Full opinion text
Order Conditionally Granting Habeas Corpus Petition & Closing Case ADALBERTO JORDAN, District Judge. This capital case, which has spanned almost 40 years, has been before the Florida Supreme Court four times, and before the Eleventh Circuit once before. On this latest trip through the federal system, I conditionally grant the habeas corpus petition filed by Askari Abdullah Muhammad and order that the state resentence him for the 1974 murders of Sydney and Lillian Gans or commute his death sentences to life sentences. Normally, the granting of habeas relief in a capital case means that, at least for a while, the defendant is no longer facing execution. Mr. Muhammad, however, is not the typical death-row petitioner, for he killed a prison guard — Officer James Burke — while he was in custody for the Gans murders, and was sentenced to death for that crime as well. The Florida Supreme Court affirmed that conviction and sentence. See Muhammad v. State, 494 So.2d 969 (Fla.1986) (Muhammad II). Mr. Muhammad eventually sought a writ of habeas corpus in federal court, but the district court denied relief. See Muhammad v. McDonough, 2008 WL 818812 (M.D.Fla. Mar. 26, 2008) (Muhammad III). And, when Mr. Muhammad sought review of the district court’s decision, the Eleventh Circuit denied Mr. Muhammad’s request for a certificate of appealability. See Muhammad v. Sec’y Dep’t of Corr., 554 F.3d 949 (11th Cir.2009) (Muhammad IV). So, regardless of what ultimately happens in this case, Mr. Muhammad will remain on death row awaiting execution for the murder of Officer Burke. In this proceeding, Mr. Muhammad contends that the state violated his Sixth Amendment Confrontation Clause rights; that his counsel rendered ineffective assistance at the resentencing phase; that the state failed to disclose material evidence or information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); that the prosecutor made improper and inflammatory remarks in violation of his Eighth and Fourteenth Amendment rights; that his counsel was laboring under an actual conflict of interest; that the trial court’s refusal to advise the jury regarding consecutive sentences violated his Sixth, Eighth, and Fourteenth Amendment rights; that the denial of a peremptory challenge during jury selection violated his Fourteenth Amendment rights; that the trial court erred in instructing the jury on the “cold, calculated, and premeditated” aggravator in violation of the Ex Post Facto Clause; that he has spent an exorbitant time on death row, which renders any execution cruel and unusual punishment; that he may be incompetent at the time of his execution, which would violate his Eighth Amendment rights; that the state’s reliance on the non-statutory aggravator of “future dangerousness” violated his constitutional rights and tainted the validity and reliability of the jury’s recommendation; and that Florida’s death penalty scheme is unconstitutional in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Following oral argument and a review of the extensive record in this case, I conclude — under a unique legal landscape — that Mr. Muhammad is entitled to relief on his Confrontation Clause claim and that all of his other claims fail. Put simply, the state violated Mr. Muhammad’s Confrontation Clause rights at the 1996 resentencing proceeding when it had an officer testify about the contents of a sworn statement of a witness who had never been cross-examined without first showing that the witness was unavailable or demonstrating that the sworn statement bore indicia of reliability, as required by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The state has the burden to show that the Roberts violation caused no harm, but the state did not meet this burden. The sworn statement contained evidence at the core of the dispute between Mr. Muhammad and the state — a dispute about Mr. Muhammad’s mental state and intent — in the resentencing proceeding. Because the sworn statement was critical, its introduction not only violated the Confrontation Clause, but also prejudiced Mr. Muhammad. Habeas relief as to sentencing is therefore warranted. I. The Underlying Facts and Procedural History The state charged Mr. Muhammad with the first-degree murders of Mr. and Mrs. Gans in 1974. The facts with respect to those murders is as follows. Mr. Muhammad ambushed Mr. Gans as he arrived at his business. See Knight v. State, 338 So.2d 201, 202 (Fla.1976) (Knight I) (per curiam). As Mr. Gans parked his car, a Mercedes Benz, Mr. Muhammad strode toward him. Mr. Muhammad, who was carrying an automatic rifle, ordered Mr. Gans to get in the car, to drive home, and to get Mrs. Gans. Facing the barrel of a rifle, Mr. Gans obeyed. When he arrived home, Mr. Gans honked the horn. Mrs. Gans walked out, and eventually got into the car. Mr. Muhammad then ordered Mr. Gans to drive to the bank, where he demanded that Mr. Gans withdraw $50,000. See id. Mr. Gans went into the bank and warned the bank president about Mr. Muhammad. The bank president alerted the FBI and the police, but Mr. Gans also withdrew the $50,000, carried the money out of the bank, and gave it to Mr. Muhammad. But Mr. Muhammad did not free Mr. and Mrs. Gans. He forced them, rather, to drive southwest, as far southwest as civilization went in Metropolitan Dade County in 1974. As Mrs. Gans drove, a platoon of law-enforcement officials — composed of FBI agents and Metro-Dade police officers — shadowed the Mercedes Benz in unmarked cars. Mr. Muhammad commanded Mrs. Gans to stop in a secluded area. Mrs. Gans obeyed. With the Mercedes Benz at rest, the three passengers opened the car doors, stepped out, and loitered for a few moments. For unknown reasons, Mr. Muhammad ordered Mr. and Mrs. Gans back inside the car. The Mercedes Benz moved and stopped at another spot. Here, Mr. Muhammad shot and killed Mrs. Gans with a bullet to the neck. It is unclear exactly what happened next, but Mr. Muhammad subsequently shot and killed Mr. Gans, also with a shot to the neck. Mr. Gans’s body lay a few feet from the car. The police would soon find the bodies in the wooded area. See id. The police combed the area for hours and located Mr. Muhammad nearby. Underneath him— buried in the dirt — the police found an automatic rifle and a bag containing the $50,000. Blood was smeared on Mr. Muhammad’s pants. See id. While he awaited trial, Mr. Muhammad escaped from jail. A massive, nationwide manhunt ensued. Mr. Muhammad was eventually recaptured and was tried for the Gans murders in 1975. A jury found him guilty and, after a separate sentencing proceeding, recommended that he be sentenced to death. The trial court followed the jury’s recommendation and sentenced Mr. Muhammad to death. Mr. Muhammad appealed, but the Florida Supreme Court affirmed the conviction and sentence in Knight I. Mr. Muhammad then filed a petition for a writ of habeas corpus in the Florida Supreme Court, alleging ineffective assistance of appellate counsel. During the pendency of this habeas proceeding, Florida’s governor signed Mr. Muhammad’s death warrant. The governor scheduled the execution for March 3, 1981. Mr. Muhammad filed a motion for stay of execution in the Florida Supreme Court. On February 24, 1981, the Florida Supreme Court denied the habeas corpus petition and the motion for stay of execution. See Knight v. State, 394 So.2d 997, 1003 (Fla.1981) (Knight II) (per curiam). On the day the Florida Supreme Court denied his state habeas petition, Mr. Muhammad filed a petition for writ of habeas corpus and motion for stay in federal district court. The district court granted a stay of execution and retained jurisdiction while Mr. Muhammad returned to state court to exhaust his claims. See Knight v. Wainwright, Case No. 81-00391-Civ-Hoeveler (S.D.Fla.1981) (Knight III). Mr. Muhammad then sought amended post-conviction relief in the state courts under Florida Rule of Criminal Procedure 3.850. The trial court denied relief, and the Florida Supreme Court affirmed. See Muham mad v. State, 426 So.2d 533 (Fla.1982) (Muhammad I). After denial of his Rule 3.850 motion, Mr. Muhammad asked that the district court decide his federal petition for writ of habeas corpus. The district court denied the petition, and Mr. Muhammad appealed. On appeal to the Eleventh Circuit, Mr. Muhammad raised seven claims. See Knight v. Dugger, 863 F.2d 705, 707 (11th Cir.1988) (Knight IV). As to the first six claims, the Eleventh Circuit was “satisfied that the district court handled each one properly.” Id. at 707. But his last claim, “concerning restrictions on the consideration of non-statutory mitigating evidence[,] presented] a more difficult issue.” Id. at 708. The Eleventh Circuit held that an error under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was apparent and concluded “that harmless error cannot be made out simply because multiple aggravating circumstances exist in a given case.” Knight IV, 863 F.2d at 710. The state, moreover, offered no other arguments supporting its contention that the Lockett violation was harmless, and so the Eleventh Circuit granted the habeas corpus petition. Id. The panel remanded the case to the district court with instructions to enter an order “granting the application for writ of habeas corpus, unless the State within a reasonable period of time either resentences Muhammad in a proceeding that comports with Lockett or vacates the death sentence and imposes a lesser sentence consistent with law.” Id. Not until 1996 — eight years later — did a Florida court finally resentence Mr. Muhammad for the murders of Mr. and Mrs. Gans. By a nine to three vote on both counts, the jury recommended a sentence of death. The trial court agreed with the jury and sentenced Mr. Muhammad to death. The trial court found that six statutory aggravating circumstances applied: (1) Mr. Muhammad was convicted of another capital felony or of a felony involving the use or threat of violence to the person; (2) he kidnapped the victims; (3) he murdered Mr. and Mrs. Gans to avoid arrest; (4) he murdered for pecuniary gain; (5) the murders were especially heinous, atrocious, or cruel; and (6) Mr. Muhammad committed the capital felony in a cold, calculated, and premeditated way without pretense of moral or legal justification. Though it found no statutory mitigating circumstances, the trial court did find three non-statutory mitigators and gave them “weight.” Mr. Muhammad appealed to the Florida Supreme Court, which affirmed, though it found that the trial court had incorrectly applied the heinous, atrocious, and cruel statutory aggravator. See Knight v. State, 746 So.2d 423, 435-36 (Fla.1999) (Knight V) (per curiam). The United States Supreme Court then denied Mr. Muhammad’s petition for writ of certiorari. See Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459, 145 L.Ed.2d 370 (1999) (Knight VI). Mr. Muhammad next filed a motion for post-conviction relief in the trial court, asserting 28 claims. The trial court denied Mr. Muhammad’s motion without an evidentiary hearing. Mr. Muhammad appealed to the Florida Supreme Court, which affirmed the denial of post-conviction relief. See Knight v. State, 923 So.2d 387 (Fla.2006) (Knight VII) (per curiam). Mr. Muhammad also filed a petition for a writ of habeas corpus with the Florida Supreme Court, which denied relief. Id. at 395. In March of 2006, Mr. Muhammad filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254. The state filed its response and memorandum of law in October of 2006, and Mr. Muhammad filed a reply memorandum in April of 2007. II. Mr. Muhammad’s Claims and Applicable Standards Mr. Muhammad’s habeas corpus petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the U.S.Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under AEDPA, if a state court adjudicates a claim on the merits, a federal court may grant habeas corpus relief only when the state court’s decision “was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States,” or “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)(1)-(2). This is an “exacting standard.” Maharaj v. Sec’y Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). Under § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in” Supreme Court opinions. See Gary v. Hall, 558 F.3d 1229, 1254 (11th Cir.2009). Only the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court decision” constitute “clearly established” federal law. See id. A state court’s decision unreasonably applies clearly established federal law “if the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner’s case.” Reese v. Sec’y Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir.2012). A state court unreasonably applies clearly established federal law as well where it “unreasonably declines to extend a legal principle from Supreme Court case law to a new context.” Id. See also Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001) (dictating same “unreasonable application” standard). As noted above, § 2254(d)(2) provides an alternative avenue for relief. A federal court may also grant habeas relief if the state court unreasonably determines the facts. “A state court’s determination of the facts, however, is entitled to substantial deference” under § 2254(e)(1). See Maharaj, 432 F.3d at 1309. Thus, a federal habeas court presumes that a state court’s factual findings are correct, and a habeas petitioner must rebut that presumption by clear-and-convineing evidence. See Hunter v. Sec’y Dep’t of Corr., 395 F.3d 1196, 1200 (11th Cir.2005). In certain limited circumstances, however, a federal habeas court does not need to give any deference to a state court on an issue of law. Where a state court does not adjudicate the merits of a claim— for instance, when it incorrectly bases a decision on a procedural bar — AEDPA’s strict standard of review does not apply to that claim, and a federal court reviews that claim de novo. See Magwood v. Warden Ala. Dep’t of Corr., 664 F.3d 1340, 1347 (11th Cir.2011). III. The Confrontation Clause Claim The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. This right applies to state criminal prosecutions as well as federal ones. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). At Mr. Muhammad’s resentencing proceeding in 1996, the state offered the testimony of Detective Greg Smith. Mr. Muhammad contends that Detective Smith’s testimony, which was based largely on hearsay — e.g., prior testimony, witness reports, and sworn statements — violated those rights guaranteed by the Confrontation Clause of the Sixth Amendment because he was unable to cross-examine the out-of-court declarants. The state argues that this claim is procedurally barred and that, therefore, I cannot address the merits. Unfortunately, it argues little else. As explained below, I disagree with the state’s procedural bar argument. And, turning to the merits, I conclude that Mr. Muhammad is entitled to a writ of habeas corpus as to sentencing. A. Detective Smith’s Testimony Detective Smith testified at length at the resentencing proceeding. He testified both when the state tried to prove certain statutory aggravators and in the state’s rebuttal case. Detective Smith did not testify in the original trial. Nor did he testify in the original sentencing proceeding. In fact, Detective Smith had barely graduated from the police academy when Mr. Muhammad murdered Mr. and Mrs. Gans. Trial Tr., App. FF., at 2843. In an attempt to prove certain statutory aggravators, the state asked that Detective Smith read portions of Detective Julio Ojeda’s testimony. Detective Ojeda had investigated the murders of Mr. and Mrs. Gans and had testified in Mr. Muhammad’s original trial. Id. at 2345-46. To prove the relevant statutory aggravators, Detective Smith recounted much of Detective Ojeda’s investigation and also repeated testimony from other witnesses. Objecting to this method of evidentiary presentation, Mr. Muhammad requested that, before Detective Smith testify, he identify the source of the information from which he was about to testify. The trial court granted this request. Despite the request, Detective Smith struggled to identify the source or sources of his testimony. Defense counsel therefore continued to object, and the following exchange ensued. Mrs. Weissenborn [Mr. Muhammad’s counsel]: Again, where is this coming from? The Court: Just identify— The Witness: It was testified to at length in Detective Ojeda’s Scene and Body Section of his report. Mrs. Weissenborn: Were [sic ] you are saying Detective Ojeda is the one that testified to this? The Witness: I believe Ojeda as well as Technician Zann testified to it. Mrs. Weissenborn: Your honor, I would like to come sidebar again. The Court: Yes. Mrs. Weissenborn: There is a further objection to this process, Your Honor. It is impossible when they are going from testimony in reports to every other place. It is unfair to this defendant, not only for confrontation, it is simply beyond a simple hearsay. This is simply taking — if they had each individual witness here, there would be [] fairness. We can take each witness, we can cut down what they are saying. We have the right to impeach. Now we are going from this report to this testimony to that testimony. This is beyond simple hearsay I think the state envisioned. ■ The Court: You seem to distinguish little hearsay, medium hearsay and big hearsay. This you believe to be big hearsay. There is no distinction. Hearsay is hearsay. You are right this is hearsay. Exactly the same thing was done in Clark versus State which can be found at 613 [Southern Second] 412 whereas concerned the prior convictions rather than bring in what the State did which is to bring in the eyewitnesses to the murder. They brought in a detective who testified about what everybody said at that trial. The Supreme Court said essentially there is no problem. It was the same thing that they found and held in Water-house versus State — these are 1992 cases; these are not ancient cases — 596 [Southern Second] 1008. Tompkins versus State, Rhodes versus State. Again, it is the same thing. I know you do not like it. You have made that clear. Mrs. Weissenborn: I am beyond that at this point. I am also raising due process. This is not a fair process at this point in time, not when he jumped from place to place. You have no right to sit here and the reason we will be able to prepare when you have over 3,600 pages of testimony which he jumps back and forth from. At least in a normal trial, in a normal process you have a right to sit there and you can reasonably hear what is happening and cross-examine. This procedure did not issue that right. The Court: All right. The objection is overruled. Id. at 2386-88. With that ruling, Detective Smith continued with his testimony. After the state rested, Mr. Muhammad presented evidence of mitigators — that is, reasons for why the state should not obtain the death penalty. He underscored his destitute childhood, a childhood punctuated by his father’s cruelty and abuse. He also presented evidence of his mental health. Mr. Muhammad’s expert witnesses — psychologists and psychiatrists— testifted that, because of schizophrenia, Mr. Muhammad likely lost his self-control when he discovered the police surveillance during the kidnapping. This loss of self-control then caused Mr. Muhammad to kill Mr. and Mrs. Gans. Mr. Muhammad argued, essentially, that he did not plan out the murders from the start. The state relied on Detective Smith to rebut the assertion that Mr. Muhammad became aware of any police surveillance. When asked by the prosecutor if any marked police cars followed Mr. Muhammad from the bank to southwest Dade County, Detective Smith testified that “[t]here were absolutely none.” Id. at 3551. Another witness, Agent Terry Nelson, had testified in the resentencing proceeding that aircraft — an airplane and a helicopter — dogged Mr. Muhammad during the surveillance too. Id. at 2089. To rebut this testimony, Detective Smith testified in rebuttal about the plane and helicopter as well, relying in large part on a sworn statement given to police by the helicopter pilot (who never testified). Detective Smith told the jury that the airplane made no noise. Id. at 3552-53. Plus, he testified that neither the airplane nor the helicopter had tracked Mr. Muhammad until after he had killed Mr. and Mrs. Gans. Id. at 3556-58. When asked if either the airplane pilot or the helicopter pilot saw the Mercedes Benz before it had stopped the second time, Detective Smith answered without prevarication: “No, ma’am.” Id. at 3562. B. Procedural Bar On direct appeal from the resentencing proceeding, Mr. Muhammad raised a Confrontation Clause/right-to-cross-examination claim. The Florida Supreme Court denied the claim on procedural grounds. According to the Florida Supreme Court, Mr. Muhammad never objected to Detective Smith’s testimony about helicopters: In his first claim, [Mr. Muhammad] contends that Detective Smith’s hearsay testimony violated his right to confrontation, due process, and a reliable sentencing proceeding. The gravamen of [Mr. Muhammad’s] claim is that Detective Smith’s recounting, on rebuttal, of the helicopter pilot’s prior sworn statement violated his Confrontation Clause right to confront and cross-examine witnesses because, unlike Smith’s earlier testimony summarizing prior trial testimony, the pilot’s statement had never been subjected to adversarial testing and lacked the reliability accorded former testimony. However, because [Mr. Muhammad] never specifically objected to Smith’s testifying as to the contents of the pilot’s statement, we find this claim procedurally barred. Knight V, 746 So.2d at 429-30. Federal courts reviewing petitions for habeas corpus generally honor state procedural bars. See Smith v. Dep’t of Corr., 572 F.3d 1327, 1337 (11th Cir.2009). But a procedural bar must be based on a state-law ground that is “adequate” and “independent of the federal question.” Conner v. Hall, 645 F.3d 1277, 1287 (11th Cir.2011). Federal law governs whether a procedural bar is adequate, see Cone v. Bell, 556 U.S. 449, 465, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009), and under federal law, a procedural bar is “adequate” if it is “firmly established and regularly followed.” Conner, 645 F.3d at 1288. The state court cannot have applied the bar in “an inconsistent or manifestly unfair manner.” Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir.1995). For the reasons which follow, the procedural bar applied by the Florida Supreme Court is inadequate. First, contrary to the Florida Supreme Court’s factual determination, Mr. Muhammad objected. Before Detective Smith testified, counsel for Mr. Muhammad made the following objection: Mr. Weissenborn: May it please the Court. My basic objection as to what the State intends to use this witness for which is to come in here give some kind of summary of everything that happened which involves the witness based on his investigation, telling the jury what other people did, what other people said, either over the radio or in person, and the objection I raise is this violates the rights of — the confrontation rights of the defendant on the Sixth Amendment and Article 1616, whatever it is, of the Florida Constitution. I would like to have a standing objection. Mrs. Weissenborn: The best evidence is not the best evidence — the best evidence of Mr. Marinek is the transcript of what Mr. Marinek was asked and answered at that time. Mr. Laeser [prosecutor]: Actually, my belief is that the best evidence rules involve writings. The Court: That is my understanding. I will accept this objection as a continuing objection for all testimony from this witness referring to what other people told him or anything that is hearsay. Mr. Weissenborn: My objection is— The Court: — confrontation. Mr. Weissenborn: There is a confrontation objection and that can’t be changed by Statute. That right would be watered down in the statute. And that would go to any documentary evidence. It is not a procedural objection. I didn’t see it, any documentary evidence which would violate his confrontation rights. We will object to— The Court: All right. The objection is overruled. Trial Tr., App. FF, at 2352-58 (emphasis added). Thus, the trial court allowed Mr. Muhammad to have a standing objection to any testimony by Detective Smith based on hearsay, including the testimony based on the helicopter pilot’s sworn statement. Throughout the remaining testimony of Detective Smith, Mr. Muhammad’s counsel kept objecting. These objections prompted the trial court to make the following admonishment: The Court: If you find that the officer mischaracterizes what the testimony is, I will let you bring in the whole transcript. We will sit here until doomsday and read it to the jury. But if the witness can testify in this manner and you do not find that he is saying things that are not true, there is no problem with this procedure. The Supreme Court has repeatedly — now I don’t want to hear the same objection and be brought sidebar for the same objection. This is hearsay. It is hearsay. You made your confrontation rule argument. I have accepted your objection, your [sic ] object to all of it. I don’t want another sidebar on the subject of hearsay. You have preserved your record. I have ruled. The Supreme Court has ruled on this issue. Mr. Weissenborn: Florida Supreme Court? The Court: Yes. Yes. Let’s go on. Id. at 2364 (emphasis added). The transcript thus conclusively shows that Mr. Muhammad had a standing objection to Detective Smith’s hearsay testimony. To the extent that the Florida Supreme Court factually determined that Mr. Muhammad had not objected, the transcript constitutes clear and convincing evidence that contradicts such a determination, and I therefore will consider the merits of the Confrontation Clause claim. See Blanco v. Sec’y Fla. Dep’t of Corr., 688 F.3d 1211, 1240 (11th Cir.2012) (“Even though Blanco raised this claim in the first possible proceeding following his resentencing, the Florida Supreme Court concluded that Blanco’s Brady claim was procedurally barred. The District Court should have recognized this error and addressed the merits of the claim.”). Second, Florida law consistently recognizes that a standing objection preserves an issue for appeal. See, e.g., Floyd v. State, 850 So.2d 383, 393 n. 20 (Fla.2002) (per curiam); Hayes v. State, 660 So.2d 257, 261 (Fla.1995); Womack v. State, 855 So.2d 1236, 1237 (Fla.Dist.Ct.App.2003). Indeed, on similar facts, the Florida Supreme Court has twice refused to apply a procedural bar. See Corona v. State, 64 So.3d 1232, 1242-43 (Fla.2011) (holding that standing objection preserved Confrontation Clause issue on appeal); Hopkins v. State, 632 So.2d 1372, 1376 (Fla.1994) (“[Djefense counsel’s ‘confrontation rights’ objection necessarily called into question whether the statutory procedures had been followed.... Once defense counsel has made a general objection to the admissibility of testimony via closed circuit television on an appropriate legal ground and has been overruled by the trial judge, counsel should not be required to continue arguing over the legal sufficiency of the court’s factual basis for its ruling.”). Yet it refused to recognize (or simply missed) the standing objection here, which makes the procedural bar inadequate. See Conner, 645 F.3d at 1288 (“[W]e hold that the Georgia’s procedural default rule is inadequate to bar federal review of Conner’s mental retardation claim because it has not been consistently and regularly followed.”). Third, and most damaging, the state judge who presided over the resentencing hearing agreed that Mr. Muhammad had objected to Detective Smith’s hearsay testimony. As noted earlier, Mr. Muhammad filed a post-conviction motion under Rule 3.850 after the resentencing. Among his claims, Mr. Muhammad — parroting what the Florida Supreme Court had said in Knight TV — argued that his counsel “never specifically objected” to the hearsay testimony that presented “the pilot’s statement.” Knight VII, 923 So.2d at 403. On appeal from the denial of the Rule 3.850 motion, the Florida Supreme Court affirmed and attached “as an appendix the [trial court’s] order denying postconviction relief.” Id. at 392-93. In its order, the trial court denied Mr. Muhammad’s claim because Mr. Muhammad’s counsel “did object.” Id. at 403. Thus, the Florida Supreme Court refused to address the Confrontation Clause claim on direct appeal because Mr. Muhammad purportedly did not object, and, when Mr. Muhammad alleged ineffective assistance of counsel in his post-conviction motion for supposedly failing to object, the Florida Supreme Court contradicted itself and denied relief because Mr. Muhammad had indeed objected. In sum, Florida courts have routinely considered issues on which a party has made a standing objection, have refused to apply procedural bars in similar situations, and have inconsistently (and incorrectly) applied the bar in this very case. In similar circumstances, the Eleventh Circuit has refused to apply a state procedural bar. For instance, in one case, the defendant noted that Florida law allowed him to attack the validity of his plea on collateral review, even if he never challenged the plea on direct appeal. The Florida Supreme Court nevertheless refused to review the argument on collateral review, and the defendant asserted that the Florida Supreme Court’s actions were inconsistent and unfair. See Upshaw, 70 F.3d at 579. The Eleventh Circuit agreed with the defendant: “[W]e conclude that it was inconsistent and manifestly unfair for the state court to deny the claim based on the procedural ground that it was not presented on direct appeal.” Id. at 580. See also Spencer v. Kemp, 781 F.2d 1458, 1470 (11th Cir.1986) (refusing to uphold procedural bar where the defendant objected but state court applied new statute retroactively so as to make the objection untimely); id. at 1473 (Tjoflat, J., concurring) (“Because the issue was seasonably and squarely presented to the trial court, the state contemporaneous objection rule cannot operate to bar review of petitioner’s claim.”). Hence, I conclude that no procedural bar precludes consideration of the Confrontation Clause claim. C. Right to Cross-Examination The Sixth Amendment generally guarantees a defendant the right to confront all the witnesses against him in a criminal prosecution. Since 1965, this right applies to state criminal prosecutions, for the Fourteenth Amendment incorporated the Sixth Amendment’s Confrontation Clause. See Pointer, 380 U.S. at 403, 85 S.Ct. 1065. But questions emerge. Does the Confrontation Clause cover sentencing hearings? Or does it only apply to criminal trials? Mr. Muhammad asserts that the Clause applies to capital sentencing proceedings. The state disagrees. As I explain below, Mr. Muhammad is correct given existing Eleventh Circuit precedent. 1. Standard of Review Before I analyze the merits of the Confrontation Clause claim, I must decide what level of review applies. Generally, AEDPA demands that a federal court grant habeas corpus relief only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(l)-(2). But this deference applies only if the state court actually adjudicated the federal claim on the merits, and the parties agree that the Florida Supreme Court applied a procedural bar under state law to the Confrontation Clause claim, and did not address the merits. “[BJecause” there is no “state court adjudication” on the merits of the claim, my “review is not subject to the deferential standard that applies under” AEDPA. Magwood, 664 F.3d at 1347. See also Blanco, 688 F.3d at 1240 n. 9 (“We decide this issue de novo because the. Supreme Court of Florida did not make any determination on the merits.’ ”). In other words, I review Mr. Muhammad’s contention anew — i.e., under de novo review. See Magwood, 664 F.3d at 1347. This approach is consistent with the Supreme Court’s use of plenary review where a state court does not address a claim or issue. See Cone, 556 U.S. at 472, 129 S.Ct. 1769 (“Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA ‘to any claim that was adjudicated on the merits in state court proceedings.’ ”). 2. The Right to Cross-examination at Capital Sentencing Proceedings I ultimately conclude, as explained below, that the Confrontation Clause applies in capital sentencing proceedings. I recognize, however, that the legal landscape is a quagmire. The Supreme Court, in Williams v. New York, 337 U.S. 241, 250-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), ruled more than 60 years ago that trial courts may consider out-of-court sources when deciding a criminal defendant’s sentence, even when, as in Williams, the potential sentence is death. The Court repeated this sentiment in Williams v. Oklahoma, 358 U.S. 576, 583-84, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959), where it held that, during a capital sentencing proceeding, the court could consider “unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person’s life and characteristics.” These cases, however, come from a time before the Confrontation Clause applied to the states and before the Eighth Amendment placed limits on capital sentencing. And since then the Eleventh Circuit, in Proffitt v. Wainwright, 685 F.2d 1227, 1254 (11th Cir.1982), has squarely held that “the right to cross-examine adverse witnesses applies to capital sentencing hearings.” Unfortunately, the Eleventh Circuit’s more recent jurisprudence in this area is muddled. In Chandler v. Moore, 240 F.3d 907, 918 (11th Cir.2001), for instance, one Eleventh Circuit panel rejected a Confrontation Clause claim because “hearsay evidence is admissible at capital sentencing,” so long as the criminal defendant has “the opportunity to rebut any hearsay information.” Chandler is, in my view, in some pretty serious tension with Proffitt. But Proffitt precedes Chandler by nearly 20 years, and under the “prior panel precedent rule” the Eleventh Circuit is “bound by earlier panel holdings.” United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997). Of course, there are limitations to the prior-panel-precedent rule. A holding reaches the facts and the precise issues before the court and no more. See Chavers v. Sec’y Fla. Dep’t of Corr., 468 F.3d 1273, 1275 (11th Cir.2006) (per curiam). But the Proffitt pronouncement was not dicta, and the facts in Proffitt mirror those here. Proffitt was a habeas case in which Charles Proffit claimed that the state court admitted a court-appointed psychiatrist’s report without an opportunity for him to confront the psychiatrist at his death-penalty sentencing hearing. The report’s introduction, Mr. Proffit maintained, violated the Confrontation Clause. See Proffitt, 685 F.2d at 1234. The Eleventh Circuit panel agreed, held that Mr. Proffit had the right to cross-examine the psychiatrist, and granted habeas relief. See id. at 1255. Nor is Proffitt deficient analytically. It discusses the relevant Supreme Court cases (e.g., Williams), finding them “no longer valid.” Id. at 1254. As the opinion put it, “[t]he constitutional requirements governing capital sentencing ... have undergone substantial evolution in the wake of Furman v. Georgia.” Id. at 1252 (citing Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)). That substantial evolution, Proffitt held, makes the Confrontation Clause applicable to capital sentencing. See id. at 1254. And, although the prior panel precedent rule does not apply if the Supreme Court or the Eleventh Circuit, sitting en banc, overrules an opinion, Proffitt has not been overturned. If anything, the Supreme Court has generally expanded the Confrontation Clause’s application, and nothing suggests that the Supreme Court would overturn Proffitt today. See Davis v. Washington, 547 U.S. 813, 823-24, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Finally, I note that — Chandler aside— the Eleventh Circuit has consistently noted Proffitt’s recognition of the Confrontation Clause’s applicability at capital sentencing. See Moore v. Zant, 885 F.2d 1497, 1512 (11th Cir.1989) (en banc) (“In light of that trend, we conclude that, in 1978, reasonably competent counsel reasonably could have anticipated the extension of Sixth Amendment rights, including the right of confrontation, to capital sentencing proceedings.”); United States v. Brown, 441 F.3d 1330, 1361 n. 12 (11th Cir.2006) (“[D]eath is different, and we have held, in the state habeas context, that the constitutional right to cross-examine witnesses applies to capital sentencing hearings.”); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005) (“[W]e have recognized a right to cross-examination in the context of capital sentencing.”); United States v. Sanchez, 278 Fed.Appx. 927, 929 n. * (11th Cir.2008) (per curiam) (“Proffitt recognized a right to cross-examination in the context of capital sentencing.”). Chandler never cited Proffitt, an opinion that preceded it. And Proffitt, as Eleventh Circuit law repeatedly indicates, still governs. So Proffitt controls, and the right to cross-examination applied to Mr. Muhammad’s capital resentencing proceeding. 3. Applicable Law Under Eleventh Circuit precedent, Mr. Muhammad had the right to cross-examine Detective Ojeda, the helicopter pilot, and the airplane pilot. But what does that right entail, exactly? The answer is not a simple one, for the right to cross-examination has changed over the years. As currently interpreted, the right to cross-examination prevents the state from introducing a witness’ “testimonial statements” unless the witness appears at trial or, if the witness is unavailable, “the defendant had a prior opportunity for cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009). But this standard is a modern one which overturned the previous standard expounded in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See Crawford v. Washington, 541 U.S. at 61-65, 124 S.Ct. 1354 (overruling Roberts test). Mr. Muhammad’s sentencing took place in 1996 (before the Supreme Court overruled the rationale in Roberts) but it is now 2012. So I must decide which Sixth Amendment standard applies. Fortunately, the Eleventh Circuit has settled the issue. A federal habeas court applies the Confrontation Clause standard as it existed at the time of the criminal defendant’s trial — or, here, the resentencing proceeding. See Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir.2010) (per curiam) (applying Roberts because the trial and sentencing took place in 1998). The state court sentenced Mr. Muhammad in 1996, so the standard in Roberts governs. 4. The Right to Cross-Examination Under Roberts Under Roberts, where the prosecution wants to introduce a witness’ statement through a means other than the witness’ live testimony, that “statement is admissible only if it bears adequate ‘indicia of reliability.’” 448 U.S. at 66, 100 S.Ct. 2531. And, if the prosecution seeks to introduce the statement through prior judicial testimony, then Roberts requires the prosecution to “either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Id. at 65, 100 S.Ct. 2531. See also United States v. Inadi, 475 U.S. 387, 397, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (“[Bjefore [testimony from a prior judicial proceeding] can be admitted the government must demonstrate that the declarant is unavailable.”). Detective Smith read portions of Detective Ojeda’s prior trial testimony at the resentencing proceeding. Though the Supreme Court in Roberts found that prior testimony bears adequate indicia of reliability, id. at 73, 100 S.Ct. 2531, it also required that the state also show that Detective Ojeda was “unavailable” before it allowed Detective Smith to testify based on prior testimony. See id. at 65, 100 S.Ct. 2531 (“In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.”). Though the prosecution need not show “unavailability” for every Confrontation Clause issue, it must do so “when the challenged out-of-court statements were made in the course of a prior judicial proceeding.” White v. Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). That is the situation here, but the state failed to show, or even assert, Detective Ojeda’s unavailability. A witness is unavailable when the prosecutor makes “good faith efforts to obtain” his “presence at trial” but nonetheless fails. See United States v. Siddiqui, 235 F.3d 1318, 1324 (11th Cir.2000). The record here shows no good-faith effort by the state to get Detective Ojeda on the stand. Indeed, Detective Ojeda’s absence is mentioned once in the entire proceeding. The state prosecutor asked Detective Smith if Detective Ojeda still worked with the Metro-Dade Police Department, and Detective Smith replied that he did not. Trial Tr., App. FF, at 2345-46. But nothing indicates that Detective Ojeda was ill, dead, living in a different place, or unwilling to testify despite the state’s efforts to produce him. In fact even now, the state does not raise any argument about unavailability. Because the prosecution utterly failed to show a good-faith effort to have Detective Ojeda testify, the trial court violated Mr. Muhammad’s right to cross examine Detective Ojeda. See, e.g., Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir.2011) (“Dr. Garber no longer worked for the county coroner’s office, but the record provides no reason why Dr. Garber’s presence could not be obtained nonetheless. He was therefore not shown to have been ‘unavailable’ for trial.”). Mr. Muhammad also complains about Detective Smith’s testimony parroting the sworn statement made to the police by the helicopter pilot. As with Detective Ojeda, nothing in the record suggests that the helicopter pilot was unavailable. The state, moreover, has failed to offer any indicia of reliability as to the pilot’s sworn statement. “Reliability can be inferred ... in a case where the evidence falls within a firmly rooted hearsay exception,” Roberts, 448 U.S. at 66, 100 S.Ct. 2531, but the sworn statement does not fall within any such hearsay exception. At least nothing in the record or in the state’s brief hints that it does. Though the state could have attempted to demonstrate reliability by showing that the sworn statement had “particularized guarantees of trustworthiness,” it never tried to do this at the resentencing proceeding, and does not try to do so now. Thus, the trial court violated Mr. Muhammad’s right to cross-examine the helicopter pilot when it allowed the prosecution his sworn statement through Detective Smith. 5. Prejudice/Harmless Error Even though the state court violated his right to cross examination, Mr. Muhammad cannot obtain habeas relief unless the error harmed him. “In habeas proceedings, [courts] review whether a constitutional violation is harmless” under Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), which requires courts to decide “whether the error had substantial and injurious effect or influence in determining the jury’s verdict.” Mason, 605 F.3d at 1123. But it remains the state’s burden to show that the constitutional violation is harmless. See Bonner v. Holt, 26 F.3d 1081, 1082 (11th Cir.1994) (“Initially we note that when the Supreme Court announced a new standard of review in habeas corpus cases [in Brecht ], it did not alter the burden of proving error harmless, which remains with the government.”). Significantly, the state offers no argument whatsoever that the violation was harmless under Brecht. Instead, in a blatant misreading of the record, the state maintains that Mr. Muhammad’s Confrontation Clause claim is procedurally barred because his lawyers never objected. The record, of course, flatly contradicts this argument. Despite the clarity of the transcript, the state pushes its procedural-bar argument in this habeas proceeding and makes no argument on the merits of Mr. Muhammad’s Confrontation Clause claim. The state, rather, focuses on Mr. Muhammad’s alternative claim — that his attorneys provided ineffective assistance of counsel when they did not purportedly object to Detective Smith’s hearsay testimony. Because it focuses on the ineffective assistance of counsel claim, the state analyzes prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and ignores prejudice under Brecht caused by the introduction of the hearsay evidence. In short, the state has failed to argue that the violation had no substantial and injurious effect or influence on the outcome, and it has therefore forfeited any such argument. See Owen v. I.C. Sys., 629 F.3d 1263, 1274 n. 16 (11th Cir.2011); Transamerica Leasing, Inc. v. Institute of London Underwriters, 267 F.3d 1303, 1308 n. 1 (11th Cir.2001) (per curiam); Pruitt v. PPG Indus., 895 F.2d 734, 736 (11th Cir.1990) (per curiam). This forfeiture principle applies even under AEDPA, as a district court is not required to address harmless error when such an argument is not pressed by the state. See Prevatte v. French, 547 F.3d 1300, 1305 (11th Cir.2008) (noting that a district court may, on its own initiative, make a harmless-error review where the state does not argue harmlessness). The state’s failure to brief the Brecht prejudice issue is probably not surprising, since its failure to brief prejudice in Knight IV led to Mr. Muhammad obtaining the writ of habeas corpus the first time around. See 863 F.2d at 709 (“Since the state offers no arguments to support its contention that the violation of Lockett in this case is harmless, relief must be granted.”). Just as capital defendants can abandon arguments and issues by not properly raising them, so can the state. Under the circumstances — including the Florida Supreme Court’s failure to undertake any merits analysis — I decline to address harmlessness on my own initiative. Even if the state had not forfeited its prejudice/harmlessness argument, and even if I had to conduct a Brecht analysis on my own, I would alternatively find that Mr. Muhammad merits habeas relief on his Confrontation Clause claim. As already mentioned, Brecht requires me to decide if “the error had substantial and injurious effect or influence in determining the jury’s verdict,” with the state bearing the burden on harmlessness. See Mason, 605 F.3d at 1123. In the Confrontation Clause context, I look at “the importance of the witness’ testimony in the prosecution’s case”; “whether the testimony was cumulative” or merely corroborated other evidence; and “the overall strength of the prosecution’s case.” Id. at 1123-24 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). After an independent review of the record, I would alternatively find that Detective Smith’s testimony about the helicopter pilot’s actions on the day of the murders had a substantial and injurious effect. To understand why Detective Smith’s testimony had a substantial and injurious effect on the verdict, and was not harmless, one must be cognizant of Mr. Muhammad’s strategy at the resentencing proceeding. The state, which went first, introduced evidence that Mr. Muhammad had kidnapped Mr. and Mrs. Gans; that Mr. Muhammad had a prior capital felony; that Mr. Muhammad murdered' Mr. and Mrs. Gans in a cold, calculated, and premeditated manner; that Mr. Muhammad murdered to avoid lawful arrest; that Mr. Muhammad killed Mr. and Mrs. Gans for pecuniary gain; and that the murders were atrocious, cruel, and heinous. Mr. Muhammad tried to downplay and/or minimize these potential aggravators through mitigating evidence. He introduced evidence that he came from an impoverished background and that his father was a cruel man who abused him often. But most importantly, Mr. Muhammad introduced evidence of deep-seated psychiatric issues. To do so, Mr. Muhammad called seven mental-health experts to testify on his behalf. These experts testified that Mr. Muhammad had some schizophrenic tendencies, which could cause him to snap if he believed that the police were chasing him. Put differently, Mr. Muhammad’s counsel tried to argue that Mr. Muhammad had not, in fact, committed premeditated murder and had not killed Mr. and Mrs. Gans to avoid arrest. Mr. Muhammad, rather, planned a robbery and kidnapping and snapped when he (1) saw the police or (2) heard the police helicopter and then realized that the police were chasing him. With this in mind, Mr. Muhammad’s counsel posed a hypothetical to some of the mental-health experts. The long hypothetical essentially asked whether Mr. Muhammad could have snapped, because of extreme mental and emotional disturbances, when he saw the police or when he heard the aircraft or helicopter. Trial Tr., App. FF, at 2532-37, 2759-66, 2870. The experts answered the hypothetical and said that those stressors would have caused Mr. Muhammad to snap. Id. The hypothetical sought to eliminate, or at least diminish, the cold, calculated, and premeditated aggravator, as well as the notion that Mr. Muhammad murdered to avoid lawful arrest. Because the hypothetical depicted the murders as a psychological response from a mentally infirm man, the hypothetical also potentially boosted Mr. Muhammad’s mental-health mitigator. In response, the state argued that Mr. Muhammad was a phony, a man who pretended to suffer from mental issues when he had none. The state introduced the testimony of two mental-health experts, who both opined that Mr. Muhammad did not have schizophrenia. But the state’s prime strategy was to show that Mr. Muhammad did not react impulsively to a police pursuit. And, to do so, the state relied on Detective Smith, whose hearsay testimony demolished the hypothetical. Most of Detective Smith’s hearsay testimony did not have a substantial and injurious effect. Detective Smith testified, for instance, that none of the police cars chasing Mr. Muhammad had police identifiers. And, according to Detective Smith’s testimony, the police officers following Mr. Muhammad all wore plain, street clothes. Agent Nelson corroborated this testimony fully. He testified, for instance, that no marked police cars followed Mr. Muhammad and that Mr. Muhammad did not look as if the police presence worried him. Id. at 2077. Under Brecht, then, this part of Detective Smith’s testimony was not prejudicial. Agent Nelson’s testimony, with regard to the helicopter, actually favored Mr. Muhammad. When asked about helicopters and airplanes, Agent Nelson stated the following: Mrs. Weissenborn: A helicopter at some point came in? Agent Nelson: A helicopter came in. Mrs. Weissenborn: Where did the helicopter come in? Agent Nelson: Southwest Dade. Mrs. Weissenborn: Of course the murders took place in Southwest Dade. You mean after the murders, the helicopters were brought in. Agent Nelson: The helicopter was airborne during the surveillance. Mrs. Weissenborn: During the procession? Agent Nelson: During the procession. Mrs. Weissenborn: It was not downtown at some point the helicopter got involved? Agent Nelson: To the best of my knowledge, yeah. Mrs. Weissenborn: At what point did it get involved? Agent Nelson: I don’t recall. Id. at 2089 (emphasis added). The state rebutted this evidence, again through Detective Smith’s hearsay testimony. Detective Smith made clear, by relying on the helicopter pilot’s sworn statement, that Mr. Muhammad could not have possibly seen or heard the helicopter before the murders in part because the pilot was ordered to land. Id. at 3554-57. The order to land, moreover, came about because “[t]he officers involved ... did not want the surveillance ... being burned.” Id. at 3556. “That is, they didn’t want the helicopter to be seen because of its low altitude and the noise that it makes.” Id. at 3556-57. Detective Smith then testified that, according to the helicopter pilot, the first time the pilot saw the car, it had stopped near the canal, i.e., he first saw the car after Mr. Muhammad had shot Mr. and Mrs. Gans. Id. at 3558. Mr. Muhammad had “absolutely not” heard the helicopter, according to Detective Smith. Id. at 3578. Thus, Detective Smith’s hearsay testimony — based solely on the sworn statement of the helicopter pilot — contradicted Agent Nelson’s testimony. Significantly, no other evidence corroborated Detective Smith’s testimony with regard to the helicopter and its lack of effect on Mr. Muhammad. There is no question that the evidence about the helicopter was key. As already noted, the evidence debunked Mr. Muhammad’s contention that an impulse caused him to kill Mr. and Mrs. Gans. The evidence also boosted the state’s assertion that Mr. Muhammad was a phony who concocted the murders from the start. These different views of the event control (or at the very least significantly affect) whether a person saw Mr. Muhammad’s actions as cold, calculated, and premeditated, or saw the murders as an attempt by Mr. Muhammad to avoid lawful arrest. The attorneys on both sides — who were operating in the crucible of a hotly-contested capital sentencing hearing — well understood the value of the evidence concerning the helicopter. In his opening statement, the prosecutor, for instance, underscored that Mr. Muhammad was unaware of the police surveillance until after he had murdered Mr. and Mrs. Gans. Id. at 1912, 1917. The implication, of course, was that Mr. Muhammad killed in a cold, calculated, and premeditated way. Id. at 1912. The prosecutor continued with this theme at closing argument. There, the prosecutor harped on the helicopter’s absence and Mr. Muhammad’s hypothetical. The prosecutor noted that the hypothetical offered to the mental-health experts assumed that Mr. Muhammad saw marked police cars or saw or heard the helicopter and airplane overhead. “Well, those are not facts,” the prosecutor told the jury, because “[t]he facts came out when Detective Smith testified for the second time after going through all the records, all the reports, all the statements, all the testimony about what really happened.” Id. at 3781. These facts, the prosecutor assured the jury, proved that the airplane and helicopter did not spot Mr. Muhammad until after he killed Mr. and Mrs. Gans. Id. at 3783-84. And, despite Agent Nelson’s testimony to the contrary, the prosecutor confidently stated that “the helicopter was not involved in the pursuit or surveillance or anything else.” Id. at 3784. In her closing argument, Mr. Muhammad’s counsel too discussed the helicopter. She said the evidence showed that Mr. Muhammad stopped once, asked Mr. and Mrs. Gans to get out of the Mercedes Benz, and then forced them back in. The Mercedes Benz stopped at some other spot, where Mr. Muhammad then shot Mr. and Mrs. Gans. Mr. Muhammad’s counsel argued that this sequence made sense only if, after the first stop, Mr. Muhammad heard the helicopter and “that caused that break because ... that mind, be it antisocial, be it borderline, be it paranoid schizophrenic,” did not act like a healthy mind. Id. at 3911. After closing arguments, the jury, by a vote of nine to three, recommended death for Mr. Muhammad as to both murders. Id. at 3935-36. The trial court followed that recommendation and sentenced Mr. Muhammad to death. The evidence on the issue of premeditation was not one-sided. Agent Nelson testified that Mr. Muhammad did not behave as a man aware of surveillance and that the police worked diligently to keep the surveillance covert. Mr. Muhammad did hide from the police for hours after the murders, which might show design by him. But Agent Nelson lost sight of Mr. Muhammad at times, and Mr. Muhammad did stop the car once, forced Mr. and Mrs. Gans back into the car, and forced them to drive to another spot. Most importantly, however, the helicopter testimony was vital to the trial court’s decision to sentence Mr. Muhammad to death. In large part, the court discarded the testimony of Mr. Muhammad’s mental-health experts because “[t]he most significant test for the expert opinions offered ,.. are the facts of the case.” Sentencing Order, Feb. 20, 1996 at 26. And the hypothetical given by Mr. Muhammad’s counsel, the court said, was of little consequence because “[t]he evidence showed that during the pursuit of the Gans vehicle ... there were no police aircraft in the air.” Id. at 29. According to the court, it was “eminently clear from the evidence that the defendant was unaware of the police presence until after he murdered the Ganses.” Id. at 30. The trial court’s finding contradicts Agent Nelson’s testimony, which implied, if not stated, that the helicopter followed Mr. Muhammad through the procession of events. Detective Smith’s hearsay testimony, alone, contradicted Agent Nelson’s testimony, and so the court relied on Detective Smith’s testimony to discredit Mr. Muhammad’s health experts, Mr. Muhammad’s hypothetical, and Agent Nelson. If there is any doubt about the importance of Detective Smith’s hearsay testimony, the trial court put the doubt to rest. The discrepancy between the facts in the hypothetical and the facts stated by Detective Smith, the court wrote, was “extremely significant.” Id. at 29 (emphasis added). There’s an additional reason why the hearsay testimony had a substantial and injurious effect and was not harmless. As noted above, the Florida Supreme Court held that the trial court applied the heinous, atrocious, and cruel aggravator when it should not have. See Knight V, 746 So.2d at 435. And so this aggravator must be deducted from the prejudice calculation. Given the weight the trial court gave the discrepancy between Detective Smith’s testimony and the facts in the hypothetical, given Agent Nelson’s testimony that helicopters had followed Mr. Muhammad during the procession, given the inapplicability of the heinous, atrocious, and cruel aggravator, and given that Mr. Muhammad’s awareness of the police pursuit was so central to both the state’s case and the defense’s case, Detective Smith’s hearsay testimony about the helicopter had a substantial and injurious effect on the sentencing proceedings. The state, even if it h