In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2223
OLU A. RHODES,
Petitioner‐Appellant,
v.
MICHAEL A. DITTMANN,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13‐CV‐683 — Pamela Pepper, Judge.
____________________
ARGUED JANUARY 18, 2018 — DECIDED SEPTEMBER 10, 2018
____________________
Before SYKES and HAMILTON, Circuit Judges and LEE,
District Judge.*
HAMILTON, Circuit Judge. Petitioner‐appellant Olu Rhodes
seeks a writ of habeas corpus, arguing that his Sixth Amend‐
ment right to confront witnesses against him was violated.
Rhodes was convicted of first‐degree intentional homicide
* Of the Northern District of Illinois, sitting by designation.
2 No. 17‐2223
and first‐degree recklessly endangering safety for shooting
two victims and killing one: Robert Davis. The State’s theory
at trial was that Rhodes and his brother shot Davis, who was
an ex‐boyfriend of their sister, Nari Rhodes (and that the sur‐
viving shooting victim was at the wrong place at the wrong
time).
Nari had suffered a severe beating the day before Davis
was murdered. She was the only connection between Rhodes
and the victims. The State called her as a witness. Her direct
testimony focused heavily on her injuries from the beating the
day before. But when Rhodes tried to cross‐examine Nari to
rebut the State’s motive theory, the judge limited the ques‐
tioning on this central issue. In essence, the trial court shut
down the defense’s cross‐examination to rebut the prosecu‐
tion’s central theory. Rhodes argues that this violated his
rights under the Confrontation Clause of the Sixth Amend‐
ment.
The Wisconsin Court of Appeals reversed Rhodes’s con‐
viction, finding that his Confrontation Clause rights were vi‐
olated and that the violation was not harmless. State v. Rhodes,
329 Wis. 2d 268 (Wis. App. 2010). A divided Wisconsin Su‐
preme Court reversed that decision, finding no Confrontation
Clause violation and reinstating the conviction. State v.
Rhodes, 336 Wis. 2d 64, 799 N.W.2d 850 (Wis. 2011). Rhodes
then sought a writ of habeas corpus in federal court, arguing
that the Wisconsin Supreme Court’s decision was “contrary
to, or involved an unreasonable application of, clearly estab‐
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). The district court
agreed that Rhodes had indeed shown a clear Confrontation
Clause violation but found that the violation was harmless.
No. 17‐2223 3
Rhodes v. Meisner, 2017 WL 2345671, at *1 (E.D. Wis. May 30,
2017).
We agree with the district court that the state courts vio‐
lated clearly established federal law in violating Rhodes’s
Confrontation Clause rights. Like the other courts that have
reviewed this trial, we recognize that trial judges have consid‐
erable discretion in managing trials and deciding the bound‐
aries of cross‐examination, even by the accused in a criminal
case. The reasoning of the state trial court and the Wisconsin
Supreme Court looks, superficially, like reasoning that re‐
ceives considerable deference in that area. If the defense had
been the party trying to open up the history of domestic vio‐
lence between Nari and the murder victim, perhaps the trial
court’s limits might have seemed within bounds of a trial
court’s discretion.
What happened here was very different, though, as the
state appellate court and federal district court explained. The
prosecution itself first opened up that history of domestic vi‐
olence. But the prosecution then convinced the trial court that
Rhodes’s rebuttal evidence would “confuse” the jury on the
subject. As a result, the defense did not have a fair oppor‐
tunity to rebut the prosecution’s central theory about why
Rhodes would have murdered the victim. As we explain be‐
low, in affirming Rhodes’s convictions, the state supreme
court applied the wrong standard under federal law, and its
rationale was not just wrong but unreasonably so. Even under
the deferential standard of § 2254(d)(1), Rhodes has shown
clear constitutional error. And we must disagree with our col‐
league on the district court, and agree with the state appellate
court, on the issue of harmless error. Given the importance of
the motive issue and the overall balance of evidence in the
4 No. 17‐2223
trial, the constitutional error was not harmless. Rhodes is en‐
titled to a new trial.
I. Factual & Procedural Background
On April 4, 2006, two men shot Robert Davis and Jonte
Watt as they were standing on Watt’s grandparents’ porch.
Davis was shot several times and died at the scene. Watt fled
and suffered one gunshot to his leg. The police investigation
identified Rhodes and his brother, Jelani Saleem, as the shoot‐
ers.
Rhodes and Saleem were tried together. The State’s theory
of the motive for the murder was that on April 4, Rhodes and
Saleem shot Davis as retribution for the attack on their sister
Nari the day before. The prosecutor presented the motive the‐
ory from the start, telling jurors in opening statements that
they would hear about Nari’s injuries and how both defend‐
ants “hunted Robert Davis down and shot him dead” in retal‐
iation. Rhodes’s and Saleem’s defense was that they were not
involved in the shooting and that the two eyewitnesses who
identified them were unreliable. Rebutting the State’s motive
theory was central to the defense.
A. Nari Rhodes’s Testimony
Nari Rhodes’s testimony featured prominently in the
prosecution case. The State called Nari as a witness and ques‐
tioned her about what happened on April 3, the day before
the shooting. Nari testified that she and Davis got into an ar‐
gument that morning. Davis stole her wallet and telephone
and punched her car window so hard that he broke it. Davis
was the father of Nari’s child, and at some point, the State
asked Nari what her relationship was with Davis at the time
of the shooting. Nari responded that they “had had a lot of
No. 17‐2223 5
domestic violence problems,” had not been romantically in‐
volved for a year, and “had just been working on being
friends.”
The afternoon of April 3 took an even more violent turn,
which was the focus of the State’s direct examination and its
motive theory. Nari testified that she drove past Davis’s girl‐
friend’s house that afternoon and saw Davis, and that he
waved her down. She pulled over, thinking he was going to
return her telephone and wallet. Instead, Davis’s girlfriend,
Nancy Segura, approached, and Nari and Segura argued. Ac‐
cording to Nari’s trial testimony, Davis walked away once the
women began arguing. Nari wanted to get out of the car and
fight Segura, but before she could, another woman attacked
Nari from the passenger side of the car. Segura and the other
woman pulled Nari out of the car by her feet. Nari’s head hit
the concrete and she lost consciousness.
The State questioned Nari about her injuries. Nari testified
that she received treatment at a hospital. She had a cut near
her eye, a cut on her lip, four displaced teeth, and “a lot of
skin missing from the right side” of her face. The State intro‐
duced four photographs of Nari’s injuries and showed them
to the jury. This evidence did not concern the fatal shooting
that was being tried, but it was detailed and full‐color evi‐
dence of a separate assault to support the State’s motive the‐
ory.
The State tried twice to get Nari herself to endorse the mo‐
tive theory on direct examination. She was not as cooperative
as the State hoped. She testified that she saw her brothers,
Rhodes and Saleem, when she got home from the hospital on
April 3. She testified that she told them that the two women,
not Davis, were responsible for the beating. She also testified
6 No. 17‐2223
that her brothers were not angry at Davis. Apparently skepti‐
cal, the prosecution asked follow‐up questions:
Q: Well, did they become angry? Either of
them?
A: No.
Q: They just took it calmly?
A: Yes.
Q: That their sister had just been beaten?
A: Yes.
After introducing the photographs of Nari’s injuries, the State
asked Nari again: “And your testimony earlier is that this had
no effect on your brothers?” She answered that her brothers
were mad only at her—for putting herself “in the predicament
to be beaten.”
On cross‐examination, the defense tried to respond to the
State’s motive theory. The defense asked Nari about an earlier
time when Davis himself had beaten her. Rhodes’s attorney
asked the following questions before the State objected:
Q: You did tell us … on direct examination
that there had been domestic violence or
violence between yourself and Davis be‐
fore, right?
A: Yes.
Q: Before that date?
A: Yes.
Q: In fact, Mr. Davis had attacked you pre‐
vious to April 3, 2006; is that right?
No. 17‐2223 7
A: Yes.
Q: And you—On direct examination you
said something to the effect that there
had been a lot of that; is that right?
A: Yes.
* * *
Q: [I]n your conflict with Mr. Davis, have
there been other times when you’ve been
injured?
A: Yes.
Q: And what injuries had you received?
A: One side—My orbital bone in my eye
was broken and it was like really bad.
At that point, the State objected and the judge held a side‐
bar conference off the record. In a later proffer on the record,
Rhodes’s attorney said that he would have asked Nari more
questions to rebut the State’s motive theory. He said:
She said her orbital bone had been broken.
That’s a fairly serious injury. My next question
would have been, well, what’s your orbital
bone? The question—She would have described
as something around her eye.
After that I would have asked her did she
make her brothers aware of that injury and who
would have inflicted it and she would have said
yes. There was no response from the brothers.
The State objected that it did not have notice of that particular
incident of abuse or that the defense would make “a history
of domestic abuse” by Davis an issue. The State also argued
8 No. 17‐2223
that the court had previously ruled that both sides could
make general references to domestic abuse, but could not go
through individual prior acts, invoking Wis. Stat. § 904.04, the
Wisconsin analog to Federal Rule of Evidence 404, which re‐
stricts the use of evidence of a person’s prior bad acts.
The court sustained the State’s objection and cut off cross‐
examination on the subject. It agreed with the State’s under‐
standing of its prior evidentiary ruling that the defense was
not permitted to make an incident‐by‐incident inquiry into
Davis’s prior violent abuse of Nari. The judge also reasoned
that the parties should “not get into evidence—extraneous ev‐
idence that would mislead the jury on other issues in a trial
within a trial which is the concern.”
B. Other Evidence
Jonte Watt, who survived his gunshot wound, testified
that Rhodes and Saleem were the shooters. Watt’s girlfriend,
who said she saw the shooting from a parked car, also identi‐
fied Rhodes and Saleem. A police officer testified that he ar‐
rived at the scene within three minutes and that Watt—bloody
and on the ground—told him that Rhodes and Saleem had
shot him. Watt also later identified Rhodes and Saleem in pho‐
tograph arrays.
Another police officer testified that he questioned Letitia
Dotson, the mother of Rhodes’s child, about phone calls Dot‐
son received from Rhodes after the shooting. According to the
officer, Dotson told him that Rhodes called and said that he
had shot Davis. A second police officer, who had also partici‐
pated in the Dotson interview, corroborated this account. The
No. 17‐2223 9
State also offered evidence showing that a cell phone associ‐
ated with Saleem was used in the neighborhood of the shoot‐
ing in the relevant time frame.
The defense poked such significant holes in the State’s case
that Saleem was found not guilty. The defense focused on in‐
consistencies in Watt’s and Walker’s testimony, including
shifting stories about what the shooters were wearing and the
witnesses’ failure to notice a significant height difference be‐
tween Saleem and Rhodes. The defense also highlighted the
fact that Watt’s grandfather, who testified that he stared one
shooter in the eyes for five seconds, could not identify that
shooter as either of the defendants. The defense also showed
that Rhodes lived around the corner from where the shooting
took place, that Watt and Walker knew Rhodes by sight before
the crime, and that the cell phone location data was consistent
with the brothers making phone calls from Rhodes’s own
home. Dotson also testified, and she denied ever telling the
police that Rhodes called her about shooting Davis.
Rhodes testified in his own defense. He testified that he
did not shoot Davis. He claimed that on the day of the shoot‐
ing, he was driving around the neighborhood looking for ma‐
rijuana. He testified that he had known for at least a year be‐
fore the shooting that Davis abused Nari, and that he had a
physical confrontation with Davis the first time he found out
about an abusive incident. In that confrontation, Rhodes and
his cousins threw Davis out of their house. But after that inci‐
dent, Rhodes testified, he “left it alone” because Nari kept go‐
ing back to Davis. Rhodes also testified that Nari did not
blame Davis for the most recent beating, the day before Davis
was shot and killed.
10 No. 17‐2223
C. Closing Arguments
The State returned to the motive theory to wrap up its clos‐
ing arguments. After reminding the jury that it did not need
to find a motive to convict, the State argued that “in this par‐
ticular case, there is a motive.” The State argued that Davis
broke Nari’s car window and that “he set up her beating.”
While displaying the color photographs of Nari’s injuries, the
State told the jury: “this is what the defendant[s] saw when
she came home from the hospital, and this is what they sought
to avenge by killing Robert Davis.”
Recognizing that Nari’s testimony was not entirely favor‐
able to the State, the prosecution finished its closing argument
by challenging both Nari’s and Rhodes’s credibility:
[A]nd now Nari Rhodes attempted to mini‐
mize it, and Olu Rhodes says “I had given up,”
and that just doesn’t make sense. It doesn’t
make sense at all.
What makes sense is that they were horrified
and angered by the fact that Nari Rhodes took
such a bad beating at the hands of Robert Davis’
other girlfriend. That is why they went out. That
is why Olu Rhodes followed them on that morn‐
ing and early afternoon, and that is why they
shot and killed Robert Davis.
I’m asking you to find both defendants
guilty of first degree intentional homicide as
party to a crime and first degree recklessly en‐
dangering safety as party to a crime. Thank you.
No. 17‐2223 11
During the rebuttal closing argument, the State returned to
the motive theory, again challenging Nari’s and Rhodes’s tes‐
timony as not credible:
When you look at their version, Nari Rhodes
comes home beaten like this after a history of
abuse according to them at the hands of Robert
Davis. They know Robert Davis had broken out
her window, that they just shrug their shoulders
and said nothing. That doesn’t make sense. It
doesn’t make sense to me.
Toward the very end of rebuttal, the State again challenged
Nari’s credibility: “Nari Rhodes’ testimony. I can only say
that she is the sister of the defendants. Place this in terms of
how you weigh her credibility.”
The jury deliberated for two days. The jury found Saleem
not guilty on both charges but convicted Rhodes of both first‐
degree intentional homicide and first‐degree recklessly en‐
dangering safety. The court sentenced Rhodes to life in
prison.
D. State Post‐Trial Proceedings
Rhodes appealed. As relevant here, he argued that the trial
court violated his rights under the Confrontation Clause of
the Sixth Amendment when it limited his cross‐examination
of Nari. The Wisconsin Court of Appeals agreed with Rhodes.
That court held that the trial judge had exceeded her “wide
latitude” to impose reasonable limitations on cross‐
examination, in violation of the Sixth Amendment. 329 Wis.
2d 268 at ¶10. The Court of Appeals also found that the State
had not shown that the error was harmless beyond a
reasonable doubt, the harmless‐error standard that applies on
12 No. 17‐2223
direct review of Confrontation Clause violations. The Court
of Appeals remanded for a new trial. 329 Wis. 2d 268 at ¶10 &
n.1.
In a divided opinion, the Wisconsin Supreme Court re‐
versed. The majority summarized United States Supreme
Court precedent on the Confrontation Clause but then held
that the balancing test under Wis. Stat. § 904.03—the equiva‐
lent of Federal Rule of Evidence 403—applied “to discretion‐
ary decisions” to exclude evidence “when the defendant’s
right to cross‐examination under the confrontation clause
may be implicated.” 336 Wis. 2d at 81–83, 799 N.W.2d at 859,
¶¶41, 44. The court applied § 904.03 and found that the trial
judge did not abuse its discretion by excluding confusing and
misleading evidence. 336 Wis. 2d at 90–91, 799 N.W.2d at 863,
¶¶68–70. The Wisconsin Supreme Court did not reach the
question of harmless error.
Two justices dissented, saying that the “defendant had a
fundamental constitutional right to confront this witness and
test the probative value of the testimony through cross‐
examination.” 336 Wis. 2d at 92, 799 N.W.2d at 864, ¶75
(Abrahamson, C.J., dissenting). The dissent said the majority
had erred by applying the § 904.03 balancing test to Rhodes’s
constitutional challenge, urging that the “fundamental
constitutional right of confrontation surely affords the
defendant more protection and leeway in cross‐examining a
witness than the standard analysis used in discretionary
evidentiary decisions” when that right is not implicated. 336
Wis. 2d at 93–94, 799 N.W.2d at 865, ¶80.
No. 17‐2223 13
E. Federal Habeas Corpus Proceedings
Rhodes then filed a petition for a writ of habeas corpus in
federal court. Despite having argued in state court that any
error was harmless, the State did not raise harmless error in
its response to Rhodes’s petition. In his reply brief, Rhodes
asserted that the State had waived harmless error review.
After briefing, the case was reassigned to Judge Pepper,
who acted sua sponte to order briefing on harmless error.
Judge Pepper reasoned that she could revive a waived or for‐
feited issue if she gave the parties notice and an opportunity
to brief it. In briefing, Rhodes maintained that the State had
waived harmless error review and that the Sixth Amendment
error was not harmless. The State argued that the district
court could raise harmless error sua sponte and that any error
was harmless.
After the supplemental briefing, the district court denied
Rhodes’s petition for a writ of habeas corpus. The court first
found that the Wisconsin Supreme Court had unreasonably
applied clearly established Supreme Court precedent inter‐
preting the Confrontation Clause. The court also found, how‐
ever, that it could not grant the writ without engaging in
harmless error review. The district court went on to hold that
the Sixth Amendment error was harmless in light of the evi‐
dence against Rhodes. The court denied Rhodes’s petition but
granted a certificate of appealability.
II. Analysis
We have jurisdiction under 28 U.S.C. § 2253(a), and we re‐
view de novo the district court’s denial of habeas corpus relief.
E.g., Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015). Because
the Wisconsin Supreme Court rejected Rhodes’s Sixth
14 No. 17‐2223
Amendment claim on the merits, the Antiterrorism and Effec‐
tive Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), governs
our review. A federal court cannot grant a writ of habeas cor‐
pus on Rhodes’s claim unless the state court’s decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su‐
preme Court of the United States.” 28 U.S.C. § 2254(d)(1). This
standard is quite deferential, though federal courts do not and
should not merely rubber‐stamp approval of state‐court deci‐
sions that stray too far from federal constitutional require‐
ments. To obtain relief, Rhodes must show not just that the
state court’s ruling was wrong, but that it was “so lacking in
justification that there was an error well understood and com‐
prehended in existing law beyond any possibility for fair‐
minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011). This standard is “difficult to meet,” and was “meant to
be.” Id. at 102.
This case lies close to the boundary between the “contrary
to” and “unreasonable application” branches of § 2254(d)(1),
depending on how one reads the state supreme court’s opin‐
ion. “A federal habeas court may issue the writ under the
‘contrary to’ clause if the state court applies a rule different
from the law set forth in our cases, or if it decides a case dif‐
ferently than we have done on a set of materially indistin‐
guishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002), citing
Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (O’Connor, J.,
concurring). A state court unreasonably applies clearly estab‐
lished Supreme Court precedent “if the state court identifies
the correct governing legal principle” but “unreasonably ap‐
plies that principle to the facts of the petitioner’s case.” Wig‐
gins v. Smith, 539 U.S. 510, 520 (2003) (internal quotations
omitted). That is a high bar: “to grant relief, the state court’s
No. 17‐2223 15
decision must be objectively unreasonable, not merely incor‐
rect.” Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016),
citing Wiggins, 539 U.S. at 520–21.
Even under this demanding standard, Rhodes is entitled
to federal habeas corpus relief. The Wisconsin Supreme Court
decision was actually both contrary to and an unreasonable
application of clearly established Supreme Court precedents
recognizing the right of the accused to cross‐examine wit‐
nesses on issues central to the case. It was contrary to Olden v.
Kentucky, 488 U.S. 227 (1988) (per curiam), and Delaware v. Van
Arsdall, 475 U.S. 673 (1986), which held that trial courts cannot
routinely apply Rule 403 balancing to prevent defendants
from cross‐examining witnesses on issues central to the case.
Even if it were not contrary to these two holdings, we must
conclude that the rationale of the state court decision is so un‐
reasonable that it is beyond “fairminded disagreement.” Rich‐
ter, 562 U.S. at 103. No fairminded jurist could find that the
defense’s cross‐examination of Nari would confuse the issues
or mislead the jury when it was the State, not Rhodes, that
made past abuse and motive central issues. The restrictions
produced an unfair trial in which the State was allowed to put
the murder victim on trial to prove its motive theory, but the
defense did not have a fair opportunity to rebut that theory,
supposedly for fear of jury “confusion.”
A. The Confrontation Clause
The Confrontation Clause of the Sixth Amendment
guarantees the right of the criminal accused “to be confronted
with the witnesses against him.” This right applies equally in
federal and state prosecutions, Pointer v. Texas, 380 U.S. 400,
403 (1965), and “means more than being allowed to confront
the witness physically,” Davis v. Alaska, 415 U.S. 308, 315
16 No. 17‐2223
(1974). The Supreme Court has repeatedly held that the “main
and essential purpose of confrontation is to secure for the
opponent the opportunity of cross‐examination.” Van Arsdall, 475
U.S. at 678 (1986) (emphasis in original), quoting Davis, 415
U.S. at 315–16; see also Chambers v. Mississippi, 410 U.S. 284,
295 (1973) (referring to the “rights to confront and cross‐
examine witnesses” as “long … recognized as essential to due
process”); Smith v. Illinois, 390 U.S. 129, 131 (1968) (referring
to denial of cross‐examination as “constitutional error of the
first magnitude”), quoting Brookhart v. Janis, 384 U.S. 1, 3
(1966); Douglas v. Alabama, 380 U.S. 415, 418 (1965)
(summarizing Supreme Court precedent as holding “that a
primary interest secured by” the Sixth Amendment “is the
right of cross‐examination”). Cross‐examination is “an
essential and fundamental requirement for the kind of fair
trial which is this country’s constitutional goal.” Pointer, 380
U.S. at 405. It “is the principal means by which the
believability of a witness and the truth of his testimony are
tested.” Davis, 415 U.S. at 316.
Because AEDPA governs this case, the question is whether
the Wisconsin Supreme Court decision was contrary to or an
unreasonable application of Supreme Court precedent inter‐
preting the Confrontation Clause. We conclude that it was
both.
1. “Contrary to” Controlling Precedent
First, the state court applied the wrong legal standard. It
is clearly established that the Sixth Amendment limits the trial
court’s ordinary discretion to limit cross‐examination. The
Supreme Court has held that ordinary rules of evidence must
give way when they prevent a defendant from presenting
evidence central to the defense, including through cross‐
No. 17‐2223 17
examination. Olden, 488 U.S. at 232; Van Arsdall, 475 U.S. at
679–80; Davis, 415 U.S. at 319 (finding state’s interest in
maintaining anonymity of juvenile offenders was
“outweighed by petitioner’s right to probe into the influence
of possible bias” through cross‐examination); see also
Chambers, 410 U.S. at 295–98 (finding that state could not
apply common‐law evidentiary rule to limit cross‐
examination of key witness); id. at 302 (finding that hearsay
rule cannot be applied mechanistically when it undermines
fundamental elements of defense). And most important for
our analysis—because we cannot take the Court’s precedents
at too high a level of generality, Carey v. Musladin, 549 U.S. 70
(2006)—it is clearly established that a trial court violates the
Confrontation Clause when it routinely applies Rule 403
balancing to limit cross‐examination by the accused on issues
central to the defense. Olden, 488 U.S. at 232; Van Arsdall, 475
U.S. at 679–80; see also Redmond v. Kingston, 240 F.3d 590, 592
(7th Cir. 2001) (granting habeas relief under § 2254(d)(1) for
Confrontation Clause violation when Wisconsin applied
§ 904.03 to exclude “highly probative, noncumulative,
nonconfusing, nonprejudicial evidence” that was “vital to the
central issue in the case”).
In Van Arsdall, the Supreme Court affirmed a state su‐
preme court decision that found a Confrontation Clause vio‐
lation. The trial court had relied on the state’s Rule 403 to bar
cross‐examination of a prosecution witness about possible
bias stemming from charges pending against that witness.
The Supreme Court agreed with the state supreme court that
the Confrontation Clause was violated:
[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose
18 No. 17‐2223
reasonable limits on such cross‐examination
based on concerns about, among other things,
harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is re‐
petitive or only marginally relevant. And as we
observed earlier this Term, “the Confrontation
Clause guarantees an opportunity for effective
cross‐examination, not cross‐examination that
is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fen‐
sterer, 474 U.S. 15, 20 (1985) (per curiam) (em‐
phasis in original).
In this case, however, the trial court prohib‐
ited all inquiry into the possibility that [witness]
Fleetwood would be biased as a result of the
State’s dismissal of his pending public drunken‐
ness charge. By thus cutting off all questioning
about an event that the State conceded had
taken place and that a jury might reasonably
have found furnished the witness a motive for
favoring the prosecution in his testimony, the
court’s ruling violated respondent’s rights se‐
cured by the Confrontation Clause.
Van Arsdall, 475 U.S. at 679. The Van Arsdall Court went on to
vacate for fresh consideration of whether the violation was
harmless.
Two years later, the Court treated the holding of Van
Arsdall as so clear that it warranted summary reversal of a
state court’s reliance on Rule 403. In Olden, the defendant was
convicted of rape and related crimes. The defendant asserted
a defense of consent. He wanted to attack the complainant’s
No. 17‐2223 19
credibility by showing that she lived with her boyfriend and
was lying to protect her relationship with her boyfriend. 488
U.S. at 229–30. The state trial court did not allow cross‐
examination along those lines, reasoning that the evidence
would be relevant but should be excluded because its
probative value was outweighed by its possibility for
prejudice. Id. at 230–31.
The state appellate court affirmed, but the Supreme Court
reversed summarily, rejecting this attempt to apply Rule 403‐
type balancing to such a central issue in the criminal case. The
Court explained:
Nonetheless, without acknowledging the
significance of, or even adverting to, petitioner’s
constitutional right to confrontation, the [state]
court held that petitioner’s right to effective
cross‐examination was outweighed by the dan‐
ger that revealing [the victim’s] interracial rela‐
tionship would prejudice the jury against her.
While a trial court may, of course, impose rea‐
sonable limits on defense counsel’s inquiry into
the potential bias of a prosecution witness, to
take account of such factors as “harassment,
prejudice, confusion of the issues, the witness’
safety, or interrogation that [would be] repeti‐
tive or only marginally relevant,” Delaware v.
Van Arsdall, [475 U.S.] at 679, the limitation here
was beyond reason. Speculation as to the effect
of jurors’ racial biases cannot justify exclusion of
cross‐examination with such strong potential to
demonstrate the falsity of [the victim’s] testi‐
mony.
20 No. 17‐2223
488 U.S. at 232. The Supreme Court found that the state court
had “failed to accord proper weight to petitioner’s Sixth
Amendment right ‘to be confronted with the witnesses
against him.’” Id. at 231.
Rhodes’s case presents the same tension between Rule 403
balancing and the Confrontation Clause rights of the accused.
The State called Nari Rhodes as a witness to present evidence
of its motive theory, which the State introduced as the central
narrative from the start of the trial. On direct examination, the
State asked Nari about her relationship with Davis and his vi‐
olence towards her. Rhodes tried to cross‐examine Nari on the
same issues, to “delve into the witness’ story to test the wit‐
ness’ perceptions and memory,” and to explore her reliability
as a witness. Delaware v. Fensterer, 474 U.S. 15, 19 (1985) (per
curiam), quoting Davis, 415 U.S. at 316. As in Olden and Van
Arsdall, and our decision in Redmond, the cross‐examination
would have been relevant and probative to central issues in
the trial.
The Wisconsin Supreme Court failed to apply the princi‐
ple established in Olden and Van Arsdall: it applied only Rule
403 balancing when deciding whether Rhodes’s rights under
the Confrontation Clause were violated. The state supreme
court cited Van Arsdall and Davis v. Alaska, see 336 Wis. 2d at
77–79, 799 N.W.2d at 857, ¶¶29–32, but it did not follow the
Supreme Court’s holdings in those cases. Instead, the state
court then wrote that Wisconsin’s Rule 403 (Wis. Stat.
§ 904.03) provided the applicable rule, even for limits on a
criminal defendant’s right to cross‐examine witnesses: “We
apply the same analysis to discretionary decisions when the
defendant’s right to cross‐examination under the confronta‐
tion clause may be implicated.” 336 Wis. 2d at 83, 799 N.W.2d
No. 17‐2223 21
at 859, ¶44. The state court’s opinion went on to make unmis‐
takably clear that it was applying the ordinary Rule 403 dis‐
cretionary rule. 336 Wis. 2d at 83–84, 799 N.W.2d at 859–60,
¶¶45–48, citing State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418
(Wis. 1996) (where testimony sought was not relevant, de‐
fendant’s Sixth Amendment right to confront witness was not
violated). Turning to Rhodes’s case, the state supreme court
actually recognized that the testimony he sought to admit
“would have been relevant.” 336 Wis. 2d at 87, 799 N.W.2d at
861–62, ¶58. The court went on to hold, however, that the trial
court did not abuse its discretion under § 904.03 by excluding
the evidence because of the danger of confusion of the issues
and misleading the jury. 336 Wis. 2d at 87, 799 N.W.2d at 862,
¶¶59–60.
That analysis was contrary to clearly established Supreme
Court precedent holding that the Confrontation Clause is not
satisfied merely because the evidence offered by the accused
might be excluded properly under Rule 403 or its equivalent.
Olden, 488 U.S. at 232 (per curiam); Van Arsdall, 475 U.S. at
679–80. The Confrontation Clause demands careful scrutiny
of the purported reason for limiting cross‐examination. See
Maryland v. Craig, 497 U.S. 836, 848 (1990) (“Thus, in certain
narrow circumstances, ‘competing interests, if “closely exam‐
ined,” may warrant dispensing with confrontation at trial.’”),
quoting Chambers, 410 U.S. at 295; Olden, 488 U.S. at 232 (per
curiam); Van Arsdall, 475 U.S. at 679–80. In applying ordinary
Rule 403 balancing, without giving any special consideration
to the defendant’s constitutional right to confront witnesses
against him, the state supreme court’s decision was contrary
to controlling United States Supreme Court precedent.
22 No. 17‐2223
2. “Unreasonable Application” of Controlling Precedent
If there were doubts under the “contrary to” clause in
§ 2254(d)(1)—that is, even if we assume that Supreme Court
precedent on the Sixth Amendment did not clearly require
something other than ordinary Rule 403 balancing, or if we
assume, despite its express language otherwise, that the state
supreme court applied the correct standard—the state court’s
balancing was not reasonable in this case. The “denial or sig‐
nificant diminution” of cross‐examination “requires that the
competing interest be closely examined” because it “calls into
question the ultimate ‘integrity of the fact‐finding process.’”
Chambers, 410 U.S. at 295, quoting Berger v. California, 393 U.S.
314, 315 (1969). Here, the trial court found that Rhodes’s cross‐
examination of Nari would confuse the issues, mislead the
jury, and prejudice the victim. The state supreme court agreed
that these concerns were weighty enough to justify prevent‐
ing Rhodes from questioning Nari on relevant, probative is‐
sues. The court’s rationale simply does not hold up once one
looks closely at the trial. Rhodes’s cross‐examination could
not have done any of these things because he was not the
party who made Davis’s violence toward Nari and the ques‐
tion of motive central issues in the case. The prosecution built
its case by raising both issues. This contradiction was so clear
as to make the state court’s contrary conclusion not just an
ordinary error, which would not support federal habeas relief
under § 2254(d)(1), but an error that went beyond fairminded
disagreement.
The state court’s majority opinion rejected the Confronta‐
tion Clause claim on the rationale that the defense’s intended
lines of questioning would have confused or misled the jury
or prejudiced the victim. This rationale lost sight of the facts
No. 17‐2223 23
of the case and the dynamics of the trial. It applied an analysis
that might have made sense if the defense had been trying to
open up the issue of the history of Davis’s violence against
Nari, but not where the State itself had already introduced the
subject to prove motive. Here is the heart of the state court’s
explanation:
¶ 62 Judge McMahon was concerned that the
jury would be misled into an improper focus on
questions about motive and the alleged history
of abuse between the victim and Nari. There
was also the possibility that if Rhodes were al‐
lowed to emphasize his rebuttal theory he
would not have retaliated against Davis for the
April 3 incident because he had not retaliated
against him before, he would have confused the
issues. First, such testimony would, in effect,
have put Davis—the deceased victim—on trial
for alleged prior incidents of domestic violence.
Second, it would have required the jury to spec‐
ulate as to whether a lack of retaliation for Da‐
vis’s prior assaults on Nari magnified Rhodes’
motive in this instance. Both were legitimate
concerns.
¶ 63 At the same time, Judge McMahon was
clearly mindful of the importance of allowing
Rhodes to rebut the State’s theory of motive.
Both Nari and Rhodes were allowed to present
their side of the story to rebut the State’s theory
of motive. The jury could reasonably have
viewed their testimony as contradicting the
State’s theory.
24 No. 17‐2223
¶ 64 If anything, Nari’s testimony seemed to
refute the State’s theory of motive, because she
testified that she and Davis had a friendly rela‐
tionship, and that Davis repeatedly warned her
to leave the scene when Segura arrived and be‐
came angry. Nothing in her testimony sug‐
gested that she believed Davis orchestrated the
beating she received at the hands of Segura and
Bell. According to her testimony, Nari told her
brothers that the two women were responsible,
not Davis, and that the brothers took the news
calmly. Counter to the State’s theory that
Rhodes and Saleem believed Davis was respon‐
sible, Nari testified that her brothers were upset
that she had put herself in the situation because
of the bad blood between Nari and Segura, not
between Nari and Davis.
336 Wis. 2d at 88–89, 799 N.W.2d at 862 ¶¶62–64.
First, we do not see how the state court could reasonably
find in Rhodes’s proposed cross‐examination a legitimate
concern about an “improper focus on questions about motive
and the alleged history of abuse between the victim and
Nari.” Questions of “motive and the alleged history of abuse”
were already a central part of the trial. The State, not Rhodes,
had already put both of those subjects squarely before the
jury. The State raised motive in its opening statement. The
State called Nari as a witness. The motive theory was the only
point of her testimony. The State questioned her about her in‐
juries and introduced graphic photographs of her injuries.
The State then featured those photographs prominently in
closing arguments, displaying them to the jury and arguing
No. 17‐2223 25
that “this is what the defendant[s] saw when [Nari] came
home from the hospital.” The State urged the jury: “this is
what they sought to avenge by killing Robert Davis.”
We do not see how it could be “improper” to allow the
defense to respond, and with evidence the state supreme
court itself recognized was relevant. In light of the State’s re‐
peated emphasis on Rhodes’s alleged motive, the conclusion
that Rhodes’s questioning about the rest of the Nari/Davis
story would mislead the jury into an improper focus on mo‐
tive was “so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Richter, 562
U.S. at 103. It was the State itself that wanted the jury to focus
on motive.
Second, for essentially the same reasons, we do not see
how the state court could reasonably have found a risk that
Rhodes’s rebuttal evidence on cross‐examination would have
“confused the issues” by “in effect, [putting] Davis—the de‐
ceased victim—on trial for alleged prior incidents of domestic
violence,” or by requiring the jury “to speculate as to whether
a lack of retaliation for Davis’s prior assaults on Nari magni‐
fied Rhodes’ motive in this instance.” 336 Wis. 2d at 88, 799
N.W.2d at 862, ¶62. Under other circumstances, those might
have been “legitimate concerns,” in the court’s words, but not
after the State put on its motive evidence. It was the State itself
that “in effect put Davis on trial” for the April 3 assaults. It
was the State that invited the jury to—call it “speculate” or
call it “infer”—from Nari’s injuries on April 3 that Rhodes and
Saleem would have been motivated to shoot Davis. Rhodes
wanted to respond by asking the jury to infer, from testimony
that Nari could have provided, that he was not motivated to
26 No. 17‐2223
kill Davis. We see no qualitative differences between the very
recent violence (the day before the murder) and the evidence
that Nari could have provided about earlier instances of
abuse, which did not provoke her brothers.
The fact that past similar provocations by Davis had not
driven Rhodes or Saleem to violence was certainly relevant,
as the state supreme court acknowledged. In fact, the state
court found Rhodes’s intended cross‐examination “confus‐
ing” for the precise reasons that it was relevant and probative:
it would have provided facts from which the jury could infer
the Rhodes was motivated—or not—to kill Davis. A jury that
heard the full story of Davis’s violence against Nari might
well have concluded that she was testifying truthfully and
that Rhodes had given up trying to protect her from this abu‐
sive relationship. Or perhaps that hypothetical jury might
have concluded, as the State hoped, that even if Rhodes was
not angry in the past, the beating on April 3 was the final
straw for him. The notion that the State could put on its evi‐
dence of motive but that rebuttal evidence would “confuse”
the jury misunderstands the role of the jury. It is not to be pro‐
tected from evidence that would directly rebut the State’s the‐
ory. Giving the jury conflicting evidence relevant to that ques‐
tion cannot reasonably be called “confusing” the jury within
the meaning of the rules of evidence. At the risk of sounding
trite, that’s what we ask juries to do: sort out conflicting evi‐
dence.
Finally, the state court’s third rationale for limiting cross‐
examination—the potential for unfair prejudice to Davis—is
equally unreasonable. The State had already painted Davis in
a negative light. The State’s direct examination focused on a
fight earlier on April 3, the day before the shooting, in which
No. 17‐2223 27
Davis stole Nari’s keys, wallet, and phone, scared her by an‐
grily trying to pull their baby from the car, and got so angry
that he punched and broke her car window.
The State’s questions then shifted to the brutal beating of
Nari that same afternoon—a beating that the State wanted the
jury to believe that Davis caused. And Nari had already testi‐
fied on direct and cross‐examination that Davis had abused
her in the past. By the time the court cut off cross‐examination,
she had also testified that Davis had beaten her in the past,
including breaking her orbital bone. Rhodes’s counsel was
prohibited from asking follow‐up questions that would have
added little if any prejudice to Davis, specifically: what an or‐
bital bone is; whether her brothers were aware of that previ‐
ous injury; and whether they had reacted to that beating.
Rhodes was unable to question Nari about her repeated re‐
turns to Davis, which he claims led him and his brother to
give up on their efforts to protect her from Davis. These addi‐
tional questions could not have been unfairly prejudicial to the
prosecution. See Redmond, 240 F.3d at 592. They were “preju‐
dicial” only insofar as they presented facts that could lead a
jury to reject the State’s theory of a motive and to raise reason‐
able doubts about whether Rhodes shot and killed Davis.
In Paragraphs 63 to 66 of its opinion, the state supreme
court took a different approach, asserting in effect that the
trial judge had struck a reasonable balance between compet‐
ing interests. The court asserted that both Nari and Rhodes
“were allowed to present their side of the story to rebut the
State’s theory of motive,” that Nari’s direct testimony actually
helped Rhodes on the issue of motive, and that more evidence
about the history of Davis’s abuse of Nari, and the brothers’
28 No. 17‐2223
lack of violent response, would not likely have helped the de‐
fense. 336 Wis. 2d at 88–90, 799 N.W.2d at 862–63, ¶¶63–66. In
this appeal, the State makes similar arguments. It argues that
Rhodes had a sufficient opportunity to cross‐examine Nari
and implies that Rhodes’s Sixth Amendment rights were sat‐
isfied because he was able to testify on similar topics himself.
Neither argument cures the basic unfairness of the state
court decision. The notion that Nari and Rhodes were
“allowed to present their side of the story” cannot be squared
with the trial record. Yes, they managed to fit in a conclusory,
bobtailed version of the rebuttal. But that was matched up
against the State’s detailed and full‐color presentation of its
motive theory limited to the April 3 beating. The Sixth
Amendment guarantees only “an opportunity” to cross‐
examine the witness, Fensterer, 474 U.S. at 20, but the Sixth
Amendment is not satisfied when the defendant is permitted
to ask only general questions. Davis, 415 U.S. at 318. To make
cross‐examination “effective, defense counsel should have
been permitted to expose to the jury the facts from which
jurors, as the sole triers of fact and credibility, could
appropriately draw inferences relating to the reliability of the
witness.” Id.
And it makes no difference that Rhodes himself testified
on the topic, albeit also in a very limited way. The focus of the
analysis for “whether the confrontation right has been vio‐
lated must be on the particular witness,” not on whether the
defendant could admit similar evidence through other means.
Van Arsdall, 475 U.S. at 680. Any suggestion that the accused’s
own testimony is a sufficient substitute is unreasonable and
not supported by precedent. Every trial lawyer and trial judge
understands that the accused’s own testimony poses unique
No. 17‐2223 29
credibility problems. He has the greatest incentive to lie or
conceal. That’s why corroborating testimony from other wit‐
nesses—even from family members—can be essential for the
accused.
To the extent the state court was suggesting the re‐
strictions on cross‐examination of Nari were not actually
harmful to the defense, that view is not consistent with this
trial record or the realities of trials. To start, the state supreme
court stated expressly that it was not deciding the issue of
harmless error. 336 Wis. 2d at 91, 799 N.W.2d at 863, ¶69 n.8.
(Recall that the state appellate court found that the Confron‐
tation Clause violation was not harmless.) Plus, the state su‐
preme court was surely correct in saying: “In the end, the jury
was required to make a determination of credibility as to the
testimony presented.” 336 Wis. 2d at 89, 799 N.W.2d at 863,
¶66. The problem is that the jury heard a badly lopsided
presentation of evidence on the motive theory. Given the un‐
fair skewing of the opposing sides’ opportunities to address
motive, we do not see how the state supreme court could rea‐
sonably assert with any confidence that a more detailed ac‐
count of the relevant facts was unlikely to cause the jury to
doubt Rhodes’s guilt.
The State raises one additional point that warrants atten‐
tion. At oral argument, the State suggested that Rhodes’s
cross‐examination would not have addressed Nari’s credibil‐
ity or reliability. The state court suggested something similar,
mentioning briefly that if Rhodes had attempted to challenge
Nari’s motivation or credibility, “we might have a different
case.” 336 Wis. 2d at 84–85, 799 N.W.2d at 860, ¶51. But
Rhodes was attempting to cross‐examine Nari about her cred‐
ibility and reliability. The State’s theory was that Rhodes
30 No. 17‐2223
killed Davis to avenge Nari. Once Nari testified that Rhodes
was not angry about the beating, the State attacked her credi‐
bility, arguing she was lying on that point to protect her broth‐
ers. The State said as much during closing arguments. The
prosecution argued that it “doesn’t make sense at all” that
Rhodes was not angry, and that what “makes sense is that
they were horrified and angered by the fact that Nari Rhodes
took such a bad beating at the hands of Robert Davis’ other
girlfriend.” As one of the final statements in its closing rebut‐
tal, the State told the jury: “Nari Rhodes’ testimony. I can only
say that she is the sister of the defendants. Place this in terms
of how you weigh her credibility.”
There can be no genuine dispute whether Nari’s
credibility was at issue, or whether Rhodes’s disallowed
cross‐examination was relevant to her credibility and
reliability. As noted, the state supreme court recognized as
much in Paragraph 66: “In the end, the jury was required to
make a determination of credibility as to the testimony
presented.” 336 Wis. 2d at 89, 799 N.W.2d at 863, ¶66. Rhodes
sought to cross‐examine Nari further to bolster the credibility
of her testimony that favored him, and that the State was
attacking. The “jurors were entitled to have the benefit of the
defense theory before them so that they could make an
informed judgment as to the weight to place on” Nari’s
“testimony which provided a ‘crucial link in the proof … of
petitioner’s act.’” Davis, 415 U.S. at 317 (finding Confrontation
Clause violation), quoting Douglas, 380 U.S. at 419.
To sum up the merits, the state appellate court correctly
found a Confrontation Clause violation here. In reversing, the
state supreme court cited but then failed to apply the correct
standard from federal law. To the extent the state supreme
No. 17‐2223 31
court’s opinion might be read as trying to apply the correct
standard, it did so in an unreasonable way. It unreasonably
gave weight to concerns about misleading or confusing the
jury with evidence that rebutted a theory that the State had
put at the center of the trial. And it rationalized the result
without recognizing the clearly unfair balance between allow‐
ing the State to present its evidence on motive while barring
virtually all defense evidence on the subject. In short, the state
supreme court lost sight of the central role of motive in the
State’s case and the defendants’ need—and right—to rebut it.
We recognize that trial courts deal, all the time, with ef‐
forts by guilty defendants to change the subject of the trial—
to put on trial the police, or the victim, or society at large. In
some cases, defendants might offer circumstantial evidence
through cross‐examination that requires implausible or far‐
fetched speculation about tangential issues. Trial judges are
entitled to insist that evidence be relevant and to impose rea‐
sonable limits on such efforts to change the subject. But after
the State offered its evidence and arguments about motive, it
was not reasonable to extend these ordinary rationales to this
case, to the defense efforts to rebut the prosecution motive
theory by telling the more complete story of Davis’s violent
abuse of Nari.
B. Harmless Error?
Ordinarily, the next question is whether the constitutional
violation was harmless error. The only state court to rule on
the issue found that the error was not harmless, and we agree
with that conclusion. The matter is complicated here proce‐
durally because the State waived the issue by not raising it in
the district court, but the district court then acted to relieve
the State of the waiver by inviting briefing on the question.
32 No. 17‐2223
The district judge believed that she was required to consider
harmless error even though the State had waived that issue in
the habeas case.
We agree that the State waived or at least forfeited the
harmless error defense. The district court was not required to
rescue the State from that waiver or forfeiture. Having invited
briefing on the question, though, the district court had author‐
ity to decide it. Trial judges often act in the interests of justice
to relieve one party or another from a strategic or tactical er‐
ror. But we disagree with the district judge on the bottom line.
This Confrontation Clause violation was not harmless.
Rhodes is entitled to a new trial.
In believing it was obliged to raise the issue of harmless
error, the district court relied on Brecht v. Abrahamson, 507 U.S.
619 (1993). The issue in Brecht was which harmless‐error
standard applied during habeas proceedings: the standard
under Chapman v. California, 386 U.S. 18 (1967), which is more
generous to petitioners, or the standard under Kotteakos v.
United States, 328 U.S. 750 (1946), which is more generous to
the government. 507 U.S. at 622–23. Even though the Brecht
Court spoke in terms of what a habeas petitioner “must
show” and what a court “must determine,” the Court was not
considering whether harmless‐error review could be waived
or forfeited. And the Supreme Court has warned against tak‐
ing the holding in Brecht out of context. O’Neal v. McAninch,
513 U.S. 432, 438–39 (1995) (Brecht addressed only the ques‐
tion before the Court). Some circuits had relied on Brecht’s
statement that habeas petitioners “are not entitled to habeas
relief based on trial error unless they can establish that it re‐
sulted in ‘actual prejudice’” to mean that Brecht placed the
burden of showing prejudice on habeas petitioners. Id. at 438
No. 17‐2223 33
(emphasis in original). O’Neal explained that this language
was “not determinative” in part because the “issue in Brecht
involved a choice of substantive harmless‐error standards.”
Id. at 438. Brecht did not address whether states can waive or
forfeit harmless error review.
We have held before that the State can waive or forfeit the
harmless error issue. AEDPA is full of procedural pitfalls that
prevent prisoners from challenging potentially unconstitu‐
tional convictions. “Procedural rules apply to the government
as well as to defendants.” Wilson v. O’Leary, 895 F.2d 378, 384
(7th Cir. 1990) (affirming grant of habeas relief where state
waived harmless error arguments). We enforce the law
against habeas petitioners who fail to navigate procedural
hurdles. We see no reason, in this context, to hold that a court
can never enforce a forfeiture or waiver when a state fails to
raise harmless error. Harmless error is a fact‐intensive in‐
quiry. It is not the court’s job to “search the record—without
any help from the parties—to determine that the errors we
find are prejudicial.” United States v. Giovannetti, 928 F.2d 225,
226 (7th Cir. 1991). Enforcing forfeiture also encourages effi‐
cient briefing and thus efficient use of the court’s time. Id.
In Giovannetti, we therefore held that the government can
forfeit harmless error review. In Sanders v. Cotton, 398 F.3d
572, 582 (7th Cir. 2005), we applied Giovannetti when a state
failed to raise harmless error during a habeas proceeding gov‐
erned by AEDPA. Other circuits agree. See Miller v. Stovall,
608 F.3d 913, 926–27 (6th Cir. 2010) (finding that state waived
harmless error review), reversed on other grounds, Stovall v.
Miller, 565 U.S. 1031 (2011); Jones v. Cain, 600 F.3d 527, 540–41
(5th Cir. 2010) (same); Cook v. McKune, 323 F.3d 825, 840 & n.9
(10th Cir. 2003) (same). Sanders post‐dates Brecht and controls
34 No. 17‐2223
this case. It was therefore error for the district court to con‐
clude that it had to find actual prejudice before granting
Rhodes’s petition.
Nevertheless, the district court acted to relieve the state of
its forfeiture of harmless error. We view harmless error in a
habeas case as an issue where a court has discretion, in the
interests of justice, to relieve a party of its mistake or forfei‐
ture. This discretion has its parallels in doctrines that allow
courts to overlook procedural mistakes by habeas petitioners
when the circumstances are sufficiently compelling. It would
be unfortunate to reverse a conviction for a serious crime only
because the state’s lawyer failed to argue harmless error. Re‐
versal imposes costs on the state that must retry the petitioner
and implicates concerns about finality and federalism. Recog‐
nizing that “reversal may be an excessive sanction for the gov‐
ernment’s having failed to argue harmless error,” we “have
discretion to overlook a failure to argue harmlessness.” Gio‐
vannetti, 928 F.2d at 227. We “generally do so only when the
‘harmlessness of the error or errors found is certain’ and ‘a
reversal would result in protracted, costly, and ultimately fu‐
tile proceedings.’” Sanders, 398 F.3d at 582, quoting Giovan‐
netti, 928 F.2d at 227. The district court should have applied
Giovannetti and Sanders and asked whether the error was cer‐
tainly harmless.
Rather than rely now on forfeiture or the difference be‐
tween “harmless” and “certainly harmless,” however, we find
that the most straight‐forward approach to decide this appeal
is to confront the issue of harmless error, and to do so de novo.
Recall that the state appellate court found that the violation
No. 17‐2223 35
was not harmless, and the state supreme court did not reach
that issue.1
On direct appeal, the harmless‐error standard is whether
the error was harmless beyond a reasonable doubt, but the
test is different in collateral proceedings like this case. Davis
v. Ayala, 135 S. Ct. 2187, 2197 (2015). When reviewing a state‐
court judgment in a habeas corpus proceeding, we ask
whether the error “had substantial and injurious effect or in‐
fluence in determining the jury’s verdict.” Fry v. Pliler, 551
U.S. 112, 116 (2007), quoting Brecht, 507 U.S. at 631; see also
Jensen v. Clements, 800 F.3d 892, 902–903 (7th Cir. 2015) (ap‐
plying harmless‐error analysis in habeas review of Confron‐
tation Clause violation). This standard applies even when the
state court did not address the issue of harmless error. Fry,
551 U.S. at 121–22.
Harmless error “is not the same as a review for whether
there was sufficient evidence at trial to support a verdict.” Jen‐
sen, 800 F.3d at 902. The “inquiry cannot be merely whether
there was enough to support the result, apart from the phase
affected by the error.” Id., quoting Kotteakos, 328 U.S. at 764–
65. The question is “rather, even so, whether the error itself
had substantial influence.” Id., again quoting Kotteakos, 328
1 The State’s brief in this appeal dedicated a single footnote to
Rhodes’s arguments on waiver, arguing only that the question of waiver
is not within the scope of the certificate of appealability. The district court
granted the certificate of appealability on Rhodes’s Sixth Amendment
claim, without limiting it to only certain issues relevant to that claim. If
the certificate were as limited as the State proposes, the certificate would
have been futile—affirmance would have been inevitable, regardless of
our view of the merits of the Confrontation Clause issue. We do not think
the district court intended its certificate to be futile.
36 No. 17‐2223
U.S. at 764–65. This requires “more than a ‘reasonable possi‐
bility’ that the error was harmful.” Ayala, 135 S. Ct. at 2198,
quoting Brecht, 507 U.S. at 637. It requires the court to “’find
that the defendant was actually prejudiced by the error.’” Id.,
quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per cu‐
riam).
To answer that question in a Confrontation Clause case,
we consider a variety of factors, such as “the importance of
the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evi‐
dence corroborating or contradicting the testimony of the wit‐
ness on material points, the extent of cross‐examination oth‐
erwise permitted, and, of course, the overall strength of the
prosecution’s case.” Jones v. Basinger, 635 F.3d 1030, 1052 (7th
Cir. 2011), quoting Van Arsdall, 475 U.S. at 684. Most of these
factors weigh in Rhodes’s favor. A critical point here is that
the same jury that convicted Rhodes found his brother Saleem
not guilty, as the state appellate court noted. 329 Wis. 2d 268
at ¶10 n.1. The prosecution case was legally sufficient but not
overwhelming.
Nari’s testimony and the motive theory were central to the
prosecution’s case. The prosecution focused on her beating as
a motive for the shooting from the start of the case. As noted,
the State used graphic photographs of her injuries during
closing arguments to argue that Rhodes must have decided to
avenge his sister.
Nari’s testimony about the history of her abuse by Davis
and the initial reactions by her brothers, her repeated returns
to Davis, and her brothers’ decision not to react to the beating
that broke her orbital‐bone would not have been cumulative.
No. 17‐2223 37
No other witness testified about whether Rhodes reacted an‐
grily when Davis broke Nari’s orbital bone—not even
Rhodes, since the defense had been told not to review this
prior abuse. The defense also was not allowed to offer evi‐
dence as to why Rhodes had not been angry with Davis be‐
cause of the orbital bone injury, for that required even more
history to explain fairly. Rhodes was able to cross‐examine
Nari, but not on an issue that was key to rebutting the State’s
motive theory. In closing arguments, Rhodes’s lawyer could
and did argue that he was not angry with Davis for Nari’s
beating, but Rhodes was not allowed to offer, through cross‐
examination, key evidence to support that argument, particu‐
larly in the face of the prosecution’s sharp attacks on his and
Nari’s credibility.
The final factor is the strength of the overall case against
Rhodes. There was no physical evidence implicating him. The
only direct evidence was the testimony of Watt and Walker.
Walker’s description of the shooters changed after she had a
chance to talk to Watt. According to one detective’s report,
Walker initially said that the shooter she said was Rhodes was
wearing a dark t‐shirt and hat. Later, Walker testified that the
same man was wearing a red, white, and blue sweater and no
hat. And it took Walker two passes through a photo array to
identify Rhodes as a shooter.
The third eyewitness, Watt’s grandfather, testified that he
had stared one shooter in the eyes, but he could not identify
that shooter as either Rhodes or Saleem. Yet Rhodes grew up
around the corner from where Watt’s grandfather had lived
for decades. The grandfather also testified that he saw only
one shooter, while Watt and Walker testified there were two.
38 No. 17‐2223
The cell phone location evidence was not probative since
Rhodes still lived around the corner from the shooting.
It is true that two officers testified that Dotson initially told
them that Rhodes called to say he had shot Davis. Their testi‐
mony was corroborated by a contemporaneous written report
of Dotson’s interview. The jury may have found their evi‐
dence persuasive, which could explain why the jury con‐
victed Rhodes but acquitted Saleem. But the officers never
had Dotson sign a statement. Dotson testified that she never
told the officers that Rhodes said he had shot Davis, only that
Rhodes said “someone had got shot.” (Recall again that
Rhodes lived around the corner from the shooting.) She also
testified that she agreed to speak to the officers at all only after
they threatened to have a social worker take her three‐week‐
old baby away from her.
In the end, we cannot say that the Confrontation Clause
violation had no “substantial and injurious effect” on the
jury’s deliberations. The State presented other evidence
against Rhodes, but none of the evidence was without its
problems. Motive was central to the case, and Nari’s testi‐
mony was central to Rhodes’s attempt to rebut the State’s the‐
ory. Without Rhodes’s rebuttal evidence, the jury was left
without key facts relevant to Nari’s credibility and Rhodes’s
guilt or innocence.
The judgment of the district court is therefore REVERSED
and this case is REMANDED to the district court with instruc‐
tions to grant the writ of habeas corpus ordering that Rhodes
be released or retried promptly.