the declarant to criminal liability so that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. Garcia, 897 F.2d at 1420. A statement satisfies this requirement if it would be probative in trial against the defendant. Id. Clearly, Ryan's statement that he was the shooter "tended to subject" him to criminal liability in that, if accepted as true, it would have made him the primary defendant in a homicide prosecution where he could have been tried as an adult. This is not a position that a reasonable person would assume without a strong belief in the truthfulness of his confession.
Finally, we find that the state appellate court improperly applied the fourth Chambers factor by making Ryan's unavailability at trial a "significant" factor in its decision upholding the exclusion of his confession. The Chambers factors should not be considered exhaustive or absolute in determining the reliability of out-of-court statements. Sharlow, 767 F.2d at 377. In particular, courts have not held the unavailability of the declarant to be the sine qua non of a confession's admissibility. See Green v. Georgia, 442 U.S. 95, 96, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (1978) (per curiam) (making no mention of the availability of declarant in holding that a state court's exclusion of a confession during the sentencing phase of the trial violated the defendant's due process rights); Cunningham, 941 F.2d at 541. Rivera v. Director, Dept. of Corrections, 915 F.2d at 280, is on point in this regard. In Rivera, the defendant had been convicted of beating a woman to death. Id. at 281. A co-defendant confessed that he alone committed the murder and was convicted on the basis of his confession. Id. When Rivera attempted to introduce the co-defendant's confession at his own trial as exculpatory evidence, the trial court refused on the ground that under Illinois law the availability of the declarant for cross examination was the most important factor in the admission of hearsay evidence. Id. The Seventh Circuit reversed the district court's denial of habeas corpus, holding that the state had mechanically applied the hearsay rule to exclude critical evidence in violation of Chambers. Id. at 283. The court held that the unavailability of the co-defendant could not bar admission of his confession at Rivera's trial, especially since the co-defendant's refusal to testify at his own trial did not preclude the admission of the confession against him. Id. at 282. Similarly, the fact that Ryan was unavailable for cross examination here does not preclude the admission of his confession where the other Chambers factors indicating reliability have been met. A declarant's refusal to answer questions should not result in the conviction of a man who is not guilty. Ireland, 348 N.E.2d at 282. We think that this analysis is not only consistent with the case law, but also in line with the underlying purpose of recognizing an exception to the hearsay rule, which is to permit the admission of statements which carry sufficient indicators of reliability to render the presence of the declarant unnecessary. See Fed.R.Evid. 804(b)(3); Garcia, 897 F.2d at 1420 (stating that the against-penal-interest exception to the hearsay rule under 804(b)(3) is satisfied only when the declarant is unavailable).
It is true, as the state points out, that the federal interest in habeas review "lies in ensuring that states conduct their criminal process in a way likely to separate the guilty from the innocent, not in second-guessing every evidentiary ruling." Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir. 1991), cert. denied, 502 U.S. 895, 116 L. Ed. 2d 218, 112 S. Ct. 265 (1991). We acknowledge that Illinois state courts have conformed their hearsay rules to Chambers, see Bowel, 488 N.E.2d at 999, which militates against a case-by-case federal "rerun" of state court rulings. Lee, 933 F.2d at 538. But it is also true that a state court cannot apply the Chambers factors in a way that unreasonably excludes reliable exculpatory evidence which is critical in determining the guilt of the accused. Chambers would have diminished constitutional force if state courts could simply avoid federal review of their decisions to exclude third party confessions by reciting the Chambers factors and then concluding that they do not support admission of the out-of-court statement. Under 28 U.S.C. § 2254(d)(1) we are bound to evaluate the reasonableness of a state court's application of federal law. In this case, where the circumstances surrounding Ryan Gooch's confession supported its reliability, the state court unreasonably applied Chambers and, in so doing, deprived the defendant of his right to a fair trial.
For the foregoing reasons petitioner's motion is granted. The petitioner shall be released unless the state retries him within 120 days.
JAMES B. MORAN
Senior Judge, U.S. District Court
January 27, 1997
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the petitioner's petition for a writ of habeas corpus is granted.
January 27, 1997