                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 14a0145p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                                                 -
 WILLARD MCCARLEY,
                                                 -
                          Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 12-3825
          v.
                                                 ,
                                                  >
                                                 -
                        Respondent-Appellee. -
 BENNIE KELLY, Warden,
                                                N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Akron.
             No. 5:09-cv-02012—Benita Y. Pearson, District Judge.
                          Decided and Filed: July 10, 2014
        Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

                                 _________________

                                     COUNSEL
ON BRIEF: Melissa M. Prendergast, OHIO PUBLIC DEFENDER’S OFFICE,
Columbus, Ohio, for Appellant. Mary Anne Reese, OFFICE OF THE OHIO
ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.
     DONALD, J., delivered the opinion of the court, in which DAUGHTREY and
GIBBONS, JJ., joined. DAUGHTREY, J. (pg. 20), delivered a concurring opinion.
                                 _________________

                                      OPINION
                                 _________________

       BERNICE B. DONALD, Circuit Judge. Petitioner, Willard McCarley, an Ohio
state prisoner proceeding in forma pauperis, appeals the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. McCarley argued in his
petition that the Ohio Court of Appeals unreasonably applied clearly established Sixth
Amendment law by allowing a child psychologist to read into evidence the testimonial
hearsay statements of a three-and-a-half year-old declarant, where the declarant was not


                                           1
No. 12-3825        McCarley v. Kelly                                               Page 2


subject to any prior cross-examination. The district court held that the Ohio state courts
unreasonably applied the rule of Crawford v. Washington, 541 U.S. 36 (2004), but
denied McCarley’s petition on the ground that the Sixth Amendment violation was
harmless error under Brecht v. Abrahamson, 507 U.S. 619 (1993), because it could not
have substantially influenced the jury’s verdict. This Court subsequently granted
McCarley a certificate of appealability on his Sixth Amendment claim. We now
REVERSE the district court’s conclusion that the Sixth Amendment error was harmless
and REMAND to the district court with instructions to grant McCarley a conditional
writ of habeas corpus.

                                            I.

       On direct appeal, the Ohio Court of Appeals described the factual background
of McCarley’s trials and convictions as follows:

       {¶ 2} Charlene Puffenbarger filed a paternity suit naming McCarley as
       the father of her two year old son in November of 1991. Charlene filed
       the suit to obtain child support from McCarley, who initially denied
       paternity. McCarley did not wish to pay Charlene child support as he
       was already paying child support to Kim Pennington, his former
       girlfriend and the mother of his six year old son. McCarley threatened
       Charlene to drop the suit and stated that he would kill her before paying
       her child support.
       {¶ 3} On January 20, 1992 at approximately 10:00 a.m., a neighbor came
       to Charlene’s apartment and found her on the couch. Charlene had
       several scalp lacerations, defensive wounds on her hands, and a leather
       strap wrapped twice around her neck. The coroner later estimated that
       Charlene had died sometime between 12:30 and 1:30 a.m. Both of
       Charlene’s two children were at home when her murder occurred.
       {¶ 4} When the police arrived at Charlene’s apartment, her three year old
       son (“D.P.”) repeatedly looked at the uniformed officers and stated: “It
       was him. He hurt mommy.” Four days later, he made related statements
       in the presence of Phyllis Puffenbarger, D.P.’s grandmother. D.P. picked
       up a toy telephone and said things such as:
               “I am going to get the belt. A policeman. Go kick that
               window. Phone. Get the stick. I am going to shoot you.
               *** A policeman. My mom seen the policeman. ***
No. 12-3825        McCarley v. Kelly                                                 Page 3


               What you do that to my mom. *** Policeman hit my
               mommy. Put tape on her.”
       Phyllis testified that D.P. had tears in his eyes and was looking at a
       picture of his mother when he made the statements. As a result of this
       incident, Phyllis contacted the police and took D.P. to a child
       psychologist at their suggestion. Dr. Dawn Lord was able to elicit
       several similar statements from D.P. during her sessions with him.
       {¶ 5} On December 19, 1995, police officers made a surprise visit to
       McCarley’s home on an unrelated matter. While speaking with
       McCarley in his garage, police officer Dennis Balogh saw a deputy
       sheriff’s jacket and sheriff’s cap strewn across a moving dolly. Officer
       Balogh remembered D.P.’s statements from years before and confiscated
       the jacket and cap as contraband.
       {¶ 6} On May 21, 2004, a grand jury indicted McCarley on one count of
       aggravated murder, a special felony embodied in R.C. 2903.01(A). The
       jury ultimately found McCarley guilty, but an error during trial caused
       this Court to reverse the jury’s verdict on appeal and remand the case.
       McCarley’s second trial commenced on January 16, 2007. On January
       25, 2007, the jury found McCarley guilty of aggravated murder. He was
       sentenced to life imprisonment with the possibility of parole in twenty
       years.

       McCarley alleges that the admission of the testimony of Dr. Dawn Lord, the child
psychologist, violated his Sixth Amendment right to confront the witnesses against him.
Dr. Lord read to the jury, over counsel’s contemporaneous objection, three letters she
wrote to Lieutenant John Karabatsos (“Lt. Karabatsos”) detailing her therapy sessions
with the murder victim’s minor son, D.P. The first letter to Lt. Karabatsos, prepared by
Dr. Lord on January 30, 1992, stated:

       Thank you for referring [D.P.] to me. On January 30th, 1992, I had the
       opportunity to meet with [D.P] for a diagnostic interview. . . .
       At that time he presented himself as a talented boy with many strengths.
       However, signs of anxiety and depression were noted. Also, some mild
       developmental delays were evidenced. It is important to realize that
       [D.P.] has experienced a number of recent psychosocial stressors. These
       included the following: Change in residency, death of his mother, and
       alleged witnessing of his mother’s death. On the Parent Rating Scale of
       the behavior rating profile, [D.P.’s] maternal grandmother indicated that
       [D.P.] is shy, clings to parents, and is overly sensitive to teasing. It is
       important to realize that the maternal grandparents appear to be very
No. 12-3825       McCarley v. Kelly                                                    Page 4


      concerned about [D.P.] and his behavior. Also, they were in the process
      of grieving the loss of their daughter.
      During the clinical interview, [D.P.] initially appeared fearful and
      guarded. When discussing this area, he reported that the alleged
      murderer of his mother threatened him with violence. He stated that the
      man told him he would kill him if he told about the homicide. This area
      was discussed with [D.P.] as well as safety issues were presented. Then
      [D.P.] became very verbal and open concerning his mother’s death. It is
      imperative to realize that [D.P.] reported that he had witnessed the death
      -- I am sorry. When discussing this area, he said two guys, referring to
      two men, were in the house at mom’s. When asked further about this, he
      stated these men had been there before and that the one man had a gun.
      When asked further about the situation, [D.P.] reported that the two men
      were white men and that the one man wore clothes that resembled a
      uniform. He stated that the one man began to become verbally assaultive
      with his mother and that an argument broke out. He said they are
      arguing, they were yelling, arguing, loud, louder, hit her. I am done.
      [D.P.] indicated that not only did verbal abuse occur, but that the man
      allegedly began to hit and beat his mother. He reported that this was one
      of his mother’s boyfriends. He states that the man’s name was Tim and
      that the man had been at the home two or three times previously. He was
      not able to provide the last name for this man.
      During the consultation with the maternal grandfather, he stated that the
      mother did know a man by the name of Tim Greene who had worked on
      her car. The maternal grandmother stated that her daughter had dated a
      man by the name of Tim before dating Willard, the alleged father of
      [D.P.’s] sibling. It is important to realize that there are limitations to the
      clinical interview and the testing process due to [D.P.’s] young age.
      However, it is felt that he did witness his mother’s death and the alleged
      crime. Without question, this has had an adverse impact on [D.P.], and
      he is very confused and fearful concerning the loss of his mother. [D.P.]
      does need individual psychotherapy, and his maternal grandmother --
      grandparents, excuse me, need parent counseling in order to help them
      deal with the recent loss. Also, [D.P.] does need a dental examination
      and possible dental care.
      His next appointment is scheduled for February 6th, 1992. If you need
      any further information or if I can ever be of any help to you, please do
      not hesitate to contact me. Thank you for your time and consideration in
      this matter.
No. 12-3825        McCarley v. Kelly                                                  Page 5


The second letter, prepared by Dr. Lord on May 14, 1992, stated:

       It is always a pleasure to work with you. I greatly appreciated the
       opportunity to see [D.P.] and his young brother . . . . [D.P.] has been
       seen at my office on four different occasions. At each time, he was very
       consistent in the details surrounding his mother’s death. He reports that
       two men came to his mother’s home and that both were Caucasian. He
       felt that both of the men were dressed in some form of uniform. He
       consistently stated that the uniforms were black. Also, he indicated that
       one man had a gun. He reported that his mother knew the men and let
       them into the home without a struggle. He stated that the two men and
       his mother had been talking for quite some time, about the length of a TV
       program such as Sesame Street. Then he reported that the one -- that one
       of the men engaged in an argument with his mother. Allegedly, the
       argument escalated until the mother was attacked. [D.P.] felt that she had
       been attacked in the bedroom area. However, [D.P.] slept in the living
       room, which he could have confused as being the bedroom.
       When presented with six different photographs, [D.P.] consistently
       picked a suspect, reporting it was that guy who hit his mother. The
       different pictures of this man which he has picked and identified as the
       alleged murderer were reportedly pictures of the alleged father of his
       brother. Also, he did identify two suspects as being possibly the man’s
       friend that came to this home. It is important to realize that [D.P.]
       indicated that the murderer was accompanied by the -- by a friend, and
       the relationship these two men had were very friendly and close. Finally,
       [D.P.] reported that the alleged murderer went into the mother’s closet
       and got something. He was unable to identify what kind of object was
       used in the attack of his mother. Due to [D.P.’s] young age, the time
       which has elapsed between the death of his mother, and the various
       interviews and the inherent difficulties in evaluating young children, it
       is not possible to definitively state who murdered [D.P.’s] mother.
       Rather, it is possible to take [D.P.’s] impressions of the situation and use
       them in order to obtain further information.
       If you need any further information or if I can ever be of any help to you,
       please do not hesitate to contact me. Thank you for your time and
       consideration in this matter.

The third and final letter, prepared by Dr. Lord on June 6th, 1992, stated:

       It is always a pleasure to work with you. On June 6th, 1992, I again met
       with [D.P.] for an interview and consulted with his maternal
       grandmother. During the interview [D.P.] provided additional
       information. He reported that one of the two men hit his mother with a
No. 12-3825        McCarley v. Kelly                                                 Page 6


       gun. He stated that the man hit his mother on the top and back side of
       her head. Again, he said that he watched his mother’s murderer -- or
       murder, excuse me. He indicated that he was helping hi[s] mom and he
       was trying to get her out of the apartment during the time of the attack.
       Also, he added that one man went to his mother’s closet, got a belt, and
       hurt his mother with it. Finally, he reported that the two men argued
       once his mother was dead.
       If you need any further information or if I can ever be of any help to you,
       please do not hesitate to contact me.

       At trial, Lt. Karabatsos explained why D.P. went to see Dr. Lord in the first
place. On direct examination, after the lieutenant stated that police were initially unable
to get any information about the murder from D.P., the prosecutor asked Lt. Karabatsos:
“So what did you do about that in order to have [D.P.] open up or be able to talk about
anything he might have heard or seen?” Lt. Karabatsos responded:

       When we -- when we originally talked to him, we determined that I was
       -- myself or Officer Breiding, neither one, were going to be able to
       extract any information from him, and we determined it was necessary
       to bring somebody who was a child psychologist, possibly, or somebody
       who was a child therapist in to speak with him, see if they could extract
       any information from him that he remembered from that evening. And,
       of course, we believed that over the course of time he would need some
       assistance anyhow.

Then, on cross-examination, defense counsel asked Lt. Karabatsos why he sought
outside assistance in communicating with D.P.: “[Y]ou called Child Guidance because
you wanted to find someone who could perhaps extract information from the child in the
appropriate way and help the investigation?” Lt. Karabatsos confirmed: “That is -- that
is all -- that is my main reason. . . . Yes, our main concern was to try to get the
information, but that was not the only thing that crossed our mind at the time.”

       Lt. Karabatsos also testified on cross-examination about his relationship and
communications with Dr. Lord. The lieutenant stated that he “would have asked Dr.
Lord that anything that [D.P.] would have said during the course of the counsel, during
the course of her interviews with him, that she make me aware of that so that I could use
it in my investigation.” In response to a follow-up question, Lt. Karabatsos answered
No. 12-3825        McCarley v. Kelly                                                Page 7


that he absolutely planned to use any information provided by Dr. Lord in his
investigation to assist him with identifying the persons responsible for the murder.

       The State argues that, even without Dr. Lord’s testimony, sufficient evidence
supported the verdict such that any Sixth Amendment violation was harmless error. This
evidence includes inconclusive DNA evidence on the murder weapon and other items
from the victim’s home and the testimony summarized in the following paragraphs.

       Phyllis Puffenbarger, the victim’s mother and D.P.’s maternal grandmother,
testified to statements, admitted at both trials as an excited utterance, that D.P. made
approximately four days after his mother’s murder. D.P. began speaking very quickly
into a toy telephone and looking at a picture of his deceased mother. Phyllis transcribed
what D.P. said, and she read two sets of her notes to the jury at trial. The first of those
notes stated:

       I am going to get the belt. A policeman. Go kick that window. Phone.
       Get the stick. I am going to shoot you. Kick the window. Bathroom.
       Are you out of here. Don’t have no phone. A policeman. My mom seen
       the policeman. Gun. Threw in garbage. Sleeping on couch. I am going
       to crack you. Kick the window. Not getting out of here. Bob. I am not
       going to your house. Corner. Call Paw Paw. Get your radio. Go to
       sleep. Don’t shoot. Paw Paw got the paper. Policeman did it, not the
       guy. Lights on. Big light. No telephones. You hear me. Policeman got
       buttons. What do you come to my house for. What you do that to my
       mom. You break window. Bob. Policeman hit mommy. Put tape on
       her. Put nuts in her mouth. Bad boy.
       And he motions towards his neck. Picked up her picture and pretend
       talking on phone.
       Belt hitting. Not belt but with a gun. I will break your foot. Pillow.
       Head. [Brother] and me. I don’t want to shoot. Do you want to go to
       bed. Policeman got out of my house. We can’t get the policeman out of
       here.

The second note stated:

       The guy laughed and sticking tongue. Mom stick tongue and spit. Clap
       hands. Get off that bed. Shirt was ripping. Nothing was cold. Smacked
       hands together. The bike and pointed to [brother]. Mommy’s shirt was
       dirty. Light on. Crack. Scary. Gun. Kicking the window with feet.
No. 12-3825        McCarley v. Kelly                                               Page 8


       Was up in bed. No. She walked up and see this gun. Police was open
       his mouth talking. Shoot somebody. She write on herself. She got a
       phone. She breaked it. That car will stay here. She bumped her head.
       Took his hand and smacked his face. She was jumping on bed. You see
       that belt. Gun don’t work. [Brother] was walking on floor. Greg and
       Trey knocking on door and Mary. A while to get in door. Get in van.
       He opened the door. Key. He put it down on table. Better turn the truck
       on. Pillow. You better wait a minute. Turn truck on. Put pop in there.
       Police that guy. Pulling on bed and chair. Well, come in the house.
       Police have hat like that ball cap. Put pillow on mommy. Kick
       somebody. Set that belt. Crack somebody. Police lights on and off.
       Mommy jumping on bed.

       Officer Eric Breiding testified concerning D.P.’s reaction to seeing police
officers at the scene immediately following his mother’s murder. According to Breiding:
“When [D.P.] first saw me, the only thing he said, ‘It was him. He hurt mommy.’ And
every uniformed officer he saw that day, he made the same statement over and over and
over again.”

       Deputy Dennis Balogh testified regarding events that took place on December
19, 1995, well after Charlene Puffenbarger’s 1992 homicide.             Balogh went to
McCarley’s home on an unrelated matter and had a face-to-face encounter with
McCarley in his garage. Balogh testified that, during this encounter, he observed “a
deputy sheriff’s jacket and a deputy sheriff’s ball cap” in the garage. Balogh confiscated
those items as contraband because “Mr. McCarley was not related to any law
enforcement agency,” and testified that he understood at that time “the relationship of
that jacket and hat to” Charlene Puffenbarger’s murder.

                                           II.
                                           A.

       When a district court denies a habeas petition, this Court reviews the lower
court’s legal conclusions de novo and its findings of fact for clear error. Broom v.
Mitchell, 441 F.3d 392, 398 (6th Cir. 2006). The relitigation bar of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), applies to “any
claim . . . adjudicated on the merits in State court proceedings.”
No. 12-3825         McCarley v. Kelly                                                 Page 9


         Because the Ohio Supreme Court denied leave to appeal, the Ohio Court of
Appeals issued the last reasoned opinion addressing McCarley’s Sixth Amendment
claim:

         {¶ 23} McCarley argues that the trial court violated his right to confront
         the witnesses against him by allowing Dr. Lord to testify as to the
         statements that D.P. made during therapy. Specifically, McCarley argues
         that: (1) D.P.’s statements were testimonial because D.P. went to see Dr.
         Lord at the request of the police, and (2) there was no opportunity to
         cross-examine D.P. at trial because he could not remember the statements
         that he had made as a three year old. McCarley claims that he suffered
         material prejudice as a result of Dr. Lord’s testimony. We disagree.
         {¶ 24} Initially, we note that we have doubt as to the validity of
         McCarley’s argument that D.P.’s statements to Dr. Lord during therapy
         were testimonial in nature. See Crawford v. Washington (2004),
         541 U.S. 36, 68-69 (finding that only testimonial statements are subject
         to the rigors of the confrontation clause); see, also, State v. Siler,
         116 Ohio St.3d 39, 2007-Ohio-5637 (holding that a three year old child’s
         statements to police were testimonial because the primary purpose of the
         questioning was to establish past events for later prosecution). Even
         assuming it was error to allow Dr. Lord to testify, however, we find the
         purported error to be harmless. See Crim.R. 52(A); State v. Cutlip,
         9th Dist. No. 03CA0118-M, 2004-Ohio-2120, at ¶ 17. On harmless error
         analysis, we “inquire ‘whether there is a reasonable possibility that the
         evidence complained of might have contributed to the conviction.’” Id.,
         quoting Madrigal, 87 Ohio St.3d at 388, citing Chapman v. California
         (1967), 386 U.S. 18, 23.

         We must initially determine whether the Ohio court’s analysis constitutes an
adjudication on the merits for the purposes of § 2254(d)’s relitigation bar. “It is well
settled that we may review de novo an exhausted federal claim that was not adjudicated
on the merits in state court.” Rice v. White, 660 F.3d 242, 252 (6th Cir. 2011). While
Harrington v. Richter, 131 S. Ct. 770 (2011), requires us to presume “the state court
adjudicated the claim on the merits,” that presumption holds only “in the absence of any
indication . . . to the contrary.” Id. at 784-85. We conclude that the Harrington
presumption is overcome here for the following reasons. First, the state court did not
issue a decision as to whether the State violated McCarley’s Sixth Amendment rights;
rather, it made a point of not deciding the issue. The state court simply “note[d]” its
“doubt” as to the claim without further discussion of the Confrontation Clause. Second,
No. 12-3825        McCarley v. Kelly                                              Page 10


when read as a whole, it is clear that the state court was not convinced that McCarley’s
claim lacked merit. While the state court cited to Crawford, it also cited to an Ohio
Supreme Court case, applying Crawford, that would have compelled the opposite result.
Finally, the state court proceeded to assess the harmlessness of the error, an issue the
court needed to reach only if McCarley’s claim was at least arguably meritorious. Like
the Ninth Circuit in Ayala v. Wong, 720 F.3d 831 (9th Cir. 2013), “We have found no
published opinion in which, after a state court has denied relief based on harmless error,
a federal court has presumed that the state court adjudicated the merits of the question
of error.” Id. at 843; see also Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009)
(suggesting that AEDPA deference would not apply “where the state court simply
assumed, without deciding, that there was a constitutional error”). We therefore review
de novo the merits of McCarley’s Confrontation Clause claim.

                                           B.

       The Sixth Amendment provides in pertinent part: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him
. . . .” U.S. Const. amend. VI. Incorporated through the Fourteenth Amendment, the
Confrontation Clause, a “bedrock procedural guarantee,” applies with equal force to
criminal prosecutions by the States. Crawford, 541 U.S. at 42; see also Pointer v. Texas,
380 U.S. 400, 406 (1965).

       The Supreme Court’s decision in Crawford initiated a sea change in
Confrontation Clause jurisprudence. 541 U.S. at 68. After canvassing the English
common law and practices of the States shortly after the Revolution, the Crawford Court
arrived at an unequivocal conclusion as to what the Confrontation Clause requires with
regard to testimonial evidence: “Where testimonial evidence is at issue, . . . the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 68. The Crawford Court unfortunately “le[ft]
for another day any effort to spell out a comprehensive definition of ‘testimonial’”
beyond a list of examples including police interrogations and prior testimony at a
preliminary hearing, before a grand jury, or at a previous trial. Id. Justice Scalia’s
Opinion for the Court did, however, refer to dictionary definitions of “witnesses” and
“testimony” for guidance in interpreting the language of the Confrontation Clause itself.
No. 12-3825           McCarley v. Kelly                                                      Page 11


Id. at 51. Witnesses are “those who bear testimony. Testimony, in turn, is typically a
solemn declaration or affirmation made for the purpose of establishing or proving some
fact.” Id. (quoting 2 N. Webster, An American Dictionary of the English Language
(1828)) (internal quotation marks and alterations omitted).

        The Supreme Court handed down only one opinion further refining the scope of
“testimonial” evidence between its decision in Crawford and the Ohio Court of Appeals’
rejection of McCarley’s direct appeal on February 13, 2008: Davis v. Washington,
547 U.S. 813 (2006). The Davis Court, in a consolidated appeal, confronted two sets of
statements made to police. Id. at 817-20.1 In Davis, Michelle McCottry made the
statements at issue to a 911 operator while reporting an ongoing domestic disturbance.
Id. at 817. In the companion case, Hammon v. Indiana, Amy Hammon completed an
affidavit containing the statements at issue after answering questions from a police
officer who responded to a reported domestic incident at her home. Id. at 819-20.

        The Davis Court provided the following guidance for distinguishing between
testimonial and nontestimonial statements in response to police interrogation:

        Without attempting to produce an exhaustive classification of all
        conceivable statements—or even all conceivable statements in response
        to police interrogation—as either testimonial or nontestimonial, it
        suffices to decide the present cases to hold as follows: Statements are
        nontestimonial when made in the course of police interrogation under
        circumstances objectively indicating that the primary purpose of the
        interrogation is to enable police assistance to meet an ongoing
        emergency. They are testimonial when the circumstances objectively
        indicate that there is no such ongoing emergency, and that the primary
        purpose of the interrogation is to establish or prove past events
        potentially relevant to later criminal prosecution.

Id. at 822 (emphasis added). The Court went on to clarify that the Confrontation Clause
applies to informal, as well as formal, prior testimony. Id. at 826 (“In any event, we do
not think it conceivable that the protections of the Confrontation Clause can readily be
evaded by having a note-taking policeman recite the unsworn hearsay testimony of the


        1
          In Davis, the statements at issue were actually made to a 911 operator, but the Supreme Court
considered the acts of 911 operators “to be acts of the police.” 547 U.S. at 823 n.2. This holding made
it unnecessary for the Court explicitly to “consider whether and when statements made to someone other
than law enforcement personnel are ‘testimonial.’” Id.
No. 12-3825         McCarley v. Kelly                                              Page 12


declarant, instead of having the declarant sign a deposition.”). The fruits of an
interrogation, “whether reduced to a writing signed by the declarant or embedded in the
memory (and perhaps notes) of the interrogating officer, [are] testimonial.” Id.
Applying these principles, the Davis Court held that Michelle McCottry’s statements to
the 911 operator were not testimonial because “the circumstances of McCottry’s
interrogation objectively indicate its primary purpose was to enable police assistance to
meet an ongoing emergency,” and then reached the opposite conclusion regarding the
statements in Amy Hammon’s affidavit because it “was part of an investigation into
possibly criminal past conduct.” Id. at 828-29.

        Davis articulated four reasons why McCottry’s statements were not testimonial
evidence. Id. at 827. First, “McCottry was speaking about events as they were actually
happening, rather than describing past events.” Id. (quoting Lilly v. Virginia, 527 U.S.
116, 137 (1999) (plurality opinion)) (internal quotation marks and alterations omitted).
Second, “any reasonable listener would recognize that McCottry . . . was facing an
ongoing emergency.” Id. Third, viewing the 911 call objectively, the Court concluded
that the nature of the questions asked and the answers given “were necessary to be able
to resolve the present emergency, rather than simply to learn . . . what had happened in
the past.” Id. Finally, the Court addressed the different levels of formality between
McCottry’s 911 call and the statements held to be testimonial in Crawford. Id.
McCottry’s frantic telephone call from an unsafe environment stood in stark contrast to
Crawford’s calm responses to questions posed by police in the safety of the station
house. Id. Accordingly, McCottry was not bearing witness or testifying because “[n]o
‘witness’ goes into court to proclaim an emergency and seek help.” Id. at 828.

        Turning to Hammon’s affidavit, the Davis Court found it simple to classify those
statements as testimonial. Id. at 829. There was no emergency in progress at the time
of the interrogation, and the officer who questioned Hammon “was not seeking to
determine . . . ‘what is happening,’ but rather ‘what happened.’” Id. at 830. Another key
factor in the Court’s analysis was that “the primary, if not indeed the sole, purpose of the
interrogation was to investigate a possible crime.” Id. Accordingly, the Davis could
held that the statements in Hammon’s affidavit were testimonial and their introduction
likely violated the Confrontation Clause. Id. at 834.
No. 12-3825        McCarley v. Kelly                                             Page 13


                                           III.

       Because our review is de novo, we first decide whether the Ohio Court of
Appeals properly applied Crawford and its progeny when it rejected McCarley’s direct
appeal. The Ohio court began its analysis by stating: “[W]e have doubt as to the validity
of McCarley’s argument that D.P.’s statements to Dr. Lord during therapy were
testimonial in nature.” This Court does not share those doubts.

       The facts of the instant appeal are analogous to the facts in Davis. Lt. Karabatsos
testified that he sought out Dr. Lord to speak with D.P. because “we determined it was
necessary to bring somebody who was a child psychologist, possibly, or somebody who
was a child therapist in to speak with him, see if they could extract any information from
him that he remembered from that evening.” The lieutenant also testified that he asked
Dr. Lord to “make [him] aware” of anything D.P. said about the murder “so that [he]
could use it in [his] investigation.” Because Dr. Lord was questioning D.P. about the
night of his mother’s murder and reporting everything D.P. said that might be relevant
to the investigation back to Lt. Karabatsos, Dr. Lord was acting more as a police
interrogator than a child psychologist engaged in private counseling. Cf. Brewer v.
Williams, 430 U.S. 387, 399 (1977) (holding a police officer violated Williams’ Sixth
Amendment right to counsel by “deliberately and designedly set[ting] out to elicit
information from Williams just as surely as—and perhaps more effectively than—if he
had formally interrogated him”); Massiah v. United States, 377 U.S. 201, 206 (1964)
(holding police violated Massiah’s Sixth Amendment right to counsel when they
“deliberately elicited” incriminating statements from him). Although Dr. Lord is not a
member of the police department, Lt. Karabatsos’ testimony shows that, like the
911 operator in Davis, Dr. Lord was “at least [an] agent[] of law enforcement” such that
her acts could likewise be considered “acts of the police.” Davis, 547 U.S. at 823 n.2.
Dr. Lord’s sessions with D.P. thus were more akin to police interrogations than private
counseling sessions, a fact that brings this case within the Crawford-Davis analysis for
determining whether statements given to law enforcement personnel are testimonial
evidence.

       Lt. Karabatsos’ testimony at trial also reveals the testimonial nature of D.P.’s
statements. Even more so than Hammon’s statements to police in Davis, D.P.’s
No. 12-3825         McCarley v. Kelly                                               Page 14


statements to Dr. Lord occurred long after—ten days, to be precise—any emergency
situation had passed. See id. at 830. The lieutenant unambiguously stated that his “main
concern” and the “main reason” for D.P.’s sessions with Dr. Lord “was to try to get the
information” that police personnel could not elicit from D.P.—including the identity of
the suspects—so that Lt. Karabatsos “could use it in [his] investigation.” Because “the
primary purpose of the interrogation [wa]s to establish or prove past events potentially
relevant to later criminal prosecution,” D.P.’s statements are testimonial evidence.
Davis, 547 U.S. at 822. Accordingly, the district court correctly concluded that the Ohio
Court of Appeals misapplied Crawford, as D.P.’s statements constitute testimonial
evidence where they were deliberately elicited in an interrogation-like atmosphere absent
an ongoing emergency and used to prove past events in a later criminal prosecution. See
id. at 827-28.

        Because Confrontation Clause violations are subject to harmless error analysis,
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), we must next decide whether the
Sixth Amendment violation was harmless error under Brecht v. Abrahamson, 507 U.S.
619 (1993). See Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009) (“[I]n this
Circuit . . . Brecht is always the test, and there is no reason to ask both whether the state
court ‘unreasonably’ applied Chapman under the AEDPA and, further, whether the
constitutional error had a ‘substantial and injurious’ effect on the jury’s verdict.”).
Because the Brecht analysis is a question of law, our review of this question is likewise
de novo. Brecht, 507 U.S. at 637; Broom, 441 F.3d at 398 (stating this Court reviews
a district court’s legal conclusions de novo).

        Brecht requires a Confrontation Clause violation to have a “substantial and
injurious effect or influence in determining the jury’s verdict” before it merits reversal
on collateral review. Brecht, 507 U.S. at 637. In order to determine whether an error
had such an effect or influence, the Supreme Court has instructed the lower federal
courts “to ask directly, ‘Do I, the judge, think that the error substantially influenced the
jury's decision?’” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “The inquiry cannot
be merely whether there was enough to support the result, apart from the phase affected
by the error. It is rather, even so, whether the error itself had substantial influence. If
No. 12-3825         McCarley v. Kelly                                               Page 15


so, or if one is left in grave doubt, the conviction cannot stand.” Id. at 438 (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

        When conducting harmless error analysis of Confrontation Clause violations, this
Court utilizes the factors outlined by the Supreme Court in Van Arsdall. Jensen v.
Romanowski, 590 F.3d 373, 379 (6th Cir. 2009) (“[W]e assess the prejudicial impact of
constitutional trial errors under the ‘substantial and injurious effect’ standard set forth
in Brecht, examining the error by applying the Van Arsdall factors to the facts in the
case.”). The Supreme Court reasoned in Van Arsdall that whether an error is harmless
in a particular case “depends upon a host of factors.” 475 U.S. at 684. Those factors
include “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, the extent of
cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s
case.” Id. Applying these factors, we have grave doubts as to whether the Sixth
Amendment violation at McCarley’s second trial influenced the jury’s decision.

        The importance of Dr. Lord’s testimony to the prosecution’s case against
McCarley cannot be overstated. The State relied heavily on her letters in both trials, but
they acquired greater significance in the second trial. In its opinion addressing
McCarley’s first direct appeal, which resulted in the reversal of his initial conviction, the
Ohio Court of Appeals recognized that

        the State relied on the contents of the letter throughout its case and Dr.
        Lord’s testimony was a major portion of the State’s evidence against
        [McCarley]. Moreover, the State specifically relied on the letter in its
        closing argument when it described the child’s comments to Dr. Lord and
        reiterated that the letters showed the child had twice identified
        [McCarley] as the killer.

But in the first trial D.P.’s statements were not introduced for the truth of the matter
asserted. At the second trial, D.P.’s statements were introduced—without a limiting
instruction—to establish the truth of the matter asserted. Thus, the State’s reliance on
the letters was magnified at the second trial because the jury could consider them for the
truth of their contents.
No. 12-3825        McCarley v. Kelly                                            Page 16


       Another fact showing the importance of Dr. Lord’s testimony is that the
prosecution relied heavily on her recitation of D.P.’s statements during closing
arguments. The prosecutor read all of D.P.’s statements from Dr. Lord’s testimony in
their entirety during his initial closing argument and commented: “That is what [D.P.]
is able to say about what happened to his mother. He is an eyewitness to what happened
in this case.” Then, during his rebuttal, the prosecutor made the following remarks
further illustrating that D.P.’s statements were central to the State’s case:

       I tell you that you heard from [D.P.] And what [D.P.] told you is
       absolutely accurate as to what happened in this case. He said, “the belt
       from the closet,” and he said, “hit with gun.” He said, “back of the head
       and top of the head.”
                                               ...
       He said, “pillow.” We know she was suffocated with a pillow.
       He said, “police ball cap.” Very specifically, “police ball cap.” He said
       “police uniform.” He said, “buttons,” very specifically.
       He said, “nuts in mouth.” “Nuts” in mouth.
       He tells you exactly what happened to Charlene Puffenbarger, and he
       tells you exactly who did it. Twice he identified the photograph of
       Willard McCarley.

Because, according to the prosecutor’s own closing argument, D.P.’s statements
provided crucial narrative details and the only eyewitness identification of the
perpetrator, Dr. Lord’s testimony must have been crucial to the prosecution’s case under
Van Arsdall. This first factor therefore weighs in McCarley’s favor.

       The next Van Arsdall factor is “whether the testimony was cumulative.”
475 U.S. at 684. The district court labeled Dr. Lord’s testimony “cumulative of
testimony provided by three other witnesses—D.P.’s grandmother (Phyllis), Officer
Breiding and former deputy Balogh.” According to the district court, “the jury heard
similar, if not identical, details to those presented through Dr. Lord. The duplicative
content of the testimony minimized the importance Dr. Lord’s testimony, alone, may
have had on the jury’s findings.”
No. 12-3825         McCarley v. Kelly                                              Page 17


         While the content of Dr. Lord’s testimony may well have duplicated some of the
content of those other three witness, it was not cumulative. Phyllis’ testimony consisted
of reciting the notes she had taken of D.P.’s nearly-incoherent rambling. Her testimony,
standing alone, provides few corroborated details about the murder and actually
introduces a host of extraneous, uncorroborated facts. Officer Breiding’s testimony
deals with a time period before D.P. saw Dr. Lord and does establish that D.P. identified
every police officer as a potential suspect or as the perpetrator, but that single detail is
hardly overwhelming evidence of McCarley’s guilt. Finally, Deputy Balogh testified
only that McCarley, years later, had possession of sheriff’s attire when he had no
connection to law enforcement. This possession of contraband law enforcement attire
also is not overwhelming evidence of McCarley’s guilt.

         All of the above testimony paints a clear picture of the crime, but only when
considered in light of Dr. Lord’s testimony about D.P.’s statements to her. Dr. Lord’s
testimony therefore was not cumulative, but rather more akin to a keystone holding the
arch of the State’s case together.      Remove that crucial block, especially D.P.’s
eyewitness identifications, and the State’s case collapses into disjointed pieces. This
factor therefore weighs in favor of McCarley.

         The third Van Arsdall factor requires us to consider “the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material points.”
475 U.S. at 684. The analysis above dealing with whether Dr. Lord’s testimony was
cumulative of other witnesses’ testimony shows that there was significant corroboration
of D.P.’s statements at McCarley’s trial. This factor therefore weighs in favor of the
State.

         The next factor, “the extent of cross-examination otherwise permitted,” id. at
684, also weighs in favor of the State. McCarley had a full opportunity at trial to
cross-examine all of the prosecution’s witnesses save for D.P.

         The final Van Arsdall factor we consider is “the overall strength of the
prosecution’s case.” Id. Had the jury not heard and considered D.P.’s statements
identifying McCarley as the perpetrator, the State’s case would have been almost
entirely circumstantial. The only physical evidence, the DNA gathered at the scene, was
No. 12-3825        McCarley v. Kelly                                             Page 18


inconclusive. The DNA tests established that belt used to murder the victim might have
contained male DNA from McCarley’s paternal relatives, but this evidence is far from
overwhelming.     D.P.’s younger brother is a male descendant of McCarley, and
McCarley’s father often visited the house. Furthermore, none of the testimony at trial
save for Dr. Lord’s included a conclusive identification of McCarley as the murderer.
Even considered together, the testimony of Phyllis Puffenbarger, Officer Breiding, and
Deputy Balogh does not specifically link McCarley to the murder. In sum, without Dr.
Lord’s testimony, the prosecution’s case was far from “substantial and overwhelming,”
as the district court described it. This factor therefore weighs in favor of McCarley.

       We thus have grave doubts as to whether the violation of McCarley’s rights
under the Confrontation Clause had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 637. Three of the Van Arsdall
factors—the importance of the testimony, whether it was cumulative, and the overall
strength of the prosecution’s case—favor McCarley. Dr. Lord’s testimony was a
crucially important piece of the prosecution’s evidence because it contained the only
eyewitness identification of McCarley. Her testimony was not cumulative, and the
overall strength of the prosecution’s case against McCarley was not overwhelming
without D.P.’s statements.

       Only two of the Van Arsdall factors—the presence of corroborating evidence and
the extent of cross-examination otherwise permitted—weigh in favor of the State. These
factors that favor the prosecution do not carry as much weight as those that favor
McCarley.     While McCarley had the opportunity to cross-examine all the other
witnesses, that he had no opportunity to cross-examine D.P. was the critical error in the
state court proceedings. Additionally, the fact that other testimony corroborates D.P.’s
statements underscores the importance of Dr. Lord’s testimony. Accordingly, the
Confrontation Clause violation at McCarley’s second trial was not harmless error.

                                          IV.

       Because D.P.’s statements constitute testimonial evidence and the Confrontation
Clause violation at McCarley’s second trial was not harmless error, we REVERSE the
No. 12-3825       McCarley v. Kelly                                           Page 19


district court’s denial of McCarley’s § 2254 petition and REMAND to the district court
with instructions to grant McCarley a conditional writ of habeas corpus.
No. 12-3825         McCarley v. Kelly                                               Page 20


                                   _________________

                                    CONCURRENCE
                                   _________________

        MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring. I concur in the
majority’s conclusion that the district court’s denial of Willard McCarley’s habeas
corpus petition must be reversed and the matter remanded for issuance of a conditional
writ. Examination of the record before us demonstrates unequivocally that D.P.’s
statements to Dr. Lord constituted testimonial evidence and that it would be an
unreasonable application of the principles set forth in Crawford v. Washington, 541 U.S.
36 (2004), to conclude that the error in admitting those statements into evidence was
harmless. I write separately only to express my belief that the Ohio Court of Appeals,
in deeming any purported Sixth Amendment error in this matter to be harmless, actually
was adjudicating McCarley’s Confrontation Clause challenge on the merits.

        As noted by the majority, “Confrontation Clause violations are subject to
harmless error analysis.” See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Consequently, in Confrontation Clause cases, as in other cases involving constitutional
violations that are not per se prejudicial, any resolution of an allegation of constitutional
error necessarily must encompass an analysis of whether that purported error “had
substantial and injurious effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). The determination of whether any constitutional error is harmless or
prejudicial thus is part and parcel of a merits adjudication of the issue. By concluding
that McCarley was not harmed by the admission of Lord’s testimony in this case, the
Ohio Court of Appeals thus made a finding that was tantamount to holding that there was
no merit to the petitioner’s assertion.

        Even though I believe that the Ohio Court of Appeals did adjudicate the
Confrontation Clause issue on its merits, there can be no doubt that the state court
unreasonably applied settled federal constitutional law in concluding that McCarley was
not prejudiced by the admission of the challenged testimony. For that reason, I concur
in the judgment reached by the majority in this appeal.
