Merolillo v. Yates, No. 08-56952 (12-12-11) (Navarro, D.J., with Schroeder and Gould).

The issue at trial was causation: did the trauma to the victim's head lead, in 30 days, to her death by aortic aneurysm. The pathologist said it did, at a preliminary hearing, but did not testify at trial (he was no longer employed by the county). His testimony was allowed in over a confrontation objection. All courts agreed that there was error -- the witness was not shown to be unavailable. The state courts found it to be harmless, as did the district court. The 9th reverses, and remands with instructions to grant the writ. There was clear error -- all courts agreed -- but the 9th found it to be prejudicial. The test for AEDPA prejudice, stressed the 9th, was laid by the Supremes in Fry v. Pliler, which held that Brecht is applied without regard to the state's harmlessness determination. That is the case here, where the testimony was prejudicial because it went to the crux of the case, it was given great weight, the testimony itself was confused, contradictory, and inconsistent, and the jury seemed to focus on it. It was also not cumulative, as the experts disagreed on the cause. The finding of prejudice also met the higher Chapman standard of harmless beyond a reasonable doubt.