                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-3169
OBADYAH BEN-YISRAYL,
                                            Petitioner-Appellee,
                               v.

CECIL DAVIS,
                                        Respondent-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, South Bend Division.
               No. 01 C 871—Allen Sharp, Judge.
                         ____________
 ARGUED OCTOBER 27, 2004—DECIDED DECEMBER 13, 2005
                    ____________


  Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. An Indiana jury convicted
Obadyah Ben-Yisrayl, formerly known as Christopher
Peterson, of murdering Harchand Dhaliwal and Marie
Meitzler. After the Indiana Supreme Court affirmed Ben-
Yisrayl’s conviction and sentence on direct appeal and
denied Ben-Yisrayl collateral relief, the district court
granted his petition for writ of habeas corpus. On appeal,
we find the Indiana Supreme Court’s determination that
the prosecutor did not violate Ben-Yisrayl’s Fifth Amend-
ment rights during his closing argument to be an unreason-
able determination in light of the evidence. In addition, we
find the state court’s determination of the constitutional
2                                              No. 03-3169

error in Ben-Yisrayl’s case an unreasonable application of
clearly-established, federal law. We, therefore, affirm the
judgment of the district court.


                    I. BACKGROUND
  This case involves the murders of Harchand Dhaliwal and
Marie Meitzler in December, 1990. On January 28, 1991,
the Lake County, Indiana police arrested Antwion McGee
in connection with a separate shooting and car theft. Based
on statements McGee made while in custody, the police
then arrested and interviewed Ben-Yisrayl on January 29
in connection with the separate shooting and car theft.
During the ensuing police interview, Ben-Yisrayl further
implicated McGee in the crimes. Once confronted with Ben-
Yisrayl’s statements, McGee accused Ben-Yisrayl of being
involved with the Dhaliwal and Meitzler killings and led
police to Ben-Yisrayl’s former home, where police found a
sawed-off shotgun and shotgun shells in Ben-Yisrayl’s
bedroom.
  The police confronted Ben-Yisrayl with McGee’s state-
ments and the discovery of the shotgun in his closet. Before
the confrontation, however, the police read Ben-Yisrayl his
Miranda rights, and after the confrontation, the police
allowed Ben-Yisrayl to speak with his mother. After
speaking with his mother, Ben-Yisrayl waived his Miranda
rights the next morning and confessed to his role in the
Dhaliwal and Meitzler shootings.
  Based on his confession to the police and McGee’s cooper-
ation, Ben-Yisrayl was charged with the murders
of Dhaliwal and Meitzler. Ben-Yisrayl, however, re-
canted his statement to the police, pled not guilty to the
charges and proceeded to trial where he chose not to testify
in his own defense. Just before closing arguments in his
trial, attorneys for both sides met for a sidebar with the
judge. During the sidebar, the prosecutor expressed an
No. 03-3169                                                  3

intention to argue to the jury that no evidence had been
presented as to why Ben-Yisrayl would have given a
false confession. Ben-Yisrayl’s attorneys objected to this line
of argument as a direct reference to Ben-Yisrayl’s decision
not to testify, and the judge agreed that the proposed
comments would be inappropriate. The prosecutor ignored
the court’s admonishment, however, and shortly after the
sidebar made the following statement to the jury during
closing argument:
    I told you in the opening statement that the Defen-
    dant confessed to killing these [two] people with his
    shotgun. We proved that. We told you that was the
    cornerstone of our case and why? Because it is self
    evidence [sic] that no one freely and voluntarily
    confesses to a murder unless they’re guilty. Let the
    Defendant tell you why somebody would freely and
    voluntarily confess to—
(Trial Record at 5568.) At that moment, the defense attor-
neys interrupted the prosecutor and objected to the prosecu-
tor’s argument and moved the court for a mistrial. Un-
abated, the prosecutor continued to speak over the objection
stating:
        —on general, why—
        ...
        —defendant’s counsel can say why a person
        can confess to a crime.
(Trial Record at 5568.) The court took defense counsels’
motion for a mistrial under advisement and allowed the
prosecutor to continue with his closing argument. The
prosecutor then continued to focus the jury’s attention on
the defendant’s confession:
    I said the confessions were the cornerstone of our
    case because it’s self evidence [sic] that no one,
    anybody, nobody will ever confess to a murder
4                                                No. 03-3169

    freely and voluntarily unless they commit [sic]
    it. . . . So if you believe that there isn’t any reason
    for somebody to admit to murder unless they did it,
    you’re there. . . . What are the chances that if
    somebody falsely accuses me of murder that within
    24 hours I’m going to falsely admit to it[?] They
    don’t match. I mean it just doesn’t make sense.
    It’s—two things don’t make sense.
(Trial Record at 5570-75.) The court found that the prosecu-
tor’s comments were not improper and denied the defen-
dant’s request for a mistrial. The defendant then asked for
a jury instruction admonishing the jury as to the prosecu-
tor’s comment. The court denied counsel’s proposed in-
struction and responded that the instructions already given
were more relevant than the instruction proposed, which
would only call attention to what the court had already told
the jury to disregard. The jury convicted Ben-Yisrayl on all
charges and recommended that he be sentenced to death.
The judge agreed with the jury’s recommendation and
entered judgment accordingly.
  In his ensuing direct and collateral appeals, Ben-Yisrayl’s
counsel attempted to compile a complete and accurate
record of the trial proceedings. Counsel was greatly im-
peded in this effort, however, by the state of the official
record. Before finishing the process of transcribing her
notes, the court reporter from Ben-Yisrayl’s trial resigned
as a result of illness. A second court reporter and various
specialists worked to complete the transcription, and they
ultimately finished the job with significant difficulty and
only partial success. The resulting record was replete with
lines marked “undecipherable” and errors both major and
minor, as the concurring opinion, infra, indicates.
  The Indiana Supreme Court ordered Ben-Yisrayl’s two
trial attorneys, the deputy prosecutor, and the trial judge to
reconstruct the missing portions of the record as well
as they could. If either party objected to any portion of
No. 03-3169                                                        5

the final version, that party was to inform the court by
February 1, 1995. Neither side objected, and the court
declared the reconstruction process complete on May 8,
1995.
  On direct appeal, Ben-Yisrayl presented twenty claims. In
particular, Ben-Yisrayl claimed that reversible error
occurred when, during its closing argument, the govern-
ment directly commented on the defendant’s decision to
exercise his constitutional right not to testify. Ben-Yisrayl
v. State, 690 N.E.2d 1141, 1148 (Ind. 1997) (“Ben-Yisrayl
I”). Citing Moore v. State, 669 N.E.2d 733 (Ind. 1996)1 in
support, the Indiana Supreme Court determined that the
jury in the case could not have reasonably interpreted the
prosecutor’s comments as a suggestion to infer guilt from
the defendant’s silence. Ben-Yisrayl I, 690 N.E.2d at 1149.
The state court concluded that the prosecutor did not
commit reversible error and the trial court did not abuse its
discretion in refusing to grant a mistrial and refusing to
give an admonishment to the jury. Id. The Indiana Supreme
Court also affirmed Ben-Yisrayl’s conviction and sentence
on collateral review. Ben-Yisrayl v. State, 753 N.E.2d 649
(Ind. 2001) (“Ben-Yisrayl II”).



1
   In Moore, the Indiana Supreme Court analyzed both the
historical and contemporary treatment of a prosecutor’s comments
on the defendant’s failure to testify and held that “The Fifth
Amendment privilege against compulsory self-incrimination is
violated when a prosecutor makes a statement that is subject to
reasonable interpretation by a jury as an invitation to draw an
adverse inference from a defendant’s silence.” 669 N.E.2d at 739.
Moore made clear that direct and indirect references to the
defendant’s failure to testify are not, per se, improper. Id. Indiana
courts, therefore, look to whether the prosecutor’s comments in a
particular case could reasonably be interpreted by the jury as an
invitation to draw an adverse inference from the defendant’s
silence.
6                                                No. 03-3169

  In his petition for writ of habeas corpus, Ben-Yisrayl
again raised many issues, but the district court only
addressed two: comments made by the prosecutor during
closing argument and the concerns regarding the accu-
racy of the trial transcript. In granting Ben-Yisrayl’s
petition, the district court held that the prosecutor’s
comments during closing argument constituted a viola-
tion of Ben-Yisrayl’s rights, Ben-Yisrayl v. Davis, 277
F. Supp. 2d 898, 903 (N.D. Ind. 2003) (“Ben-Yisrayl III”),
and that the Indiana Supreme Court did not reasonably
apply United States Supreme Court precedent when it ruled
on Ben-Yisrayl’s Fifth Amendment claim or when it ruled
that any alleged Fifth Amendment violation was harmless
error. Id. at 905. In addition, the district court found that
the inadequacy of the state trial court record constituted a
due process violation. Id. at 905-06.


                      II. ANALYSIS
  We review the district court’s grant of Ben-Yisrayl’s
petition for habeas relief de novo. Barrow v. Uchtman, 398
F.3d 597, 602 (7th Cir. 2005). A federal court “shall enter-
tain an application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a state
court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a) (2000). The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996), substantially amended the statutory
law governing federal review of habeas corpus petitions. See
28 U.S.C. §§ 2244, 2253, 2254, and 2255 (2000). The
amendments “place[ ] a new constraint” on the ability of a
federal court to grant habeas corpus relief to a state
prisoner “with respect to claims adjudicated on the merits
in state court.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A federal court cannot grant a petition for a writ of habeas
No. 03-3169                                                 7

corpus filed by a person in state custody with regard to any
claim that was rejected on the merits by the state court
unless the adjudication of the claim in state court either:
    (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 proceed-
    ing.
28 U.S.C. § 2254(d). A state court’s factual findings are
presumed correct, and the petitioner has the burden of
rebutting them with clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
  A 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 decided a case differently than [the
Supreme] Court has on a set of materially indistinguishable
facts.” Williams, 529 U.S. at 413. A state court decision is
an “unreasonable application” of clearly established federal
law “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unrea-
sonably applies that principle to the facts of the prisoner’s
case.” Id.
  In evaluating whether the state court made an “unreason-
able determination of the facts in light of the evidence” we
must be objectively convinced that the record before the
state court does not support the state court’s findings in
question. Under this framework, an unreasonable determi-
nation of the facts in light of the evidence can occur where
the state-court finding is unsupported by sufficient evi-
dence. See, e.g., Wiggins v. Smith, 539 U.S. 510, 520-21
8                                                No. 03-3169

(2003); Ward v. Sternes, 334 F.3d 696, 705-08 (7th Cir.
2003).
  In the instant case, two issues are before us: Ben-Yisrayl’s
Fifth Amendment claim relating to the prosecutor’s com-
ments during closing argument and his Due Process claim
relating to the veracity and accuracy of the trial transcript.
Both issues were adjudicated on the merits by the Indiana
Supreme Court, but because we find sufficient grounds to
affirm the district court’s grant of the writ on Ben-Yisrayl’s
Fifth Amendment claim, we will not reach his Due Process
claim.


A. Ben-Yisrayl’s Fifth Amendment Rights
  Ben-Yisrayl claims that the prosecutor’s comments during
closing argument violated his Fifth Amendment privilege
not to be compelled to testify. As the Supreme Court has
made clear, “Where the prosecutor on his own initiative
asks the jury to draw an adverse inference from a defen-
dant’s silence, . . . the privilege against compulsory
self-incrimination is violated.” United States v. Robinson,
485 U.S. 25, 32 (1988). In addition, indirect references to
the defendant’s failure to testify are constitutionally
impermissible if “the language used was manifestly in-
tended to be or was of such a character that the jury would
naturally and necessarily take it to be a comment on the
defendant’s failure to testify.” United States ex rel. Burke v.
Greer, 756 F.2d 1295, 1300 (7th Cir. 1985) (quoting United
States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).
  In addressing Ben-Yisrayl’s Fifth Amendment claim, the
Indiana Supreme Court “looked to whether the prosecutor’s
comments in this case could reasonably be interpreted by
the jury as an invitation to draw an adverse inference from
the defendant’s silence,” Ben-Yisrayl I, 690 N.E.2d at 1149.
The state court found as follows:
No. 03-3169                                                 9

    The jury in this case could not reasonably have
    interpreted the prosecutor’s comments as sugges-
    tion to infer guilt from the defendant’s silence.
    While the prosecutor could have been more articu-
    late, it is clear that he was responding to any
    possible implications that the defendant’s confes-
    sion was less than voluntary. His “challenge” to
    defense counsel was made to illustrate that the only
    reason a defendant would confess to a crime he did
    not commit would be because of coercion or duress.
    He then pointed out that the State presented
    substantial evidence that the confession was not
    the result of coercion or duress. Consequently, he
    was arguing that the confession should be taken by
    the jury as direct evidence of the defendant’s guilt.
    The theme of the State’s argument was a challenge
    directed at defense counsel which pointed out the
    uncontradicted nature of the State’s evidence of
    voluntariness and invited defense counsel to ex-
    plain, in its closing argument, any contrary conclu-
    sions.
Ben-Yisrayl I, 690 N.E.2d at 1149. We find that the Indiana
Supreme Court’s determination of Ben-Yisrayl’s Fifth
Amendment right is not a decision contrary to or based
upon an unreasonable application of clearly-established
federal law. Instead, we find that its determination that the
jury in Ben-Yisrayl’s case could not have reasonably
interpreted the prosecutor’s comments as a suggestion to
infer guilt from the defendant’s silence an unreasonable
determination of the facts in light of the evidence.
  The Indiana Supreme Court’s decision denying Ben-
Yisrayl’s Fifth Amendment claim was based upon its factual
determination that the prosecutor’s comment, “Let the
Defendant tell you” was not directed at Ben-Yisrayl individ-
ually, but, “a challenge directed at defense counsel” that,
“invited defense counsel to explain, in its closing argument,”
10                                                No. 03-3169

why the jury should not take the confession as valid. Ben-
Yisrayl I, 690 N.E.2d at 1148 n.17. We find this determina-
tion by the Indiana Supreme Court unsupported by suffi-
cient evidence. Just seconds before the prosecutor invited
the jury to “Let the Defendant tell you,” the prosecutor told
the jury that “the Defendant confessed to killing these [two]
people with his shotgun.” Trial Record at 5568, quoted in
Ben-Yisrayl III, 277 F. Supp. 2d at 901. Specifically, the
prosecutor stated:
     I told you in the opening statement that the Defen-
     dant confessed to killing these [two] people with his
     shotgun. We proved that. We told you that was the
     cornerstone of our case and why? Because it is self
     evidence [sic] that no one freely and voluntarily
     confesses to a murder unless they’re guilty. Let the
     Defendant tell you why somebody would freely and
     voluntarily confess . . .
(Id.) Over an objection from defense counsel, the prosecutor
further compounded his challenge to Ben-Yisrayl by
continuing to focus the jury’s attention on the defendant’s
confession:
     I said the confessions were the cornerstone of our
     case because it’s self evidence [sic] that no one,
     anybody, nobody will ever confess to a murder
     freely and voluntarily unless they commit [sic]
     it. . . . So if you believe that there isn’t any reason
     for somebody to admit to murder unless they did it,
     you’re there. . . . What are the chances that if
     somebody falsely accuses me of murder that within
     24 hours I’m going to falsely admit to it[?] They
     don’t match. I mean it just doesn’t make sense.
     It’s—two things don’t make sense.
(Trial Record at 5570-75.) Without a doubt, the references
in this argument to “the Defendant” were aimed at Ben-
Yisrayl alone and not at his counsel. Thus, it was at least
reasonable for the jurors to interpret the prosecutor’s
No. 03-3169                                               11

recommendation to “Let the Defendant tell you” as a
reference to Ben-Yisrayl individually, and, therefore
unreasonable for the Indiana Supreme Court to determine
that no juror could have reasonably made this logical jump.
  In following with the legal maxim noscitur a sociis,2 that
a term can be properly defined by interpreting the text
surrounding that term, we find that the prosecutor’s
natural progression of references including his challenge,
“Let the Defendant tell you” was purposeful, directed at
Ben-Yisrayl individually, and intended to guide jurors to an
impermissible inference under the Fifth Amendment. The
progression of the prosecutor’s words constitute clear and
convincing evidence rebutting the Indiana Supreme Court’s
finding that the jury in this case could not reasonably have
interpreted the prosecutor’s comments as a suggestion to
infer guilt from the defendant’s silence.
  Additional clear and convincing evidence rebutting the
state court’s finding can be found by analyzing how the
prosecutor used the term “Defendant” throughout its entire
closing argument. The district court also reviewed how the
prosecutor used the term “Defendant” throughout the
closing argument and by the district court’s count, in the
portion of the argument that preceded the suspect language,
the prosecutor used “the Defendant” to refer to Ben-Yisrayl
alone seven times3 and used the term to refer to Ben-
Yisrayl’s counsel only once.4 Our own independent review
reveals an additional instance in which the prosecutor used
“the Defendant” to refer to Ben-Yisrayl,5 one where the




2
    “a word is known by the company it keeps.”
3
  Trial Record at 5554:22, 5555:17, 5556:10, 5556:22, 5557:1,
5567:25, 5568:4.
4
    T.R. at 5567:14.
5
    T.R. at 5554:14.
12                                                    No. 03-3169

prosecutor’s use of the word “Defendant” was unclear,6 and
six in which the prosecutor referred to a generic or hypo-
thetical defendant.7
  In the portion of the argument that followed, “Let the
Defendant tell you,” the district court located forty-nine
instances in which the prosecutor used “the Defendant” to
refer to Ben-Yisrayl alone,8 compared to only four instances
where “the Defendant” meant Ben-Yisrayl’s counsel.9 We
agree with the district court’s assessment of the record, and
we have located two additional instances in which the
prosecutor referred to Ben-Yisrayl individually as “the
Defendant”;10 one in which the prosecutor referred to a
generic or hypothetical defendant11; and one case where we
find the term used ambiguously.12
  By our count, then, the part of the State’s closing argu-
ment that preceded the challenged language included eight
clear references to Ben-Yisrayl as “the Defendant” versus
one to his counsel, and the portion after the quotation
included fifty clear references to Ben-Yisrayl as “the Defen-
dant” versus four to his counsel. As a result, in looking at


6
     T.R. at 5558:22.
7
     T.R. at 5559:25, 5560:1, 5567:17, 5567:20, 5567:21, 5567:23.
8
  T.R. at 5570:21, 5571:8, 5571:13, 5571:16, 5571:20, 5571:22,
5572:1, 5572:11, 5573:8, 5573:12, 5573:21, 5573:21, 5573:23,
5573:24, 5574:2, 5574:5, 5574:13, 5574:23, 5574:25, 5575:1, 5575:8,
5575:21, 5576:2, 5576:2, 5576:6, 5576:8, 5576:9, 5576:13, 5576:17,
5576:22, 5578:1, 5578:3, 5578:10, 5578:14, 5579:1, 5579:2, 5579:13,
5580:1, 5581:5, 5583:4, 5583:20, 5583:22, 5585:4, 5585:18, 5585:22,
5585:23, 5586:19, 5588:3, 5589:8.
9
     T.R. at 5573:13, 5580:5, 5582:2, 5588:14.
10
     T.R. at 5568:17, 5587:4.
11
     T.R. at 5582:9.
12
     T.R. at 5573:24.
No. 03-3169                                               13

the prosecutor’s closing argument as a whole, these over-
whelming statistics constitute further evidence that,
contrary to the finding of the Indiana Supreme Court, a
reasonable juror could indeed interpret “Let the Defendant
tell you” as a reference to Ben-Yisrayl individually, and not
to his counsel.
  The respondent argues that such statistical evidence
is immaterial because there is no predictive value in the
prosecutor’s references to Ben-Yisrayl individually as it
is clear from the record that the prosecutor said “the
Defendant” when he meant either Ben-Yisrayl or Ben-
Yisrayl’s counsel.
  Respondent’s argument is unavailing as the question
before us is not whether the jury could ascertain with any
certainty whether the prosecutor’s use of “the Defendant”
was a reference to Ben-Yisrayl’s counsel rather than to Ben-
Yisrayl individually. Instead, our inquiry is whether, based
on the prosecutor’s comments as a whole, it would have
been reasonable for a juror to interpret the chal-
lenged prosecutor’s comments as reference to Ben-Yisrayl
individually. Because the Indiana Supreme Court found
that it was unreasonable for any juror to interpret the pros-
ecutor’s comments as reference to Ben-Yisrayl individually,
but expressed no comment on whether a juror could predict
with any certainty the target of the prosecutor’s comments,
the respondent’s argument in no way undermines the clear
and convincing evidence rebutting the state court’s determi-
nation.
  The facts of this case, reasonably construed, indicate that
the jury could have believed that the prosecutor was
arguing that, because Ben-Yisrayl failed to testify as to why
he would confess to a crime that he did not commit, the
inference is that his confession was voluntary and true. The
prosecutor’s challenge to Ben-Yisrayl to explain his confes-
sion is closely analogous to the jury instruction that the
14                                               No. 03-3169

Supreme Court expressly ruled unconstitutional in Griffin
v. California:
     As to any evidence or facts against him which the
     defendant can reasonably be expected to deny or
     explain because [they are] within his knowledge, if
     he does not testify . . . the jury may take that
     failure into consideration as tending to indicate the
     truth of such evidence and as indicating that among
     the inferences that may be reasonably drawn
     therefrom those unfavorable to the defendant are
     most probable.
380 U.S. 609, 610 (1965).


B. Harmless Error
   A constitutional error at trial does not mean that a
state prisoner is automatically entitled to habeas corpus
relief. This circuit has held that under § 2254(d), finding
error is only a necessary step. See Aleman v. Sternes, 320
F.3d 687, 690 (7th Cir. 2003) (explaining that constitutional
error is necessary, but insufficient to grant a writ under
§ 2254(d)). An error can serve as grounds for habeas corpus
relief only if the error had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 638 (1993); Aleman, 320 F.3d
at 689-90. As a result, we cannot issue writs of habeas
corpus based on constitutional errors that are proven
“harmless beyond a reasonable doubt.” Chapman v. Califor-
nia, 386 U.S. 18, 24 (1966); Aleman, 320 F.3d at 689-90.
  In this case, the Indiana Supreme Court determined that
the challenged comment in the prosecutor’s closing argu-
ment, even if improper, was harmless, as Ben-Yisrayl’s
confession sufficed to ensure conviction on its own. Ben-
Yisrayl I, 690 N.E.2d at 1149 n.18. The court reasoned
that “The evidence presented supporting the defendant’s
No. 03-3169                                               15

guilt was not ‘close,’ it was overwhelming.” Id. at 1149.
When the state court concludes that any error was or would
be harmless, that finding is subject to the same standard of
review as is any other legal conclusion—de novo. Mitchell v.
Esparza, 540 U.S. 12, 17 (2003) (per curiam). That is, we
must accept it unless it is contrary to or represents an
unreasonable application of clearly established federal
law. Mitchell, 540 U.S. at 17-18. In Chapman v. Cali-
fornia, 386 U.S. 18 (1967), the Supreme Court set forth the
test for determining whether a constitutional error is
harmless. The test is whether it appears “beyond a rea-
sonable doubt that the error complained of did not contrib-
ute to the verdict obtained.” Id. at 24. If the error com-
plained of contributed to the verdict obtained, then the
error is not harmless. Id.
  To support its finding that the evidence against Ben-
Yisrayl was overwhelming, the Indiana Supreme Court
made the following points, based on its reading of the
evidence from trial: (1) Ben-Yisrayl confessed to police; (2)
he confessed to “an acquaintance”; (3) he acknowledged that
he owned a gun that “was identified as the same weapon
used to commit the murders”; (4) witnesses corroborated his
ownership of the gun; (5) the gun was found in an apart-
ment where Ben-Yisrayl formerly lived; and (6) “Three
other witnesses testified they saw [Ben-Yisrayl] or his car
either at the murder scene or in close proximity thereto.”
Ben-Yisrayl I, 690 N.E.2d at 1147-48.
  Items (3), (4), and (5) all go toward showing that Ben-
Yisrayl owned a particular gun that was seized by the
police. But the Indiana Supreme Court erred when it stated
that Ben-Yisrayl’s gun “was identified as the same weapon
used to commit the murders.” Id. at 1148. At trial, Kevin
Judge, a firearms and toolmark examiner, testified that the
shotgun wadding recovered from the two victims, as well as
from the Dhaliwal crime scene was consistent with a 12-
gauge shotgun. However, Judge could not identify the
16                                               No. 03-3169

shotgun that fired that wadding. In response to defense
counsel’s question whether he could match the wadding to
Ben-Yisrayl’s gun, Judge conceded, “in this case, no, there
wasn’t enough marks on the wadding to compare it to that
weapon.” Thus, at best, the forensic evidence indicates that
a 12-gauge shotgun was used to commit both murders. The
evidence, however, stops short of establishing that Ben-
Yisrayl’s 12-gauge gun was the murder weapon.
  We find, as did the district court, that the Indiana
Supreme Court also exaggerated the value of evidentiary
item (6). Of the “[t]hree other witnesses” the court cited, one
witness placed Ben-Yisrayl about 1.25 miles from the
Dhaliwal murder at around the time of that crime; an-
other witness saw Ben-Yisrayl’s car at the scene of the
Meitzler murder one day before the shooting; and a third
witness saw Ben-Yisrayl at the scene of the Dhaliwal
murder two days after that crime. Ben-Yisrayl III, 277 F.
Supp. 2d at 904-05. None of the witnesses placed Ben-
Yisrayl at either murder scene at the time of the corre-
sponding crime.
  The state court’s reliance on Ben-Yisrayl’s confession to
an “acquaintance,” while not exaggerated, is nonetheless
problematic. The acquaintance to whom Ben-Yisrayl
confessed was McGee, who explained to the jury that he was
testifying as part of a deal he had struck with prosecutors
to reduce his sentence for another shooting. Given his
personal interests in pinning some crime to another individ-
ual to save his own hide, McGee’s testimony in this case is
hardly overwhelming.
  In summary, the evidence that the Indiana Supreme
Court relied on is not overwhelming. In light of the state’s
circumstantial case against Ben-Yisrayl, the jury’s deci-
sion as to guilt or innocence rested heavily on its determina-
tion of the reliability of Ben-Yisrayl’s confession. Without
Ben-Yisrayl’s confession there would have been no convic-
No. 03-3169                                                 17

tion. In challenging Ben-Yisrayl to explain his confession to
the jury, the prosecutor invited the jury to infer guilt from
Ben-Yisrayl’s silence and to deem his confession reliable
and accurate. The prosecutor’s improper closing statements,
therefore, played a significant role in securing a guilty
verdict. As such, we find that the constitutional error in this
case is not harmless, and that the Indiana Supreme Court’s
determination of harmless error in this case was an unrea-
sonable application of clearly-established federal law.


                    III. CONCLUSION
  For the reasons stated above, we AFFIRM the district
court’s grant of Ben-Yisrayl’s petition for writ of habeas
corpus. We remand with instructions to grant the writ
unless the State of Indiana elects to retry him within 120
days from the issuance of this opinion.




  MANION, Circuit Judge, concurring. As the district court
noted in its opinion granting Ben-Yisrayl’s petition for
habeas corpus, “The reality is that a death penalty case,
whether in state or federal court, is different.” Ben-Yisrayl
v. Davis, 277 F. Supp. 2d 898, 903 (N.D. Ind. 2003). The
district court illustrates this difference by noting that in
Indiana it is mandatory that any conviction involving the
death penalty is automatically appealed to the Supreme
Court of Indiana. Also, only lawyers qualified to defend in
death penalty cases are permitted to represent such
defendants. Theoretically, all habeas cases are treated with
the same standards, but realistically, in the case of a
defendant facing death, the appeal invites more scrutiny.
18                                                   No. 03-3169

  After receiving his Miranda warnings, consulting with his
mother, and “sleeping on it,” Obadyah Ben-Yisrayl con-
fessed to murdering several people with his shotgun,
including the gas station attendant and the motel clerk who
were the victims of the murder convictions challenged in
this appeal. In affirming the conviction and penalty, the
Supreme Court of Indiana regarded the evidence as over-
whelming. The court here claims otherwise. If not over-
whelming, I conclude that it was considerable. In addition
to the voluntary confessions, the evidence showed that both
victims were shot in the head at close range with a 12-
gauge shotgun; Winchester AA 8 shotgun waddings were
found at both crime scenes;1 both shootings were in the city
of Portage, two days apart; the shotgun and ammunition
found in his room was the same type used in the murders;
Ben-Yisrayl and/or his car were spotted near the scenes of
the murders; and he “confessed” to McGee, who testified in
exchange for a reduced sentence in an unrelated crime. All
of that evidence notwithstanding, to the prosecution Ben-
Yisrayl’s confession to the police was key. The defense was
unable to show that the confession was coerced or otherwise
involuntary in its cross-examination of police witnesses.
  Although critical of the sufficiency of the evidence, in this
case the court concludes, as did the district court, that the
prosecutor’s statement “Let the defendant tell you
why somebody would freely and voluntarily confess . . .” was
a sufficiently serious constitutional violation to overturn the
conviction. Taken in isolation, the court is correct. Presum-


1
  As the district court noted, “Kevin A. Judge testified that
ballistics tests proved that the defendant’s shotgun fired a
shell casing recovered at a different murder scene and he testified
that all of the shotgun shell fragments recovered from all of the
murder scenes (charged and uncharged) contained number 8 shot
with pink .12 gauge power piston wadding.” Ben-Yisrael, 277 F.
Supp. 2d at 904.
No. 03-3169                                               19

ably, had the prosecutor instead said “defendant’s counsel”,
we would not have reversible error on this issue. The
Supreme Court of Indiana went to great lengths, first to
ascertain the validity of the record that was unfortunately
distorted by an unreliable court reporter, then to evaluate
the context of the prosecutor’s misstatement. Given the
record as a whole, the Supreme Court of Indiana concluded
that “The jury in this case could not reasonably have
interpreted the prosecutor’s comments as a suggestion to
infer guilt from the defendant’s silence.” Ben-Yisrayl v.
State, 690 N.E.2d 1141, 1149 (Ind. 1996). Were it not for the
state of the record, I would be inclined to agree with the
Supreme Court of Indiana. This statement was apparently
isolated. Although the prosecutor made many references to
the defendant, apparently all but this one were appropriate.
Immediately after the statement was made, defense counsel
objected. The trial court took a motion for mistrial under
advisement, but concluded that the court’s instruction to
the jury regarding Ben-Yisrayl’s right not to testify would
sufficiently erase any harm that misstatement might have
caused.
  Based on the evidence presented and the record that is
before us, I would be inclined to agree with the Supreme
Court of Indiana that the prosecutor did not commit
reversible error and the trial court did not abuse his
discretion in refusing to grant a mistrial. But what
moves me to concur with the court’s affirmance of the
district court’s grant of the petition is the unfortunately
defective state of the record from the state trial. Without a
more reliable record to review, it is an unreasonable
application of clearly established federal law to con-
clude that the prosecutor’s statement constituted harm-
less error. See Simmons v. Beyer, 44 F.3d 1160, 1170 (3d
Cir. 1995) (granting conditional writ of habeas corpus
since defendant was prejudiced by inadequate transcripts
that made his claim unreviewable) (citing United States
20                                                 No. 03-3169

v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994) (on direct
appeal remanding for a new trial because inadequate
transcripts precluded review of merits)). I agree with the
district court’s conclusion that “. . . this record simply is not
good enough to sustain a state court death penalty convic-
tion.” Ben-Yisrayl, 277 F. Supp. 2d at 905. As the district
court noted, the original court reporter was having serious
emotional problems. The record was a mess, and in spite of
a valiant effort of counsel and the trial court to piece it
together, it left much to be desired. Because so much of the
analysis on the sufficiency of the evidence, the prosecutor’s
statement in closing argument, and the many references to
other matters throughout the trial are so pivotal, this faulty
record does not provide the foundation necessary to render
due process to the defendant in this appeal. For many of the
reasons stated in the district court’s opinion under the
heading “Inaccurate and Unreliable Transcript,” Ben-
Yisrayl, 277 F. Supp. 2d at 905-07, I concur with this court
that the district court’s grant of Ben-Yisrayl’s petition for a
writ of habeas corpus should be affirmed.
No. 03-3169                                         21

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—12-13-05
