                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0007p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                                                  -
 BASEL JARADAT,
                                                  -
                           Petitioner-Appellant,
                                                  -
                                                  -
                                                       No. 09-3193
           v.
                                                  ,
                                                   >
                                                  -
                        Respondent-Appellee. -
 JESSE WILLIAMS, Warden,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
                  No. 07-03560—Jack Zouhary, District Judge.
                              Argued: November 17, 2009
                         Decided and Filed: January 14, 2010
             Before: MERRITT, CLAY, and McKEAGUE, Circuit Judges.

                                  _________________

                                      COUNSEL
ARGUED: Kenneth J. Rexford, KENNETH J. REXFORD & CO., L.L.C., Lima, Ohio, for
Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: Kenneth J. Rexford, KENNETH J. REXFORD & CO.,
L.L.C., Lima, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellee.
      MERRITT, J., delivered the opinion of the court, in which McKEAGUE, J., joined.
CLAY, J. (pp. 13-19), delivered a separate dissenting opinion.
                                  _________________

                                       OPINION
                                  _________________

       MERRITT, Circuit Judge. Petitioner Basel Jaradat appeals the District Court’s
denial of his petition for a writ of habeas corpus. Jaradat was convicted of one count of
vaginal rape and kidnapping. He challenges his conviction on the grounds that the
prosecutor violated his constitutional rights by questioning a police witness on his post-


                                            1
No. 09-3193         Jaradat v. Williams                                                 Page 2


Miranda silence and by commenting on this silence during closing arguments. All courts
that have reviewed Jaradat’s appeals have held that the actions of the prosecution amounted
to constitutional error under Doyle v. Ohio, 426 U.S. 610 (1976). The key issue on appeal
is whether the Doyle error was harmless in light of other physical evidence, including DNA,
on which the jury may have relied. We hold that the physical evidence supporting the
vaginal rape charge is sufficiently weighty that the prosecution’s conduct, while highly
inappropriate, did not have a substantial and injurious effect on the jury’s verdict. We,
therefore, affirm the District Court.

                      I. FACTS AND PROCEDURAL HISTORY

        This Court relies on the facts determined by the state appellate court on direct
review. See, e.g., Girts v. Yanai, 501 F.3d 743, 749 (6th Cir. 2007); see also 28 U.S.C.
§ 2254(e)(1)(in a habeas proceeding “a determination of a factual issue made by a State court
shall be presumed to be correct” unless the applicant rebuts the presumption “by clear and
convincing evidence.”) The Court of Appeals of Ohio set forth the following facts:

        Jaradat worked at a Marathon gas station a few blocks from the victim’s
        home. On December 28, 2005, the victim went to the gas station to buy a
        pop. When she purchased the pop, Jaradat asked the victim if she was
        working and if she needed a job. She said she was not working and did in
        fact need a job. He told her to come back later for an interview.
        The victim went home, told her mother about the interview and job
        opportunity, and few hours later she returned to the gas station for the
        interview. During the interview/training with Jaradat, the victim received a
        phone call from her mother who was wondering what was taking her so
        long. The victim explained that Jaradat was training her and that she would
        be home soon.
        After talking to her mother, the victim told Jaradat that she needed to leave
        soon. Jaradat told the victim that he was closing the gas station early; he
        turned off the outside lights and locked the door. Jaradat then grabbed the
        victim by her ponytail and forced her into the back storage area where he
        raped her.
        The victim testified that Jaradat put his hand in the victim’s shirt and
        grabbed her breast. Jaradat took off her pants and panties, and performed
        oral sex upon her. The victim testified that Jaradat digitally penetrated her
        vagina and rectum. Jaradat tried to force the victim to perform oral sex on
        him, and then he vaginally raped her. When it was over, Jaradat told her that
No. 09-3193         Jaradat v. Williams                                                  Page 3


        he would call her tomorrow about coming to work. The victim got dressed
        and went home.
        The victim told her mother what happened, and they called the police.
        Jaradat was arrested and identified by the victim within an hour of the
        incident. The victim went to Fairview Hospital where a rape kit was
        performed.
        At trial evidence revealed that Jaradat was the source of the semen from the
        victim’s rape kit. Specifically, his semen was found in her vagina. Jaradat
        took the stand in his defense. Jaradat claimed that he only understood
        simple English and needed the assistance of an interpreter. Jaradat admitted
        to performing oral sex on the victim, and he testified that she performed oral
        sex on him. Jaradat claimed that it was a consensual encounter. He denied
        having vaginal intercourse with the victim. Jaradat claimed that the victim
        was looking for money in exchange for sexual favors, and he testified that
        when the victim left, she took $43.88.

State v. Jaradat, No. 88290, 2007 WL 1219313 at *1 (Ohio Ct. App. Apr. 26, 2007).

        A grand jury indicted Jaradat on seven different charges, including five counts of
rape, one count of kidnapping, and one count of gross sexual imposition. Jaradat was tried
in Cuyahoga County, Ohio. After presentation of all of the evidence and three days of
deliberations, the jury returned guilty verdicts on one count of rape – the vaginal rape charge
– and the kidnapping charge and acquitted Jaradat of all other charges. The trial court held
a sexual predator hearing and found that Jaradat was a sexually oriented offender. The trial
court then sentenced Jaradat to a concurrent prison term of four years on each count.

        Jaradat then appealed his conviction to the Eighth District Court of Appeals in Ohio.
The Court of Appeals affirmed his conviction. Jaradat then appealed the decision of the
Court of Appeals to the Ohio Supreme Court. The Ohio Supreme Court declined further
review of Jaradat’s claim.

        After exhausting all of his state law remedies, Jaradat next filed a habeas corpus
petition with the Federal District Court in the Northern District of Ohio. He brought only
the following ground for relief to the District Court:

        Ground One: The conviction of Basel Jaradat was accomplished by the
        prosecution egregiously violating his right to counsel and his right to remain
        silent, through comment upon assertion of those rights and that violation was
        not harmless error, instead depriving Mr. Jaradat of a fair trial and drawing
        into question the verdict.
No. 09-3193             Jaradat v. Williams                                                 Page 4


The District Court referred Jaradat’s case for a magistrate’s report and recommendation.
After noting that case was “extremely close,” the magistrate recommended that the District
Court deny Jaradat’s petition for writ of habeas corpus. Jaradat v. Williams, No. 1:07 CV
3560, slip op. at 17 ( N.D. Ohio Nov.4, 2008). The District Court followed the magistrate’s
recommendation and denied Jaradat’s petition. Jaradat v. Williams, No. 1:07 CV 3560,
2009 WL 161342 (N.D. Ohio Jan. 22, 2009). Jaradat timely appealed.

                           II. CORRECTION OF RECORD BELOW

        Before beginning an analysis of this case, this Court corrects a crucial factual
irregularity in the lower court’s opinions and the state’s brief. At trial, the prosecution
accused Jaradat of five rape acts: (1) fellatio, (2) cunnilingus, (3) anal penetration, (4) digital
vaginal penetration, and (5) vaginal intercourse. The jury convicted him only of the vaginal
intercourse charge.

        Both the magistrate judge and district court judge believed that Jaradat claimed
consent for the fellatio, cunnilingus, anal penetration and digital penetration charges. As we
read the trial transcript, Jaradat only claimed consent for the two counts concerning oral sex.
                                                     1
He denied that all other acts even occurred. This error affected the magistrate judge’s
opinion because it reasoned that the jury acquitted Jaradat of every charge for which he
argued consent. The magistrate judge also believed that the jury convicted Jaradat for
the only act he claimed did not happen. This factual mistake directly impacted the
Magistrate Judge’s understanding of the proceedings below and impacted the finding of
harmless error. The District Court made the same mistake.




        1
            The following exchanges are from Jaradat’s testimony.
                    Q. Okay. Can you explain now during the time that you’re doing this
                    oral sex on her and she’s giving you oral sex, how did that cause her
                    to bleed? (Discussion between the witness and interpreter in Arabic.)
                    A. I didn’t put anything in her vagina.
                    Mr. Dubyak: Did you ever touch her rectum? (Discussion between
                    the witness and interpreter in Arabic.)
                    A. No, sir.
                    The Court: Did you ever penetrate her with your fingers?
                    WITNESS: No.
No. 09-3193         Jaradat v. Williams                                               Page 5


         Jaradat pointed out the factual error in his brief. Despite this, the state
perpetuated this mischaracterization of the trial record no fewer than six times in its
reply brief. See, e.g., Appellee Br. at 9. (“Jaradat claimed at trial that four of the acts
were consensual and the fifth did not occur at all.”) This type of error by the state is
difficult to excuse. This Court’s analysis does not rely on the factual errors of the courts
below, but instead, is based on the facts as presented at trial and determined by the state
court.

                                    III. ANALYSIS

                                    A. Doyle v. Ohio

         Jaradat argues that the prosecution at his trial violated his due process rights
under Doyle v. Ohio, 426 U.S. 610 (1976). The Supreme Court, in Doyle v. Ohio, held
that “the use for impeachment purposes of [defendant’s] silence, at the time of arrest and
after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth
Amendment.” 426 U.S. at 619. Accordingly, it is “fundamentally unfair” to allow a
prosecutor to use a defendant’s post-Miranda warnings silence to impeach an
explanation he offers at trial. Franklin v. Bradshaw, 545 F.3d 409, 415 (6th. Cir. 2008)
(quoting Doyle, 426 U.S. at 618). The Supreme Court has held that Doyle is not a
prophylactic rule to protect Fifth Amendment guarantees, but instead is rooted in
“fundamental fairness and Due Process concerns.” Brecht v. Abrahamson, 507 U.S. 619,
629 (1993).

         Jaradat argues that the comments made during closing argument violate his
constitutional rights under Doyle. During its closing argument, the state implied that
Jaradat’s silence was evidence of recent fabrication. The prosecutor told the jury:

         He spoke so much English that on that day he neglected to tell anyone on
         December 28th oh, by the way, I performed oral sex on her, she
         performed oral sex on me, she took $40 from me I gave – never
         mentioned anything of that on December 28th. But, see, on March 29th,
         when we have the DNA, your semen, oh let’s see what else is he going
         to say? It’s not mine? Of course it’s yours. Okay. I got another argument.
No. 09-3193        Jaradat v. Williams                                             Page 6


       She must have inserted it in her, and oh, I forgot to mention this thing
       about the $40 dollars and the sex in exchange.

(emphasis added). Here, the prosecutor attempted to impeach the explanations Jaradat
offered at trial by emphasizing that Jaradat never mentioned them to the police after he
was arrested. This is a deliberate Doyle violation. We find that the prosecution in
Jaradat’s trial committed constitutional error by commenting during closing argument
on Jaradat’s post-arrest silence.

       Jaradat also argues that the prosecution committed Doyle violations when
questioning the lead detective on the case, Detective Jody Remington. At trial, the
prosecution questioned Detective Remington about her interaction with Jaradat
following his arrest. The following exchanges are also Doyle violations:

       Q. And when you advised the defendant of his rights, did he respond to
       you?
       A. He did.
       Q. And what was his response?
       A. He told me that he would prefer to have an attorney present with him
       before he made a statement.

       Q. Now, when you speak to a defendant, is that his or her opportunity to
       tell you his or her side of the story?
       Mr. Dubyak: Objection, objection.
       The Court: Overruled.
       A. Yes, there’s two sides to every story, and we want to hear both sides.

       Q. At any time on December the 29th, did the defendant ever advise you
       that any type of sexual contact, any type, took place between him and the
       victim?
       A. No, he didn’t.
       Mr. Dubyak: Objection
       The Court: Grounds?
       Mr. Dubyak: Well –
       The Court: Maybe we should come to sidebar that question.
       (Thereupon, a discussion was had at the sidebar off the record.)
       The Court: Overruled.
       Q. Detective, do you remember that question? I’m sorry.
       A. Could you restate it, please?
No. 09-3193             Jaradat v. Williams                                                           Page 7


         Q. I’m sorry. At anytime during your conversation with the defendant,
         did he admit to you or tell you that any type of sexual contact whatsoever
         took place between him and the victim?
         A. He did not.

Counsel for the state of Ohio argues that this Court cannot properly review the effect of
these questions because Jaradat allegedly waived any argument related to the
prosecution’s questioning of post-Miranda silence by failing to raise it in his appeal to
the Ohio Supreme Court. Contrary to the state’s argument, Jaradat has properly
preserved his challenges to the prosecution’s questions of Detective Remington.2 These
questions amount to blatant Doyle violations.

         The state argues that these lines of questions were for the purpose of rebutting
Jaradat’s claim that he did not understand the English language. This is a disingenuous,
post-hoc excuse. While Jaradat did request a translator for trial and testified that he had
difficulty understanding Detective Remington during their post-arrest interview, Jaradat
never relied on any linguistic difficulties as a part of his defense to the rape charges. It
was the prosecution who repeatedly focused on the English issue at trial. Further, an
effort to show that he understood the English language does not relate to questions about
his failure to tell anyone that consensual sexual activity occurred or his post-arrest
decision to forego telling “his side of the story.” Instead, these questions are a direct
comment on his post-arrest silence. They are impermissible under Doyle.3




         2
           Contrary to the State’s false argument, the State court did find these lines of questions to violate
Doyle. With respect to the first line of questions where Jaradat asked for an attorney, the state court opined
that “colloquy should have been avoided.” State v. Jaradat, No. 88290, 2007 WL 1219313 at *3 (Ohio Ct.
App. 2007). Further, the state court seemingly made no explicit finding on the second and third lines of
questions quoted above. See id. Because, the state court made an overall finding that a Doyle error
occurred, Jaradat had no reason to appeal the state court’s holding concerning specific lines of questions.
A study of Jaradat’s filings on habeas review reveal that Jaradat continued to argue that all four quoted
passages were Doyle violations. Therefore, he properly preserved all arguments.
         3
           Additionally, Jaradat did not point out all possible Doyle violations, including two instances
where the prosecution cross-examined him and a comment made during opening statements. This Court
will not consider these passages as independent Doyle violations, because petitioner has waived them. But,
the various instances in which the prosecutor mentions post-arrest silence informs this Court’s analysis
as to the prejudicial effect on the jury. See Brecht, 507 U.S. at 641 (adopting Kotteakos v. United States,
328 U.S. 750, 762 (1946) (finding that a Court on harmless error review should consider “the proceedings
in their entirety.”)
No. 09-3193        Jaradat v. Williams                                            Page 8


                                  B. Harmless Error

       Once it is determined that the trial court has committed a Doyle error, this Court
on habeas review must apply a harmless error analysis. Brecht, 507 U.S. at 637-38. The
harmless error standard emerged in the twentieth century in response to the behavior of
appellate courts in reversing many cases on technical errors. See Jeffrey O. Cooper,
Searching for Harmlessness: Method and Madness in the Supreme Court’s Harmless
Constitutional Error Doctrine, 50 U. KAN. L. REV. 309, 314 (2002). In Kotteakos v.
United States, 328 U.S. 750, 776 (1946), the Supreme Court held that an error is deemed
harmless unless it “had substantial or injurious effect or influence in determining the
jury’s verdict.” In 1993, the Supreme Court resurrected the “substantial and injurious
effect” standard from Kotteakos to address errors on collateral review. Brecht, 507
U.S. at 623.

       Under the Brecht standard, the Government has the burden of showing that the
error was harmless. Ruelas v. Wolfenbarger, 580 F. 3d 403, 413 (6th Cir. 2009) (citing
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). Further, if the court is in “grave doubt”
about whether the error had a substantial effect on the jury, then the error is not
harmless. Gravely v. Mills, 87 F.3d 779, 789 (6th Cir. 1996) (quoting O’Neal, 513 U.S.
at 436). Federal courts review the entire record de novo to determine the effect of the
error. Franklin, 545 F.3d at 413. “Inquiry cannot merely be whether there was enough
to support the result, apart from the phase affected by the error,” but instead “whether
the error had substantial influence.” Kotteakos, 328 U.S. at 765. The analysis should
result from “examination of the proceedings in their entirety.” Id. at 762.

       Contrary to the argument put forth in the State’s brief, we need not employ an
AEDPA review of the state court’s finding of harmless error. The Antiterrorism and
Effective Death Penalty Act (“AEDPA”) was passed after the Brecht decision and has
created some confusion in the lower courts as to whether a federal court on habeas
review must review a state court decision under both the AEDPA “objectively
unreasonable standard” and the Brecht “substantial and injurious effect standard.” The
Supreme Court recently addressed this confusion finding that only the Brecht analysis
No. 09-3193           Jaradat v. Williams                                            Page 9


is required. Fry v. Pliler, 551 U.S. 112, 120 (2007) (noting that “it certainly makes no
sense to require formal application of both tests (AEDPA/Chapman and Brecht) when
the latter obviously subsumes the former.”)(emphasis in original). Moreover, after
briefing in this case, the Sixth Circuit interpreted Frye to hold that the harmless error
analysis under Brecht “is broader and thus ‘subsumes’ the question” of whether the state
court’s decision was “objectively unreasonable” under AEDPA.                    Ruelas v.
Wolfenbarger, 580 F. 3d 403, 412 (6th Cir. 2009). Thus, we need only review the State
court’s finding of harmless error under Brecht, which also satisfies AEDPA’s less
stringent standard.

        The Magistrate Judge is correct that the harmless error question is extremely
close. The question is: what relationship did the Doyle series of errors have to the
vaginal rape conviction? Reasonable minds may differ on this issue. The state’s
primary, and strongest, argument is that the Doyle violation is harmless in light of the
other physical evidence presented to jury, as well as the fact that the defendant locked
the door, turned off the lights and closed the store. See Brecht, 507 U.S. at 639 (noting
that other evidence of guilt was weighty when finding harmless error). Analysis of DNA
found in the rape kit concluded that Jaradat’s semen was inside of the victim. On the
stand, Jaradat denied ever having sexual intercourse with the victim. At trial, when
asked why his semen was found inside of the victim, he hypothesized that maybe the
victim had put his semen inside of herself after he ejaculated on her stomach. On appeal,
he alleges that his semen may have dripped inside of the victim. Neither of these
theories are plausible.

        There was no evidence presented to support Jaradat’s claim that the victim had
placed Jaradat’s semen inside of her. Further, it appears that Jaradat has abandoned this
argument on appeal. At oral argument, Jaradat’s counsel pointed to the fact that seminal
fluid was found on the rectal slide taken as a part of the rape kit and on the chair cushion
to support his “theory of dripping.” While counsel is correct that seminal fluid was
found in other places besides the vaginal swabs, this does not explain how Jaradat’s
semen was found inside the victim. The nurse who performed the rape kit testified at
No. 09-3193        Jaradat v. Williams                                            Page 10


trial that she took the vaginal swab from inside the victim.          There is no other
explanation, except rape, for how Jaradat’s semen was found inside the victim. This
single fact plus the closing of the store erase the “grave doubt” we would otherwise have
about the effect of the Doyle violations on the jury. It corroborates and confirms the
testimony of the victim and her mother.

       Moreover, an analysis of the jury’s verdicts reveals that the only charge that the
jury convicted on was the one charge with physical evidence. While the jury’s finding
as to the credibility of the victim is unclear – as evidenced by acquittals on all charges
without physical evidence – the jury did convict on the sole charge supported by
concrete physical proof.

       Importantly, the Doyle violations during the trial testimony have no connection
to the vaginal rape conviction. All of the prosecutor’s impermissible comments
concerned Jaradat’s failure to claim consent on the oral rape charges at the time of his
arrest. These comments, while inexcusable, are unrelated to the vaginal rape charge.
The jury clearly distinguished in their verdicts between the vaginal rape charge and the
other charges for which it returned a verdict for the defendant.

       Jaradat also argues that during closing argument the prosecution’s comments
addressed the vaginal rape charge. At closing argument, the prosecution opined:

       He spoke so much English that on that day he neglected to tell anyone on
       December 28th oh, by the way, I performed oral sex on her, she
       performed oral sex on me, she took $40 from me I gave – never
       mentioned anything of that on December 28th. But, see, on March 29th,
       when we have the DNA, your semen, oh let’s see what else is he going
       to say? It’s not mine? Of course it’s yours. Okay. I got another argument.
       She must have inserted it in her, and oh, I forgot to mention this thing
       about the $40 dollars and the sex in exchange.

A portion of the prosecution’s closing does speak to the vaginal rape charge. But, in the
piece of this argument that relates to vaginal rape, the prosecution is not arguing that
Jaradat should have informed police at the time of arrest that his DNA would be found
inside of her. Instead, the import of this specific statement for the jury was to emphasize
No. 09-3193         Jaradat v. Williams                                            Page 11


the inconsistency between Jaradat’s testimony at trial that he never had sexual
intercourse with the victim and the presence of his semen in her vagina. Although a
Doyle violation, this passage did not have a “substantial and injurious effect” on the
jury’s determination of guilt for the vaginal rape. The prosecution made no other
comments related to the vaginal rape charge.

        If the jury had based its verdicts on defendant’s silence, as our dissenting
colleague speculates, consistency would have led them to return a verdict of guilty on
the non-rape counts for which defendant claims consent. The verdicts are not consistent
with the idea that the jury based its verdicts on the defendant’s silence. Our conclusion
to this effect may be debatable, but all of the state and federal judges who have reviewed
the case have reached the same conclusion. Therefore, our dissenting colleague goes a
little far afield in his ridicule when he says that this conclusion “seems ridiculous in the
extreme.” (Dissenting opinion, footnote 2.)

        Unlike our dissenting colleague, we are unwilling to let our inability to
reconstruct the jury’s thinking decide the harmless error question. Here the defendant
denied raping the victim. He took the stand, and he denied ever penetrating her vagina.
He said no such physical contact took place. She said he did, that he was lying. The
nurse said he did because his semen was found inside her. We are confident that the jury
based its verdict on the physical evidence, the thing that is different about the rape
question, and not on the silence of the defendant when he was first interrogated. He
denied the rape, and the numerous Doyle violations were all directed at his claim of
consent to the other sexual contacts. For example, the prosecutor asked the jury, in
violation of Doyle: “Why didn’t he claim consent back then instead of remaining
silent?” If the jury had based their verdicts on his silence, as our dissenting colleague
claims, it seems likely that the jury would have found him guilty on the other issues too,
and not returned a verdict of not guilty on all of those. The physical evidence is what
made the difference.
No. 09-3193        Jaradat v. Williams                                          Page 12


                                IV. CONCLUSION

       The prosecution’s conduct in this case was repetitive and deliberate. This type
of prosecutorial conduct is reprehensible. It is the responsibility of the judiciary to
condemn and deter these types of blatant constitutional violations. But we must also
apply the Brecht standard objectively so that the public is not harmed by the misconduct
of the prosecutor when that misconduct did not affect the outcome of the trial. We are
convinced that the jury would have returned the guilty verdict in the absence of the
Doyle violations. The physical evidence against Jaradat that related to the vaginal rape
charge was such that the prosecution’s comments did not have a substantial and injurious
effect on the jury’s verdict. Consequently, we believe that the error was harmless.
Accordingly, the judgment of the District Court is AFFIRMED.
No. 09-3193            Jaradat v. Williams                                                       Page 13


                                        _________________

                                            DISSENT
                                        _________________

         CLAY, Circuit Judge, dissenting. The prosecution committed flagrant violations
of Basel Jaradat’s constitutional right to remain silent, thereby completely obliterating
his credibility. The majority chastises the prosecutor for his misconduct but allows the
conviction to stand. Because the jury rejected much of the victim’s testimony, the
prosecutor’s comments went directly to the contested issue; and because the physical
evidence is not free from ambiguity, I respectfully dissent.

         The majority opinion effectively holds that the presence of Jaradat’s semen on
the vaginal swab combined with Jaradat’s denial of vaginal penetration means that any
error in Jaradat’s trial must necessarily be harmless. The case is simply not so clear cut
and is rife with ambiguities that leave me, at a minimum, in “grave doubt” about whether
the blatant violations of Doyle v. Ohio, 426 U.S. 610 (1976), had a “substantial and
injurious” impact on the guilty verdict. Brecht v. Abrahamson, 507 U.S. 619, 623
(1993). See also, O’Neal v. McAninch, 513 U.S. 432, 435 (1995) (finding that where a
judge was in “grave doubt” about the harmlessness of the error, “the uncertain judge
should treat the error, not as if it were harmless, but as if it affected the verdict”).

         The majority, like all courts which have reviewed the record of the case,
acknowledge that Doyle violations were committed. Respondent even agrees that a
Doyle violation occurred. The sole question, therefore, is whether or not this clear
constitutional error was merely “harmless.” As the majority notes, Jaradat was accused
of five counts of rape: (1) fellatio, (2) cunnilingus, (3) anal penetration, (4) digital,
vaginal penetration, and (5) vaginal intercourse. He was only convicted of vaginal
intercourse. The majority finds the Doyle violation “harmless” because of the physical
evidence that Jaradat’s semen was found in the victim’s rape kit.1


         1
           The majority also references the fact that Jaradat locked the door, turned off the lights, and
closed the store. While these are actions that could be taken by a man planning a rape, they also seem like
reasonable steps that might be taken by someone before engaging in consensual oral sex, which is what
Jaradat testified occurred.
No. 09-3193         Jaradat v. Williams                                             Page 14


        The crux of the matter is, somewhat tellingly, explained best by the prosecution.
In its brief, Respondent writes: “One sensible reading of the jury’s verdict is this: In this
case of classic he-said-she-said, the jury didn’t know whom to believe. So they believed
the evidence.” (Respondent Br. at 26). Under the prosecution’s theory, the jury needed
to reject the credibility of both witnesses. Since the prosecution committed a blatant
Doyle violation designed to destroy Petitioner’s credibility, it seems preposterous to find
that it is harmless error when even the Respondent admits that the jury’s verdict was
based on rejecting the credibility of both witnesses. Crucially, neither the majority nor
Respondent point to other evidence as to why Jaradat’s credibility should be questioned.

        Several additional unique factors about the case further emphasize the way that
the impermissible attack on Jaradat’s credibility caused “a substantial and injurious
effect or influence in determining the jury’s verdict.” Kotteakos v. United States, 328
U.S. 750, 776 (1946). Perhaps the most important is that the jury undoubtedly rejected
much of the victim’s testimony. She alleged five different sex acts, and the jury found
for Jaradat on four of the five. With respect to two of these acts, Jaradat had argued
consent, and with respect to two he argued that the acts did not occur. Thus, the jury
found for Jaradat both where he argued consent and where he argued the acts did not
occur. The jury obviously rejected at least some of Jaradat’s testimony as well, since he
denied the vaginal rape charge. The fact that the jury convicted Jaradat of the vaginal
rape charge, however, does not in any way mean that it believed the victim’s version of
events. The majority states that the presence of Jaradat’s semen in the victim’s vagina
“confirms the testimony” of the victim. (Majority Op. at 10). Considering the wholesale
rejection of every other part of the victim’s testimony, the presence of semen in the
victim’s vagina does not in any way “confirm” her story.

        The majority’s effort to link the physical evidence to the defendant’s testimony
highlights how even with the physical evidence, the Doyle violations in this case were
not harmless. The jury’s verdict is not easily condensed into one understanding of what
happened. Lower courts attempted to explain the jury’s verdict with the incorrect
statement that the jury found against Jaradat only where he did not argue consent.
No. 09-3193            Jaradat v. Williams                                                        Page 15


Respondent argues that the jury rejected all testimony and trusted the physical evidence.
The majority appears to adopt this same reading of the jury’s verdict.2 The simple truth
is that it is impossible with the mixed verdict in this case to understand what exactly
motivated the jury. This same verdict could be reached by juries believing very different
series of events. For instance, this verdict is consistent with a jury who may have
thought that Jaradat committed all the charged offenses but were unable to find so
“beyond a reasonable doubt” without corroborating physical evidence. At the same
time, a jury could have flatly rejected the victim’s testimony but found unconvincing
Jaradat’s hypothesis as to how his semen got into her vagina.

         While divining what exactly a jury believed may be a fruitless task, the second
outcome appears more likely. Petitioner asserts, with no rebuttal from Respondent, that
the jury initially voted 11-1 to acquit on all charges and only convicted after three days
of deliberation. In that situation, it seems plausible that at least one juror disbelieved
Jaradat because of the Doyle violation. A juror could have found Jaradat more
believable than the victim on the stand but reasoned that if Jaradat’s current explanation
was true, he would have come forward earlier. The reason a prosecutor commits a Doyle
violation is to induce a juror to make just this calculation. The prosecution was
attempting to undermine the defendant’s credibility, and once Jaradat’s credibility was
called into question, it became difficult for a juror to believe his explanation for the rape
kit finding his semen on the vaginal swab.

         This scenario is all the more problematic because, despite the majority’s
assertions to the contrary, part of the Doyle violation dealt with the contested issue. The
prosecutor in closing argument specifically referenced Jaradat’s exercise of his Miranda
rights on the issue of how his semen got into the victim’s vagina.



         2
           The majority is only able to construct an argument that the Doyle violations were harmless, alone
or in combination with the prosecution’s overreaching attacks on Petitioner’s credibility, by engaging in
a surfeit of speculation regarding the impact of the physical evidence, or the Petitioner’s silence, on the
jury’s deliberations. The majority’s unsupported contention that the jury likely responded in a discernible
and predictable way to the numerous Doyle violations and attacks on Petitioner’s credibility would be
questionable under the best of circumstances. In the instant case, the majority’s implied ability to invade
the jury’s consciousness, or the confines of the jury room, in order to divine the jury’s thought processes
and deliberations, seems ridiculous in the extreme.
No. 09-3193         Jaradat v. Williams                                            Page 16


        He spoke so much English that on that day he neglected to tell anyone on
        December 28th oh, by the way, I performed oral sex on her, she
        performed oral sex on me, she took $40 from me I gave – never
        mentioned anything of that on December 28th. But, see, on March 29th,
        when we have the DNA, your semen, oh let’s see what else is he going
        to say? It’s not mine? Of course it’s yours. Okay. I got another argument.
        She must have inserted it in her, and oh, I forgot to mention this thing
        about the $40 dollars and the sex in exchange.

(Trial Tr. 697-98). In no way is that colloquy, as the majority states, an emphasis on
“the inconsistency between Jaradat’s testimony at trial that he never had sexual
intercourse with the victim and the presence of his semen in her vagina.” (Majority Op.
at 10-11). The first and last sentences of the paragraph are tied together with their
reference to the oral sex and the $40. It strains credulity to suggest that the middle part,
emphasizing Jaradat’s explanation for the semen in her vagina, is not also part of the
Doyle violation. The entire sequence is specifically designed by the prosecutor to
undermine Petitioner’s testimony on these issues because Petitioner had the opportunity
to come forward with this information on December 28th.

        The prosecutor in closing was undoubtedly making the point that Jaradat did not
develop his theory for how the semen was found inside the victim until after he knew
about the results of the rape kit. The prosecutor intentionally and impermissibly
questioned Jaradat’s credibility on the issue based on his failure to come forward
initially with this theory. No other reading of this passage from the closing argument is
plausible; it was clearly intended to cast doubt on Jaradat’s explanation as to how his
semen was found in the victim’s vagina by emphasizing that Jaradat did not come
forward with this story immediately. The Doyle violation in the closing argument
therefore directly related to the contested issue of the vaginal rape. Since Jaradat’s
explanation may appear somewhat suspect, a Doyle violation in direct reference to that
explanation seems particularly damaging and undoubtedly had a “substantial and
injurious” influence on the jury’s decision.

        The majority misapprehends this argument, believing that I think the jury
“based” its decision on the prosecution improperly commenting on Jaradat’s silence even
No. 09-3193            Jaradat v. Williams                                                       Page 17


though it is likely that the jury “based” its decision on the totality of what was presented
at trial. This includes both the physical evidence and the improper comments on
Jaradat’s silence. The majority is correct that the difference between the vaginal rape
and the other charges is the physical evidence, but the physical evidence alone was not,
in and of itself, proof of guilt. Presumably, the jury also had to reject Jaradat’s
testimony, something that was much easier to do after the prosecutor violated Jaradat’s
right to remain silent. The majority appears to believe that had Jaradat been convicted
of all counts, his habeas petition would be stronger. I disagree. The finding of not guilty
on the other four counts does not mean that the jury was unmoved by the Doyle
violations. Rather, the four not guilty verdicts more likely indicate that the jury found
the victim not credible and increase the likelihood that the prosecution’s improper
comments had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Kotteakos, 328 U.S. at 776.

         The inconsistency of the verdicts and the relationship of the Doyle violations to
the conviction are potentially important enough on their own to show that the error was
not harmless. Additionally, however, the physical evidence so central to the majority
opinion’s conclusion is not without its own ambiguities. While the parties dispute
whether Jaradat vaginally penetrated the victim, both agree that he did not ejaculate in
her. Therefore, the mere presence of semen in her vagina is not conclusive proof of
vaginal intercourse. The victim testified that Jaradat put his penis in her vagina “maybe
three or four times.” (Trial Tr. at 468-69). Later, she testified that his penis was in her
vagina “not long.” (Trial Tr. at 498). She testified that he then removed his penis and
ejaculated on her “stomach,” which she later clarified as “my pubic area right underneath
my stomach.” (Trial Tr. 468-69). Jaradat denied any vaginal intercourse, which means
the two witnesses to the event both agreed that Jaradat did not ejaculate in the defendant,
and even under the victim’s testimony, he had entered her for “not long.”3




         3
           Obviously, “not long” would still be rape if it was without consent, but the relevant factor for
this analysis is how Jaradat’s semen got into the victim’s vagina.
No. 09-3193        Jaradat v. Williams                                             Page 18


       Therefore, even if the jury accepted the victim’s version of the story, the presence
of semen in her vagina was not the result of ejaculation. These facts were ignored by the
state appellate court, which held that “Jaradat’s semen inside the victim’s vagina, and
Jaradat’s denial of vaginal intercourse, but admission of other sexual conduct, constitutes
overwhelming proof of Jaradat’s guilt.” The magistrate judge disagreed that the case
was so clear but also relied on the DNA evidence without considering where Jaradat
ejaculated, finding that the jury’s guilty verdict on vaginal intercourse meant that it did
not rest “solely” on the issue of credibility. The magistrate judge stated only that the
“existence of alternative arguments regarding the import of that physical evidence [does
not] sufficiently undermine the likelihood that the jury was able to reach its verdict
without being unduly influenced by the prosecution’s improper conduct.”

       The district judge finally confronted the fact that the victim testified that Jaradat
did not ejaculate inside her. The district judge held that “Petitioner was not wearing a
condom and fails to consider the possibility that pre-ejaculate may have remained in the
victim’s vagina after penetration, even if he ejaculated elsewhere.” Nobody disputes the
“possibility” that pre-ejaculate could account for the semen on the vaginal swab. On
harmless error review, however, a court’s task is not the same as on a sufficiency of the
evidence claim. “The inquiry cannot be merely whether there was enough to support the
result, apart from the phase affected by the error,” but instead “whether the error itself
had substantial influence.” Kotteakos, 328 U.S. at 765.

       Perhaps it is here where I most diverge from the majority opinion. The majority
asserts that: “There is no other explanation, except rape, for how Jaradat’s semen was
found inside the victim.” (Majority Op. at 9-10). Not even Respondent believes that the
physical evidence is that strong. While questioning the reasonableness of Petitioner’s
theory, Respondent states: “Is it possible that [the semen] ‘dripped’ into the victim’s
vaginal canal after Jaradat ejaculated on the victim’s stomach as he claims? Sure.”
(Respondent Br. at 24). Respondent argues that the jury, however, “was entitled to find
that the semen found inside the victim’s vagina was proof that a vaginal rape with
Jaradat’s penis occurred.” Id. While the jury was entitled to find that it was proof of
No. 09-3193           Jaradat v. Williams                                         Page 19


vaginal rape, Jaradat was entitled to not have his post-arrest silence used against him,
and he was further entitled to not have the impermissible use of his post-arrest silence
influence the jury.

       Here, even under the victim’s version of events, the physical evidence could not
constitute a large amount of semen. While pre-ejaculate is a reasonable explanation, it
seems possible that the “leakage” argument made by Petitioner also could have led to
the positive rape kit result. Petitioner testified at trial that following fellatio, he
ejaculated into his own hand and that it some of it got on the victim’s body. He then
gave her napkins to clean up and hypothesizes that some of it got into her vagina.
Contrary to the majority’s assertion, this theory is not inconsistent with the “leakage”
argument emphasized by Petitioner’s counsel at oral argument. The cohesive theory is
that Jaradat ejaculated on the victim, and in the process of cleaning up, semen got into
her vagina. This may not be the only possible explanation, but it is bolstered by the fact
that seminal fluid was also found on the victim’s rectal swab and a chair in the room.
Respondent never suggested that Petitioner’s anal penetration occurred with his penis,
so the presence of seminal fluid on the rectal exam supports Jaradat’s leakage theory.
Jaradat equally denied anal penetration and was found not guilty of that offense.

       With all of these irregularities, the majority is forced to base its entire holding
on the vaginal swab. Nobody disputes that the vaginal swab is evidence that Jaradat
penetrated her vaginally, but our inquiry is not whether sufficient evidence supported the
jury’s verdict but whether the blatant and repeated Doyle violations had a “substantial
and injurious” effect on the jury’s decision. Brecht, 507 U.S. at 623. The rejection of
much of the victim’s testimony, the presence of semen on the rectal swab, the fact that
the Doyle violations explicitly invoked Jaradat’s explanation for his semen in the
victim’s vagina, and the consensus that Jaradat did not ejaculate in the victim all
combine to show that the prosecutorial misconduct had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Kotteakos, 328 U.S. at 776.

       For these reasons, I respectfully dissent.
