Willard McCarley v. Bennie Kelly, 801 F.3d 652

Victim Charlene Puffenbarger was murdered in 1992; her three‑and‑a‑half‑year‑old son D.P. made statements shortly after and later to a child psychologist, Dr. Dawn Lord.
Police referred D.P. to Dr. Lord to try to "extract information" for the murder investigation; Dr. Lord prepared three letters describing D.P.’s statements, including an identification of Willard McCarley.
At McCarley’s second trial (2007) Dr. Lord read the letters into evidence over a Confrontation Clause objection; D.P. did not testify at trial because, as an adult, he could not remember the statements.
The Ohio Court of Appeals upheld admission as harmless error; the federal district court denied McCarley’s habeas petition, finding any Crawford error harmless under Brecht.
The Sixth Circuit (en banc panel) concluded the Ohio court unreasonably applied Crawford/Davis, and that the Confrontation Clause violation was not harmless under Brecht, and remanded with instructions to grant a conditional writ of habeas corpus.

Issue	McCarley’s Argument	State’s Argument	Held
Whether D.P.’s statements to Dr. Lord were testimonial (triggering the Confrontation Clause)	Statements were testimonial because police referred D.P. to Dr. Lord to obtain information for investigation and prosecution	Even if error, admission was harmless; and Ohio court had doubts whether statements were testimonial	Court held statements were testimonial: Dr. Lord acted as an agent of law enforcement and elicited past‑event statements absent an ongoing emergency, bringing Crawford/Davis into play
Whether admission of Dr. Lord’s testimony was harmless error under Brecht/Van Arsdall	Error was not harmless because Dr. Lord’s testimony supplied the only eyewitness identification and was central to the prosecution’s narrative	Error harmless: other witnesses gave similar details and corroboration, and the case was strong on other evidence	Court held the error was not harmless: importance of the testimony, lack of cumulativeness, and overall weak physical evidence weighed in favor of prejudice; reversal and a conditional writ ordered

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars admission of testimonial statements absent unavailability and prior cross‑examination)
Davis v. Washington, 547 U.S. 813 (distinguishes testimonial versus nontestimonial statements; primary‑purpose test for police interrogation)
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 prejudice from Confrontation Clause errors)
Harrington v. Richter, 562 U.S. 86 (AEDPA deference; unreasonable‑application standard)
O’Neal v. McAninch, 513 U.S. 432 (judge must ask whether error substantially influenced the jury; grave doubt standard)
Kotteakos v. United States, 328 U.S. 750 (harmless‑error principles and "substantial and injurious" inquiry)
Massiah v. United States, 377 U.S. 201 (impermissible deliberate elicitation by police implicates Sixth Amendment)
Brewer v. Williams, 430 U.S. 387 (impermissible police elicitation of incriminating statements violates Sixth Amendment right to counsel)
Williams v. Taylor, 529 U.S. 362 (definition of "clearly established Federal law" under AEDPA)
Mitchell v. Esparza, 540 U.S. 12 (state‑court harmless‑error determinations can be adjudications on the merits)
Pointer v. Texas, 380 U.S. 400 (Confrontation Clause incorporated against the states)