Fulcher v. Motley

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0138p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

ELEM RAY FULCHER,

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No. 03-6216

v.

,

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JOHN MOTLEY, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 02-00674—Charles R. Simpson III, District Judge.

Argued: December 2, 2005

Decided and Filed: April 18, 2006

Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge.*

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COUNSEL

ARGUED: Chad A. Readler, JONES DAY, Columbus, Ohio, for Appellant. Ian G. Sonego,

OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Chad

A. Readler, Marc A. Fulkert, JONES DAY, Columbus, Ohio, for Appellant. Ian G. Sonego,

OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. Gerald L. Gulley,

Jr., GULLEY OLDHAM, PLLC, Knoxville, Tennessee, for Amicus Curiae.

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

(pp. 18-34), delivered a separate concurring opinion.

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OPINION

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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

*

The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by

designation.

1

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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 (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.

1

Kentucky’s pre-1992 rules of evidence, including the marital privilege in KY. REV. STAT. ANN. § 421.210(1),

see Sloven 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).

No. 03-6216 Fulcher v. Motley Page 3

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 (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 (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 (1986)

(holding that inculpatory hearsay statements by accomplices are “presumptively unreliable”), and

Idaho v. Wright, 497 U.S. 805, 822 (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

No. 03-6216 Fulcher v. Motley Page 4

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 (1999), and

Williamson v. United States, 512 U.S. 594 (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-

Crawford 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

2

Taylor requires courts considering the admissibility of hearsay statements against penal interest to examine:

“(1) [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.

No. 03-6216 Fulcher v. Motley Page 5

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.”).

No. 03-6216 Fulcher v. Motley Page 6

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 established3 Federal law, as determined by the Supreme Court of the United States[.]” 28

U.S.C. § 2254(d)(1). “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 (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 (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 (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.

When a state court commits such an error, “a federal court [is] unconstrained by § 2254(d)(1),” id.

at 406, 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

3

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

No. 03-6216 Fulcher v. Motley Page 7

either 1) “fall[ing] within a firmly rooted hearsay exception,” or 2) possessing “particularized

guarantees of trustworthiness.” 448 U.S. 56, 66 (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 (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. 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; and in assessing that reliability, courts were

forbidden to consider corroborating evidence. Id. at 822 (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

hearsay4 exception for statements against penal interest. In Lilly v. Virginia, 527 U.S. 116, 133

(1999), 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. 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, 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

(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

(“[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 (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 (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 (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 (quoting Gray, 523 U.S. at 194-95 (1998)).

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.

No. 03-6216 Fulcher v. Motley Page 8

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 (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. 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 (1986). The court in Lilly first cited Lee’s holding that such

statements were “presumptively unreliable.” 527 U.S. at 131 (“[O]ver 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). 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 (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]. . . . 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 (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 (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.

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 a Due Process

right to present in their defense.

No. 03-6216 Fulcher v. Motley Page 9

527 U.S. at 134 n.5. 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 (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 (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 FED. R. EVID.

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 [i.e., the presence

of “particularlized 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.

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 (quoting Mattox, 156 U.S. at 244) (emphasis added). The logic of Lilly’s

holding is simply that because “an accomplice’s statements that shift or spread the blame to a

No. 03-6216 Fulcher v. Motley Page 10

criminal defendant” may evidence such a temptation for falsehood, they cannot fall within a firmly

rooted hearsay exception. Lilly, 527 U.S. at 133 (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. 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. Similarly, Williamson v. United States, 512 U.S. 594 (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 (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.

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. 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. 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. Finally, it was clearly established that Chambers (1973) pertained to a defendant’s right

No. 03-6216 Fulcher v. Motley Page 11

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 Between 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 (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. 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

6

See supra, note 2.

No. 03-6216 Fulcher v. Motley Page 12

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. 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

(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 (1987) (finding firmly rooted the

exception for statements by co-conspirators “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. 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). 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

No. 03-6216 Fulcher v. Motley Page 13

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).)

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 Neuman,8 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.

Here, while the police officer’s questions do not appear to be particularly9“leading,” they are more

leading than would typically be allowed in an adversarial proceeding. And as Wright noted,

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?

No. 03-6216 Fulcher v. Motley Page 14

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.

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). And in Calvert, a case 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

“[C]onstitutional 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 (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 (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. 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,

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.)

No. 03-6216 Fulcher v. Motley Page 15

513 U.S. 432, 436-37 (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.

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.

No. 03-6216 Fulcher v. Motley Page 16

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 (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 (2004), announced a “watershed

rule[] of criminal procedure implicating the fundamental fairness and accuracy of the criminal

proceeding,” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (citations omitted), and thus warrants

retroactive application to Fulcher’s case. Cf. Teague v. Lane, 489 U.S. 288 (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,”

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, No. 02-15866, 2005 U.S. App.

LEXIS 9976 (9th Cir. June 1, 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.

No. 03-6216 Fulcher v. Motley Page 17

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.

No. 03-6216 Fulcher v. Motley Page 18

______________________

CONCURRENCE

______________________

CLAY, Circuit Judge, concurring. I write separately because I believe that Crawford v.

Washington, 541 U.S. 36 (2004), establishes a watershed rule in criminal procedure requiring

retroactive application under the Supreme Court’s retroactivity analysis in Teague v. Lane, 489 U.S.

288 (1990). Crawford’s retroactive application therefore makes Crawford the “clearly established”

federal law at the time of direct review. When Crawford is applied to the facts of this case,

Petitioner’s Sixth Amendment rights under the Confrontation Clause were violated when his wife’s

taped statement was admitted into evidence. Because this error was not harmless, a writ of habeas

corpus should be granted.

I.

BACKGROUND

On December 22, 1991, the beaten and stabbed body of Charlie Bramer was discovered in his

home in Jefferson County, Kentucky. After an investigation, Petitioner was charged with and

convicted of the crime.

At Petitioner’s jury trial, the State of Kentucky relied largely on testimonial evidence for

Petitioner’s conviction. The State put inmates on the witness stand who testified that Petitioner had

told them, in jailhouse conversations, that he had committed the murder. The State also put Terry

Wright on the stand. Wright had confessed to helping Petitioner commit the murder, alleging that

Wright and Petitioner went to the victim’s home in order to rob the victim, but that the victim

discovered Wright and Petitioner during the course of the robbery and chased them out of the house.

Wright further testified that Wright and Petitioner later returned to the victim’s home and Wright

waited outside while Petitioner entered the home. When Wright entered the home several minutes

later, Wright alleges that he found Petitioner attacking the victim with a hammer. Wright testified

that he made an unsuccessful attempt to stop Petitioner.

The state also called Patricia Ash Fulcher (“Ash”) to testify against Petitioner. Ash had given

the police a statement shortly after the investigation into the crime began, but had since married

Petitioner, asserted spousal privilege under Kentucky Rule of Evidence 107(b), and refused to testify

against Petitioner. The state played Ash’s tape-recorded statement to the police for the jury, albeit

over the objections of Petitioner’s counsel. The trial court ruled that the statement was admissible

as an exception to the hearsay rule as a statement against penal interest because the contents of Ash’s

statements inculpated both Petitioner and Ash herself.

Ash’s statement had been made while in the custody of the Jefferson County police. Ash was

stopped on January 2, 1992 while driving a car that matched the description of Petitioner’s

automobile. The police impounded the car and took Ash in for questioning. The police read Ash her

Miranda rights and proceeded to question her.

During the course of questioning, Ash revealed that over the course of the December 1991

holidays, Petitioner had arrived home late one evening and asked Ash to wash the clothes Petitioner

had been wearing. Ash indicated that there were some spots of blood on the pants, and that Petitioner

explained the blood by saying that he had been in a fight. Ash also stated that Terry Wright, also

present at the time, asked Ash to dispose of a key. Ash admitted that she threw the key into the

sewers, where police subsequently recovered it and confirmed that the key belonged to the victim.

No. 03-6216 Fulcher v. Motley Page 19

Police found no evidence at the victim’s house to link Petitioner to the crime scene. A murder

weapon was never recovered.

During jury deliberations, the jury requested both Ash’s tape recorded statement and a tape

recorder. Within an hour of hearing the tape, the jury returned with a conviction. After unsuccessful

direct appeals and collateral attacks in state court, Petitioner now requests habeas relief on the basis

of this improperly admitted evidence.

II.

CRAWFORD ANALYSIS

This Court reviews the decision of the district court to deny a writ of habeas corpus de novo.

Allen v. Yukins, 366 F.3d 396, 399 (6th Cir. 2004) (citing Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.

2000)).

A. Crawford’s Retroactivity Is an Issue of First Impression in This Circuit

The lead opinion opines that this Court has already ruled that Crawford does not apply

retroactively. It is true that panels of this Court are bound by the published decisions of prior panels

as controlling precedent. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.

1985). The Dorchy v. Jones case cited in the lead opinion, however, does not actually treat

Crawford’s retroactivity sufficiently to bind subsequent panels of this Court. This Court’s entire

treatment of Crawford in that case consists of the following:

Under most circumstances, however, newly promulgated rules of criminal procedure

do not apply retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288,

305-11 . . . (1989) (holding that a habeas petitioner could not benefit from a recent

Supreme Court decision declaring racially-based peremptory challenges invalid,

because that decision could not be applied retroactively to cases on collateral review)

. . . . Teague thus prohibits [petitioner] from availing himself of the new rule

articulated in Crawford. The question before us is therefore whether the analysis by

the [state court] was contrary to, or involved an unreasonable application of, Roberts.

Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005). The Dorchy panel did not subject Crawford to

the Teague retroactivity analysis.1 These two sentences are dicta and do not go to the holding of the

case. In fact, the Dorchy panel affirmed the district court’s grant of a writ because the Court found

the state court’s ruling to have been an “unreasonable application of” clearly established

confrontation clause jurisprudence under Roberts at the time of the state court decision. See id. at

791. Subsequent panels of this Court are not bound by prior panels on issues not actually reached

by those prior panels. Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 298 (2005).

B. The Crawford Holding

The Supreme Court’s 2004 decision in Crawford v. Washington overruled the Roberts indicia

of reliability test for mutually inculpatory statements. See 541 U.S. at 68. In Crawford, the state

sought to admit a statement made by the criminal defendant’s wife shortly after the crime in question

occurred. Id. at 40. The statement was made to the police while the wife was in a custodial setting

1

In fact, this is just the sort of “drive-by” “holding” that Justice Scalia has decried as meriting no precedential

value, although sometimes understandable in light of the particular facts before the issuing panel. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (stating that a prior court’s summary assumption of jurisdiction

without analytical support held no precedential effect and indicating that such treatments are dicta).

No. 03-6216 Fulcher v. Motley Page 20

and tended to inculpate the wife, insofar as it showed that she facilitated her husband’s commission

of the crime. See id. In the state of Washington, spousal privilege does not extend to out-of-court

statements admissible under an exception to the hearsay rule. Id. The trial court admitted the

statement under the “against penal interest” exception to the hearsay rule. Id.

The Supreme Court of Washington upheld the conviction and the propriety of the statement’s

admission under the Roberts indicia of reliability test. Id. at 41-42. On direct review, the United

States Supreme Court reversed, finding that Roberts had proven too nebulous a standard for the lower

courts to employ in insuring that rights under the Confrontation Clause were properly guaranteed.

Id. at 68-69. The Court concluded that “[w]here testimonial statements are at issue, the only indicium

of reliability sufficient to satisfy constitutional concerns is the one the Constitution actually

prescribes: confrontation.” Id. at 69.

In reaching its conclusion, the Supreme Court expanded on the principles underlying the

Confrontation Clause:

First, the principal evil at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused. It was these practices that . . . English

law’s assertion of a right to confrontation was meant to prohibit; and that the

founding-era rhetoric decried. The Sixth Amendment must be interpreted with this

focus in mind.

Accordingly, we once again reject the view that the Confrontation Clause applies of

its own force only to in-court testimony, and that its application to out-of-court

statements introduced at trial depends upon “the law of Evidence for the time being.”

3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94 (1970) (Harlan,

J., concurring in result). Leaving the regulation of out-of-court statements to the law

of evidence would render the Confrontation Clause powerless to prevent even the

most flagrant inquisitorial practices . . . .

This focus also suggests that not all hearsay implicates the Sixth Amendment’s core

concerns. An off-hand, overheard remark might be unreliable evidence and thus a

good candidate for exclusion under hearsay rules, but it bears little resemblance to the

civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte

examinations might sometimes be admissible under modern hearsay rules, but the

Framers certainly would not have condoned them.

....

Where testimonial statements are involved, we do not think the Framers meant to

leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much

less to amorphous notions of “reliability.” Certainly none of the authorities discussed

above acknowledges any general reliability exception to the common-law rule.

Admitting statements deemed reliable by a judge is fundamentally at odds with the

right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability

of evidence, but it is a procedural rather than a substantive guarantee. It commands,

not that evidence be reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination. The Clause thus reflects a judgment,

not only about the desirability of reliable evidence (a point on which there could be

little dissent), but about how reliability can best be determined. Cf. 3 Blackstone,

Commentaries, at 373 (“This open examination of witnesses . . . is much more

conducive to the clearing up of truth”) . . . .

No. 03-6216 Fulcher v. Motley Page 21

....

Where testimonial evidence is at issue . . . the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.

We leave for another day any effort to spell out a comprehensive definition of

“testimonial.” Whatever else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations. These are the modern practices with closest kinship to the

abuses at which the Confrontation Clause was directed.

Crawford, 541 U.S. at 36, 51, 61-62, 68.

Respondent does not dispute that had Crawford come out prior to the final disposition of

Petitioner’s case on direct review, the Court’s holding would have applied to Petitioner’s case.

C. Watershed Rules in Criminal Procedure

As a general rule, new rules of criminal procedure do not have retroactive effect and are

unavailable for use in a collateral attack to a criminal conviction. See Teague, 489 U.S. at 316. The

Supreme Court has set forth an exception to this general rule, however: when the new rule represents

a “watershed rule” of criminal procedure. Id. The only example of such a watershed rule ever cited

by a majority of the Court since issuing the Teague decision is the right to counsel, as set forth in

Gideon v. Wainwright, 372 U.S. 335 (1963).

The Court has explained that a “watershed rule” is a rule which goes to the “fundamental

fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495 (1990). The

procedure at issue would be “central to an accurate determination of innocence or guilt . . . .”

Teague, 489 U.S. at 313. “That the new procedural rule is ‘fundamental’ in some abstract sense is

not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously

diminished.’” Schriro v. Summerlin, 542 U.S. 348, 125 S.Ct. 2519, 2523 (2004) (quoting Teague, 489

U.S. at 313) (emphasis in original). “A rule that qualified under this [watershed rule] exception must

not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’

essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting

Teague, 489 U.S. at 311).

To date, the Supreme Court has yet to announce a “watershed rule” of criminal procedure

since Teague. Indeed, the Teague decision noted that the Court doubted whether there were many

fundamental tenets of due process that were yet to be discovered. 489 U.S. at 313. The Teague Court

itself found that the fair cross section requirement for jury venire did not merit retroactive application.

Id. at 314.

Since Teague, the Supreme Court has consistently refused to apply new rules in capital

sentencing in a retroactive fashion. The Sawyer Court dealt with a new rule requiring a sentencing

reversal when a prosecutor’s remarks to the jury tended to diminish the jury’s responsibility in

recommending a death sentence. See Sawyer, 497 U.S. at 244-45. The Court reasoned that because

the new rule was a prophylactic one which benefitted criminal defendants only insofar as those

defendants could not make the requisite showing of fundamental unfairness under the previously

applicable standard, the rule therefore was not an “‘absolute prerequisite to fundamental fairness.’”

Id. (quoting Teague, 489 U.S. at 314.) Similarly, in Graham v. Collins the Court reasoned that the

denial of special jury instructions on mitigation factors during the capital sentencing phase did not

“‘seriously diminish[] the likelihood of obtaining an accurate determination’ in [the defendant’s]

sentencing proceeding.” 506 U.S. 461, 478 (1993) (quoting Butler v. McKellar, 494 U.S. 407, 416

(1990)); see also O’Dell v. Netherland, 521 U.S. 151, 167 (1997) (refusing to grant retroactive

application of a new rule requiring trial courts to allow capital defendants to rebut prosecutions’

No. 03-6216 Fulcher v. Motley Page 22

assertions of continued dangerousness as a factor in death sentence consideration, when defendants

would be ineligible for parole under a life sentence); Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504,

2515 (2004) (refusing to give retroactive effect to the Court’s new rule that invalidated a state

practice of requiring juries to disregard mitigating factors not found unanimously in capital

sentencing cases).

The Court has continued to decline retroactivity in the context of capital sentencing

determinations. In Schriro, the Court ruled that its newly announced rule requiring juries, and not

judges, to find aggravating circumstances necessary for imposition of the death penalty was not a

watershed rule. Schriro, 125 S.Ct. at 2525. The Schriro Court found the evidence “too equivocal”

to support a determination that judicial factfinding so “seriously diminished” accuracy in the criminal

proceeding that there was “an impermissibly large risk of punishing conduct the law does not reach.”

Id. (internal quotations and citations omitted). The ruling in Schriro has been understood to mean

that the Court’s Apprendi decision – requiring juries to make the factual determination for anything

increasing a defendant’s sentence beyond the statutory maximum – does not state a watershed rule

in criminal procedure. Blakely v. Washington, 542 U.S. 296, 323 (2004) (“[W]e [held] in Schriro v

Summerlin . . . that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review

. . . .”).

Beyond the capital sentencing arena, the Court has found that a habeas petitioner’s proposed

rule – that one day’s notice of the state’s intention to call an opposing witness be found per se

violative of due process – “has none of the primacy and centrality of [a watershed rule] which may

be thought to be within the [Teague] exception.” Gray v. Netherland, 518 U.S. 152, 170 (1996)

(internal quotations and citations omitted). The Court has also found that a circuit court

inappropriately applied a new rule in a retroactive manner when the appeals court granted a request

for habeas corpus relief upon finding that a state practice of permitting the prosecution to resubmit

evidence of prior convictions in subsequent resentencing hearings (after having failed to prove prior

convictions at the original sentencing hearing) violated the Double Jeopardy Clause. See Caspari

v. Bohlen, 510 U.S. 383, 396-97 (1994) (acting on habeas petition). The Court reasoned that

“[a]pplying the Double Jeopardy Clause to successive noncapital sentencing is not such a ground

breaking occurrence” as to warrant retroactive application. Id. at 396.

Prior to the retroactivity standard articulated in Teague, the Court balanced prudential

concerns in determining whether a new rule should be granted retroactive effect. The Court

consistently declined to grant retroactive effect to rules designed to deter police misconduct. See

Linkletter v. Walker, 381 U.S. 618, 636-40 (1965) (the exclusionary rule to state conduct); Johnson

v. New Jersey, 384 U.S. 719, 733-35 (1966) (Miranda requirements); Solem v. Stumes, 465 U.S. 638,

650 (1984) (the invalidity of any waiver of the right to right to counsel after the invocation of such

right and before counsel can appear); Tehan v. United States, 382 U.S. 406, 416-19 (1966) (the right

of the accused not to have the prosecutor comment on the accused’s election to keep silent); Stovall

v. Denno, 388 U.S. 293, 299 (1967) (the right to counsel during pre-trial identification procedures).

Consistent with its post-Teague decisions declining to give retroactive effect to decisions

affecting the jury’s role in fact-finding, the pre-Teague Court also declined to apply retroactively its

determination that criminal defendants enjoy a right to a jury trial in state criminal prosecutions. See

Schriro, 125 S.Ct. at 2525 (discussing the Court’s refusal in DeStefano v. Woods, 392 U.S. 631

(1968), to apply Duncan v. Louisiana, 391 U.S. 145 (1968), retroactively). The Court reasoned that

if a trial without a jury was not “impermissibly inaccurate” then a judge’s determination of

aggravating factors in death penalty deliberations could not require retroactive renunciation. Id. at

2526.

In contrast, prior to Teague, the Court granted retroactive effect to a number of new rules

going to the central tenets of our criminal justice system. The Court granted retroactive effect to the

No. 03-6216 Fulcher v. Motley Page 23

right to counsel as articulated in Gideon v. Wainwright. The Court also granted retroactive effect to

the application of the Double Jeopardy Clause to the states. See Robinson v. Neil, 409 U.S. 505, 510

(1973). The Court additionally granted retroactive effect to a rule proscribing state laws which grant

the prosecution unlimited challenges for cause against any prospective juror with any reservations

about the death penalty in capital cases. See Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).

Significantly, in two pre-Teague cases, the Court twice granted retroactive effect to new rules

dealing with the Confrontation Clause. In Roberts v. Russell, 392 U.S. 293, 293 (1968) (per curiam),

the Court held that its rule articulated in Bruton v. United States, 391 U.S. 123 (1968), merited

retroactive application. The Bruton rule held that limiting jury instructions could not cure the harm

caused in a joint trial by the introduction of a codefendant’s extrajudicial confession. 391 U.S. at

135. The Court reasoned that the admission without the opportunity for cross-examination resulted

in “‘serious flaws in the fact-finding process at trial.’” Roberts, 392 U.S. at 294 (citing Stovall, 388

U.S. at 298). The Court held that the admission of the testimonial statement absent confrontation

“went to the basis of the fair hearing and trial because the procedural apparatus never assured the

[petitioner] a fair determination of his guilt or innocence.” Id. (internal citations and quotations

omitted). Similarly, in Berger v. California, 393 U.S. 314, 314-15 (1969) (per curiam), the Court

retroactively applied the rule announced in Barber v. Page, 390 U.S. 719 (1968). The Barber Court

held that states may not use at trial the prehearing testimony of a witness in lieu of live testimony

unless the state has made a good faith effort to secure the witness’ presence. Id. at 721. The Court

noted that “one of the most important objects of the right of confrontation [is] to guarantee that the

fact finder had an adequate opportunity to assess the credibility of witnesses.” Berger, 393 U.S. at

315.

In the decade and a half since Teague, the Supreme Court has yet to be confronted with a rule

akin to those presented to the Court in Gideon, Robinson, Witherspoon, Bruton, and Berger. Rather,

the Court has been asked to rule on sentencing issues which invoke either Eighth Amendment rights

in the context of capital cases or the division between judge and jury in fact-finding. The Court’s

refusal to apply these types of new rules retroactively is consistent with its pre-Teague practice. In

contrast, the rule presented in Crawford is much more analogous to those pre-Teague cases (Gideon,

Robinson, Witherspoon, Bruton, and Berger) which the Court found articulated new rules meriting

retroactive application. A holding that Crawford articulates a watershed rule in criminal procedure

is entirely consistent with the Supreme Court’s historical retroactivity jurisprudence. See supra.

D. Crawford as a Watershed Rule

1. The Circuit Split

Several circuit courts of appeal have addressed the retroactivity of Crawford. The Second,

Tenth, and Seventh Circuits have held that Crawford does not apply retroactively. The Ninth Circuit

has held that Crawford does apply retroactively and that AEDPA does not bar such retroactive

application.

The Second Circuit held in Mungo v. Duncan, 393 F.3d 327, 335-36 (2d Cir. 2004), cert.

denied sub. nom. by Mungo v. Greene, 125 S.Ct. 1936 (2005), that Crawford does not merit

retroactive application. The Second Circuit noted that the question turned on “whether the rule is

necessary to the fundamental fairness, and improves the accuracy, of criminal proceedings.” Id. at

335. The court then reasoned that the rule would preclude some unreliable testimony but would also

work to exclude previously admissible testimony which bore significant indicia of reliability. The

Second Circuit therefore concluded that the Crawford rule would not “improve the accuracy of the

trial process overall” and held Crawford to be a prospective rule only. Id. at 336. The Seventh

Circuit employed similar reasoning in also holding that Crawford was not a watershed rule of

No. 03-6216 Fulcher v. Motley Page 24

criminal procedure. See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), cert. den’d by 126 S.Ct. 174

(2005).

The Tenth Circuit also held in Brown v. Uphoff, 381 F.3d 1219 (2005), cert. den’d by 125

S.Ct. 940 (2005), that Crawford does not apply retroactively. The Tenth Circuit did not reach the

merits of the retroactivity doctrine, but held that AEDPA precluded habeas relief on the basis of any

federal law made clear only after the date of the state court decision. Id. at 1224 (reasoning that a

“new rule” under Teague was presumptively not “clearly established federal law” at the time of the

state court decision). In their decisions denying retroactivity, neither the Second nor Seventh Circuits2

addressed whether AEDPA would independently preclude application of a new rule retroactively.

The Ninth Circuit, in Bockting v. Bayer, No. 02-15866, 2005 U.S. App. LEXIS 9973 (9th Cir.

June 1, 2005), rehr’g en banc den’d by 2005 U.S. App. LEXIS 16797 (9th Cir. Aug. 11, 2005), found

Crawford to merit retroactive application. The Ninth Circuit looked to the Supreme Court’s most

recent treatment of retroactivity analysis in Schriro for lessons in determining the existence of a

watershed rule from Crawford. Bockting, 2005 U.S. App. LEXIS 9973, at *14. The Ninth Circuit

looked to Justice Scalia’s extensive treatment of the history and centrality of confrontation to our

system of justice to conclude that confrontation is a fundamental precept of our legal regime. Id. at

*15. The Ninth Circuit then looked to the Supreme Court’s historical treatment of the Confrontation

Clause, and the language accompanying its many Confrontation Clause cases, to determine that “[t]he

Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation

Clause is to promote accuracy.” Id. at *18. The Ninth Circuit reasoned that Schriro’s question of

whether the absence of confrontation “so seriously diminish[es] accuracy” was answered by

Crawford itself. Id. at *21. The Ninth Circuit pointed to language in Crawford addressing the

Roberts rule as “so unpredictable that it fails to provide meaningful protection from even core

confrontation violations.” Id. at *21.

The Ninth Circuit concluded its analysis in Bockting by again echoing the language of the

Crawford decision in noting that the “Confrontation Clause . . . reflects a judgment . . . about how

reliability can best be determined.” Id. at *22 (quoting Crawford, 124 S.Ct. at 1370). The court

considered the Second Circuit’s contrary conclusions – that the Crawford rule does not improve

overall accuracy – as an impermissible superimposition of that court’s own analysis over that of the

Supreme Court and the Constitution itself. Id. at *28 (“The flaw in this analysis is that the Second

Circuit has substituted its judgment of whether the Crawford rule is one without which the accuracy

of conviction is seriously diminished, for the Supreme Court’s considered judgment.”)

2. Crawford Merits Retroactive Application

The Teague analysis requires this Court to 1) determine whether Crawford announced a new

rule, 2) determine whether that rule was a “watershed rule” in criminal procedure, 3) apply the rule

in the case at bar (if the rule is found to be retroactive), and 4) determine whether any resulting error

was harmless. Because Ash’s statement falls squarely within the facts of Crawford, the parties do

not dispute the statement’s inadmissibility under Crawford.3

2

The First Circuit declined to reach the question of Crawford’s retroactivity in Horton v. Lane because the court

there found that the statements at issue did not implicate Crawford in the first instance. See 370 F.3d 75, 83 (2004).

In setting up its analysis, however, the First Circuit implied that AEDPA would not preclude retroactive application

when the court stated that “new rules of criminal procedure” applied in habeas cases when such rules fell within a Teague

exception. Id.

3

The central issue guiding the applicability of Crawford would be whether or not the statement was testimonial.

While the Crawford Court declined to define the boundaries of testimonial statements, it held that a “core” class of

testimonial statements includes “custodial examinations,” which the parties do not dispute was the circumstance of Ash’s

statement. Crawford, 124 S.Ct. at 1364.

No. 03-6216 Fulcher v. Motley Page 25

a. Crawford announced a new rule

Whether Crawford’s rule is new depends on whether the result was “dictated by the then-

existing precedent.” Beard, 124 S.Ct. at 2511. The Crawford Court observed that the rule of Roberts

had proven too nebulous a standard for proper application; the Court further noted that “Roberts

conditions the admissibility of all hearsay evidence on whether it falls under a ‘firmly rooted hearsay

exception’ or bears particularized guarantees of trustworthiness.” Crawford, 124 S.Ct. at 1369. The

Court then departed from precedent and held that testimonial statements may not be admitted against

a criminal defendant absent unavailability of the declarant and the right of confrontation. The

Crawford test eliminated the ability of a court to assess “particularized guarantees of trustworthiness”

of testimonial statements and admit them absent constitutional confrontation. Past precedent,

therefore, did not dictate the result in Crawford. Rather, Crawford overruled the Roberts test for

testimonial statements.

Every circuit court to address Crawford has found that Crawford sets forth a new rule. See

Bockting, 2005 U.S. App. LEXIS 9973, at *9-13; Bintz, 403 F.3d at 866; Brown, 381 F.3d at 1226;

Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (treating Crawford as creating a new rule

but finding the case inapplicable); Horton, 370 F.3d at 83. Crawford therefore announces a “new

rule.”

b. Crawford is a “watershed rule”

The Ninth Circuit’s analysis is compelling. Teague demands that a watershed rule go to

“procedures implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307. A “watershed

rule” is a rule which goes to the “fundamental fairness and accuracy of the criminal proceeding.”

Saffle, 494 U.S. at 495. The procedure at issue would be “central to an accurate determination of

innocence or guilt . . . .” Teague, 489 U.S. at 313. “That the new procedural rule is ‘fundamental’

in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an

accurate conviction is seriously diminished.’” Schriro, 125 S.Ct. at 2523 (quoting Teague, 489 U.S.

at 313). “A rule that qualified under this [watershed rule] exception must not only improve accuracy,

but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a

proceeding.” Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311).

The Ninth Circuit efficiently summarized the Supreme Court’s extensive discussion over the

years on the role of the Confrontation Clause in the American criminal justice system.

The Supreme Court has repeatedly and without deviation held that the purpose of the

Confrontation Clause is to promote accuracy. See, e.g., Crawford, 124 S. Ct. at 1370

(“This open examination of witnesses . . . is much more conducive to the clearing up

of truth.”) (quoting 3 Blackstone, Commentaries * 373); White v. Illinois, 502 U.S.

346, 355 . . .(1992) (evaluating a Confrontation Clause claim against the benchmark

of accuracy); Tennessee v. Street, 471 U.S. 409, 415 . . . (1985) (describing the

“Confrontation Clause’s very mission” as “to advance the accuracy of the

truth-determining process in criminal trials”) (internal quotation omitted); Ohio v.

Roberts, 448 U.S. 56, 65 . . . (1980) (stating the purpose of the Confrontation Clause

is to “augment accuracy in the factfinding process”); Parker v. Randolph, 442 U.S.

62, 73 . . . (1979) (plurality) (“The right of confrontation conferred by the Sixth

Amendment is a safeguard to ensure the fairness and accuracy of criminal trials.”);

Chambers v. Mississippi, 410 U.S. 284, 295 . . . (1973) (“The right of

cross-examination is more than a desirable rule of trial procedure. It is implicit in the

constitutional right of confrontation, and helps assure the ‘accuracy of the

truth-determining process.’”); Dutton v. Evans, 400 U.S. 74, 89 . . . (1970) (plurality)

(“The decisions of this Court make it clear that the mission of the Confrontation

No. 03-6216 Fulcher v. Motley Page 26

Clause is to advance a practical concern for the accuracy of the truth-determining

process in criminal trials . . . .”); Pointer v. Texas, 380 U.S. 400, 404 . . . (1965)

(“Probably no one, certainly no one experienced in the trial of lawsuits, would deny

the value of cross-examination in exposing falsehood and bringing out the truth in the

trial of a criminal case.”); Mattox v. United States, 156 U.S. 237, 242-43 . . . (1895)

(describing the “primary object” of the Confrontation Clause as “to prevent

depositions or ex parte affidavits . . . being used against the prisoner in lieu of a

personal examination and cross-examination of the witness, in which the accused has

an opportunity, not only of testing the recollection and sifting the conscience of the

witness, but of compelling him to stand face to face with the jury in order that they

may look at him, and judge by his demeanor upon the stand and the manner in which

he gives his testimony whether he is worthy of belief”). See also M. Hale, History

and Analysis of the Common Law of England 258 (1713) (adversarial testing “beats

and bolts out the Truth much better”) (quoted in Crawford, 124 S. Ct. at 1370).

“[T]he central concern of the Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversary proceeding before the trier of fact. The word ‘confront,’ after

all, also means a clashing of forces or ideas, thus carrying with it the notion of

adversariness.” Maryland v. Craig, 497 U.S. 836, 845 . . . (1990) . . . . “[T]he

combined effect of these elements of confrontation – physical presence, oath,

cross-examination, and observation of demeanor by the trier of fact – serves the

purposes of the Confrontation Clause by ensuring that evidence admitted against an

accused is reliable and subject to the rigorous adversarial testing that is the norm of

Anglo-American criminal proceedings.” Id. at 846 . . . .

Bockting, 2005 U.S. App. LEXIS 9973, at *18-21.

The Second and Seventh Circuits’ rejection of Crawford’s retroactivity is critically flawed.

Both Circuits dispute the presumption inherent in the Constitution itself. As Justice Scalia noted, the

Confrontation Clause demands that the reliability of a statement be determined via confrontation, and

not by any independent judicial determination. Crawford, 124 S.Ct. at 63. The Confrontation Clause

“commands, not that the evidence be reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about

the desirability of reliable evidence (a point on which there could be little dissent), but about how

reliability can best be determined.” Id. Any determination, by any court, that compliance with the

Confrontation Clause requirements fails to go to the accuracy of the criminal proceeding is therefore

a direct contradiction of the Clause itself and a unreasonable interpretation of the Constitution.

c. AEDPA does not preclude application

The Tenth Circuit reasoned that AEDPA precludes the retroactive application of any new rule

in criminal procedure because § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the

claim –

(1) 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

States; or

No. 03-6216 Fulcher v. Motley Page 27

(2) resulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.

The Tenth Circuit’s reasoning fails, however, to look beyond subsection (d) of § 2254 or consider

the normal implications of retroactivity.

The Supreme Court has directed lower courts to undertake both an AEDPA inquiry and a

Teague inquiry in retroactivity cases, Horn, 536 U.S. at 272, impliedly endorsing the application of

Teague in the AEDPA context. This interpretation of Supreme Court direction appears consistent

with congressional intent. An analysis of the entirety of § 2254 shows that Congress contemplated

retroactive rules in the habeas context. Section 28 U.S.C. § 2254(e) explicitly provides for their

application in proceedings involving state habeas petitions. “If the applicant has failed to develop the

factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on

the claim unless the applicant shows that . . . the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2254(e). Because

§ 2254(e) supplements the operation of § 2254(d), Congress must have considered that habeas relief

could be granted on the basis of retroactive rules.

The Tenth Circuit’s perspective also ignores the normal implications of retroactivity analysis.

Applying Crawford retroactively would make Crawford the “clearly established law at the time,”

albeit only as a legal construct, but that is always the consequence of retroactive application and why

the courts invoke the doctrine only sparingly. Therefore the appropriate analysis in this case is under

Crawford and not Ohio v. Roberts. The Supreme Court of Kentucky relied on its own test under

Taylor to admit testimonial statements from Ash against Petitioner without a right to confrontation.

Under Crawford, Petitioner should have been able to cross-examine any testimonial witness, and

absent confrontation, the admission of Ash’s statement was error. Therefore the Supreme Court of

Kentucky’s decision was “contrary to” established Supreme Court precedent in Crawford, as applied

retroactively under Teague and Schriro.

E. The Error Was Not Harmless

A Confrontation Clause violation is cause for federal habeas relief only if it has “a substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 623 (1993). This Court has held that the Brecht standard survived the enactment of AEDPA,

because “if a petitioner can pass Brecht analysis, ‘he will surely have demonstrated that the state

court’s finding that the error was harmless beyond a reasonable doubt . . . resulted from an

unreasonable application of [federal law].’” Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003)

(quoting Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999)).

Several factors inform this Court’s analysis about whether such substantial or injurious effect

or influence exist in the context of a Confrontation Clause claim, including:

‘[1] the importance of the . . . testimony in the prosecution’s case,

[2] whether the testimony was cumulative,

[3] the presence . . . 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.’

Madrigal v. Bagley, 413 F.3d 548, 552 (6th Cir. 2005) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986)). If this Court is in “grave doubt” as to whether the error was harmless, it should

“treat the error, not as if it were harmless, but as if it affected the verdict.” O’Neal v. McAninch, 513

U.S. 432, 435 (1995).

No. 03-6216 Fulcher v. Motley Page 28

The evidence presented at Petitioner’s trial was not overwhelming. The prosecutor relied on

1) testimony from several inmates, who testified that Petitioner inculpated himself to them while in

jail; 2) Terry Wright, who testified that Petitioner, and not Wright, actually killed Bramer; and 3)

Ash’s statement, which linked Petitioner to the crime scene through the statements about blood on

Petitioner’s clothes and the key. Ash’s statement therefore played a key role in the prosecution’s

case.

Respondent contends that Ash’s statement was cumulative because Wright testified to

Petitioner’s actions at the crime scene and to the key found near Petitioner’s home. But without

Ash’s statement, a jury would have been inclined to regard Wright’s statement with a great deal of

skepticism. Wright admitted to being a drug dealer and to helping others steal from the victim in

previous burglaries. Physical evidence actually linked Wright to the crime more than Petitioner; the

police actually discovered the victim’s blood on Wright’s clothes, physical evidence that the police

did not have on Petitioner. Wright therefore had a very strong and clear motive to exculpate himself

while inculpating Petitioner.

The only other evidence introduced at trial consisted of testimony from jailhouse snitches that

Petitioner had admitted the crime to them. A jury would normally view testimony from inmates

housed with Petitioner with some skepticism. See Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d

Cir. 2004) (noting the unreliability of “jailhouse snitches”). The jury’s deliberations further indicate

that the jury placed some weight on Ash’s statement. The jury began deliberations on April 22, 2004.

On the afternoon on April 23rd, the jurors asked to have the tape of Ash’s statement and a tape

recorder. The judge played the tape for the jurors. Within an hour of hearing the tape the jury

returned its guilty verdict. Given the lack of physical evidence in the case, and that without Ash’s

statement, the government’s chief evidence would have come from an admitted accomplice and

jailhouse snitches, this Court can only be left with “grave doubts” about the influence and effect of

the improper introduction of the tape at trial.

III.

ROBERTS ANALYSIS

The lead opinion is correct that even absent the application of Crawford, the introduction of

Ash’s taped statement was contrary to clearly established law at the time and therefore would require

that we grant the requested writ under normal AEDPA analysis. I write separately here because I

believe that Crawford retroactivity is a threshold matter and that review of the statement under Ohio

v. Roberts should only follow if Crawford is found not to be a watershed rule of criminal procedure.

A. The AEDPA Standard

AEDPA “requires heightened respect for state court factual and legal determinations.”

Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the

claim –

(1) 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

States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.

No. 03-6216 Fulcher v. Motley Page 29

28 U.S.C. § 2254(d).

Under § 2254(d)(1), a state court decision is “contrary to” clearly established federal law 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] on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an

“unreasonable application” of clearly established federal law “if the state court identifies the correct

governing legal principle but unreasonably applies that principle to the facts of the prisoner’s case.”

Id. “‘[C]learly established Federal law, as determined by the Supreme Court of the United States,’

refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of

the relevant state-court decision.’” Williams v. Bagley, 380 F.3d 932, 942 (6th Cir. 2004) (quoting

Williams, 529 U.S. at 412).

B. The Supreme Court of Kentucky Opinion

In denying relief for Petitioner under the Confrontation Clause, the Supreme Court of

Kentucky determined that Ash’s statement bore sufficient indicia of reliability under a Kentucky high

court test as set forth in Taylor v. Commonwealth, 821 S.W.2d 72,4 74 (Ky. 1991). The Taylor

decision drew on an earlier Supreme Court of Kentucky decision, which in turn purported to

interpret the United States Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284

(1973), as establishing criteria for use in determining when a statement against penal interest is

admissible against a criminal defendant without violating the Confrontation Clause. See Taylor, 821

S.W.2d at 74. The Taylor decision set forth four criteria for consideration by Kentucky courts faced

with a request to admit, against a criminal defendant, an out-of-court statement by an accomplice as

a statement against the accomplice’s penal interest:

(1) [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.

Id.

The Supreme Court of Kentucky applied this test to Petitioner’s case. The court found the

following to support the statement’s admission:

1) “[T]he time of the declaration [shortly after the crime] and the party to whom it was made

[the police] are indeed indicative of the statements’ trustworthiness.” (J.A. at 100.)

2) The court then noted that “the key – which police found where Ash said it would be – was

sufficient corroborating evidence.” (J.A. at 101.)

3) The court found Ash’s statement as to the key was buttressed by the testimony of Petitioner’s

accomplice at trial.

4) The court found additional corroboration of Ash’s statement in the actual crime scene, which

would indicate that Petitioner would have had blood on his clothes.

5) Finally, the court found that the statement was assuredly “against Ash’s penal interest,”

inasmuch as she was in a custodial setting, had been read her Miranda rights, was aware that

4

Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978).

No. 03-6216 Fulcher v. Motley Page 30

the police were investigating a murder, and would have known her actions, as disclosed to

the police, helped Petitioner dispose of the fruits of a crime and evidence.

The Supreme Court of Kentucky concluded its Confrontation Clause analysis by noting that it was

not an abuse of discretion for the trial court to admit Ash’s taped statement when an “objective

measure of whether [the statement] was against [Ash’s] penal interests” supported the trial court’s

decision. (J.A. at 102.)

C. The Taylor Test Is Contrary to Clearly Established Federal Law

The Taylor test is “contrary to clearly established Federal law” when used to evaluate the

admissibility of an out-of-court, mutually inculpatory statement. The United States Supreme Court

has ruled explicitly that independent corroborating evidence may not be used as indicia of reliability

when determining whether an out-of-court statement is sufficiently trustworthy to admit against a

criminal defendant.5 See Idaho v. Wright, 497 U.S. 805, 819 (1990).6 The Wright court devoted

considerable space to explaining why the “use of corroborating evidence to support a hearsay

statement” infringes on Confrontation Clause guarantees:

[W]e are unpersuaded by the State’s contention that evidence corroborating the truth

of a hearsay statement may properly support a finding that the statement bears

‘particularized guarantees of trustworthiness.’ To be admissible under the

Confrontation Clause, hearsay evidence used to convict a defendant must possess

indicia of reliability by virtue of its inherent trustworthiness, not by reference to other

evidence at trial . . . . [T]he use of corroborating evidence to support a hearsay

statement’s ‘particularized guarantees of trustworthiness’ would permit admission of

a presumptively unreliable statement by bootstrapping on the trustworthiness of other

evidence at trial, a result we think at odds with the . . . Confrontation Clause . . . . The

true danger inherent in this type of hearsay [hearsay from a co-defendant] is, in fact,

its selective reliability . . . . There is a very real danger that a jury will rely on partial

corroboration to mistakenly infer the trustworthiness of the entire statement.

Id. at 823-24. Such explicit exposition on the law and its rationales made the contours of

Confrontation Clause jurisprudence very clear in 1996, at least insofar as the (impermissible) use of

corroborating evidence to “bootstrap” the reliability of hearsay was concerned.7

5

Respondent appears to argue that the Taylor decision is consistent with Supreme Court precedent if read as

setting forth a test to determine whether a statement actually is a statement against penal interest, and that such

statements are, in turn, firmly rooted hearsay exceptions. Respondent does, in fact, imply in its brief to this Court that

the Wright decision is inapplicable because the Wright court was dealing with the admissibility of a statement under the

residual hearsay exception. (See Resp. Br. 25.) This argument fails for two reasons. First, whether admitted as either

a statement against penal interest or under the residual exception, a declaration must pass the test set forth in Ohio v.

Roberts (see infra) to preclude a Confrontation Clause violation. A statement can only pass Roberts if it 1) is a firmly

rooted hearsay exception (and hence so traditionally trustworthy that individual case analysis is unnecessary), or

2) possesses its own particularized indicia of reliability. A statement against penal interest was not a firmly rooted

hearsay exception in 1996, see infra; therefore such statements must be analyzed under Roberts’ second prong, making

applicable the 1990 Wright decision, which analyzed the admitted statement under Roberts’ second prong. Second, the

Taylor test, a fortiori, purports to set forth an analysis of when a statement against penal interest is trustworthy enough

to merit admission without Confrontation Clause problems, both because of the posture of the case and the test itself,

which includes consideration of the declarant’s penal interest as only one factor in the overall test.

6

The Wright decision came out on June 25, 1990, while the Kentucky Taylor decision came more than two

months later, on June 27, 1990.

7

While the Supreme Court cited to Wright several times in decisions issued between 1990 and 1995, no majority

opinion called the Wright decision into question.

No. 03-6216 Fulcher v. Motley Page 31

Respondent cites to Early v. Packer, 537 U.S. 3, 8 (2002), for the proposition that a state court

need not cite, or even be aware of, Supreme Court precedent, so long as “neither the reasoning nor

the result of the state-court decision contradicts them.” (Resp. Br. 23.) But the reasoning – i.e., the

Taylor test – used by the Kentucky high court here directly contradicts clearly established Supreme

Court precedent. Moreover, this is not the first time that this Court has encountered a Kentucky state

court relying on Taylor to admit an accomplice’s mutually inculpatory statements against a criminal

defendant. In Vincent v. Seabold, 226 F.3d 681 (6th Cir. 2000), this Court held that the trial court’s

reliance on Taylor resulted in a result “contrary to” clearly established Supreme Court precedent, id.

at 684-85, 689. While the Vincent panel did not elaborate on the particulars of the Taylor test, its

ultimate finding demonstrates the constitutional infirmity of Taylor’s ongoing application by the

Kentucky courts in these circumstances.

Because the Supreme Court of Kentucky used a legal standard manifestly “contrary to”

clearly established federal law, this Court reviews the admissibility of Ash’s statement de novo.

Williams, 529 U.S. at 413 (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ

if the state court arrives at a conclusion opposite that reached by this Court on a question of law

. . . .”); 28 U.S.C. § 2254(d)(1).

D. Ash’s Statement Was Inadmissible Under Roberts

“In Ohio v. Roberts, the Supreme Court set forth ‘a general approach for determining when

incriminating statements admissible under an exception to the hearsay rule also meet the requirements

of the Confrontation Clause.’” Wright, 497 U.S. at 815 (citing Ohio v. Roberts, 448 U.S. 56, 65

(1980)). Roberts set forth two ways in which the “indicia of reliability” requirement could be met:

1) where the hearsay statement “falls within a firmly rooted hearsay exception,” or

2) where it is supported by “a showing of particularized guarantees of trustworthiness.”

Id. at 816 (citing Roberts, 448 U.S. at 66); see also Lee v. Illinois, 476 U.S. 530, 543 (1986) (“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.’”) (footnote and citation omitted).

1. Statement Against Penal Interest Is Not a Firmly Rooted Hearsay Exception

Respondent argues that a statement against penal interest is, alternatively, either a “firmly

rooted hearsay exception,” or that the state of the law in 1996 was ambiguous enough to preclude this

Court from finding that a state court’s determination as such in 1996 was “contrary to” clearly

established Supreme Court precedent. At this stage of this analysis, however, this Court has

established that the Supreme Court of Kentucky’s application of the Taylor criteria was “contrary to”

clearly established precedent. See supra. AEDPA, therefore, does not require that this Court defer

to the Supreme Court of Kentucky’s reasoning or conclusions on this issue inasmuch as they pertain

to matters of constitutional law. Rather, this Court analyzes the admissibility of the statement de

novo, treating the Roberts analysis as the first step in its harmless error review – i.e., was the Supreme

Court of Kentucky’s application of a constitutionally infirm test merely “harmless error”? That is,

would the admissibility of the statement have been upheld under the correct legal theory? If we find

the statement inadmissible, we next ask whether the improper admission undermines confidence in

the outcome of the trial.

“Admission under a firmly rooted hearsay exception satisfies the constitutional requirement

of reliability because of the weight accorded longstanding judicial and legislative experience in

assessing the trustworthiness of certain types of out-of-court statements.” Wright, 497 U.S. at 817.

No. 03-6216 Fulcher v. Motley Page 32

A hearsay exception is “firmly rooted” if, in light of “longstanding judicial and legislative

experience,” Wright, 497 U.S. at 817, it “rests [on] such [a] solid foundation that admission of

virtually any evidence within [it] comports with the ‘substance of the constitutional protection.’”

Roberts, 448 U.S. at 66 (quoting Mattox v. United States, 156 U.S. 237, 244 (1895)). A “firmly

rooted” hearsay category has conditions which 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. Mattox, 156 U.S. at 244. The Supreme Court has found spontaneous

declaration firmly rooted, for example, because the exception “is at least two centuries old, currently

widely accepted among the States,” and carries “substantial guarantees of . . . trustworthiness . . .

[that] cannot be recaptured even by later in-court testimony.” White v. Illinois, 502 U.S. 346, 355-56

n.8 (1992). Established practice, in short, must confirm that statements falling within a category of

hearsay inherently “carry special guarantees of credibility” essentially equivalent to, or greater than,

those produced by the Constitution’s preference for cross-examined trial testimony. Id. at 356.

This Court has found, on several occasions, that a statement against penal interest is not a

firmly rooted hearsay exception, at least insofar as the exception is used to admit a declarant’s

mutually inculpatory statement against a criminal defendant. See Hill, 337 F.3d at 715-16 (finding

state court’s reliance on a statement against penal interest as a clearly established hearsay exception

“contrary to” clearly established federal law); see also United States v. McCleskey, 228 F.3d 640, 644

(6th Cir. 2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit

the introduction of hearsay declarations uttered by accomplices in law enforcement custody that

inculpate a defendant, absent further ‘particularized guarantees’ of the declaration’s

trustworthiness.”). Compare Calvert v. Wilson, 288 F.3d 823, 837-38 (6th Cir. 2002) (finding a

declarant’s mutually inculpatory statement inadmissible against a third-party criminal defendant),

with Neuman v. Rivers, 125 F.3d 315, 319-20 (6th Cir. 1997) (finding statements against penal

interest firmly rooted when admitted against the declarant). Moreover, this Court has found that it

was clearly established, prior to the Supreme Court’s 1999 Lilly decision, that such statements were8

not firmly rooted hearsay exceptions in light of the Supreme Court’s precedents in Douglas (1965),

Bruton (1968),9 and Lee (1990). See Hill, 337 F.3d at 715-16. Even were this Court to get past

Kentucky’s application of the Taylor factors and apply the deferential AEDPA standard of review,

then, Respondent’s argument would still fail because admitting an inculpatory statement, not against

8

In Douglas v. Alabama, 380 U.S. 415 (1965), the Supreme Court held that the admission of a nontestifying

accomplice’s confession, which shifted responsibility and implicated the defendant as the triggerman, “plainly denied

[the defendant] the right of cross-examination secured by the Confrontation Clause.” Id. at 419. A quarter century later,

in Lee, the Court reaffirmed Douglas and explained that “the truthfinding function of the Confrontation Clause is

uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without

the benefit of cross-examination . . . . Due to his strong motivation to implicate the defendant and to exonerate himself,

a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee,

476 U.S. at 544 (internal quotations and citations omitted). The Lee Court recognized that due to the sweeping scope

of the label, the simple categorization of a statement as a “‘declaration against penal interest’ . . . defines too large a class

for meaningful Confrontation Clause analysis.” Id. at 544 n.5.

9

In Bruton v. United States, the Supreme Court unanimously found that a codefendant’s mutually inculpatory

confession could not be used against the declarant’s accomplice without infringing on the defendant’s rights under the

Confrontation Clause. 391 U.S. at 138. In the years since Bruton, the Supreme Court has 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 Richardson v. Marsh, 481 U.S. 200, 206 (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.”); Cruz v. New York, 481 U.S. 186, 189-90, 193 (1987) (same).

No. 03-6216 Fulcher v. Motley Page 33

the declarant, but 10

against an accomplice, was “contrary to” clearly established Supreme Court

precedent in 1996.

2. Ash’s Statement Bore Insufficient Indicia of Reliability

The Supreme Court of Kentucky found Ash’s statement reliable in light of:

1) the timing of the declaration (shortly after the crime) and the party to whom it was

made (the police),

2) the fact that the police found the key where Ash indicated it would be,

3) Petitioner’s accomplice at trial corroborated Ash’s version of the key request,

4) the actual crime scene, which would corroborate that Petitioner would have had blood

on his clothes; and

5) that the statement was assuredly “against Ash’s penal interest,” inasmuch as she was

in a custodial setting, had been read her Miranda rights, was aware that the police

were investigating a murder, and would have known her actions, as disclosed to the

police, helped Petitioner dispose of the fruits of a crime and evidence.

Of these elements, items 2 through 4 are impermissible considerations under Roberts, Lee,

and Wright; rather, the only inherent features of the statement to which the Supreme Court of

Kentucky pointed are the timing of the declarations, the facts that the statements were made to the

police, and that parts of the statement inculpated Ash herself.

The first two factors actually caution against finding Ash’s statements inherently trustworthy.

The Supreme Court has found that custodial statements made in response to the police’s leading

questions, when the declarant is under some suspicion related to the crime under investigation, are

inherently untrustworthy. See Lee, 476 U.S. at 544. Neither has the Supreme Court found the timing

of a statement itself a sufficient indicator of reliability. Id. In fact, most accomplices are interviewed

shortly after the crime. Here, about 10 days had passed. The fact that the statement was against

Ash’s penal interest does not distinguish the case from the Supreme Court’s well-established

jurisprudence finding that such custodial, mutually inculpatory statements are inherently

untrustworthy. Id.

Nothing about Ash’s statement bore “particular guarantees of reliability.” The fact that a

statement took place shortly after the crime is insufficient, standing alone, to overcome the

presumption of unreliability accorded to statements which both inculpate the declarant and the

criminal defendant in the same crime. Ash’s statement did exactly what the Supreme Court fears

such statements do – at the cost of some inculpability of the declarant, the declarant curries police

favor, minimizes her own role, and inculpates another actor. Id. at 546. This suspicion is borne out

10

The “against penal interest” exception to the hearsay rule is not premised on the traditional hearsay exception

rationale; circumstances of the traditional hearsay exception indicate that it is made without a motive to reflect on the

legal consequences of one’s statement; and the situations in which the statement is made are exceptionally conducive

to veracity and lack the dangers of inaccuracy that typically accompany hearsay. Rather, the “against penal interest”

exception is founded on the broad assumption “that a person is unlikely to fabricate a statement against his own interest

at the time it is made.” Chambers, 410 U.S. at 299. But this rationale does not suppose that the declarant’s

unwillingness to inculpate himself extends to his accomplices or those who otherwise assisted or engaged in the crime.

The practice of admitting mutually inculpatory hearsay statements is a relatively recent phenomenon of the past two

decades. The reality of such statements, however, is that they typically include statements that, when offered in the

absence of the declarant, function similarly to those used in the ancient ex parte affidavit system which the hearsay rule

was designed to address.

No. 03-6216 Fulcher v. Motley Page 34

in Ash’s case. At the conclusion of her statement, the police assured Ash that she was not being

looked upon as a suspect in the case – despite the fact that the police had placed Ash in custody and

Mirandized her for questioning. (See J.A. at 57.) Ash was incentivized to tell the police what they

wanted to hear. The Supreme Court of Kentucky pointed to no features of Ash’s statement which

would indicate that the statement bore “particularized guarantees of trustworthiness.”

Respondent argues that Ash was not a codefendant to Petitioner, nor a true “accomplice” to

Petitioner’s alleged crime, thereby placing Ash’s statement outside the bounds of Supreme Court case

law which treats such statements as presumptively unreliable. Respondent points out that destruction

of evidence is a separate crime in Kentucky law, and that Ash’s statements therefore implicate Ash

in a different crime than Petitioner’s. Respondent’s argument in this respect is without merit.

Whether Kentucky state law treats Ash’s actions as a separate crime or as something akin to an

“accomplice after the fact,” the basic premise making Ash’s statement presumptively unreliable

remains. Ash had an incentive to minimize her actions and to curry favor with the police. Whatever

the state of Kentucky ultimately chose to charge Ash with for her role in destroying evidence relevant

to the death of Charlie Bramer does not affect the presumptive unreliability of her statement made

just 10 days after the crime itself. Because the introduction of the statement was not harmless error,

see supra, under the rule of Ohio v. Roberts the writ must be granted.

IV.

CONCLUSION

Because Crawford is a watershed rule of criminal procedure, I would apply Crawford to find

that the introduction of Ash’s taped statement violated Petitioner’s rights under the Confrontation

Clause of the Sixth Amendment. Even absent the application of Crawford, however, I agree with

the lead opinion that the Kentucky Taylor test was contrary to clearly established law under Ohio v.

Roberts. Accordingly, the writ must be granted.