Elem Ray Fulcher v. John Motley, Warden , 444 F.3d 791 ( 2006 )

COOK, J., delivered the opinion of the court, in which OLIVER, D. J., joined.

CLAY, J. (pp. 811 - 830), delivered a separate concurring opinion.

OPINION

COOK, Circuit Judge.

Elem Ray Fulcher, currently serving a life sentence for murder, burglary, and robbery, appeals the denial of his petition for a writ of habeas corpus. The evidence against Fulcher included statements from a police station interview with his then girlfriend, Patricia Sue Ash, taped soon after the crime. The couple later married; Ash invoked marital privilege under Kentucky law¹ and was thus unavailable for cross-examination at Fulcher’s trial. Fulcher contends that the admission of Ash’s statements violated his rights under the Sixth Amendment’s Confrontation Clause, according to both the clearly established law at the time and the later case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which he argues should apply retroactively. We find that the admission of Ash’s statements did violate Fulcher’s clearly established rights and that the error was not harmless. We thus REVERSE and REMAND to the district court for entry of the writ.

I. Factual and Procedural Background

A. Factual History

On December 22, 1991, Charlie Bramer was found beaten and stabbed to death in his home in Jefferson County, Kentucky. In April 1994, Fulcher was convicted of burglary, robbery, and Bramer’s murder. The prosecution’s case substantially consisted of the testimony of Terry Wright, Fulcher’s friend and alleged accomplice, the police interview with Ash, the testimony of two inmates to whom Fulcher admitted committing the murder, and the testimony of a third inmate, to whom Fulcher offered $500 to provide an alibi. No murder weapon was found, and Fulcher’s fingerprints were not discovered at the crime scene.

Wright’s testimony supplied the bulk of the facts. He and Fulcher were drinking and watching football at Fulcher’s house on the day of the crime. The two then went for a drive and decided to go to the home of Charlie Bramer to steal some money. They entered the home while Bramer lay asleep on the couch; Wright watched Bramer, and Fulcher searched the bedroom. Wright then heard a car come down the driveway. He went to the front door to look out and accidently hit the security chain on the door, waking Bramer. Wright ran out, taking the front door key with him, and got into Fulcher’s car. Fulcher joined him. Bramer came out, walked over to the car, reached inside, and smacked Fulcher on the head.

Fulcher asked Bramer if he could talk to him for a minute, and the two walked back into the house. Wright initially stayed in the car but then went inside to find Fulcher hitting Bramer in the head with a hammer. Wright testified that there was nothing he could do to stop Fulcher. Wright again ran out, wiped his fingerprints off of the front door, and returned to the car. Three or four minutes later, Fulcher returned covered in blood. He told Wright, “This makes us tighter than anybody,” and then drove Wright home. Fulcher told Wright that he killed Bramer because Bramer would otherwise have been able to identify them.

On January 2, 1992, Patricia Sue Ash was pulled over in a car matching the description of Fulcher’s vehicle. The police took her to the station for questioning, at which point she provided the taped interview that lies at the heart of this appeal. Ash stated in the interview that sometime before Christmas Fulcher asked her to wash a pair of grey sweatpants that had blood on them — the result, Fulcher said, of a fight in which he and Wright had been involved.' She stated that later Wright asked her to dispose of a key that she did not think belonged to her, Wright, or Fulcher. Ash could not recall whether Fulcher was present for the discussion, but Wright later testified that he was. Ash admitted that she threw the key into a sewer, where it was recovered by the police.

William Mucker and Nick Mantilli, state inmates, testified that Fulcher admitted to each of them that he killed Bramer. In addition, Mucker, who had known Fulcher before the murder and who was an inmate with Fulcher, testified that Fulcher told him to see him after Mucker’s release. Fulcher would then tell Mucker where the murder weapons were located, and Mucker would dispose of them. Another inmate, Norman Lewis, testified that Fulcher offered him $500 to provide an alibi.

B. Litigation History

Basic Procedural History. Fulcher was convicted of murder, first degree robbery, and first degree burglary. He directly appealed his conviction to the Kentucky Supreme Court, arguing that (1) the trial court denied him a fair trial by not granting a mistrial after Wright volunteered from the stand that he had taken a polygraph test; (2) the trial court denied him due process by failing to instruct the jury on lesser offenses, including manslaughter, second degree burglary, and theft by unlawful taking; and (3) the trial court denied him a fair trial and violated his Sixth Amendment right to confront witnesses by admitting Ash’s tape-recorded statements.

The Kentucky Supreme Court rejected all of Fulcher’s arguments on the merits. The court affirmed the conviction on June 20, 1996, and it denied his petition for rehearing on August 26. On August 15, 1997, Fulcher moved in the state trial court to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure 11.42, alleging various instances of ineffective assistance of counsel. The trial court denied the motion, and on May 25, 2001, the Kentucky Court of Appeals affirmed the denial. Fulcher then petitioned the Court of Appeals for a rehearing. The Court of Appeals denied his petition on August 10, 2001. A year later, on August 14, 2002, the Kentucky Supreme Court denied his motion for discretionary review of the Court of Appeals’s decision. On November 7, 2002, he filed this petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky.

Fulcher raised the same three arguments in his habeas petition as he had on direct review: lack of a fair trial stemming from Wright’s “lie detector” statement; lack of a fair trial and due process violations from failure to instruct the jury on the lesser offenses; and, most relevant to this appeal, lack of a fair trial and violation of his Sixth Amendment confrontation right by the admission of Ash’s statements. A federal magistrate judge recommended denying Fulcher’s petition. He found that although Fulcher had preserved his Sixth Amendment challenge, habeas relief was inappropriate because the Kentucky Supreme Court’s decision was neither “clearly contrary to” nor “an unreasonable application of’ the United States Supreme Court precedent in Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The district court accepted the magistrate’s recommendations, dismissed Fulcher’s petition, and denied his request for a certificate of appealability.

On September 3, 2003, Fulcher filed his notice of appeal, followed by a request for a certificate of appealability from this court. On August 19, 2004, this court granted Fulcher the certificate “regarding the issue of whether his rights under the Confrontation Clause were violated when a tape-recorded statement was admitted into evidence.”

Preservation of his Sixth Amendment Argument. Because Kentucky contends that Fulcher has waived the Confrontation Clause challenge he raises in this appeal, we consider his filings with respect to the issue.

Prior to trial, Fulcher filed a motion in limine to exclude Ash’s statements, arguing, among other things, that their admission would violate his Confrontation Clause right as defined by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that the Sixth Amendment requires that hearsay statements have “indicia of reliability” — i.e., either fall into a “firmly rooted hearsay exception” or have “particularized guarantees of trustworthiness”), Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (holding that inculpatory hearsay statements by accomplices are “presumptively unreliable”), and Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding that to have “particularized guarantees of trustworthiness,” hearsay evidence “must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial”). Fulcher also cited the Kentucky case of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990), which allowed an unavailable party’s confession to be admitted against his alleged accomplice, for the proposition that a non-testifying codefendants’s confession is presumptively unreliable. As discussed below, the more relevant holding in Taylor was that statements against penal interest may only be admitted based upon a four-factor test of trustworthiness.² Fulcher did not cite that test in his motion.

Next, as recounted in his brief on direct appeal before the Kentucky Supreme Court (J.A. 54), Fulcher objected to the admission of Ash’s statements before and throughout the trial. The brief offers few specifics as to the content of those objections, other than noting that the pretrial objection was “overruled by the trial court as to ... whether or not the statement qualified as being one against Ms. Ash’s penal interest.”

The section of the brief recounting these pretrial and trial objections was entitled, “THE TRIAL COURT ERRED TO APPELLANT’S SUBSTANTIAL PREJUDICE AND DENIED APPELLANT HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM UNDER THE SIXTH AMENDMENT ... WHEN IT ALLOWED, OVER APPELLANT’S OBJECTION, THE ADMISSION OF THE HEARSAY STATEMENT OF PATRICIA SUE ASH FULCHER.” (J.A. 54.) In that section, Fulcher set out the facts underlying his Sixth Amendment challenge: During a police interrogation, Ash gave a statement that was later admitted at trial; Ash did not testify at trial, and she was never subjected to cross-examination. In the brief, Fulcher did not expressly address Roberts, Lee, or Wright. Instead he argued that the trial court erred by failing to apply Taylor’s four-factor test to Ash’s statements. (J.A. 60-61.)

In his habeas petition, Fulcher asserted that “Petitioner suffered substantial prejudice that deprived Petitioner of a fair trial and his right to confrontation under the Sixth Amendment ... when the trial court allowed over Petitioner's] objection, the admission of the hearsay statement of Patricia Sue Ash Fulcher.” (J.A. 15.) The petition offered no further detail.

Then, in his objections to the magistrate’s report, Fulcher argued for the first time that Taylor, which he himself had several times cited, was the wrong legal standard to apply to his case — and specifically that the magistrate’s report, because it relied on Taylor, was contrary to the clearly established federal law in Roberts, Lee, Wright, Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), and Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). Fulcher also argued, though less emphatically, that Ash’s statements did not “meet the high standard for admissibility as outlined in Chambers v. Mississippi.” (J.A. 232.)

Fulcher’s brief in this appeal focuses squarely on the inconsistency of the proceedings below with Sixth Amendment Confrontation Clause jurisprudence — under both Crawford and pre-Craioford case law.

II. Analysis

A. Fulcher Did Not Waive His Sixth Amendment Arguments as to Either Crawford or its Predecessors

Kentucky contends that Fulcher waived his current Confrontation Clause arguments because on direct appeal he failed to “[argue] that the Taylor case was incorrectly decided or applied an erroneous constitutional standard.” (Appellee’s Br. 23.) Indeed, “[t]he only two cases that Fulcher asked the Kentucky Supreme Court to apply on direct appeal were [Chambers ] and [Taylor].” (Id.) Kentucky contends accordingly that “[the court] cannot be faulted for applying the very precedents that Fulcher asked it to apply to his case” (emphasis removed) and moreover that “habeas relief is not available when the petitioner or his counsel invited the error about which he complains.” (Appellee’s Br. 24 (citing Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir.1998); Fields v. Bagley, 275 F.3d 478, 485 (6th Cir.2001) (citation omitted)).) Kentucky also contends that Fulcher has waived his current Confrontation Clause arguments because his objections to the magistrate’s report argued that Chambers did apply to his case, but was misapplied by the Kentucky Supreme Court. (Appellee’s Br. 24.)

1. Waiver Standard

Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003), provides a thorough account of the Sixth Circuit requirements for preserving constitutional claims:

Federal courts do not have jurisdiction to consider a claim in a habeas petition that was not “fairly presented” to the state courts. A claim may only be considered “fairly presented” if the petitioner asserted both a factual and legal basis for his claim in state court. Although general allegations of the denial of a “fair trial” or “due process” have been held insufficient to “fairly present” federal constitutional claims, a petitioner need not recite “book and verse on the federal constitution.”

A petitioner can take four actions in his brief which are significant to the determination as to whether a claim has been fairly presented: “(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law.”

(Citations omitted.) Finding that Newton’s brief “provided a detailed recitation of the facts and specifically stated that the trial court’s refusal to instruct the jury on the issue of self-protection against multiple aggressors ‘violated [his] right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution,’ ” id. (citation omitted), the court found his constitutional arguments preserved.

2. As Applied to the Facts Here

Fulcher did not waive his Confrontation Clause arguments because at every stage of the process, he took some combination of the four actions discussed in Newton. In each of his briefs Fulcher asserted that the admission of Ash’s statements violated his rights under the Confrontation Clause — “terms sufficiently particular to allege a denial of a specific constitutional right.” Id. And each “alleg[ed] facts well within the mainstream of constitutional law,” id., specifically, that Ash’s out-of-court statements were asserted for their truth, and that she was unavailable for cross-examination. That he cited the wrong cases in support of his constitutional claim is no basis for default. Since “[t]here is no requirement that the petitioner cite to cases that employ federal constitutional analysis where he has phrased his claim in terms of a denial of a specific constitutional right,” Newton, 349 F.3d at 877 (emphasis added), penalizing a party for citing the wrong cases would create the perverse incentive to cite no cases at all. Cf. Carter v. Bell, 218 F.3d 581, 606 (6th Cir.2000) (“We do not require word-for-word replication of the state claim in the habeas corpus petition in order to address the merits therein, only that the petitioner ‘fairly present’ the substance of each of his federal constitutional claims to the state courts.”).

As for the “invited error doctrine,” Fulcher’s reply brief correctly notes that “the invited error doctrine applies only where a defendant affirmatively seeks a ruling from a trial court and then later asserts that the ruling he requested was erroneous.” (Reply Br. 8.) See United States v. Sharpe, 996 F.2d 125, 129-30 (6th Cir.1993) (defendant, having convinced the court that he was not guilty under one statute, was barred from later arguing that a second statute could not apply to his conduct because the first one already did); Harvis v. Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir.1991) (plaintiff, after requesting a jury verdict, was barred from asserting the impropriety of that verdict); All Am. Life and Casu. Co. v. Oceanic Trade Alliance Council Int’l, Inc., 756 F.2d 474, 479-80 (6th Cir.1985) (refusing to exclude otherwise inadmissible evidence because the plaintiff had “invited” witnesses to make the references it later sought to exclude); see also Fields, 275 F.3d at 485 (finding no invited error where respondent charged that petitioner’s counsel had intentionally left petitioner without appellate counsel so as to create a basis for reversal by the Supreme Court); Leverett v. Spears, 877 F.2d 921, 924 (11th Cir.1989) (petitioner may not allege fundamental error in jury instructions he himself argued for and submitted). Kentucky points to no use of the “invited error” doctrine to prevent a plaintiff from re-arguing a constitutional claim that he previously argued incorrectly by citing the wrong precedent.

We thus find that Fulcher has preserved his argument that the admission of Ash’s statements violated his Confrontation Clause rights.

B. The Kentucky Supreme Court’s Decision Violated Clearly Established Federal Law

1. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may only grant a prisoner’s petition for a writ of habeas corpus if it finds that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United Statea[J” 28 U.S.C. § 2254(d)(1).³ “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). And “[a] state-court decision will certainly be contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule that -contradicts the governing law set forth in [Supreme Court] cases.” Id. at 405, 120 S.Ct. 1495 (emphasis added). For example, a habeas petition could be granted if, in spite of the rule in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — that a petitioner urging ineffective assistance of counsel need only show a “reasonable probability” of prejudice — a state court required the petitioner to show prejudice by a preponderance of the evidence. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. When a state court commits such an error, “a federal court [is] unconstrained by § 2254(d)(1),” id. at 406, 120 S.Ct. 1495, and de novo review is appropriate. See Romine v. Head, 253 F.3d 1349, 1365 (11th Cir.2001).

2. The Kentucky Supreme Court’s Decisional Rule Was Contrary to Clearly Established Federal Law, Therefore De Novo Review Is Appropriate

The Clearly Established Law. The Confrontation Clause of the Sixth Amendment provides that a criminal defendant “shall enjoy the right ... to be confronted with the witnesses against him.” U.S. CONST, amend. VI. At the time of the Kentucky Supreme Court’s ruling in 1996, Confrontation Clause challenges were analyzed according to the rule in Ohio v. Roberts — that hearsay statements by unavailable declarants were only admissible if they bore “adequate indicia of reliability,” by either 1) “falling] within a firmly rooted hearsay exception,” or 2) possessing “particularized guarantees of trustworthiness.” 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). As for the first possibility, the Supreme Court “[had] recognized that statements admitted under a ‘firmly rooted’ hearsay exception [were of a sort] so trustworthy that adversarial testing would add little to their reliability,” Idaho v. Wright, 497 U.S. 805, 820-21, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). For example, dying declarations were declared admissible by the 1895 case of Mattox v. United States — notwithstanding the obvious Confrontation Clause problems — because “the sense of impending death [was] presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath.” 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409. As for the second possibility, statements bearing “particularized guarantees of trustworthiness,” such statements had to be “at least as reliable as evidence admitted under a firmly rooted hearsay exception,” Wright, 497 U.S. at 821, 110 S.Ct. 3139; and in assessing that reliability, courts were forbidden to consider corroborating evidence. Id. at 822, 110 S.Ct. 3139 (rejecting the “contention that evidence corroborating the truth of a hearsay statement [could] properly support a finding that the statement bears ‘particularized guarantees of trustworthiness’ ”). Instead, “[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant [had to] possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Id.

By the time of Fulcher’s direct appeal, the Supreme Court had several times examined the hearsay exception for statements against penal interest. In Lilly v. Virginia, 527 U.S. 116, 133, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999),⁴ a case following Fulcher’s direct appeal, the court identified three situations in which declarations against penal interest were offered into evidence: “(1) as voluntary admissions against the declarant; (2) as exculpatory evidence offered by a defendant who claims the declarant committed, or was involved in, the offense; and (3) as evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant.” Id. at 127, 119 S.Ct. 1887. We discuss each category in turn, and on the basis of Hill v. Hofbauer, 337 F.3d 706 (6th Cir.2003) (discussed below), we hold first that “accomplices’ confessions that inculpate a defendant,” Lilly, 527 U.S. at 134, 119 S.Ct. 1887, were not admissible under a firmly rooted hearsay exception according to the clearly established law at the time of Fulcher’s direct appeal.

The court in Lilly noted that statements in the first category, “voluntary admissions against the declarant,” “carr[ied] a distinguished heritage confirming their admissibility.” Id. at 127, 119 S.Ct. 1887 (citations omitted). But when the admission of such statements risked inculpating another person (such that they would border on the third category), they had been held inadmissible. Id. at 128, 119 S.Ct. 1887 (“[W]e have consistently either stated or assumed that the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not justify its use as evidence against another person.”); see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (ordering a new trial even after the jury had been instructed to consider one codefendant’s confession as evidence only against him, and not against the other codefendant); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (“Where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.”); Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (applying Bruton to bar the admission of a non-testifying codefendant’s confession even after the name of the other defendant had been redacted from it). According to the court in Lilly, the logic of such decisions was that “because the use of an accomplice’s confession ‘creates a special, and vital, need for cross-examination,’ a prosecutor desiring to offer such evidence must comply with Bruton, hold separate trials, use separate juries, or abandon the use of the confession.” 527 U.S. at 128, 119 S.Ct. 1887 (quoting Gray, 523 U.S. at 194-95, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)).

Statements in the second category, which were inculpatory to the declarant but exculpatory to the defendant, raised different constitutional concerns. Because they were offered by the accused, their admission did not implicate Confrontation Clause concerns; rather, their exclusion threatened Due Process protections. This was the message of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), which held that the Due Process Clause affords criminal defendants the right to introduce into evidence third parties’ declarations against (their own) penal interest when the statements were made under circumstances that “provided considerable assurance of their reliability.” Id. at 300, 93 S.Ct. 1038. The Kentucky Supreme Court in the Taylor case read Chambers to require that hearsay statements against penal interest be measured according to four factors: “(1) The time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is against the declarant’s penal interest; and (4) the availability of a declarant as a witness.” 821 S.W.2d at 74. But note the substantial difference in how the tests were applied: The test was created in Chambers to cabin the protections afforded to defendants by the Due Process Clause (due process prevents hearsay rules from barring the introduction of certain very reliable exculpatory confessions); it was applied by Kentucky in Taylor to allow the prosecution to offer inculpatory statements (category three) that the Kentucky court believed sufficiently reliable to not offend the Confrontation Clause. See Taylor, 821 S.W.2d at 75-76.⁵

The third category included cases, like Fulcher’s (and Lilly’s), where the government sought to introduce “a confession by an accomplice which incriminate[d] a criminal defendant.” Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). The court in Lilly first cited Lee’s holding that such statements were “presumptively unreliable.” 527 U.S. at 131, 119 S.Ct. 1887 (“[Ojver the years ..., the Court has ‘spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.’ ”) (quoting Lee, 476 U.S. at 541, 106 S.Ct. 2056). Lee did not explicitly hold that such statements were not within a “firmly rooted hearsay exception,” but it implied as much by noting that inculpatory statements by unavailable accomplices had been excluded in Bruton and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and by proceeding to examine the statements for “particularized guarantees of trustworthiness.”

In Roberts, we recognized that even if certain hearsay evidence does not fall within “a firmly rooted hearsay exception” and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a “showing of particularized guarantees of trustworthiness.” Ibid [448 U.S. at 66, 100 S.Ct. 2531, 65 L.Ed.2d 597],... Illinois’ asserted grounds for holding Thomas’ statement to be reliable with respect to Lee’s culpability simply do not meet this standard.

Lee, 476 U.S. at 543-44, 106 S.Ct. 2056 (emphasis added). As the court in Lilly noted, it would have been unnecessary for the court in Lee to seek such “particularized guarantees of trustworthiness” if the statements fell within a “firmly rooted hearsay exception.”

Our holdings in Bruton [,] ... Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), Gray v. Maryland, ... and Lee v. Illinois ... were all premised, explicitly or implicitly, on the principle that accomplice confessions that inculpate a criminal defendant are not per se admissible (and thus necessarily fall outside a firmly rooted hearsay exception), no matter how much those statements also incriminate the accomplice.

527 U.S. at 134 n. 5, 119 S.Ct. 1887. The court in Lilly thus cast the holding most relevant to Fulcher’s case as follows: “The decisive fact, which we make explicit today, is that accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence.” 527 U.S. at 134, 119 S.Ct. 1887 (emphasis added).

We held in Hill v. Hofbauer, 337 F.3d at 717, that Lilly did not announce a “new rule” of criminal procedure, and thus could apply to cases on collateral review without regard to § 2254(d)(1). See Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that in habeas cases, a subsequently decided case does not present new law if it is “dictated by precedent existing at the time the defendant’s conviction became final”). In other words, we held that what was clearly established by Lilly was, in fact, clearly established before Lilly: “Douglas, Bruton, and Lee evidence that the Supreme Court had clearly established the principle that a co-defendant’s custodial confessions are unreliable and not within a ‘firmly rooted’ hearsay exception prior to Lilly.” Hill, 337 F.3d at 717. Because Douglas (1965), Bruton (1968), and Lee (1986) all pre-date the 1996 conclusion of Fulcher’s direct appeal, the principle was clearly established by that point as well.

Kentucky disagrees, arguing on the basis of Neuman v. Rivers, 125 F.3d 315 (6th Cir.1997), and Gilliam v. Mitchell, 179 F.3d 990 (6th Cir.1999) (applying Neuman retroactively to 1994 conduct), that by the end of Fulcher’s direct appeal it was clearly established that Ash’s statement did fall into a firmly rooted hearsay exception— specifically, the hearsay exception in Feb. R. Evib. 804(b)(3) for statements against penal interest. But in Hill we distinguished both of these cases. We said that unlike the contested statements in Hill, which inculpated the defendant (as Ash’s do here), “the admitted statement [in Neuman ] did not inculpate the declarant’s accomplice, but only spoke to the declarant’s role in the crime.” 337 F.3d at 717 n. 5; see United States v. Franklin, 415 F.3d 537, 547 (6th Cir.2005) (rejecting the government’s argument that the statement against penal interest exception was firmly rooted in the Sixth Circuit because “in Neuman — the one case where this Court suggested as much — the statements at issue were made by the defendant and inculpated only himself’). And we noted that “[in Gilliam,] we gave only a cursory review of the ‘firmly rooted’ exception issue, and rested our holding alternatively on two other grounds [ie., the presence of ‘particularized guarantees of trustworthiness’ and harmless error].” Hill, 337 F.3d at 717 n. 5; see Gilliam, 179 F.3d at 994 n. 1 (expressly avoiding Neuman’s holding because the Supreme Court had recently heard oral arguments in Lilly). Thus neither Neuman nor Gilliam stand in the way of Hill’s holding that after Lee (1986) (the latest case we considered necessary to Lilly’s holding), it was clearly established that there was no firmly rooted hearsay exception for “accomplices’ confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134, 119 S.Ct. 1887.

Nor does it matter that Hill concerned statements by a declarant who was later tried for the crime to which he confessed, either as a codefendant in a consolidated trial (as in Hill), or as a sole defendant in a separate trial (as in Lilly). A prosecutor’s later decision to try a declarant does not affect whether the declarant’s statements possessed sufficient “indicia of reliability” at the time they were made. The test of whether such indicia exist references only the substance and circumstances of the hearsay statement’s declaration:

[The] standard [for determining whether a hearsay exception is firmly rooted] is designed to allow the introduction of statements falling within a category of hearsay whose conditions have proven over time “to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at a trial.

Lilly, 527 U.S. at 126, 119 S.Ct. 1887 (quoting Mattox, 156 U.S. at 244, 15 S.Ct. 337) (emphasis added). The logic of Lilly ’s holding is simply that because “an accomplice’s statements that shift or spread the blame to a criminal defendant” may evidence such a temptation for falsehood, they cannot fall within a firmly rooted hearsay exception. Lilly, 527 U.S. at 133, 119 S.Ct. 1887 (quoted in Hill, 337 F.3d at 713-14).

Having considered the clearly established law with respect to Roberts’s “firmly rooted” category, we now address the clearly established law at the time of Fulcher’s direct appeal regarding certain features of the “particularized guarantees of trustworthiness” inquiry. First, as noted above, Wright prohibited courts from considering corroborating evidence when seeking such “guarantees.” Second, Lee guided courts to question the reliability of confessions elicited by custodial police interrogation, given the incentives that declarants in such circumstances face:

Although ... the confession was ... voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the confession was also free from any desire, motive, or impulse Thomas may have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate Lee’s involvement in retaliation for her having implicated him in the murders.

Lee, 476 U.S. at 544, 106 S.Ct. 2056. Because of the presence of such incentives, the court in Lee held that the custodial statements in that case were not supported by “particularized guarantees of trustworthiness.” Moreover, as Lilly would later note,

[T]he historical underpinnings of the Confrontation Clause and the sweep of our prior confrontation cases offer one cogent reminder: It is highly unlikely that the presumptive unreliability that attaches to accomplices’ confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice — that is, when the government is involved in the statements’ production, and when the statements describe past events and have not been subjected to adversarial testing.

527 U.S. at 137, 119 S.Ct. 1887. Similarly, Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (interpreting Federal Rule of Evidence 804(b)(3) to not allow the admission of an accomplice’s statement against his penal interest that inculpated the defendant), suggested (in dicta) that the motivation of a declarant to limit her own liability was relevant to the constitutional inquiry. Although it acknowledged that “the very fact that a statement is genuinely self-inculpatory is itself one of the ‘particularized guarantees of trustworthiness’ that makes a statement admissible under the Confrontation Clause,” id. at 605, 114 S.Ct. 2431 (emphasis added), it noted that whether a statement was in fact self-inculpatory could be hard to discern, since “[a] reasonable person ... might even think that implicating someone else would decrease his practical exposure to criminal liability, at least so far as sentencing goes.” Id. at 604, 114 S.Ct. 2431.

To summarize, at the time the Kentucky Supreme Court affirmed Fulcher’s conviction (1996), Roberts (1980) had identified the two ways that hearsay statements by an unavailable declarant could be admitted without violating the Confrontation Clause: either via a “firmly rooted hearsay exception,” or with “particularized guarantees of trustworthiness.” Though it was not made explicit until Lilly (1999), Lee (1986) had implied that there was no firmly rooted exception for “accomplices’ confessions that inculpate a criminal defendant.” Lilly, 527 U.S. at 134, 119 S.Ct. 1887. In particular, Lee held that such statements were “presumptively unreliable” and required an examination of the facts for indicia of reliability. In that examination, according to Wright (1990), the evidence had to “possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” 497 U.S. at 822, 110 S.Ct. 3139. And as for what a court should look to as an indication of reliability, in the case of a police interrogation, it included evidence that might rebut the “reasonable” possibility that the declarant thought that “implicating someone else would decrease his practical exposure to criminal liability, at least as far as sentencing goes.” Williamson, 512 U.S. at 604, 114 S.Ct. 2431. Finally, it was clearly established that Chambers (1973) pertained to a defendant’s right under the Due Process Clause to offer exculpatory hearsay, rather than the state’s right to offer inculpatory hearsay without violating the Confrontation Clause.

The Kentucky Supreme Court’s Decisional Rule. Fulcher’s brief to the Kentucky Supreme Court challenged the admission of Ash’s statements as violating Fulcher’s Confrontation Clause rights, but it did so by contending that the trial court misapplied the four-factor test from Taylor and Chambers.⁶ The Kentucky Supreme Court in turn rejected Fulcher’s Confrontation Clause challenge solely by concluding that the trial court applied the Taylor test correctly. The court cited neither Roberts, nor Lee, nor Wright. (J.A. 98-101.)

On the first factor of the Taylor test, “the time of the declaration and the party to whom made,” the court found that “the time of the declaration and the party to whom it was made are indeed indicative of the statements’ trustworthiness, particularly in light of the fact that Ash spoke with police shortly after the crimes at issue had occurred.” (J.A. 100.) On the second, “the existence of corroborating evidence in the case,” the court found two pieces of corroborating evidence: the key, which the police found in the location that Ash had suggested (combined with Wright’s testimony that Fulcher was present when disposing of the key was discussed); and “evidence found at the crime scene” — presumably blood — that was “consistent with Ash’s statement that [Fulcher] had blood on his clothes.” (J.A. 100-01.) Regarding the third, “the extent to which the declaration is against the declarant’s penal interest,” the court found that Ash’s declaration was against her penal interest because Ash was in a custodial setting, advised of her rights, made aware that the police were investigating Fulcher’s involvement in the murder, and not assured that she herself was not a suspect until after she made her statements. Moreover, the court found, Ash believed that her statements would expose her to criminal liability — for destroying evidence and disposing of the fruits of a crime — because she thought that Fulcher had been in a fight when she washed his sweatpants, and because she believed the true owner was seeking the key that she had discarded. (J.A. 101.) The fourth factor of the Taylor test, “the availability of a declarant as a witness,” was undisputed. (Id.)

Inconsistency Betioeen the Kentucky Rule and Clearly Established Federal Law. The state correctly notes that the Kentucky court’s failure to cite Roberts, Lee, or Wright in its opinion is irrelevant to whether its decision was contrary to federal law, provided that “neither the reasoning nor the result ... contradicts [those cases].” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). However, as Fulcher notes, Taylor’s four-factor test, and the Kentucky Supreme Court’s application of it, were contrary to the reasoning and the result that federal law required in at least two ways.

First, the four-factor test required that statements against penal interest be corroborated by the very sort of extrinsic evidence that Wright forbade courts to consider when seeking the “particularized guarantees of trustworthiness” necessary to support hearsay that did not fall within a firmly rooted hearsay exception. Wright instructed courts to identify indicia of inherent reliability — without regard to “other evidence at trial” — before admitting hearsay statements by unavailable declarants. 497 U.S. at 822, 110 S.Ct. 3139. The Kentucky court directly contravened this rule with its references to the key, Wright’s testimony, and the evidence found at the crime scene. The Taylor test contradicted federal law because it was impossible to satisfy the demands of both.

Second, Taylor’s four-factor test allowed the admission of statements based upon a finding of trustworthiness that was inconsistent with the “particularized guarantees” required by the Supreme Court. In Lee, Williamson (a non-constitutional case), and Lilly, the court noted that the incentive that a person in police custody faces to implicate another — on the belief that doing so will limit his or her own liability — undermines the credibility of their statements. Yet in the Kentucky court’s view, the fact that Ash gave her statement to the police militated in favor of its admissibility. Similarly, one point of debate in the Kentucky courts was whether Ash was sufficiently aware of her legal jeopardy to make a statement against her penal interest. (J.A. 99.) The state argued that she was, and the Kentucky courts agreed, notwithstanding the fact that the same conclusion made it more likely that she would fabricate facts to limit her perceived liability. Once again, the Taylor rule and the constitutional standard pulled in opposite directions.

Because Ash’s statements clearly did not fall within a firmly rooted hearsay exception, and because the Supreme Court forbade courts to seek “particularized guarantees of trustworthiness” in the manner that Taylor’s four-part test required, we hold that the four-part test was “a rule that contradict[ed] the governing law.” Williams, 529 U.S. at 405, 120 S.Ct. 1495. De novo review, according to the law at the time, is accordingly appropriate.

3. Applying De Novo Review, Ash’s Statements Were Inadmissible

Much of the above discussion is relevant to a de novo review of whether Ash’s statements were admissible under federal law in 1996. Roberts commands that we seek “indicia of reliability before admitting the statements, and upon finding that statements such as Ash’s did not fall within a firmly rooted hearsay exception, the inquiry becomes whether “particularized guarantees of trustworthiness” support their admission (subject, of course, to the constraints of Wright and Lee).

The above discussion establishes that accomplice confessions that inculpate criminal defendants did not fit into a firmly rooted hearsay exception in 1996. Besides directing our attention to Neuman and Gilliam, Kentucky does not argue otherwise. In contrast, Fulcher identifies certain hearsay exceptions that were firmly rooted at the time, because they were “at least two centuries old ... [and recognized by] nearly four-fifths of the states,” White v. Illinois, 502 U.S. 346, 356 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (finding firmly rooted the exception for spontaneous declarations), or because they were recognized by the Supreme Court for over 150 years and “steeped in [Supreme Court] jurisprudence,” Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (finding firmly rooted the exception for statements by eo-eonspirators “in the course and in furtherance of the conspiracy”). Kentucky does not contend that the exception for accomplices’ confessions that inculpate criminal defendants has a similar pedigree.

We next ask whether particularized guarantees of trustworthiness, “inherent” to Ash’s statements, supported their admission. Wright, 497 U.S. at 822, 110 S.Ct. 3139. And for this we consider the substance of the statements as well as the circumstances under which Ash made them. At the trial stage, the state had the burden of proving that the statements were supported by particularized guarantees of trustworthiness. See United States. v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.1991) (“[T]he prosecution must defeat a presumption against the admissibility ... by showing that their testimony possessed ‘particularized guarantees of trustworthiness.’ ”) (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531). But “[a]t the federal stage, the habeas petitioner, not the State, has the burden of proving that the state courts were in error, not the other way around.” Hill, 337 F.3d at 712. Fulcher must thus prove that, on account of the substance and circumstances of Ash’s confession, her statements lacked the particularized guarantees of trustworthiness required by Roberts.

Fulcher contends first that Ash’s statements were unreliable because she “was viewed as an accomplice by the police.” (Appellant’s Br. 35.) As the Kentucky Supreme Court noted, “she was advised of her rights, ... made aware that police were investigating [Fulcher’s] involvement in a murder ... [and assured by the police] that she was not a suspect in the case only after she had provided police with her statement.” (J.A. 101.⁷) Fulcher concludes that “the confession exhibited insufficient guarantees of reliability” because, given Ash’s fear of liability, “it may have been in [her] best interests to tell the authorities what they wanted to hear.” (Appellant’s Br. 35 (citing Lee, 476 U.S. at 544-45, 106 S.Ct. 2056).)

Kentucky responds that Ash’s statements were sufficiently reliable to satisfy the rule in Roberts because Ash was not an accomplice to Fulcher’s crimes, but was guilty only of tampering with the evidence. Thus, Kentucky argues, “Ash’s statements were not made in a situation where she was attempting to shift or spread blame from herself to a confederate.” (Appellee’s Br. 26.) But the particular crime that Ash might have been charged with is beside the point. The threat — at the time she made her statements — that the police would charge her in the future gave her the incentive to finger Fulcher and to claim a limited role for herself. It would be anachronistic to conclude, on the basis of her claimed limited involvement, that her statements were sufficiently reliable to be admitted against Fulcher.

It is nonetheless useful to ask whether Ash’s statements were of a sort that shifted or spread blame or mitigated her own culpability because, considering how Hill distinguished Neuman⁸ there was a class of custodial hearsay statements that were admissible against a defendant, but not so directly implicating of the defendant to be of questionable reliability. Neither of Ash’s statements falls within that class. Her first statement, that she washed Fulcher’s sweatpants after he told her that he was in a fight, directly implicated him and limited her own liability by disavowing any knowledge of the murder. And her second statement, that Wright told her to throw away the key, similarly cast Wright in a guilty light, while limiting her own role. Both of these statements differ from the one at issue in Neuman, where the court admitted an out-of-court statement that inculpated only the declarant. In contrast, both of Ash’s statements implicated others.

Fulcher contends next that Ash’s statements lacked sufficient guarantees of trustworthiness because the statements were made in police custody. The substance of this argument essentially mirrors his previous one, for what renders a statement elicited by police interrogation unreliable is the fact that the circumstances offer the person in custody an opportunity to shift scrutiny away from himself or herself by implicating another. Cf. Franklin, 415 F.3d at 547-48 (allowing the admission of an accomplice’s confession because it was made “not to investigators but to his close friend ... [who] he had no reason to conclude would reveal those statements to law enforcement”).

Third, Fulcher questions the reliability of Ash’s statements because they were “made in response to the police interrogator’s leading questions.” (Appellant’s Br. 37.) In Lee, the Supreme Court found a statement against penal interest unreliable in part because it was an “unsworn statement ... given in response to the questions of police, who ... knew what they were looking for, and ... was not tested in any manner by contemporaneous cross-examination.” 476 U.S. at 544, 106 S.Ct. 2056. Here, while the police officer’s questions do not appear to be particularly “leading,” they are more leading than would typically be allowed in an adversarial proceeding.⁹ And as ' Wright noted, statements allowed in under the “particularized guarantees” exception had to be “so trustworthy that adversarial testing would add little to their reliability.” Wright, 497 U.S. at 821, 110 S.Ct. 3139.

Finally, Fulcher cites two cases, United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir.1991), and Calvert v. Wilson, 288 F.3d 823 (6th Cir.2002), in which the Sixth Circuit held certain accomplice confessions inadmissible for violating the Confrontation Clause. In Gomez-Lemos, this court noted that “ ‘once partners in a crime recognize that the “jig is up,” they tend to lose any identity of interest and immediately become antagonists rather than accomplices.’ ” 939 F.2d at 330 (quoting Lee, 476 U.S. at 544-45, 106 S.Ct. 2056). And in Calvert, a ease that parallels Hill, this court found insufficient guarantees of trustworthiness because, “[l]ike the accomplice in Lee, [the declarant] made his statements under the supervision of governmental authorities, in response to police officers’ leading questions, which were asked without any contemporaneous cross-examination by adverse parties.” 288 F.3d at 832.

Considering the circumstances of Ash’s statements (police custody and interrogation, leading questions, and the police officers’ suspicion of her wrongdoing) together with the substance of those statements (inculpating Fulcher and limiting her involvement with the crimes), we find that Ash’s statements lacked “particularized guarantees of trustworthiness.” In light of our conclusion that the statements did not fall under a firmly rooted hearsay exception, we hold that it was error to admit them.

4. The Kentucky Supreme Court’s Error Was Not Harmless

“[Constitutional error is cause for federal habeas relief only if it has ‘a substantial and injurious effect or influence in determining the jury’s verdict.’ ” Hill, 337 F.3d at 718 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

In determining whether Confrontation Clause error is harmless ..., the reviewing court should consider: “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, ... and, of course, the overall strength of the prosecution’s case.”

Hill, 337 F.3d at 718 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)) (second alteration in original). And in contrast to what may be used to determine whether an error occurred, a court may consider corroborating evidence to determine whether the error was harmless. Wright, 497 U.S. at 823, 110 S.Ct. 3139. Neither side has the “burden” of proving that the error was harmless (or not), but when “the record is so evenly balanced” that “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.” O’Neal v. McAninch, 513 U.S. 432, 436-37, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); cf. Murillo, 402 F.3d at 793 (finding that the brevity of the State’s argument for harmlessness “makes it impossible [for the court] to say that the [erroneously admitted] statement ... was unlikely to have had a substantial and injurious effect on the verdict”).

Fulcher notes that the prosecution’s case was “entirely circumstantial” and that no physical evidence linked Fulcher to the crime scene or the crime: no fingerprints, no clothing stained with the victim’s blood, no traces of the victim’s blood in Fulcher’s car, and no murder weapon. Kentucky responds by arguing that the error was harmless for several reasons:

[1] [A]n eye witness/accomplice, Terry Wright, testified about Fulcher’s conduct which he personally observed, in killing the victim and leaving the victim’s premises with blood on Fulcher’s clothing; [2] two other witnesses testified that Fulcher made statements to them amounting to an admission that he had killed the victim; [3] a third person testified that Fulcher had offered him a bribe in order to provide an alibi; and [4] Fulcher made incriminating statements to two police officers.

(Appellee’s Br. 16.) We consider each of Kentucky’s pieces of evidence in turn.

First, given our discussion above about reliability, we view Wright’s testimony with some skepticism. As Fulcher notes, Wright was an alleged accomplice and an admitted drug user and dealer; “he admitted to being at the victim’s house when money was stolen on a number of previous occasions;” “[h]e had the victim’s blood on his clothing;” and “he was the only person seen at the victim’s house at the time.” (Appellant’s Br. 43.) He thus had a substantial interest in shifting blame to Fulcher. Although we do not question that it was the jury’s responsibility to assess Wright’s credibility (including how well his testimony held up on cross-examination), we must consider the likelihood that Ash’s statements bolstered Wright’s account in the jury’s eyes. Without Ash’s account of washing the blood off of Fulcher’s sweatpants, nothing would have physically connected Fulcher to the crime. Wright, about whom there existed ample physical evidence, would have provided the only link.¹⁰

Next, Kentucky cites the testimony of two persons to whom Fulcher allegedly admitted committing the crime. Fulcher notes that both were “jailhouse snitches,” whose testimony should be given little weight. See Zappulla v. New York, 391 F.3d 462, 470 n. 3 (2d Cir.2004); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.1993) (questioning the reliability of criminal informant testimony). Kentucky offers no response.

Kentucky’s third item of evidence supporting a finding of harmlessness, Fulcher’s effort to bribe someone to offer an alibi, shows only that Fulcher hoped (by illicit means) to avoid liability. Yet this same thinking motivates all defendants who hire lawyers. Fulcher’s attempted bribery demonstrates that given Wright’s testimony and the possible admission of Ash’s statements, he (quite understandably) feared conviction. The bribe adds no independent evidence connecting Fulcher to the crime.

Kentucky’s final item of evidence, Fulcher’s incriminating statements to police officers, is insufficiently developed to deserve further consideration. The state offers no specificity as to what such statements declared.

Kentucky also cites to the five-factor test of harmlessness in Stapleton v. Wolfe, 288 F.3d 863, 867-68 (6th Cir.2002), which instructs courts to consider:

(1) the importance of the witness’ testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution’s case.

(citations and quotation marks omitted). Kentucky does not explain how those factors would apply to this case, but Fulcher argues that they weigh against a finding of harmlessness. First, Fulcher contends the importance of Ash’s statements was demonstrated by the jury asking to rehear the tape of Ash’s statements and rendering its verdict half an hour later. (Kentucky chalks this up to perhaps their difficulty in understanding the audio, though at oral argument the state could offer no foundation for this suggestion.) Second, Fulcher contends that Ash’s statements were not cumulative because no other evidence went to Fulcher’s alleged effort to destroy evidence or connected the parties to the discarded key. Third, Fulcher notes that there was some inconsistency between Ash’s statement and Wright’s testimony: Wright testified that Fulcher was wearing either jeans or a favorite “Dolphins’ suit” on the night of the murder, whereas Ash claimed to have washed grey sweatpants. Fourth, Ash was never cross-examined. And fifth, Fulcher noted that even after Ash, all of the remaining witnesses had a motive to lie.

Viewing the totality of the evidence, we cannot reject the possibility that the admission of Ash’s statements had “a substantial and injurious effect or influence in determining the jury’s verdict,” and we have “grave doubt” that they did not. Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (citation and quote omitted). Ash’s statements bolstered the only direct account of Fulcher’s involvement in the crime and connected to him the only physical (albeit circumstantial) evidence in the government’s case. Moreover, the most logical reason as to why the jury asked to rehear the tape of Ash’s interview was that they did not consider Wright’s direct testimony alone to be sufficient for a guilty verdict. Finally, the Kentucky Supreme Court (applying the wrong standard) believed that the admissibility of Ash’s statements was a “close call.” (J.A. 102.) Kentucky may well have taken the risk that the verdict would be reversed for submitting Ash’s statements because it “expected [the statements] to have punch and doubted the sufficiency of other evidence.” Murillo, 402 F.3d at 793. For these reasons, we are unable to hold harmless the erroneous admission of Ash’s statements.

C. Crawford Retroactivity

Fulcher contends that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), announced a “watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,” O’Dell v. Netherlands 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (citations omitted), and thus warrants retroactive application to Fulcher’s case. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A panel of the Sixth Circuit rejected this conclusion in Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005), but without substantial analysis.¹¹ Given our decision to order that the writ be granted on the basis of pre-Crawford law, we find it unnecessary to address whether Crawford announced a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,” or Judge Clay’s concern that the analysis in Dorchy was insufficiently thorough to bind later panels of this court.

III. Conclusion

We hold that the admission of Ash’s statements violated Fulcher’s rights under the Confrontation Clause of the Sixth Amendment. Because we are unable to conclude that such error was harmless, we REVERSE the district court’s judgment and REMAND for entry of the writ.

1 . Kentucky's pre-1992 rules of evidence, including the marital privilege in Ky. Rev. Stat. Ann. § 421.210(1), see Slaven v. Commonwealth, 962 S.W.2d 845, 851 (Ky.1997), are carried forward for later trials of pre-1992 crimes by Kentucky Rule of Evidence 107(b) (2005).

2 . Taylor requires courts considering the admissibility of hearsay statements against penal interest to examine: "(l)[t]he time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is against the declarant's penal interest; and (4) the availability of a declarant as a witness.” 821 S.W.2d at 74.

3 . Fulcher does not put forth an argument under the "unreasonable application” clause.

4 . Though this was a plurality opinion, it was nonetheless the opinion of the court, as the remaining two justices (Scalia and Thomas) believed that the Confrontation Clause barred a broader range of statements against penal interest than did the majority. See Murillo v. Frank, 402 F.3d 786, 791 (7th Cir.2005). Kentucky is wrong to suggest otherwise.

5 . There is no reason to think that the Constitution demands equivalence in these tests. Defendants may very well have a Due Process right to introduce hearsay evidence in their defense that is less reliable than the evidence that prosecutors may introduce in their case in chief without violating the Confrontation Clause. Put differently, the Constitution may afford defendants greater protection from inculpatory hearsay evidence (under the Confrontation Clause) than it provides to the state by limiting the exculpatory hearsay evidence that defendants have á Due Process right to present in their defense.

6 . See supra, note 2.

7 . Remember that in the Kentucky courts, the state argued that Ash's statements were so clearly against her penal interest as to demonstrate their reliability. Because the constitutional test pushes in the opposite direction from the state’s, Fulcher is able to co-opt the Kentucky court’s adverse judgment below.

8 . See supra.

9 . Consider the following exchanges between Ash and Detective Jones. Regarding Fulcher and Wright’s relationship:

Det. Jones: [S]o you was to say [sic] that Elem and Terry are pretty good friends among each other ... would that be a fair statement to say?

Ash: I'd say it was a fair statement, I mean ... I guess so ... I mean I wouldn't consider him one of Ray’s best friends, if that's what you mean, no.

Det. Jones: But they pretty much hang out, hang around together?

Ash: Sometimes ... when Terry decides he wants to come around for awhile.

(J.A. 150.) And regarding when Fulcher asked her to wash his pants:

Det. Jones: Okay, do you remember what day that this was?

Ash: No I don't ... can't really. I, I know it was before the holidays, but I don’t remember the date.

Det. Jones: Right before Christmas? Ash: Around Christmas ...

(J.A. 143.)

10 . Cf. Stapleton v. Wolfe, 288 F.3d 863, 867-68 (6th Cir.2002). In Stapleton, there were three accomplices in a string of burglaries: Stapleton, Studer, and Foreman. Studer made several out-of-court statements inculpating Stapleton. In addition, Foreman testified at trial that Stapleton had played a substantial role. The trial court allowed Studer's statements to be admitted, which the Sixth Circuit held to violate Stapleton's confrontation right. The panel further found that the error was not harmless, notwithstanding Foreman’s testimony at trial. The court rejected the state's arguments that Studer's statements were (a) unimportant, given Foreman's testimony; (b) cumulative, in light of Foreman’s testimony; and (c) reliable, because they were corroborated by Foreman's testimony.

11 . To this point, four other circuits have addressed whether Crawford applies retroactively to cases on collateral review. Three have held that it does not apply retroactively. See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir.2005) (April 1, 2005); Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir.2005) (April 7, 2005); Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir.2004); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004). One has held that it does. See Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir.2005), amended in part by Bockting v. Bayer, 399 F.3d 1010 (9th Cir.2005). In that one case a petition for a writ of certiorari was filed on November 7, 2005 and currently pends. See 2005 WL 3038541.