                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0138p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                            Petitioner-Appellant, -
 ELEM RAY FULCHER,
                                                     -
                                                     -
                                                     -
                                                         No. 03-6216
         v.
                                                     ,
                                                      >
 JOHN MOTLEY, Warden,                                -
                            Respondent-Appellee. -
                                                    N
                      Appeal from the United States District Court
                   for the Western District of Kentucky at Louisville.
                 No. 02-00674—Charles R. Simpson III, District Judge.
                                          Argued: December 2, 2005
                                     Decided and Filed: April 18, 2006
                Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Chad A. Readler, JONES DAY, Columbus, Ohio, for Appellant. Ian G. Sonego,
OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Chad
A. Readler, Marc A. Fulkert, JONES DAY, Columbus, Ohio, for Appellant. Ian G. Sonego,
OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. Gerald L. Gulley,
Jr., GULLEY OLDHAM, PLLC, Knoxville, Tennessee, for Amicus Curiae.
       COOK, J., delivered the opinion of the court, in which OLIVER, D. J., joined. CLAY, J.
(pp. 18-34), delivered a separate concurring opinion.
                                              _________________
                                                  OPINION
                                              _________________
        COOK, Circuit Judge. Elem Ray Fulcher, currently serving a life sentence for murder,
burglary, and robbery, appeals the denial of his petition for a writ of habeas corpus. The evidence
against Fulcher included statements from a police station interview with his then girlfriend, Patricia
Sue Ash, taped soon after the crime. The couple later married; Ash invoked marital privilege under



         *
          The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                          1
No. 03-6216              Fulcher v. Motley                                                                  Page 2


Kentucky law1 and was thus unavailable for cross-examination at Fulcher’s trial. Fulcher contends
that the admission of Ash’s statements violated his rights under the Sixth Amendment’s
Confrontation Clause, according to both the clearly established law at the time and the later case of
Crawford v. Washington, 541 U.S. 36 (2004), which he argues should apply retroactively. We find
that the admission of Ash’s statements did violate Fulcher’s clearly established rights and that the
error was not harmless. We thus REVERSE and REMAND to the district court for entry of the
writ.
                                 I. Factual and Procedural Background
                                              A. Factual History
        On December 22, 1991, Charlie Bramer was found beaten and stabbed to death in his home
in Jefferson County, Kentucky. In April 1994, Fulcher was convicted of burglary, robbery, and
Bramer’s murder. The prosecution’s case substantially consisted of the testimony of Terry Wright,
Fulcher’s friend and alleged accomplice, the police interview with Ash, the testimony of two
inmates to whom Fulcher admitted committing the murder, and the testimony of a third inmate, to
whom Fulcher offered $500 to provide an alibi. No murder weapon was found, and Fulcher’s
fingerprints were not discovered at the crime scene.
        Wright’s testimony supplied the bulk of the facts. He and Fulcher were drinking and
watching football at Fulcher’s house on the day of the crime. The two then went for a drive and
decided to go to the home of Charlie Bramer to steal some money. They entered the home while
Bramer lay asleep on the couch; Wright watched Bramer, and Fulcher searched the bedroom.
Wright then heard a car come down the driveway. He went to the front door to look out and
accidently hit the security chain on the door, waking Bramer. Wright ran out, taking the front door
key with him, and got into Fulcher’s car. Fulcher joined him. Bramer came out, walked over to the
car, reached inside, and smacked Fulcher on the head.
       Fulcher asked Bramer if he could talk to him for a minute, and the two walked back into the
house. Wright initially stayed in the car but then went inside to find Fulcher hitting Bramer in the
head with a hammer. Wright testified that there was nothing he could do to stop Fulcher. Wright
again ran out, wiped his fingerprints off of the front door, and returned to the car. Three or four
minutes later, Fulcher returned covered in blood. He told Wright, “This makes us tighter than
anybody,” and then drove Wright home. Fulcher told Wright that he killed Bramer because Bramer
would otherwise have been able to identify them.
        On January 2, 1992, Patricia Sue Ash was pulled over in a car matching the description of
Fulcher’s vehicle. The police took her to the station for questioning, at which point she provided
the taped interview that lies at the heart of this appeal. Ash stated in the interview that sometime
before Christmas Fulcher asked her to wash a pair of grey sweatpants that had blood on them—the
result, Fulcher said, of a fight in which he and Wright had been involved. She stated that later
Wright asked her to dispose of a key that she did not think belonged to her, Wright, or Fulcher. Ash
could not recall whether Fulcher was present for the discussion, but Wright later testified that he
was. Ash admitted that she threw the key into a sewer, where it was recovered by the police.
       William Mucker and Nick Mantilli, state inmates, testified that Fulcher admitted to each of
them that he killed Bramer. In addition, Mucker, who had known Fulcher before the murder and
who was an inmate with Fulcher, testified that Fulcher told him to see him after Mucker’s release.

         1
          Kentucky’s pre-1992 rules of evidence, including the marital privilege in KY. REV. STAT. ANN. § 421.210(1),
see Sloven v. Commonwealth, 962 S.W.2d 845, 851 (Ky. 1997), are carried forward for later trials of pre-1992 crimes
by Kentucky Rule of Evidence 107(b) (2005).
No. 03-6216           Fulcher v. Motley                                                         Page 3


Fulcher would then tell Mucker where the murder weapons were located, and Mucker would dispose
of them. Another inmate, Norman Lewis, testified that Fulcher offered him $500 to provide an alibi.
                                        B. Litigation History
         Basic Procedural History. Fulcher was convicted of murder, first degree robbery, and first
degree burglary. He directly appealed his conviction to the Kentucky Supreme Court, arguing that
(1) the trial court denied him a fair trial by not granting a mistrial after Wright volunteered from the
stand that he had taken a polygraph test; (2) the trial court denied him due process by failing to
instruct the jury on lesser offenses, including manslaughter, second degree burglary, and theft by
unlawful taking; and (3) the trial court denied him a fair trial and violated his Sixth Amendment
right to confront witnesses by admitting Ash’s tape-recorded statements.
        The Kentucky Supreme Court rejected all of Fulcher’s arguments on the merits. The court
affirmed the conviction on June 20, 1996, and it denied his petition for rehearing on August 26. On
August 15, 1997, Fulcher moved in the state trial court to vacate his sentence pursuant to Kentucky
Rule of Criminal Procedure 11.42, alleging various instances of ineffective assistance of counsel.
The trial court denied the motion, and on May 25, 2001, the Kentucky Court of Appeals affirmed
the denial. Fulcher then petitioned the Court of Appeals for a rehearing. The Court of Appeals
denied his petition on August 10, 2001. A year later, on August 14, 2002, the Kentucky Supreme
Court denied his motion for discretionary review of the Court of Appeals’s decision. On November
7, 2002, he filed this petition for a writ of habeas corpus in the United States District Court for the
Western District of Kentucky.
         Fulcher raised the same three arguments in his habeas petition as he had on direct review:
lack of a fair trial stemming from Wright’s “lie detector” statement; lack of a fair trial and due
process violations from failure to instruct the jury on the lesser offenses; and, most relevant to this
appeal, lack of a fair trial and violation of his Sixth Amendment confrontation right by the admission
of Ash’s statements. A federal magistrate judge recommended denying Fulcher’s petition. He found
that although Fulcher had preserved his Sixth Amendment challenge, habeas relief was inappropriate
because the Kentucky Supreme Court’s decision was neither “clearly contrary to” nor “an
unreasonable application of” the United States Supreme Court precedent in Chambers v. Mississippi,
410 U.S. 284 (1973). The district court accepted the magistrate’s recommendations, dismissed
Fulcher’s petition, and denied his request for a certificate of appealability.
        On September 3, 2003, Fulcher filed his notice of appeal, followed by a request for a
certificate of appealability from this court. On August 19, 2004, this court granted Fulcher the
certificate “regarding the issue of whether his rights under the Confrontation Clause were violated
when a tape-recorded statement was admitted into evidence.”
        Preservation of his Sixth Amendment Argument. Because Kentucky contends that Fulcher
has waived the Confrontation Clause challenge he raises in this appeal, we consider his filings with
respect to the issue.
        Prior to trial, Fulcher filed a motion in limine to exclude Ash’s statements, arguing, among
other things, that their admission would violate his Confrontation Clause right as defined by Ohio
v. Roberts, 448 U.S. 56, 66 (1980) (holding that the Sixth Amendment requires that hearsay
statements have “indicia of reliability”—i.e., either fall into a “firmly rooted hearsay exception” or
have “particularized guarantees of trustworthiness”), Lee v. Illinois, 476 U.S. 530, 541 (1986)
(holding that inculpatory hearsay statements by accomplices are “presumptively unreliable”), and
Idaho v. Wright, 497 U.S. 805, 822 (1990) (holding that to have “particularized guarantees of
trustworthiness,” hearsay evidence “must possess indicia of reliability by virtue of its inherent
trustworthiness, not by reference to other evidence at trial”). Fulcher also cited the Kentucky case
No. 03-6216                Fulcher v. Motley                                                                        Page 4


of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990), which allowed an unavailable party’s
confession to be admitted against his alleged accomplice, for the proposition that a non-testifying
codefendants’s confession is presumptively unreliable. As discussed below, the more relevant
holding in Taylor was that statements against penal interest may only be admitted based upon a four-
factor test of trustworthiness.2 Fulcher did not cite that test in his motion.
        Next, as recounted in his brief on direct appeal before the Kentucky Supreme Court (J.A. 54),
Fulcher objected to the admission of Ash’s statements before and throughout the trial. The brief
offers few specifics as to the content of those objections, other than noting that the pretrial objection
was “overruled by the trial court as to . . . whether or not the statement qualified as being one against
Ms. Ash’s penal interest.”
        The section of the brief recounting these pretrial and trial objections was entitled, “THE
TRIAL COURT ERRED TO APPELLANT’S SUBSTANTIAL PREJUDICE AND DENIED
APPELLANT HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO CONFRONT WITNESSES
AGAINST HIM UNDER THE SIXTH AMENDMENT . . . WHEN IT ALLOWED, OVER
APPELLANT’S OBJECTION, THE ADMISSION OF THE HEARSAY STATEMENT OF
PATRICIA SUE ASH FULCHER.” (J.A. 54.) In that section, Fulcher set out the facts underlying
his Sixth Amendment challenge: During a police interrogation, Ash gave a statement that was later
admitted at trial; Ash did not testify at trial, and she was never subjected to cross-examination. In
the brief, Fulcher did not expressly address Roberts, Lee, or Wright. Instead he argued that the trial
court erred by failing to apply Taylor’s four-factor test to Ash’s statements. (J.A. 60-61.)
        In his habeas petition, Fulcher asserted that “Petitioner suffered substantial prejudice that
deprived Petitioner of a fair trial and his right to confrontation under the Sixth Amendment . . . when
the trial court allowed over Petitioner[’s] objection, the admission of the hearsay statement of
Patricia Sue Ash Fulcher.” (J.A. 15.) The petition offered no further detail.
        Then, in his objections to the magistrate’s report, Fulcher argued for the first time that
Taylor, which he himself had several times cited, was the wrong legal standard to apply to his
case—and specifically that the magistrate’s report, because it relied on Taylor, was contrary to the
clearly established federal law in Roberts, Lee, Wright, Lilly v. Virginia, 527 U.S. 116 (1999), and
Williamson v. United States, 512 U.S. 594 (1994). Fulcher also argued, though less emphatically,
that Ash’s statements did not “meet the high standard for admissibility as outlined in Chambers v.
Mississippi.” (J.A. 232.)
       Fulcher’s brief in this appeal focuses squarely on the inconsistency of the proceedings below
with Sixth Amendment Confrontation Clause jurisprudence—under both Crawford and pre-
Crawford case law.
                                                      II. Analysis
                 A. Fulcher Did Not Waive His Sixth Amendment Arguments as to
                               Either Crawford or its Predecessors
       Kentucky contends that Fulcher waived his current Confrontation Clause arguments because
on direct appeal he failed to “[argue] that the Taylor case was incorrectly decided or applied an
erroneous constitutional standard.” (Appellee’s Br. 23.) Indeed, “[t]he only two cases that Fulcher


         2
           Taylor requires courts considering the admissibility of hearsay statements against penal interest to examine:
“(1) [t]he time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case;
(3) the extent to which the declaration is against the declarant’s penal interest; and (4) the availability of a declarant as
a witness.” 821 S.W.2d at 74.
No. 03-6216           Fulcher v. Motley                                                             Page 5


asked the Kentucky Supreme Court to apply on direct appeal were [Chambers] and [Taylor].” (Id.)
Kentucky contends accordingly that “[the court] cannot be faulted for applying the very precedents
that Fulcher asked it to apply to his case” (emphasis removed) and moreover that “habeas relief is
not available when the petitioner or his counsel invited the error about which he complains.”
(Appellee’s Br. 24 (citing Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998); Fields v.
Bagley, 275 F.3d 478, 485 (6th Cir. 2001) (citation omitted)).) Kentucky also contends that Fulcher
has waived his current Confrontation Clause arguments because his objections to the magistrate’s
report argued that Chambers did apply to his case, but was misapplied by the Kentucky Supreme
Court. (Appellee’s Br. 24.)
                                         1. Waiver Standard
       Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003), provides a thorough account of the
Sixth Circuit requirements for preserving constitutional claims:
                Federal courts do not have jurisdiction to consider a claim in a habeas
       petition that was not “fairly presented” to the state courts. A claim may only be
       considered “fairly presented” if the petitioner asserted both a factual and legal basis
       for his claim in state court. Although general allegations of the denial of a “fair trial”
       or “due process” have been held insufficient to “fairly present” federal constitutional
       claims, a petitioner need not recite “book and verse on the federal constitution.”
               A petitioner can take four actions in his brief which are significant to the
       determination as to whether a claim has been fairly presented: “(1) reliance upon
       federal cases employing constitutional analysis; (2) reliance upon state cases
       employing federal constitutional analysis; (3) phrasing the claim in terms of
       constitutional law or in terms sufficiently particular to allege a denial of a specific
       constitutional right; or (4) alleging facts well within the mainstream of constitutional
       law.”
(Citations omitted.) Finding that Newton’s brief “provided a detailed recitation of the facts and
specifically stated that the trial court’s refusal to instruct the jury on the issue of self-protection
against multiple aggressors ‘violated [his] right to due process of law under the Fifth and Fourteenth
Amendments of the United States Constitution,’” id. (citation omitted), the court found his
constitutional arguments preserved.
                                  2. As Applied to the Facts Here
        Fulcher did not waive his Confrontation Clause arguments because at every stage of the
process, he took some combination of the four actions discussed in Newton. In each of his briefs
Fulcher asserted that the admission of Ash’s statements violated his rights under the Confrontation
Clause—“terms sufficiently particular to allege a denial of a specific constitutional right.” Id. And
each “alleg[ed] facts well within the mainstream of constitutional law,” id., specifically, that Ash’s
out-of-court statements were asserted for their truth, and that she was unavailable for cross-
examination. That he cited the wrong cases in support of his constitutional claim is no basis for
default. Since “[t]here is no requirement that the petitioner cite to cases that employ federal
constitutional analysis where he has phrased his claim in terms of a denial of a specific constitutional
right,” Newton, 349 F.3d at 877 (emphasis added), penalizing a party for citing the wrong cases
would create the perverse incentive to cite no cases at all. Cf. Carter v. Bell, 218 F.3d 581, 606 (6th
Cir. 2000) (“We do not require word-for-word replication of the state claim in the habeas corpus
petition in order to address the merits therein, only that the petitioner ‘fairly present’ the substance
of each of his federal constitutional claims to the state courts.”).
No. 03-6216                Fulcher v. Motley                                                      Page 6


        As for the “invited error doctrine,” Fulcher’s reply brief correctly notes that “the invited error
doctrine applies only where a defendant affirmatively seeks a ruling from a trial court and then later
asserts that the ruling he requested was erroneous.” (Reply Br. 8.) See United States v. Sharpe, 996
F.2d 125, 129-30 (6th Cir. 1993) (defendant, having convinced the court that he was not guilty under
one statute, was barred from later arguing that a second statute could not apply to his conduct
because the first one already did); Harvis v. Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir. 1991)
(plaintiff, after requesting a jury verdict, was barred from asserting the impropriety of that verdict);
All Am. Life and Casu. Co. v. Oceanic Trade Alliance Council Int’l, Inc., 756 F.2d 474, 479-80 (6th
Cir. 1985) (refusing to exclude otherwise inadmissible evidence because the plaintiff had “invited”
witnesses to make the references it later sought to exclude); see also Fields, 275 F.3d at 485 (finding
no invited error where respondent charged that petitioner’s counsel had intentionally left petitioner
without appellate counsel so as to create a basis for reversal by the Supreme Court); Leverett v.
Spears, 877 F.2d 921, 924 (11th Cir. 1989) (petitioner may not allege fundamental error in jury
instructions he himself argued for and submitted). Kentucky points to no use of the “invited error”
doctrine to prevent a plaintiff from re-arguing a constitutional claim that he previously argued
incorrectly by citing the wrong precedent.
        We thus find that Fulcher has preserved his argument that the admission of Ash’s statements
violated his Confrontation Clause rights.
  B. The Kentucky Supreme Court’s Decision Violated Clearly Established Federal Law
                                                1. Habeas Standard
         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may
only grant a prisoner’s petition for a writ of habeas corpus if it finds that the state court’s
adjudication “resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established3 Federal law, as determined by the Supreme Court of the United States[.]” 28
U.S.C. § 2254(d)(1). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). And “[a]
state-court decision will certainly be contrary to [the Supreme Court’s] clearly established precedent
if the state court applies a rule that contradicts the governing law set forth in [Supreme Court]
cases.” Id. at 405 (emphasis added). For example, a habeas petition could be granted if, in spite of
the rule in Strickland v. Washington, 466 U.S. 668, 694 (1984)—that a petitioner urging ineffective
assistance of counsel need only show a “reasonable probability” of prejudice—a state court required
the petitioner to show prejudice by a preponderance of the evidence. Williams, 529 U.S. at 405-06.
When a state court commits such an error, “a federal court [is] unconstrained by § 2254(d)(1),” id.
at 406, and de novo review is appropriate. See Romine v. Head, 253 F.3d 1349, 1365 (11th Cir.
2001).
2. The Kentucky Supreme Court’s Decisional Rule Was Contrary to Clearly Established Federal
                     Law, Therefore De Novo Review Is Appropriate
         The Clearly Established Law. The Confrontation Clause of the Sixth Amendment provides
that a criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. At the time of the Kentucky Supreme Court’s ruling in 1996, Confrontation
Clause challenges were analyzed according to the rule in Ohio v. Roberts—that hearsay statements
by unavailable declarants were only admissible if they bore “adequate indicia of reliability,” by


        3
            Fulcher does not put forth an argument under the “unreasonable application” clause.
No. 03-6216               Fulcher v. Motley                                                                      Page 7


either 1) “fall[ing] within a firmly rooted hearsay exception,” or 2) possessing “particularized
guarantees of trustworthiness.” 448 U.S. 56, 66 (1980). As for the first possibility, the Supreme
Court “[had] recognized that statements admitted under a ‘firmly rooted’ hearsay exception [were
of a sort] so trustworthy that adversarial testing would add little to their reliability,” Idaho v. Wright,
497 U.S. 805, 820-21 (1990). For example, dying declarations were declared admissible by the
1895 case of Mattox v. United States—notwithstanding the obvious Confrontation Clause
problems—because “the sense of impending death [was] presumed to remove all temptation to
falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath.” 156
U.S. 237, 244. As for the second possibility, statements bearing “particularized guarantees of
trustworthiness,” such statements had to be “at least as reliable as evidence admitted under a firmly
rooted hearsay exception,” Wright, 497 U.S. at 821; and in assessing that reliability, courts were
forbidden to consider corroborating evidence. Id. at 822 (rejecting the “contention that evidence
corroborating the truth of a hearsay statement [could] properly support a finding that the statement
bears ‘particularized guarantees of trustworthiness’”). Instead, “[t]o be admissible under the
Confrontation Clause, hearsay evidence used to convict a defendant [had to] possess indicia of
reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id.
        By the time of Fulcher’s direct appeal, the Supreme Court had several times examined the
hearsay4 exception for statements against penal interest. In Lilly v. Virginia, 527 U.S. 116, 133
(1999), a case following Fulcher’s direct appeal, the court identified three situations in which
declarations against penal interest were offered into evidence: “(1) as voluntary admissions against
the declarant; (2) as exculpatory evidence offered by a defendant who claims the declarant
committed, or was involved in, the offense; and (3) as evidence offered by the prosecution to
establish the guilt of an alleged accomplice of the declarant.” Id. at 127. We discuss each category
in turn, and on the basis of Hill v. Hofbauer, 337 F.3d 706 (6th Cir. 2003) (discussed below), we
hold first that “accomplices’ confessions that inculpate a defendant,” Lilly, 527 U.S. at 134, were
not admissible under a firmly rooted hearsay exception according to the clearly established law at
the time of Fulcher’s direct appeal.
        The court in Lilly noted that statements in the first category, “voluntary admissions against
the declarant,” “carr[ied] a distinguished heritage confirming their admissibility.” Id. at 127
(citations omitted). But when the admission of such statements risked inculpating another person
(such that they would border on the third category), they had been held inadmissible. Id. at 128
(“[W]e have consistently either stated or assumed that the mere fact that one accomplice’s
confession qualified as a statement against his penal interest did not justify its use as evidence
against another person.”); see Bruton v. United States, 391 U.S. 123 (1968) (ordering a new trial
even after the jury had been instructed to consider one codefendant’s confession as evidence only
against him, and not against the other codefendant); Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(“Where two defendants are tried jointly, the pretrial confession of one cannot be admitted against
the other unless the confessing defendant takes the stand.”); Gray v. Maryland, 523 U.S. 185 (1998)
(applying Bruton to bar the admission of a non-testifying codefendant’s confession even after the
name of the other defendant had been redacted from it). According to the court in Lilly, the logic
of such decisions was that “because the use of an accomplice’s confession ‘creates a special, and
vital, need for cross-examination,’ a prosecutor desiring to offer such evidence must comply with
Bruton, hold separate trials, use separate juries, or abandon the use of the confession.” 527 U.S. at
128 (quoting Gray, 523 U.S. at 194-95 (1998)).




         4
           Though this was a plurality opinion, it was nonetheless the opinion of the court, as the remaining two justices
(Scalia and Thomas) believed that the Confrontation Clause barred a broader range of statements against penal interest
than did the majority. See Murillo v. Frank, 402 F.3d 786, 791 (7th Cir. 2005). Kentucky is wrong to suggest otherwise.
No. 03-6216               Fulcher v. Motley                                                                     Page 8


        Statements in the second category, which were inculpatory to the declarant but exculpatory
to the defendant, raised different constitutional concerns. Because they were offered by the accused,
their admission did not implicate Confrontation Clause concerns; rather, their exclusion threatened
Due Process protections. This was the message of Chambers v. Mississippi, 410 U.S. 284 (1973),
which held that the Due Process Clause affords criminal defendants the right to introduce into
evidence third parties’ declarations against (their own) penal interest when the statements were made
under circumstances that “provided considerable assurance of their reliability.” Id. at 300. The
Kentucky Supreme Court in the Taylor case read Chambers to require that hearsay statements
against penal interest be measured according to four factors: “(1) The time of the declaration and
the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to
which the declaration is against the declarant’s penal interest; and (4) the availability of a declarant
as a witness.” 821 S.W.2d at 74. But note the substantial difference in how the tests were applied:
The test was created in Chambers to cabin the protections afforded to defendants by the Due Process
Clause (due process prevents hearsay rules from barring the introduction of certain very reliable
exculpatory confessions); it was applied by Kentucky in Taylor to allow the prosecution to offer
inculpatory statements (category three) that the Kentucky court believed    sufficiently reliable to not
offend the Confrontation Clause. See Taylor, 821 S.W.2d at 75-76.5
         The third category included cases, like Fulcher’s (and Lilly’s), where the government sought
to introduce “a confession by an accomplice which incriminate[d] a criminal defendant.” Lee v.
Illinois, 476 U.S. 530, 544 n.5 (1986). The court in Lilly first cited Lee’s holding that such
statements were “presumptively unreliable.” 527 U.S. at 131 (“[O]ver the years . . ., the Court has
‘spoken with one voice in declaring presumptively unreliable accomplices’ confessions that
incriminate defendants.’”) (quoting Lee, 476 U.S. at 541). Lee did not explicitly hold that such
statements were not within a “firmly rooted hearsay exception,” but it implied as much by noting
that inculpatory statements by unavailable accomplices had been excluded in Bruton and Douglas
v. Alabama, 380 U.S. 415 (1965), and by proceeding to examine the statements for “particularized
guarantees of trustworthiness.”
         In Roberts, we recognized that even if certain hearsay evidence does not fall within
         “a firmly rooted hearsay exception” and is thus presumptively unreliable and
         inadmissible for Confrontation Clause purposes, it may nonetheless meet
         Confrontation Clause reliability standards if it is supported by a “showing of
         particularized guarantees of trustworthiness.” Ibid [448 U.S. at 66]. . . . Illinois’
         asserted grounds for holding Thomas’ statement to be reliable with respect to Lee’s
         culpability simply do not meet this standard.
Lee, 476 U.S. at 543-44 (emphasis added). As the court in Lilly noted, it would have been
unnecessary for the court in Lee to seek such “particularized guarantees of trustworthiness” if the
statements fell within a “firmly rooted hearsay exception.”
         Our holdings in Bruton[,] . . . Cruz v. New York, 481 U.S. 186 (1987), Gray v.
         Maryland, . . . and Lee v. Illinois . . . were all premised, explicitly or implicitly, on
         the principle that accomplice confessions that inculpate a criminal defendant are not
         per se admissible (and thus necessarily fall outside a firmly rooted hearsay
         exception), no matter how much those statements also incriminate the accomplice.


         5
           There is no reason to think that the Constitution demands equivalence in these tests. Defendants may very
well have a Due Process right to introduce hearsay evidence in their defense that is less reliable than the evidence that
prosecutors may introduce in their case in chief without violating the Confrontation Clause. Put differently, the
Constitution may afford defendants greater protection from inculpatory hearsay evidence (under the Confrontation
Clause) than it provides to the state by limiting the exculpatory hearsay evidence that defendants have a Due Process
right to present in their defense.
No. 03-6216           Fulcher v. Motley                                                         Page 9


527 U.S. at 134 n.5. The court in Lilly thus cast the holding most relevant to Fulcher’s case as
follows: “The decisive fact, which we make explicit today, is that accomplices’ confessions that
inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that
concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134 (emphasis
added).
        We held in Hill v. Hofbauer, 337 F.3d at 717, that Lilly did not announce a “new rule” of
criminal procedure, and thus could apply to cases on collateral review without regard to
§ 2254(d)(1). See Teague v. Lane, 489 U.S. 288, 301 (1989) (holding that in habeas cases, a
subsequently decided case does not present new law if it is “dictated by precedent existing at the
time the defendant’s conviction became final”). In other words, we held that what was clearly
established by Lilly was, in fact, clearly established before Lilly: “Douglas, Bruton, and Lee
evidence that the Supreme Court had clearly established the principle that a co-defendant’s custodial
confessions are unreliable and not within a ‘firmly rooted’ hearsay exception prior to Lilly.” Hill,
337 F.3d at 717. Because Douglas (1965), Bruton (1968), and Lee (1986) all pre-date the 1996
conclusion of Fulcher’s direct appeal, the principle was clearly established by that point as well.
         Kentucky disagrees, arguing on the basis of Neuman v. Rivers, 125 F.3d 315 (6th Cir. 1997),
and Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999) (applying Neuman retroactively to 1994
conduct), that by the end of Fulcher’s direct appeal it was clearly established that Ash’s statement
did fall into a firmly rooted hearsay exception—specifically, the hearsay exception in FED. R. EVID.
804(b)(3) for statements against penal interest. But in Hill we distinguished both of these cases.
We said that unlike the contested statements in Hill, which inculpated the defendant (as Ash’s do
here), “the admitted statement [in Neuman] did not inculpate the declarant’s accomplice, but only
spoke to the declarant’s role in the crime.” 337 F.3d at 717 n.5; see United States v. Franklin, 415
F.3d 537, 547 (6th Cir. 2005) (rejecting the government’s argument that the statement against penal
interest exception was firmly rooted in the Sixth Circuit because “in Neuman—the one case where
this Court suggested as much—the statements at issue were made by the defendant and inculpated
only himself”). And we noted that “[in Gilliam,] we gave only a cursory review of the ‘firmly
rooted’ exception issue, and rested our holding alternatively on two other grounds [i.e., the presence
of “particularlized guarantees of trustworthiness” and harmless error].” Hill, 337 F.3d at 717 n.5;
see Gilliam, 179 F.3d at 994 n.1 (expressly avoiding Neuman’s holding because the Supreme Court
had recently heard oral arguments in Lilly). Thus neither Neuman nor Gilliam stand in the way of
Hill’s holding that after Lee (1986) (the latest case we considered necessary to Lilly’s holding), it
was clearly established that there was no firmly rooted hearsay exception for “accomplices’
confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134.
        Nor does it matter that Hill concerned statements by a declarant who was later tried for the
crime to which he confessed, either as a codefendant in a consolidated trial (as in Hill), or as a sole
defendant in a separate trial (as in Lilly). A prosecutor’s later decision to try a declarant does not
affect whether the declarant’s statements possessed sufficient “indicia of reliability” at the time they
were made. The test of whether such indicia exist references only the substance and circumstances
of the hearsay statement’s declaration:
       [The] standard [for determining whether a hearsay exception is firmly rooted] is
       designed to allow the introduction of statements falling within a category of hearsay
       whose conditions have proven over time “to remove all temptation to falsehood, and
       to enforce as strict an adherence to the truth as would the obligation of an oath” and
       cross-examination at a trial.
Lilly, 527 U.S. at 126 (quoting Mattox, 156 U.S. at 244) (emphasis added). The logic of Lilly’s
holding is simply that because “an accomplice’s statements that shift or spread the blame to a
No. 03-6216           Fulcher v. Motley                                                       Page 10


criminal defendant” may evidence such a temptation for falsehood, they cannot fall within a firmly
rooted hearsay exception. Lilly, 527 U.S. at 133 (quoted in Hill, 337 F.3d at 713-14).
        Having considered the clearly established law with respect to Roberts’s “firmly rooted”
category, we now address the clearly established law at the time of Fulcher’s direct appeal regarding
certain features of the “particularized guarantees of trustworthiness” inquiry. First, as noted above,
Wright prohibited courts from considering corroborating evidence when seeking such “guarantees.”
Second, Lee guided courts to question the reliability of confessions elicited by custodial police
interrogation, given the incentives that declarants in such circumstances face:
       Although . . . the confession was . . . voluntary for Fifth Amendment purposes, such
       a finding does not bear on the question of whether the confession was also free from
       any desire, motive, or impulse Thomas may have had either to mitigate the
       appearance of his own culpability by spreading the blame or to overstate Lee’s
       involvement in retaliation for her having implicated him in the murders.
Lee, 476 U.S. at 544. Because of the presence of such incentives, the court in Lee held that the
custodial statements in that case were not supported by “particularized guarantees of
trustworthiness.” Moreover, as Lilly would later note,
       [T]he historical underpinnings of the Confrontation Clause and the sweep of our
       prior confrontation cases offer one cogent reminder: It is highly unlikely that the
       presumptive unreliability that attaches to accomplices’ confessions that shift or
       spread blame can be effectively rebutted when the statements are given under
       conditions that implicate the core concerns of the old ex parte affidavit practice --
       that is, when the government is involved in the statements’ production, and when the
       statements describe past events and have not been subjected to adversarial testing.
527 U.S. at 137. Similarly, Williamson v. United States, 512 U.S. 594 (1994) (interpreting Federal
Rule of Evidence 804(b)(3) to not allow the admission of an accomplice’s statement against his
penal interest that inculpated the defendant), suggested (in dicta) that the motivation of a declarant
to limit her own liability was relevant to the constitutional inquiry. Although it acknowledged that
“the very fact that a statement is genuinely self-inculpatory is itself one of the ‘particularized
guarantees of trustworthiness’ that makes a statement admissible under the Confrontation Clause,”
id. at 605 (emphasis added), it noted that whether a statement was in fact self-inculpatory could be
hard to discern, since “[a] reasonable person . . . might even think that implicating someone else
would decrease his practical exposure to criminal liability, at least so far as sentencing goes.” Id.
at 604.
         To summarize, at the time the Kentucky Supreme Court affirmed Fulcher’s conviction
(1996), Roberts (1980) had identified the two ways that hearsay statements by an unavailable
declarant could be admitted without violating the Confrontation Clause: either via a “firmly rooted
hearsay exception,” or with “particularized guarantees of trustworthiness.” Though it was not made
explicit until Lilly (1999), Lee (1986) had implied that there was no firmly rooted exception for
“accomplices’ confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134. In particular,
Lee held that such statements were “presumptively unreliable” and required an examination of the
facts for indicia of reliability. In that examination, according to Wright (1990), the evidence had to
“possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other
evidence at trial.” 497 U.S. at 822. And as for what a court should look to as an indication of
reliability, in the case of a police interrogation, it included evidence that might rebut the
“reasonable” possibility that the declarant thought that “implicating someone else would decrease
his practical exposure to criminal liability, at least as far as sentencing goes.” Williamson, 512 U.S.
at 604. Finally, it was clearly established that Chambers (1973) pertained to a defendant’s right
No. 03-6216               Fulcher v. Motley                                                    Page 11


under the Due Process Clause to offer exculpatory hearsay, rather than the state’s right to offer
inculpatory hearsay without violating the Confrontation Clause.
         The Kentucky Supreme Court’s Decisional Rule. Fulcher’s brief to the Kentucky Supreme
Court challenged the admission of Ash’s statements as violating Fulcher’s Confrontation Clause
rights, but it did so by contending that the trial court misapplied the four-factor test from Taylor and
Chambers.6 The Kentucky Supreme Court in turn rejected Fulcher’s Confrontation Clause
challenge solely by concluding that the trial court applied the Taylor test correctly. The court cited
neither Roberts, nor Lee, nor Wright. (J.A. 98-101.)
        On the first factor of the Taylor test, “the time of the declaration and the party to whom
made,” the court found that “the time of the declaration and the party to whom it was made are
indeed indicative of the statements’ trustworthiness, particularly in light of the fact that Ash spoke
with police shortly after the crimes at issue had occurred.” (J.A. 100.) On the second, “the existence
of corroborating evidence in the case,” the court found two pieces of corroborating evidence: the
key, which the police found in the location that Ash had suggested (combined with Wright’s
testimony that Fulcher was present when disposing of the key was discussed); and “evidence found
at the crime scene”—presumably blood—that was “consistent with Ash’s statement that [Fulcher]
had blood on his clothes.” (J.A. 100-01.) Regarding the third, “the extent to which the declaration
is against the declarant’s penal interest,” the court found that Ash’s declaration was against her penal
interest because Ash was in a custodial setting, advised of her rights, made aware that the police
were investigating Fulcher’s involvement in the murder, and not assured that she herself was not a
suspect until after she made her statements. Moreover, the court found, Ash believed that her
statements would expose her to criminal liability—for destroying evidence and disposing of the
fruits of a crime—because she thought that Fulcher had been in a fight when she washed his
sweatpants, and because she believed the true owner was seeking the key that she had discarded.
(J.A. 101.) The fourth factor of the Taylor test, “the availability of a declarant as a witness,” was
undisputed. (Id.)
        Inconsistency Between the Kentucky Rule and Clearly Established Federal Law. The state
correctly notes that the Kentucky court’s failure to cite Roberts, Lee, or Wright in its opinion is
irrelevant to whether its decision was contrary to federal law, provided that “neither the reasoning
nor the result . . . contradicts [those cases].” Early v. Packer, 537 U.S. 3, 8 (2002). However, as
Fulcher notes, Taylor’s four-factor test, and the Kentucky Supreme Court’s application of it, were
contrary to the reasoning and the result that federal law required in at least two ways.
         First, the four-factor test required that statements against penal interest be corroborated by
the very sort of extrinsic evidence that Wright forbade courts to consider when seeking the
“particularized guarantees of trustworthiness” necessary to support hearsay that did not fall within
a firmly rooted hearsay exception. Wright instructed courts to identify indicia of inherent
reliability—without regard to “other evidence at trial”—before admitting hearsay statements by
unavailable declarants. 497 U.S. at 822. The Kentucky court directly contravened this rule with its
references to the key, Wright’s testimony, and the evidence found at the crime scene. The Taylor
test contradicted federal law because it was impossible to satisfy the demands of both.
        Second, Taylor’s four-factor test allowed the admission of statements based upon a finding
of trustworthiness that was inconsistent with the “particularized guarantees” required by the
Supreme Court. In Lee, Williamson (a non-constitutional case), and Lilly, the court noted that the
incentive that a person in police custody faces to implicate another—on the belief that doing so will
limit his or her own liability—undermines the credibility of their statements. Yet in the Kentucky


       6
           See supra, note 2.
No. 03-6216           Fulcher v. Motley                                                         Page 12


court’s view, the fact that Ash gave her statement to the police militated in favor of its admissibility.
Similarly, one point of debate in the Kentucky courts was whether Ash was sufficiently aware of her
legal jeopardy to make a statement against her penal interest. (J.A. 99.) The state argued that she
was, and the Kentucky courts agreed, notwithstanding the fact that the same conclusion made it
more likely that she would fabricate facts to limit her perceived liability. Once again, the Taylor rule
and the constitutional standard pulled in opposite directions.
         Because Ash’s statements clearly did not fall within a firmly rooted hearsay exception, and
because the Supreme Court forbade courts to seek “particularized guarantees of trustworthiness” in
the manner that Taylor’s four-part test required, we hold that the four-part test was “a rule that
contradict[ed] the governing law.” Williams, 529 U.S. at 405. De novo review, according to the law
at the time, is accordingly appropriate.
               3. Applying De Novo Review, Ash’s Statements Were Inadmissible
       Much of the above discussion is relevant to a de novo review of whether Ash’s statements
were admissible under federal law in 1996. Roberts commands that we seek “indicia of reliability”
before admitting the statements, and upon finding that statements such as Ash’s did not fall within
a firmly rooted hearsay exception, the inquiry becomes whether “particularized guarantees of
trustworthiness” support their admission (subject, of course, to the constraints of Wright and Lee).
         The above discussion establishes that accomplice confessions that inculpate criminal
defendants did not fit into a firmly rooted hearsay exception in 1996. Besides directing our attention
to Neuman and Gilliam, Kentucky does not argue otherwise. In contrast, Fulcher identifies certain
hearsay exceptions that were firmly rooted at the time, because they were “at least two centuries old
. . . [and recognized by] nearly four-fifths of the states,” White v. Illinois, 502 U.S. 346, 356 n.8
(1992) (finding firmly rooted the exception for spontaneous declarations), or because they were
recognized by the Supreme Court for over 150 years and “steeped in [Supreme Court]
jurisprudence,” Bourjaily v. United States, 483 U.S. 171, 183 (1987) (finding firmly rooted the
exception for statements by co-conspirators “in the course and in furtherance of the conspiracy”).
 Kentucky does not contend that the exception for accomplices’ confessions that inculpate criminal
defendants has a similar pedigree.
        We next ask whether particularized guarantees of trustworthiness, “inherent” to Ash’s
statements, supported their admission. Wright, 497 U.S. at 822. And for this we consider the
substance of the statements as well as the circumstances under which Ash made them. At the trial
stage, the state had the burden of proving that the statements were supported by particularized
guarantees of trustworthiness. See United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir. 1991)
(“[T]he prosecution must defeat a presumption against the admissibility . . . by showing that their
testimony possessed ‘particularized guarantees of trustworthiness.’”) (quoting Roberts, 448 U.S. at
66). But “[a]t the federal stage, the habeas petitioner, not the State, has the burden of proving that
the state courts were in error, not the other way around.” Hill, 337 F.3d at 712. Fulcher must thus
prove that, on account of the substance and circumstances of Ash’s confession, her statements
lacked the particularized guarantees of trustworthiness required by Roberts.
       Fulcher contends first that Ash’s statements were unreliable because she “was viewed as an
accomplice by the police.” (Appellant’s Br. 35.) As the Kentucky Supreme Court noted, “she was
advised of her rights, . . . made aware that police were investigating [Fulcher’s] involvement in a
murder . . . [and assured by the police] that she was not a suspect in the case only after she had
No. 03-6216               Fulcher v. Motley                                                                    Page 13


provided police with her statement.” (J.A. 101.7) Fulcher concludes that “the confession exhibited
insufficient guarantees of reliability” because, given Ash’s fear of liability, “it may have been in
[her] best interests to tell the authorities what they wanted to hear.” (Appellant’s Br. 35 (citing Lee,
476 U.S. at 544-45).)
        Kentucky responds that Ash’s statements were sufficiently reliable to satisfy the rule in
Roberts because Ash was not an accomplice to Fulcher’s crimes, but was guilty only of tampering
with the evidence. Thus, Kentucky argues, “Ash’s statements were not made in a situation where
she was attempting to shift or spread blame from herself to a confederate.” (Appellee’s Br. 26.) But
the particular crime that Ash might have been charged with is beside the point. The threat—at the
time she made her statements—that the police would charge her in the future gave her the incentive
to finger Fulcher and to claim a limited role for herself. It would be anachronistic to conclude, on
the basis of her claimed limited involvement, that her statements were sufficiently reliable to be
admitted against Fulcher.
        It is nonetheless useful to ask whether Ash’s statements were of a sort that shifted or spread
blame or mitigated her own culpability because, considering how Hill distinguished Neuman,8 there
was a class of custodial hearsay statements that were admissible against a defendant, but not so
directly implicating of the defendant to be of questionable reliability. Neither of Ash’s statements
falls within that class. Her first statement, that she washed Fulcher’s sweatpants after he told her
that he was in a fight, directly implicated him and limited her own liability by disavowing any
knowledge of the murder. And her second statement, that Wright told her to throw away the key,
similarly cast Wright in a guilty light, while limiting her own role. Both of these statements differ
from the one at issue in Neuman, where the court admitted an out-of-court statement that inculpated
only the declarant. In contrast, both of Ash’s statements implicated others.
         Fulcher contends next that Ash’s statements lacked sufficient guarantees of trustworthiness
because the statements were made in police custody. The substance of this argument essentially
mirrors his previous one, for what renders a statement elicited by police interrogation unreliable is
the fact that the circumstances offer the person in custody an opportunity to shift scrutiny away from
himself or herself by implicating another. Cf. Franklin, 415 F.3d at 547-48 (allowing the admission
of an accomplice’s confession because it was made “not to investigators but to his close friend . .
. [who] he had no reason to conclude would reveal those statements to law enforcement”).
         Third, Fulcher questions the reliability of Ash’s statements because they were “made in
response to the police interrogator’s leading questions.” (Appellant’s Br. 37.) In Lee, the Supreme
Court found a statement against penal interest unreliable in part because it was an “unsworn
statement . . . given in response to the questions of police, who . . . knew what they were looking for,
and . . . was not tested in any manner by contemporaneous cross-examination.” 476 U.S. at 544.
Here, while the police officer’s questions do not appear to be particularly9“leading,” they are more
leading than would typically be allowed in an adversarial proceeding. And as Wright noted,


         7
           Remember that in the Kentucky courts, the state argued that Ash’s statements were so clearly against her penal
interest as to demonstrate their reliability. Because the constitutional test pushes in the opposite direction from the
state’s, Fulcher is able to co-opt the Kentucky court’s adverse judgment below.
         8
             See supra.
         9
           Consider the following exchanges between Ash and Detective Jones. Regarding Fulcher and Wright’s
relationship:
         Det. Jones: [S]o you was to say [sic] that Elem and Terry are pretty good friends among each other
         . . . would that be a fair statement to say?
No. 03-6216               Fulcher v. Motley                                                                      Page 14


statements allowed in under the “particularized guarantees” exception had to be “so trustworthy that
adversarial testing would add little to their reliability.” Wright, 497 U.S. at 821.
        Finally, Fulcher cites two cases, United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir.
1991), and Calvert v. Wilson, 288 F.3d 823 (6th Cir. 2002), in which the Sixth Circuit held certain
accomplice confessions inadmissible for violating the Confrontation Clause. In Gomez-Lemos, this
court noted that “‘once partners in a crime recognize that the “jig is up,” they tend to lose any
identity of interest and immediately become antagonists rather than accomplices.’” 939 F.2d at 330
(quoting Lee, 476 U.S. at 544-45). And in Calvert, a case that parallels Hill, this court found
insufficient guarantees of trustworthiness because, “[l]ike the accomplice in Lee, [the declarant]
made his statements under the supervision of governmental authorities, in response to police
officers’ leading questions, which were asked without any contemporaneous cross-examination by
adverse parties.” 288 F.3d at 832.
        Considering the circumstances of Ash’s statements (police custody and interrogation,
leading questions, and the police officers’ suspicion of her wrongdoing) together with the substance
of those statements (inculpating Fulcher and limiting her involvement with the crimes), we find that
Ash’s statements lacked “particularized guarantees of trustworthiness.” In light of our conclusion
that the statements did not fall under a firmly rooted hearsay exception, we hold that it was error to
admit them.
                       4. The Kentucky Supreme Court’s Error Was Not Harmless
        “[C]onstitutional error is cause for federal habeas relief only if it has ‘a substantial and
injurious effect or influence in determining the jury’s verdict.’” Hill, 337 F.3d at 718 (quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
         In determining whether Confrontation Clause error is harmless . . . , the reviewing
         court should consider: “the importance of the witness’ testimony in the
         prosecution’s case, whether the testimony was cumulative, the presence or absence
         of evidence corroborating or contradicting the testimony of the witness on material
         points, . . . and, of course, the overall strength of the prosecution’s case.”
Hill, 337 F.3d at 718 (quoting Delaware v. van Arsdall, 475 U.S. 673, 684 (1986)) (second alteration
in original). And in contrast to what may be used to determine whether an error occurred, a court
may consider corroborating evidence to determine whether the error was harmless. Wright, 497 U.S.
at 823. Neither side has the “burden” of proving that the error was harmless (or not), but when “the
record is so evenly balanced” that “a federal judge in a habeas proceeding is in grave doubt about
whether a trial error of federal law had ‘substantial and injurious effect or influence in determining
the jury’s verdict,’ that error is not harmless. And, the petitioner must win.” O’Neal v. McAninch,


         Ash: I’d say it was a fair statement, I mean . . . I guess so . . . I mean I wouldn’t consider him one of
         Ray’s best friends, if that’s what you mean, no.
         Det. Jones: But they pretty much hang out, hang around together?
         Ash: Sometimes . . . when Terry decides he wants to come around for awhile.
(J.A. 150.) And regarding when Fulcher asked her to wash his pants:
         Det. Jones: Okay, do you remember what day that this was?
         Ash: No I don’t . . . can’t really. I, I know it was before the holidays, but I don’t remember the date.
         Det. Jones: Right before Christmas?
         Ash: Around Christmas . . .
(J.A. 143.)
No. 03-6216               Fulcher v. Motley                                                                   Page 15


513 U.S. 432, 436-37 (1995); cf. Murillo, 402 F.3d at 793 (finding that the brevity of the State’s
argument for harmlessness “makes it impossible [for the court] to say that the [erroneously admitted]
statement . . . was unlikely to have had a substantial and injurious effect on the verdict”).
       Fulcher notes that the prosecution’s case was “entirely circumstantial” and that no physical
evidence linked Fulcher to the crime scene or the crime: no fingerprints, no clothing stained with
the victim’s blood, no traces of the victim’s blood in Fulcher’s car, and no murder weapon.
Kentucky responds by arguing that the error was harmless for several reasons:
         [1] [A]n eye witness/accomplice, Terry Wright, testified about Fulcher’s conduct
         which he personally observed, in killing the victim and leaving the victim’s premises
         with blood on Fulcher’s clothing; [2] two other witnesses testified that Fulcher made
         statements to them amounting to an admission that he had killed the victim; [3] a
         third person testified that Fulcher had offered him a bribe in order to provide an alibi;
         and [4] Fulcher made incriminating statements to two police officers.
(Appellee’s Br. 16.) We consider each of Kentucky’s pieces of evidence in turn.
        First, given our discussion above about reliability, we view Wright’s testimony with some
skepticism. As Fulcher notes, Wright was an alleged accomplice and an admitted drug user and
dealer; “he admitted to being at the victim’s house when money was stolen on a number of previous
occasions;” “[h]e had the victim’s blood on his clothing;” and “he was the only person seen at the
victim’s house at the time.” (Appellant’s Br. 43.) He thus had a substantial interest in shifting
blame to Fulcher. Although we do not question that it was the jury’s responsibility to assess
Wright’s credibility (including how well his testimony held up on cross-examination), we must
consider the likelihood that Ash’s statements bolstered Wright’s account in the jury’s eyes. Without
Ash’s account of washing the blood off of Fulcher’s sweatpants, nothing would have physically
connected Fulcher to the crime.   Wright, about whom there existed ample physical evidence, would
have provided the only link.10
        Next, Kentucky cites the testimony of two persons to whom Fulcher allegedly admitted
committing the crime. Fulcher notes that both were “jailhouse snitches,” whose testimony should
be given little weight. See Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d Cir. 2004); United
States v. Bernal Obeso, 989 F.2d 331, 333 (9th Cir. 1993) (questioning the reliability of criminal
informant testimony). Kentucky offers no response.
        Kentucky’s third item of evidence supporting a finding of harmlessness, Fulcher’s effort to
bribe someone to offer an alibi, shows only that Fulcher hoped (by illicit means) to avoid liability.
Yet this same thinking motivates all defendants who hire lawyers. Fulcher’s attempted bribery
demonstrates that given Wright’s testimony and the possible admission of Ash’s statements, he
(quite understandably) feared conviction. The bribe adds no independent evidence connecting
Fulcher to the crime.
        Kentucky’s final item of evidence, Fulcher’s incriminating statements to police officers, is
insufficiently developed to deserve further consideration. The state offers no specificity as to what
such statements declared.

         10
            Cf. Stapleton v. Wolfe, 288 F.3d 863, 867-68 (6th Cir. 2002). In Stapleton, there were three accomplices in
a string of burglaries: Stapleton, Studer, and Foreman. Studer made several out-of-court statements inculpating
Stapleton. In addition, Foreman testified at trial that Stapleton had played a substantial role. The trial court allowed
Studer’s statements to be admitted, which the Sixth Circuit held to violate Stapleton’s confrontation right. The panel
further found that the error was not harmless, notwithstanding Foreman’s testimony at trial. The court rejected the
state’s arguments that Studer’s statements were (a) unimportant, given Foreman’s testimony; (b) cumulative, in light of
Foreman’s testimony; and (c) reliable, because they were corroborated by Foreman’s testimony.
No. 03-6216               Fulcher v. Motley                                                                     Page 16


       Kentucky also cites to the five-factor test of harmlessness in Stapleton v. Wolfe, 288 F.3d
863, 867-68 (6th Cir. 2002), which instructs courts to consider:
         (1) the importance of the witness’ testimony in the prosecution’s case, (2) whether
         the testimony was cumulative, (3) the presence or absence of evidence corroborating
         or contradicting the testimony of the witness on material points, (4) the extent of
         cross-examination otherwise permitted, and (5) the overall strength of the
         prosecution's case.
(citations and quotation marks omitted). Kentucky does not explain how those factors would apply
to this case, but Fulcher argues that they weigh against a finding of harmlessness. First, Fulcher
contends the importance of Ash’s statements was demonstrated by the jury asking to rehear the tape
of Ash’s statements and rendering its verdict half an hour later. (Kentucky chalks this up to perhaps
their difficulty in understanding the audio, though at oral argument the state could offer no
foundation for this suggestion.) Second, Fulcher contends that Ash’s statements were not
cumulative because no other evidence went to Fulcher’s alleged effort to destroy evidence or
connected the parties to the discarded key. Third, Fulcher notes that there was some inconsistency
between Ash’s statement and Wright’s testimony: Wright testified that Fulcher was wearing either
jeans or a favorite “Dolphins’ suit” on the night of the murder, whereas Ash claimed to have washed
grey sweatpants. Fourth, Ash was never cross-examined. And fifth, Fulcher noted that even after
Ash, all of the remaining witnesses had a motive to lie.
        Viewing the totality of the evidence, we cannot reject the possibility that the admission of
Ash’s statements had “a substantial and injurious effect or influence in determining the jury’s
verdict,” and we have “grave doubt” that they did not. Brecht, 507 U.S. at 623 (citation and quote
omitted). Ash’s statements bolstered the only direct account of Fulcher’s involvement in the crime
and connected to him the only physical (albeit circumstantial) evidence in the government’s case.
Moreover, the most logical reason as to why the jury asked to rehear the tape of Ash’s interview was
that they did not consider Wright’s direct testimony alone to be sufficient for a guilty verdict.
Finally, the Kentucky Supreme Court (applying the wrong standard) believed that the admissibility
of Ash’s statements was a “close call.” (J.A. 102.) Kentucky may well have taken the risk that the
verdict would be reversed for submitting Ash’s statements because it “expected [the statements] to
have punch and doubted the sufficiency of other evidence.” Murillo, 402 F.3d at 793. For these
reasons, we are unable to hold harmless the erroneous admission of Ash’s statements.
                                           C. Crawford Retroactivity
        Fulcher contends that Crawford v. Washington, 541 U.S. 36 (2004), announced a “watershed
rule[] of criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding,” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (citations omitted), and thus warrants
retroactive application to Fulcher’s case. Cf. Teague v. Lane, 489 U.S. 288 (1989). A panel of the
Sixth Circuit rejected this conclusion  in Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005), but
without substantial analysis.11 Given our decision to order that the writ be granted on the basis of
pre-Crawford law, we find it unnecessary to address whether Crawford announced a “watershed rule
of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,”


         11
            To this point, four other circuits have addressed whether Crawford applies retroactively to cases on collateral
review. Three have held that it does not apply retroactively. See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005)
(April 1, 2005); Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005) (April 7, 2005); Brown v. Uphoff, 381 F.3d 1219,
1227 (10th Cir. 2004); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004). One has held that it does. See Bockting
v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005), amended in part by Bockting v. Bayer, No. 02-15866, 2005 U.S. App.
LEXIS 9976 (9th Cir. June 1, 2005). In that one case a petition for a writ of certiorari was filed on November 7, 2005
and currently pends. See 2005 WL 3038541.
No. 03-6216           Fulcher v. Motley                                                    Page 17


or Judge Clay’s concern that the analysis in Dorchy was insufficiently thorough to bind later panels
of this court.
                                          III. Conclusion
       We hold that the admission of Ash’s statements violated Fulcher’s rights under the
Confrontation Clause of the Sixth Amendment. Because we are unable to conclude that such error
was harmless, we REVERSE the district court’s judgment and REMAND for entry of the writ.
No. 03-6216            Fulcher v. Motley                                                      Page 18


                                     ______________________
                                        CONCURRENCE
                                     ______________________
        CLAY, Circuit Judge, concurring. I write separately because I believe that Crawford v.
Washington, 541 U.S. 36 (2004), establishes a watershed rule in criminal procedure requiring
retroactive application under the Supreme Court’s retroactivity analysis in Teague v. Lane, 489 U.S.
288 (1990). Crawford’s retroactive application therefore makes Crawford the “clearly established”
federal law at the time of direct review. When Crawford is applied to the facts of this case,
Petitioner’s Sixth Amendment rights under the Confrontation Clause were violated when his wife’s
taped statement was admitted into evidence. Because this error was not harmless, a writ of habeas
corpus should be granted.
                                                  I.
                                         BACKGROUND
       On December 22, 1991, the beaten and stabbed body of Charlie Bramer was discovered in his
home in Jefferson County, Kentucky. After an investigation, Petitioner was charged with and
convicted of the crime.
        At Petitioner’s jury trial, the State of Kentucky relied largely on testimonial evidence for
Petitioner’s conviction. The State put inmates on the witness stand who testified that Petitioner had
told them, in jailhouse conversations, that he had committed the murder. The State also put Terry
Wright on the stand. Wright had confessed to helping Petitioner commit the murder, alleging that
Wright and Petitioner went to the victim’s home in order to rob the victim, but that the victim
discovered Wright and Petitioner during the course of the robbery and chased them out of the house.
Wright further testified that Wright and Petitioner later returned to the victim’s home and Wright
waited outside while Petitioner entered the home. When Wright entered the home several minutes
later, Wright alleges that he found Petitioner attacking the victim with a hammer. Wright testified
that he made an unsuccessful attempt to stop Petitioner.
        The state also called Patricia Ash Fulcher (“Ash”) to testify against Petitioner. Ash had given
the police a statement shortly after the investigation into the crime began, but had since married
Petitioner, asserted spousal privilege under Kentucky Rule of Evidence 107(b), and refused to testify
against Petitioner. The state played Ash’s tape-recorded statement to the police for the jury, albeit
over the objections of Petitioner’s counsel. The trial court ruled that the statement was admissible
as an exception to the hearsay rule as a statement against penal interest because the contents of Ash’s
statements inculpated both Petitioner and Ash herself.
       Ash’s statement had been made while in the custody of the Jefferson County police. Ash was
stopped on January 2, 1992 while driving a car that matched the description of Petitioner’s
automobile. The police impounded the car and took Ash in for questioning. The police read Ash her
Miranda rights and proceeded to question her.
       During the course of questioning, Ash revealed that over the course of the December 1991
holidays, Petitioner had arrived home late one evening and asked Ash to wash the clothes Petitioner
had been wearing. Ash indicated that there were some spots of blood on the pants, and that Petitioner
explained the blood by saying that he had been in a fight. Ash also stated that Terry Wright, also
present at the time, asked Ash to dispose of a key. Ash admitted that she threw the key into the
sewers, where police subsequently recovered it and confirmed that the key belonged to the victim.
No. 03-6216                Fulcher v. Motley                                                                      Page 19


      Police found no evidence at the victim’s house to link Petitioner to the crime scene. A murder
weapon was never recovered.
         During jury deliberations, the jury requested both Ash’s tape recorded statement and a tape
recorder. Within an hour of hearing the tape, the jury returned with a conviction. After unsuccessful
direct appeals and collateral attacks in state court, Petitioner now requests habeas relief on the basis
of this improperly admitted evidence.
                                                            II.
                                            CRAWFORD ANALYSIS
        This Court reviews the decision of the district court to deny a writ of habeas corpus de novo.
Allen v. Yukins, 366 F.3d 396, 399 (6th Cir. 2004) (citing Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.
2000)).
A.      Crawford’s Retroactivity Is an Issue of First Impression in This Circuit
        The lead opinion opines that this Court has already ruled that Crawford does not apply
retroactively. It is true that panels of this Court are bound by the published decisions of prior panels
as controlling precedent. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.
1985). The Dorchy v. Jones case cited in the lead opinion, however, does not actually treat
Crawford’s retroactivity sufficiently to bind subsequent panels of this Court. This Court’s entire
treatment of Crawford in that case consists of the following:
        Under most circumstances, however, newly promulgated rules of criminal procedure
        do not apply retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288,
        305-11 . . . (1989) (holding that a habeas petitioner could not benefit from a recent
        Supreme Court decision declaring racially-based peremptory challenges invalid,
        because that decision could not be applied retroactively to cases on collateral review)
        . . . . Teague thus prohibits [petitioner] from availing himself of the new rule
        articulated in Crawford. The question before us is therefore whether the analysis by
        the [state court] was contrary to, or involved an unreasonable application of, Roberts.
Dorchy v. Jones, 398 F.3d 783, 788   (6th Cir. 2005). The Dorchy panel did not subject Crawford to
the Teague retroactivity analysis.1 These two sentences are dicta and do not go to the holding of the
case. In fact, the Dorchy panel affirmed the district court’s grant of a writ because the Court found
the state court’s ruling to have been an “unreasonable application of” clearly established
confrontation clause jurisprudence under Roberts at the time of the state court decision. See id. at
791. Subsequent panels of this Court are not bound by prior panels on issues not actually reached
by those prior panels. Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 298 (2005).
B.      The Crawford Holding
        The Supreme Court’s 2004 decision in Crawford v. Washington overruled the Roberts indicia
of reliability test for mutually inculpatory statements. See 541 U.S. at 68. In Crawford, the state
sought to admit a statement made by the criminal defendant’s wife shortly after the crime in question
occurred. Id. at 40. The statement was made to the police while the wife was in a custodial setting


         1
           In fact, this is just the sort of “drive-by” “holding” that Justice Scalia has decried as meriting no precedential
value, although sometimes understandable in light of the particular facts before the issuing panel. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (stating that a prior court’s summary assumption of jurisdiction
without analytical support held no precedential effect and indicating that such treatments are dicta).
No. 03-6216            Fulcher v. Motley                                                      Page 20


and tended to inculpate the wife, insofar as it showed that she facilitated her husband’s commission
of the crime. See id. In the state of Washington, spousal privilege does not extend to out-of-court
statements admissible under an exception to the hearsay rule. Id. The trial court admitted the
statement under the “against penal interest” exception to the hearsay rule. Id.
         The Supreme Court of Washington upheld the conviction and the propriety of the statement’s
admission under the Roberts indicia of reliability test. Id. at 41-42. On direct review, the United
States Supreme Court reversed, finding that Roberts had proven too nebulous a standard for the lower
courts to employ in insuring that rights under the Confrontation Clause were properly guaranteed.
Id. at 68-69. The Court concluded that “[w]here testimonial statements are at issue, the only indicium
of reliability sufficient to satisfy constitutional concerns is the one the Constitution actually
prescribes: confrontation.” Id. at 69.
      In reaching its conclusion, the Supreme Court expanded on the principles underlying the
Confrontation Clause:
       First, the principal evil at which the Confrontation Clause was directed was the
       civil-law mode of criminal procedure, and particularly its use of ex parte
       examinations as evidence against the accused. It was these practices that . . . English
       law’s assertion of a right to confrontation was meant to prohibit; and that the
       founding-era rhetoric decried. The Sixth Amendment must be interpreted with this
       focus in mind.
       Accordingly, we once again reject the view that the Confrontation Clause applies of
       its own force only to in-court testimony, and that its application to out-of-court
       statements introduced at trial depends upon “the law of Evidence for the time being.”
       3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94 (1970) (Harlan,
       J., concurring in result). Leaving the regulation of out-of-court statements to the law
       of evidence would render the Confrontation Clause powerless to prevent even the
       most flagrant inquisitorial practices . . . .
       This focus also suggests that not all hearsay implicates the Sixth Amendment’s core
       concerns. An off-hand, overheard remark might be unreliable evidence and thus a
       good candidate for exclusion under hearsay rules, but it bears little resemblance to the
       civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte
       examinations might sometimes be admissible under modern hearsay rules, but the
       Framers certainly would not have condoned them.
       ....
       Where testimonial statements are involved, we do not think the Framers meant to
       leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much
       less to amorphous notions of “reliability.” Certainly none of the authorities discussed
       above acknowledges any general reliability exception to the common-law rule.
       Admitting statements deemed reliable by a judge is fundamentally at odds with the
       right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability
       of evidence, but it is a procedural rather than a substantive guarantee. It commands,
       not that evidence be reliable, but that reliability be assessed in a particular manner:
       by testing in the crucible of cross-examination. The Clause thus reflects a judgment,
       not only about the desirability of reliable evidence (a point on which there could be
       little dissent), but about how reliability can best be determined. Cf. 3 Blackstone,
       Commentaries, at 373 (“This open examination of witnesses . . . is much more
       conducive to the clearing up of truth”) . . . .
 No. 03-6216            Fulcher v. Motley                                                         Page 21


        ....
        Where testimonial evidence is at issue . . . the Sixth Amendment demands what the
        common law required: unavailability and a prior opportunity for cross-examination.
        We leave for another day any effort to spell out a comprehensive definition of
        “testimonial.” Whatever else the term covers, it applies at a minimum to prior
        testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
        police interrogations. These are the modern practices with closest kinship to the
        abuses at which the Confrontation Clause was directed.
Crawford, 541 U.S. at 36, 51, 61-62, 68.
        Respondent does not dispute that had Crawford come out prior to the final disposition of
Petitioner’s case on direct review, the Court’s holding would have applied to Petitioner’s case.
C.      Watershed Rules in Criminal Procedure
       As a general rule, new rules of criminal procedure do not have retroactive effect and are
unavailable for use in a collateral attack to a criminal conviction. See Teague, 489 U.S. at 316. The
Supreme Court has set forth an exception to this general rule, however: when the new rule represents
a “watershed rule” of criminal procedure. Id. The only example of such a watershed rule ever cited
by a majority of the Court since issuing the Teague decision is the right to counsel, as set forth in
Gideon v. Wainwright, 372 U.S. 335 (1963).
        The Court has explained that a “watershed rule” is a rule which goes to the “fundamental
fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495 (1990). The
procedure at issue would be “central to an accurate determination of innocence or guilt . . . .”
Teague, 489 U.S. at 313. “That the new procedural rule is ‘fundamental’ in some abstract sense is
not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously
diminished.’” Schriro v. Summerlin, 542 U.S. 348, 125 S.Ct. 2519, 2523 (2004) (quoting Teague, 489
U.S. at 313) (emphasis in original). “A rule that qualified under this [watershed rule] exception must
not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’
essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting
Teague, 489 U.S. at 311).
         To date, the Supreme Court has yet to announce a “watershed rule” of criminal procedure
since Teague. Indeed, the Teague decision noted that the Court doubted whether there were many
fundamental tenets of due process that were yet to be discovered. 489 U.S. at 313. The Teague Court
itself found that the fair cross section requirement for jury venire did not merit retroactive application.
Id. at 314.
        Since Teague, the Supreme Court has consistently refused to apply new rules in capital
sentencing in a retroactive fashion. The Sawyer Court dealt with a new rule requiring a sentencing
reversal when a prosecutor’s remarks to the jury tended to diminish the jury’s responsibility in
recommending a death sentence. See Sawyer, 497 U.S. at 244-45. The Court reasoned that because
the new rule was a prophylactic one which benefitted criminal defendants only insofar as those
defendants could not make the requisite showing of fundamental unfairness under the previously
applicable standard, the rule therefore was not an “‘absolute prerequisite to fundamental fairness.’”
Id. (quoting Teague, 489 U.S. at 314.) Similarly, in Graham v. Collins the Court reasoned that the
denial of special jury instructions on mitigation factors during the capital sentencing phase did not
“‘seriously diminish[] the likelihood of obtaining an accurate determination’ in [the defendant’s]
sentencing proceeding.” 506 U.S. 461, 478 (1993) (quoting Butler v. McKellar, 494 U.S. 407, 416
(1990)); see also O’Dell v. Netherland, 521 U.S. 151, 167 (1997) (refusing to grant retroactive
application of a new rule requiring trial courts to allow capital defendants to rebut prosecutions’
No. 03-6216            Fulcher v. Motley                                                       Page 22


assertions of continued dangerousness as a factor in death sentence consideration, when defendants
would be ineligible for parole under a life sentence); Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504,
2515 (2004) (refusing to give retroactive effect to the Court’s new rule that invalidated a state
practice of requiring juries to disregard mitigating factors not found unanimously in capital
sentencing cases).
           The Court has continued to decline retroactivity in the context of capital sentencing
determinations. In Schriro, the Court ruled that its newly announced rule requiring juries, and not
judges, to find aggravating circumstances necessary for imposition of the death penalty was not a
watershed rule. Schriro, 125 S.Ct. at 2525. The Schriro Court found the evidence “too equivocal”
to support a determination that judicial factfinding so “seriously diminished” accuracy in the criminal
proceeding that there was “an impermissibly large risk of punishing conduct the law does not reach.”
Id. (internal quotations and citations omitted). The ruling in Schriro has been understood to mean
that the Court’s Apprendi decision – requiring juries to make the factual determination for anything
increasing a defendant’s sentence beyond the statutory maximum – does not state a watershed rule
in criminal procedure. Blakely v. Washington, 542 U.S. 296, 323 (2004) (“[W]e [held] in Schriro v
Summerlin . . . that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review
. . . .”).
        Beyond the capital sentencing arena, the Court has found that a habeas petitioner’s proposed
rule – that one day’s notice of the state’s intention to call an opposing witness be found per se
violative of due process – “has none of the primacy and centrality of [a watershed rule] which may
be thought to be within the [Teague] exception.” Gray v. Netherland, 518 U.S. 152, 170 (1996)
(internal quotations and citations omitted). The Court has also found that a circuit court
inappropriately applied a new rule in a retroactive manner when the appeals court granted a request
for habeas corpus relief upon finding that a state practice of permitting the prosecution to resubmit
evidence of prior convictions in subsequent resentencing hearings (after having failed to prove prior
convictions at the original sentencing hearing) violated the Double Jeopardy Clause. See Caspari
v. Bohlen, 510 U.S. 383, 396-97 (1994) (acting on habeas petition). The Court reasoned that
“[a]pplying the Double Jeopardy Clause to successive noncapital sentencing is not such a ground
breaking occurrence” as to warrant retroactive application. Id. at 396.
         Prior to the retroactivity standard articulated in Teague, the Court balanced prudential
concerns in determining whether a new rule should be granted retroactive effect. The Court
consistently declined to grant retroactive effect to rules designed to deter police misconduct. See
Linkletter v. Walker, 381 U.S. 618, 636-40 (1965) (the exclusionary rule to state conduct); Johnson
v. New Jersey, 384 U.S. 719, 733-35 (1966) (Miranda requirements); Solem v. Stumes, 465 U.S. 638,
650 (1984) (the invalidity of any waiver of the right to right to counsel after the invocation of such
right and before counsel can appear); Tehan v. United States, 382 U.S. 406, 416-19 (1966) (the right
of the accused not to have the prosecutor comment on the accused’s election to keep silent); Stovall
v. Denno, 388 U.S. 293, 299 (1967) (the right to counsel during pre-trial identification procedures).
        Consistent with its post-Teague decisions declining to give retroactive effect to decisions
affecting the jury’s role in fact-finding, the pre-Teague Court also declined to apply retroactively its
determination that criminal defendants enjoy a right to a jury trial in state criminal prosecutions. See
Schriro, 125 S.Ct. at 2525 (discussing the Court’s refusal in DeStefano v. Woods, 392 U.S. 631
(1968), to apply Duncan v. Louisiana, 391 U.S. 145 (1968), retroactively). The Court reasoned that
if a trial without a jury was not “impermissibly inaccurate” then a judge’s determination of
aggravating factors in death penalty deliberations could not require retroactive renunciation. Id. at
2526.
       In contrast, prior to Teague, the Court granted retroactive effect to a number of new rules
going to the central tenets of our criminal justice system. The Court granted retroactive effect to the
No. 03-6216            Fulcher v. Motley                                                       Page 23


right to counsel as articulated in Gideon v. Wainwright. The Court also granted retroactive effect to
the application of the Double Jeopardy Clause to the states. See Robinson v. Neil, 409 U.S. 505, 510
(1973). The Court additionally granted retroactive effect to a rule proscribing state laws which grant
the prosecution unlimited challenges for cause against any prospective juror with any reservations
about the death penalty in capital cases. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).
        Significantly, in two pre-Teague cases, the Court twice granted retroactive effect to new rules
dealing with the Confrontation Clause. In Roberts v. Russell, 392 U.S. 293, 293 (1968) (per curiam),
the Court held that its rule articulated in Bruton v. United States, 391 U.S. 123 (1968), merited
retroactive application. The Bruton rule held that limiting jury instructions could not cure the harm
caused in a joint trial by the introduction of a codefendant’s extrajudicial confession. 391 U.S. at
135. The Court reasoned that the admission without the opportunity for cross-examination resulted
in “‘serious flaws in the fact-finding process at trial.’” Roberts, 392 U.S. at 294 (citing Stovall, 388
U.S. at 298). The Court held that the admission of the testimonial statement absent confrontation
“went to the basis of the fair hearing and trial because the procedural apparatus never assured the
[petitioner] a fair determination of his guilt or innocence.” Id. (internal citations and quotations
omitted). Similarly, in Berger v. California, 393 U.S. 314, 314-15 (1969) (per curiam), the Court
retroactively applied the rule announced in Barber v. Page, 390 U.S. 719 (1968). The Barber Court
held that states may not use at trial the prehearing testimony of a witness in lieu of live testimony
unless the state has made a good faith effort to secure the witness’ presence. Id. at 721. The Court
noted that “one of the most important objects of the right of confrontation [is] to guarantee that the
fact finder had an adequate opportunity to assess the credibility of witnesses.” Berger, 393 U.S. at
315.
         In the decade and a half since Teague, the Supreme Court has yet to be confronted with a rule
akin to those presented to the Court in Gideon, Robinson, Witherspoon, Bruton, and Berger. Rather,
the Court has been asked to rule on sentencing issues which invoke either Eighth Amendment rights
in the context of capital cases or the division between judge and jury in fact-finding. The Court’s
refusal to apply these types of new rules retroactively is consistent with its pre-Teague practice. In
contrast, the rule presented in Crawford is much more analogous to those pre-Teague cases (Gideon,
Robinson, Witherspoon, Bruton, and Berger) which the Court found articulated new rules meriting
retroactive application. A holding that Crawford articulates a watershed rule in criminal procedure
is entirely consistent with the Supreme Court’s historical retroactivity jurisprudence. See supra.
D.     Crawford as a Watershed Rule
       1.      The Circuit Split
        Several circuit courts of appeal have addressed the retroactivity of Crawford. The Second,
Tenth, and Seventh Circuits have held that Crawford does not apply retroactively. The Ninth Circuit
has held that Crawford does apply retroactively and that AEDPA does not bar such retroactive
application.
        The Second Circuit held in Mungo v. Duncan, 393 F.3d 327, 335-36 (2d Cir. 2004), cert.
denied sub. nom. by Mungo v. Greene, 125 S.Ct. 1936 (2005), that Crawford does not merit
retroactive application. The Second Circuit noted that the question turned on “whether the rule is
necessary to the fundamental fairness, and improves the accuracy, of criminal proceedings.” Id. at
335. The court then reasoned that the rule would preclude some unreliable testimony but would also
work to exclude previously admissible testimony which bore significant indicia of reliability. The
Second Circuit therefore concluded that the Crawford rule would not “improve the accuracy of the
trial process overall” and held Crawford to be a prospective rule only. Id. at 336. The Seventh
Circuit employed similar reasoning in also holding that Crawford was not a watershed rule of
 No. 03-6216               Fulcher v. Motley                                                                     Page 24


criminal procedure. See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), cert. den’d by 126 S.Ct. 174
(2005).
        The Tenth Circuit also held in Brown v. Uphoff, 381 F.3d 1219 (2005), cert. den’d by 125
S.Ct. 940 (2005), that Crawford does not apply retroactively. The Tenth Circuit did not reach the
merits of the retroactivity doctrine, but held that AEDPA precluded habeas relief on the basis of any
federal law made clear only after the date of the state court decision. Id. at 1224 (reasoning that a
“new rule” under Teague was presumptively not “clearly established federal law” at the time of the
state court decision). In their decisions denying retroactivity, neither the Second nor Seventh Circuits2
addressed whether AEDPA would independently preclude application of a new rule retroactively.
        The Ninth Circuit, in Bockting v. Bayer, No. 02-15866, 2005 U.S. App. LEXIS 9973 (9th Cir.
June 1, 2005), rehr’g en banc den’d by 2005 U.S. App. LEXIS 16797 (9th Cir. Aug. 11, 2005), found
Crawford to merit retroactive application. The Ninth Circuit looked to the Supreme Court’s most
recent treatment of retroactivity analysis in Schriro for lessons in determining the existence of a
watershed rule from Crawford. Bockting, 2005 U.S. App. LEXIS 9973, at *14. The Ninth Circuit
looked to Justice Scalia’s extensive treatment of the history and centrality of confrontation to our
system of justice to conclude that confrontation is a fundamental precept of our legal regime. Id. at
*15. The Ninth Circuit then looked to the Supreme Court’s historical treatment of the Confrontation
Clause, and the language accompanying its many Confrontation Clause cases, to determine that “[t]he
Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation
Clause is to promote accuracy.” Id. at *18. The Ninth Circuit reasoned that Schriro’s question of
whether the absence of confrontation “so seriously diminish[es] accuracy” was answered by
Crawford itself. Id. at *21. The Ninth Circuit pointed to language in Crawford addressing the
Roberts rule as “so unpredictable that it fails to provide meaningful protection from even core
confrontation violations.” Id. at *21.
         The Ninth Circuit concluded its analysis in Bockting by again echoing the language of the
Crawford decision in noting that the “Confrontation Clause . . . reflects a judgment . . . about how
reliability can best be determined.” Id. at *22 (quoting Crawford, 124 S.Ct. at 1370). The court
considered the Second Circuit’s contrary conclusions – that the Crawford rule does not improve
overall accuracy – as an impermissible superimposition of that court’s own analysis over that of the
Supreme Court and the Constitution itself. Id. at *28 (“The flaw in this analysis is that the Second
Circuit has substituted its judgment of whether the Crawford rule is one without which the accuracy
of conviction is seriously diminished, for the Supreme Court’s considered judgment.”)
         2.       Crawford Merits Retroactive Application
         The Teague analysis requires this Court to 1) determine whether Crawford announced a new
rule, 2) determine whether that rule was a “watershed rule” in criminal procedure, 3) apply the rule
in the case at bar (if the rule is found to be retroactive), and 4) determine whether any resulting error
was harmless. Because Ash’s statement falls squarely within          the facts of Crawford, the parties do
not dispute the statement’s inadmissibility under Crawford.3

          2
            The First Circuit declined to reach the question of Crawford’s retroactivity in Horton v. Lane because the court
 there found that the statements at issue did not implicate Crawford in the first instance. See 370 F.3d 75, 83 (2004).
 In setting up its analysis, however, the First Circuit implied that AEDPA would not preclude retroactive application
 when the court stated that “new rules of criminal procedure” applied in habeas cases when such rules fell within a Teague
 exception. Id.
          3
           The central issue guiding the applicability of Crawford would be whether or not the statement was testimonial.
 While the Crawford Court declined to define the boundaries of testimonial statements, it held that a “core” class of
 testimonial statements includes “custodial examinations,” which the parties do not dispute was the circumstance of Ash’s
 statement. Crawford, 124 S.Ct. at 1364.
No. 03-6216            Fulcher v. Motley                                                       Page 25


               a.      Crawford announced a new rule
        Whether Crawford’s rule is new depends on whether the result was “dictated by the then-
existing precedent.” Beard, 124 S.Ct. at 2511. The Crawford Court observed that the rule of Roberts
had proven too nebulous a standard for proper application; the Court further noted that “Roberts
conditions the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay
exception’ or bears particularized guarantees of trustworthiness.” Crawford, 124 S.Ct. at 1369. The
Court then departed from precedent and held that testimonial statements may not be admitted against
a criminal defendant absent unavailability of the declarant and the right of confrontation. The
Crawford test eliminated the ability of a court to assess “particularized guarantees of trustworthiness”
of testimonial statements and admit them absent constitutional confrontation. Past precedent,
therefore, did not dictate the result in Crawford. Rather, Crawford overruled the Roberts test for
testimonial statements.
        Every circuit court to address Crawford has found that Crawford sets forth a new rule. See
Bockting, 2005 U.S. App. LEXIS 9973, at *9-13; Bintz, 403 F.3d at 866; Brown, 381 F.3d at 1226;
Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (treating Crawford as creating a new rule
but finding the case inapplicable); Horton, 370 F.3d at 83. Crawford therefore announces a “new
rule.”
               b.      Crawford is a “watershed rule”
        The Ninth Circuit’s analysis is compelling. Teague demands that a watershed rule go to
“procedures implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307. A “watershed
rule” is a rule which goes to the “fundamental fairness and accuracy of the criminal proceeding.”
Saffle, 494 U.S. at 495. The procedure at issue would be “central to an accurate determination of
innocence or guilt . . . .” Teague, 489 U.S. at 313. “That the new procedural rule is ‘fundamental’
in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an
accurate conviction is seriously diminished.’” Schriro, 125 S.Ct. at 2523 (quoting Teague, 489 U.S.
at 313). “A rule that qualified under this [watershed rule] exception must not only improve accuracy,
but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a
proceeding.” Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311).
       The Ninth Circuit efficiently summarized the Supreme Court’s extensive discussion over the
years on the role of the Confrontation Clause in the American criminal justice system.
       The Supreme Court has repeatedly and without deviation held that the purpose of the
       Confrontation Clause is to promote accuracy. See, e.g., Crawford, 124 S. Ct. at 1370
       (“This open examination of witnesses . . . is much more conducive to the clearing up
       of truth.”) (quoting 3 Blackstone, Commentaries * 373); White v. Illinois, 502 U.S.
       346, 355 . . .(1992) (evaluating a Confrontation Clause claim against the benchmark
       of accuracy); Tennessee v. Street, 471 U.S. 409, 415 . . . (1985) (describing the
       “Confrontation Clause’s very mission” as “to advance the accuracy of the
       truth-determining process in criminal trials”) (internal quotation omitted); Ohio v.
       Roberts, 448 U.S. 56, 65 . . . (1980) (stating the purpose of the Confrontation Clause
       is to “augment accuracy in the factfinding process”); Parker v. Randolph, 442 U.S.
       62, 73 . . . (1979) (plurality) (“The right of confrontation conferred by the Sixth
       Amendment is a safeguard to ensure the fairness and accuracy of criminal trials.”);
       Chambers v. Mississippi, 410 U.S. 284, 295 . . . (1973) (“The right of
       cross-examination is more than a desirable rule of trial procedure. It is implicit in the
       constitutional right of confrontation, and helps assure the ‘accuracy of the
       truth-determining process.’”); Dutton v. Evans, 400 U.S. 74, 89 . . . (1970) (plurality)
       (“The decisions of this Court make it clear that the mission of the Confrontation
No. 03-6216            Fulcher v. Motley                                                      Page 26


       Clause is to advance a practical concern for the accuracy of the truth-determining
       process in criminal trials . . . .”); Pointer v. Texas, 380 U.S. 400, 404 . . . (1965)
       (“Probably no one, certainly no one experienced in the trial of lawsuits, would deny
       the value of cross-examination in exposing falsehood and bringing out the truth in the
       trial of a criminal case.”); Mattox v. United States, 156 U.S. 237, 242-43 . . . (1895)
       (describing the “primary object” of the Confrontation Clause as “to prevent
       depositions or ex parte affidavits . . . being used against the prisoner in lieu of a
       personal examination and cross-examination of the witness, in which the accused has
       an opportunity, not only of testing the recollection and sifting the conscience of the
       witness, but of compelling him to stand face to face with the jury in order that they
       may look at him, and judge by his demeanor upon the stand and the manner in which
       he gives his testimony whether he is worthy of belief”). See also M. Hale, History
       and Analysis of the Common Law of England 258 (1713) (adversarial testing “beats
       and bolts out the Truth much better”) (quoted in Crawford, 124 S. Ct. at 1370).
       “[T]he central concern of the Confrontation Clause is to ensure the reliability of the
       evidence against a criminal defendant by subjecting it to rigorous testing in the
       context of an adversary proceeding before the trier of fact. The word ‘confront,’ after
       all, also means a clashing of forces or ideas, thus carrying with it the notion of
       adversariness.” Maryland v. Craig, 497 U.S. 836, 845 . . . (1990) . . . . “[T]he
       combined effect of these elements of confrontation – physical presence, oath,
       cross-examination, and observation of demeanor by the trier of fact – serves the
       purposes of the Confrontation Clause by ensuring that evidence admitted against an
       accused is reliable and subject to the rigorous adversarial testing that is the norm of
       Anglo-American criminal proceedings.” Id. at 846 . . . .
Bockting, 2005 U.S. App. LEXIS 9973, at *18-21.
         The Second and Seventh Circuits’ rejection of Crawford’s retroactivity is critically flawed.
Both Circuits dispute the presumption inherent in the Constitution itself. As Justice Scalia noted, the
Confrontation Clause demands that the reliability of a statement be determined via confrontation, and
not by any independent judicial determination. Crawford, 124 S.Ct. at 63. The Confrontation Clause
“commands, not that the evidence be reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about
the desirability of reliable evidence (a point on which there could be little dissent), but about how
reliability can best be determined.” Id. Any determination, by any court, that compliance with the
Confrontation Clause requirements fails to go to the accuracy of the criminal proceeding is therefore
a direct contradiction of the Clause itself and a unreasonable interpretation of the Constitution.
               c.      AEDPA does not preclude application
        The Tenth Circuit reasoned that AEDPA precludes the retroactive application of any new rule
in criminal procedure because § 2254(d) states:
       An application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that was
       adjudicated on the merits in State court proceedings unless the adjudication of the
       claim –
       (1) resulted in a decision that was contrary to, or involved an unreasonable application
       of, clearly established Federal law, as determined by the Supreme Court of the United
       States; or
No. 03-6216            Fulcher v. Motley                                                        Page 27


       (2) resulted in a decision that was based on an unreasonable determination of the facts
       in light of the evidence presented in the State court proceeding.
The Tenth Circuit’s reasoning fails, however, to look beyond subsection (d) of § 2254 or consider
the normal implications of retroactivity.
        The Supreme Court has directed lower courts to undertake both an AEDPA inquiry and a
Teague inquiry in retroactivity cases, Horn, 536 U.S. at 272, impliedly endorsing the application of
Teague in the AEDPA context. This interpretation of Supreme Court direction appears consistent
with congressional intent. An analysis of the entirety of § 2254 shows that Congress contemplated
retroactive rules in the habeas context. Section 28 U.S.C. § 2254(e) explicitly provides for their
application in proceedings involving state habeas petitions. “If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on
the claim unless the applicant shows that . . . the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2254(e). Because
§ 2254(e) supplements the operation of § 2254(d), Congress must have considered that habeas relief
could be granted on the basis of retroactive rules.
        The Tenth Circuit’s perspective also ignores the normal implications of retroactivity analysis.
Applying Crawford retroactively would make Crawford the “clearly established law at the time,”
albeit only as a legal construct, but that is always the consequence of retroactive application and why
the courts invoke the doctrine only sparingly. Therefore the appropriate analysis in this case is under
Crawford and not Ohio v. Roberts. The Supreme Court of Kentucky relied on its own test under
Taylor to admit testimonial statements from Ash against Petitioner without a right to confrontation.
Under Crawford, Petitioner should have been able to cross-examine any testimonial witness, and
absent confrontation, the admission of Ash’s statement was error. Therefore the Supreme Court of
Kentucky’s decision was “contrary to” established Supreme Court precedent in Crawford, as applied
retroactively under Teague and Schriro.
E.      The Error Was Not Harmless
        A Confrontation Clause violation is cause for federal habeas relief only if it has “a substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623 (1993). This Court has held that the Brecht standard survived the enactment of AEDPA,
because “if a petitioner can pass Brecht analysis, ‘he will surely have demonstrated that the state
court’s finding that the error was harmless beyond a reasonable doubt . . . resulted from an
unreasonable application of [federal law].’” Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003)
(quoting Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999)).
        Several factors inform this Court’s analysis about whether such substantial or injurious effect
or influence exist in the context of a Confrontation Clause claim, including:
       ‘[1] the importance of the . . . testimony in the prosecution’s case,
       [2] whether the testimony was cumulative,
       [3] the presence . . . of evidence corroborating or contradicting the testimony of the
       witness on material points,
       [4] the extent of cross-examination otherwise permitted, and . . .
       [5] the overall strength of the prosecution’s case.’
Madrigal v. Bagley, 413 F.3d 548, 552 (6th Cir. 2005) (quoting Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986)). If this Court is in “grave doubt” as to whether the error was harmless, it should
“treat the error, not as if it were harmless, but as if it affected the verdict.” O’Neal v. McAninch, 513
U.S. 432, 435 (1995).
No. 03-6216            Fulcher v. Motley                                                       Page 28


         The evidence presented at Petitioner’s trial was not overwhelming. The prosecutor relied on
1) testimony from several inmates, who testified that Petitioner inculpated himself to them while in
jail; 2) Terry Wright, who testified that Petitioner, and not Wright, actually killed Bramer; and 3)
Ash’s statement, which linked Petitioner to the crime scene through the statements about blood on
Petitioner’s clothes and the key. Ash’s statement therefore played a key role in the prosecution’s
case.
        Respondent contends that Ash’s statement was cumulative because Wright testified to
Petitioner’s actions at the crime scene and to the key found near Petitioner’s home. But without
Ash’s statement, a jury would have been inclined to regard Wright’s statement with a great deal of
skepticism. Wright admitted to being a drug dealer and to helping others steal from the victim in
previous burglaries. Physical evidence actually linked Wright to the crime more than Petitioner; the
police actually discovered the victim’s blood on Wright’s clothes, physical evidence that the police
did not have on Petitioner. Wright therefore had a very strong and clear motive to exculpate himself
while inculpating Petitioner.
         The only other evidence introduced at trial consisted of testimony from jailhouse snitches that
Petitioner had admitted the crime to them. A jury would normally view testimony from inmates
housed with Petitioner with some skepticism. See Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d
Cir. 2004) (noting the unreliability of “jailhouse snitches”). The jury’s deliberations further indicate
that the jury placed some weight on Ash’s statement. The jury began deliberations on April 22, 2004.
On the afternoon on April 23rd, the jurors asked to have the tape of Ash’s statement and a tape
recorder. The judge played the tape for the jurors. Within an hour of hearing the tape the jury
returned its guilty verdict. Given the lack of physical evidence in the case, and that without Ash’s
statement, the government’s chief evidence would have come from an admitted accomplice and
jailhouse snitches, this Court can only be left with “grave doubts” about the influence and effect of
the improper introduction of the tape at trial.
                                                  III.
                                      ROBERTS ANALYSIS
        The lead opinion is correct that even absent the application of Crawford, the introduction of
Ash’s taped statement was contrary to clearly established law at the time and therefore would require
that we grant the requested writ under normal AEDPA analysis. I write separately here because I
believe that Crawford retroactivity is a threshold matter and that review of the statement under Ohio
v. Roberts should only follow if Crawford is found not to be a watershed rule of criminal procedure.
A.     The AEDPA Standard
      AEDPA “requires heightened respect for state court factual and legal determinations.”
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d) states:
       An application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that was
       adjudicated on the merits in State court proceedings unless the adjudication of the
       claim –
       (1) resulted in a decision that was contrary to, or involved an unreasonable application
       of, clearly established Federal law, as determined by the Supreme Court of the United
       States; or
       (2) resulted in a decision that was based on an unreasonable determination of the facts
       in light of the evidence presented in the State court proceeding.
 No. 03-6216             Fulcher v. Motley                                                     Page 29


28 U.S.C. § 2254(d).
        Under § 2254(d)(1), a state court decision is “contrary to” clearly established federal law if
“the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme Court] on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an
“unreasonable application” of clearly established federal law “if the state court identifies the correct
governing legal principle but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. “‘[C]learly established Federal law, as determined by the Supreme Court of the United States,’
refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of
the relevant state-court decision.’” Williams v. Bagley, 380 F.3d 932, 942 (6th Cir. 2004) (quoting
Williams, 529 U.S. at 412).
B.     The Supreme Court of Kentucky Opinion
        In denying relief for Petitioner under the Confrontation Clause, the Supreme Court of
Kentucky determined that Ash’s statement bore sufficient indicia of reliability under a Kentucky high
court test as set forth in Taylor v. Commonwealth, 821 S.W.2d 72,4 74 (Ky. 1991). The Taylor
decision drew on an earlier Supreme Court of Kentucky decision, which in turn purported to
interpret the United States Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284
(1973), as establishing criteria for use in determining when a statement against penal interest is
admissible against a criminal defendant without violating the Confrontation Clause. See Taylor, 821
S.W.2d at 74. The Taylor decision set forth four criteria for consideration by Kentucky courts faced
with a request to admit, against a criminal defendant, an out-of-court statement by an accomplice as
a statement against the accomplice’s penal interest:
       (1) [t]he time of the declaration and the party to whom made;
       (2) the existence of corroborating evidence in the case;
       (3) the extent to which the declaration is against the declarant’s penal interest[;] and
       (4) the availability of a declarant as a witness.
Id.
       The Supreme Court of Kentucky applied this test to Petitioner’s case. The court found the
following to support the statement’s admission:
1)     “[T]he time of the declaration [shortly after the crime] and the party to whom it was made
       [the police] are indeed indicative of the statements’ trustworthiness.” (J.A. at 100.)
2)     The court then noted that “the key – which police found where Ash said it would be – was
       sufficient corroborating evidence.” (J.A. at 101.)
3)     The court found Ash’s statement as to the key was buttressed by the testimony of Petitioner’s
       accomplice at trial.
4)     The court found additional corroboration of Ash’s statement in the actual crime scene, which
       would indicate that Petitioner would have had blood on his clothes.
5)     Finally, the court found that the statement was assuredly “against Ash’s penal interest,”
       inasmuch as she was in a custodial setting, had been read her Miranda rights, was aware that


        4
            Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978).
No. 03-6216               Fulcher v. Motley                                                                     Page 30


        the police were investigating a murder, and would have known her actions, as disclosed to
        the police, helped Petitioner dispose of the fruits of a crime and evidence.
The Supreme Court of Kentucky concluded its Confrontation Clause analysis by noting that it was
not an abuse of discretion for the trial court to admit Ash’s taped statement when an “objective
measure of whether [the statement] was against [Ash’s] penal interests” supported the trial court’s
decision. (J.A. at 102.)
C.      The Taylor Test Is Contrary to Clearly Established Federal Law
        The Taylor test is “contrary to clearly established Federal law” when used to evaluate the
admissibility of an out-of-court, mutually inculpatory statement. The United States Supreme Court
has ruled explicitly that independent corroborating evidence may not be used as indicia of reliability
when determining whether      an out-of-court statement is sufficiently trustworthy to admit against a
criminal defendant.5 See Idaho v. Wright, 497 U.S. 805, 819 (1990).6 The Wright court devoted
considerable space to explaining why the “use of corroborating evidence to support a hearsay
statement” infringes on Confrontation Clause guarantees:
        [W]e are unpersuaded by the State’s contention that evidence corroborating the truth
        of a hearsay statement may properly support a finding that the statement bears
        ‘particularized guarantees of trustworthiness.’ To be admissible under the
        Confrontation Clause, hearsay evidence used to convict a defendant must possess
        indicia of reliability by virtue of its inherent trustworthiness, not by reference to other
        evidence at trial . . . . [T]he use of corroborating evidence to support a hearsay
        statement’s ‘particularized guarantees of trustworthiness’ would permit admission of
        a presumptively unreliable statement by bootstrapping on the trustworthiness of other
        evidence at trial, a result we think at odds with the . . . Confrontation Clause . . . . The
        true danger inherent in this type of hearsay [hearsay from a co-defendant] is, in fact,
        its selective reliability . . . . There is a very real danger that a jury will rely on partial
        corroboration to mistakenly infer the trustworthiness of the entire statement.
Id. at 823-24. Such explicit exposition on the law and its rationales made the contours of
Confrontation Clause jurisprudence very clear in 1996, at least insofar as the (impermissible) use of
corroborating evidence to “bootstrap” the reliability of hearsay was concerned.7

         5
           Respondent appears to argue that the Taylor decision is consistent with Supreme Court precedent if read as
setting forth a test to determine whether a statement actually is a statement against penal interest, and that such
statements are, in turn, firmly rooted hearsay exceptions. Respondent does, in fact, imply in its brief to this Court that
the Wright decision is inapplicable because the Wright court was dealing with the admissibility of a statement under the
residual hearsay exception. (See Resp. Br. 25.) This argument fails for two reasons. First, whether admitted as either
a statement against penal interest or under the residual exception, a declaration must pass the test set forth in Ohio v.
Roberts (see infra) to preclude a Confrontation Clause violation. A statement can only pass Roberts if it 1) is a firmly
rooted hearsay exception (and hence so traditionally trustworthy that individual case analysis is unnecessary), or
2) possesses its own particularized indicia of reliability. A statement against penal interest was not a firmly rooted
hearsay exception in 1996, see infra; therefore such statements must be analyzed under Roberts’ second prong, making
applicable the 1990 Wright decision, which analyzed the admitted statement under Roberts’ second prong. Second, the
Taylor test, a fortiori, purports to set forth an analysis of when a statement against penal interest is trustworthy enough
to merit admission without Confrontation Clause problems, both because of the posture of the case and the test itself,
which includes consideration of the declarant’s penal interest as only one factor in the overall test.
         6
          The Wright decision came out on June 25, 1990, while the Kentucky Taylor decision came more than two
months later, on June 27, 1990.
         7
          While the Supreme Court cited to Wright several times in decisions issued between 1990 and 1995, no majority
opinion called the Wright decision into question.
 No. 03-6216           Fulcher v. Motley                                                         Page 31


        Respondent cites to Early v. Packer, 537 U.S. 3, 8 (2002), for the proposition that a state court
need not cite, or even be aware of, Supreme Court precedent, so long as “neither the reasoning nor
the result of the state-court decision contradicts them.” (Resp. Br. 23.) But the reasoning – i.e., the
Taylor test – used by the Kentucky high court here directly contradicts clearly established Supreme
Court precedent. Moreover, this is not the first time that this Court has encountered a Kentucky state
court relying on Taylor to admit an accomplice’s mutually inculpatory statements against a criminal
defendant. In Vincent v. Seabold, 226 F.3d 681 (6th Cir. 2000), this Court held that the trial court’s
reliance on Taylor resulted in a result “contrary to” clearly established Supreme Court precedent, id.
at 684-85, 689. While the Vincent panel did not elaborate on the particulars of the Taylor test, its
ultimate finding demonstrates the constitutional infirmity of Taylor’s ongoing application by the
Kentucky courts in these circumstances.
           Because the Supreme Court of Kentucky used a legal standard manifestly “contrary to”
clearly established federal law, this Court reviews the admissibility of Ash’s statement de novo.
Williams, 529 U.S. at 413 (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite that reached by this Court on a question of law
. . . .”); 28 U.S.C. § 2254(d)(1).
D.      Ash’s Statement Was Inadmissible Under Roberts
       “In Ohio v. Roberts, the Supreme Court set forth ‘a general approach for determining when
incriminating statements admissible under an exception to the hearsay rule also meet the requirements
of the Confrontation Clause.’” Wright, 497 U.S. at 815 (citing Ohio v. Roberts, 448 U.S. 56, 65
(1980)). Roberts set forth two ways in which the “indicia of reliability” requirement could be met:
        1)      where the hearsay statement “falls within a firmly rooted hearsay exception,” or
        2)      where it is supported by “a showing of particularized guarantees of trustworthiness.”
Id. at 816 (citing Roberts, 448 U.S. at 66); see also Lee v. Illinois, 476 U.S. 530, 543 (1986) (“Even
if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus
presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless
meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized
guarantees of trustworthiness.’”) (footnote and citation omitted).
        1.      Statement Against Penal Interest Is Not a Firmly Rooted Hearsay Exception
        Respondent argues that a statement against penal interest is, alternatively, either a “firmly
rooted hearsay exception,” or that the state of the law in 1996 was ambiguous enough to preclude this
Court from finding that a state court’s determination as such in 1996 was “contrary to” clearly
established Supreme Court precedent. At this stage of this analysis, however, this Court has
established that the Supreme Court of Kentucky’s application of the Taylor criteria was “contrary to”
clearly established precedent. See supra. AEDPA, therefore, does not require that this Court defer
to the Supreme Court of Kentucky’s reasoning or conclusions on this issue inasmuch as they pertain
to matters of constitutional law. Rather, this Court analyzes the admissibility of the statement de
novo, treating the Roberts analysis as the first step in its harmless error review – i.e., was the Supreme
Court of Kentucky’s application of a constitutionally infirm test merely “harmless error”? That is,
would the admissibility of the statement have been upheld under the correct legal theory? If we find
the statement inadmissible, we next ask whether the improper admission undermines confidence in
the outcome of the trial.
        “Admission under a firmly rooted hearsay exception satisfies the constitutional requirement
of reliability because of the weight accorded longstanding judicial and legislative experience in
assessing the trustworthiness of certain types of out-of-court statements.” Wright, 497 U.S. at 817.
No. 03-6216                 Fulcher v. Motley                                                                         Page 32


A hearsay exception is “firmly rooted” if, in light of “longstanding judicial and legislative
experience,” Wright, 497 U.S. at 817, it “rests [on] such [a] solid foundation that admission of
virtually any evidence within [it] comports with the ‘substance of the constitutional protection.’”
Roberts, 448 U.S. at 66 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)). A “firmly
rooted” hearsay category has conditions which have proven over time “to remove all temptation to
falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and
cross-examination at a trial. Mattox, 156 U.S. at 244. The Supreme Court has found spontaneous
declaration firmly rooted, for example, because the exception “is at least two centuries old, currently
widely accepted among the States,” and carries “substantial guarantees of . . . trustworthiness . . .
[that] cannot be recaptured even by later in-court testimony.” White v. Illinois, 502 U.S. 346, 355-56
n.8 (1992). Established practice, in short, must confirm that statements falling within a category of
hearsay inherently “carry special guarantees of credibility” essentially equivalent to, or greater than,
those produced by the Constitution’s preference for cross-examined trial testimony. Id. at 356.
        This Court has found, on several occasions, that a statement against penal interest is not a
firmly rooted hearsay exception, at least insofar as the exception is used to admit a declarant’s
mutually inculpatory statement against a criminal defendant. See Hill, 337 F.3d at 715-16 (finding
state court’s reliance on a statement against penal interest as a clearly established hearsay exception
“contrary to” clearly established federal law); see also United States v. McCleskey, 228 F.3d 640, 644
(6th Cir. 2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit
the introduction of hearsay declarations uttered by accomplices in law enforcement custody that
inculpate a defendant, absent further ‘particularized guarantees’ of the declaration’s
trustworthiness.”). Compare Calvert v. Wilson, 288 F.3d 823, 837-38 (6th Cir. 2002) (finding a
declarant’s mutually inculpatory statement inadmissible against a third-party criminal defendant),
with Neuman v. Rivers, 125 F.3d 315, 319-20 (6th Cir. 1997) (finding statements against penal
interest firmly rooted when admitted against the declarant). Moreover, this Court has found that it
was clearly established, prior to the Supreme Court’s 1999 Lilly decision, that such statements were8
not firmly rooted hearsay exceptions in light of the Supreme Court’s precedents in Douglas (1965),
Bruton (1968),9 and Lee (1990). See Hill, 337 F.3d at 715-16. Even were this Court to get past
Kentucky’s application of the Taylor factors and apply the deferential AEDPA standard of review,
then, Respondent’s argument would still fail because admitting an inculpatory statement, not against




         8
           In Douglas v. Alabama, 380 U.S. 415 (1965), the Supreme Court held that the admission of a nontestifying
accomplice’s confession, which shifted responsibility and implicated the defendant as the triggerman, “plainly denied
[the defendant] the right of cross-examination secured by the Confrontation Clause.” Id. at 419. A quarter century later,
in Lee, the Court reaffirmed Douglas and explained that “the truthfinding function of the Confrontation Clause is
uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without
the benefit of cross-examination . . . . Due to his strong motivation to implicate the defendant and to exonerate himself,
a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee,
476 U.S. at 544 (internal quotations and citations omitted). The Lee Court recognized that due to the sweeping scope
of the label, the simple categorization of a statement as a “‘declaration against penal interest’ . . . defines too large a class
for meaningful Confrontation Clause analysis.” Id. at 544 n.5.
         9
            In Bruton v. United States, the Supreme Court unanimously found that a codefendant’s mutually inculpatory
confession could not be used against the declarant’s accomplice without infringing on the defendant’s rights under the
Confrontation Clause. 391 U.S. at 138. In the years since Bruton, the Supreme Court has consistently either stated or
assumed that the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not
justify its use as evidence against another person. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (“Where two
defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing
defendant takes the stand.”); Cruz v. New York, 481 U.S. 186, 189-90, 193 (1987) (same).
 No. 03-6216               Fulcher v. Motley                                                                     Page 33


the declarant, but 10
                   against an accomplice, was “contrary to” clearly established Supreme Court
precedent in 1996.
         2.       Ash’s Statement Bore Insufficient Indicia of Reliability
         The Supreme Court of Kentucky found Ash’s statement reliable in light of:
         1)       the timing of the declaration (shortly after the crime) and the party to whom it was
                  made (the police),
         2)       the fact that the police found the key where Ash indicated it would be,
         3)       Petitioner’s accomplice at trial corroborated Ash’s version of the key request,
         4)       the actual crime scene, which would corroborate that Petitioner would have had blood
                  on his clothes; and
         5)       that the statement was assuredly “against Ash’s penal interest,” inasmuch as she was
                  in a custodial setting, had been read her Miranda rights, was aware that the police
                  were investigating a murder, and would have known her actions, as disclosed to the
                  police, helped Petitioner dispose of the fruits of a crime and evidence.
        Of these elements, items 2 through 4 are impermissible considerations under Roberts, Lee,
and Wright; rather, the only inherent features of the statement to which the Supreme Court of
Kentucky pointed are the timing of the declarations, the facts that the statements were made to the
police, and that parts of the statement inculpated Ash herself.
         The first two factors actually caution against finding Ash’s statements inherently trustworthy.
The Supreme Court has found that custodial statements made in response to the police’s leading
questions, when the declarant is under some suspicion related to the crime under investigation, are
inherently untrustworthy. See Lee, 476 U.S. at 544. Neither has the Supreme Court found the timing
of a statement itself a sufficient indicator of reliability. Id. In fact, most accomplices are interviewed
shortly after the crime. Here, about 10 days had passed. The fact that the statement was against
Ash’s penal interest does not distinguish the case from the Supreme Court’s well-established
jurisprudence finding that such custodial, mutually inculpatory statements are inherently
untrustworthy. Id.
        Nothing about Ash’s statement bore “particular guarantees of reliability.” The fact that a
statement took place shortly after the crime is insufficient, standing alone, to overcome the
presumption of unreliability accorded to statements which both inculpate the declarant and the
criminal defendant in the same crime. Ash’s statement did exactly what the Supreme Court fears
such statements do – at the cost of some inculpability of the declarant, the declarant curries police
favor, minimizes her own role, and inculpates another actor. Id. at 546. This suspicion is borne out

          10
             The “against penal interest” exception to the hearsay rule is not premised on the traditional hearsay exception
 rationale; circumstances of the traditional hearsay exception indicate that it is made without a motive to reflect on the
 legal consequences of one’s statement; and the situations in which the statement is made are exceptionally conducive
 to veracity and lack the dangers of inaccuracy that typically accompany hearsay. Rather, the “against penal interest”
 exception is founded on the broad assumption “that a person is unlikely to fabricate a statement against his own interest
 at the time it is made.” Chambers, 410 U.S. at 299. But this rationale does not suppose that the declarant’s
 unwillingness to inculpate himself extends to his accomplices or those who otherwise assisted or engaged in the crime.
 The practice of admitting mutually inculpatory hearsay statements is a relatively recent phenomenon of the past two
 decades. The reality of such statements, however, is that they typically include statements that, when offered in the
 absence of the declarant, function similarly to those used in the ancient ex parte affidavit system which the hearsay rule
 was designed to address.
No. 03-6216            Fulcher v. Motley                                                     Page 34


in Ash’s case. At the conclusion of her statement, the police assured Ash that she was not being
looked upon as a suspect in the case – despite the fact that the police had placed Ash in custody and
Mirandized her for questioning. (See J.A. at 57.) Ash was incentivized to tell the police what they
wanted to hear. The Supreme Court of Kentucky pointed to no features of Ash’s statement which
would indicate that the statement bore “particularized guarantees of trustworthiness.”
        Respondent argues that Ash was not a codefendant to Petitioner, nor a true “accomplice” to
Petitioner’s alleged crime, thereby placing Ash’s statement outside the bounds of Supreme Court case
law which treats such statements as presumptively unreliable. Respondent points out that destruction
of evidence is a separate crime in Kentucky law, and that Ash’s statements therefore implicate Ash
in a different crime than Petitioner’s. Respondent’s argument in this respect is without merit.
Whether Kentucky state law treats Ash’s actions as a separate crime or as something akin to an
“accomplice after the fact,” the basic premise making Ash’s statement presumptively unreliable
remains. Ash had an incentive to minimize her actions and to curry favor with the police. Whatever
the state of Kentucky ultimately chose to charge Ash with for her role in destroying evidence relevant
to the death of Charlie Bramer does not affect the presumptive unreliability of her statement made
just 10 days after the crime itself. Because the introduction of the statement was not harmless error,
see supra, under the rule of Ohio v. Roberts the writ must be granted.
                                                 IV.
                                           CONCLUSION
        Because Crawford is a watershed rule of criminal procedure, I would apply Crawford to find
that the introduction of Ash’s taped statement violated Petitioner’s rights under the Confrontation
Clause of the Sixth Amendment. Even absent the application of Crawford, however, I agree with
the lead opinion that the Kentucky Taylor test was contrary to clearly established law under Ohio v.
Roberts. Accordingly, the writ must be granted.
