not remember specifically what they said to each other but he did not hear any discussion of assaulting or killing a Black man. Trial Tr. at 2147 (Lambert). Lillian Gordon testified that she worked as a waitress at Horn’s Motor Lodge in 1974. Contrary to Ms. Willetts’s claim, Ms. Gordon asserted that Mr. Sousa had never threatened her or said that he would “cut her” like he had a Black man in Washington. Trial Tr. at 2162 (Gordan). On cross-examination, she denied that she had a dispute with Mr. Sousa over the amount of change he should receive on a bill. Id. at 2166. Ms. Kerr testified that she had been at the Jockey Club with Mr. Eastridge on a night that Ms. Willetts was also present. Ms. Kerr stated that she never heard Mr. Eas-tridge make any remarks that associated him with the killing of Mr. Battle. Trial Tr. at 2278 (Kerr). Mr. Sousa testified on his own behalf and recounted the events of November 1, 1974. After the group exited the Godfather, Mr. Sousa walked back to the car. He heard gunfire as he reached the car door on the driver’s side. Id. at 2196. “I put my head down right beside the car.” Id. at 2198. As I got back up, I walked around to the front of the car and I seen somebody — I didn’t know at that time who it was— laying on the sidewalk. I walked up and I seen it was D.J. And at that time Cheyenne [Mr. Richter] yelled: “Everybody get in the car and let’s get out of here.” ... I walked back around and got into the car I was driving, and he took off and went to the corner right there at Fessenden and Wisconsin Avenue, and then he made a right, and I pulled— eased off from there. And before I got to the corner of — before I got to the intersection right there at Wisconsin, Abe [Mr. Diamen] got in the car. Then I went to the stop sign and stopped, and just about as I was to make a right onto Wisconsin, Wayne [Eastridge] got in the car. And I looked down the street. I knew in Cheyenne’s [Mr. Richter’s] car there wasn’t but like three or four people, and I knew it was a lot more ... of us there. I mean, it was probably seven or eight people that weren’t accounted for. So I looked down Wisconsin Avenue and I didn’t see anybody on the street really. And I took a left at the first left. I went up the street, and then when I got to the end of that street, I took another left and I was coming back down — I reckon its Fessenden Street there — and Steve [Jones] got in the car. Id. at 2196-97. Mr. Diamen got in the front seat of the car, Mr. Eastridge in the back passenger-side seat, and Mr. Jones in the back driver-side seat. Mr. Sousa denied stabbing Mr. Battle. Id. at 2208. Mr. Eastridge gave a similar account of the evening. After leaving the Godfather, he went to his car, “opened the door and I started to sit down_” Trial Tr. at 2303 (Eastridge). He heard the exchange of words and saw Mr. Battle shoot Mr. Hunter. Mr. Battle then “shot at me and it ricocheted by the sidewalk. So I jumped over Mr. Hunter, like over to the side.” Id. at 2308. Mr. Eastridge then “ran like to the alley, and then I come back. Then I looked and I seen it was — like I seen the black dude cutting the corner, and it was like — it was five guys; the[y] were like staggered, two and two, and it looked like one was in the middle or a little behind, and they, you know went around the corner.” Id. at 2304. Mr. Eastridge ran to the corner of Wisconsin and Fessenden. I looked down the street [Wisconsin Avenue] and I could see — I don’t know. It looked like four people on one side of the street. I could see the black guy. He was out in front. Then I seen two other guys coming like down the side from the Godfather. It was a bunch of people out in front of that and they were coming down through there, and then they cut off and they ran out of sight and I didn’t see them. Id. at 2305. On cross-examination, Mr. Eastridge testified extensively about the chase, but claimed that he could not identify any of the chasers. Id. at 2364-65. He only saw “a couple of white shirts.” Id. at 2381. Mr. Sousa picked Mr. Eastridge up at the corner and their testimony was consistent as to events thereafter and with the Court’s findings above. Mr. Diamen testified that he had been walking with Mr. Hunter at the time he was shot. Trial Tr. at 2489-91 (Diamen). He said that he ran, after the shots, “away from Wisconsin and away from the man with the gun.” Id. at 2492. Accordingly, he did not witness the chase. When he returned to the area where the shots had been fired, Mr. Diamen heard a horn beep. Id. He then got in the car with Mr. Sousa and they picked up Mr. Eastridge a few seconds later at the corner of Wisconsin Avenue. The car then proceeded south on Wisconsin and turned east onto Emery Place. Like Messrs. Eastridge and Sousa, Mr. Diamen testified that they picked up Mr. Jones somewhere near Fessenden. Id. at 2495. The car returned to the corner of Fessenden and Wisconsin, after which the police stopped them. Mr. Jones, recounted the altercation with Messrs. Battle, Brown, and Allen. On direct examination, he asserted that Mr. Battle shot at him. Mr. Jones then gave chase, “running right behind him, and [Mr. Battle] still had the gun in his hand.” Trial Tr. at 2428 (Jones). Although he did not see anyone; he heard “a whole group of footsteps” behind him, also chasing Mr. Battle. Id. at -2429. As they ran down Wisconsin Avenue, Mr. Battle turned to shoot again. When Mr. Battle turned to shoot, Mr. Jones dove behind a tree and then walked back toward Fessenden Street where he joined Messrs. Eas-tridge, Sousa, and Diamen in the green Plymouth. Id. at 2429-30. Mr. Jones claimed that he did not know what happened to Chesley Barber, Charles Jennings, or John Wood after Mr. Battle fired and Mr. Jones gave chase. Id. at 2483. During closing argument, the prosecution proposed that the defendants could be found guilty as aiders and abettors if not as principals in the death of Johnnie Battle. “This is a legal principle, ladies and gentlemen. His Honor will instruct you that you may find the defendant or defendants guilty of the crime charged, without finding that he or they personally committed each of the acts constituting the offense, or even that they were personally present at the commission of the offense.” Trial Tr. at 2785 (Government Closing Argument). The defendants objected to the introduction of this aiding and abetting charge for the first time in closing argument, arguing that there was no evidence to support the charge. Id. at 2841. The trial court overruled the objections, id. at 2821-22, and instructed the jury that they could find the defendants guilty of first-degree murder while armed, first-degree murder, second-degree murder while armed, second-degree murder, manslaughter while armed, or manslaughter, id. at 2847. In addition, the court gave an aiding and abetting instruction. The jury returned a verdict of guilty of First-Degree Murder While Armed against each of the Petitioners. All defendants, except Mr. Jones, appealed their convictions. IV. NON-FEDERAL POST-TRIAL APPEALS AND PETITIONS The District of Columbia Court of Appeals affirmed Petitioners’ convictions. See Sousa v. United States, 400 A.2d 1086, 1038 (D.C.1979). Mr. Eastridge filed a motion for a new trial in the District of Columbia Superior Court in 1981, alleging that he was denied effective assistance of counsel and that new evidence (namely, unsworn statements by Mr. Jones) exonerated him. The court denied this motion without an evidentiary hearing. See United States v. Eastridge, 110 Wash. L. Rep. 1181, 1187 (D.C.Super.Ct.1982). The Court of Appeals affirmed, finding that counsel’s performance was not grossly incompetent. Although noting that counsel’s ability to cross-examine Ms. Willetts was severely limited by the trial court’s limitations on cross-examination, the Court of Appeals found that this did not render counsel legally ineffec-five. See United States v. Eastridge, No. 82-387, slip op. at 3-6 (D.C. June 16,1983). In September 1983, Mr. Diamen filed a pro se Motion to Vacate Judgment and Sentence in the Superior Court, asserting improper race-based use of peremptory challenges, double jeopardy, ineffective assistance of counsel, newly-discovered evidence, and his incompetence to stand trial. The trial court denied this motion without an evidentiary hearing, finding that the alleged new evidence was either inadmissible hearsay or unreliable and was not likely to result in an acquittal. In April 1995, Petitioners filed a joint Motion to Vacate Convictions and Request for Evidentiary Hearing in Superior Court pursuant to D.C. Code. Ann. § 23-110, requesting that the court vacate their convictions based on new evidence and a claim of actual innocence. Judge John H. Suda held that the new evidence claims were barred by the two-year statute of limitations found in SupeR. Ct. CRiM. R. 33. United States v. Eastridge, Nos. F-53482-75, F-53843-75, F-53485-75, slip op. at 2 (D.C.Super.Ct. Feb. 14,1996). See also id. at 9 (“Defendants may not subvert Rule 33’s provision and statutory time limitations based on newly discovered evidence by alleging that the claims fall under § 23-110.”). In the alternative, the court found that the new evidence did not outweigh the testimony presented at trial as it consisted primarily of affidavits from witnesses who could have testified at trial, along with an affidavit from Mr. Jones recanting his trial testimony. Id. The court found that this evidence did not meet the “actual innocence” standard set forth in Herrera v. Collins, 506 U.S. 390, U3 S.Ct. 853, 122 L.Ed.2d 203 (1993) and therefore did not warrant vacation of Petitioners’ sentences. Id. at 9,11. In a divided decision, the District of Columbia Court of Appeals affirmed, finding ■ that the new-evidence claims were time-barred by the two-year time limitation found in SUPER. CT. CRIM. R. 33. Diamen v. United States, 725 A.2d 501, 507-08 (D.C.1999). The appeals court also rejected Petitioners’ contention that the Rule, upheld on direct appeal, was unconstitutional because, “as a successor division” to the panel that dismissed the appeal, it could not “second-guess” that decision simply because it “disagrees with the earlier division’s legal analysis and perceives a constitutional violation where the earlier division found none.” Diamen, 725 A.2d at 510. Although the court thus concluded that it lacked authority to consider the constitutionality of the Rule, it also stated that Petitioners had “failed to demonstrate that there was evidence available to them at the time of trial which could have had a significant impact on the outcome if the rule had been relaxed.” Id. at 510' n. 25. Finally, the court held that because the new-evidence claim was time-barred and because the constitutional claim was not viable, Judge Suda properly refused to convene an evidentiary hearing. Id. at 513. In dissent, Judge Ruiz stated that the time limitation of Rule 33 did not apply to motions filed under Section 23-110 and that the majority’s decision rendered Section 23-110 “inadequate and ineffective” when compared with federal habeas relief. Id. at 516 (J. Ruiz dissenting). Judge Ruiz “ventur[ed] that the majority’s narrow interpretation of our habeas statute, if allowed to prevail, could subject us to unprecedented federal court habeas review under § 23-110(g).” Id. at 517. y. FEDERAL HABEAS PETITION On December 21, 2000, twenty-five years after the murder of Johnnie Battle, Messrs. Eastridge, Diamen, and Sousa petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Under Section 2241, a prisoner who is being detained in violation of the United States Constitution may apply for a writ of habeas corpus in federal court. The Petition proposed that “constitutional violations have resulted in the conviction of several men who are actually innocent.” Petition for Habeas Corpus at 12. The Government opposed the' Petition, arguing that Petitioners were attempting to relitigate unsuccessful claims made in earlier post-trial motions and appeals in the local courts of the District of Columbia. Furthermore, the Government asserted that the grounds for the habeas petition were legally infirm because Petitioners had failed to demonstrate that the remedy available for such review under the law of the District of Columbia was ineffective of inadequate. These arguments presented this Court with a difficult question regarding the intersection of District of Columbia and Federal habeas law. The District of Columbia Court Reform and Criminal Procedure Act, Pub.L. No. 91-358 (1970) (“DCCRCPA”) transferred jurisdiction over purely local matters from the federal courts to the Superior Court of the District of Columbia, with appeals to the District of Columbia Court of Appeals. The DCCRCPA contains a provision allowing prisoners who were sentenced in the Superior Court to challenge their convictions or sentences. Enactment of the DCCRCPA “entirely divested the federal courts of jurisdiction to hear habeas corpus petitions by prisoners who had a section 23-110 remedy available to them, unless the petitioner could show that the section 23-110 remedy was ‘inadequate or ineffective,’ an exception that we will call the ‘safety valve.’ ” Blair-Bey v. Quick, 151 F.3d 1036, 1042 (D.C.Cir.1998) (citations omitted). After briefing and oral argument, this Court found that the District of Columbia Court of Appeals in Diamen had misapplied Schlup, failing to appreciate the significance of Petitioners’ claims of both actual innocence and a constitutional violation of their rights at trial. See Eastridge v. United States, 00-3045(RMC), Hearing Tr. at 41-51 (D.D.C. May 24, 2004). Deciding that the Court of Appeals had grafted additional requirements, including the local statute of limitations, onto Petitioners’ Section 23-110 claim, the Court concluded that the remedy available in the local courts of the District of Columbia was inadequate or ineffective. Accordingly, it ordered an evidentiary hearing to determine whether, in light of new evidence, the Petitioners were entitled to a substantive review of their constitutional claims. See id. VI. EVIDENTIARY HEARING ON PETITION FOR HABEAS CORPUS In December 2004, the Court conducted a three-day evidentiary hearing at which the Petitioners sought to disprove the Government’s theory of the case at trial — that Petitioners had chased Mr. Battle on foot with “knives drawn.” Further, to the extent the Government’s theory changed either at trial or after the fact, Petitioners sought to demonstrate that, given all the evidence available now, no reasonable juror could find them guilty of the murder of Mr. Battle. Through testimony from new witnesses and new evidence from witnesses who appeared at trial but could not be questioned under the Rule, Petitioners attempted to show that: 1) the blood evidence was not inculpatory; 2) that it would have been temporally impossible for the Petitioners to have chased Mr. Battle on foot to the Roundtable, returned to Fes-senden Street without being seen, and then have driven south in full view on Wisconsin Avenue in the green Plymouth; 3) the knives used to kill Mr. Battle belonged to Mr. Jennings and Mr. Barber; 4) Messrs. Jennings, Barber, and Wood inculpated themselves through statements and actions after the murder; 5) Dorothy Willetts was not credible and her testimony explicitly refuted; and 6) Mr. Jones now confesses that he, along with Messrs. Jennings, Barber, and Wood, killed Mr. Battle. In often emotional tones, Mr. Eastridge testified at the 2004 Hearing about the events of November 1, 1974, his incarceration, and attempts to regain his freedom. His testimony was consistent with, but expanded upon, his trial testimony. After the Pagans left the Godfather, Mr. Eastridge walked around the corner onto Fessenden Street to the back door of the green Plymouth, where he sat down on the back seat with his legs on the sidewalk. Id. at 17. He saw Mr. Battle fire the first shot and “jumped up and a shot hit the sidewalk and sparks flew. I thought I was being, you know, shot at. I ran to the corner here [indicating an alley off Fessen-den on an exhibit] and I heard another shot_” Id. at 18. Clutching a bottle of Jim Beam whiskey, .Mr. Eastridge ran to the corner of Wisconsin and Fessenden and continued running ten or fifteen feet down Wisconsin Avenue. Id. See id. at 38. From that position he observed three people chasing Mr. Battle across the street and onto Emery Place. Id. at 19. Mr. Eastridge then saw Mr. Richter’s car rounding the corner from Fessenden onto Wisconsin, going south toward Virginia. Id. Mr. Eastridge headed back up Wisconsin Avenue and saw Mr. Sousa in the green Plymouth at the corner of Fes-senden and Wisconsin. Mr. Sousa slowed down and Mr. Eastridge climbed into the back seat. Id. at 20. The car drove south on Wisconsin and took the first left onto Emery Place. Id. at 21. After making another left on 41st Street, the car drove north to Fessenden Street, where they picked up Mr. Jones. Id. at 22. When Mr. Jones got into the car, Mr. Eastridge handed him some newspaper to wipe blood off his hands.. Id. Mr. Sousa also testified at the 2004 Hearing in a manner consistent with his trial testimony. Mr Sousa drove Mr. Eas-tridge’s .car with Messrs. Eastridge, Dia-men, Wood, Jennings, and Barber to the Godfather. 2004 Hearing 12/8/04 Tr. at 25 (Sousa). After exiting the Godfather, Mr. Sousa walked north on Wisconsin Avenue and east on Fessenden to the Eastridge cai’ at the driver’s side, on the street. Id. at 29. He ducked down behind the car when Mr. Battle fired his first shot. Id. at 30. Mr. Sousa was left alone once the Richter car left with the wounded Mr. Hunter. He climbed into the green Plymouth and began to pull away. Id. at 33. As he did so, he noticed Mr. Diamen on Fessenden Street and picked him up. Id. at 33. Mr. Sousa saw Mr. Eastridge just as he was rounding the corner from Fes-senden onto Wisconsin, going south, so he picked him up too. They drove south on Wisconsin Avenue and turned at the first left, onto Emery Place where Mr. Eas-tridge had seen the chase head, turned left at the first street (41st Street N.W.) going north, and left again onto Fessenden. Id. at 34. On Fessenden, Mr. Sousa stopped to pick up Mr. Jones. Id. at 35. Mr. Sousa also testified to a prior sexually-intimate relationship with Ms. Wil-letts, which he had ended and which had caused Ms. Willetts to become vengeful and angry, as demonstrated by Ms. Wil-letts’s call to Mrs. Sousa to report the affair after it was over. Id. at 41. Ms. Heim testified at the 2004 Hearing, revealing for the first time that she had never met Messrs. Sousa and Eastridge before the night Mr. Battle was killed, but that Mr. Jones was her boyfriend and she knew the others as friends of Mr. Jones. 2004 Hearing 12/7/04 Tr. at 44 (Heim). Unlike at trial, where she testified generally that people “scattered” after the shooting, Ms. Heim testified at the 2004 Hearing that she saw Mr. Jones running toward Wisconsin Avenue, pursuing Mr. Battle, who had already begun his flight across Wisconsin Avenue. Id. at 55. Because she was panicked, she did not notice either of the Petitioners. Id. Within minutes of the shooting, Messrs. Richter, Hunter, and Greenwood, along with Ms. Summers and Ms. Heim, departed for a Virginia hospital. Id. at 57. The green Plymouth was still parked on Fessenden when they drove off. Id. at 56. Petitioners’ counsel also questioned Ms. Heim about the Grand Jury testimony of Mr. Jennings and Mr. Wood. Neither man testified at the trial. However, Mr. Jennings told the Grand Jury that, after the incident at JJ’s, both he and Mr. Wood decided not to go to the Godfather. Id. at 48-49. Mr. Wood’s Grand Jury testimony was substantially similar, adding that Mr. Jennings had driven him home and that he was in “no way involved in any of the events that took place at or near the Godfather Lounge .... ” Id. at 50 (quoting Wood’s Grand Jury testimony). Ms. Heim reaffirmed her trial testimony that both Mr. Jennings and Mr. Wood were at the Godfather on November 1, 1974 and that they were present during the encounters with Messrs. Battle, Brown, and Allen. Id. at 53. This Grand Jury testimony was not provided to the defense for use at trial. While defense counsel repeatedly emphasized that Mr. Jennings and Mr. Wood, among others, were in the group at the Godfather — as a way to suggest that others might have been the murderers — no one sought to introduce the testimony that would suggest they might have had guilty minds and lied to the Grand Jury. See, e.g., Trial Tr. at 2058. There is no doubt that the prosecution was aware before trial that the Jennings/Wood claim of distance from the Godfather was contradicted. See 2004 Hearing, Govt. Exh. 20 (Statement of Chesley Barber) at 2 (stating that while running back to.Virginia from the Godfather, he ran into ME Jennings who was also fleeing). Such information would have been probative of defendants’ innocence, demonstrating that someone had lied about being present. Further disputing the Grand Jury testimony, Ms. Heim stated on direct examination at the 2004 Hearing that she and others gathered at Mr. Richter’s house after dropping Mr. Hunter at a hospital emergency room. Messrs. Barber and Jennings arrived looking “distraught” and stated that they “got to lay low” and “that they had run all the way from D.C.” 2004 Hearing 12/7/04 Tr. at 59 (Heim). This testimony was disallowed by the trial court’s Rule because it would have tended to implicate Mr. Richter. Trial Tr. at 1807-08. Michael Grayson, a former Pagan who had no involvement in the events of November 1,1974, testified briefly at the 2004 Hearing about a conversation he had with Mr. Wood in 1979 regarding the killing of Mr. Battle. During this conversation, Mr. Wood allegedly acknowledged that he and Mr. Jennings had indeed been present at the Godfather and were involved in the murder. And at that point, he told me that himself [Mr. Wood], Slick [Mr. Jennings], Slack [Mr. Jones] and Chesley Barber, the four of those were involved in the actual murder. He didn’t tell me, I don’t know what part anyone played in it. But he did tell me that Slack, Mr. Jones had tackled, I can’t remember the gentleman’s name. I’m sorry. And I know that Wrench [Mr. Wood] felt pretty bad that these guys were doing time and he wasn’t because, you know, as Pagans, you know, it’s just like we were taught when we were kids. You don’t tell a tale, but you also take your own weight. And these brothers here, did between 20 and 30 years of their lives for something they didn’t do. 2004 Hearing 12/8/04 Tr. at 89 (Grayson). This testimony was confirmed by Mr. Jones, who appeared with his own counsel to testify at the 2004 Hearing to admit to his participation in Mr. Battle’s murder. Mr. Jones was an obviously reluctant witness; he has re-directed his life and did not want to revisit the Johnnie Battle murder. For years, he had offered unsworn declarations of Petitioners’ innocence but had refused to identify the guilty as long as they were alive. This time, he testified clearly under oath about his role and the roles of others, and the Court found him to be a credible witness. Mr. Jones testified that twelve persons went to the Godfather on November 1, 1974, including Messrs. Eastridge, Sousa, Barber, Wood, Jennings, and Diamen. Unlike his testimony at trial, Mr. Jones recounted with specificity the events that led up to Mr. Battle’s death. “The man that was shooting ... shot the guy next to me, and shot a couple more times. Shot at the guy to the right of me. We were, our backs were to the cars. So there was no where to go. And he was back peddling. So we went at him because there was nothing else to do.” 2004 Hearing 12/8/04 Tr. at 61 (Jones). Mr. Jones and others gave chase down Wisconsin Avenue and across the small strip of grass at the intersection of 42nd Street and Wisconsin. Id. at 62. Mr. Jones dropped his claim that Mr. Battle shot again and that Mr. Jones dove behind a tree. See Trial Tr. at 2429. To the contrary, he testified in a detailed fashion that he ran after Mr. Battle and chased him south across Wisconsin Avenue to the three-way intersection of Wisconsin, 42nd and Emery, east on Emery Place to an alley half-way down the block, and south down the alley, emerging on Ellieott Street at the parking lot of the Roundtable Restaurant. 2004 Hearing 12/8/04 Tr. at 62 (Jone