Ben-Yisrayl, Obadyah v. Davis, Cecil

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3169

OBADYAH BEN-YISRAYL,

Petitioner-Appellee,

v.

CECIL DAVIS,

Respondent-Appellant.

____________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 01 C 871—Allen Sharp, Judge.

____________

ARGUED OCTOBER 27, 2004—DECIDED DECEMBER 13, 2005

____________

Before FLAUM, Chief Judge, and MANION and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. An Indiana jury convicted

Obadyah Ben-Yisrayl, formerly known as Christopher

Peterson, of murdering Harchand Dhaliwal and Marie

Meitzler. After the Indiana Supreme Court affirmed Ben-

Yisrayl’s conviction and sentence on direct appeal and

denied Ben-Yisrayl collateral relief, the district court

granted his petition for writ of habeas corpus. On appeal,

we find the Indiana Supreme Court’s determination that

the prosecutor did not violate Ben-Yisrayl’s Fifth Amend-

ment rights during his closing argument to be an unreason-

able determination in light of the evidence. In addition, we

find the state court’s determination of the constitutional

2 No. 03-3169

error in Ben-Yisrayl’s case an unreasonable application of

clearly-established, federal law. We, therefore, affirm the

judgment of the district court.

I. BACKGROUND

This case involves the murders of Harchand Dhaliwal and

Marie Meitzler in December, 1990. On January 28, 1991,

the Lake County, Indiana police arrested Antwion McGee

in connection with a separate shooting and car theft. Based

on statements McGee made while in custody, the police

then arrested and interviewed Ben-Yisrayl on January 29

in connection with the separate shooting and car theft.

During the ensuing police interview, Ben-Yisrayl further

implicated McGee in the crimes. Once confronted with Ben-

Yisrayl’s statements, McGee accused Ben-Yisrayl of being

involved with the Dhaliwal and Meitzler killings and led

police to Ben-Yisrayl’s former home, where police found a

sawed-off shotgun and shotgun shells in Ben-Yisrayl’s

bedroom.

The police confronted Ben-Yisrayl with McGee’s state-

ments and the discovery of the shotgun in his closet. Before

the confrontation, however, the police read Ben-Yisrayl his

Miranda rights, and after the confrontation, the police

allowed Ben-Yisrayl to speak with his mother. After

speaking with his mother, Ben-Yisrayl waived his Miranda

rights the next morning and confessed to his role in the

Dhaliwal and Meitzler shootings.

Based on his confession to the police and McGee’s cooper-

ation, Ben-Yisrayl was charged with the murders

of Dhaliwal and Meitzler. Ben-Yisrayl, however, re-

canted his statement to the police, pled not guilty to the

charges and proceeded to trial where he chose not to testify

in his own defense. Just before closing arguments in his

trial, attorneys for both sides met for a sidebar with the

judge. During the sidebar, the prosecutor expressed an

No. 03-3169 3

intention to argue to the jury that no evidence had been

presented as to why Ben-Yisrayl would have given a

false confession. Ben-Yisrayl’s attorneys objected to this line

of argument as a direct reference to Ben-Yisrayl’s decision

not to testify, and the judge agreed that the proposed

comments would be inappropriate. The prosecutor ignored

the court’s admonishment, however, and shortly after the

sidebar made the following statement to the jury during

closing argument:

I told you in the opening statement that the Defen-

dant confessed to killing these [two] people with his

shotgun. We proved that. We told you that was the

cornerstone of our case and why? Because it is self

evidence [sic] that no one freely and voluntarily

confesses to a murder unless they’re guilty. Let the

Defendant tell you why somebody would freely and

voluntarily confess to—

(Trial Record at 5568.) At that moment, the defense attor-

neys interrupted the prosecutor and objected to the prosecu-

tor’s argument and moved the court for a mistrial. Un-

abated, the prosecutor continued to speak over the objection

stating:

—on general, why—

...

—defendant’s counsel can say why a person

can confess to a crime.

(Trial Record at 5568.) The court took defense counsels’

motion for a mistrial under advisement and allowed the

prosecutor to continue with his closing argument. The

prosecutor then continued to focus the jury’s attention on

the defendant’s confession:

I said the confessions were the cornerstone of our

case because it’s self evidence [sic] that no one,

anybody, nobody will ever confess to a murder

4 No. 03-3169

freely and voluntarily unless they commit [sic]

it. . . . So if you believe that there isn’t any reason

for somebody to admit to murder unless they did it,

you’re there. . . . What are the chances that if

somebody falsely accuses me of murder that within

24 hours I’m going to falsely admit to it[?] They

don’t match. I mean it just doesn’t make sense.

It’s—two things don’t make sense.

(Trial Record at 5570-75.) The court found that the prosecu-

tor’s comments were not improper and denied the defen-

dant’s request for a mistrial. The defendant then asked for

a jury instruction admonishing the jury as to the prosecu-

tor’s comment. The court denied counsel’s proposed in-

struction and responded that the instructions already given

were more relevant than the instruction proposed, which

would only call attention to what the court had already told

the jury to disregard. The jury convicted Ben-Yisrayl on all

charges and recommended that he be sentenced to death.

The judge agreed with the jury’s recommendation and

entered judgment accordingly.

In his ensuing direct and collateral appeals, Ben-Yisrayl’s

counsel attempted to compile a complete and accurate

record of the trial proceedings. Counsel was greatly im-

peded in this effort, however, by the state of the official

record. Before finishing the process of transcribing her

notes, the court reporter from Ben-Yisrayl’s trial resigned

as a result of illness. A second court reporter and various

specialists worked to complete the transcription, and they

ultimately finished the job with significant difficulty and

only partial success. The resulting record was replete with

lines marked “undecipherable” and errors both major and

minor, as the concurring opinion, infra, indicates.

The Indiana Supreme Court ordered Ben-Yisrayl’s two

trial attorneys, the deputy prosecutor, and the trial judge to

reconstruct the missing portions of the record as well

as they could. If either party objected to any portion of

No. 03-3169 5

the final version, that party was to inform the court by

February 1, 1995. Neither side objected, and the court

declared the reconstruction process complete on May 8,

1995.

On direct appeal, Ben-Yisrayl presented twenty claims. In

particular, Ben-Yisrayl claimed that reversible error

occurred when, during its closing argument, the govern-

ment directly commented on the defendant’s decision to

exercise his constitutional right not to testify. Ben-Yisrayl

v. State, 690 N.E.2d 1141, 1148 (Ind. 1997) (“Ben-Yisrayl

I”). Citing Moore v. State, 669 N.E.2d 733 (Ind. 1996)1 in

support, the Indiana Supreme Court determined that the

jury in the case could not have reasonably interpreted the

prosecutor’s comments as a suggestion to infer guilt from

the defendant’s silence. Ben-Yisrayl I, 690 N.E.2d at 1149.

The state court concluded that the prosecutor did not

commit reversible error and the trial court did not abuse its

discretion in refusing to grant a mistrial and refusing to

give an admonishment to the jury. Id. The Indiana Supreme

Court also affirmed Ben-Yisrayl’s conviction and sentence

on collateral review. Ben-Yisrayl v. State, 753 N.E.2d 649

(Ind. 2001) (“Ben-Yisrayl II”).

1

In Moore, the Indiana Supreme Court analyzed both the

historical and contemporary treatment of a prosecutor’s comments

on the defendant’s failure to testify and held that “The Fifth

Amendment privilege against compulsory self-incrimination is

violated when a prosecutor makes a statement that is subject to

reasonable interpretation by a jury as an invitation to draw an

adverse inference from a defendant’s silence.” 669 N.E.2d at 739.

Moore made clear that direct and indirect references to the

defendant’s failure to testify are not, per se, improper. Id. Indiana

courts, therefore, look to whether the prosecutor’s comments in a

particular case could reasonably be interpreted by the jury as an

invitation to draw an adverse inference from the defendant’s

silence.

6 No. 03-3169

In his petition for writ of habeas corpus, Ben-Yisrayl

again raised many issues, but the district court only

addressed two: comments made by the prosecutor during

closing argument and the concerns regarding the accu-

racy of the trial transcript. In granting Ben-Yisrayl’s

petition, the district court held that the prosecutor’s

comments during closing argument constituted a viola-

tion of Ben-Yisrayl’s rights, Ben-Yisrayl v. Davis, 277

F. Supp. 2d 898, 903 (N.D. Ind. 2003) (“Ben-Yisrayl III”),

and that the Indiana Supreme Court did not reasonably

apply United States Supreme Court precedent when it ruled

on Ben-Yisrayl’s Fifth Amendment claim or when it ruled

that any alleged Fifth Amendment violation was harmless

error. Id. at 905. In addition, the district court found that

the inadequacy of the state trial court record constituted a

due process violation. Id. at 905-06.

II. ANALYSIS

We review the district court’s grant of Ben-Yisrayl’s

petition for habeas relief de novo. Barrow v. Uchtman, 398

F.3d 597, 602 (7th Cir. 2005). A federal court “shall enter-

tain an application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a state

court only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a) (2000). The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,

110 Stat. 1214 (1996), substantially amended the statutory

law governing federal review of habeas corpus petitions. See

28 U.S.C. §§ 2244, 2253, 2254, and 2255 (2000). The

amendments “place[ ] a new constraint” on the ability of a

federal court to grant habeas corpus relief to a state

prisoner “with respect to claims adjudicated on the merits

in state court.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

A federal court cannot grant a petition for a writ of habeas

No. 03-3169 7

corpus filed by a person in state custody with regard to any

claim that was rejected on the merits by the state court

unless the adjudication of the claim in state court either:

(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 proceed-

ing.

28 U.S.C. § 2254(d). A state court’s factual findings are

presumed correct, and the petitioner has the burden of

rebutting them with clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

A 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 decided a case differently than [the

Supreme] Court has on a set of materially indistinguishable

facts.” Williams, 529 U.S. at 413. A state court decision is

an “unreasonable application” of clearly established federal

law “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unrea-

sonably applies that principle to the facts of the prisoner’s

case.” Id.

In evaluating whether the state court made an “unreason-

able determination of the facts in light of the evidence” we

must be objectively convinced that the record before the

state court does not support the state court’s findings in

question. Under this framework, an unreasonable determi-

nation of the facts in light of the evidence can occur where

the state-court finding is unsupported by sufficient evi-

dence. See, e.g., Wiggins v. Smith, 539 U.S. 510, 520-21

8 No. 03-3169

(2003); Ward v. Sternes, 334 F.3d 696, 705-08 (7th Cir.

2003).

In the instant case, two issues are before us: Ben-Yisrayl’s

Fifth Amendment claim relating to the prosecutor’s com-

ments during closing argument and his Due Process claim

relating to the veracity and accuracy of the trial transcript.

Both issues were adjudicated on the merits by the Indiana

Supreme Court, but because we find sufficient grounds to

affirm the district court’s grant of the writ on Ben-Yisrayl’s

Fifth Amendment claim, we will not reach his Due Process

claim.

A. Ben-Yisrayl’s Fifth Amendment Rights

Ben-Yisrayl claims that the prosecutor’s comments during

closing argument violated his Fifth Amendment privilege

not to be compelled to testify. As the Supreme Court has

made clear, “Where the prosecutor on his own initiative

asks the jury to draw an adverse inference from a defen-

dant’s silence, . . . the privilege against compulsory

self-incrimination is violated.” United States v. Robinson,

485 U.S. 25, 32 (1988). In addition, indirect references to

the defendant’s failure to testify are constitutionally

impermissible if “the language used was manifestly in-

tended to be or was of such a character that the jury would

naturally and necessarily take it to be a comment on the

defendant’s failure to testify.” United States ex rel. Burke v.

Greer, 756 F.2d 1295, 1300 (7th Cir. 1985) (quoting United

States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).

In addressing Ben-Yisrayl’s Fifth Amendment claim, the

Indiana Supreme Court “looked to whether the prosecutor’s

comments in this case could reasonably be interpreted by

the jury as an invitation to draw an adverse inference from

the defendant’s silence,” Ben-Yisrayl I, 690 N.E.2d at 1149.

The state court found as follows:

No. 03-3169 9

The jury in this case could not reasonably have

interpreted the prosecutor’s comments as sugges-

tion to infer guilt from the defendant’s silence.

While the prosecutor could have been more articu-

late, it is clear that he was responding to any

possible implications that the defendant’s confes-

sion was less than voluntary. His “challenge” to

defense counsel was made to illustrate that the only

reason a defendant would confess to a crime he did

not commit would be because of coercion or duress.

He then pointed out that the State presented

substantial evidence that the confession was not

the result of coercion or duress. Consequently, he

was arguing that the confession should be taken by

the jury as direct evidence of the defendant’s guilt.

The theme of the State’s argument was a challenge

directed at defense counsel which pointed out the

uncontradicted nature of the State’s evidence of

voluntariness and invited defense counsel to ex-

plain, in its closing argument, any contrary conclu-

sions.

Ben-Yisrayl I, 690 N.E.2d at 1149. We find that the Indiana

Supreme Court’s determination of Ben-Yisrayl’s Fifth

Amendment right is not a decision contrary to or based

upon an unreasonable application of clearly-established

federal law. Instead, we find that its determination that the

jury in Ben-Yisrayl’s case could not have reasonably

interpreted the prosecutor’s comments as a suggestion to

infer guilt from the defendant’s silence an unreasonable

determination of the facts in light of the evidence.

The Indiana Supreme Court’s decision denying Ben-

Yisrayl’s Fifth Amendment claim was based upon its factual

determination that the prosecutor’s comment, “Let the

Defendant tell you” was not directed at Ben-Yisrayl individ-

ually, but, “a challenge directed at defense counsel” that,

“invited defense counsel to explain, in its closing argument,”

10 No. 03-3169

why the jury should not take the confession as valid. Ben-

Yisrayl I, 690 N.E.2d at 1148 n.17. We find this determina-

tion by the Indiana Supreme Court unsupported by suffi-

cient evidence. Just seconds before the prosecutor invited

the jury to “Let the Defendant tell you,” the prosecutor told

the jury that “the Defendant confessed to killing these [two]

people with his shotgun.” Trial Record at 5568, quoted in

Ben-Yisrayl III, 277 F. Supp. 2d at 901. Specifically, the

prosecutor stated:

I told you in the opening statement that the Defen-

dant confessed to killing these [two] people with his

shotgun. We proved that. We told you that was the

cornerstone of our case and why? Because it is self

evidence [sic] that no one freely and voluntarily

confesses to a murder unless they’re guilty. Let the

Defendant tell you why somebody would freely and

voluntarily confess . . .

(Id.) Over an objection from defense counsel, the prosecutor

further compounded his challenge to Ben-Yisrayl by

continuing to focus the jury’s attention on the defendant’s

confession:

I said the confessions were the cornerstone of our

case because it’s self evidence [sic] that no one,

anybody, nobody will ever confess to a murder

freely and voluntarily unless they commit [sic]

it. . . . So if you believe that there isn’t any reason

for somebody to admit to murder unless they did it,

you’re there. . . . What are the chances that if

somebody falsely accuses me of murder that within

24 hours I’m going to falsely admit to it[?] They

don’t match. I mean it just doesn’t make sense.

It’s—two things don’t make sense.

(Trial Record at 5570-75.) Without a doubt, the references

in this argument to “the Defendant” were aimed at Ben-

Yisrayl alone and not at his counsel. Thus, it was at least

reasonable for the jurors to interpret the prosecutor’s

No. 03-3169 11

recommendation to “Let the Defendant tell you” as a

reference to Ben-Yisrayl individually, and, therefore

unreasonable for the Indiana Supreme Court to determine

that no juror could have reasonably made this logical jump.

In following with the legal maxim noscitur a sociis,2 that

a term can be properly defined by interpreting the text

surrounding that term, we find that the prosecutor’s

natural progression of references including his challenge,

“Let the Defendant tell you” was purposeful, directed at

Ben-Yisrayl individually, and intended to guide jurors to an

impermissible inference under the Fifth Amendment. The

progression of the prosecutor’s words constitute clear and

convincing evidence rebutting the Indiana Supreme Court’s

finding that the jury in this case could not reasonably have

interpreted the prosecutor’s comments as a suggestion to

infer guilt from the defendant’s silence.

Additional clear and convincing evidence rebutting the

state court’s finding can be found by analyzing how the

prosecutor used the term “Defendant” throughout its entire

closing argument. The district court also reviewed how the

prosecutor used the term “Defendant” throughout the

closing argument and by the district court’s count, in the

portion of the argument that preceded the suspect language,

the prosecutor used “the Defendant” to refer to Ben-Yisrayl

alone seven times3 and used the term to refer to Ben-

Yisrayl’s counsel only once.4 Our own independent review

reveals an additional instance in which the prosecutor used

“the Defendant” to refer to Ben-Yisrayl,5 one where the

2

“a word is known by the company it keeps.”

3

Trial Record at 5554:22, 5555:17, 5556:10, 5556:22, 5557:1,

5567:25, 5568:4.

4

T.R. at 5567:14.

5

T.R. at 5554:14.

12 No. 03-3169

prosecutor’s use of the word “Defendant” was unclear,6 and

six in which the prosecutor referred to a generic or hypo-

thetical defendant.7

In the portion of the argument that followed, “Let the

Defendant tell you,” the district court located forty-nine

instances in which the prosecutor used “the Defendant” to

refer to Ben-Yisrayl alone,8 compared to only four instances

where “the Defendant” meant Ben-Yisrayl’s counsel.9 We

agree with the district court’s assessment of the record, and

we have located two additional instances in which the

prosecutor referred to Ben-Yisrayl individually as “the

Defendant”;10 one in which the prosecutor referred to a

generic or hypothetical defendant11; and one case where we

find the term used ambiguously.12

By our count, then, the part of the State’s closing argu-

ment that preceded the challenged language included eight

clear references to Ben-Yisrayl as “the Defendant” versus

one to his counsel, and the portion after the quotation

included fifty clear references to Ben-Yisrayl as “the Defen-

dant” versus four to his counsel. As a result, in looking at

6

T.R. at 5558:22.

7

T.R. at 5559:25, 5560:1, 5567:17, 5567:20, 5567:21, 5567:23.

8

T.R. at 5570:21, 5571:8, 5571:13, 5571:16, 5571:20, 5571:22,

5572:1, 5572:11, 5573:8, 5573:12, 5573:21, 5573:21, 5573:23,

5573:24, 5574:2, 5574:5, 5574:13, 5574:23, 5574:25, 5575:1, 5575:8,

5575:21, 5576:2, 5576:2, 5576:6, 5576:8, 5576:9, 5576:13, 5576:17,

5576:22, 5578:1, 5578:3, 5578:10, 5578:14, 5579:1, 5579:2, 5579:13,

5580:1, 5581:5, 5583:4, 5583:20, 5583:22, 5585:4, 5585:18, 5585:22,

5585:23, 5586:19, 5588:3, 5589:8.

9

T.R. at 5573:13, 5580:5, 5582:2, 5588:14.

10

T.R. at 5568:17, 5587:4.

11

T.R. at 5582:9.

12

T.R. at 5573:24.

No. 03-3169 13

the prosecutor’s closing argument as a whole, these over-

whelming statistics constitute further evidence that,

contrary to the finding of the Indiana Supreme Court, a

reasonable juror could indeed interpret “Let the Defendant

tell you” as a reference to Ben-Yisrayl individually, and not

to his counsel.

The respondent argues that such statistical evidence

is immaterial because there is no predictive value in the

prosecutor’s references to Ben-Yisrayl individually as it

is clear from the record that the prosecutor said “the

Defendant” when he meant either Ben-Yisrayl or Ben-

Yisrayl’s counsel.

Respondent’s argument is unavailing as the question

before us is not whether the jury could ascertain with any

certainty whether the prosecutor’s use of “the Defendant”

was a reference to Ben-Yisrayl’s counsel rather than to Ben-

Yisrayl individually. Instead, our inquiry is whether, based

on the prosecutor’s comments as a whole, it would have

been reasonable for a juror to interpret the chal-

lenged prosecutor’s comments as reference to Ben-Yisrayl

individually. Because the Indiana Supreme Court found

that it was unreasonable for any juror to interpret the pros-

ecutor’s comments as reference to Ben-Yisrayl individually,

but expressed no comment on whether a juror could predict

with any certainty the target of the prosecutor’s comments,

the respondent’s argument in no way undermines the clear

and convincing evidence rebutting the state court’s determi-

nation.

The facts of this case, reasonably construed, indicate that

the jury could have believed that the prosecutor was

arguing that, because Ben-Yisrayl failed to testify as to why

he would confess to a crime that he did not commit, the

inference is that his confession was voluntary and true. The

prosecutor’s challenge to Ben-Yisrayl to explain his confes-

sion is closely analogous to the jury instruction that the

14 No. 03-3169

Supreme Court expressly ruled unconstitutional in Griffin

v. California:

As to any evidence or facts against him which the

defendant can reasonably be expected to deny or

explain because [they are] within his knowledge, if

he does not testify . . . the jury may take that

failure into consideration as tending to indicate the

truth of such evidence and as indicating that among

the inferences that may be reasonably drawn

therefrom those unfavorable to the defendant are

most probable.

380 U.S. 609, 610 (1965).

B. Harmless Error

A constitutional error at trial does not mean that a

state prisoner is automatically entitled to habeas corpus

relief. This circuit has held that under § 2254(d), finding

error is only a necessary step. See Aleman v. Sternes, 320

F.3d 687, 690 (7th Cir. 2003) (explaining that constitutional

error is necessary, but insufficient to grant a writ under

§ 2254(d)). An error can serve as grounds for habeas corpus

relief only if the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht

v. Abrahamson, 507 U.S. 619, 638 (1993); Aleman, 320 F.3d

at 689-90. As a result, we cannot issue writs of habeas

corpus based on constitutional errors that are proven

“harmless beyond a reasonable doubt.” Chapman v. Califor-

nia, 386 U.S. 18, 24 (1966); Aleman, 320 F.3d at 689-90.

In this case, the Indiana Supreme Court determined that

the challenged comment in the prosecutor’s closing argu-

ment, even if improper, was harmless, as Ben-Yisrayl’s

confession sufficed to ensure conviction on its own. Ben-

Yisrayl I, 690 N.E.2d at 1149 n.18. The court reasoned

that “The evidence presented supporting the defendant’s

No. 03-3169 15

guilt was not ‘close,’ it was overwhelming.” Id. at 1149.

When the state court concludes that any error was or would

be harmless, that finding is subject to the same standard of

review as is any other legal conclusion—de novo. Mitchell v.

Esparza, 540 U.S. 12, 17 (2003) (per curiam). That is, we

must accept it unless it is contrary to or represents an

unreasonable application of clearly established federal

law. Mitchell, 540 U.S. at 17-18. In Chapman v. Cali-

fornia, 386 U.S. 18 (1967), the Supreme Court set forth the

test for determining whether a constitutional error is

harmless. The test is whether it appears “beyond a rea-

sonable doubt that the error complained of did not contrib-

ute to the verdict obtained.” Id. at 24. If the error com-

plained of contributed to the verdict obtained, then the

error is not harmless. Id.

To support its finding that the evidence against Ben-

Yisrayl was overwhelming, the Indiana Supreme Court

made the following points, based on its reading of the

evidence from trial: (1) Ben-Yisrayl confessed to police; (2)

he confessed to “an acquaintance”; (3) he acknowledged that

he owned a gun that “was identified as the same weapon

used to commit the murders”; (4) witnesses corroborated his

ownership of the gun; (5) the gun was found in an apart-

ment where Ben-Yisrayl formerly lived; and (6) “Three

other witnesses testified they saw [Ben-Yisrayl] or his car

either at the murder scene or in close proximity thereto.”

Ben-Yisrayl I, 690 N.E.2d at 1147-48.

Items (3), (4), and (5) all go toward showing that Ben-

Yisrayl owned a particular gun that was seized by the

police. But the Indiana Supreme Court erred when it stated

that Ben-Yisrayl’s gun “was identified as the same weapon

used to commit the murders.” Id. at 1148. At trial, Kevin

Judge, a firearms and toolmark examiner, testified that the

shotgun wadding recovered from the two victims, as well as

from the Dhaliwal crime scene was consistent with a 12-

gauge shotgun. However, Judge could not identify the

16 No. 03-3169

shotgun that fired that wadding. In response to defense

counsel’s question whether he could match the wadding to

Ben-Yisrayl’s gun, Judge conceded, “in this case, no, there

wasn’t enough marks on the wadding to compare it to that

weapon.” Thus, at best, the forensic evidence indicates that

a 12-gauge shotgun was used to commit both murders. The

evidence, however, stops short of establishing that Ben-

Yisrayl’s 12-gauge gun was the murder weapon.

We find, as did the district court, that the Indiana

Supreme Court also exaggerated the value of evidentiary

item (6). Of the “[t]hree other witnesses” the court cited, one

witness placed Ben-Yisrayl about 1.25 miles from the

Dhaliwal murder at around the time of that crime; an-

other witness saw Ben-Yisrayl’s car at the scene of the

Meitzler murder one day before the shooting; and a third

witness saw Ben-Yisrayl at the scene of the Dhaliwal

murder two days after that crime. Ben-Yisrayl III, 277 F.

Supp. 2d at 904-05. None of the witnesses placed Ben-

Yisrayl at either murder scene at the time of the corre-

sponding crime.

The state court’s reliance on Ben-Yisrayl’s confession to

an “acquaintance,” while not exaggerated, is nonetheless

problematic. The acquaintance to whom Ben-Yisrayl

confessed was McGee, who explained to the jury that he was

testifying as part of a deal he had struck with prosecutors

to reduce his sentence for another shooting. Given his

personal interests in pinning some crime to another individ-

ual to save his own hide, McGee’s testimony in this case is

hardly overwhelming.

In summary, the evidence that the Indiana Supreme

Court relied on is not overwhelming. In light of the state’s

circumstantial case against Ben-Yisrayl, the jury’s deci-

sion as to guilt or innocence rested heavily on its determina-

tion of the reliability of Ben-Yisrayl’s confession. Without

Ben-Yisrayl’s confession there would have been no convic-

No. 03-3169 17

tion. In challenging Ben-Yisrayl to explain his confession to

the jury, the prosecutor invited the jury to infer guilt from

Ben-Yisrayl’s silence and to deem his confession reliable

and accurate. The prosecutor’s improper closing statements,

therefore, played a significant role in securing a guilty

verdict. As such, we find that the constitutional error in this

case is not harmless, and that the Indiana Supreme Court’s

determination of harmless error in this case was an unrea-

sonable application of clearly-established federal law.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district

court’s grant of Ben-Yisrayl’s petition for writ of habeas

corpus. We remand with instructions to grant the writ

unless the State of Indiana elects to retry him within 120

days from the issuance of this opinion.

MANION, Circuit Judge, concurring. As the district court

noted in its opinion granting Ben-Yisrayl’s petition for

habeas corpus, “The reality is that a death penalty case,

whether in state or federal court, is different.” Ben-Yisrayl

v. Davis, 277 F. Supp. 2d 898, 903 (N.D. Ind. 2003). The

district court illustrates this difference by noting that in

Indiana it is mandatory that any conviction involving the

death penalty is automatically appealed to the Supreme

Court of Indiana. Also, only lawyers qualified to defend in

death penalty cases are permitted to represent such

defendants. Theoretically, all habeas cases are treated with

the same standards, but realistically, in the case of a

defendant facing death, the appeal invites more scrutiny.

18 No. 03-3169

After receiving his Miranda warnings, consulting with his

mother, and “sleeping on it,” Obadyah Ben-Yisrayl con-

fessed to murdering several people with his shotgun,

including the gas station attendant and the motel clerk who

were the victims of the murder convictions challenged in

this appeal. In affirming the conviction and penalty, the

Supreme Court of Indiana regarded the evidence as over-

whelming. The court here claims otherwise. If not over-

whelming, I conclude that it was considerable. In addition

to the voluntary confessions, the evidence showed that both

victims were shot in the head at close range with a 12-

gauge shotgun; Winchester AA 8 shotgun waddings were

found at both crime scenes;1 both shootings were in the city

of Portage, two days apart; the shotgun and ammunition

found in his room was the same type used in the murders;

Ben-Yisrayl and/or his car were spotted near the scenes of

the murders; and he “confessed” to McGee, who testified in

exchange for a reduced sentence in an unrelated crime. All

of that evidence notwithstanding, to the prosecution Ben-

Yisrayl’s confession to the police was key. The defense was

unable to show that the confession was coerced or otherwise

involuntary in its cross-examination of police witnesses.

Although critical of the sufficiency of the evidence, in this

case the court concludes, as did the district court, that the

prosecutor’s statement “Let the defendant tell you

why somebody would freely and voluntarily confess . . .” was

a sufficiently serious constitutional violation to overturn the

conviction. Taken in isolation, the court is correct. Presum-

1

As the district court noted, “Kevin A. Judge testified that

ballistics tests proved that the defendant’s shotgun fired a

shell casing recovered at a different murder scene and he testified

that all of the shotgun shell fragments recovered from all of the

murder scenes (charged and uncharged) contained number 8 shot

with pink .12 gauge power piston wadding.” Ben-Yisrael, 277 F.

Supp. 2d at 904.

No. 03-3169 19

ably, had the prosecutor instead said “defendant’s counsel”,

we would not have reversible error on this issue. The

Supreme Court of Indiana went to great lengths, first to

ascertain the validity of the record that was unfortunately

distorted by an unreliable court reporter, then to evaluate

the context of the prosecutor’s misstatement. Given the

record as a whole, the Supreme Court of Indiana concluded

that “The jury in this case could not reasonably have

interpreted the prosecutor’s comments as a suggestion to

infer guilt from the defendant’s silence.” Ben-Yisrayl v.

State, 690 N.E.2d 1141, 1149 (Ind. 1996). Were it not for the

state of the record, I would be inclined to agree with the

Supreme Court of Indiana. This statement was apparently

isolated. Although the prosecutor made many references to

the defendant, apparently all but this one were appropriate.

Immediately after the statement was made, defense counsel

objected. The trial court took a motion for mistrial under

advisement, but concluded that the court’s instruction to

the jury regarding Ben-Yisrayl’s right not to testify would

sufficiently erase any harm that misstatement might have

caused.

Based on the evidence presented and the record that is

before us, I would be inclined to agree with the Supreme

Court of Indiana that the prosecutor did not commit

reversible error and the trial court did not abuse his

discretion in refusing to grant a mistrial. But what

moves me to concur with the court’s affirmance of the

district court’s grant of the petition is the unfortunately

defective state of the record from the state trial. Without a

more reliable record to review, it is an unreasonable

application of clearly established federal law to con-

clude that the prosecutor’s statement constituted harm-

less error. See Simmons v. Beyer, 44 F.3d 1160, 1170 (3d

Cir. 1995) (granting conditional writ of habeas corpus

since defendant was prejudiced by inadequate transcripts

that made his claim unreviewable) (citing United States

20 No. 03-3169

v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994) (on direct

appeal remanding for a new trial because inadequate

transcripts precluded review of merits)). I agree with the

district court’s conclusion that “. . . this record simply is not

good enough to sustain a state court death penalty convic-

tion.” Ben-Yisrayl, 277 F. Supp. 2d at 905. As the district

court noted, the original court reporter was having serious

emotional problems. The record was a mess, and in spite of

a valiant effort of counsel and the trial court to piece it

together, it left much to be desired. Because so much of the

analysis on the sufficiency of the evidence, the prosecutor’s

statement in closing argument, and the many references to

other matters throughout the trial are so pivotal, this faulty

record does not provide the foundation necessary to render

due process to the defendant in this appeal. For many of the

reasons stated in the district court’s opinion under the

heading “Inaccurate and Unreliable Transcript,” Ben-

Yisrayl, 277 F. Supp. 2d at 905-07, I concur with this court

that the district court’s grant of Ben-Yisrayl’s petition for a

writ of habeas corpus should be affirmed.

No. 03-3169 21

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-13-05