Moses v. Payne

GOULD, Circuit Judge,

dissenting:

On September 27, 2002, Jeffrey Moses’s wife, Jennifer, tragically died of a gunshot wound to her head. When police responded to a 911 call from Moses’s mother, Moses claimed that Jennifer had committed suicide. Moses said that Jennifer had been depressed and had come downstairs with a gun, knelt down, and shot herself in the head while Moses tried to take the gun away from her. Moses was tried by jury for premeditated, first degree murder of his wife, and for unlawful possession of a firearm. At Moses’s trial the prosecution argued that Moses had intentionally shot his wife in the back of the head, while Moses countered that Jennifer had committed suicide because of severe depression and drug and alcohol abuse, and that his attempt that night to stop her had failed. Among the prosecution’s evidence was testimony from a medical examiner and a ballistics expert who each concluded, after an examination of forensic factors, that Jennifer’s wounds were likely not self-inflicted, though the evidence permitted the conclusion that suicide had occurred. The prosecution also presented evidence of a prior incident of domestic violence between Moses and his wife. Moses, by contrast, highlighted evidence of Jennifer’s history of major depression, including suicidal ideation, problems with eating disorders and substance abuse. Moses also presented testimony by a friend of Jennifer’s stating that Jennifer and the friend had talked on the very night of Jennifer’s death and that the discussion encompassed the subject of death.

Thus the case presents in high contrast the question whether Jennifer’s death was the consequence of her own suicidal actions, or the result of murderous conduct by Moses. In our system of justice, when a fair trial is held the decision of the jury on such an issue is conclusive. If the defendant had been able to present his defense case fairly, I would have no issue with the jury’s decision. But if by eviden-tiary rulings the deck was stacked against *763 the defendant, we should be concerned and insist on a new trial.

I conclude that a key evidentiary ruling rendered the trial unfair. Moses had sought to introduce testimony from Dr. Lawrence Wilson, an expert on depression who the defense wanted to discuss with the jury Jennifer’s recent diagnoses with major depression by three different health care professionals, the general nature of major depression, and the unlikelihood that the depression would have resolved itself before the date Jennifer died. Dr. Wilson additionally would have testified about the increased likelihood that someone suffering from major depression would commit suicide and about his perception that lay persons do not fully understand the implications of major depression.

The trial court excluded Dr. Wilson’s testimony, stating that Dr. Wilson would have offered information of “very little weight,” namely, that depressed people are more likely to kill themselves than people not depressed, that access to guns for depressed people is bad, and that drugs, alcohol, financial stress, and marital strife make the problem worse-all of which, the court reasoned, fell within a juror’s common knowledge. The trial judge dismissed Wilson’s remaining testimonial offerings as being, in sum, that there was a roughly 0.25% higher chance that Jennifer, as an individual diagnosed with major depression, would commit suicide within the six month period between her diagnosis and her death than that a non-depressed person would. The trial judge determined that this information was of minimal probative value, outweighed by its prejudicial effects and potential for jury confusion.

The jury found Moses guilty of second-degree murder and first-degree unlawful possession of a firearm. The Washington Court of Appeals sustained Moses’s conviction, and the Washington State Supreme Court denied Moses’s petition for review without comment. Having made no progress in the state courts, Moses filed his petition for a writ of habeas corpus in federal court in August of 2006. The district court denied Moses’s petition. The district court rejected Moses’s argument that the exclusion of Dr. Wilson’s testimony had violated his Sixth and Fourteenth Amendment rights, reasoning that the testimony would have been cumulative and of such limited probative value that its exclusion did not deprive Moses of any constitutional rights. On appeal Moses argues that the trial judge’s exclusion of Dr. Wilson’s testimony denied Moses his clearly established constitutional right to present a defense. Although the majority affirms the district court’s view, I rather think that the total exclusion of testimony of this important defense expert witness was a grave error that should shake our confidence that the jury reached its verdict after a fair trial. Hence I respectfully dissent because I would grant habeas relief and require the state to retry Moses in light of the state trial court’s exclusion of Dr. Wilson’s testimony. 1

Moses argues that the trial court’s decision to exclude Dr. Wilson’s testimony violated his constitutional rights under Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), and its progeny. *764 Moses is up against a difficult standard. To succeed in his claim, the state court’s decision must have been “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254 (d)(1). But the Supreme Court has long guaranteed the defendant’s right to present his case, and so the extraordinary exclusion in total, as contrasted with a mere limiting of testimony, of a key defense expert witness, in a murder trial where specialized expertise was pertinent, gets Moses inside the door where we should be giving the very closest of attention to his claim. For if he is right, possibly a jury convicted an innocent man of murder. Though we must accept that risk without much pause in a case where a defendant like Moses fully and fairly presented his evidence, we should be much more reluctant to accept the conclusion in a case where the state court kept from the jury all testimony of an important defense expert.

A state court decision is “contrary to” clearly established Supreme Court precedent if the state court “applies a rule that contradicts the governing law set forth” in Supreme Court decisions or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). I conclude that exclusion of Dr. Wilson’s testimony was not “contrary to” clearly established Supreme Court law, because the state appellate court recognized the general principle required in Washington that a defendant has the right to present a defense. It cannot be said that the state court of appeals applied the wrong law contrary to the dictates of Supreme Court precedent. Nor were the facts of Moses’s case materially indistinguishable from those of the Supreme Court cases that he invokes. In Washington , the trial court had prevented a percipient witness from testifying because of a state statute, which the United States Supreme Court held violated the defendant’s Sixth Amendment right to have compulsory process for obtaining witnesses, applicable to the states through the Fourteenth Amendment. Washington, 388 U.S. at 23 , 87 S.Ct. 1920 . In Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), state evidentiary rules-specifically, a “voucher” rule preventing a defendant from cross-examining his own witness and general rules against hearsay-prevented a defendant from presenting one witness who had repudiated a prior confession to the same crime and other witnesses who would have discredited that repudiation. Id. at 294 , 93 S.Ct. 1038 . The United States Supreme Court held that exclusion of this critical evidence that directly affected the ascertainment of guilt denied the defendant a fair trial. Id. at 302-03 , 93 S.Ct. 1038 . See also Holmes v. South Carolina, 547 U.S. 319 , 126 S.Ct. 1727 , 164 L.Ed.2d 503 (2006) (state evidentiary rule excluding evidence of third-party guilt if prosecution’s case was strong violated defendant’s right to present a complete defense); Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987) (state evidentiary rule excluding posthypnosis testimony unconstitutionally burdened defendant’s right to testify at trial in the absence of clear state evidence that post-hypnosis recollections are invalid).

None of these Supreme Court cases specifically addresses a state court’s exclusion of a critical defense expert based on state evidentiary rules concerning the admissibility of expert testimony and a trial court’s determination of whether the expert testimony in its view would be helpful to the trier of fact. Accordingly, I con- *765 elude that the state court decision was not “contrary to” clearly established Supreme Court precedent.

Our attention must focus on whether the state court decision was an “unreasonable application” of clearly established Supreme Court precedent. A state court decision constitutes an “unreasonable application” if it “correctly identifies the governing legal rule but applies it [objectively] unreasonably to the facts” of the case. Williams, 529 U.S. at 407-08, 410-11 , 120 S.Ct. 1495 . Thus “section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003); see also Wilcox v. McGee, 241 F.3d 1242, 1244 (9th Cir.2001) (“The Supreme Court need not have addressed a factually identical case; § 2254(d) only requires that the Supreme Court clearly determine the law.” (internal quotations, citation, and alteration omitted)). The AEDPA does not “prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts ‘different from those of the case in which the principle was announced.’ ... [t]he statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930 , 127 S.Ct. 2842, 2858 , 168 L.Ed.2d 662 (2007). Our independent review of the legal question must leave us with a “firm conviction” that the state court committed a clear, objectively unreasonable error. Id.; see also Andrade, 538 U.S. at 74-75 , 123 S.Ct. 1166 . 2

The Washington line of cases from the United States Supreme Court firmly establishes the general proposition that a defendant has a constitutional right to present a defense at trial. The crux here concerns how that principle is to be applied in the context of the state court’s decision excluding any testimony from Moses’s defense expert whose testimony was proffered on a critical issue in Moses’s trial for murder of his wife.

In Washington itself, the Court stated: “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.... [A]n accused has the right to ... present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington, 388 U.S. at 19, 87 S.Ct. 1920 .

Since Washington , the United States Supreme Court has continually reaffirmed this fundamental right to present a defense. In 'Chambers, the Court proclaimed: “Few lights are more fundamental than that of an accused to present witnesses in his own1 defense!,]” and stated that it was not establishing any new principles of constitutional law but merely applying established ones to hold that the trial court’s rulings deprived the defendant of a fair trial. Chambers, 410 U.S. at 302-03 , 93 S.Ct. 1038 . The Court reemphasized the right’s centrality to due process of law in Taylor v. Illinois, 484 U.S. 400, 409 , 108 S.Ct. 646 , 98 L.Ed.2d 798 (1988). More *766 recently in Holmes , the Court stated: “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. This latitude, however, has limits.... [T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. This right is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” Holmes, 547 U.S. at 324-325 , 126 S.Ct. 1727 (citations and quotations omitted, second alteration in original). See also Crane v. Kentucky, 476 U.S. 683, 690 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986) (holding that “an essential component of procedural fairness is an opportunity to be heard”).

The central theme running through each of these Supreme Court cases is the clearly established right that the Constitution guarantees to a criminal defendant to present relevant and material witnesses in his defense. These cases circumscribe the state’s ability to infringe that right: a state may limit the defendant’s evidence only when that limitation has a nonarbi-trary purpose(s) that is (are) proportionate to the corresponding infringement upon the defendant. See, e.g., Chambers, 410 U.S. at 295 , 93 S.Ct. 1038 (“the right to confront and to cross-examine is not absolute .... But its denial or significant diminution calls into question the ultimate ‘integrity of the fact-finding process’ and requires that the competing interest be closely examined.” (citations omitted)). 3

Here, as the Washington Court of Appeals noted, Dr. Wilson’s testimony was excluded under a Washington evidentiary rule governing admissibility of expert testimony, which requires that 1) the witness is qualified as an expert, and 2) the testimony would be helpful to the trier of fact. The state appellate court determined that the trial court did not abuse its discretion in determining that Dr. Wilson’s proffer failed the second prong. The court of appeals concluded that Dr. Wilson’s testimony added only that Jennifer had a minimally greater chance of committing suicide than a person who had not been diagnosed *767 with major depression during the time period in question, dismissing his remaining proffer as information either that would already be introduced by other witnesses or that was within the average juror’s common knowledge.

The state evidentiary rule at issue is of the type that United States Supreme Court precedent has contemplated to be a valid exception to a defendant’s general right to present a defense. See, e.g., Holmes, 547 U.S. at 326-27 , 126 S.Ct. 1727 (“... [W]ell-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Plainly referring to rules of this type, we have stated that the Constitution permits judges ‘to exclude evidence that is repetitive ..., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues.’ ” (citations and quotations omitted, ellipsis and second brackets in original)). However, the fact that the exclusion of evidence is grounded in .familiar evidentiary rules alone does not determine that such exclusion is constitutionally permissible. It is one thing to limit the scope of testimony, via evidentiary rulings, but it is another thing, and of drastic consequence for Moses, for the state court to have entirely excluded his important defense expert.

In Chambers , as discussed above, the Supreme Court considered and invalidated the state’s application of its hearsay rules. The Court preliminarily noted, “The hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact.” Chambers, 410 U.S. at 298 , 93 S.Ct. 1038 . Nonetheless, the Court held that its application in that case was unconstitutional: the Court admonished, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302 , 93 S.Ct. 1038 . The Court overturned the state’s application of the hearsay rule in those circumstances, despite the rule’s status as perhaps the most “respected[and most] frequently applied [rule of evidence] in jury trials.” Id. Despite the values served by the hearsay rule, it could not be applied in a way that unreasonably denied the defendant his right to present a defense.

To consider whether the rule permitting Moses to present'his defense was unreasonably applied requires placing the exclusion of the defense expert testimony in context. First, it should be recognized that as a general matter the presentation of defense witnesses lies at the heart of the defendant’s right to mount a defense. Washington, 388 U.S. at 19 , 87 S.Ct. 1920 . Second, in the context of Moses’s trial, whether his wife committed suicide was critical. There was no question that she was shot in the head. There was no question that Moses’s prints were on the gun. There was no question that Jennifer suffered from major depression and at times had had a suicidal ideation. The issue was whether the jury should believe or reject Moses’s story that his suicidal wife was attempting to kill herself when he unsuccessfully intervened trying to stop her from making the fatal shot. In a sense, we can never know for certain what happened: Did Moses shoot her in cold blood and try to place the blame on her previously expressed suicidal tendencies? Or did she take her own life, ensnaring Moses in culpability because he was there and tried to stop her? In our system of justice, appellate judges must recognize that *768 they can never know for certain what were the underlying facts. Determination of those facts is in the province of the jury. But what we must do is to ensure that the process by which the jury receives the question is a fair one, so that we can have confidence in its determination of criminal guilt beyond a reasonable doubt.

In my view, under the circumstances of Moses’s case, application of Washington’s expert evidentiary rule unconstitutionally denied Moses his right to present a defense to the jury. To put the key issue a different way, did the state’s interest in preventing what the trial judge perceived to be inadmissible testimony under Washington evidentiary rules constitutionally have to make way to Moses’s right to have the jury hear Dr. Wilson’s testimony? To make such a determination in habeas cases, “we employ a balancing test for determining whether the exclusion of testimony violates due process.” Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir.2003) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.1985)). 4 We must “weigh the probative value of the evidence, its reliability, whether the trier of fact can evaluate the evidence, whether the evidence is cumulative, and whether the evidence proves integral to the defense theory” against the state’s interest in excluding the evidence in order to evaluate whether it was constitutionally excluded. Id. (citing Miller, 757 F.2d at 994 ).

Under this test, I conclude that the trial judge improperly excluded the defense expert’s testimony. First, there is no indication that the evidence was not reliable. To the contrary, the trial court excluded the testimony based in part on its assumption that the bulk of Dr. Wilson’s testimony was within the average juror’s “common knowledge,” suggesting that the evidence was in fact not only reliable but plausible. Second, and for similar reasons, Dr. Wilson’s proposed testimony was readily within the jury’s ability to evaluate. Dr. Wilson would have presented no complicated or technical issues for the jury to navigate but rather a straightforward, expert assessment of, among other things, major depression and suicide generally, the implications of a diagnosis with major depression, and potential inconsistencies between the external appearances and the internal state of a depressed and/or suicidal individual.

As for whether the testimony would have been cumulative, as the Washington appellate court noted, the jury ultimately heard much of the evidence concerning Jennifer’s recent treatment history from either the different medical examiners themselves or from an individual from the examiner’s records office who read the contents of the medical file to the jury. However, the jury did not hear the testimony Moses hoped to offer through Dr. Wilson concerning: the unlikelihood that Jennifer would have recovered from her major depression by the time of her death; the higher likelihood that individuals diagnosed with major depression, particularly with Jennifer’s individual risk factors, have of committing suicide than individuals not so diagnosed; the possibility that a significantly depressed person might successfully mask that depression to his or her acquaintances; and the unlikelihood that those who are not experts fully understand the ramifications and nature of major depression. The jury also did not hear Dr. Wilson’s analysis of other evidence of Jennifer’s emotional state, such as her journal entries. Thus the jury did hear some of the information that Dr. Wilson’s testimony would have encompassed, but it never *769 heard substantial portions; the evidence was only partially cumulative.

A defendant in a murder case has an interest in presenting his defense points and themes through witnesses whose views support the defense theory of the case and whose testimony may be ordered in a way aimed at persuading the jury to a conclusion of doubt. Here, if the state trial court had let the defense expert testify, but had imposed some reasonable limit on scope of his testimony, with the aim of managing trial time and avoiding cumulative testimony, no significant constitutional issue could be presented. But in my view what makes the decision of the state trial court an unreasonable application of Supreme Court precedent is the total exclusion of testimony by a key defense expert witness in a murder case on a critical issue that could likely affect the verdict of the jury. Cf. Boykins v. Wainwright, 737 F.2d 1539, 1544-45 (11th Cir.1984) (noting that fundamental fairness is violated when the evidence excluded is material as being crucial, critical, and a highly significant factor in the defense, and concluding that exclusion of defense witness’s testimony concerning defendant’s mental health history violated fundamental fairness when defendant’s sole defense at trial was insanity).

Although I understand the majority’s line of reasoning in analysis, I am left with the conclusion that the expert Dr. Wilson’s testimony was critical to Moses’s case in the full context presented. Moses had admitted not only to his presence when Jennifer died, but that he was either reaching for the gun or actually had his hand on it when it fired. Moses’s trial boiled down to a determination of whether Moses killed Jennifer with the requisite intent or whether Jennifer had committed suicide as Moses tried to stop her. Given this defense theory, Dr. Wilson’s testimony was central to the defense’s case. It was imperative that the jury fully understand not only Jennifer’s history of major depression but also the nature, attending implications, and occasionally-misleading external appearance of major depression and suicidal tendencies generally. Moreover, Moses had an interest in presenting his points of defense through Dr. Wilson who, in a coordinated way, could put together the disparate pieces of the puzzle that Jennifer’s mental health treatment providers, from whom the jury heard portions of Jennifer’s medical records, had presented, and give an overview that would be helpful to the jury’s understanding.

Dr. Wilson’s testimony in my view was of significant probative value. Dr. Wilson’s testimony was aimed at providing framework and context to help the jury make sense of the medical and psychological diagnoses that it heard from other witnesses, to assess the plausibility that Jennifer had committed suicide. The trial judge based his dismissal of Dr. Wilson’s testimony in large part on his assessment that “depressed people are more likely to kill themselves than people who are not depressed. I think the jury understands that,” and a series of corresponding, reductive assessments that “access to guns for people who are depressed is a bad thing.... Drug and alcohol use makes the problem worse[,]” and so on. Although the trial court thus reduced much of Dr. Wilson’s testimony to being common knowledge, and though the specific statements that the trial judge made are indeed arguably common knowledge, or at least common sense, an analysis of Dr. Wilson’s proffered testimony reveals that those simplistic propositions are an unfair characterization of the essence of his testimony. The state trial court would have judged in a more fair procedure if it had let the jury hear the defense’s expert evidence and then make its own decision.

First, it is not without significance that one of the most central points of Dr. Wil *770 son’s testimony — as a renowned, indisputable expert in the field of psychiatry generally and depression specifically — would have been to elaborate on implications of major depression, including the extent to which the reality of major depression in fact diverges from the layperson’s impression. Elaboration on implications of a key illness, and particularly a mental illness, is not in common knowledge of all jurors.

Second, the trial court improperly discarded Dr. Wilson’s proffered testimony about studies, concerning the increased likelihood that a depressed person will commit suicide, that are not within the jury members’ common knowledge. In his offer of proof, Dr. Wilson had discussed, among other things, empirical studies indicating that if one follows a group of people who have major depression over their lifetime, about 15% will kill themselves. Both the trial court and the Washington Court of Appeals diminished this testimony to, in essence, an indication that Jennifer had a 0.25% increased chance of committing suicide during the six-month period preceding her death.

There are flaws with this reasoning. First, this statement and the trial judge’s comment, stated above, about depressed people being more likely than non-depressed people to commit suicide, both misunderstand the import of Dr. Wilson’s testimony: his statement concerns the probability that a depressed person will commit suicide over his/her lifetime, not the extent to which a depressed person is more likely than a non-depressed person to commit suicide. Second, the calculation falsely assumes a linear trajectory that is an inappropriate inference from the statistics Dr. Wilson cites; that the overall percent is 15% does not mean that one can mechanistically divide a depressed person’s life expectancy by a particular time frame to determine in any meaningful way the chances of suicide during that time frame. The state trial court missed the broader message: that people with major depression have a significant likelihood of committing suicide at some point in their lives, and correspondingly, that the lives of 15% of individuals with major depression end in suicide (i.e., the statistic derives its import from a focus on the depressed person’s death, not the life or its duration). Again, the state trial court would have been on sounder ground to let the jury assess the significance of the expert’s testimony, rather than just suggesting it was obvious as well as de minimis and excluding it. The issue was not whether a person with major depression is more likely than other individuals to commit suicide but rather the likelihood that a person with major depression is going to commit suicide at all. To assess that likelihood the jury would have benefited from hearing Dr. Wilson.

The trial court also excluded Dr. Wilson’s testimony on the basis that he could not state, on a more probable than not basis, that Jennifer committed suicide. However, no one who was not a percipient witness could have done so definitively. The case presented very little objective evidence of Jennifer’s mental state in the weeks and days immediately preceding her death. Yet this does not render Dr. Wilson’s testimony any less essential to the jury’s complete picture of Moses’s case. Given the dearth of psychological evidence one way or another, Dr. Wilson’s testimony about the implications of major depression and the unlikelihood of Jennifer’s recovery was pivotal to Moses’s case and all the more constitutionally protected.

Moses’s only defense was that Jennifer had committed suicide. It was essential that the jury understand major depression in conjunction with Jennifer’s history. Exclusion of Dr. Wilson’s testimony handicapped Moses’s ability to impart such an understanding. Stated another way, the *771 defense did not get a fair shot to present its defense theory through expert testimony.

By contrast, the state’s interest in wholly excluding Dr. Wilson’s testimony in this instance was minimal. The trial judge noted that the jury would already know that there were firearms in the Moses home and would hear evidence of Jennifer’s various recent medical and psychological treatments. The trial court summarized the state’s interest, in effect, as follows: “the expert witness testimony ... would be a waste of time. It poses a risk of confusion for the jury and brings us far too far afield of the issues relevant in this case.” However, Moses offered Dr. Wilson’s testimony so that the depression expert could testify on issues at the very heart of Moses’s trial: the likelihood or plausibility that Jennifer had committed suicide and the likelihood that other individuals — Jennifer’s acquaintances and the jury alike-would misunderstand the appearance and ramifications of a “major depression” diagnosis without the insight his testimony would provide. Dr. Wilson’s testimony cannot fairly be characterized either as a waste of time or as “too far afield.” Dr. Wilson was indisputably competent to give his views on depression, and it strains imagination to suggest that his views would have been a time waste and not a help to a jury charged with determining the fate of Moses.

Further, contrary to the trial court’s suggestion, the subject matter posed no likelihood of confusing the jury. Indeed, the trial court’s statement on the one hand that Dr. Wilson’s testimony was, in essence, “common knowledge” is at odds with its subsequent statement, on the other hand, that the testimony poses a risk of jury confusion. And any minimal, potential risk for confusion could have been contained by simple, clarifying cross examination. As for the potential for some aspects of Dr. Wilson’s testimony to be cumulative of points established by testimony from other witnesses, or from documentary sources, a reasonable solution, in light of the fact that Dr. Wilson’s testimony added some additional perspectives about the nature of depression and possibilities of recovering from it, would have been to permit Dr. Wilson’s testimony, but to draw reasonable lines or limits on its scope.

The state’s interest in excluding Dr. Wilson’s testimony was minimal when weighed against Moses’s substantial interest in having the jury hear it, given its centrality to his sole theory of defense. Exclusion of the testimony not only inhibited the jury’s ability to have a clearer picture of the case before it, but it denied Moses his clearly established constitutional right to present a defense to the jury. Just as the Supreme Court in Chambers held that existing constitutional principles determined that the evidence exclusion deprived the defendant of his right to present a defense, here it was an objectively unreasonable application of Washington for the trial court to exclude Dr. Wilson’s testimony- and for the court of appeals to affirm.

Finally, I cannot say that the exclusion of Dr. Wilson’s testimony did not have a “substantial and injurious effect” on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). Dr. Wilson’s testimony was important to the jury’s ability fully to assess the ramifications not only of major depression generally but of Jennifer’s specific past, including her various diagnoses. Given the centrality of this testimony to Moses’s sole theory of defense, I am in “grave doubt” as to the error’s effect, and thus cannot deem the error harmless. See O’Neal v. McAninch, 513 U.S. 432, 436-37 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995). The error significant *772 ly hampered Moses’s ability to present a complete and accurate picture of Jennifer’s mental state at the time of death and its implications for her likely cause of death, and I cannot say that it was not likely to have a substantial and injurious effect on the jury verdict.

Even if the majority were right that we should not apply the balancing test of Miller v. Stagner, I would not view this case in an “open area” where habeas relief is unwarranted. Even without applying a balancing test, I reach the same conclusion simply by recourse to what the Supreme Court said in Washington and its related cases. Our Miller case merely shows a rational way to assess considerations that are pertinent under the Supreme Court’s precedent. This balancing test does not impose a new standard of circuit-made law upon the states. Here, the presentation of a key defense witness was excluded, and Moses did not get the opportunity to fairly present his defense theory.

I reluctantly conclude that Moses was unduly constricted in presenting his defense which was objectively unreasonable, and thereby did not receive a fair trial. The Supreme Court’s Washington decision and related cases are ample precedent to give relief. The case presents a question of high concern because if Moses’s wife committed suicide, then an innocent man is in prison. As noted earlier in such a case we can never be absolutely certain of what truly occurred, and in our system of criminal justice we must rest on the jury’s decision when it has been fully and fairly advised of the defense’s position. Doubtless, the trial court could have limited and circumscribed the scope of testimony from Moses’s expert, but to totally preclude that expert witness from testifying is for me a step drastically too far in a murder case where possible suicide was the critical issue and the deceased had a history of severe depression.

The way the majority reads Musladin and Van Patten would go pretty far in depriving anyone habeas relief who does not have a case identical to one the Supreme Court has already decided. To take that approach reflects an incorrect judgment that may limit the efficacy of habeas relief, an approach particularly ironic in light of the Supreme Court’s recent tribute to habeas jurisdiction in Boumediene v. Bush, — U.S. -, 128 S.Ct. 2229 , 171 L.Ed.2d 41 (2008).

I would therefore reverse the district court’s order denying Moses’s petition for a writ of habeas corpus, and remand the case with instructions to grant the writ and to order the prisoner released absent retrial within a specified period. Thus, I respectfully dissent.

. Reaching this conclusion, I need not, and do not, address any of Moses's remaining arguments. However, if the exclusion of Wilson’s testimony does not in itself require ha-beas relief, then I believe that a very close look would be required at the question whether the cumulative force of trial court rulings, generally denying much of the helpful evidence proffered by Moses and admitting almost whatever the prosecution tendered, offended due process by depriving Moses of a fair trial. The majority never addresses this question.

. Although section 2254(d) mandates that only Supreme Court precedential holdings clearly establish a right, circuit law may be “persuasive authority” on the question of whether a state court’s determination was an unreasonable application of the Supreme Court’s precedent. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999).

. The government's citation to Carey v. Musladin, 549 U.S. 70 , 127 S.Ct. 649 , 166 L.Ed.2d 482 (2006), to support its argument that the Washington state court’s adjudication was not contrary to or an unreasonable application of clearly established federal law, does not avail it. In Musladin , the Supreme Court held that the effect on a defendant’s fair-trial rights of courtroom spectator conduct was an open question in its jurisprudence. Id. at 653. The Court reasoned that it had clearly established the law in this general area only as to government-sponsored practices, not as to spectator conduct. Id. By contrast, in the present case, the Supreme Court has clearly established the applicable law, as outlined above.

Similarly, the majority’s reliance on Wright v. Van Patten, - U.S. -, 128 S.Ct. 743 , 169 L.Ed.2d 583 (2008), is unavailing. In Van Patten , the Supreme Court held that its jurisprudence does not clearly hold that counsel's participation in a plea hearing "by speaker phone should be treated as a 'complete denial of counsel’ on par with total absence.” Id. at 746 . The Court noted that it had clearly established law regarding the finding of a Sixth Amendment violation without inquiring into counsel’s actual performance when "counsel is either totally absent, or prevented from assisting the accused during a critical stage of the proceeding,” but not where counsel participates by speaker phone. Id. at 746 .

Neither of these precedents sufficiently undermines our Circuit law so as to allow the majority to disregard it in light of the standards set in Miller v. Gammie, 335 F.3d 889 (9th Cir.2003). ("Issues decided by [the Supreme Court] need not be identical in order to be controlling [in the Ninth Circuit], Rather, [the Supreme Court] 'must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ ”) Id. at 900 .

. Although Miller itself preceded enactment of AEDPA, we have applied its test after AED-PA to determine what Supreme Court precedent requires. See, e.g., Chia v. Cambra, 360 F.3d 997, 1003-04 (9th Cir.2004).