Willard McCarley v. Bennie Kelly, 2014 U.S. App. LEXIS 13040

Background

Willard McCarley was convicted of aggravated murder after a second jury trial (first conviction reversed on appeal); sentence: life with parole eligibility after 20 years.
The key evidence against McCarley at the second trial included testimonial hearsay: three letters in which child psychologist Dr. Dawn Lord recorded statements by D.P., the victim’s 3½‑year‑old son, identifying McCarley as the killer.
Lt. Karabatsos had referred D.P. to Dr. Lord, asked her to report anything D.P. said that could aid the investigation, and intended to use her information to identify suspects.
D.P. did not testify about those statements at trial (could not recall), so McCarley had no prior opportunity to cross‑examine him; Dr. Lord read the letters into evidence over objection and the prosecutor relied heavily on them in closing.
The district court found the Ohio courts had unreasonably applied Crawford and that admission of the letters violated the Sixth Amendment, but denied habeas relief as the error was harmless under Brecht; the Sixth Circuit reversed, holding the error was not harmless and granted a conditional writ.

Issues

Issue	Plaintiff's Argument (McCarley)	Defendant's Argument (State)	Held
Whether D.P.’s statements to Dr. Lord were "testimonial" under Crawford/Davis	Statements were testimonial because Dr. Lord questioned D.P. at police request and reported answers for investigation/prosecution	Statements were not testimonial or, at least, admission was harmless because other evidence supported conviction	Held testimonial: police directed the referral; primary purpose was to establish past events for prosecution; Crawford/Davis apply
Whether admission of Dr. Lord’s testimony violated the Confrontation Clause	Violation: D.P. unavailable for cross‑examination and his out‑of‑court testimonial statements were admitted	Error (if any) was harmless because other witnesses and evidence corroborated key points	Held violation; not harmless under Brecht/Van Arsdall — Dr. Lord’s testimony was crucial and noncumulative, so error likely influenced verdict
Standard of review on habeas given state‑court opinion	AEDPA relief valid because state decision unreasonably applied Crawford; district court erred in harmlessness finding	State argued its harmless‑error ruling was an adjudication on the merits and should get AEDPA deference	Held: review de novo — state court did not clearly adjudicate the Confrontation issue on the merits, so no AEDPA deference to harmless‑error conclusion
Remedy on habeas after concluding error was not harmless	Vacatur and new trial/conditional habeas relief requested	Opposed; urged affirmance	Held: Reverse district court; remand with instructions to grant conditional writ of habeas corpus (i.e., release unless retrial occurs)

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (testimonial evidence requires unavailability and prior cross‑examination)
Davis v. Washington, 547 U.S. 813 (statements nontestimonial when primary purpose is to resolve an ongoing emergency; testimonial when aimed to establish past events for prosecution)
Brecht v. Abrahamson, 507 U.S. 619 (habeas harmless‑error standard: "substantial and injurious effect or influence")
Delaware v. Van Arsdall, 475 U.S. 673 (factors for assessing prejudicial impact of Confrontation Clause errors)
Harrington v. Richter, 562 U.S. 86 (presumption that state court adjudicated claims on the merits, rebuttable)
O’Neal v. McAninch, 513 U.S. 432 (judge must ask whether error substantially influenced jury; leave conviction if in grave doubt)
Pointer v. Texas, 380 U.S. 400 (Confrontation Clause incorporated against the States)
Massiah v. United States, 377 U.S. 201 (elicitation by agents can implicate confrontation/counsel rights)
Brewer v. Williams, 430 U.S. 387 (impermissible deliberate elicitation by police violates rights)
Kotteakos v. United States, 328 U.S. 750 (analysis of prejudicial effect of error)