dissenting:
Attempting to bolster the credibility of Mark Duke’s cooperating co-defendant, the prosecutor argued the following to the jury:
[Duke’s co-defendant] told the truth, ladies and gentlemen, and here is how we know it, there’s a witness that you heard from but he didn’t come in here and talk to you from this witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke’s blood with him throughout that house.1
In doing so, the prosecutor impermissibly commented on Duke’s decision not to testi*1296fy, in violation of his Fifth Amendment right against self-incrimination.
The majority is willing to accept the State’s explanation that the “he” the prosecutor was referring to was not really Mark Duke but was Randy Duke’s “blood.” It is willing to accept that the “blood” is a male “witness” that the jury “heard from.”2 It is willing to accept that the prosecutor used “he” in one sentence to refer to blood and “he” in the next sentence to refer to Mark Duke, without ever indicating any possible change of subject. This makes no sense because it would mean that Randy Duke’s blood “shot, stabbed, and cut the throat of Randy Duke” and that Randy Duke’s blood took itself “throughout the house.” The majority accepts this story even though the State could not consistently or coherently articulate such an argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke. I respectfully part company with my colleagues in accepting this logic.
I do not see how the jury could have possibly interpreted this statement as anything but a comment on Mark Duke’s failure to testify. Accordingly, I dissent.
I.
Under AEDPA, we may grant habeas relief to a state prisoner, whose claim has been adjudicated on the merits in state court, if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
A criminal defendant’s Fifth Amendment right against compelled testimony, as established by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and its progeny, is violated if a prosecutor (1) makes a statement that was “manifestly intended to be a comment on the defendant’s failure to testify” or (2) makes a statement that “was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” See Isaacs v. Head, 300 F.3d 1232, 1270-71 (11th Cir.2002) (emphasis added) (quoting United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir.1995)) (applying this standard in the § 2254(d)(1) context). “The question is not whether the jury possibly or even probably would view the remark in this manner, but whether the jury necessarily would have done so.” Id. at 1270. Importantly, “[t]he comment must be examined in context, in order to evaluate the prosecutor’s motive and to discern the impact of the statement.” Id.
The Alabama Court of Criminal Appeals correctly identified that standard when it analyzed Duke’s claim. Accordingly, we may not disturb its determination unless its application of the law to the facts in Duke’s ease was objectively unreasonable. See Williams v. Taylor, 529 U.S. 362, 409-10, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Alabama court’s application of federal law was objectively unreasonable, even under the highly deferential review standard set forth in AEDPA.
II.
Looking no further than the prosecutor’s spoken words, I cannot join the majority’s conclusion that this statement is *1297not a reference to Duke’s decision not to testify. “[T]here’s a witness that you heard from but he didn’t come in here and talk to you from this witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke’s blood with him throughout that house.” (emphasis added). For convenience, I will refer to the first sentence of the statement as the “referential sentence” and the second as the “defining sentence.” I will first explain why I believe the interpretation accepted by the majority makes no sense. Next, I will elaborate on what I believe to be the only objectively reasonable interpretation of the prosecutor’s statement.
A.
The majority’s conclusion requires the victim’s blood to be a male “witness” that the jury “heard from.” The majority ultimately finds, “the mere statement that ‘there’s a witness that you heard from but he didn’t come in here and talk to you from this witness stand’ could easily have referred metaphorically to the blood of the victim.” In isolation, this forced interpretation may not be unreasonable. But we must consider the statement in the context in which it was made. See Isaacs, 300 F.3d at 1270. If we assume the victim’s blood is the “witness” in the referential sentence, the defining sentence would not make sense. It would necessarily read: “After [Randy Duke’s blood] shot, stabbed, and cut the throat of Randy Duke, [Randy Duke’s blood] took Randy Duke’s blood with him throughout that house.” That interpretation must follow because the prosecutor continues to use the pronoun “he” without introducing an antecedent other than “witness.” I cannot go along with the majority’s determination that such a conclusion is reasonable.
B.
Rather than adopt a strained interpretation of the facts, I believe that a “jury would naturally and necessarily” interpret the statement as an adverse “comment on the failure of the accused to testify.” United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir.2005) (quoting Knowles, 66 F.3d at 1162-63). The prosecutor quite clearly asked the jury to conclude that Duke participated in each of the murders because Duke did not testify and Samara did.
This interpretation starts from the undisputed fact that Mark Duke killed Randy Duke. Therefore, Mark Duke is necessarily the “he” referred to in the defining sentence — -no one disputes that. The prosecutor’s uninterrupted statement referenced a “witness” and then referred back to that “witness” by using “he” three times. The last two uses of “he” undisputedly refer to Duke, and there is no other antecedent to which “he” could refer. Accordingly, the “witness” that did not testify is Duke. This interpretation is the only possible conclusion because (1) Duke is male, and (2) he did not testify from the witness stand, but (3) the jury “heard from” him via the 911 tape. Furthermore, this conclusion gives the entire statement cognizable meaning because it is undisputed that Duke is the “he” in the defining sentence. Based on the plain language, the only possible conclusion is that the prosecutor was referring to Duke as the witness who did not testify.
III.
After the prosecutor commented on Mark Duke’s decision not to testify, his counsel objected as follows:
“Let the record reflect that the district attorney pointed straight at the defendant when he said that. That is the most direct comment on a defendant’s failure to testify I have ever seen.”
The trial judge denied the motion for a mistrial.
*1298Even though it was not disputed at trial that the prosecutor physically pointed at Mark Duke when making this statement, the majority concludes that in the absence of a specific acknowledgment by the trial judge, the statement is “just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made.” Majority Op. at 1293. In other words, since the trial judge did not say something like “the record will so reflect,” we cannot accept as true that the prosecutor did point his finger at Duke when he commented on Duke’s silence. Therefore, according to the majority, Duke’s lawyer did not adequately preserve the record for appellate and collateral review of this issue.
First, an improper comment on a defendant’s right to remain silent need not be accompanied by a “pointing gesture” to violate the Constitution. I am aware of no precedent that would establish such a precondition, nor is the majority able to cite any such precedent. Duke’s Fifth Amendment right was violated by the comment alone, even in the absence of a “pointing gesture.”
Second, neither the trial judge nor the prosecutor contested the defense attorney’s statement placed in the record.3 I can hardly conceive of a trial judge permitting a defense lawyer to inaccurately portray courtroom proceedings so demonstrably, without a rebuke, if the gesture did not occur. What is telling is that no one— not the trial court, not the prosecutors, not the Alabama Court of Criminal Appeals, not the magistrate or district judges in the habeas proceedings below, and not even the State in its brief — ever raised the possibility that the pointing gesture did not occur until the State was pressed about it at oral argument on this appeal.
Finally, neither the Federal Rules of Evidence nor common practice require any explicit ratification by the trial judge when an officer of the court records a non-verbal occurrence of this nature in the courtroom. See Favre v. Henderson, 464 F.2d 359, 365-66 n. 12 (5th Cir.1972). See also United States v. Burrell, 496 F.2d 609, 611 (3d Cir.1974); Al-Timimi v. Jackson, 608 F.Supp.2d 833, 837 (E.D.Mich.2009).4
Paradoxically, after discussing the matter at length, the majority ultimately concludes that “[n]o gesture, in fact, needs to be considered.” Majority Op. at 1293.
IV.
Returning to the prosecutor’s statement, and looking beyond the words to its eon-*1299text, as we are required to, the jury necessarily understood it to be a reference to Duke’s failure to testify. Immediately preceding the comment at issue, the prosecutor repeatedly mentioned the 911 tape with Duke’s voice. As jurors had that “testimony” from Duke on the forefront of their minds, the 911 tape — containing audio from a male witness that did not testify, i.e., Duke — would necessarily be the first evidence recalled after the prosecutor concluded his remark. Duke is the only actual person that the jury “heard” from somewhere other than the “witness stand.”
Moreover, the State was unable to maintain a consistent theory on what the prosecutor meant. Immediately after the comment and the defense’s objection, a different prosecutor presented two conflicting explanations as to what the statement meant. Specifically, (1) the “witness” was Randy Duke, or (2) the “witness” was Randy Duke’s blood.5 The prosecutor who made the remark offered no explanation and did not refute that the “witness” was Duke. The trial judge denied the motion for a mistrial, but he did not specify the grounds for that decision. Furthermore, the State, before this Court on appeal, would not adopt either of the theories presented.
Y.
The state court’s determination that the prosecutor’s statement was not a comment on Duke’s failure to testify at trial is objectively unreasonable. The Alabama Court of Criminal Appeals unreasonably applied Griffin and its progeny, because the jury naturally and necessarily would have understood the prosecutor’s statement to be a comment on Mark Duke’s failure to testify. There is no question that the prosecutor’s comment was used as substantive evidence of Mark Duke’s guilt.
I understand and respect the great deference AEDPA gives state court determinations, but I also recognize that Congress preserved the federal judiciary’s ability to grant habeas relief when there has been an “unreasonable application of clearly established federal law.” Although we give great deference to a state court’s determination of a federal constitutional issue, the federal courts are not required to accept any non-sensical explanation concocted to support a merits determination. AEDPA deference does not eliminate review by federal courts, but rather it explicitly preserves it. “[T]his case can withstand review only if deference amounts to abdication, if [] discretion is unbridled, and if ‘unreasonable’ is a hollow term.” United States v. Irey, 612 F.3d 1160, 1165 (11th Cir.2010) (en banc). The Alabama Court of Criminal Appeals’s interpretation and ultimate determination is unreasonable.
I would reverse the judgment of the district court and remand with an instruction to the State to file a transcript of the entire trial proceedings — which we do not have — so that the district court may conduct a harmless error analysis in the first instance.6
. Mark Duke, a juvenile, admitted to killing Randy Duke, his father. Mark Duke's defense at trial was that he killed only his father, and his co-defendant Brandon Samara alone went upstairs and killed the other three victims. See Ala.Code § 13A-5-40(a)(10) (providing that the murder of two or more persons pursuant to one scheme or course of conduct is a capital offense).
. Mark Duke was the only witness whom the jury “heard” from somewhere other than the witness stand, as the jury heard Mark Duke speak when the State played his 911 call for the jury. The prosecutor’s statement immediately followed his urging the jury to listen to Mark Duke’s voice on that 911 call.
. "[I]f opposing counsel disagrees [with the defense counsel’s description of a gesture], she should so state, and silence is likely to be taken as assent.” See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence Under the Rules 17 (6th ed. 2008) (explaining the process for making a record for appellate review).
. The majority cites two cases to support its conclusion that the prosecutor's gesture— placed in the record by defense counsel but not explicitly acknowledged by the trial court — need not be considered. Majority Op. at 1293 n. 2. The first stands for the proposition that a motion for a mistrial that is never explicitly ruled on is implicitly denied. United States v. Stefan, 784 F.2d 1093, 1100 (11th Cir.1986). The second merely states that a party must make an objection to preserve an issue for appellate review. Birge v. State, 973 So.2d 1085, 1105 (Ala.Crim.App.2007). As is clear from those brief descriptions, Stefan and Birge address completely different circumstances than we are faced with here. Duke's defense counsel moved for a mistrial and preserved the record by clearly describing the events that transpired in the courtroom. As Favre, Burrell, and Al-Timimi demonstrate, counsel’s narrative — for the sole purpose of creating a record' — should be taken as accurate when neither the trial judge nor opposing counsel articulate any disagreement. Any holding to the contrary unnecessarily complicates trial proceedings in this Circuit.
. The prosecutor first said:
Judge, this is very clear that where the father’s blood throughout the house is evidence that the State can presume to argue in the light most favorable to the State .... But in regard to father’s blood, the father’s blood is spread throughout the house. That's how it is attached to this defendant. This defendant in opening statement admitted to killing his father. It’s a real fair conclusion to say you're going to get blood on you if you cut somebody’s throat. Where that blood goes then is a very fair argument.
Shortly thereafter, the prosecutor said, “He was talking about the daddy .... Said the man that can’t testify can’t be here .... He said the witness wasn’t able to testify about having his blood scattered throughout the house.”
. Griffin violations are subject to constitutional harmless error review. See Chapman v. *1300California, 386 U.S. 18, 24-26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Marsden v. Moore, 847 F.2d 1536, 1548-49 (11th Cir.1988).