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

No. 04-2202
EDWARD A. MURILLO,
                                          Petitioner-Appellee,
                              v.

MATTHEW J. FRANK, Secretary, Wisconsin
Department of Corrections,
                                       Respondent-Appellant.

                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
         No. 01-C-1285—William C. Griesbach, Judge.
                        ____________
    ARGUED JANUARY 18, 2005—DECIDED APRIL 1, 2005
                    ____________



 Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Santiago Herrera was shot
and killed in 1998. He was a casualty of a conflict between
the Latin Kings (Herrera’s gang) and La Familia about
what in antitrust law would be called exclusive retail sales
territories. Zebulon Robinson, who had been negotiating to
purchase marijuana from Herrera, saw the murder and at
trial identified as the shooter Edward Murillo, one of three
members of La Familia who had approached Herrera and
2                                                No. 04-2202

proclaimed that La Familia owned the territory. Robinson’s
word was of uncertain reliability—he had been engaged in
an illegal drug transaction, his recollection of events
changed over time, and, worse, he had taken the murder
weapon to a friend to hide, though he testified that the
assassin had tossed him the gun while fleeing. So the
prosecutor wanted additional evidence. The state called Luis
Murillo, Edward’s brother. But Luis refused to testify, even
after receiving immunity from prosecution and being held
in contempt for his intransigence. With Luis unavailable,
the prosecutor offered—and the judge admitted, over an
objection based on the Constitution’s confrontation
clause—a statement that Luis had made during custodial
interrogation six days after Herrera’s death.
   Luis told the police a series of lies. First he denied being
anywhere near the murder. He had been with his girlfriend
at the time, Luis asserted. An officer checked out the story
(or pretended to) and told Luis that his alibi did not hold
up. Moreover, the officer said, a Crime Stoppers tip had
placed Luis at the scene. Luis then said that he had indeed
been nearby and had seen the perpetrators running away,
but that he had nothing to do with the crime. During the
interrogation Luis became increasingly upset and nervous,
breaking into tears when the officers refused to accept his
version of events. After still more attempts at evasion, Luis
stated that he had seen his brother Edward approach
Herrera and pull the trigger. Luis signed an affidavit to
that effect. But Luis denied being one of the triad who had
approached Herrera; how he could have seen the events so
clearly, if he had not been part of the delegation, he did not
reveal. (Luis said in his statement and affidavit that
Robinson was the third member of the group; Robinson tes-
tified that Luis was the third.)
   The jury convicted Edward of first degree murder and two
firearms offenses. He was sentenced to life imprisonment.
Wisconsin’s intermediate appellate court affirmed, rejecting
No. 04-2202                                                 3

his argument under the confrontation clause, see 240 Wis.
2d 666, 623 N.W.2d 187 (2000), and the Supreme Court of
Wisconsin declined to hear the case. Edward fared better on
federal collateral review under 28 U.S.C. §2254. The district
court issued a writ of habeas corpus in his favor, concluding
that the state judiciary’s decision was contrary to Lilly v.
Virginia, 527 U.S. 116 (1999), a decision that the district
judge viewed as on all fours, right down to fact that the
declarant was the defendant’s brother. 316 F. Supp. 2d 744
(E.D. Wis. 2004). Wisconsin contends in this court that Lilly
is distinguishable because the statement there had been
admitted on the ground that it was against the declarant’s
penal interest, while admission of Luis’s affidavit rests on
the ground that it undercut his social interest. Wisconsin is
among those states (a distinct minority) that deem a dec-
laration against “social interest”—that is, a statement that
shames the speaker in his community—an exception to the
hearsay doctrine. See Wis. Stat. §908.045(4); Thomas J.
Imwinkelreid, Declarations Against Social Interest: The
(Still) Embarrassingly Neglected Hearsay Exemption, 69 S.
Cal. L. Rev. 1427 (1996). The idea is that Luis’s statement
violated the social norm of solidarity among gang (and family)
members, so that Luis would not have accused Edward un-
less the accusation were true.
  Wisconsin’s judiciary used the framework of Ohio v.
Roberts, 448 U.S. 56, 66 (1980), which stated that hearsay
is compatible with the confrontation clause when supported
by (1) a “firmly rooted hearsay exception” or (2) “particular-
ized guarantees of trustworthiness”. The state acknowl-
edges that the “social interest” doctrine is novel rather than
established by force of history but contends that it satisfies
Roberts’s second option and insists that Lilly does not hold
otherwise.
  If this question were to arise today, the governing decision
would be Crawford v. Washington, 124 S. Ct. 1354 (2004),
rather than Roberts or Lilly. The Court held in Crawford
4                                                No. 04-2202

that, when testimonial declarations (such as affidavits or
formal confessions) are at issue, judicial assessments of reli-
ability never suffice and that an opportunity to cross-ex-
amine the declarant is essential. Edward was unable to
cross-examine Luis, so Crawford amounts to a per se rule
that his statement and affidavit were inadmissible. But
Crawford was not issued until after Edward’s conviction
became final through the conclusion of direct review, and
the district court held that it could not be applied retroac-
tively on collateral attack. 316 F. Supp. 2d at 749-50.
Edward defends the judgment in his favor by asking us to
apply Crawford, which would avoid any need to consider
Roberts and Lilly.
  The parties debate whether Crawford applies retroactively
under Teague v. Lane, 489 U.S. 288 (1989), and its succes-
sors—most recently, Schriro v. Summerlin, 124 S. Ct. 2519
(2004), and Beard v. Banks, 124 S. Ct. 2504 (2004). Section
2254(d)(1) says that the writ shall not issue unless the state
court’s decision “was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States”. A
natural reading of §2254(d)(1) is that the only federal law
that matters is the law that had been “clearly established”
when the state court is called on to decide. See Williams v.
Taylor, 529 U.S. 362, 390, 412 (2000); Gosier v. Welborn,
175 F.3d 504, 510 (7th Cir. 1999) (“§2254(d)(1) means that
only rules articulated by the Supreme Court of the United
States before the state court rendered its decision may be
applied on collateral review. Section 2254(d)(1) differs from
Teague because the new statute closes the escape hatches
in Teague”) (emphasis in original). See also Ramdass v.
Angelone, 187 F.3d 396, 406 (4th Cir. 1999); Randy Hertz &
James S. Liebman, 2 Federal Habeas Corpus Practice &
Procedure §32.3 at 1430 (4th ed. 2001).
  There is a provision for giving effect to retroactive legal
changes, but it lies in §2244(b)(2)(A) and depends on the
No. 04-2202                                                  5

Supreme Court’s own declaration that its decision meets the
Teague standard. See, e.g., Tyler v. Cain, 533 U.S. 656
(2001). The Supreme Court has not held that Crawford
applies retroactively on collateral review. Because the
Supreme Court rarely decides retroactivity as part of the
original opinion, reading §2254(d)(1) to prevent any other
court from making the retroactivity decision would mean
that the year allowed to initiate a collateral proceeding often
would expire. The Supreme Court may decide in Dodd v.
United States, cert. granted, 125 S. Ct. 607 (2004) (argued
March 22, 2005), whether prisoners bear the risk of delay
until a retroactivity decision can be made. While waiting for
the outcome of Dodd, we deem it best to address how
Crawford is classified under Teague. Unless Crawford meets
the Teague standard for retroactivity, whether §2254(d)(1)
allows a court of appeals to make its own retroactivity
assessment is unimportant.
   Teague and its successors say that a new rule of con-
stitutional law is retroactive on collateral attack only if
it places certain conduct beyond the reach of the criminal
law (that is, establishes that the defendant’s acts were not
subject to punishment) or if it establishes one of the rare
“watershed rules of criminal procedure implicating the fun-
damental fairness and accuracy of the criminal proceeding.”
O’Dell v. Netherland, 521 U.S. 151, 157 (1997). Three courts
of appeals have held that Crawford is not retroactive under
this approach. Mungo v. Duncan, 393 F.3d 327 (2d Cir.
2004); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005);
Brown v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir. 2004).
One court has held that Crawford is retroactive— though
not by application of the Teague standard. Bockting v.
Bayer, 2005 U.S. App. LEXIS 3012 (9th Cir. Feb. 22, 2005).
The three judges in Bockting wrote separately. Judge Noonan
concluded that Crawford applies on collateral review be-
cause it did not change the law. Judge McKeown concluded
that Crawford did change the law, and changed it so dra-
6                                                 No. 04-2202

matically that it established a “watershed rule” that applies
retroactively. Judge Wallace agreed with Judge McKeown
that Crawford changed the law but disagreed with her un-
derstanding of Crawford’s fundamentality. He saw it as an
ordinary development in criminal procedure that like almost
all other such changes applies prospectively. We agree with
this perspective and thus follow Mungo, Dorchy, and Brown.
  It is obvious to us—as it was to a prior panel, see Owens
v. Frank, 394 F.3d 490, 501 n.8 (7th Cir. 2005)—that
Crawford establishes a new rule. It discards the framework
that Roberts had adopted. True enough, as Judge Noonan
observed, Crawford did not say that it was overruling
Roberts; it emphasized that the declarant in Roberts had
been subject to cross-examination. But it assuredly (and
explicitly) jettisoned the Roberts standard. 124 S. Ct. at 1373.
All of the Supreme Court’s decisions between Roberts and
Crawford had applied that understanding, though some of
the Justices had questioned whether it should be main-
tained. Lilly provides a good example. Seven Justices asked
and answered the Roberts questions (disagreeing four to
three about their resolution); two wrote separately to stake
out a different position. A rule is “new” for retroactivity
analysis unless it was dictated by earlier decisions. See
Banks, 124 S. Ct. at 2511. Crawford was not “dictated” by
Roberts or Lilly; it broke from them. That the break takes
the form of a return to an older, less flexible but historically
better grounded approach does not make it less a break. All
constitutional decisions find their ultimate basis in texts
adopted long ago—here in the Bill of Rights (1791) and their
application to the states via the fourteenth amendment
(1868). Judicial rhetoric routinely invokes older norms. This
does not mean that there has been no “new rule” of con-
stitutional criminal procedure since 1868.
  Whether Crawford adopts a fundamental rule essential to
a fair and accurate trial is a subject that we pretermitted in
Owens. Like the second, sixth, and tenth circuits (and Judge
No. 04-2202                                                   7

Wallace in Bockting), we think the answer a straightforward
“no.” The Supreme Court has not identified any decision,
other than Gideon v. Wainwright, 372 U.S. 335 (1963), that
would be so profound. It has repeatedly declined invitations
to treat one or another decision as a “watershed rule,”
including both Banks and Summerlin last Term. Summerlin
holds that Apprendi v. New Jersey, 530 U.S. 466 (2000),
surely a more sweeping change than Crawford (and more
important to defendants, too, because it entitles them to a
jury decision, while Crawford affects only what evidence the
jury hears), is not retroactive on collateral attack. See also
McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005).
  Indeed, it would be a close question whether Crawford
helps or hinders accurate decisionmaking. Live testimony
is preferable to affidavits and transcribed confessions, be-
cause cross-examination can probe its weaknesses, but re-
corded testimony may be better than silence, when death or
incapacity or threats or loyalty to one’s confederates keep
witnesses off the stand. The point of Crawford is not that
only live testimony is reliable, but that the sixth amendment
gives the accused a right to insist on live testimony, whether
that demand promotes or frustrates accuracy. Like the self-
incrimination clause and other provisions in the Bill of Rights,
the confrontation clause can be invoked to prevent the
conviction of persons who are guilty in fact. What Crawford
holds is that defendants enjoy this right even when the
hearsay is trustworthy. This is not an indispensable
innocence-protecting decision that must be applied retroac-
tively to criminal prosecutions that have already been
finally resolved on direct review.
  There is another way to see the point. Violation of a truly
vital rule of criminal procedure, such as entitlement to
counsel (the holding of Gideon) leads to reversal without
inquiry into harmless error. See United States v. Cronic,
466 U.S. 648 (1984). Violations of other, less fundamental
rules are subject to harmless-error analysis. The confronta-
8                                               No. 04-2202

tion clause is in the latter category; courts regularly
examine evidence admitted without cross-examination to
determine whether the error was harmless. See Delaware
v. Van Arsdall, 475 U.S. 673, 682 (1986). This shows, as the
tenth circuit observed in Brown, that Crawford cannot have
established the sort of indispensable doctrine that applies
retroactively even to closed cases.
   Let us return, then, to how the Court understood and
applied the Roberts framework in Lilly. Virginia charged
Benjamin Lilly with homicide. The evidence against him
included a statement by his brother Mark, who (like Luis
Murillo) refused to testify at trial. Mark’s statement con-
ceded that he had participated in the crime by helping to
steal the gun that Benjamin used in the slaying, and that
he had been present when Benjamin shot the victim. The
statement was to this extent against Mark’s penal interest.
Mark went on, however, to say that Benjamin had commit-
ted the murder without his encouragement or approval. This
portion of the statement exculpated Mark at Benjamin’s
expense, and the Court held that it could not be used against
Benjamin. (We refer to Justice Stevens’s opinion as that of
“the Court.” Because Justices Scalia and Thomas proposed
to exclude statements such as Mark’s categorically, the pos-
ition that was to prevail in Crawford, the plurality opinion
joined by Justices Stevens, Souter, Ginsburg, and Breyer was
the most narrow ground of decision and hence constitutes
the holding. See Marks v. United States, 430 U.S. 188, 193
(1977).)
  The Court first concluded that declarations against penal
interest given during custodial interrogation (as opposed to,
say, declarations during and in furtherance of a conspiracy)
may be introduced by, but not against, an accused. 527 U.S.
at 131-34. This followed, Justice Stevens explained, from
many decisions, perhaps most prominently Bruton v. United
States, 391 U.S. 123 (1968), which had held that one defen-
dant’s confession that inculpates another may not be used
No. 04-2202                                                 9

at a joint trial (unless the defendant who confessed also
testifies), because it deprives the co-defendant of an oppor-
tunity to cross-examine the confessing defendant. If the
confession, surely against the defendant’s penal interest,
must not be used when the declarant is in the courtroom
but refuses to testify, it cannot be used when the declarant
has not been charged with crime in the first place, the
Court held.
  That left the question whether Mark’s statement could be
used nonetheless on the ground that its self-inculpatory
portions demonstrated its truthfulness. The Court held not,
527 U.S. at 135-39, in part because attempts to evade or
minimize blame by pointing fingers at others tend to be
unreliable and in part because “[i]t 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 subject to adversarial
questioning.” Id. at 137.
  Everything the Court said about Mark’s statement in Lilly
is true of Luis’s statement too. The portion exculpating the
declarant (and inculpating the accused) is not a declaration
against penal interest, and at all events declarations made
during custodial interrogation cannot be used against an
accused. A statement, made during interrogation and blam-
ing someone else, also is too unreliable to supply the “parti-
cularized guarantees of trustworthiness” that until Crawford
could have supported admissibility. To the extent there is
any difference between Mark Lilly’s statement and Luis
Murillo’s, Luis’s is the less reliable, because he did not in-
culpate himself in any fashion; Luis professed to have had
nothing to do with the murder. If the confrontation clause
forbade Virginia to use Mark Lilly’s statement, how could
10                                               No. 04-2202

it allow Wisconsin to use Luis Murillo’s? The state court’s
decision is contrary to Lilly because it “confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nonetheless arrives at a result
different from [that] precedent.” Williams, 529 U.S. at 406.
Instead of offering “particularized” (i.e., statement specific)
guarantees of trustworthiness, Wisconsin relied principally
on the social-interest doctrine itself, which is general rather
than particularized.
  To the extent that it discussed the specifics of this situ-
ation, Wisconsin’s appellate court thought that Luis Murillo’s
statement was more reliable than Mark Lilly’s “because
Mark was up to his neck in criminal involvement” (240 Wis.
2d at 680) while Luis denied culpability. That’s backward.
Mark’s statement is the more reliable because he admitted
some crimes, which exposed him to prosecution. Luis
provided only one self-serving statement after another.
Wisconsin also maintains that Luis’s statement is more
reliable than Mark Lilly’s because Luis was emotionally
overwrought, while Mark was calculating. Again this “dis-
tinction” inverts the usual understanding of reliability.
We are not aware of any social science evidence supporting
the proposition that emotionality guarantees accuracy.
Jurors (and operators of polygraph machines) use sweating,
fidgeting, and other signs of emotional stress as cues that
the speaker is attempting deceit. Perhaps Luis was fright-
ened and crying because he feared that, unless he fingered
someone else, the state would put him on trial for the
murder, or because he feared that no matter what he said
the gang would suspect him of assisting the police and opt
for revenge.
   Wisconsin’s “social interest” exception to the hearsay rule
is itself unsupported by any data of which we are aware; the
state has not cited any, either in this litigation or in the
decisions creating the exception. Gang members may boast
about their criminal exploits, or may adopt a code under
No. 04-2202                                                11

which they routinely testify (or confess) falsely in order to
throw the police off the scent and then refuse to follow
through at trial, exactly as Luis did. In such a subculture
false allegations of criminality, far from being shameful, are
normal. We need not pursue this subject, however. This un-
usual exception to the hearsay doctrine cannot support the
use of confessions and affidavits when the long-established,
and better supported, penal-interest exception does not.
  Was the error harmless under Brecht v. Abrahamson, 507
U.S. 619 (1993)? The state says yes but does not supply
much argument. Wisconsin’s appellate brief devotes only
two pages to the subject, more than half of that to a recap
of legal rules. The brief’s single paragraph devoted to the
trial asserts that there was solid evidence independent of
Luis’s statement but does not make a serious effort to put
his statement in the context of the entire trial and assess
what effect it may have had. That makes it impossible to
say that Luis’s statement, which coming from the accused’s
own brother must have played a big role in jurors’ evalua-
tion, was unlikely to have had a substantial and injurious
effect on the verdict. See O’Neal v. McAninch, 513 U.S. 432
(1995). Why would the prosecutor have introduced Luis’s
statement, given the considerable risk even under Roberts,
unless he expected it to have punch and doubted the
sufficiency of other evidence? The state has not furnished a
sound basis for us to deem the error harmless.
                                                   AFFIRMED
12                                       No. 04-2202

A true Copy:
      Teste:

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




               USCA-02-C-0072—4-1-05
