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

No. 03-1162
CLIFTON McFOWLER,
                                               Petitioner-Appellee,
                                 v.

DANNY D. JAIMET, Warden,
Hill Correctional Center,
                                           Respondent-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 96 C 5681—Joan B. Gottschall, Judge.
                          ____________
   ARGUED MAY 27, 2003—DECIDED NOVEMBER 13, 2003
                    ____________


 Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  ROVNER, Circuit Judge. Following a 1992 bench trial,
an Illinois judge convicted Clifton McFowler of first-degree
murder and ordered him to serve a prison term of forty
years. The Illinois Appellate Court affirmed McFowler’s
conviction, judging the testimony of Charlene Meredith,
who placed McFowler at the scene of crime with a shotgun
in his hand, sufficient to convict him beyond a reasonable
doubt notwithstanding conflicts in the evidence as to
whom Meredith had picked out of a lineup shortly after
the murder. The district court (Hon. Joan B. Gottschall)
granted McFowler’s petition for a writ of habeas corpus,
2                                              No. 03-1162

concluding that the Illinois Appellate Court had unreason-
ably applied Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781 (1979), when it sustained McFowler’s conviction based
on Meredith’s identification testimony. United States ex
rel. McFowler v. Pierson, 2003 WL 76861 (N.D. Ill. Jan. 8,
2003). In view of the irreconcilable inconsistencies in
Meredith’s own testimony, we share the district court’s
doubts about the reliability of her identification. “The
vagaries of eyewitness identification are well known; the
annals of criminal law are rife with instances of mistaken
identification.” United States v. Wade, 388 U.S. 218, 228,
87 S. Ct. 1926, 1933 (1967). However, the Antiterrorism and
Effective Death Penalty Act of 1996 commands great
deference to the decisions of state courts. See 28 U.S.C.
§ 2254(d); e.g., Bell v. Cone, 535 U.S. 685, 693, 122 S. Ct.
1843, 1849 (2002). Because we cannot say that the Illi-
nois Appellate Court was objectively unreasonable in
holding that Meredith’s testimony provided sufficient
support for McFowler’s conviction, we are compelled to
reverse the grant of McFowler’s petition for a writ of
habeas corpus.


                            I.
  Sammy Logan was shot on October 9, 1989, when he
answered a knock at the front door of his home. He lapsed
into a coma and died three days later. An autopsy would
reveal that he had been shot in the forehead and that
the bullet had penetrated his brain.
  Although the Illinois Appellate Court was not explicit on
this point, it is undisputed that McFowler’s murder con-
viction is premised not on the notion that McFowler shot
Logan himself, but rather on the theory that McFowler
is legally accountable for the acts of the person who did.
The trial judge neglected to make this clear when he
convicted McFowler, but his remarks at sentencing elimi-
No. 03-1162                                                3

nate any doubt on this score. Indeed, the State defends
McFowler’s conviction solely on an accountability theory.
Illinois law provides that “[a] person is legally account-
able for the conduct of another when . . . [e]ither before
or during the commission of an offense, and with the in-
tent to promote or facilitate such commission, he solicits,
aids, abets, agrees or attempts to aid, such other person
in the planning or commission of the offense.” 720 Ill.
Comp. Stat. Ann. 5/5-2(c) (West 2003). As we shall see,
there is ample circumstantial evidence from which one
reasonably might conclude both that McFowler was pres-
ent at the scene of the murder and that he fled from the
scene in the immediate aftermath. However, mere pres-
ence at the scene of a crime—even with knowledge that
a crime is being committed—and flight from the scene
do not suffice to establish accountability for the acts of a
principal under Illinois law. E.g., People v. Williams, 739
N.E.2d 455, 472 (Ill. 2000), cert. denied, 533 U.S. 953, 121
S. Ct. 2599 (2001). The State must also prove that the
defendant intended to facilitate or promote the principal’s
criminal activity. E.g., People v. Stanciel, 606 N.E.2d 1201,
1210 (Ill. 1992). The critical evidence pointing to Mc-
Fowler’s complicity in the murder came from Meredith.
  In October of 1989, Meredith resided in a second-floor
apartment at 3144 West Lexington Street in Chicago
along with Logan (her boyfriend), Glenda Roberts
(Meredith’s sister), Percell Swinney (Roberts’ boyfriend),
and seven children. At approximately 11:45 a.m. on October
9, there was a knock at the front door of the apartment. At
that time, Logan, Meredith, and Meredith’s children were
congregated in a bedroom opposite the kitchen. Against
Meredith’s advice, Logan left the bedroom to answer the
knock, closing the bedroom door behind him. Through the
closed door, Meredith subsequently heard a shot. Meredith’s
two-year-old son Davion opened the bedroom door, and
at a distance of approximately sixteen feet, Meredith
4                                               No. 03-1162

would later testify, she saw a somewhat short African-
American man with a shotgun in his hand standing in the
kitchen. He was wearing blue jeans and a white t-shirt.
Next to him, lying on the floor of the kitchen, was Logan. At
first, the intruder’s face was turned away from Meredith
toward Swinney, who was standing in a doorway between
the kitchen and the living room. But Meredith got a
clear look at the intruder’s face when he subsequently
tripped over Logan’s body. Meredith also heard a voice
from somewhere else in the apartment say “if you are
going to shoot him[,] shoot him.” Tr. G22. Meredith
grabbed Davion by the shirt and pulled him into the
bedroom closet along with her other children. They re-
mained in the closet for approximately fifteen to twenty
minutes, until Meredith’s sister came to find her. Meredith
later saw that Swinney had been shot in the arm.
   Police were summoned from a nearby police station by
a neighbor who ran into the police station yelling that
two men had just been shot. They arrived at the scene
within minutes of the shooting. Officer J. Delpilar found
Swinney sitting on the front steps of the building with a
gunshot wound to his right arm. When he entered the
second-floor apartment, Delpilar saw Logan lying on the
floor in a pool of blood, unconscious but still breathing.
Delpilar spoke with Swinney and the other witnesses and
subsequently broadcast a description of three suspects: (1)
an African-American male in his late teens or early twen-
ties, approximately six feet tall, 180 pounds, with brown
eyes and black hair, wearing a red and white jogging
suit and gym shoes; (2) a second African-American male
in his twenties, wearing an orange shirt and red jogging
pants; and (3) a female African American aged eighteen
to twenty, wearing white pants and tall black riding boots.
  On further inspection of the scene, Delpilar found a set
of automobile keys near the top of the stairs leading to
the second-floor apartment where Meredith and Logan
No. 03-1162                                                5

lived. Those keys, he discovered, fit the driver’s side door
and ignition of a gray Ford Escort parked in front of (and
across the street from) the property. Officer Edward
Kulbida learned from bystanders that the suspects had
attempted to use that car as their getaway vehicle. (The
keys found in the stairwell explain why the suspects had
left the Escort behind and fled on foot.) Because Delpilar
failed to handle the keys in such a way as to preserve
any fingerprints on them, they were not tested for prints.
However, prints lifted from the exterior of both the driver
and passenger sides of the Escort matched McFowler
and Byndum, respectively. It could not be said how long
those prints had been on the car.
   Touring around the area to the north of the crime scene,
Kulbida and other officers soon spotted a woman—Shanie
Flowers—matching the description of the female suspect.
Flowers was making a call from a pay phone at 3258
West Flournoy, just two blocks away from the scene of
the shooting. Flowers volunteered to the officers that the
men they were looking for could be found in the second-floor
apartment at that same address. Kulbida, along with
Detective Wayne Gulliford and Officer Robert Gomez,
entered the Flournoy apartment approximately thirty
minutes after the shooting was reported. Inside, they
found McFowler and Trenton Byndum, among other
individuals. McFowler was lying in bed, wearing only
blue jeans. Byndum was in the living room, wearing striped
blue jeans, a sleeveless blue top, white socks, and no shoes.
Gulliford spotted blood on Byndum’s right sock. On the
floor next to Byndum were a beige trench coat, a pair of
Nike Air Flight athletic shoes, and a Payless shopping
bag containing other items of clothing. Among the clothes
found in the bag were a pair of red and white jogging pants,
a shirt, and a jogging jacket, all stained with what ap-
peared to be blood. Byndum and McFowler were placed
under arrest.
6                                              No. 03-1162

  During a subsequent search of the apartment, Detective
Gregory Baiocchi discovered a black and white Converse
athletic shoe for a right foot in the apartment’s oven. The
shoe had what appeared to be blood spots on it. Baiocchi
recovered what appeared to be that shoe’s mate in the
Escort parked in front of the crime scene. Both shoes were
submitted to a laboratory for testing, which confirmed
that human blood was present on both shoes. The blood
found on the left shoe was Type B; the right shoe contained
an insufficient quantity of blood for typing. At trial,
McFowler was asked to try the shoes on, and the shoes fit
him. They also fit his lawyer. Logan’s blood type apparently
was Type B. (Type B blood was recovered from the crime
scene.)
  Also discovered at the Flournoy apartment (secreted
behind bricks in the rear stairwell of the basement) were
a Ruger Security Six revolver with two live .38-caliber
rounds and four spent casings of the same caliber, as
well as a Westernfield .20-gauge shotgun with two live
rounds. The record before us does not include any ballistics
evidence tying either of these weapons to the shooting. It
is undisputed, however, that Logan was shot with a re-
volver rather than a shotgun.
   The hands of both McFowler and Byndum were tested
for gunshot residue. The results for Byndum were posi-
tive and thus consistent with Byndum having recently
handled or been in close proximity with a discharged
firearm. The results for McFowler reflected high levels of
each of the heavy metals associated with firearm use—lead,
barium, and antimony—but because the control swab used
in the test reflected an elevated level of barium (suggest-
ing contamination), the trace evidence analyst could not
confirm that McFowler, like Byndum, had been in close
proximity to a recently discharged firearm.
  A bloody footprint was found on the first-floor landing at
the scene of the shooting. The parties stipulated that an
No. 03-1162                                                7

expert in shoe print comparison, if called to testify, would
opine that a photograph of the footprint was of the same
type, size, and style as the pair of Nike Air Flight athletic
shoes observed next to Byndum in the Flournoy apart-
ment, but the expert could not say with a reasonable de-
gree of scientific certainty that those shoes had, in fact,
made the footprint. Although the shoes bore what ap-
peared to be blood stains, they apparently were never
tested to confirm the presence of blood or the blood type.
  On the day of his arrest, McFowler made a number of
statements to Detective Baiocchi, which the detective later
recounted at trial. Baiocchi testified that McFowler told
him he had gone to the Flournoy apartment the previous
evening with a friend and that he had remained there
until the police arrived and arrested him the following
day. He also indicated that Byndum was his cousin. He
had telephoned Byndum earlier that day to let him know
where he was, and Byndum had subsequently joined him
at the Flournoy apartment. Baiocchi testified that he did
not see a telephone in the Flournoy apartment.
  At approximately 5:30 p.m. on the day of the shooting,
Meredith viewed a six-man lineup at the police station.
That lineup included both McFowler and Byndum. At
trial, on direct examination, Meredith testified that she
told police at the lineup “[t]hat the second person from the
end looked like the one who was in my house.” Tr. G25. The
prosecutor then showed Meredith a photograph of the
lineup and asked her to circle the individual that she had
identified as the man she saw in her apartment with the
shotgun. Meredith circled McFowler, although as it turned
out, he was not the second person from either end of the
lineup as displayed in the photograph. She also proceeded
to identify McFowler in court as the man she had seen.
Tr. G28-29. Additionally, when shown the shotgun that had
been found at the Flournoy address, Meredith indicated
“[t]hat’s the shotgun that I saw” in McFowler’s hand. Tr.
8                                                  No. 03-1162

G29-30. On cross-examination, she confirmed that it “looks
just like the gun that I saw.” Tr. G33.
   Detective P. Foley conducted the lineup that Meredith
viewed. The parties stipulated that if called to the wit-
ness stand, Detective Foley would testify that Meredith
had identified Byndum, not McFowler, as the man she
had seen with the shotgun. Foley also would have testi-
fied that when he spoke with Meredith after the shooting,
she indicated to him that she previously had seen the man
with the shotgun in her neighborhood.
  On cross-examination, defense counsel asked Meredith
whether, at the lineup, she had actually identified a
man wearing striped pants and a sleeveless blue t-shirt
(Byndum). In response, Meredith indicated that she had
“picked out both.” Tr. G35. Meredith acknowledged, how-
ever, that in the photograph of the lineup, neither Mc-
Fowler nor Byndum was the second person from either
end of the lineup. Meredith recalled having spoken with
Detective Foley after the shooting, but she did not recall
telling him that she had seen the man with the shotgun
before around the neighborhood. Indeed, she testified that
she had never seen McFowler before the date of the inci-
dent.1



1
  We do not know what to make of the following exchange
between Meredith and McFowler’s counsel at the conclusion of
cross-examination:
    Q. Now, when you viewed this lineup, you told police officers
       who you thought was in your apartment, is that correct?
    A.   Right.
    Q. And you made it clear to them who was in your apart-
       ment, isn’t that correct?
    A.   Hmm, hmm.
                                                   (continued...)
No. 03-1162                                                      9

  On redirect, the State brought Byndum into the court-
room. Byndum had pleaded guilty to the murder of Logan
prior to trial and was ultimately sentenced to a thirty-year
prison term. The State had called Byndum as its first
witness against McFowler; however, Byndum had invoked
his Fifth Amendment right not to incriminate himself
and had refused to answer any of the questions put to
him about the shooting. (The trial court had found him
guilty of criminal contempt of court and ordered him to
serve a six-month prison term consecutive to the thirty-
year term for murder.) With both Byndum and McFowler
side-by-side in the courtroom, the State asked Meredith
which of the two men she had seen with a shotgun on the


1
    (...continued)
       Q. And it’s your testimony here today that you identified to
            members of the Chicago Police Department the individ-
            ual you circled?
      A.   Hmm, hmm.
      Q. And identified as Mr. McFowler the other individual on
         the opposite end of this photograph, in the striped pants,
         is that correct?
      A.   Yes.
Tr. G36-37. On the one hand, it appears from this exchange that
Meredith was confirming that it was McFowler whom she had
identified at the lineup as the person she saw in her apartment.
On the other hand, counsel’s final question, regarding “the other
individual on the opposite end of this photograph, in the striped
pants,” appears to have been a reference to Byndum; and we do
not understand how Meredith could have identified that individ-
ual “as Mr. McFowler.” Perhaps McFowler’s counsel became
confused in posing the question: he may have intended to ask
whether Meredith had identified the individual in striped pants
in addition to Mr. McFowler; and perhaps that is what Meredith
understood him to be asking when she answered “Yes.” Alterna-
tively, the transcription may be inaccurate. We simply do not
know.
10                                             No. 03-1162

day of the shooting. Meredith indicated that she had
seen McFowler. Tr. G38. She also acknowledged, contrary
to her earlier testimony, that the person she had seen in
her apartment was not the second person from either end
of the lineup as depicted in the photograph she was shown.
Tr. G39-40.
  On re-cross examination, McFowler’s attorney asked
Meredith how long a glimpse she had gotten of the person
in her apartment. Meredith answered, “Maybe just a few
minutes.” Tr. G40.
  After hearing the evidence, the trial court (Hon. Thomas
A. Hett) convicted McFowler of first degree murder. In the
course of his ruling, Judge Hett made the following re-
marks about Meredith’s identification testimony:
     Now, if I am not mistaken Miss Meredith testified that,
     here in court she testified Mr. McFowler was the one
     that she saw in the apartment with the gun . . . the
     shotgun. She also testified that in the—that she had
     a photo array, and she said that this defendant’s pic-
     ture was the, like the picture of the person who was
     in the apartment and that she also identified the
     defendant in a lineup.
     That portion of [her testimony], the latter part is
     impeached by Foley who[se stipulated testimony] said
     that she only identifies Trenton Byndum.
Tr. K52-53. But the judge went on to credit her in-court
identification of McFowler (Tr. K56), and based on that
identification along with the other circumstantial evidence
placing McFowler at the scene of the shooting, concluded
that he was guilty:
     The defendant is identified by Miss Meredith. He has
     his prints on the car outside of the house. There are
     shoes that fit him partly in the car and partly hidden.
     He is found with a person whose clothing and shoes
     apparently are covered with blood.
No. 03-1162                                              11

   Both he and the person who he is with are identified
   as having been in that apartment when the shooting
   took place.
   Sure looks to me like proof beyond a reasonable doubt,
   if not [of] the actual murder then being the accomplice.
   Miss Meredith testified that [there were] two sets
   of shootings in the apartment and we do note that
   the victim was killed and [Percell Swinney] was shot
   so I believe that the State has proven its case beyond
   a reasonable doubt the crime of murder and the de-
   fendant is found guilty thereof.
Tr. K56-57. McFowler subsequently filed a motion for a
new trial, which the court denied. At sentencing, the
State asked the judge to impose the death penalty, but
the judge demurred, concluding that McFowler was ineli-
gible in the absence of evidence that he had fired the
gun used to kill Logan. Tr. L9. Judge Hett took the op-
portunity to reiterate, however, that the evidence was
sufficient to hold McFowler criminally culpable for the
murder under an accountability theory:
   There is a wealth of circumstantial evidence. There’s
   an identification process. So, I’m convinced beyond a
   reasonable doubt that Mr. McFowler was present
   with Mr. Byn[d]um in that house, and that as a re-
   sult of that presence, that man was killed. And there
   was an obvious intention to kill. It wasn’t something
   that was a happenstance.
   I have determined also from that evidence that it is
   apparent, unless they switched guns, and it wasn’t
   apparent that that’s the case, that Mr. McFowler
   did not pull the trigger. Nevertheless, he is accountable
   for what Mr. Byn[d]um did.
Tr. L11-12. The judge went on to sentence McFowler to a
prison term of forty years.
12                                              No. 03-1162

  The Illinois Appellate Court affirmed McFowler’s con-
viction, concluding in relevant part that a rational trier
of fact could find him guilty beyond a reasonable doubt.
People v. McFowler, No. 1-92-2176, 697 N.E.2d 16, Order
at 31-38 (Ill. App. Ct. Sept. 29, 1995) (unpublished) (“App.
Ct. Order”). The court found Meredith’s identification
of McFowler was sufficiently reliable to place McFowler
at the scene of the murder with a shotgun in his hand.
Meredith testified that she had identified McFowler in
a lineup just six hours after the shooting, and her testimony
established that at the time of the shooting, she had seen
him at a distance of sixteen feet, although the court
“greet[ed] with some skepticism her further testimony
that she was able to maintain her view of him for perhaps
as long as a few minutes.” App. Ct. Order at 33.
  The court acknowledged that Meredith’s testimony
reflected some confusion as to where McFowler had been
positioned in the lineup and that it conflicted with the
stipulation that Detective Foley would have testified that
she had identified Byndum and not McFowler. Id. “How-
ever, any such confusion or apparently conflicting evi-
dence would not necessarily mandate that the circuit
court totally disregard her lineup identification.” Id.
Meredith, the court noted, ultimately testified that she
had identified both Byndum and McFowler in the lineup.
Moreover, the circuit court itself had acknowledged that
Detective Foley’s recollection about the lineup tended to
impeach Meredith’s testimony on that point.
  It was not clear to the appellate court whether the
trial court, in view of the conflict, had given Meredith’s
testimony about the lineup diminished weight or had
disregarded it altogether; but the latter possibility would
not leave McFowler’s conviction without adequate eviden-
tiary support:
     Even if Meredith’s lineup identification were given
     no weight whatsoever, there still would have been
No. 03-1162                                              13

    credible eyewitness testimony in this case. Meredith
    made an unwavering in-court identification of the
    defendant. The strength of this identification was only
    reinforced when Meredith, during redirect examina-
    tion, viewed both the defendant and Trenton Bynd[u]m
    together in court and reaffirmed that the defendant
    was in fact the person she saw trip over the victim on
    October 9, 1989.
Id. at 34. The court also noted that there was no evi-
dence Meredith had ever indicated any uncertainty in
identifying McFowler and that her in-court description
of the intruder as a short, African-American male was
not challenged and was consistent with McFowler’s ap-
pearance. Id. at 36. (The presentence report for McFowler
indicated that he was African American and five feet, six
inches in height. Id. n. 2.)
  The court also emphasized that in addition to Meredith’s
identification testimony, the record reflected “substantial
corroborative testimonial and physical evidence” that linked
McFowler to the crime. Id. at 36. Meredith had identified
the shotgun that had been recovered (along with the
revolver) from the Flournoy building as the one she had
seen in McFowler’s hand on the day of the shooting. The
keys to a Ford Escort parked directly across the street
from the scene of the crime had been found in the Lexing-
ton building; witnesses had told the police that the assail-
ants had attempted to flee the scene in that vehicle; and
McFowler’s prints (along with Byndum’s ) were found on
the exterior of that car. The Converse shoe found in that
car appeared to be the mate of the one found in the oven of
the Flournoy apartment. Both of those shoes were stained
with blood, and testing revealed that the blood on the left
shoe was type B, which apparently was the same blood
type as the victim’s. The shoes also fit McFowler. The
pair of Nike shoes discovered in the Flournoy apartment
also bore what appeared to be blood stains, and the pattern
14                                             No. 03-1162

of those shoes was consistent with a bloody footprint
found at the crime scene.
     Thus the single Converse shoe found inside the oven,
     which apparently matched the Converse shoe found
     in the Ford Escort, and the Nike shoes found inside the
     apartment, corroborated the inference that Bynd[u]m
     and the defendant, who were both barefoot at the time
     of their arrest just thirty minutes after the shooting,
     were the individuals who wore those shoes at the
     crime scene.
Id. at 38. The “cumulative impact” of this evidence was,
in the court’s view, sufficient to support McFowler’s con-
viction notwithstanding the weaknesses in Meredith’s
identification testimony. Id. The Illinois Supreme Court
denied McFowler’s petition for leave to appeal. People
v. McFowler, No. 80488, 664 N.E.2d 645 (Ill. April 3,
1996) (unpublished).
   McFowler subsequently filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Upon review
of the parties’ briefs and the record, the district court
granted the petition. McFowler, 2003 WL 76861. The court
proceeded from the premise that McFowler could be
liable for Logan’s murder under an accountability theory
if, in fact, he was the man with a shotgun that Meredith
had seen next to (and tripping over) Logan’s body. Id. at
*6. (The court separately considered whether McFowler
could have been convicted as a principal, but concluded
the facts would at most support McFowler’s conviction
under an accountability theory. Id. at *11.) But in the
court’s view, the evidence was insufficient to establish
that McFowler was the intruder that Meredith had seen.
  First, “[n]o rational trier of fact could ascribe any
weight to Meredith’s testimony concerning her identifica-
tion of McFowler from the lineup on the day of the crime.”
Id. at *7. The Illinois Appellate Court seemed to think
No. 03-1162                                              15

that the trier of fact could have given the lineup at least
some weight, because when confronted with Foley’s stipu-
lated testimony that she had identified Byndum at the
lineup, Meredith said that she had identified both Byndum
and McFowler. But Meredith testified that she had
only seen one assailant, and Byndum and McFowler did
not look alike. So it was “nonsensical” to suppose that
Meredith could have identified both of them at the line-
up. Id.
   On the other hand, the lineup could not simply be dis-
regarded in assessing the balance of Meredith’s identifica-
tion testimony, as the Illinois Appellate Court had sup-
posed. Id. Rather, the evidence underlying McFowler’s
conviction must be viewed as a whole. Although Meredith
had identified McFowler in the courtroom, the fact that
she had evidently identified someone else (Byndum) either
in addition to or instead of him in the context of a non-
suggestive lineup conducted hours after the crime was
committed cast doubt on the value of Meredith’s in-court
identification. Id. The court noted that the circumstances
relevant to the reliability of the identifications in this
case suggested strongly that the lineup was the more
reliable of the two identifications that Meredith had made:
the courtroom identification was made under suggestive
circumstances (McFowler had been seated at table with
his counsel); even when Byndum was summoned into the
courtroom during Meredith’s redirect examination, she
was called upon to make an identification from just two
people as opposed to the six she had viewed in the lineup;
and a good deal of time had passed before Meredith made
her in-court identification in 1992. Id. at *8-*9. “Given
Meredith’s same-day identification of Byndum, the sug-
gestiveness of the in-court identification procedure, and
the very long time delay between the two, it was objec-
tively unreasonable for the Illinois Appellate Court to
find credible Meredith’s albeit ‘unwavering,’ in-court iden-
tification of McFowler.” Id. at *9.
16                                             No. 03-1162

  One could infer from the other record evidence that
McFowler was present at the scene of the murder, the
court acknowledged (id. at *9-*10), but that evidence
was insufficient to support his conviction. In order to
prove McFowler’s guilt under an accountability theory,
the State had to establish that McFowler, either before
or during the commission of the crime, and with the in-
tent to promote or facilitate that crime, in some way
solicited, aided, abetted, agreed or attempted to aid some-
one else in the planning or commission of the crime. Id.
at *11, quoting 720 Ill. Comp. Stat. Ann. 5/5-2(c). In this
case, there was no evidence that the perpetrators had
planned the crime, let alone that McFowler was aware of
that plan. Id. Beyond McFowler’s presence at the scene
of the crime and his flight therefrom, the most that the
evidence established was his presence in the same apart-
ment as Byndum a half hour after the murder and his
failure to report the crime. Id. at *12. In the district
court’s view, this was not enough to show that McFowler
took some act to promote or facilitate the commission of
the crime or that he intended to do so. Id.
  The district court therefore granted McFowler’s re-
quest for a writ of habeas corpus and ordered his release
within twenty days. Id. at *13. On the State’s request, the
district court stayed its order pending resolution of the
State’s appeal. R. 40.


                            II.
  “The Antiterrorism and Effective Death Penalty Act of
1996 modified a federal habeas court’s role in reviewing
state prisoner applications in order to prevent federal
habeas ‘retrials’ and to ensure that state-court convictions
are given effect to the extent possible under law.” Bell v.
Cone, supra, 535 U.S. at 693, 122 S. Ct. at 1849, citing
No. 03-1162                                               17

Williams v. Taylor, 529 U.S. 362, 403-04, 120 S. Ct. 1495,
1518 (2000). Under the AEDPA, in order to obtain habeas
relief, a petitioner must establish that the proceedings
in state court resulted in a decision (1) “that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States,” or (2) “that was based on
an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). The relevant decision, for purposes of
this assessment, is the decision of the last state court
to rule on the merits of the petitioner’s claim—here, the
order of the Illinois Appellate Court. E.g., Schultz v. Page,
313 F.3d 1010, 1015 (7th Cir. 2002), cert. denied, 123 S. Ct.
2220 (2003).
  There is no contention that the Appellate Court’s deci-
sion is “contrary to” clearly established law. The court
acknowledged that due process requires the State to
establish beyond a reasonable doubt that a defendant
committed each element of the charged offense. App. Ct.
Order at 31, citing In re Winship, 397 U.S. 358, 361-63, 90
S. Ct. 1068, 1071-72 (1970). The court also recognized
that, under Jackson v. Virginia, supra, 443 U.S. at 319, 99
S. Ct. at 2789, a court examining the sufficiency of the
evidence underlying a defendant’s conviction must con-
strue that evidence in the light most favorable to the
State and determine whether any rational trier of fact
could have found the elements of the crime beyond a
reasonable doubt. App. Ct. Order at 31-32. Moreover, we
note that in evaluating the reliability and sufficiency of
Meredith’s identification testimony as the key evidence
supporting McFowler’s conviction, the court looked to the
same factors that the Supreme Court identified as pertinent
in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382
(1972). See App. Ct. Order at 32.
18                                               No. 03-1162

   The question posed by McFowler’s petition is whether the
Illinois Appellate Court’s decision amounts to an unrea-
sonable application of the Jackson sufficiency standard. “A
state-court decision that correctly identifies the govern-
ing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case certainly would qualify
as a decision ‘involv[ing] an unreasonable application
of . . . clearly established Federal law.’ ” Williams, 529 U.S.
at 407-08, 120 S. Ct. at 1520. “Unreasonable” means
something more than “mistaken,” however. Woodford v.
Visciotti, 537 U.S. 19, 25, 27, 123 S. Ct. 357, 360, 361 (2002)
(per curiam); Williams, 529 U.S. at 410, 120 S. Ct. at 1522;
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), cert.
denied, 123 S. Ct. 1802 (2003). A state court decision is
unreasonable for purposes of section 2254(d)(1) if its
application of Supreme Court precedent “l[ies] well outside
the boundaries of permissible differences of opinion.” Id.
at 762, citing Williams, 529 U.S. at 411, 120 S. Ct. at 1522;
see also Visciotti, 123 S. Ct. at 361 (“[t]he federal habeas
scheme . . . authorizes federal-court intervention only
when a state-court decision is objectively unreasonable”).
Within this framework, the precise legal question that
we must answer is the one that the district court itself
posed: “Was it objectively unreasonable for the Illinois
Appellate Court to conclude that any rational trier of fact,
after viewing the evidence in the light most favorable to
the state, could have found the essential elements of
first degree murder beyond a reasonable doubt.” 2003 WL
76861, at *5.
  It is undisputed that McFowler was convicted of
Logan’s murder not as a principal but on an accountabil-
ity theory. As we have noted, neither the trial judge (in
finding McFowler guilty) nor the Illinois Appellate Court
(in affirming his conviction) stated this expressly. Neither
court, for that matter, identified the elements that would
have to be established in order to find McFowler guilty
No. 03-1162                                               19

under either theory. However, when he sentenced Mc-
Fowler, Judge Hett remarked that “Mr. McFowler did
not pull the trigger. Nevertheless, he is accountable for
what Mr. Byn[d]um did.” Tr. L12. Judge Gottschall con-
sidered whether the evidence would have supported
McFowler’s conviction as a principal and concluded that
it would not: Logan was killed with a revolver; Meredith
testified that she saw McFowler holding a shotgun, not
a revolver; there was no evidence that the shotgun had
been fired; the inconclusive results of the gunshot residue
test on McFowler were consistent with the possibility
that he had handled the revolver, but shed no light on
whether he had fired the gun or merely handled it after
the shooting; and there were at least two and possibly
three intruders present in the apartment at the time of
the murder, rendering it impossible to conclude beyond
a reasonable doubt that McFowler was the one who fired
the shot that killed Logan. 2003 WL 76861, at *11. For
its part, the State does not suggest that McFowler could
have been convicted as a principal. On the contrary, it
asserts that McFowler was convicted on an accountability
theory (e.g., State’s Opening Brief at 10) and it defends his
conviction on that basis alone.
   As we have noted, the Illinois accountability statute
provides that an individual is criminally liable for an
offense committed by another person “when . . . [e]ither
before or during the commission of an offense, and with
the intent to promote or facilitate such commission, he
solicits, aids, abets, agrees or attempts to aid, such other
person in the planning or commission of the offense.” 720
Ill. Comp. Stat. Ann. 5/5-2(c). The pertinent statutory
terms here are “aids” and “abets,” as there is no evidence
that McFowler solicited Logan’s murder, that he agreed to
aid anyone in the planning or commission of the crime, or
that he participated in the planning of the offense. As
Judge Gottschall recognized, the defendant’s mere pres-
20                                               No. 03-1162

ence at the scene of the crime is insufficient to establish
that a defendant aided or abetted the commission of the
offense, even when coupled with his knowledge of the
crime and his flight from the crime scene. People v. Wil-
liams, supra, 739 N.E.2d at 472; People v. Shaw, 713
N.E.2d 1161, 1173 (Ill. 1999); see also United States v.
Johnson, 612 F.2d 305, 308 (7th Cir. 1980) (applying Illi-
nois law). The evidence must additionally establish the
defendant’s intent to facilitate or otherwise promote the
commission of the offense, either by showing that the
defendant shared the principal’s criminal intent or that
there was a common criminal design. People v. Perez, 725
N.E.2d 1258, 1264-65 (Ill. 2000); People v. Stanciel, supra,
606 N.E.2d at 1210. Of course, “[i]ntent may be inferred
from the character of the defendant’s acts as well as the
circumstances surrounding the commission of the offense.”
Perez, 725 N.E.2d at1265, citing Stanciel, 606 N.E.2d
at 1210.
  Meredith’s testimony unquestionably was essential to
the finding that McFowler aided or abetted Logan’s mur-
der. Although abundant circumstantial evidence placed
McFowler at the scene of the crime, it was Meredith’s
testimony and hers alone that placed him next to Logan’s
body with a shotgun in his hand. The shotgun was not
the murder weapon, of course; but we shall assume (as
Judge Gottschall did) that McFowler’s presence at the scene
of the crime with a firearm, next to Logan’s body, just
after Logan was shot, would suffice to establish his complic-
ity in the murder.
  The dispositive issue, then, is the reliability of Meredith’s
testimony. After describing the man she had seen trip
over Logan’s body with a shotgun in his hand, Meredith
indicated that it was McFowler whom she had picked out
of the lineup on the day of the shooting. Twice during
her testimony—first on direct and then again on redirect,
when Byndum was brought into the courtroom to stand
No. 03-1162                                                21

beside McFowler—Meredith identified McFowler as the
person she had seen. However, Detective Foley’s stipulated
testimony was that Meredith had identified Byndum in
the lineup, not McFowler. When confronted with Foley’s
conflicting testimony on cross-examination, Meredith
testified that she had picked “both” Byndum and McFowler.
It is Meredith’s puzzling testimony that she picked two
individuals as the single person that she saw at the
scene of the crime which calls into doubt the reliability
of her identification testimony.
  We begin our analysis by noting that, so far as the record
reveals, the lineup that Meredith viewed on the day of
the murder was untainted by any suggestive or other-
wise inappropriate circumstance or procedure. This is in
contrast to each of the Supreme Court’s decisions dealing
with the reliability of eyewitness identification testimony.
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977);
Neil v. Biggers, supra, 409 U.S. 188, 93 S. Ct. 375; Coleman
v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970); Foster v.
California, 394 U.S. 440, 89 S. Ct. 1127 (1969); Simmons v.
United States, 390 U.S. 377, 88 S. Ct. 967 (1968); Stovall v.
Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967); Gilbert v.
California, 388 U.S. 263, 87 S. Ct. 1951 (1967); United
States v. Wade, supra, 388 U.S. 218, 87 S. Ct. 1926. In those
cases, the witness’s in-court identification was preceded
by a lineup or other identification made under suggestive
conditions. However, the factors on which the Court has
focused in that context remain relevant even when a
witness has made an identification untainted by sug-
gestive identification procedures. See Kennaugh v. Miller,
289 F.3d 36, 46-47 (2d Cir.) (collecting cases), cert. denied,
537 U.S. 909, 123 S. Ct. 251 (2002). “[R]eliability is the
linchpin in determining the admissibility of identification
testimony . . . .” Brathwaite, 432 U.S. at 114, 97 S. Ct. at
2253. And although here we are not concerned with the
admissibility of Meredith’s identification of McFowler
(McFowler’s counsel filed a motion to suppress the results
22                                               No. 03-1162

of the lineup but later withdrew the motion), the reliabil-
ity of her identification (both at the lineup and at trial) is
of prime importance to the sufficiency of the evidence
underlying McFowler’s conviction.
  We therefore must assess the reliability of Meredith’s
identification under the “totality of the circumstances.”
Biggers, 409 U.S. at 199, 93 S. Ct. at 382. The factors that
bear on the likelihood that the witness has identified the
wrong person are “the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree
of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time
between the crime and the confrontation.” Ibid.
   As the Illinois Appellate Court pointed out, one can
readily infer from Meredith’s testimony that she had a
sufficient opportunity to observe the individual with the
shotgun. App. Court Order at 33. The man was standing
sixteen feet away from her, and although his face was
not turned toward her at first, she was able to get a good
look at it as he stumbled over Logan’s body. Id. Meredith
suggested that she may have had the intruder in her sight
for as long as a few minutes. That seems quite doubtful
given her testimony that she slammed the bedroom door
shut and hid in the closet with her children upon seeing
Logan’s body and the armed man next to it. Tr. G20-23. The
Illinois Appellate Court itself viewed this testimony with
“some skepticism.” App. Ct. Order at 33. Nonetheless, the
record supplies us with no reason to doubt that Meredith
had an ample opportunity to view the intruder. And
although the record is silent as to the degree of attention
with which Meredith viewed that individual, she certainly
was not a casual bystander, and it is fair to assume that
she looked at the man with the shotgun with a high degree
of attention. The third Biggers factor does not apply
here. There is no evidence that Meredith ever supplied
the police with a description of the intruder before view-
No. 03-1162                                                   23

ing the lineup.2 The fourth factor yields conflicting
signals: the record sheds no light on the degree of certainty
with which Meredith identified McFowler as the intruder
at the lineup, but her later testimony that she picked
“both” McFowler and Byndum may suggest uncertainty
(see n. 4, infra); as for her in-court identification, the record
does not affirmatively indicate that Meredith identified
McFowler with confidence, but on the other hand there
are no indicia of hesitation or doubt, and Meredith consis-
tently identified McFowler as the intruder she saw. The
final Biggers factor—the passage of time between the
crime and the confrontation—weighs differently depend-
ing on whether one is addressing the lineup or Meredith’s
in-court identification of McFowler. The fact that the line-
up was conducted within six hours of the shooting
weighs rather strongly in favor of reliability. See Chavis v.
Henderson, 638 F.2d 534, 537 (2d Cir. 1980) (“ ‘immediacy
makes it much more likely that the witness will have a
fresh recollection of the appearance of the suspect and
hence that the identification will be accurate’ ”), quoting
United States ex rel. Springle v. Follette, 435 F.2d 1380,
1383 (2d Cir. 1970). By contrast, the passage of twenty-
nine months before the trial occurred detracts significantly
from the weight to be given that identification. See Biggers,
409 U.S. at 201, 93 S. Ct. at 383 (lapse of seven months
between crime and confrontation “would be a seriously
negative factor in most cases”).
  What the Illinois Appellate Court did not consider, and
what must be considered given the divergent testimony
about whom Meredith identified at the lineup, is which
of the two identifications is the more reliable; and on that


2
   Although the record indicates that police officers spoke
with witnesses at the scene of the shooting and obtained descrip-
tions of the suspects from them, it does not reveal whether
Meredith supplied the police with a description of the man
she saw next to Logan’s body and, if so, what her description was.
24                                                   No. 03-1162

point, the circumstances favor the lineup over the in-court
identification, as Judge Gottschall pointed out. The lineup
was conducted within hours of the crime, whereas the
trial occurred more than two years later. The lineup called
for Meredith to choose from among six individuals, whereas
the suggestive circumstances of the courtroom would have
focused her attention on the (single) defendant. See United
States v. Matthews, 20 F.3d 538, 547 (2d Cir. 1994) (not-
ing that “the circumstances at trial may themselves be
tantamount to a showup”). True, on redirect examination,
Byndum was brought into the courtroom, and Meredith
was asked whether he or McFowler was the intruder that
she saw on the day of the murder. By then, of course, she
had already identified McFowler once in court and natu-
rally would have been inclined to reaffirm her identifica-
tion. That point aside, choosing from between two individ-
uals (one of them the defendant) in court is necessarily
a less reliable identification than choosing from among
six individuals in a properly conducted lineup. We hasten
to add that this is not a case in which the record discloses
some additional fact that would tend to bolster the wit-
ness’s courtroom identification. See id. (noting types of
measures, e.g., seating defendant somewhere other than
at counsel table, that can mitigate suggestiveness of in-
court identification).3
  Although the lineup is the more reliable of the two
identifications, the evidence is hopelessly inconsistent as
to whom Meredith actually picked out of the lineup. Had
Meredith stood by her initial testimony that she picked
McFowler out of the lineup, then the factfinder would


3
   Our opinion should not be read to suggest that the defendant
has a constitutional right to courtroom identification procedures
that would minimize the risk of suggestion. The suggestive-
ness of an in-court identification typically goes to the weight
of that identification rather than to its admissibility as evidence
of the defendant’s guilt. See Matthews, 20 F.3d at 547.
No. 03-1162                                                 25

have been presented with a straightforward credibility
choice between her testimony and the stipulated testimony
of Detective Foley that she picked Byndum. The trial judge
would have been free to disbelieve Foley, for the testimony
of law enforcement officials is entitled to no greater weight
than the testimony of any other witness (see, e.g., United
States v. Martin, 507 F.2d 428, 432-33 (7th Cir. 1974)), and
the parties’ stipulation as to what a witness would testify
does not obligate the trier of fact to credit the witness’s
would-be testimony (e.g., Tucker v. Brady, 305 F.2d 550, 552
(9th Cir. 1962)). But instead, on redirect examination,
Meredith indicated that she picked “both” Byndum and
McFowler at the lineup. As the record stands, that an-
swer is nonsensical.
  In only one circumstance would Meredith’s answer
both make sense and give the trier of fact reason to trust
her ability to identify the man with the shotgun, and that
is if she saw two intruders rather than one. It is this
scenario that the State presses upon us with vigor and it
is one, we acknowledge, that is possible in the abstract.
The evidence does indicate that there were two if not
three people involved in the crime. Moreover, Byndum’s
guilty plea reveals that he was one of them. Thus, if
Meredith saw two people in her apartment, she could have
identified McFowler as the man with the shotgun and
Byndum as the second intruder. This would have been
entirely consistent with her courtroom identification of
McFowler and her initial testimony about previously hav-
ing identified McFowler at the lineup as the man with
the shotgun. The State thus urges us to indulge the infer-
ence that Meredith saw a second intruder in addition to
the man with the shotgun.4


4
  Another possibility is that when Meredith viewed the lineup,
she was unable to decide whether Byndum or McFowler was
                                                 (continued...)
26                                                   No. 03-1162

  However, there is not a shred of evidence that Meredith
did see more than one of the intruders. Indeed, the
clear import of the testimony is that Meredith only saw
one person. Meredith’s testimony about the shooting
indicated that she saw only one intruder (the man with
the shotgun) and heard a second (the voice which said, “if
you are going to shoot him; shoot him” (Tr. G22)).5 Her
testimony about the lineup likewise indicates that she
was identifying one person and one person only—the
man with the shotgun.6 Foley’s stipulated testimony too


4
   (...continued)
the man she saw with the shotgun and she picked “both” based on
her uncertainty. However, Meredith’s inability to distinguish
between the two men would do nothing to help the State’s case,
and (understandably) this is not a possibility that the State
pursues as an explanation for her testimony that she picked both
men. In any case, the evidence lends no support to this possibil-
ity. Meredith did not confess to experiencing any uncertainty on
viewing the lineup, nor does Foley’s stipulated testimony sug-
gest that she did. There is no evidence that McFowler and
Byndum looked alike (the record indicates that Byndum was
several inches taller than McFowler). Indeed, Meredith did not
have any trouble differentiating between the two when Byndum
was brought into court.
5
  See Tr. G20 (Q. “Now, when Davion opened the door, what
happened? A. I saw somebody with a gun.”); G40 (Q. “About how
long did you get a glimpse of the person who was in your apart-
ment, his face? A. Maybe just a few minutes.”).
6
  See, e.g., Tr. G25 (Q. “What did you say [to the police after
looking at the people in the lineup]? A. That the second per-
son from the end looked like the one who was in my house.”); G28
(Q. “Now, do you see in that photograph the person or persons
that you identified to the police officers that day? A. Yes. Q. And
which person is it that you identified in October of 1989? A. This
one right here. Q. Would you put a circle around the face of the
person that you say you identified on October of 1989? That
                                                      (continued...)
No. 03-1162                                                   27

refers to the identification of a single person. The trier
of fact thus had no basis from which to conclude that
Meredith might have seen two people at the scene of
the crime, thus enabling her to have identified both
McFowler and Byndum.
   We cannot say it was impossible for Meredith to have
seen two intruders; but the mere possibility that she did
is not sufficient to rehabilitate her testimony about the
lineup. The State is entitled to every reasonable inference
that may be drawn from the record, but to be reasonable
the inference must find at least some support in the facts.
See United States v. Lewis, 787 F.2d 1318, 1323 (9th
Cir. 1986) (“mere suspicion or speculation cannot be the
basis for creation of logical inferences”), amended in other
respects, 798 F.2d 1250 (9th Cir. 1986); United States v.
Brown, 763 F.2d 984, 990 (8th Cir. 1985) (“a conviction
based on evidence that requires speculation or mere
conjecture by the [factfinder] is invalid”). Such support
is lacking here. All of the evidence points to Meredith
having seen one and only one intruder. Indeed, had she
seen two, surely the State would have elicited that infor-
mation, particularly after Meredith announced on the
witness stand that she had picked “both” Byndum and
McFowler from the lineup. As things stand, however, we
would have to venture beyond the record and into the
realm of speculation in order to suppose that Meredith
was identifying two different intruders when she iden-
tified “both” Byndum and McFowler. It is equally possible
that Meredith was confused or flummoxed, or that her


6
   (...continued)
person you have circled, what is it that that person did that
caused you to identify him? A. I saw him with the shotgun.”); G37
(Q. And it’s your testimony here today that you identified to
members of the Chicago Police Department the individual you
circled? A. Hmm, hmm.”).
28                                             No. 03-1162

memory was faulty. The evidence does not permit us to
choose one of these possibilities over another.
   Meredith’s own testimony thus rendered it impossible
for the factfinder to determine whom it was that she iden-
tified at the lineup. The Illinois Appellate Court recog-
nized the inconsistencies in the evidence as to Meredith’s
lineup identification (App. Ct. Order at 33), and as the
Appellate Court noted, it is difficult to tell whether the
trial court disregarded altogether the possibility that
Meredith had identified McFowler at the lineup or simply
gave Meredith’s (initial) testimony that she did decreased
weight (id.). The Appellate Court’s suggestion that the
trier of fact could have given her purported lineup iden-
tification of McFowler at least some weight ( id.) was
objectively unreasonable. Once Meredith testified that
she had identified “both” McFowler and Byndum at the
lineup, the trier of fact could not have found with any
degree of confidence that it was McFowler that Meredith
actually had identified. Whom Meredith identified at the
lineup is simply an unsolvable mystery.
  This leaves Meredith’s in-court identification as the sole
evidentiary support for a finding that McFowler stood next
to Logan’s body with a shotgun in hand. The Illinois Ap-
pellate Court reasoned that “[e]ven if Meredith’s lineup
identification were given no weight whatsoever,” the
factfinder could still make this finding based on her
“unwavering in-court identification of the defendant” alone.
App. Ct. Order at 34. Had there never been a lineup,
we have little doubt that Meredith’s positive in-court
identification would have sufficed as proof of McFowler’s
culpable involvement in Logan’s murder. But a lineup did
take place, and Meredith made an identification at that
lineup. So what we must consider is whether Meredith’s
inconsistent testimony about the lineup casts such doubt
on her courtroom identification as to render the latter
insufficiently reliable to support McFowler’s conviction.
No. 03-1162                                               29

  As a threshold matter, we agree with the district court
that Meredith’s in-court identification of McFowler cannot
be considered in isolation, apart from her testimony
about the lineup identification. 2003 WL 76861, at *7. For
all of the reasons we have discussed, the evidence as to
the lineup precludes any reliable determination as to
whom Meredith identified in the lineup. That does not
mean, however, that the lineup (and the testimony about
that lineup) should be disregarded as if it had never
occurred. Meredith made two identifications in this case,
one at the lineup and one in court. Whether her in-court
identification of McFowler was reliable enough for the
trier of fact to find that McFowler was the person she saw
in her home armed with a shotgun is a question that can
only be answered with reference to the lineup and the
reliability of that identification as well. See Kennaugh, 289
F.3d at 46 (witness’s inability to identify defendant in
prior lineup and several photo arrays “inevitably heightens
the risk that her in-court identification was induced by
the suggestiveness of the setting in which it occurred”).
  As we have already discussed, the factors relevant to
the reliability of the two identifications point to the line-
up identification as the more reliable of the two. That
identification took place within hours of the crime, called
upon Meredith to choose from six individuals, and, so far
as the record reveals, was free of any circumstance that
would have made it suggestive. The later identification, on
the other hand, took place nearly two and one-half years
after the shooting and within the inherently suggestive
environs of a courtroom. The fact that Meredith reaffirmed
her identification of McFowler after seeing Byndum and
McFowler stand side by side adds little weight to the
strength of her identification. Byndum was not sum-
moned to the courtroom until after Meredith already
identified McFowler during her direct testimony, and
given the evident differences in their height alone, there
30                                              No. 03-1162

would have been no mixing the two up. Indeed, the fact
that Meredith apparently had no difficulty distinguish-
ing between the two men in court years after the crime
merely reinforces the mystery as to how she could have
chosen both of them from the lineup, when the event
was still fresh in her mind.
   Of course, it is not unheard of for an eyewitness to fail
to identify the defendant in a lineup, to pick the wrong
person, or to express some ambivalence about her iden-
tification, only to later make a positive identification of
him in court. Often the apparent inconsistency is ex-
plained by such things as the witness’s emotional state,
her failure to view the lineup with sufficient care, or an
unexpected change in the defendant’s appearance be-
tween the time of the crime and the lineup. See, e.g., United
States ex rel. Kosik v. Napoli, 814 F.2d 1151, 1159 (7th Cir.
1987) (defendant had cut his hair and shaved his mus-
tache); Cole v. State, 588 N.E.2d 1316, 1317-18 (Ind. Ct.
App. 1992) (witness confused by defendant’s longer hair);
Commonwealth v. Hurd, 407 A.2d 418, 422 (Pa. Super. Ct.
1979) (witness did not stand close enough to lineup on
first occasion); cf. Taylor v. State, 501 S.E.2d 875, 876
(Ga. Ct. App. 1998) (witness unable to make in-court iden-
tification because her vision was poor, but was able to
identify him from photo array). So long as the record
indicates that the witness had a sufficient basis for iden-
tifying the defendant (e.g., an adequate opportunity to
observe the defendant at the time of the offense), her
inability to identify him prior to trial normally will not
detract from her in-court identification. E.g., United States
v. Matthews, 20 F.3d at 547-48 (lack of pretrial identifica-
tion did not undermine witnesses’ in-court identifications,
where their testimony was “sufficient to establish that
their identifications had an origin independent of their
viewing [defendant] in the courtroom and hence was
sufficient to meet the threshold of reliability needed to
No. 03-1162                                               31

permit them to attempt in-court identifications of the men
they had seen”); see also United States v. Davies, 768 F.2d
893, 904 (7th Cir. 1985) (“[g]enerally, the question of the
suggestiveness or credibility of the in-court identification
is to be resolved ultimately by the jury after the defendant
has had an opportunity to test the accuracy of an identifica-
tion through cross-examination”). By contrast, Meredith’s
initial inability to identify McFowler was not explained
by any such circumstance. Indeed, Meredith did not pro-
fess to have had any inability to make an identification,
or uncertainty about her ability, in viewing the lineup.
Only when she was confronted with the possibility that
she had picked Byndum rather than McFowler did she
say that she had picked both. Nothing in the record ex-
plains why at the lineup, on the very day of the offense,
Meredith could have picked two people as the one person
she saw holding the shotgun and then two years later
picked McFowler alone. Nothing, that is, except the inher-
ently suggestive environs of the courtroom. See Kennaugh,
289 F.3d at 46.
  Indeed, Meredith’s testimony itself calls into doubt the
reliability of her identification. In testifying on cross-
examination that she identified both Byndum and Mc-
Fowler at the lineup, Meredith not only contradicted her
own initial testimony, but gave an answer that makes
no sense on the facts. Inconsistencies in a witness’s testi-
mony are not unusual either, and normally these are left
for the factfinder to assess. See, e.g., United States v.
Gutman, 725 F.2d 417, 421 (7th Cir. 1984) (trial court not
compelled to instruct jury to disregard testimony of men-
tally ill key witness notwithstanding witness’s inconsis-
tency and confession that he had lied; witness’s testimony
did not reflect “abnormal degree of internal inconsis-
tency” and “it is common for witnesses to change their
stories on the stand”). But Meredith’s belated assertion
that she identified both McFowler and Byndum at the
32                                              No. 03-1162

lineup is irreconcilable with the facts. Moreover, it re-
lates not to a collateral point but to the most material
aspect of her testimony. Cf. United States v. Spain, 536 F.2d
170, 173 (7th Cir. 1976) (“[e]ven if the jury found that
an agent had deliberately testified falsely on a collateral
matter, it could still accept the substance of his testimony
on the issues in the case”); United States v. Tropiano, 418
F.2d 1069, 1074 (2d Cir. 1969) (“[a] witness may be inac-
curate, contradictory and even untruthful in some re-
spects and yet be entirely credible in the essentials of his
testimony”). Meredith’s self-contradictory testimony casts
doubt on the value of her in-court identification, which
was the centerpiece of her testimony.
   Other evidence corroborates McFowler’s presence at
the scene of the crime, but none of that evidence sup-
plies the proof necessary to establish his complicity in the
crime. Only Meredith’s testimony supplies that proof
by placing McFowler next to Logan’s body with a shotgun in
his hand. The balance of the evidence bolsters Meredith’s
identification of McFowler only in the limited sense that
it confirms the possibility that it was McFowler that she
saw. But Byndum was present at the scene of the crime
as well (as evidenced by both his guilty plea and the cir-
cumstantial evidence). Foley’s stipulated testimony that
Meredith had identified Byndum at the lineup as the
man with the shotgun, and Meredith’s own testimony
that she identified “both” Byndum and McFowler, render
it just as possible that it was Byndum that Meredith saw
with the shotgun in his hand.
  The identity of the defendant as a perpetrator of the
crime is one of essential elements of the offense that
must be proved beyond a reasonable doubt. United States
v. Weed, 689 F.2d 752, 754 (7th Cir. 1982); People v.
Dante, 221 N.E.2d 409, 410 (Ill. 1966); People v. Daniels,
770 N.E.2d 1143, 1152 (Ill. App. Ct. 2002). Because
Meredith’s identification testimony alone addresses this
No. 03-1162                                              33

element without any corroboration, a reasonable doubt
about her identification would necessitate McFowler’s
acquittal. See United States v. Jackson, 509 F.2d 499, 507
(D.C. Cir. 1974) (“[t]he problem of witness-competence is
accentuated in cases wherein the guilt of the accused is
sought to be rested on an uncorroborated identification by
a single witness”); see also, e.g., Commonwealth v. Wiley,
432 A.2d 220 (Pa. Super. Ct. 1981) (finding witness’s tenta-
tive identification of defendant insufficient to support
conviction where no other evidence corroborated iden-
tification).
  For all of these reasons, were we reviewing McFowler’s
conviction on direct appeal, we might have reversed on the
ground that no factfinder could find beyond a reasonable
doubt that it was McFowler whom Meredith saw next to
Logan’s body with a shotgun in his hand. Meredith’s self-
contradictory and nonsensical testimony about the lineup
makes it impossible to determine whom she identified
as the intruder at the lineup. Her in-court identification
some twenty-nine months later is suspect given the sub-
stantial passage of time, the inherently suggestive charac-
ter of the in-court identification, and Meredith’s own
inconsistent testimony about the lineup.
  But we do not sit in direct review of McFowler’s con-
viction—it was the Illinois Appellate Court that filled
that role. And the AEDPA demands that we give appro-
priate deference to the decisionmaking authority of the
state courts. We may not use the writ of habeas corpus to
effectively overrule the decisions of those courts simply
because we disagree with them. Woodford v. Visciotti,
supra, 537 U.S. at 27, 123 S. Ct. at 361. Only if we find
the state court’s application of Supreme Court precedent
objectively unreasonable (28 U.S.C. § 2254(d)(1))—that
is, “well outside the boundaries of permissible differences
of opinion” (Hardaway v. Young, supra, 302 F.3d at 762)—
may we uphold the district court’s decision to grant the
writ. Visciotti, 123 S. Ct. at 361. Notwithstanding our
34                                              No. 03-1162

doubts, we do not believe we can characterize the Illi-
nois Appellate Court’s decision sustaining the sufficiency
of the evidence underlying McFowler’s conviction as
objectively unreasonable.
   Meredith’s in-court identification of McFowler was, as
the Illinois Appellate Court described it, unwavering. She
first described the man that she had seen in her apart-
ment next to Logan’s body in terms consistent with Mc-
Fowler’s appearance. When shown a photograph of the
lineup in court, she circled McFowler’s picture. She then
pointed him out in the courtroom. Later, after testifying
that she had picked “both” McFowler and Byndum out
of the lineup, she was asked to view the two men standing
beside one another in the courtroom. Once again she
identified McFowler as the man she had seen in her
apartment, arguably dispelling any doubt about her abil-
ity to distinguish between McFowler and Byndum. At
no time did Meredith profess any uncertainty in making
her courtroom identification, nor does the record other-
wise suggest any hesitation or confusion on her part in
doing so.
  The pertinent inquiry, then, given Meredith’s (apparent)
uncertainty about whom she identified at the lineup, is
whether she had a basis independent from the sug-
gestive setting of the courtroom for making her in-court
identification of McFowler. United States v. Matthews, 20
F.3d at 547-48. The record discloses that she did. Meredith’s
testimony indicates that she was able to get a clear look
at the intruder from a relatively short distance, under
circumstances where her degree of attention would have
been high. At the same time, there is no evidence that
the lineup conducted on the day of the shooting was in
any way suggestive, such that it might have tainted
Meredith’s subsequent in-court identification.
  The reliability of Meredith’s in-court identification is
also bolstered, at least to some degree, by other evidence.
No. 03-1162                                                35

There is, of course, quite strong circumstantial evidence
placing McFowler at the scene of the crime, which sup-
ports the likelihood that it indeed was McFowler whom
Meredith saw. The evidence also confirms the accuracy
of Meredith’s observations in other respects: Meredith
testified that she saw a shotgun in the intruder’s hand, and
a shotgun was found at the Flournoy building where
McFowler was arrested; she testified that the intruder
wore blue jeans, and McFowler was wearing blue jeans
at the time of his arrest; she described the intruder she
saw as somewhat short, and the record indicates that
McFowler indeed is relatively short (five feet, six inches
tall).
  Moreover, Meredith was subject to full cross-examina-
tion as to her ability to identify the man she had seen on
the day of Logan’s murder, and all of the inconsistencies
and vulnerabilities in her identification of McFowler
were put before the trier of fact. It bears repeating that
the credibility and reliability of an eyewitness’s in-
court identification is a question for the finder of fact
“after the defendant has had an opportunity to test the
accuracy of an identification through cross-examination.”
United States v. Davies, supra, 768 F.2d at 904; see also,
e.g., United States v. Torres, 191 F.3d 799, 811 (7th Cir.
1999); United States v. Hall, 165 F.3d 1095, 1107 (7th Cir.
1999); United States v. Allen, 930 F.2d 1270, 1273 (7th Cir.
1991). The finder of fact is uniquely situated to observe
how well a witness’s demeanor withstands the rigors of
cross-examination and the exposure of inaccuracies and
inconsistencies in her story. See Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512
(1985); United States v. Mancillas, 183 F.3d 682, 701 n. 22
(7th Cir. 1999), quoting United States v. Garcia, 66 F.3d
851, 856 (7th Cir. 1995). The trial judge in this case was, of
course, aware of the circumstances that cast doubt on
Meredith’s identification. Despite those circumstances, he
36                                             No. 03-1162

found Meredith’s in-court identification of McFowler to
be credible. Tr. K56. That assessment commands great
deference. E.g., Murrell v. Frank, 332 F.3d 1102, 1112 (7th
Cir. 2003).
  To hold McFowler entitled to relief in habeas corpus,
we would have to say not only that Meredith’s in-court
identification was insufficiently credible and reliable as
a matter of law, but that no court could reasonably think
otherwise. This we cannot do. McFowler’s petition has
considerable intuitive appeal, given the extent to which
the State’s case against him depended upon Meredith’s
identification and the degree to which Meredith’s ability
to identify the intruder was called into doubt not only
by the police officer who arranged the lineup she viewed
hours after the crime but by her own contradictory testi-
mony about whom she picked at the lineup. Yet, witnesses
(including eyewitnesses) often make surprising, contradic-
tory, and nonsensical statements under the stress of
courtroom examination, and although such gaffes would
permit a factfinder to discredit their testimony, they
normally do not command reversal of a conviction on
appeal. See United States v. Frederick, 78 F.3d 1370, 1374
(9th Cir. 1996) (testimony which is confused, inconsistent,
and uncertain can still support a conviction). We cannot
know whether Meredith simply became flummoxed and
contradicted herself for that or for some other reason. But
given that she had a basis from which she could identify
the man who stood over Logan’s body with a shotgun in
his hand, the Illinois Appellate Court was within its rights
to conclude that her identification of McFowler as that man
was not unreliable as a matter of law and was sufficient,
coupled with the circumstantial evidence placing him at
the scene of the shooting, to support McFowler’s convic-
tion. We can find nothing in the holdings or rationale of
Jackson, Biggers, or other Supreme Court precedents that
forecloses the Illinois Appellate Court’s conclusion.
No. 03-1162                                           37

                          III.
  For all of the foregoing reasons, we REVERSE the dis-
trict court’s judgment granting McFowler’s petition for a
writ of habeas corpus. We thank McFowler’s appointed
attorneys for their service on his behalf.

A true Copy:
      Teste:

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




                 USCA-02-C-0072—11-13-03
