On remand from the Supreme Court for consideration of Davis v. Ayala, 135 S.Ct. 2187 (2015), the Sixth Circuit (Donald, with Daughtrey and Gibbons) again finds the state prisoner entitled to habeas relief. McCarley v. Kelly, ___ F.3d ___, 2015 WL 5255206 (6th Cir. Sept. 10, 2015). Petitioner was convicted of the aggravated murder of a woman who had filed a paternity suit naming petitioner as the father of her two year old son. The son was present when the victim was killed two months later. At trial, a child psychologist was allowed to testify about statements made by the victim’s son during therapy sessions that were initiated at the suggestion of the police. (The police were unable to extract information from the young boy and hoped the psychologist would be more successful. The psychologist was told to tell the police anything the boy revealed about the crime for use in the investigation.)
In rejecting a Confrontation Clause challenge raised on appeal, the state appellate court expressed doubt whether the statements at issue were testimonial in nature but resolved the claim by finding any constitutional violation harmless. The panel agreed with the district court “that the Ohio Court of Appeals unreasonably applied Crawford and Davis, as fairminded jurists would agree that [the boy’s] statements constitute testimonial evidence where they were deliberately elicited in an interrogation-like atmosphere absent an ongoing emergency and used to prove past events in a later criminal prosecution.” As for prejudice, the panel applied Brecht and concluded that the constitutional error was not harmless given that the psychologist’s “testimony was a crucially important piece of the prosecution's evidence because it contained the only eyewitness identification of [petitioner],” the psychologist’s “testimony was not cumulative, and the overall strength of the prosecution's case against [petitioner] was not overwhelming without [the boy’s] statements.”