OPINION

BERNICE B. DONALD, Circuit Judge.

Petitioner, Willard McCarley, an Ohio state prisoner proceeding in forma pauperis, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. McCarley argued in his petition that the Ohio Court of Appeals unreasonably applied clearly established Sixth Amendment law by allowing a child psychologist to read into evidence the testimonial hearsay statements of a three-and-a-half year-old declarant, where the declarant was not subject to any prior cross-examination. The district court held that the Ohio state courts unreasonably applied the rule of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but denied McCarley's petition on the ground that the Sixth Amendment violation was harmless error under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), because it could not have substantially influenced the jury's verdict. This Court subsequently granted McCarley a certificate of appealability on his Sixth Amendment claim. We now REVERSE the district court's conclusion that the Sixth Amendment error was harmless and REMAND to the district court with instructions to grant McCarley a conditional writ of habeas corpus.

I.

On direct appeal, the Ohio Court of Appeals described the factual background of McCarley's trials and convictions as follows:

McCarley alleges that the admission of the testimony of Dr. Dawn Lord, the child psychologist, violated his Sixth Amendment right to confront the witnesses against him. Dr. Lord read to the jury, over counsel's contemporaneous objection, three letters she wrote to Lieutenant John Karabatsos ("Lt. Karabatsos") detailing her therapy sessions with the murder victim's minor son, D.P. The first letter to Lt. Karabatsos, prepared by Dr. Lord on January 30, 1992, stated:

The second letter, prepared by Dr. Lord on May 14, 1992, stated:

The third and final letter, prepared by Dr. Lord on June 6th, 1992, stated:

At trial, Lt. Karabatsos explained why D.P. went to see Dr. Lord in the first place. On direct examination, after the lieutenant stated that police were initially unable to get any information about the murder from D.P., the prosecutor asked Lt. Karabatsos: "So what did you do about that in order to have [D.P.] open up or be able to talk about anything he might have heard or seen?" Lt. Karabatsos responded:

Then, on cross-examination, defense counsel asked Lt. Karabatsos why he sought outside assistance in communicating with D.P.: "[Y]ou called Child Guidance because you wanted to find someone who could perhaps extract information from the child in the appropriate way and help the investigation?" Lt. Karabatsos confirmed: "That is — that is all — that is my main reason.... Yes, our main concern was to try to get the information, but that was not the only thing that crossed our mind at the time."

Lt. Karabatsos also testified on cross-examination about his relationship and communications with Dr. Lord. The lieutenant stated that he "would have asked Dr. Lord that anything that [D.P.] would have said during the course of the counsel, during the course of her interviews with him, that she make me aware of that so that I could use it in my investigation." In response to a follow-up question, Lt. Karabatsos answered that he absolutely planned to use any information provided by Dr. Lord in his investigation to assist him with identifying the persons responsible for the murder.

The State argues that, even without Dr. Lord's testimony, sufficient evidence supported the verdict such that any Sixth Amendment violation was harmless error. This evidence includes inconclusive DNA evidence on the murder weapon and other items from the victim's home and the testimony summarized in the following paragraphs.

Phyllis Puffenbarger, the victim's mother and D.P.'s maternal grandmother, testified to statements, admitted at both trials as an excited utterance, that D.P. made approximately four days after his mother's murder. D.P. began speaking very quickly into a toy telephone and looking at a picture of his deceased mother. Phyllis transcribed what D.P. said, and she read two sets of her notes to the jury at trial. The first of those notes stated:

The second note stated:

Officer Eric Breiding testified concerning D.P.'s reaction to seeing police officers at the scene immediately following his mother's murder. According to Breiding: "When [D.P.] first saw me, the only thing he said, `It was him. He hurt mommy.' And every uniformed officer he saw that day, he made the same statement over and over and over again."

Deputy Dennis Balogh testified regarding events that took place on December 19, 1995, well after Charlene Puffenbarger's 1992 homicide. Balogh went to McCarley's home on an unrelated matter and had a face-to-face encounter with McCarley in his garage. Balogh testified that, during this encounter, he observed "a deputy sheriff's jacket and a deputy sheriff's ball cap" in the garage. Balogh confiscated those items as contraband because "Mr. McCarley was not related to any law enforcement agency," and testified that he understood at that time "the relationship of that jacket and hat to" Charlene Puffenbarger's murder.

II.

A.

When a district court denies a habeas petition, this Court reviews the lower court's legal conclusions de novo and its findings of fact for clear error. Broom v. Mitchell, 441 F.3d 392, 398 (6th Cir.2006). The relitigation bar of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), applies to "any claim ... adjudicated on the merits in State court proceedings."

Because the Ohio Supreme Court denied leave to appeal, the Ohio Court of Appeals issued the last reasoned opinion addressing McCarley's Sixth Amendment claim:

We must initially determine whether the Ohio court's analysis constitutes an adjudication on the merits for the purposes of § 2254(d)'s relitigation bar. "It is well settled that we may review de novo an exhausted federal claim that was not adjudicated on the merits in state court." Rice v. White, 660 F.3d 242, 252 (6th Cir.2011). While Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), requires us to presume "the state court adjudicated the claim on the merits," that presumption holds only "in the absence of any indication ... to the contrary." Id. at 784-85. We conclude that the Harrington presumption is overcome here for the following reasons. First, the state court did not issue a decision as to whether the State violated McCarley's Sixth Amendment rights; rather, it made a point of not deciding the issue. The state court simply "note[d]" its "doubt" as to the claim without further discussion of the Confrontation Clause. Second, when read as a whole, it is clear that the state court was not convinced that McCarley's claim lacked merit. While the state court cited to Crawford, it also cited to an Ohio Supreme Court case, applying Crawford, that would have compelled the opposite result. Finally, the state court proceeded to assess the harmlessness of the error, an issue the court needed to reach only if McCarley's claim was at least arguably meritorious. Like the Ninth Circuit in Ayala v. Wong, 730 F.3d 831 (9th Cir.2013), "We have found no published opinion in which, after a state court has denied relief based on harmless error, a federal court has presumed that the state court adjudicated the merits of the question of error." Id. at 843; see also Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir.2009) (suggesting that AEDPA deference would not apply "where the state court simply assumed, without deciding, that there was a constitutional error"). We therefore review de novo the merits of McCarley's Confrontation Clause claim.

B.

The Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. Incorporated through the Fourteenth Amendment, the Confrontation Clause, a "bedrock procedural guarantee," applies with equal force to criminal prosecutions by the States. Crawford, 541 U.S. at 42, 124 S.Ct. 1354; see also Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

The Supreme Court's decision in Crawford initiated a sea change in Confrontation Clause jurisprudence. 541 U.S. at 68, 124 S.Ct. 1354. After canvassing the English common law and practices of the States shortly after the Revolution, the Crawford Court arrived at an unequivocal conclusion as to what the Confrontation Clause requires with regard to testimonial evidence: "Where testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68, 124 S.Ct. 1354. The Crawford Court unfortunately "le[ft] for another day any effort to spell out a comprehensive definition of `testimonial'" beyond a list of examples including police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at a previous trial. Id. Justice Scalia's Opinion for the Court did, however, refer to dictionary definitions of "witnesses" and "testimony" for guidance in interpreting the language of the Confrontation Clause itself. Id. at 51, 124 S.Ct. 1354. Witnesses are "those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (quoting 2 N. Webster, An American Dictionary of the English Language (1828)) (internal quotation marks and alterations omitted).

The Supreme Court handed down only one opinion further refining the scope of "testimonial" evidence between its decision in Crawford and the Ohio Court of Appeals' rejection of McCarley's direct appeal on February 13, 2008: Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The Davis Court, in a consolidated appeal, confronted two sets of statements made to police. Id. at 817-20, 126 S.Ct. 2266.1 In Davis, Michelle McCottry made the statements at issue to a 911 operator while reporting an ongoing domestic disturbance. Id. at 817, 126 S.Ct. 2266. In the companion case, Hammon v. Indiana, Amy Hammon completed an affidavit containing the statements at issue after answering questions from a police officer who responded to a reported domestic incident at her home. Id. at 819-20, 126 S.Ct. 2266.

The Davis Court provided the following guidance for distinguishing between testimonial and nontestimonial statements in response to police interrogation:

Id. at 822, 126 S.Ct. 2266 (emphasis added). The Court went on to clarify that the Confrontation Clause applies to informal, as well as formal, prior testimony. Id. at 826, 126 S.Ct. 2266 ("In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition."). The fruits of an interrogation, "whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, [are] testimonial." Id. Applying these principles, the Davis Court held that Michelle McCottry's statements to the 911 operator were not testimonial because "the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency," and then reached the opposite conclusion regarding the statements in Amy Hammon's affidavit because it "was part of an investigation into possibly criminal past conduct." Id. at 828-29, 126 S.Ct. 2266.

Davis articulated four reasons why McCottry's statements were not testimonial evidence. Id. at 827, 126 S.Ct. 2266. First, "McCottry was speaking about events as they were actually happening, rather than describing past events." Id. (quoting Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality opinion)) (internal quotation marks and alterations omitted). Second, "any reasonable listener would recognize that McCottry ... was facing an ongoing emergency." Id. Third, viewing the 911 call objectively, the Court concluded that the nature of the questions asked and the answers given "were necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past." Id. Finally, the Court addressed the different levels of formality between McCottry's 911 call and the statements held to be testimonial in Crawford. Id. McCottry's frantic telephone call from an unsafe environment stood in stark contrast to Crawford's calm responses to questions posed by police in the safety of the station house. Id. Accordingly, McCottry was not bearing witness or testifying because "[n]o `witness' goes into court to proclaim an emergency and seek help." Id. at 828, 126 S.Ct. 2266.

Turning to Hammon's affidavit, the Davis Court found it simple to classify those statements as testimonial. Id. at 829, 126 S.Ct. 2266. There was no emergency in progress at the time of the interrogation, and the officer who questioned Hammon "was not seeking to determine... `what is happening,' but rather `what happened.'" Id. at 830, 126 S.Ct. 2266. Another key factor in the Court's analysis was that "the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime." Id. Accordingly, the Davis court held that the statements in Hammon's affidavit were testimonial and their introduction likely violated the Confrontation Clause. Id. at 834, 126 S.Ct. 2266.

III.

Because our review is de novo, we first decide whether the Ohio Court of Appeals properly applied Crawford and its progeny when it rejected McCarley's direct appeal. The Ohio court began its analysis by stating: "[W]e have doubt as to the validity of McCarley's argument that D.P.'s statements to Dr. Lord during therapy were testimonial in nature." This Court does not share those doubts.

The facts of the instant appeal are analogous to the facts in Davis. Lt. Karabatsos testified that he sought out Dr. Lord to speak with D.P. because "we determined it was necessary to bring somebody who was a child psychologist, possibly, or somebody who was a child therapist in to speak with him, see if they could extract any information from him that he remembered from that evening." The lieutenant also testified that he asked Dr. Lord to "make [him] aware" of anything D.P. said about the murder "so that [he] could use it in [his] investigation." Because Dr. Lord was questioning D.P. about the night of his mother's murder and reporting everything D.P. said that might be relevant to the investigation back to Lt. Karabatsos, Dr. Lord was acting more as a police interrogator than a child psychologist engaged in private counseling. Cf. Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (holding a police officer violated Williams' Sixth Amendment right to counsel by "deliberately and designedly set[ting] out to elicit information from Williams just as surely as — and perhaps more effectively than — if he had formally interrogated him"); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (holding police violated Massiah's Sixth Amendment right to counsel when they "deliberately elicited" incriminating statements from him). Although Dr. Lord is not a member of the police department, Lt. Karabatsos' testimony shows that, like the 911 operator in Davis, Dr. Lord was "at least [an] agent[] of law enforcement" such that her acts could likewise be considered "acts of the police." Davis, 547 U.S. at 823 n. 2, 126 S.Ct. 2266. Dr. Lord's sessions with D.P. thus were more akin to police interrogations than private counseling sessions, a fact that brings this case within the Crawford-Davis analysis for determining whether statements given to law enforcement personnel are testimonial evidence.

Lt. Karabatsos' testimony at trial also reveals the testimonial nature of D.P.'s statements. Even more so than Hammon's statements to police in Davis, D.P.'s statements to Dr. Lord occurred long after — ten days, to be precise — any emergency situation had passed. See id. at 830, 126 S.Ct. 2266. The lieutenant unambiguously stated that his "main concern" and the "main reason" for D.P.'s sessions with Dr. Lord "was to try to get the information" that police personnel could not elicit from D.P. — including the identity of the suspects — so that Lt. Karabatsos "could use it in [his] investigation." Because "the primary purpose of the interrogation [wa]s to establish or prove past events potentially relevant to later criminal prosecution," D.P.'s statements are testimonial evidence. Davis, 547 U.S. at 822, 126 S.Ct. 2266. Accordingly, the district court correctly concluded that the Ohio Court of Appeals misapplied Crawford, as D.P.'s statements constitute testimonial evidence where they were deliberately elicited in an interrogation-like atmosphere absent an ongoing emergency and used to prove past events in a later criminal prosecution. See id. at 827-28, 126 S.Ct. 2266.

Because Confrontation Clause violations are subject to harmless error analysis, Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), we must next decide whether the Sixth Amendment violation was harmless error under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). See Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir.2009) ("[I]n this Circuit ... Brecht is always the test, and there is no reason to ask both whether the state court `unreasonably' applied Chapman under the AEDPA and, further, whether the constitutional error had a `substantial and injurious' effect on the jury's verdict."). Because the Brecht analysis is a question of law, our review of this question is likewise de novo. Brecht, 507 U.S. at 637, 113 S.Ct. 1710; Broom, 441 F.3d at 398 (stating this Court reviews a district court's legal conclusions de novo).

Brecht requires a Confrontation Clause violation to have a "substantial and injurious effect or influence in determining the jury's verdict" before it merits reversal on collateral review. Brecht, 507 U.S. at 637, 113 S.Ct. 1710. In order to determine whether an error had such an effect or influence, the Supreme Court has instructed the lower federal courts "to ask directly, `Do I, the judge, think that the error substantially influenced the jury's decision?'" O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Id. at 438, 115 S.Ct. 992 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

When conducting harmless error analysis of Confrontation Clause violations, this Court utilizes the factors outlined by the Supreme Court in Van Arsdall. Jensen v. Romanowski, 590 F.3d 373, 379 (6th Cir.2009) ("[W]e assess the prejudicial impact of constitutional trial errors under the `substantial and injurious effect' standard set forth in Brecht, examining the error by applying the Van Arsdall factors to the facts in the case."). The Supreme Court reasoned in Van Arsdall that whether an error is harmless in a particular case "depends upon a host of factors." 475 U.S. at 684, 106 S.Ct. 1431. Those factors include "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and ... the overall strength of the prosecution's case." Id. Applying these factors, we have grave doubts as to whether the Sixth Amendment violation at McCarley's second trial influenced the jury's decision.

The importance of Dr. Lord's testimony to the prosecution's case against McCarley cannot be overstated. The State relied heavily on her letters in both trials, but they acquired greater significance in the second trial. In its opinion addressing McCarley's first direct appeal, which resulted in the reversal of his initial conviction, the Ohio Court of Appeals recognized that

But in the first trial D.P.'s statements were not introduced for the truth of the matter asserted. At the second trial, D.P.'s statements were introduced — without a limiting instruction — to establish the truth of the matter asserted. Thus, the State's reliance on the letters was magnified at the second trial because the jury could consider them for the truth of their contents.

Another fact showing the importance of Dr. Lord's testimony is that the prosecution relied heavily on her recitation of D.P.'s statements during closing arguments. The prosecutor read all of D.P.'s statements from Dr. Lord's testimony in their entirety during his initial closing argument and commented: "That is what [D.P.] is able to say about what happened to his mother. He is an eyewitness to what happened in this case." Then, during his rebuttal, the prosecutor made the following remarks further illustrating that D.P.'s statements were central to the State's case:

Because, according to the prosecutor's own closing argument, D.P.'s statements provided crucial narrative details and the only eyewitness identification of the perpetrator, Dr. Lord's testimony must have been crucial to the prosecution's case under Van Arsdall. This first factor therefore weighs in McCarley's favor.

The next Van Arsdall factor is "whether the testimony was cumulative." 475 U.S. at 684, 106 S.Ct. 1431. The district court labeled Dr. Lord's testimony "cumulative of testimony provided by three other witnesses — D.P.'s grandmother (Phyllis), Officer Breiding and former deputy Balogh." According to the district court, "the jury heard similar, if not identical, details to those presented through Dr. Lord. The duplicative content of the testimony minimized the importance Dr. Lord's testimony, alone, may have had on the jury's findings."

While the content of Dr. Lord's testimony may well have duplicated some of the content of those other three witness, it was not cumulative. Phyllis' testimony consisted of reciting the notes she had taken of D.P.'s nearly-incoherent rambling. Her testimony, standing alone, provides few corroborated details about the murder and actually introduces a host of extraneous, uncorroborated facts. Officer Breiding's testimony deals with a time period before D.P. saw Dr. Lord and does establish that D.P. identified every police officer as a potential suspect or as the perpetrator, but that single detail is hardly overwhelming evidence of McCarley's guilt. Finally, Deputy Balogh testified only that McCarley, years later, had possession of sheriff's attire when he had no connection to law enforcement. This possession of contraband law enforcement attire also is not overwhelming evidence of McCarley's guilt.

All of the above testimony paints a clear picture of the crime, but only when considered in light of Dr. Lord's testimony about D.P.'s statements to her. Dr. Lord's testimony therefore was not cumulative, but rather more akin to a keystone holding the arch of the State's case together. Remove that crucial block, especially D.P.'s eyewitness identifications, and the State's case collapses into disjointed pieces. This factor therefore weighs in favor of McCarley.

The third Van Arsdall factor requires us to consider "the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points." 475 U.S. at 684, 106 S.Ct. 1431. The analysis above dealing with whether Dr. Lord's testimony was cumulative of other witnesses' testimony shows that there was significant corroboration of D.P.'s statements at McCarley's trial. This factor therefore weighs in favor of the State.

The next factor, "the extent of cross-examination otherwise permitted," id. at 684, 106 S.Ct. 1431, also weighs in favor of the State. McCarley had a full opportunity at trial to cross-examine all of the prosecution's witnesses save for D.P.

The final Van Arsdall factor we consider is "the overall strength of the prosecution's case." Id. Had the jury not heard and considered D.P.'s statements identifying McCarley as the perpetrator, the State's case would have been almost entirely circumstantial. The only physical evidence, the DNA gathered at the scene, was inconclusive. The DNA tests established that belt used to murder the victim might have contained male DNA from McCarley's paternal relatives, but this evidence is far from overwhelming. D.P.'s younger brother is a male descendant of McCarley, and McCarley's father often visited the house. Furthermore, none of the testimony at trial save for Dr. Lord's included a conclusive identification of McCarley as the murderer. Even considered together, the testimony of Phyllis Puffenbarger, Officer Breiding, and Deputy Balogh does not specifically link McCarley to the murder. In sum, without Dr. Lord's testimony, the prosecution's case was far from "substantial and overwhelming," as the district court described it. This factor therefore weighs in favor of McCarley.

We thus have grave doubts as to whether the violation of McCarley's rights under the Confrontation Clause had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Three of the Van Arsdall factors — the importance of the testimony, whether it was cumulative, and the overall strength of the prosecution's case — favor McCarley. Dr. Lord's testimony was a crucially important piece of the prosecution's evidence because it contained the only eyewitness identification of McCarley. Her testimony was not cumulative, and the overall strength of the prosecution's case against McCarley was not overwhelming without D.P.'s statements.

Only two of the Van Arsdall factors — the presence of corroborating evidence and the extent of cross-examination otherwise permitted — weigh in favor of the State. These factors that favor the prosecution do not carry as much weight as those that favor McCarley. While McCarley had the opportunity to cross-examine all the other witnesses, that he had no opportunity to cross-examine D.P. was the critical error in the state court proceedings. Additionally, the fact that other testimony corroborates D.P.'s statements underscores the importance of Dr. Lord's testimony. Accordingly, the Confrontation Clause violation at McCarley's second trial was not harmless error.

IV.

Because D.P.'s statements constitute testimonial evidence and the Confrontation Clause violation at McCarley's second trial was not harmless error, we REVERSE the district court's denial of McCarley's § 2254 petition and REMAND to the district court with instructions to grant McCarley a conditional writ of habeas corpus.

MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring.

I concur in the majority's conclusion that the district court's denial of Willard McCarley's habeas corpus petition must be reversed and the matter remanded for issuance of a conditional writ. Examination of the record before us demonstrates unequivocally that D.P.'s statements to Dr. Lord constituted testimonial evidence and that it would be an unreasonable application of the principles set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to conclude that the error in admitting those statements into evidence was harmless. I write separately only to express my belief that the Ohio Court of Appeals, in deeming any purported Sixth Amendment error in this matter to be harmless, actually was adjudicating McCarley's Confrontation Clause challenge on the merits.

As noted by the majority, "Confrontation Clause violations are subject to harmless error analysis." See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Consequently, in Confrontation Clause cases, as in other cases involving constitutional violations that are not per se prejudicial, any resolution of an allegation of constitutional error necessarily must encompass an analysis of whether that purported error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The determination of whether any constitutional error is harmless or prejudicial thus is part and parcel of a merits adjudication of the issue. By concluding that McCarley was not harmed by the admission of Lord's testimony in this case, the Ohio Court of Appeals thus made a finding that was tantamount to holding that there was no merit to the petitioner's assertion.

Even though I believe that the Ohio Court of Appeals did adjudicate the Confrontation Clause issue on its merits, there can be no doubt that the state court unreasonably applied settled federal constitutional law in concluding that McCarley was not prejudiced by the admission of the challenged testimony. For that reason, I concur in the judgment reached by the majority in this appeal.