                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0358p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                          X
                                   Petitioner-Appellee, -
 ROBERT FERENSIC,
                                                           -
                                                           -
                                                           -
                                                               No. 06-2342
             v.
                                                           ,
                                                            >
 THOMAS BIRKETT,                                           -
                                 Respondent-Appellant. -
                                                          N
                           Appeal from the United States District Court
                          for the Eastern District of Michigan at Detroit.
                         No. 03-71435—Arthur J. Tarnow, District Judge.
                                       Argued: June 8, 2007
                             Decided and Filed: September 4, 2007
                  Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Janet A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellant. Domnick J. Sorise, Detroit, Michigan, for Appellee. ON BRIEF: Janet A.
VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Domnick J. Sorise, Detroit, Michigan, for Appellee.
         GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined. McKEAGUE,
J. (pp. 15-22), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. A Michigan state jury convicted Robert Ferensic
in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a
felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications
made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among
other things that (1) the trial court had violated his right to present a defense by preventing two of
his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John,
who had observed the robbers prior to their entering the Kostoffs’ home—from testifying, and
(2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses
were allowed to testify. The Michigan Court of Appeals upheld Ferensic’s convictions, essentially
reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the
actions of the trial judge or of defense counsel, did not prejudice Ferensic.

                                                  1
No. 06-2342           Ferensic v. Birkett                                                        Page 2


         Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again
raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals’s
ruling on each ground constituted an unreasonable application of clearly established federal law, the
district court conditionally granted Ferensic’s petition. The Warden now appeals. For the reasons
set forth below, we AFFIRM the judgment of the district court.
                                        I. BACKGROUND
         The Michigan Court of Appeals laid out the following relevant facts and procedural history
of this case in People v. Ferensic, No. 221806, 2001 WL 865089, at *1-2 (Mich. Ct. App. July 31,
2001):
       The victims, an elderly, married couple, identified defendant as one of two
       perpetrators who broke into their house and robbed them of money and other
       valuables at gunpoint. After describing defendant to the investigating officers, the
       victims met with a police sketch artist, who sketched composites of the perpetrators
       based on the victims’ descriptions. One of the officers in charge of the investigation
       recognized defendant, a former police officer, and defendant’s roommate from these
       sketches, and compiled a photographic array that included defendant. Only one of
       the victims was able to identify defendant from the photographic array. However,
       both victims identified defendant from a live lineup and at defendant’s preliminary
       examination. The victims’ identification of defendant, along with the officer’s
       testimony that he recognized the two individuals based on the sketch artist’s
       renderings, was the only evidence that defendant was involved in the offenses.
       ...
       In denying the prosecution’s relevant motion in limine six months prior to
       defendant’s trial, the court ruled that the expert [Dr. Shulman] would be permitted
       to testify so long as defendant furnished a copy of the expert’s report to the
       prosecution two months before trial. In violation of that order, defendant mailed a
       copy of the expert’s report to the prosecution only eleven days before trial.
       Following the parties’ opening statements, in which each party emphasized that the
       identity of the perpetrators was the central issue in the case and in which defendant
       repeatedly told the jurors that defendant would present expert testimony on the
       inherent unreliability of eyewitness testimony, the prosecution successfully moved
       to exclude defendant’s expert witness from testifying. The court reasoned that the
       prosecution was unable to retain its own expert witness on identification without
       delaying the trial, and that although defendant mailed the report on the same day he
       received it, it had been his responsibility to chase up the expert to ensure compliance
       with the order.
(Footnote omitted.) Later in the trial, after the defense had rested, the court also denied Ferensic’s
separate motion for a brief adjournment to allow time for St. John to arrive at the courthouse and
take the stand.
        Both Dr. Shulman and St. John testified during an evidentiary hearing held by the district
court in connection with Ferensic’s habeas petition. (Ferensic’s trial counsel also was a witness at
the hearing, but his testimony is not directly relevant to this appeal.) The court provided the
following summary of their testimony:
       Danny St. John testified at the evidentiary hearing that he did not know Petitioner
       and never saw him before. Similar testimony at trial might have caused the jurors
       to question the Kostoffs’ testimony even though Mr. St. John could describe only one
No. 06-2342            Ferensic v. Birkett                                                         Page 3


        of the two men he saw. In addition, his description of one of the robbers as having
        black curly hair was consistent with the original description given by Mr. and Mrs.
        Kostoff, which they denied at trial.
        ...
        Dr. Shulman testified at the evidentiary hearing that several factors, such as divided
        attention, stress, passage of time, photo arrays, collaboration of witnesses, and social
        conformity, affect memory. He noted that crime produces stress, which makes high
        resolution (detailed) memory of faces difficult. He opined that the guns carried by
        the robbers in this case were the most distracting factor, because a person’s attention
        is directed to a weapon. “Sticky attention” to a weapon reduces the ability to recall
        details and leads to inaccurate identification, according to Dr. Shulman. In addition,
        gaps in memory are filled in by world knowledge, post-event information,
        inferences, and talking to other witnesses. Eyewitnesses find it difficult to disregard
        these influences on memory. Dr. Shulman also stated that there is no statistical
        relationship between a witness’s level of confidence in his or her identification and
        the accuracy of memory.
                                             II. ANALYSIS
A.      Standard of review
      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214, a federal court
        may not grant a writ of habeas [corpus] to a petitioner in state custody with respect
        to any claim adjudicated on the merits in state court unless (1) the state court’s
        decision “was contrary to, or involved an unreasonable application of, clearly
        established Federal law, as determined by the Supreme Court,” . . . or (2) the state
        court’s decision “was based on an unreasonable determination of the facts in light
        of the evidence presented in the State court proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)). This standard
requires the federal courts to give considerable deference to state-court decisions. Herbert v. Billy,
160 F.3d 1131, 1135 (6th Cir. 1998) (“[AEDPA] tells federal courts: Hands off, unless the judgment
in place is based on an error grave enough to be called unreasonable.”) (quotation marks omitted).
        The first line of analysis under AEDPA focuses on the consistency of the state-court decision
with existing federal law. A state-court decision is considered “contrary to . . . clearly established
Federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.”
Williams v. Taylor, 529 U.S. 362, 405 (2000) (emphasis and quotation marks omitted).
Alternatively, to be found an “unreasonable application of . . . clearly established Federal law,” the
state-court decision must be “objectively unreasonable,” not simply erroneous or incorrect. Id. at
409-11. If a state-court decision meets either of these two “preconditions” for habeas
relief—thereby establishing a constitutional error—the reviewing federal court must still determine
whether the error is harmless within the meaning of Brecht v. Abrahamson, 507 U.S. 619 (1993).
Fry v. Pliler, 127 S. Ct. 2321, 2327-28 (2007) (noting that AEDPA “sets forth a precondition to the
grant of habeas relief . . . , not an entitlement to it,” and that “in § 2254 proceedings a [federal] court
must assess the prejudicial impact of constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht”). Brecht applies “whether or not the
state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless
beyond a reasonable doubt’ standard set forth in Chapman [v. California], 368 U.S. 18[, 24 (1967)].”
Id. at 2328.
No. 06-2342           Ferensic v. Birkett                                                       Page 4


        The second line of analysis under AEDPA examines the findings of fact made by the state
courts. AEDPA requires federal courts to accord a high degree of deference to such factual
determinations. “A federal court is to apply a presumption of correctness to state court findings of
fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this
presumption. The appeals court gives complete deference to the federal district court’s and state
court’s findings of fact supported by the evidence.” McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.
2004) (citations omitted).
B.     The Michigan Court of Appeals’s decision
        The Michigan Court of Appeals was the last state court to review Ferensic’s claims during
postconviction proceedings. Because its review was on the merits, we must apply AEDPA
deference to that decision. The Court of Appeals first held that the trial court had not abused its
discretion in prohibiting Dr. Shulman from testifying as a witness for Ferensic. Ferensic, 2001 WL
865089, at *2. Specifically, the Court of Appeals noted that, although this prohibition was a
“concededly severe sanction” for Ferensic’s failure to comply with the trial court’s production order,
it “was nothing more than the court had warned of six months before trial.” Id. at *2. In addition,
the Court of Appeals concluded that Ferensic was not prejudiced by the exclusion of Dr. Shulman’s
testimony “because defense counsel was otherwise able to effectively challenge inconsistencies in
the victims’ identification testimony.” Id.
         The Court of Appeals also held that the trial court had not abused its discretion in denying
Ferensic’s motion for a brief adjournment to allow St. John time to arrive at the courthouse and
testify. Essentially, the Court of Appeals determined that Ferensic had not been prejudiced by St.
John’s absence because “[t]he purported testimony was not especially strong, . . . and inconsistency
inherent in the victims’ identification was otherwise shown.” Id.
        The Court of Appeals used similar reasoning—that is, an absence of prejudice—to reject
Ferensic’s ineffective-assistance-of-counsel claim. “Although counsel’s failure to secure the
testimony of these two witnesses was objectively unreasonable, defendant has not shown that absent
this deficient performance the outcome of his trial would have been different.” Id. This conclusion
derived from the Court of Appeals’s determination that “[t]he victims’ identification of defendant
was effectively attached [sic] through other means, and standing alone, the testimony of the officer
who recognized defendant from the sketch artist’s rendering would arguably have been sufficient
to convict.” Id.
C.     The district court’s habeas review
        The district court agreed with the Michigan Court of Appeals that “defense counsel was able
to challenge inconsistencies in the victims’ identification testimony” even without the two excluded
witnesses. But the district court concluded that these alternative challenges “were not an effective
substitute” for what the two witnesses, especially Dr. Shulman, would have provided. The district
court explained its reasoning as follows:
       Identity was the primary issue. Dr. Shulman would have demonstrated how an
       eyewitness’ memory and recognition are not as reliable as one might initially
       believe. Without his testimony there was no evidence to support counsel’s argument
       [regarding the inherent unreliability of eyewitness identifications].
       ...
       Mr. St. John also would have helped the defense, because his description of a suspect
       with curly black hair matched the description that the Kostoffs gave to the police.
       At trial, the Kostoffs denied telling the police that Petitioner had curly black hair.
No. 06-2342           Ferensic v. Birkett                                                       Page 5


       Therefore, Mr. St. John’s testimony might have led the jurors to believe that the
       Kostoffs tailored their trial testimony to fit Petitioner’s actual appearance. In
       addition, Mr. St. John testified at the evidentiary hearing that he had never seen
       Petitioner before the hearing.
        Ferensic, in the district court’s opinion, was therefore “deprived of a substantial defense by
the exclusion of Danny St. John and Dr. Harvey Shulman,” and the conflicting decision of the
Michigan Court of Appeals was “contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court.”
        Regarding Ferensic’s related ineffective-assistance-of-counsel claim, the district court agreed
with the Michigan Court of Appeals that Ferensic’s attorney had in fact been deficient in failing to
secure both Dr. Shulman’s and St. John’s testimony. But unlike the Court of Appeals, the district
court concluded that this deficient performance had prejudiced Ferensic. The district court
emphasized that “no physical evidence linked Petitioner to the crimes” and that, instead, the entirety
of the state’s case against him was based on multiple eyewitness identifications. Both Dr.
Shulman’s and St. John’s testimony, moreover, “might have led the jurors to question the Kostoffs’
identification testimony.” This possibility was enough, in the district court’s opinion, “to undermine
confidence in the outcome of [Ferensic’s] trial.”
       The district court also pointed out that the Michigan Court of Appeals’s no-prejudice
determination rested in part on a faulty legal premise. As noted above, the Court of Appeals
concluded not only that the victims’ identification of Ferensic was effectively attacked through other
means, but that, “standing alone, the testimony of the officer who recognized defendant from the
sketch artist’s rendering would arguably have been sufficient to convict.” Ferensic, 2001 WL
865089, at *2. This focus on the sufficiency of the evidence against Ferensic, in the district court’s
opinion, was proof that the Michigan Court of Appeals had employed the wrong standard in
analyzing his claim because “[t]he prejudice inquiry ‘is not the same as the sufficiency of the
evidence analysis.’” (Quoting Richey v. Mitchell, 395 F.3d 660, 687 (6th Cir.), overruled on other
grounds by Bradshaw v. Richey, 546 U.S. 74 (2005).) The district court further cited Richey for the
proposition that the prejudice inquiry under Strickland is not tantamount to
       the analysis that a court might perform when deciding a motion for summary
       judgment. As the Fifth Circuit has explained, [the Court] need not find “that a
       reasonable jury could not have reached the same verdict if counsel had performed
       effectively.” Johnson v. Scott, 68 F.3d 106, 109 n.4 (5th Cir. 1995). [Petitioner]
       “need not show that he could not have been convicted. Instead, he need only
       undermine [the Court’s] confidence in the trial’s outcome.” Foster [v. Lockhart,
       9 F.3d 722, 726 (8th Cir. 1993)].
Richey, 395 F.3d at 687 (emphasis in original).
       Because the Michigan Court of Appeals not only reached what the district court believed was
an incorrect result, but did so by way of an erroneous legal analysis, the district court concluded that
the decision “amounted to an unreasonable application of Strickland.”
D.      Our review
        We will confine our review to Ferensic’s right-to-present-a-defense claim, which we believe
to be the stronger of his two grounds for habeas relief. Ferensic seems to agree, styling
his ineffective-assistance-of-counsel claim as an “alternative” argument. We also note that much
of what we would have to say about this alternative claim is necessarily encompassed by our
harmless-error analysis in Part II.D.2. below.
No. 06-2342           Ferensic v. Birkett                                                        Page 6


       1.      Right to present a defense
        The right of an accused to present a defense in a criminal trial derives from the Compulsory
Process Clause of the Sixth Amendment to the U.S. Constitution, and “stands on no lesser footing
than the other Sixth Amendment rights that we have previously held applicable to the States.”
Taylor v. Illinois, 484 U.S. 400, 409 (1988). In fact, “[f]ew rights are more fundamental than that
of an accused to present witnesses in his own defense.” Id. at 408 (quoting Chambers v. Mississippi,
410 U.S. 284, 302 (1973)). In Taylor, the Supreme Court explained the origins and nature of the
right as follows:
       The right to compel a witness’ presence in the courtroom could not protect the
       integrity of the adversary process if it did not embrace the right to have the witness’
       testimony heard by the trier of fact. The right to offer testimony is thus grounded in
       the Sixth Amendment even though it is not expressly described in so many words:
       “The right to offer the testimony of witnesses, and to compel their attendance, if
       necessary, is in plain terms the right to present a defense, the right to present the
       defendant’s version of the facts as well as the prosecution’s to the jury so it may
       decide where the truth lies. Just as an accused has the right to confront the
       prosecution’s witnesses for the purpose of challenging their testimony, he has the
       right to present his own witnesses to establish a defense. This right is a fundamental
       element of due process of law.”
484 U.S. at 409 (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).
        The right to present a defense, however, is not absolute. See Taylor, 484 U.S. at 409 (“The
accused does not have an unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.”); see also Michigan v. Lucas, 500 U.S.
145, 152 (1991) (noting that the Taylor court “rejected the defendant’s argument that, under the
Compulsory Process Clause of the Sixth Amendment, preclusion is never a permissible sanction for
a discovery violation”) (emphasis and quotation marks omitted). As the Supreme Court reiterated
most recently in United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483
U.S. 44, 56 (1987)), the exclusion of evidence in a criminal trial “abridge[s] an accused’s right to
present a defense” only where the exclusion is “‘arbitrary’ or ‘disproportionate to the purpose[] [it
is] designed to serve.’” See also Scheffer, 523 U.S. at 330 (Stevens, J., dissenting) (“As the Court
notes today, restrictions on the ‘defendant’s right to present relevant evidence’ . . . must comply with
the admonition in Rock . . . .”) (citations omitted).
        According to the Warden, the arbitrary-or-disproportionate standard is so “general” that a
federal habeas court would be hard-pressed to find that a state court unreasonably applied the
standard within the meaning of AEDPA. The Supreme Court, however, has furnished ample,
specific guidance as to what will and will not qualify as arbitrary or disproportionate. In applying
the Rock standard or some earlier formulation thereof, for example, the Court has “found the
exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has
infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308 (citing Rock, 483 U.S.
at 58, Chambers, 410 U.S. at 302, and Washington, 388 U.S. at 22-23).
        In addition, the Supreme Court has given special consideration to the nature of the exclusion-
triggering discovery violation at issue, noting that only egregious violations involving, for example,
“willful misconduct” on the part of the defendant or his counsel will justify the exclusion of material
evidence. See Lucas, 500 U.S. at 152 (quotation marks omitted) (emphasizing the trial court’s
conclusion in Taylor that the “discovery violation amounted to willful misconduct and was designed
to obtain a tactical advantage,” and that the Supreme Court’s decision to uphold the exclusion of an
undisclosed witness in that case was explicitly “[b]ased on these findings”). Alternative, less severe
No. 06-2342           Ferensic v. Birkett                                                        Page 7


sanctions than exclusion will thus be “adequate and appropriate in most cases.” Id. (quoting Taylor,
484 U.S. at 413). Stated differently, the exclusion of a defendant’s evidence should be reserved for
only those circumstances where “a less severe penalty ‘would perpetuate rather than limit the
prejudice to the State and the harm to the adversary process.’” Lucas, 500 U.S. at 152 (quoting
Taylor, 484 U.S. at 413).
        Regarding the trial court’s exclusion of Dr. Shulman’s testimony, the Michigan Court of
Appeals recognized that “the exclusion of otherwise admissible evidence should be limited to the
most egregious cases, in which other less severe remedies would fail to protect the parties’
competing interests.” Ferensic, 2001 WL 865089, at *1 (quotation marks omitted). But the Court
of Appeals never applied this proportionality-based proposition to the case before it. In fact, it
disregarded any less severe remedies. The Court of Appeals reasoned that the “concededly severe
sanction of exclusion of this expert testimony” was appropriate because it was harmless to Ferensic.
Id. at *2.
       If harmlessness vis-à-vis the outcome were the test, however, courts would never have to
consider whether “less severe remedies would . . . protect the parties’ competing interests.” The
proportionality test of Rock instead measures the restrictions on a defendant’s right to present a
defense against the “purposes they are designed to serve.” 483 U.S. at 56. Nevertheless, the
Michigan Court of Appeals applied a more typical outcome-based prejudice standard, noting that
the exclusion “did not put the prosecution in a better position than it would have enjoyed had the
order been complied with because defense counsel was otherwise able to effectively challenge
inconsistencies in the victims’ identification testimony.” Ferensic, 2001 WL 865089, at *2.
         Moreover, even if a traditional prejudice-based standard were the proper test for analyzing
a right-to-present-a-defense claim, the Court of Appeals’s conclusion is still unreasonable. The
exclusion of Dr. Shulman’s testimony unquestionably “put the prosecution in a better position than
it would have enjoyed had the order been complied with,” i.e., had Dr. Shulman actually testified.
Dr. Shulman’s testimony was categorically different from what Ferensic’s father, the lone defense
witness, offered to the jury. Ferensic’s father testified primarily to vouch for the presence of a large,
easily observable scar on his son’s neck, which neither of the eyewitnesses had noticed. This
testimony therefore provided the jury with a specific reason to distrust the eyewitnesses’
identifications—in other words, an example of how those identifications were inconsistent and thus
unreliable.
        Dr. Shulman’s testimony, in contrast, would have informed the jury of why the eyewitnesses’
identifications were inherently unreliable. This would have been a scientific, professional
perspective that no one else had offered to the jury. Compare Spisak v. Mitchell, 465 F.3d 684, 696,
699 (6th Cir. 2006) (upholding under Rock the exclusion of multiple expert defense witnesses
principally because “[t]heir testimony, however reliable their reputations, could not be taken to
establish Defendant’s legal insanity under Ohio law,” and “in fact, . . . would likely have severely
undercut such a defense”).
        To be sure, as the district court noted, Ferensic’s counsel argued to the jury on multiple
occasions that eyewitness identifications were inherently unreliable. But the jury was explicitly
instructed, as it always is, that arguments by counsel are not evidence. The district court was
therefore correct in concluding that “[w]ithout [Dr. Shulman’s] testimony there was no evidence to
support counsel’s argument.”
       As the Michigan Court of Appeals noted, the principal reasoning behind the trial court’s
decision to exclude Dr. Shulman from testifying was that “the prosecution was unable to retain its
own expert witness on identification without delaying the trial.” Ferensic, 2001 WL 865089, at *2.
We acknowledge that the proper functioning of the adversary system is indeed a legitimate, and
No. 06-2342           Ferensic v. Birkett                                                          Page 8


nonarbitrary, consideration as a general matter. See Taylor, 484 U.S. at 414-15 (“The integrity of
the adversary process . . . must also weigh in the balance.”). And “prejudice to the prosecution” is
integral to that concern in a criminal case. See Lucas, 500 U.S. at 152.
        But as the district court aptly remarked, in this specific case
        the prosecutor never said that he intended to present a witness to rebut the defense
        expert witness’ testimony, and he did not claim to be prejudiced by the tardy
        disclosure of Dr. Shulman’s report. He must have been aware of Dr. Shulman’s
        identity, because defense counsel submitted a list of his witnesses about ten months
        before trial.
This latter fact distinguishes the present case from Taylor, where the Supreme Court upheld the
exclusion of two defense witnesses whose very identity the defendant had failed to disclose in
complete disregard of the prosecution’s pretrial discovery request. Taylor, 484 U.S. at 404
(emphasizing the trial judge’s concern about the possibility “that witnesses are being found that
really weren’t there”).
        The unlikelihood that the prosecution would have called its own witness is further
underscored by Dr. Shulman’s testimony at the evidentiary hearing that, during the more than 20
times that he has testified as an expert on eyewitness identifications, not once has his testimony been
“countered by an opposing expert.” In addition, the Warden’s attorney conceded at oral argument
that nothing in the record indicates that the prosecution would have wanted to call its own “opposing
expert.” Similarly, the attorney acknowledged that the only part of Dr. Shulman’s testimony that
the prosecution might have wanted to oppose likely would have been handled through normal cross-
examination.
        The state trial court in Ferensic’s case, however, never considered these particular
circumstances. In fact, the court’s own words reveal its indifference to whether the prosecution was
actually prejudiced. When Ferensic’s counsel reminded the court that the prosecutor had not given
any indication of wanting to rebut Dr. Shulman’s testimony with a separate witness, the trial judge
said “I’m not worried about that” and “I don’t care what he says.” The trial judge, in short, would
have ruled against Ferensic regardless of whether the prosecution had actually wanted to retain its
own expert on identification—that is, even if the prosecution had explicitly disavowed such a desire.
         Such disregard for the substantial rights of one party in the absence of any prejudice to the
other raises an inference of arbitrariness. See Black’s Law Dictionary (8th ed. 2004) (defining an
“arbitrary” judicial decision as one that is “founded on prejudice or preference rather than on reason
or fact”). It is certainly proof of disproportionality, especially in light of the absence of harm to the
prosecution, the lack of willfulness on the part of Ferensic’s counsel in violating the discovery order
(he turned over Dr. Shulman’s report as soon as he received it 11 days before trial), and the lack of
any delay caused by counsel’s misstep. Compare United States v. Nobles, 422 U.S. 225, 241 (1975)
(holding, in a pre-Rock case, that the trial court’s preclusion of a defense investigator’s testimony
was “an entirely proper method of assuring compliance with its order” where defense counsel had
affirmatively refused to submit the investigator’s potentially conflicting report to the prosecution).
Here, a less severe sanction was appropriate or, at the very least, should have been considered by
the trial judge.
        In addition to these considerations, the very nonappearance of both Dr. Shulman and, later,
St. John likely had an adverse effect on Ferensic. As the district court explained,
        [t]he problem was exacerbated by the trial court’s refusal to instruct the jury that the
        two defense witnesses in question were not permitted to testify. When defense
        counsel failed to present either witness as promised in his opening statement, the jury
No. 06-2342            Ferensic v. Birkett                                                         Page 9


        might have concluded that the witnesses were unable or unwilling to testify as
        expected and that defense counsel could not live up to the claims that he made in his
        opening statement.
The trial judge thus effectively inflicted double punishment on Ferensic: Not only would he be
unable to present two critical witnesses in his defense—by itself a “severe sanction,” Ferensic, 2001
WL 865089, at *2—but the jury would likely hold that inability against him. These harms to
Ferensic far outweighed the trial court’s ministerial, albeit legitimate, “need to manage its trial
docket.”
        Nor can there be any doubt that Ferensic’s interest in having Dr. Shulman and St. John testify
was “weighty.” See Scheffer, 523 U.S. at 308 (quotation marks omitted). As discussed in Part
II.D.2. below, eyewitness misidentification accounts for more false convictions in the United States
than any other factor. Similarly, the current near-universal acceptance of the reliability of expert
testimony regarding eyewitness identification, also discussed in Part II.D.2. below, distinguishes the
exclusion of Dr. Shulman in the present case from the exclusion upheld as proportionate by the most
recent Supreme Court case to have applied Rock. See id. at 309 (upholding as constitutional a per
se rule against the admission of polygraph evidence in court-martial proceedings, principally
because “the scientific community remains extremely polarized about the reliability of polygraph
techniques”).
        The dissent responds by arguing that Supreme Court precedent “indicate[s] that a ‘weighty
interest of the accused’ . . . is limited to an interest in offering the accused’s own testimony, . . . or
an interest in using the only available means of addressing a relevant issue.” Dissenting Op. at 18
(citing Rock, 483 U.S. at 58 n.15, Chambers, 410 U.S. at 300-02, and Washington, 388 U.S. at 22).
But this summary erroneously assumes that Rock, Chambers, and Washington collectively constitute
an exhaustive list of potentially “weighty interests.” Although the dissent is correct that Scheffer
specifically cites these three cases in support of the proposition that Rock provides relief only where
an exclusion has infringed on a weighty interest of the accused, Scheffer in no way suggests that
other cases involving different interests could not also meet the de facto weighty-interest standard.
        The Warden’s related argument that unreasonably applying the Rock standard for AEDPA
purposes is virtually impossible because “the considerations to be applied [in analyzing a right-to-
present-a-defense claim] present the most general of legal rules” is similarly misplaced. We fail to
understand, and the Warden fails to explain, how the admittedly fact-intensive disproportionality
inquiry mandated by Rock requires state appellate courts to do anything more than what other
“clearly established” Supreme Court precedents, such as the evidence-weighing prejudice inquiry
mandated by Strickland, already require. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In
assessing prejudice [under Strickland], we reweigh the evidence in aggravation against the totality
of available mitigating evidence.”).
        Regarding the exclusion of St. John’s testimony, Ferensic faces a somewhat tougher task
because that particular exclusion was simply the byproduct of the trial court’s denial of his motion
for an adjournment. That determination, the validity of which is measured by a totality-of-the-
circumstances test, is entitled to considerable deference. The Supreme Court explained the rationale
behind this open-ended standard in Unger v. Sarafite, 376 U.S. 575, 589 (1964), as follows:
        The matter of continuance is traditionally within the discretion of the trial judge, and
        it is not every denial of request for more time that violates due process even if the
        party fails to offer evidence or is compelled to defend without counsel. . . .
        Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable
        request for delay can render the right to defend with counsel an empty formality. .
        . . There are no mechanical tests for deciding when a denial of a continuance is so
No. 06-2342            Ferensic v. Birkett                                                      Page 10


        arbitrary as to violate due process. The answer must be found in the circumstances
        present in every case, particularly in the reasons presented to the trial judge at the
        time the request is denied.
(Citations omitted.)
        Although the governing federal law relating to continuances is a broad, totality-of-the-
circumstances standard, as opposed to a hard-and-fast bright-line rule, this again does not mean that
its application cannot be unreasonable within the meaning of AEDPA. The state courts must at the
very least consider the relevant circumstances. But neither the trial court nor the Michigan Court
of Appeals even attempted to do so in the present case.
        Per the instructions of Ferensic’s counsel, St. John was due to arrive at the courthouse at
11:00 a.m. on the morning in question. Ferensic’s father, the lone defense witness, concluded his
testimony at 10:25 a.m., a mere 35 minutes earlier. The court then temporarily excused the jury.
Although the court allowed Ferensic to make an offer of proof at that time regarding St. John’s
anticipated testimony, it denied Ferensic’s motion for a brief adjournment to allow St. John to
actually testify before the jury. The trial judge appeared to base her decision largely on the rationale
that she had another trial scheduled to begin at 11:00 a.m. that same morning. Nevertheless, the
court then formally recessed for a break at 10:30 a.m. and scheduled closing arguments to begin at
10:57 a.m.
        Such a “myopic insistence upon expeditiousness in the face of a justifiable request for delay”
is precisely what the Supreme Court forbids. See Unger, 376 U.S. at 589. Even the Warden does
not argue that Ferensic’s request for less than a 30-minute adjournment was unreasonable. Although
St. John’s tardiness was entirely Ferensic’s fault, Ferensic was asking for the briefest of delays. St.
John was scheduled to arrive a mere three minutes after the trial court had scheduled closing
arguments to begin. Given the offer of proof that the court itself requested, moreover, it was fully
aware that St. John’s testimony, even including cross-examination, would have been brief.
         Granting Ferensic’s motion would likely not have delayed the proceedings by more than half
an hour. Even a longer delay would have been justifiable in light of the fact that, as Ferensic notes
in his brief, “the trial judge had scheduled three days for trial, and the case was proceeding to closing
argument in less than a day and a half.” The Michigan Court of Appeals never mentioned this fact,
much less any of the other circumstances discussed above, in its opinion.
        Instead, the Court of Appeals rested its affirmance of the trial court’s judgment solely on a
no-prejudice determination; namely, that St. John’s “testimony was not especially strong, . . . and
inconsistency in the victims’ identification was otherwise shown.” Ferensic, 2001 WL 865089, at
*2. Harmless error, however, is not the test mandated by the arbitrary-or-disproportionate inquiry
of Rock, as noted above. And even if prejudice were material to the analysis, Ferensic was
prejudiced by St. John’s failure to testify for the reasons already mentioned, as well as for those
discussed below in the context of our independent harmless-error review. Indeed, the exclusion of
St. John could in a certain sense be considered more prejudicial than the exclusion of Dr. Shulman
because St. John, unlike Dr. Shulman, would have introduced defense-favorable “factual evidence”
to the jury. See Scheffer, 523 U.S. at 316-17 (concluding that a per se rule excluding polygraph
evidence did “not implicate any significant interest of the accused” because “the Rule did not
preclude [the defendant] from introducing any factual evidence,” but “merely from introducing
expert opinion testimony to bolster his own credibility”).
       In sum, Ferensic was denied his Sixth Amendment right to present a defense by the trial
court’s exclusion of both Dr. Shulman and St. John as defense witnesses. The contrary
determination of the Michigan Court of Appeals was unreasonable for the reasons stated above. But
No. 06-2342           Ferensic v. Birkett                                                      Page 11


before we can affirm the judgment of the district court conditionally granting Ferensic’s petition for
a writ of habeas corpus on this ground, we must independently determine whether the state trial
court’s constitutional error was harmless within the meaning of Brecht v. Abrahamson, 507 U.S. 619
(1993). See Mitzel v. Tate, 267 F.3d 524, 534 (6th Cir. 2001) (“In applying the harmless error
analysis on habeas review for cases governed by AEDPA, we apply the harmless error standard set
out in Brecht.”).
       2.       Harmless-error review
         Brecht clarified that the harmless-error standard set forth in Kotteakos v. United States, 328
U.S. 750 (1946), governs federal courts’ review of habeas corpus petitions based on constitutional
“trial error.” 507 U.S. at 637-38. Pursuant to Brecht, a constitutional error is not harmless if it “had
substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 631
(quoting Kotteakos, 328 U.S. at 776). Although Brecht further states that habeas petitioners “are
not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
prejudice,’” 507 U.S. at 637 (citation omitted), the Supreme Court in O’Neal v. McAninch, 513 U.S.
432, 438 (1995), clarified that this language “is not determinative,” and that petitioners do not bear
an affirmative burden of proof as the language suggests. Instead, “it [is] conceptually clearer for the
judge to ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s
decision?’ than for the judge to try to the put the same question in terms of proof burdens (e.g., ‘Do
I believe the party has borne its burden of showing . . . ?’).” O’Neal, 513 U.S. at 436-37.
        Uncertainty in answering this question, moreover, militates in favor of the habeas petitioner.
“When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal
law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error
is not harmless. And, the petitioner must win.” Id. at 436. The O’Neal Court explained that “[b]y
‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels
himself in virtual equipoise as to the harmlessness of the error.” Id. at 435. An error of
constitutional magnitude will therefore satisfy Brecht if we determine that it “had a substantial and
injurious effect or influence in determining the jury’s verdict,” or if we find ourselves in “grave
doubt” about that determination. See Kotteakos, 328 U.S. at 765 (“If [the error itself had substantial
influence], or if one is left in grave doubt, the conviction cannot stand.”).
         In the present case, we are in “grave doubt” as to whether the exclusion of St. John and
especially Dr. Shulman had “a substantial and injurious effect or influence” on the outcome of
Ferensic’s trial. Regarding St. John, we agree with the Michigan Court of Appeals that his
testimony was not “especially strong.” Even though his description of one of the two men that he
observed outside of the Kostoffs’ home as having curly black hair was consistent with the Kostoffs’
initial description, which they later denied at trial, St. John effectively conceded at the evidentiary
hearing that his testimony was not alone sufficient to establish Ferensic’s innocence. He admitted
that his observation of the men was actually “[j]ust a glance” that he caught while driving past the
Kostoffs’ home and, accordingly, that he was “not able to provide a full description of either one
of these individuals.” On its own, therefore, the trial court’s exclusion of St. John is not sufficient
to satisfy the “substantial and injurious” standard of Brecht, even though Ferensic was prejudiced
to at least some degree by St. John’s failure to testify. Our decision to affirm the grant of Ferensic’s
habeas petition instead rests on the combined effect of the trial court’s exclusion of both St. John
and Dr. Shulman, with particular emphasis on Dr. Shulman.
        Regarding Dr. Shulman, we add the following analysis to our foregoing discussion of his
value to Ferensic. We agree with the district court that “other means” of attacking eyewitness
identifications do not effectively substitute for expert testimony on their inherent unreliability. This
court’s decision in United States v. Smithers, 212 F.3d 306 (6th Cir. 2000), provides direct support
for the district court’s conclusion that the typical methods of “challeng[ing] inconsistencies” in the
No. 06-2342            Ferensic v. Birkett                                                        Page 12


eyewitnesses’ testimony “were not an effective substitute” for what Dr. Shulman would have
offered. In Smithers, the majority thoroughly rejected the dissent’s contrary argument as follows:
        The Dissent counters by arguing that eyewitness identification experts are not
        necessary because cross-examination and jury instructions should be tools used in
        a trial to discredit and flush-out eyewitness testimony. Unfortunately, the Dissent’s
        homage to trial procedures does not extend to expert witness testimony. The same
        argument can be made for the admission of expert testimony: cross-examination and
        jury instructions can be used to question the qualifications of the proffered expert,
        undermine the basis of the expert’s theories, explain the limits of social science’s
        validation studies and pick apart research methods. The only reason given by the
        Dissent for why cross-examination and jury instructions can serve these goals for
        eyewitness testimony, but not for expert testimony, is that the jury may take the
        expert’s testimony as “scientifically irrefutable truth.” The Dissent’s selective faith
        in the collective intelligence, common sense and decision-making ability of the jury
        is disheartening, and is also inconsistent with the Dissent’s deference to the jury on
        other matters, including judging the credibility of eyewitness identifications.
212 F.3d at 316.
        The Smithers court also recognized that expert testimony on eyewitness identifications, once
thought to be unreliable and overly prejudicial to the prosecution, is now universally recognized as
scientifically valid and of “aid [to] the trier of fact” for admissibility purposes. Id. at 315 (discussing
expert testimony on eyewitness identifications in the context of the now-prevailing Daubert test for
the admissibility of expert testimony in the federal courts). As the court explained,
        jurors tend to be unduly receptive to, rather than skeptical of, eyewitness testimony.
        Further, accepting the district court’s analysis that all jurors are aware of their
        obligation to be skeptical would lead to absurd results: expert testimony on
        eyewitness identification would never be admissible. As demonstrated by abundant
        case law, this is not the conclusion that has been reached by courts addressing this
        issue. Today, there is no question that many aspects of perception and memory are
        not within the common experience of most jurors, and in fact, many facts that affect
        memory are counter-intuitive.
Id. at 315-16 (emphasis in original). Nor was there any dispute regarding the admissibility of Dr.
Shulman’s expert testimony in the present case. Rather, the trial court excluded his testimony
simply because Ferensic had failed to comply with a pretrial discovery order.
        The significance of Dr. Shulman’s testimony cannot be overstated. Without it, the jury had
no basis beyond defense counsel’s word to suspect the inherent unreliability of the Kostoffs’
identifications. The Supreme Court has long recognized this obliviousness as inimical to our system
of criminal justice. See, e.g., Watkins v. Sowders, 449 U.S. 341, 352 (1981) (“[D]espite its inherent
unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem
most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the
defendant commit the crime.”). Indeed, eyewitness misidentification is “the single most important
factor leading to wrongful convictions in the United States.” United States v. Brownlee, 454 F.3d
131, 141 (3d Cir. 2006) (quoting C. Ronald Huff et al., Guilty Until Proven Innocent: Wrongful
Conviction and Public Policy, 32 Crime & Delinq. 518, 524 (1986)); see also Chris Conway, The
DNA 200, N.Y. Times, May 20, 2007, § 4, at 14 (reporting on the first 200 U.S. inmates formally
cleared on the strength of DNA evidence, and noting that “three-quarters [of the initial convictions]
were marked by inaccurate eyewitness identification,” a greater percentage than that attributable to
any other factor). This statistic alone strongly supports the conclusion that excluding Dr. Shulman’s
No. 06-2342           Ferensic v. Birkett                                                       Page 13


testimony “had a substantial and injurious effect” on Ferensic. Brecht, 507 U.S. at 631. The identity
of the perpetrator, after all, was the only issue at trial.
        It was, moreover, a very close issue. We acknowledge that, as the Michigan Court of
Appeals concluded, “standing alone, the testimony of the officer who recognized defendant from
the sketch artist’s rendering would arguably have been sufficient to convict.” Ferensic, 2001 WL
865089, at *2. But Kotteakos prohibits us from simply focusing on the sufficiency of the evidence,
especially where it entails “stripping the erroneous action from the whole” and determining the
sufficiency of what is left “standing alone.” 328 U.S. at 765. We must instead “ponder[] all that
happened.” Id. This wider lens is what leaves us with “grave doubt.” See id.
         In “pondering all that happened” in the present case, we are particularly persuaded by the
district court’s finding that “the record indicates that the jurors were unable to agree on a verdict at
one point during their deliberations.” More specifically, the jury sent a note to the trial judge stating
that “[w]e would like to see the police report,” and asked “[w]hat are our options if we don’t totally
agree on a verdict?” The “police report,” of course, contained the police sketch as part of Ferensic’s
larger file. Thus the jury’s own words imply not only that it had doubts about the strength of the
case against Ferensic, but also that those doubts related at least in part to the contents of his police
file.
        Although the jury did not explicitly question the “sufficiency” of the sketch-based
identification vis-à-vis Ferensic’s guilt, its note, especially when considered in the context of the
erroneously excluded testimony from Dr. Shulman and St. John, precludes us from saying “with fair
assurance . . . that the judgment was not substantially swayed by the error.” See Kotteakos, 328 U.S.
at 765; see also Fry v. Pliler, 127 S. Ct. 2321, 2330 (2007) (Stevens, J., dissenting) (citing six
federal appellate-court decisions, including Powell v. Collins, 332 F.3d 376, 401 (6th Cir. 2003), for
the proposition that “jurors’ evident uncertainty” as to a defendant’s guilt makes a finding of
prejudicial error in a right-to-present-a-defense case almost impossible to effectively dispute).
         We wish to emphasize just how significant the jury’s note is to our analysis, because it
distinguishes the present case from many others in which the erroneous exclusion of an expert
witness on eyewitness identification might well be harmless. For example, we recognize that this
court has held on at least two occasions that the failure of counsel to hire an expert in eyewitness
identification did not prejudice the defendant in a criminal trial. See Dorch v. Smith, 105 F. App’x
650, 653 (6th Cir. 2004) (upholding as reasonable the Michigan Court of Appeals’s conclusion that
defense counsel’s failure to call an expert witness on eyewitness identification did not satisfy
Strickland v. Washington, 466 U.S. 668 (1984), because counsel “presented several witnesses who
testified as to [the habeas petitioner’s] whereabouts on the weekend of the incident” and cross-
examined the eyewitness regarding inconsistencies in his identification of the petitioner); Tipton v.
United States, No. 96-5026, 1996 WL 549802, at *1-2 (6th Cir. Sept. 26, 1996) (holding that “any
allegedly ineffective assistance” caused by counsel’s failure to “hir[e] an expert in eyewitness
identification” did not prejudice the petitioner within the meaning of Strickland).
        Although the failure to retain an expert as an initial matter presents a somewhat different
problem than the exclusion of an already retained expert, we recognize the tension that our holding
today might appear to generate with Dorch, Tipton, and similar cases. We therefore limit our
holding to the situation here where the record reflects the doubts of the jury itself as to the
identification of the perpetrator. Our analysis, in other words, should not be read to imply that the
exclusion of an eyewitness-identification expert in a state-court criminal trial—even if “arbitrary”
or “disproportionate” within the meaning of Rock—will always warrant relief on federal habeas
corpus review.
No. 06-2342        Ferensic v. Birkett                                                 Page 14


                                    III. CONCLUSION
      For all of the reasons set forth above, we AFFIRM the judgment of the district court.
No. 06-2342           Ferensic v. Birkett                                                     Page 15


                                        ________________
                                            DISSENT
                                        ________________
        McKEAGUE, Circuit Judge, dissenting. I would hold that the rejection by the Michigan
Court of Appeals of Ferensic’s claims of error as to the testimony of witnesses Shulman and St. John
was neither contrary to nor an unreasonable application of federal law. I would therefore reverse
the district court’s grant of the writ of habeas corpus.
                            I. RIGHT TO PRESENT A DEFENSE
        As the majority notes, in Taylor v. Illinois, the Supreme Court recognized that the Sixth
Amendment affords a defendant the right “to compel a witness’[s] presence in the courtroom” and
“to offer testimony.” 484 U.S. at 409. However, the right is not absolute; “[t]he accused does not
have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence. The Compulsory Process Clause provides him with an effective
weapon, but it is a weapon that cannot be used irresponsibly.” Id. at 410. As the Court further
explained in United States v. Scheffer,
       state and federal rulemakers have broad latitude under the Constitution to establish
       rules excluding evidence from criminal trials. Such rules do not abridge an
       accused’s right to present a defense so long as they are not “arbitrary” or
       “disproportionate to the purposes they are designed to serve.” Moreover, we have
       found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate
       only where it has infringed upon a weighty interest of the accused.
523 U.S. at 308 (quoting Rock, 483 U.S. at 56).
A. Dr. Shulman
        In considering Ferensic’s claim that the exclusion of Shulman’s testimony violated his right
to present a defense, the Michigan Court of Appeals applied the following standard:
               When fashioning a remedy for noncompliance with a discovery order, a trial
       court must first determine whether the objecting party’s interest in preparing its own
       case or its opportunity to test the authenticity of its opponent’s evidence has been
       prejudiced by the noncompliance, and then, if that be the case, must consider what
       remedy may be appropriate, giving due regard to the competing interests of the
       opposing party, the court and the public. The trial court must also inquire into all the
       relevant circumstances, including the reasons behind noncompliance and whether the
       objecting party was actually prejudiced. Finally, the remedy for noncompliance
       should not put the objecting party in a better position than the party would have
       enjoyed if the discovery order had been complied with. Thus, the exclusion of
       otherwise admissible evidence should be limited to the “most egregious cases,” in
       which other less severe remedies would fail to protect the parties’ competing
       interests.
2001 WL 865089, at *1 (citations omitted) (citing People v. Davie (After Remand), 571 N.W.2d 229,
231-32 (Mich. Ct. App. 1997); People v. Taylor, 406 N.W.2d 859, 868-69 (Mich. Ct. App. 1987)).
As stated above, the Supreme Court analyzes the exclusion of defense evidence pursuant to
evidentiary rules to determine whether the rules are “‘arbitrary’ or ‘disproportionate to the purposes
they are designed to serve,’” and to determine whether “the exclusion of evidence . . . has infringed
upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308.
No. 06-2342                Ferensic v. Birkett                                                                   Page 16


        The majority concludes principally that the Michigan Court of Appeals unreasonably applied
established law, but also asserts, as to the exclusion of St. John’s testimony, that prejudice is not “the
proper test for analyzing a right-to-present-a-defense claim.”1 Opinion at 7. However, the Michigan
Court of Appeals did not perform a prejudice analysis in evaluating Ferensic’s challenge to the
exclusion of Shulman’s testimony. Rather, the court held that “the ruling did not put the prosecution
in a better position than it would have enjoyed had the order been complied with because defense
counsel was otherwise able to effectively challenge inconsistencies in the victims’ identification
testimony.” 2001 WL 865089, at *2. This is merely an application of the Michigan rule, quoted
above, that “the remedy for noncompliance should not put the objecting party in a better position
than the party would have enjoyed if the discovery order had been complied with.” This rule seems
to be a fair rendition of the first Scheffer principle that evidentiary rules must not be
“disproportionate to the purposes they are designed to serve.” The Michigan rule that a decision to
exclude evidence “must consider what remedy may be appropriate, giving due regard to the
competing interests of the opposing party, the court and the public” would seem to encompass the
other portion of the federal rule, namely, that exclusion not be “arbitrary.”
         The majority also concludes that the trial court’s exclusion of Shulman’s testimony was
arbitrary and disproportionate to the discovery violation, and that the Michigan Court of Appeals
unreasonably applied federal law in holding to the contrary. The trial court excluded Shulman’s
testimony in response to an oral motion by the prosecution on the first day of trial, June 28, 1999.
The prosecution had originally moved to exclude this evidence in a pretrial motion which the trial
court denied on December 18, 1998; the court ordered instead that Shulman would be permitted to
testify if the defense provided the prosecution with Shulman’s report two months before trial. In
the brief hearing on the prosecution’s later motion to exclude Shulman’s evidence, the trial court
ruled,
         It doesn’t make a difference [that defense counsel sent the report to the prosecution
         the day he received it]. It was your responsibility. If you’re going to call somebody,
         and you’re under a court order to get the report to the prosecution two months before
         trial, especially when I ordered it back in December, you were supposed to make that
         person get you the report. If not, you should have come into court and said, “Judge,
         we need more time so that I can get the report to the prosecution.” You will not be
         able to use it.
Tr. of June 28, 1999, at 193.
         In view of the significant time in which the defense could have complied with the court
order, the exclusion of Shulman does not appear to be arbitrary, nor disproportionate to the purpose
for which the original order was made. As the trial court explained when the defense sought
reconsideration of the decision at the close of testimony on the first day of trial, “I ordered you to
give it to him two months ahead of time so that he could get his own expert. I wanted to have
enough time for the prosecution to be prepared to try this case without having to have an
adjournment.” Id. at 307-08. This is precisely the reason the Supreme Court recognized in Taylor
v. Illinois as an appropriate reason to exclude defense evidence:

         1
           Presumably, this assertion, like the contention that the Michigan Court of Appeals applied the wrong standard
in examining the exclusion of St. John’s testimony, is directed toward the requirement that habeas relief not be granted
unless the state court decision is “contrary to . . . clearly established federal law.” 28 U.S.C. § 2254(d)(1). However,
the Supreme Court has explained that a state court decision is “contrary to” federal law only if “the state court arrives
at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. at 413 (O’Connor, J.,
delivering the opinion of the Court as to this part). The majority does not assert that the Supreme Court has concluded
that a prejudice analysis is not appropriate in a right-to-present-a-defense case, nor that the Supreme Court has ever been
presented with facts materially indistinguishable from those here.
No. 06-2342           Ferensic v. Birkett                                                     Page 17


       The adversary process could not function effectively without adherence to rules of
       procedure that govern the orderly presentation of facts and arguments to provide
       each party with a fair opportunity to assemble and submit evidence to contradict or
       explain the opponent’s case. The trial process would be a shambles if either party
       had an absolute right to control the time and content of his witnesses’ testimony.
484 U.S. at 410-11 (emphasis added).
        As the majority points out, unlike Taylor, this case does not involve a defendant who
announces the existence of witnesses only after the trial has begun. See id. at 403. In this case, the
trial court gave its order regarding Shulman’s testimony more than six months before trial, and
Shulman was not a witness belatedly discovered by the defense. According to Shulman’s testimony
before the district court, defense counsel had actually retained him as an expert witness in 1998, and
Shulman had initially been prepared for a trial date of September 22, 1998; the trial was
subsequently postponed. Shulman’s testimony that in his discussions with Ferensic’s counsel after
that date counsel made a “request for an updated report or a revised report” indicates that Shulman
had already provided a report by September of 1998, which apparently Ferensic desired Shulman
to modify in some fashion. Ferensic thus should have had no difficulty in complying with the
discovery order.
         Moreover, as the trial court pointed out, the December order gave Ferensic four months to
provide the prosecution with the required report, and he could have asked the court for an extension
if this for some reason proved impossible to do. The trial court could, of course, have permitted a
mid-trial adjournment in which the prosecution could obtain its own expert witness. However, the
avoidance of such an adjournment was precisely the reason the trial court ordered that defendant
provide Shulman’s report two months before trial. As the Supreme Court noted in Taylor, “a less
drastic sanction is always available.” 484 U.S. at 413. However, that does not mean that a less
drastic sanction must always be used. Given the situation, the exclusion of Shulman’s testimony
was not arbitrary, and not disproportionate to the purpose the order was designed to accomplish,
which was that it would not be necessary to adjourn the trial in order for the prosecution to respond
to Shulman’s evidence. The Michigan Court of Appeals’s conclusion that the exclusion of Shulman
was “nothing more than the court had warned of six months before trial,” 2001 WL 865089, at *2,
was reasonable, and a reasonable application of the standard governing the exclusion of defense
evidence.
        The majority also argues that the apparent purpose of the trial court’s order, namely, ensuring
that the prosecution have an opportunity to secure its own witness, was not a genuine one; that is,
that the trial court was “indifferen[t] to whether the prosecution was actually prejudiced,” and
excluded Shulman’s testimony without regard to whether the prosecution actually desired to secure
its own eyewitness identification expert. Opinion at 8. However, this also does not present the full
picture of the proceedings before the trial court. The trial court explained,
       [O]ne of the things I’ve got to do is I’ve got to make sure that whatever you get
       ready to put in evidence, the other side has had the opportunity to prepare to do
       something about it. If not, I have to stop in the middle of the trial and give them
       time. Now, you know I’m not going to do that in this case, don’t you? You know
       I’m not going to let you put in your expert, and then adjourn this case for two months
       to let the prosecutor go running around trying to find another expert that will testify
       differently. You know that’s not going to happen, don’t you?
Tr. of June 28, 1999, at 308-09. Defense counsel responded, “Well, I’ve never had any indication
from [the prosecutor] that he wants to hire an expert to contradict our expert.” Id. at 309. The trial
court replied, “I don’t care what he – what I’m trying to do is I’m making sure – when I gave the
No. 06-2342            Ferensic v. Birkett                                                        Page 18


order, the reason for the two months was so I would not run into this problem, and you didn’t follow
the order. I’m sorry.” Id.
       While the trial court certainly indicated its indifference to defense counsel’s statements
regarding whether the prosecutor had ever indicated an interest in securing an opposing expert, this
does not entail indifference to the effect of its ruling on the prosecution. The court clearly was
concerned that it might “have to stop in the middle of trial and give [the prosecution] time,” and was
enforcing its order “so I would not run into this problem.” Id. at 308, 309. The fact that the
prosecutor had not then represented to defense counsel that he intended to secure an opposing expert
does not mean that the need to do so might not later appear “in the middle of trial,” necessitating the
adjournment which the court’s order had carefully avoided.
        In addition, the Supreme Court in Scheffer held that “we have found the exclusion of
evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a
weighty interest of the accused.” 523 U.S. at 308. Supreme Court precedent, including the three
cases Scheffer specifically cites in support of this proposition, indicate that a “weighty interest of
the accused” does not include any interest in offering evidence, but is limited to an interest in
offering the accused’s own testimony, Rock, 483 U.S. at 58 n.15, or an interest in using the only
available means of addressing a relevant issue, see, e.g., Chambers v. Mississippi, 410 U.S. 284,
300-02 (1973) (defendant forbidden to offer evidence that another person had confessed on several
different occasions to the crime of which he stood accused); Washington v. Texas, 388 U.S. 14, 22
(1967) (defendant forbidden to offer exculpatory testimony from a witness because the witness was
an accomplice in the crime and had not been acquitted). The majority responds that the list of
“weighty interests” is not so limited. Even assuming these Supreme Court decisions do not
constitute an exhaustive list of “weighty interests” and different interests could meet the weighty-
interest standard in the future, it cannot be said that any other interests are clearly established federal
law as required under AEDPA.
        The Michigan Court of Appeals correctly noted that in this case, the exclusion of Shulman’s
testimony did not prevent Ferensic from addressing the issue of flaws in eyewitness identifications;
“defense counsel was otherwise able to effectively challenge inconsistencies in the victims’
identification testimony” through cross-examination of the victims. 2001 WL 865089, at *2.
Habeas relief stemming from the exclusion of Shulman’s testimony is thus also inappropriate
because the exclusion did not infringe on a “weighty interest of the accused.”
B. Danny St. John
        The Michigan Court of Appeals analyzed Ferensic’s claim regarding the trial court’s failure
to grant an adjournment to permit the appearance of St. John under the following standard:
        In determining whether a trial court abused its discretion in denying a motion for an
        adjournment, this Court should consider “whether defendant (1) asserted a
        constitutional right, (2) had a legitimate reason for asserting the right, (3) had been
        negligent, and (4) had requested previous adjournments.” Defendant must also show
        that he was prejudiced by the denial of the adjournment. The witness in question
        would have testified to some differences in identification of the offenders and the
        vehicle they were driving. The purported testimony was not especially strong,
        however, and inconsistency inherent in the victims’ identification was otherwise
        shown. Accordingly, defendant has failed to satisfy the requirement that he show
        prejudice.
2001 WL 865089, at *2 (citations omitted) (quoting People v. Lawton, 492 N.W.2d 810, 814
(1992)).
No. 06-2342           Ferensic v. Birkett                                                     Page 19


        The majority primarily criticizes the Michigan Court of Appeals’s decision to affirm on the
basis that it unreasonably applied clearly established federal law. However, the majority also asserts
that the Michigan Court of Appeals applied harmless error analysis in disposing of the argument,
and implies that since Scheffer requires inquiry into whether evidentiary rules are arbitrary or
disproportionate to the purposes they are designed to serve, the Michigan Court of Appeals analysis
is contrary to clearly established federal law. See Opinion at 11-13. This is not true. As the
Supreme Court has explained, avoiding contrariness to federal law “does not require citation of our
cases – indeed, it does not even require awareness of our cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). The
majority points to no Supreme Court case forbidding the application of harmless error analysis.
        The majority also concludes that the Michigan Court of Appeals unreasonably applied
federal law to Ferensic’s claim regarding the exclusion of St. John’s testimony. The Court of
Appeals relied on defense counsel’s proffer of evidence at trial to determine that St. John’s
testimony “was not especially strong,” and therefore that “defendant has failed to satisfy the
requirement that he show prejudice.” 2001 WL 865089, at *2. This evaluation of the proffered
evidence is confirmed by St. John’s testimony at the evidentiary hearing before the district court
below. St. John testified that he was “laying carpet” in one of the homes on the victims’ street, and
his attention was drawn to a truck because “the truck that was parked in front of the [victims’] house,
my neighbor’s got one exactly like it.” Tr. of June 19, 2006, at 6. He saw two men standing outside
the truck; both men were white, and “[o]ne looked like he was probably in his early forties.” Id. at
7-8, 13. He confirmed that he was “not able to provide a full description of either one of these
individuals.” Id. at 8. On cross-examination by the government, he clarified that he “wasn’t
actually parked in the driveway outside” when he saw the men and the truck; he was driving and
“passed it on the street,” and he got “[j]ust a glance” at the two men. Id. at 12-13. St. John also
answered “No, sir” to the district court’s question, “Never saw him before?” referring to the
defendant sitting in court at the evidentiary hearing. Id. at 13.
        The import of St. John’s testimony was thus that he got very little chance to look at either
of the two men and could not describe them. In view of this evidence, it is not clear that St. John’s
testimony at the trial would have had any probative value at all, let alone sufficient probative value
to outweigh the considerations of delay attendant upon granting an adjournment. The district court
below concluded that “Mr. St. John also would have helped the defense, because his description of
a suspect with curly black hair matched the description that the Kostoffs gave the police. At trial,
the Kostoffs denied telling the police that Petitioner had curly black hair.” Ferensic v. Birkett, 451
F. Supp. 2d 874, 883 (E.D. Mich. 2006). It is true that at trial, the Kostoffs denied describing the
robber as having curly black hair. However, St. John’s testimony at the evidentiary hearing does
not include such a description of either man. Perhaps more tellingly, Ferensic’s counsel never even
asked whether St. John would describe either man in this way, or what color hair either had. The
only suggestion that St. John would have so testified was counsel’s proffer at trial.
        Even supposing that St. John would have testified that one of the men had black curly hair,
and that counsel below simply forgot to ask him about this description, that testimony would at most
have contradicted Mr. Kostoff’s testimony that he never described one of the robbers as having
black, curly hair. However, the fact that the Kostoffs initially described one of the robbers as having
black, curly hair appears in the police report, which was used for impeachment at trial. This would
seem to be a considerably stronger refutation of their testimony that they did not describe the robber
that way than would St. John’s testimony that one of the robbers had black, curly hair. Moreover,
Ferensic does not contend that St. John’s testimony would actually have indicated that neither robber
resembled him, or otherwise tended to exonerate him. The conclusion of the Michigan Court of
Appeals that St. John’s testimony “was not especially strong” is supported by the record.
No. 06-2342               Ferensic v. Birkett                                                                  Page 20


         The majority’s assertion that, on the other hand, Ferensic “was asking for the briefest of
delays” in order to present St. John’s testimony does not tell the whole story. It is true that Ferensic
finished his evidence at 10:25AM and trial counsel stated that St. John was due to arrive at the
courthouse at 11:00AM. However, the trial court also noted for the record that “we were supposed
to start at 9:00 this morning. Your witness was not here. I told you to put on your next witness.
He’s not here.” Tr. of June 29, 1999, at 73-74. Two of the scheduled defense witnesses were thus
not present when proceedings began for the day, even though defense counsel knew that there was
an outstanding question as to permissible impeachment testimony which would determine whether
or not Ferensic himself elected to testify. In fairness, Ferensic did have one witness available to
testify that morning, but that witness was Ferensic’s father, who likely was in attendance throughout
the trial.
         In its full context, the trial court’s refusal to grant an adjournment until 11:00 when St. John
was expected to arrive does not appear the “‘myopic insistence upon expeditiousness in the face of
a justifiable request for delay’” that the majority terms it. On the contrary, in view of the absence
of multiple witnesses from the beginning of proceedings that morning and the very limited
helpfulness of St. John’s testimony, even assuming it would have been consistent with the proffer,
the district court’s denial of a continuance was not arbitrary or disproportionate to the interest it was
designed to serve, and the Michigan Court of Appeals did not unreasonably apply established law
in affirming Ferensic’s conviction on that basis.
        Because the Michigan Court of Appeals decision did not unreasonably apply clearly
established federal law, I believe that the district court was not authorized to grant a writ of habeas
corpus. See Taylor, 288 F.3d at 850. A harmless error review, including the cumulative prejudice
analysis of the majority, is therefore unnecessary. See Penry v. Johnson, 532 U.S. 782, 795 ( 2001)
(“Even if our precedent were to establish squarely that the prosecution’s use of the Peebles report
violated Penry’s Fifth Amendment privilege against self-incrimination, that error would justify
overturning Penry’s sentence only if Penry could establish that the error ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’”) (emphasis added) (quoting Brecht,
507 U.S. at 637); see also Fulcher v. Motley, 444 F.3d 791, 808-09 (6th Cir. 2006) (performing
harmless error review only after finding that habeas relief was otherwise warranted); Biros v.
Bagley, 422 F.3d   379, 388 (6th Cir. 2005) (same); Stapleton v. Wolfe, 288 F.3d 863, 867 (6th Cir.
2002) (same).2
                          II. INEFFECTIVE ASSISTANCE OF COUNSEL
        Although the majority does not reach the issue, because I would hold that Ferensic is not
entitled to habeas relief on the basis of his right to present a defense argument, I will briefly address
his second issue, ineffective assistance of counsel. See McCalvin v. Yukins, 444 F.3d 713, 724 (6th
Cir. 2006) (Cole, J., dissenting) (addressing in dissent a secondary argument for habeas relief not
reached by the majority). The standard for determining whether a defendant has received ineffective
assistance was set forth by the Supreme Court in Strickland v. Washington. Under that standard, a
defendant claiming ineffective assistance must show both “that counsel’s representation fell below
an objective standard of reasonableness” and that “there is a reasonable probability that, but for


         2
          In Eddleman v. McKee, 471 F.3d 576, 583 n.3 (6th Cir. 2006), this court recently held that “the Brecht standard
continues to apply when federal courts must make a harmless-error determination in the first instance, as when a state
court found no error and therefore did not address whether an error would be harmless.” However, Eddleman cites for
this proposition only cases, including Penry, Fulcher, Biros, and Stapleton, that either have performed a harmless error
analysis after finding a constitutional error, or that have held any error to be harmless and not reached the question of
whether constitutional error occurred. Thus, the rule enunciated in Eddleman apparently means that, regardless of
whether the state court performed a harmless error analysis, Brecht applies where the federal court on habeas review has
found constitutional error, but not where it has found none.
No. 06-2342           Ferensic v. Birkett                                                     Page 21


counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S.
at 688, 694. Though the Michigan Court of Appeals did not cite Strickland by name, it analyzed
whether “counsel’s failure to secure the testimony of these two witnesses was objectively
unreasonable” and whether “absent this deficient performance the outcome of his trial would have
been different.” 2001 WL 865089, at *2. This clearly is the correct standard.
        The Michigan Court of Appeals determined that counsel’s actions were objectively
unreasonable, but that Ferensic did not meet the prejudice prong. Id. With regard to St. John’s
testimony, this seems difficult to dispute. According to his testimony at the evidentiary hearing, he
could have testified at trial only that the two men were white, one was in his mid-forties, and he
could further describe neither of them. The helpfulness of this testimony to Ferensic is at best
negligible; it could fairly be argued that by confirming the presence of two white men near a black
truck in front of the victims’ home, the victims’ testimony was corroborated. The fact that Ferensic
was considerably younger than forty does not make St. John’s testimony exculpatory, since he had
no idea of the age of the second man. Even if St. John had been prepared to testify that one of the
men had black, curly hair, it is hard to see that there is a reasonable probability that with this
testimony, the outcome of the trial would have been different. St. John would have described one
of the robbers as having black, curly hair; the victims would have denied that they ever described
either of the robbers in this way; and no witness would have described the second man in a manner
inconsistent with Ferensic’s appearance. This is not sufficient to show prejudice under Strickland.
        With regard to Shulman’s testimony, the prejudice question is perhaps closer. Certainly, as
the majority notes, expert testimony on eyewitness identifications is now widely admissible in court.
However, Michigan courts have held that an eyewitness identification expert is not constitutionally
required. People v. Cooper, 601 N.W.2d 409, 418 (Mich. Ct. App. 1999) (holding that the decision
not to call an identification expert is not objectively unreasonable). The Sixth Circuit in unpublished
decisions has also held that counsel’s failure to offer an identification expert is not ineffective
assistance. Dorch, 105 F. App’x at 656-657 (approving state appellate court decision that habeas
petitioner “could not satisfy these two [Strickland] elements” given that trial counsel “‘presented
several witnesses who testified as to [the petitioner’s] whereabouts on the weekend of the incident’”
and cross-examined the identifying witness); Tipton, 1996 WL 549802, at *1, 2 (holding that a
federally convicted habeas petitioner “was not prejudiced by any allegedly ineffective assistance
provided by his counsel” although counsel did “not hir[e] an expert in eyewitness identification”).
         Moreover, the government showed during the evidentiary hearing that Shulman’s evidence
undermining the victims’ testimony would be equivocal at best. Shulman conceded that if one
witness identified a suspect from a lineup and the other failed to do so, that would be “a sign of
independence” of their memories, indicating that their visual memory was not contaminated by
“collaboration” regarding what the robber looked like. Tr. of June 19, 2006, at 47-48. He conceded
that if the robber did not brandish a weapon when Mr. Kostoff first saw him, “there’s no weapons
focus for that period of time, and that gives that witness a better opportunity to focus on the face of
the person.” Id. at 48. He also conceded that if the interaction between the witness and the robber
took place over a forty-five minute period and involved several encounters, not just an initial
meeting at the door, the witness’s memory would be more accurate. He conceded that a witness’s
initial verbal description of a suspect to a police officer would not be influenced by his later
memories of seeing the suspect in a lineup or a photo array, and would therefore be relatively
reliable. Thus, Shulman conceded that many if not most of the factors that he described as limiting
a witness’s ability to identify a stranger accurately did not apply under the circumstances in this
case.
        Finally, trial counsel did thoroughly cross-examine the victims regarding their identification
of Ferensic, as well as questioning the police witnesses about the composite sketch, photo array, and
lineup, and offered the testimony of Ferensic’s father regarding scars on Ferensic’s face, which the
No. 06-2342            Ferensic v. Birkett                                                         Page 22


victims did not remember. Given that Shulman’s testimony would have suggested at most slight
potential weaknesses in the victims’ identification of Ferensic, and that defense counsel thoroughly
argued the issue of identification, it does not appear reasonably probable that Shulman’s testimony
would have altered the outcome of the trial.
        I do not agree with the majority that the note the jury sent out during deliberations asking
to see the police report indicates that the jury “had doubts about the strength of the case against
Ferensic.” Opinion at 13. Although, as the majority observes, the police report contained the artist’s
sketch, it contained other information as well, and the record contains no indication that the jury was
interested in the sketch particularly. In any case, the trial court refused to provide the jury with the
report, as it had not been entered into evidence, and after further deliberations, the jury found
Ferensic guilty.
         The finding of the district court below that “the record indicates that the jurors were unable
to agree on a verdict at one point during their deliberations” is not helpful to a prejudice analysis.
First of all, findings of fact by the district court are entitled to no deference if they are based entirely
on the record from the state court proceedings. Taylor, 288 F.3d at 850. Second, the “one point”
during deliberations at which the jurors requested the police report occurred after they had been
deliberating for only ninety minutes, as the trial court noted on the record. Finally, and most
importantly, the jury’s question does not indicate that they entertained doubts about their ultimate
decision. This case is readily distinguishable from this court’s decision in Powell v. Collins, 332
F.3d 376, 401 (6th Cir. 2003), in which the jury had “informed the court that it was ‘at a stalemate’
and could not agree whether to impose a death sentence.” Here, the jurors merely asked for
information, which is not an indication that the verdict is unreliable, but a part of the appropriate role
of the jury. See Weeks v. Angelone, 528 U.S. 225, 235-26 (2000) (“This particular jury
demonstrated that it was not too shy to ask questions . . . .”).
        The determination of the Michigan Court of Appeals that the outcome would not have been
different is thus not an unreasonable application of Strickland, especially in view of this court’s
deference to state court application of federal law in habeas cases. As the Supreme Court held in
Wiggins v. Smith, “In order for a federal court to find a state court’s application of our precedent
‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The
state court’s application must have been ‘objectively unreasonable.’” 539 U.S. at 520-21 (citations
omitted) (quoting Williams, 529 U.S. at 409). The conclusions of the Michigan Court of Appeals
were not objectively unreasonable.
                                         III. CONCLUSION
        For these reasons, I would reverse the district court’s grant of the writ of habeas corpus.
