concurring.
I write separately because I believe that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), establishes a watershed rule in criminal procedure requiring retroactive application under the Supreme Court’s retroactivity analysis in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1990). Crawford’s retroactive application therefore makes Craioford the “clearly established” federal law at the time of direct *812review. When Crawford is applied to the facts of this case, Petitioner’s Sixth Amendment rights under the Confrontation Clause were violated when his wife’s taped statement was admitted into evidence. Because this error was not harmless, a writ of habeas corpus should be granted.
I.
BACKGROUND
On December 22, 1991, the beaten and stabbed body of Charlie Bramer was discovered in his home in Jefferson County, Kentucky. After an investigation, Petitioner was charged with and convicted of the crime.
At Petitioner’s jury trial, the State of Kentucky relied largely on testimonial evidence for Petitioner’s conviction. The State put inmates on the witness stand who testified that Petitioner had told them, in jailhouse conversations, that he had committed the murder. The State also put Terry Wright on the stand. Wright had confessed to helping Petitioner commit the murder, alleging that Wright and Petitioner went to the victim’s home in order to rob the victim, but that the victim discovered Wright and Petitioner during the course of the robbery and chased them out of the house. Wright further testified that Wright and Petitioner later returned to the victim’s home and Wright waited outside while Petitioner entered the home. When Wright entered the home several minutes later, Wright alleges that he found Petitioner attacking the victim with a hammer. Wright testified that he made an unsuccessful attempt to stop Petitioner.
The state also called Patricia Ash Fulcher (“Ash”) to testify against Petitioner. Ash had given the police a statement shortly after the investigation into the crime began, but had since married Petitioner, asserted spousal privilege under Kentucky Rule of Evidence 107(b), and refused to testify against Petitioner. The state played Ash’s tape-recorded statement to the police for the jury, albeit over the objections of Petitioner’s counsel. The trial court ruled that the statement was admissible as an exception to the hearsay rule as a statement against penal interest because the contents of Ash’s statements inculpated both Petitioner and Ash herself.
Ash’s statement had been made while in the custody of the Jefferson County police. Ash was stopped on January 2, 1992 while driving a car that matched the description of Petitioner’s automobile. The police impounded the car and took Ash in for questioning. The police read Ash her Miranda rights and proceeded to question her.
During the course of questioning, Ash revealed that over the course of the December 1991 holidays, Petitioner had arrived home late one evening and asked Ash to wash the clothes Petitioner had been wearing. Ash indicated that there were some spots of blood on the pants, and that Petitioner explained the blood by saying that he had been in a fight. Ash also stated that Terry Wright, also present at the time, asked Ash to dispose of a key. Ash admitted that she threw the key into the sewers, where police subsequently recovered it and confirmed that the key belonged to the victim.
Police found no evidence at the victim’s house to link Petitioner to the crime scene. A murder weapon was never recovered.
During jury deliberations, the jury requested both Ash’s tape recorded statement and a tape recorder. Within an hour of hearing the tape, the jury returned with a conviction. After unsuccessful direct appeals and collateral attacks in state court, Petitioner now requests habeas relief on *813the basis of this improperly admitted evidence.
II.
CRAWFORD ANALYSIS
This Court reviews the decision of the district court to deny a writ of habeas corpus de novo. Allen v. Yukins, 366 F.3d 396, 399 (6th Cir.2004) (citing Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000)).
A. Crawford’s Retroactivity Is an Issue of First Impression in This Circuit
The lead opinion opines that this Court has already ruled that Crawford does not apply retroactively. It is true that panels of this Court are bound by the published decisions of prior panels as controlling-precedent. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985). The Dorchy v. Jones case cited in the lead opinion, however, does not actually treat Crawford’s retroactivity sufficiently to bind subsequent panels of this Court. This Court’s entire treatment of Crawford in that case consists of the following:
Under most circumstances, however, newly promulgated rules of criminal procedure do not apply retroactively to cases on collateral review. Teague v. Lane, 489 U.S. 288, 305-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 ... (1989) (holding that a habeas petitioner could not benefit from a recent Supreme Court decision declaring racially-based peremptory challenges invalid, because that decision could not be applied retroactively to cases on collateral review) .... Teague thus prohibits [petitioner] from availing himself of the new rule articulated in Crawford. The question before us is therefore whether the analysis by the [state court] was contrary to, or involved an unreasonable application of, Roberts.
Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005). The Dorchy panel did not subject Craioford to the Teague retroactivity analysis.1 These two sentences are dicta and do not go to the holding of the case. In fact, the Dorchy panel affirmed the district court’s grant of a writ because the Court found the state court’s ruling to have been an “unreasonable application of’ clearly established confrontation clause jurisprudence under Roberts at the time of the state court decision. See id. at 791. Subsequent panels of this Court are not bound by prior panels on issues not actually reached by those prior panels. Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 298 (2005).
B. The Crawford Holding
The Supreme Court’s 2004 decision in Crawford v. Washington overruled the Roberts indicia of reliability test for mutually inculpatory statements. See 541 U.S. at 68, 124 S.Ct. 1354. In Crawford, the state sought to admit a statement made by the criminal defendant’s wife shortly after the crime in question occurred. Id. at 40, 124 S.Ct. 1354. The statement was made to the police while the wife was in a custodial setting and tended to inculpate the wife, insofar as it showed that she facilitated her husband’s commission of the crime. See id. In the state of Washington, spousal privilege does not extend to out-of-court *814statements admissible under an exception to the hearsay rule. Id. The trial court admitted the statement under the “against penal interest” exception to the hearsay rule. Id.
The Supreme Court of Washington upheld the conviction and the propriety of the statement’s admission under the Roberts indicia of reliability test. Id. at 41-42, 124 S.Ct. 1354. On direct review, the United States Supreme Court reversed, finding that Roberts had proven too nebulous a standard for the lower courts to employ in insuring that rights under the Confrontation Clause were properly guaranteed. Id. at 68-69, 124 S.Ct. 1354. The Court concluded that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional concerns is the one the Constitution actually prescribes: confrontation.” Id. at 69, 124 S.Ct. 1354.
In reaching its conclusion, the Supreme Court expanded on the principles underlying the Confrontation Clause:
First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that ... English law’s assertion of. a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon “the law of Evidence for the time being.” 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)(Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices ....
This focus also suggests that not all hearsay implicates the Sixth Amendment’s core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.
Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 (“This open examination of witnesses ... is much more conducive to the clearing up of truth”) ....
*815Where testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Crawford, 541 U.S. at 36, 51, 61-62, 68, 124 S.Ct. 1354.
Respondent does not dispute that had Crawford come out prior to the final disposition of Petitioner’s case on direct review, the Court’s holding would have applied to Petitioner’s case.
C. Watershed Rules in Criminal Procedure
As a general rule, new rules of criminal procedure do not have retroactive effect and are unavailable for use in a collateral attack to a criminal conviction. See Teague, 489 U.S. at 316, 109 S.Ct. 1060. The Supreme Court has set forth an exception to this general rule, however: when the new rule represents a “watershed rule” of criminal procedure. Id. The only example of such a watershed rule ever cited by a majority of the Court since issuing the Teague decision is the right to counsel, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
The Court has explained that a “watershed rule” is a rule which goes to the “fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). The procedure at issue would be “central to an accurate determination of innocence or guilt .... ” Teague, 489 U.S. at 313, 109 S.Ct. 1060. “That the new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060) (emphasis in original). “A rule that qualified under this [watershed rule] exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060).
To date, the Supreme Court has yet to announce a “watershed rule” of criminal procedure since Teague. Indeed, the Teague decision noted that the Court doubted whether there were many fundamental tenets of due process that were yet to be discovered. 489 U.S. at 313, 109 S.Ct. 1060. The Teague Court itself found that the fair cross section requirement for jury venire did not merit retroactive application. Id. at 314, 109 S.Ct. 1060.
Since Teague, the Supreme Court has consistently refused to apply new rules in capital sentencing in a retroactive fashion. The Sawyer Court dealt with a new rule requiring a sentencing reversal when a prosecutor’s remarks to the jury tended to diminish the jury’s responsibility in recommending a death sentence. See Sawyer, 497 U.S. at 244-45, 110 S.Ct. 2822. The Court reasoned that because the new rule was a prophylactic one which benefitted criminal defendants only insofar as those defendants could not make the requisite showing of fundamental unfairness under the previously applicable standard, the *816rule therefore was not an “ ‘absolute prerequisite to fundamental fairness.’” Id. (quoting Teague, 489 U.S. at 314, 109 S.Ct. 1060.) Similarly, in Graham v. Collins the Court reasoned that the denial of special jury instructions on mitigation factors during the capital sentencing phase did not “ ‘seriously diminish[ ] the likelihood of obtaining an accurate determination’ in [the defendant’s] sentencing proceeding.” 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Butler v. McKellar, 494 U.S. 407, 416, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990)); see also O’Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 138.L.Ed.2d 351 (1997) (refusing to grant retroactive application of a new rule requiring trial courts to allow capital defendants to rebut prosecutions’ assertions of continued dangerousness as a factor in death sentence consideration, when defendants would be ineligible for parole under a life sentence); Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2515, 159 L.Ed.2d 494 (2004) (refusing to give retroactive effect to the Court’s new rule that invalidatéd a state practice of requiring juries to disregard mitigating factors not found unanimously in capital sentencing cases).
The Court has continued to decline retroactivity in the context of capital sentencing determinations. In Schriro, the Court ruled that its newly announced rule requiring juries, and not judges, to find aggravating circumstances necessary for imposition of the death penalty was not a watershed rule. Schriro, 124 S.Ct. at 2525. The Schriro Court found the evidence “too equivocal” to support a determination that judicial factfinding so “seriously diminished” accuracy in the criminal proceeding that there was “an impermissibly large risk of punishing conduct the law does not reach.” Id. (internal quotations and citations omitted). The ruling in Schriro has been understood to mean that the Court’s Apprendi decision — requiring juries to make the factual determination for anything increasing a defendant’s sentence beyond the statutory maximum— does not state a watershed rule in criminal procedure. Blakely v. Washington, 542 U.S. 296, 323, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (“[W]e [held] in Schriro v. Summerlin ... that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review .... ”).
Beyond the capital sentencing arena, the Court has found that a habeas petitioner’s proposed rule — that one day’s notice of the state’s intention to call an opposing witness be found per se violative of due process — “has none of the primacy and centrality of [a watershed rule] which may be thought to be within the' [Teague ] exception.” Gray v. Netherland, 518 U.S. 152, 170, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (internal quotations and citations omitted). The Court has also found that a circuit court inappropriately applied a new rule in a retroactive manner when the appeals court granted a request for habeas corpus relief upon finding that a state practice of permitting the prosecution to resubmit evidence of prior convictions in subsequent resentencing hearings (after having failed to prove prior convictions at the original sentencing hearing) violated the Double Jeopardy Clause. See Caspari v. Bohlen, 510 U.S. 383, 396-97, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (acting on habeas petition). The Court reasoned that “[applying the Double Jeopardy Clause to successive noncapital sentencing is not such a ground breaking occurrence” as to warrant retroactive application. Id. at 396, 114 S.Ct. 948.
Prior to the retroactivity standard articulated in Teague, the Court balanced prudential concerns in determining whether a new rule should be granted retroactive effect. The Court consistently declined to grant retroactive effect to rules designed *817to deter police misconduct. See Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (the exclusionary rule to state conduct); Johnson v. New Jersey, 384 U.S. 719, 733-35, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (Miranda requirements); Solem v. Stumes, 465 U.S. 638, 650, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (the invalidity of any waiver of the right to right to counsel after the invocation of such right and before counsel can appear); Tehan v. United States, 382 U.S. 406, 416-19, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (the right of the accused not to have the prosecutor comment on the accused’s election to keep silent); Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (the right to counsel during pre-trial identification procedures).
Consistent with its post-Teague decisions declining to give retroactive effect to decisions affecting the jury’s role in fact-finding, the pre-Teague Court also declined to apply retroactively its determination that criminal defendants enjoy a right to a jury trial in state criminal prosecutions. See Schriro, 124 S.Ct. at 2525 (discussing the Court’s refusal in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), to apply Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), retroactively). The Court reasoned that if a trial without a jury was not “impermissibly inaccurate” then a judge’s determination of aggravating factors in death penalty deliberations could not require retroactive renunciation. Id. at 2526.
In contrast, prior to Teague, the Court granted retroactive effect to a number of new rules going to the central tenets of our criminal justice system. The Court granted retroactive effect to the right to counsel as articulated in Gideon v. Wainwright. The Court also granted retroactive effect to the application of the Double Jeopardy Clause to the states. See Robinson v. Neil, 409 U.S. 505, 510, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The Court additionally granted retroactive effect to a rule proscribing state laws which grant the prosecution unlimited challenges for cause against any prospective juror with any reservations about the death penalty in capital cases. See Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Significantly, in two pre-Teague cases, the Court twice granted retroactive effect to new rules dealing with the Confrontation Clause. In Roberts v. Russell, 392 U.S. 293, 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) (per curiam), the Court held that its rule articulated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), merited retroactive application. The Bruton rule held that limiting jury instructions could not cure the harm caused in a joint trial by the introduction of a codefendant’s extrajudicial confession. 391 U.S. at 135, 88 S.Ct. 1620. The Court reasoned that the admission without the opportunity for cross-examination resulted in “ ‘serious flaws in the fact-finding process at trial.’ ” Roberts, 392 U.S. at 294, 88 S.Ct. 1921 (citing Stovall, 388 U.S. at 298, 87 S.Ct. 1967). The Court held that the admission of the testimonial statement absent confrontation “went to the basis of the fair hearing and trial because the procedural apparatus never assured the [petitioner] a fair determination of his guilt or innocence.” Id. (internal citations and quotations omitted). Similarly, in Berger v. California, 393 U.S. 314, 314-15, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) (per curiam), the Court retroactively applied the rule announced in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). The Barber Court held that states may not use at trial the prehearing testimony of a witness in lieu of live testimony unless the state has made *818a good faith effort to secure the witness’ presence. Id. at 721, 88 S.Ct. 1318. The Court noted that “one of the most important objects of the right of confrontation [is] to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses.” Berger, 393 U.S. at 315, 89 S.Ct. 540.
In the decade and a half since Teague, the Supreme Court has yet to be confronted with a rule akin to those presented to the Court in Gideon, Robinson, Wither-spoon, Bruton, and Berger. Rather, the Court has been asked to rule on .sentencing issues which invoke either Eighth Amendment rights in the context of capital cases or the division between judge and jury in fact-finding. The Court’s refusal to apply these types of new rules retroactively is consistent with its pr e-Teague practice. In contrast, the rule presented in Crawford is much more analogous to those pr e-Teague cases (Gideon, Robinson, Witherspoon, Bruton, and Berger) which the Court found articulated new rules meriting retroactive application. A holding that Crawford articulates a watershed rule in criminal procedure is entirely consistent with the Supreme Court’s historical retro-activity jurisprudence. See supra.
D. Crawford as a Watershed Rule
1. The Circuit Split
Several circuit courts of appeal have addressed the retroactivity of Crawford. The Second, Tenth, and Seventh Circuits have held that Crawford does not apply retroactively. The Ninth Circuit has held that Crawford does apply retroactively and that AEDPA does not bar such retroactive application.
The Second Circuit held in Mungo v. Duncan, 393 F.3d 327, 335-36 (2d Cir.2004), cert. denied sub. nom. by Mungo v. Greene, — U.S.-, 125 S.Ct. 1936, 161 L.Ed.2d 778 (2005), that Crawford does not merit retroactive application. The Second Circuit noted that the question turned on “whether the rule is necessary to the fundamental fairness, and improves the accuracy, of criminal proceedings.” Id. at 335. The court then reasoned that the rule would preclude some unreliable testimony but would also work to exclude previously admissible testimony which bore significant indicia of reliability. The Second Circuit therefore concluded that the Crawford rule would not “improve the accuracy of the trial process overall” and held Crawford to be a prospective rule only. Id. at 336. The Seventh Circuit employed similar reasoning in also holding that Crawford was not a watershed rule of criminal procedure. See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), cert. den’d by — U.S. -, 126 S.Ct. 174, 163 L.Ed.2d 200 (2005).
The Tenth Circuit also held in Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2005), cert. den’d by 543 U.S. 1079, 125 S.Ct. 940, 160 L.Ed.2d 822 (2005), that Crawford does not apply retroactively. The Tenth Circuit did not reach the merits of the retroactivity doctrine, but held that AEDPA precluded habeas relief on the basis of any federal law made clear only after the date of the state court decision. Id. at 1224 (reasoning that a “new rule” under Teague was presumptively not “clearly established federal law” at the time of the state court decision). In their decisions denying retroactivity, neither the Second nor Seventh Circuits addressed whether AEDPA would independently preclude application of a new rule retroactively.2
*819The Ninth Circuit, in Bockting v. Bayer, 399 F.3d 1010 (9th Cir.2005), rehr’g en banc den’d by 408 F.3d 1127 (9th Cir.2005), found Crawford to merit retroactive application. The Ninth Circuit looked to the Supreme Court’s most recent treatment of retroactivity analysis in Schriro for lessons in determining the existence of a watershed rule from Crawford. Bockting, at 1013. The Ninth Circuit looked to Justice Sealia’s extensive treatment of the history and centrality of confrontation to our system of justice to conclude that confrontation is a fundamental precept of our legal regime. Id. at 1013. The Ninth Circuit then looked to the Supreme Court’s historical treatment of the Confrontation Clause, and the language accompanying its many Confrontation Clause cases, to determine that “[tjhe Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation Clause is to promote accuracy.” Id. at 1017. The Ninth Circuit reasoned that Schriro’s question of whether the absence of confrontation “so seriously diminish[es] accuracy” was answered by Crawford itself. Id. at 1017. The Ninth Circuit pointed to language in Crawford addressing the Roberts rule as “so unpredictable that it fails to provide meaningful protection from even core confrontation violations.” Id. at 1017.
The Ninth Circuit concluded its analysis in Bockting by again echoing the language of the Crawford decision in noting that the “Confrontation Clause ... reflects a judgment ... about how reliability can best be determined.” Id. at 1127 (quoting Crawford, 124 S.Ct. at 1370). The court considered the Second Circuit’s contrary conclusions — that the Crawford rule does not improve overall accuracy — as an impermissible superimposition of that court’s own analysis over that of the Supreme Court and the Constitution itself. Id. at 1020 (“The flaw in this analysis is that the Second Circuit has substituted its judgment of whether the Crawford rule is one without which the accuracy of conviction is seriously diminished, for the Supreme Court’s considered judgment.”)
2. Crawford Merits Retroactive Application
The Teague analysis requires this Court to 1) determine whether Crawford announced a new rule, 2) determine whether that rule was a “watershed rule” in criminal procedure, 3) apply the rule in the case at bar (if the rule is found to be retroactive), and 4) determine whether any resulting error was harmless. Because Ash’s statement falls squarely within the facts of Crawford, the parties do not dispute the statement’s inadmissibility under Crawford.3
a. Crawford announced a new rule
Whether Crawford’s rule is new depends on whether the result was “dictated by the then-existing precedent.” Beard, 124 S.Ct. at 2511. The Crawford Court observed that the rule of Roberts had proven too nebulous a standard for proper application; the Court further noted that “Roberts conditions the admissibility of all hearsay evidence on whether it falls under a *820‘firmly rooted hearsay exception’ or bears particularized guarantees of trustworthiness.” Crawford, 124 S.Ct. at 1369. The Court then departed from precedent and held that testimonial statements may not be admitted against a criminal defendant absent unavailability of the declarant and the right of confrontation. The Crawford test eliminated the ability of a court to assess “particularized guarantees of trustworthiness” of testimonial statements and admit them absent constitutional confrontation. Past precedent, therefore, did not dictate the result in Crawford. Rather, Crawford overruled the Roberts test for testimonial statements.
Every circuit court to address Crawford has found that Crawford sets forth a new rule. See Bockting, at 1013; Bintz, 403 F.3d at 866; Brown, 381 F.3d at 1226; Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir.2004) (treating Crawford as creating a new rule but finding the case inapplicable); Horton, 370 F.3d at 83. Crawford therefore announces a “new rule.”
b. Crawford is a “watershed rule”
The Ninth Circuit’s analysis is compelling. Teague demands that a watershed rule go to “procedures implicit in the concept of ordered liberty.” Teague, 489 U.S. at 307, 109 S.Ct. 1060. A “watershed rule” is a rule which goes to the “fundamental fairness and accuracy of the criminal proceeding.” Saffle, 494 U.S. at 495, 110 S.Ct. 1257. The procedure at issue would be “central to an accurate determination of innocence or guilt .... ” Teague, 489 U.S. at 313, 109 S.Ct. 1060. “That the new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro, 124 S.Ct. at 2523 (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). “A rule that qualified under this [watershed rule] exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer, 497 U.S. at 242, 110 S.Ct. 2822 (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060).
The Ninth Circuit efficiently summarized the Supreme Court’s extensive discussion over the years on the role of the Confrontation Clause in the American criminal justice system.
The Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation Clause is to promote accuracy. See, e.g., Crawford, 124 S.Ct. at 1370 (“This open examination of witnesses ... is much more conducive to the clearing up of truth.”) (quoting 3 Blackstone, Commentaries * 373); White v. Illinois, 502 U.S. 346, 355, 112 S.Ct. 736, 116 L.Ed.2d 848 ...(1992) (evaluating a Confrontation Clause claim against the benchmark of accuracy); Tennessee v. Street, 471 U.S. 409, 415, 105 S.Ct. 2078, 85 L.Ed.2d 425 ... (1985) (describing the “Confrontation Clause’s very mission” as “to advance the accuracy of the truth-determining process in criminal trials”) (internal quotation omitted); Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 ... (1980) (stating the purpose of the Confrontation Clause is to “augment accuracy in the factfinding process”); Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 60 L.Ed.2d 713 ... (1979) (plurality) (“The right of confrontation conferred by the Sixth Amendment is a safeguard to ensure the fairness and accuracy of criminal trials.”); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 ... (1973) (“The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘ac*821curacy of the truth-determining process.’ ”); Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 ... (1970) (plurality) (“The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials____”); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 ... (1965) (“Probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case.”); Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 ... (1895) (describing the “primary object” of the Confrontation Clause as “to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief’). See also M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing “beats and bolts out the Truth much better”) (quoted in Crawford, 124 S.Ct. at 1370).
“[T]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word ‘confront,’ after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness.” Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 ... (1990) .... “[T]he combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.” Id. at 846, 110 S.Ct. 3157 ....
Bockting, at 1018.
The Second and Seventh Circuits’ rejection of Crawford’s retroactivity is critically flawed. Both Circuits dispute the presumption inherent in the Constitution itself. As Justice Scalia noted, the Confrontation Clause demands that the reliability of a statement be determined via confrontation, and not by any independent judicial determination. Crawford, 541 U.S. at 63, 124 S.Ct. 1354. The Confrontation Clause “commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Id. Any determination, by any court, that compliance with the Confrontation Clause requirements fails to go to the accuracy of the criminal proceeding is therefore a direct contradiction of the Clause itself and a unreasonable interpretation of the Constitution.
c. AEDPA does not preclude application
The Tenth Circuit reasoned that AED-PA precludes the retroactive application of any new rule in criminal procedure because § 2254(d) states:
*822An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Tenth Circuit’s reasoning fails, however, to look beyond subsection (d) of § 2254 or consider the normal implications of retroactivity.
The Supreme Court has directed lower courts to undertake both an AEDPA inquiry and a Teague inquiry in retroactivity cases, Horn, 536 U.S. at 272, 122 S.Ct. 2147, impliedly endorsing the application of Teague in the AEDPA context. This interpretation of Supreme Court direction appears consistent with congressional intent. An analysis of the entirety of § 2254 shows that Congress contemplated retroactive rules in the habeas context. Section 28 U.S.C. § 2254(e) explicitly provides for their application in proceedings involving state habeas petitions. “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that ... the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2254(e). Because § 2254(e) supplements the operation of § 2254(d), Congress must have considered that habeas relief could be granted on the basis of retroactive rules.
The Tenth Circuit’s perspective also ignores the normal implications of retroactivity analysis. Applying Crawford retroactively would make Crawford the “clearly established law at the time,” albeit only as a legal construct, but that is always the consequence of retroactive application and why the courts invoke the doctrine only sparingly. Therefore the appropriate analysis in this case is under Crawford and not Ohio v. Roberts. The Supreme Court of Kentucky relied on its own test under Taylor to admit testimonial statements from Ash against Petitioner without a right to confrontation. Under Crawford, Petitioner should have been able to cross-examine any testimonial witness, and absent confrontation, the admission of Ash’s statement was error. Therefore the Supreme Court of Kentucky’s decision was “contrary to” established Supreme Court precedent in Crawford, as applied retroactively under Teague and Schriro.
E. The Error Was Not Harmless
A Confrontation Clause violation is cause for federal habeas relief only if it has “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). This Court has held that the Brecht standard survived the enactment of AEDPA, because “if a petitioner can pass Brecht analysis, ‘he will surely have demonstrated that the state court’s finding that the error was harmless beyond a reasonable doubt ... resulted from an unreasonable application of [federal law].’ ” Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir.2003) (quoting Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir.1999)).
Several factors inform this Court’s analysis about whether such substantial or injurious effect or influence exist in the *823context of a Confrontation Clause claim, including:
‘[1] the importance of the ... testimony in the prosecution’s case,
[2] whether the testimony was cumulative,
[3] the presence ... of evidence corroborating or contradicting the testimony of the witness on material points,
[4] the extent of cross-examination otherwise permitted, and ...
[5] the overall strength of the prosecution’s case.’
Madrigal v. Bagley, 413 F.3d 548, 552 (6th Cir.2005) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). If this Court is in “grave doubt” as to whether the error was harmless, it should “treat the error, not as if it were harmless, but as if it affected the verdict.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
The evidence presented at Petitioner’s trial was not overwhelming. The prosecutor relied on 1) testimony from several inmates, who testified that Petitioner inculpated himself to them while in jail; 2) Terry Wright, who testified that Petitioner, and not Wright, actually killed Bramer; and 3) Ash’s statement, which linked Petitioner to the crime scene through the statements about blood on Petitioner’s clothes and the key. Ash’s statement therefore played a key role in the prosecution’s case.
Respondent contends that Ash’s statement was cumulative because Wright testified to Petitioner’s actions at the crime scene and to the key found near Petitioner’s home. But without Ash’s statement, a jury would have been inclined to regard Wright’s statement with a great deal of skepticism. Wright admitted to being a drug dealer and to helping others steal from the victim in previous burglaries. Physical evidence actually linked Wright to the crime more than Petitioner; the police actually discovered the victim’s blood on Wright’s clothes, physical evidence that the police did not have on Petitioner. Wright therefore had a very strong and clear motive to exculpate himself while inculpating Petitioner.
The only other evidence introduced at trial consisted of testimony from jailhouse snitches that Petitioner had admitted the crime to them. A jury would normally view testimony from inmates housed with Petitioner with some skepticism. See Zappulla v. New York, 391 F.3d 462, 470 n. 3 (2d Cir.2004) (noting the unreliability of “jailhouse snitches”). The jury’s deliberations further indicate that the jury placed some weight on Ash’s statement. The jury began deliberations on April 22, 2004. On the afternoon on April 23rd, the jurors asked to have the tape of Ash’s statement and a tape recorder. The judge played the tape for the jurors. Within an hour of hearing the tape the jury returned its guilty verdict. Given the lack of physical evidence in the case, and that without Ash’s statement, the government’s chief evidence would have come from an admitted accomplice and jailhouse snitches, this Court can only be left with “grave doubts” about the influence and effect of the improper introduction of the tape at trial.
III.
ROBERTS ANALYSIS
The lead opinion is correct that even absent the application of Crawford, the introduction of Ash’s taped statement was contrary to clearly established law at the time and therefore would require that we grant the requested writ under normal AEDPA analysis. I write separately here because I believe that Crawford retroactiv*824ity is a threshold matter and that review of the statement under Ohio v. Roberts should only follow if Crawford is found not to be a watershed rule of criminal procedure.
A. The AEDPA Standard
AEDPA “requires heightened respect for state court factual and legal determinations.” Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.1998). Section 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Under § 2254(d)(1), a state court decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the prisoner’s case.” Id. “‘[C]learly established Federal law, as determined by the Supreme Court of the United States,’ refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.’ ” Williams v. Bagley, 380 F.3d 932, 942 (6th Cir.2004) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495).
B. The Supreme Court of Kentucky Opinion
In denying relief for Petitioner under the Confrontation Clause, the Supreme Court of Kentucky determined that Ash’s statement bore sufficient indicia of reliability under a Kentucky high court test as set forth in Taylor v. Commonwealth, 821 S.W.2d 72, 74 (Ky.1991). The Taylor decision drew on an earlier Supreme Court of Kentucky decision,4 which in turn purported to interpret the United States Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), as establishing criteria for use in determining when a statement against penal interest is admissible against a criminal defendant without violating the Confrontation Clause. See Taylor, 821 S.W.2d at 74. The Taylor decision set forth four criteria for consideration by Kentucky courts faced with a request to admit, against a criminal defendant, an out-of-court statement by an accomplice as a statement against the accomplice’s penal interest:
(1) [t]he time of the declaration and the party to whom made;
(2) the existence of corroborating evidence in the case;
(3) the extent to which the declaration is against the declarant’s penal interest[;] and
*825(4) the availability of a declarant as a witness.
Id.
The Supreme Court of Kentucky applied this test to Petitioner’s case. The court found the following to support the statement’s admission:
1) “[T]he time of the declaration [shortly after the crime] and the party to whom it was made [the police] are indeed indicative of the statements’ trustworthiness.” (J.A. at 100.)
2) The court then noted that “the key— which police found where Ash said it would be — was sufficient corroborating evidence.” (J.A. at 101.)
3) The court found Ash’s statement as to the key was buttressed by the testimony of Petitioner’s accomplice at trial.
4) The court found additional corroboration of Ash’s statement in the actual crime scene, which would indicate that Petitioner would have had blood on his clothes.
5) Finally, the court found that the statement was assuredly “against Ash’s penal interest,” inasmuch as she was in a custodial setting, had been read her Miranda rights, was aware that the police were investigating a murder, and would have known her actions, as disclosed to the police, helped Petitioner dispose of the fruits of a crime and evidence.
The Supreme Court of Kentucky concluded its Confrontation Clause analysis by noting that it was not an abuse of discretion for the trial court to admit Ash’s taped statement when an “objective measure of whether [the statement] was against [Ash’s] penal interests” supported the trial court’s decision. (J.A. at 102.)
C. The Taylor Test Is Contrary to Clearly Established Federal Law
The Taylor test is “contrary to clearly established Federal law” when used to evaluate the admissibility of an out-of-court, mutually inculpatory statement. The United States Supreme Court has ruled explicitly that independent corroborating evidence may not be used as indicia of reliability when determining whether an out-of-court statement is sufficiently trustworthy to admit against a criminal defendant.5 See Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 111 L.Ed.2d 638 *826(1990).6 The Wright court devoted considerable space to explaining why the “use of corroborating evidence to support a hearsay statement” infringes on Confrontation Clause guarantees:
[W]e are unpersuaded by the State’s contention that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears ‘particularized guarantees of trustworthiness.’ To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial .... [T]he use of corroborating evidence to support a hearsay statement’s ‘particularized guarantees of trustworthiness’ would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the ... Confrontation Clause .... The true danger inherent in this type of hearsay [hearsay from a co-defendant] is, in fact, its selective reliability .... There is a very real danger that a jury will rely on partial corroboration to mistakenly infer the trustworthiness of the entire statement.
Id. at 823-24, 110 S.Ct. 3139. Such explicit exposition on the law and its rationales made the contours of Confrontation Clause jurisprudence very clear in 1996, at least insofar as the (impermissible) use of corroborating evidence to “bootstrap” the reliability of hearsay was concerned.7
Respondent cites to Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), for the proposition that a state court need not cite, or even be aware of, Supreme Court precedent, so long as “neither the reasoning nor the result of the state-court decision contradicts them.” (Resp.Br.23.) But the reasoning — i.e., the Taylor test — used by the Kentucky high court here directly contradicts clearly established Supreme Court precedent. Moreover, this is not the first time that this Court has encountered a Kentucky state court relying on Taylor to admit an accomplice’s mutually inculpatory statements against a criminal defendant. In Vincent v. Seabold, 226 F.3d 681 (6th Cir.2000), this Court held that the trial court’s reliance on Taylor resulted in a result “contrary to” clearly established Supreme Court precedent, id. at 684-85, 689. While the Vincent panel did not elaborate on the particulars of the Taylor test, its ultimate finding demonstrates the constitutional infirmity of Taylor’s ongoing application by the Kentucky courts in these circumstances.
Because the Supreme Court of Kentucky used a legal standard manifestly “contrary to” clearly established federal law, this Court reviews the admissibility of Ash’s statement de novo. Williams, 529 U.S. at 413, 120 S.Ct. 1495 (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite that reached by this Court on a question of law ....”); 28 U.S.C. § 2254(d)(1).
D. Ash’s Statement Was Inadmissible Under Roberts
“In Ohio v. Roberts, the Supreme Court set forth ‘a general approach for determining when incriminating statements admissible under an exception to the hearsay *827rule also meet the requirements of the Confrontation Clause.’ ” Wright, 497 U.S. at 815, 110 S.Ct. 3139 (citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Roberts set forth two ways in which the “indicia of reliability” requirement could be met:
1) where the hearsay statement “falls within a firmly rooted hearsay exception,” or
2) where it is supported by “a showing of particularized guarantees of trustworthiness.”
Id. at 816, 110 S.Ct. 3139 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531); see also Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (“Even if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness.’ ”) (footnote and citation omitted).
1. Statement Against Penal Interest Is Not a Firmly Rooted Hearsay Exception
Respondent argues that a statement against penal interest is, alternatively, either a “firmly rooted hearsay exception,” or that the state of the law in 1996 was ambiguous enough to preclude this Court from finding that a state court’s determination as such in 1996 was “contrary to” clearly established Supreme Court precedent. At this stage of this analysis, however, this Court has established that the Supreme Court of Kentucky’s application of the Taylor criteria was “contrary to” clearly established precedent. See supra. AEDPA, therefore, does not require that this Court defer to the Supreme Court of Kentucky’s reasoning or conclusions on this issue inasmuch as they pertain to matters of constitutional law. Rather, this Court analyzes the admissibility of the statement de novo, treating the Roberts analysis as the first step in its harmless error review — ie., was the Supreme Court of Kentucky’s application of a constitutionally infirm test merely “harmless error”? That is, would the admissibility of the statement have been upheld under the correct legal theory? If we find the statement inadmissible, we next ask whether the improper admission undermines confidence in the outcome of the trial.
“Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Wright, 497 U.S. at 817, 110 S.Ct. 3139. A hearsay exception is “firmly rooted” if, in light of “longstanding judicial and legislative experience,” Wright, 497 U.S. at 817, 110 S.Ct. 3139, it “rests [on] such [a] solid foundation that admission of virtually any evidence within [it] comports with the ‘substance of the constitutional protection.’ ” Roberts, 448 U.S. at 66, 100 S.Ct. 2531 (quoting Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). A “firmly rooted” hearsay category has conditions which have proven over time “to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at a trial. Mattox, 156 U.S. at 244, 15 S.Ct. 337. The Supreme Court has found spontaneous declaration firmly rooted, for example, because the exception “is at least two centuries old, currently widely accepted among the States,” and carries “substantial guarantees of ... trustworthiness ... [that] cannot be recaptured even by later in-court testimony.” White v. Illinois, 502 U.S. 346, 355-56 n. 8, *828112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Established practice, in short, must confirm that statements falling within a category of hearsay inherently “carry special guarantees of credibility” essentially equivalent to, or greater than, those produced by the Constitution’s preference for cross-examined trial testimony. Id. at 356, 112 S.Ct. 736.
This Court has found, on several occasions, that a statement against penal interest is not a firmly rooted hearsay exception, at least insofar as the exception is used to admit a declarant’s mutually inculpatory statement against a criminal defendant. See Hill, 337 F.3d at 715-16 (finding state court’s reliance on a statement against penal interest as a clearly established hearsay exception “contrary to” clearly established federal law); see also United States v. McCleskey, 228 F.3d 640, 644 (6th Cir.2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit the introduction of hearsay declarations uttered by accomplices in law enforcement custody that inculpate a defendant, absent further ‘particularized guarantees’ of the declaration’s trustworthiness.”). Compare Calvert v. Wilson, 288 F.3d 823, 837-38 (6th Cir.2002) (finding a declarant’s mutually inculpatory statement inadmissible against a third-party criminal defendant), with Neuman v. Rivers, 125 F.3d 315, 319-20 (6th Cir.1997) (finding statements against penal interest firmly rooted when admitted against the declarant). Moreover, this Court has found that it was clearly established, prior to the Supreme Court’s 1999 Lilly decision, that such statements were not firmly rooted hearsay exceptions in light of the Supreme Court’s precedents in Douglas (1965),8 Bruton (1968),9 and Lee (1990). See Hill, 337 F.3d at 715-16. Even were this Court to get past Kentucky’s application of the Taylor factors and apply the deferential AEDPA standard of review, then, Respondent’s argument would still fail because admitting an inculpatory statement, not against the declarant, but against an accomplice, was *829“contrary to” clearly established Supreme Court precedent in 1996.10
2. Ash’s Statement Bore Insufficient Indicia of Reliability
The Supreme Court of Kentucky found Ash’s statement reliable in light of:
1) the timing of the declaration (shortly after the crime) and the party to whom it was made (the police),
2) the fact that the police found the key where Ash indicated it would be,
3) Petitioner’s accomplice at trial corroborated Ash’s version of the key request,
4) the actual crime scene, which would corroborate that Petitioner would have had blood on his clothes; and
5) that the statement was assuredly “against Ash’s penal interest,” inasmuch as she was in a custodial setting, had been read her Miranda rights, was aware that the police were investigating a murder, and would have known her actions, as disclosed to the police, helped Petitioner dispose of the fruits of a crime and evidence.
Of these elements, items 2 through 4 are impermissible considerations under Roberts, Lee, and Wright; rather, the only inherent features of the statement to which the Supreme Court of Kentucky pointed are the timing of the declarations, the facts that the statements were made to the police, and that parts of the statement inculpated Ash herself.
The first two factors actually caution against finding Ash’s statements inherently trustworthy. The Supreme Court has found that custodial statements made in response to the police’s leading questions, when the declarant is under some suspicion related to the crime under investigation, are inherently untrustworthy. See Lee, 476 U.S. at 544, 106 S.Ct. 2056. Neither has the Supreme Court found the timing of a statement itself a sufficient indicator of reliability. Id. In fact, most accomplices are interviewed shortly after the crime. Here, about 10 days had passed. The fact that the statement was against Ash’s penal interest does not distinguish the case from the Supreme Court’s well-established jurisprudence finding that such custodial, mutually inculpatory statements are inherently untrustworthy. Id.
Nothing about Ash’s statement bore “particular guarantees of reliability.” The fact that a statement took place shortly after the crime is insufficient, standing alone, to overcome the presumption of unreliability accorded to statements which both inculpate the declarant and the criminal defendant in the same crime. Ash’s statement did exactly what the Supreme *830Court fears such statements do — at the cost of some inculpability of the declarant, the declarant curries police favor, minimizes her own role, and inculpates another actor. Id. at 546, 106 S.Ct. 2056. This suspicion is borne out in Ash’s case. At the conclusion of her statement, the police assured Ash that she was not being looked upon as a suspect in the case — despite the fact that the police had placed Ash in custody and Mirandized her for questioning. {See J.A. at 57.) Ash was incentivized to tell the police what they wanted to hear. The Supreme Court of Kentucky pointed to no features of Ash’s statement which would indicate that the statement bore “particularized guarantees of trustworthiness.”
Respondent argues that Ash was not a codefendant to Petitioner, nor a true “accomplice” to Petitioner’s alleged crime, thereby placing Ash’s statement outside the bounds of Supreme Court case law which treats such statements as presumptively unreliable. Respondent points out that destruction of evidence is a separate crime in Kentucky law, and that Ash’s statements therefore implicate Ash in a different crime than Petitioner’s. Respondent’s argument in this respect is without merit. Whether Kentucky state law treats Ash’s actions as a separate crime or as something akin to an “accomplice after the fact,” the basic premise making Ash’s statement presumptively unreliable remains. Ash had an incentive to minimize her actions and to curry favor with the police. Whatever the state of Kentucky ultimately chose to charge Ash with for her role in destroying evidence relevant to the death of Charlie Bramer does not affect the presumptive unreliability of her statement made just 10 days after the crime itself. Because the introduction of the statement was not harmless error, see supra, under the rule of Ohio v. Roberts the writ must be granted.
IV.
CONCLUSION
Because Crawford is a watershed rule of criminal procedure, I would apply Crawford to find that the introduction of Ash’s taped statement violated Petitioner’s rights under the Confrontation Clause of the Sixth Amendment. Even absent the application of Crawford, however, I agree with the lead opinion that the Kentucky Taylor test was contrary to clearly established law under Ohio v. Roberts. Accordingly, the writ must be granted.
. In fact, this is just the sort of "drive-by" "holding” that Justice Scalia has decried as meriting no precedential value, although sometimes understandable in light of the particular facts before the issuing panel. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (stating that a prior court's summaiy assumption of jurisdiction without analytical support held no precedential effect and indicating that such treatments are dicta).
. The First Circuit declined to reach the question of Crawford ’s retroactivity in Horton v. Allen because the court there found that the statements at issue did not implicate Crawford in the first instance. See 370 F.3d 75, 83 (2004). In setting up its analysis, however, *819the First Circuit implied that AEDPA would not preclude retroactive application when the court stated that "new rules of criminal procedure” applied in habeas cases when such rules fell within a Teague exception. Id.
. The central issue guiding the applicability of Crawford would be whether or not the statement was testimonial. While the Crawford Court declined to define the boundaries of testimonial statements, it held that a "core” class of testimonial statements includes "custodial examinations,” which the parties do not dispute was the circumstance of Ash’s statement. Crawford, 124 S.Ct. at 1364.
. Crawley v. Commonwealth, 568 S.W.2d 927 (Ky.1978).
. Respondent appears to argue that the Taylor decision is consistent with Supreme Court precedent if read as setting forth a test to determine whether a statement actually is a statement against penal interest, and that such statements are, in turn, firmly rooted hearsay exceptions. Respondent does, in fact, imply in its brief to this Court that the Wright decision is inapplicable because the Wright court was dealing with the admissibility of a statement under the residual hearsay exception. (See Resp. Br. 25.) This argument fails for two reasons. First, whether admitted as either a statement against penal interest or under the residual exception, a declaration must pass the test set forth in Ohio v. Roberts (see infra) to preclude a Confrontation Clause violation. A statement can only pass Roberts if it 1) is a firmly rooted hearsay exception (and hence so traditionally trustworthy that individual case analysis is unnecessary), or 2) possesses its own particularized indicia of reliability. A statement against penal interest was not a firmly rooted hearsay exception in 1996, see infra; therefore such statements must be analyzed under Roberts’ second prong, making applicable the 1990 Wright decision, which analyzed the admitted statement under Roberts ’ second prong. Second, the Taylor test, a fortiori, purports to set forth an analysis of when a statement against penal interest is trustworthy enough to merit admission without Confrontation Clause problems, both because of the posture of the case and the test itself, which includes consideration of the declarant's penal interest as only one factor in the overall test.
. The Wright decision came out on June 25, 1990, while the Kentucky Taylor decision came more than two months later, on June 27, 1990.
. While the Supreme Court cited to Wright several times in decisions issued between 1990 and 1995, no majority opinion called the Wright decision into question.
. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the Supreme Court held that the admission of a nontestifying accomplice’s confession, which shifted responsibility and implicated.the defendant as the triggerman, "plainly denied [the defendant] the right of cross-examination secured by the Confrontation Clause.” Id. at 419, 85 S.Ct. 1074. A quarter century-later, in Lee, the Court reaffirmed Douglas and explained that "the truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice's confession is sought to be introduced against a criminal defendant without the benefit of cross-examination .... Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Lee, 476 U.S. at 544, 106 S.Ct. 2056 (internal quotations and citations omitted). The Lee Court recognized that due to the sweeping scope of the label, the simple categorization of a statement as a " 'declaration against penal interest’ ... defines too large a class for meaningful Confrontation Clause analysis.” Id. at 544 n. 5, 106 S.Ct. 2056.
. In Bruton v. United States, the Supreme Court unanimously found that a codefendant’s mutually inculpatory confession could not be used against the declarant’s accomplice without infringing on the defendant’s rights under the Confrontation Clause. 391 U.S. at 138, 88 S.Ct. 1620. In the years since Bruton, the Supreme Court has consistently either stated or assumed that the mere fact that one accomplice’s confession qualified as a statement against his penal interest did not justify its use as evidence against another person. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ("Where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.”); Cruz v. New York, 481 U.S. 186, 189-90, 193, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (same).
. The "against penal interest” exception to the hearsay rule is not premised on the traditional hearsay exception rationale; circumstances of the traditional hearsay exception indicate that it is made without a motive to reflect on the legal consequences of one's statement; and the situations in which the statement is made are exceptionally conducive to veracity and lack the dangers of inaccuracy that typically accompany hearsay. Rather, the "against penal interest” exception is founded on the broad assumption "that a person is unlikely to fabricate a statement against his own interest at the time it is made.” Chambers, 410 U.S. at 299, 93 S.Ct 1038. But this rationale does not suppose that the declarant’s unwillingness to inculpate himself extends to his accomplices or those who otherwise assisted or engaged in the crime. The practice of admitting mutually inculpatory hearsay statements is a relatively recent phenomenon of the past two decades. The reality of such statements, however, is that they typically include statements that, when offered in the absence of the declarant, function similarly to those used in the ancient ex parte affidavit system which the hearsay rule was designed to address.