OPINION
MERRITT, Circuit Judge.
This is a death penalty case from Ohio, tried by a jury, in which the District Court issued the writ of habeas corpus as to the sentencing phase of the case. The principal problem in the case arises from the fact that the indictment did not charge the aggravating circumstance that made the crime capital, nor did the trial court instruct the jury on the subject, nor did the jury return a verdict finding one or more of the aggravating circumstances that permit a sentence of death. We first look at the Ohio death penalty statutes before explaining the facts and previous rulings of state and federal courts. It is clear from this review that the Ohio courts did not follow Ohio death penalty statutes created to comply with Supreme Court cases narrowing the class of offenders eligible for the death penalty under the Eighth Amendment.
Under § 2929.03 of Ohio law, entitled “Imposing Sentence for a Capital Offense,” an indictment in a capital case “charging aggravated murder” must state the “aggravating circumstances” that make the defendant eligible for the death penalty:
(A)If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of § 2929. Of of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder ..., the trial couH shall impose a sentence of life imprisonment .... (Emphasis added.)
The indictment did not contain such a charge. The next section of the Ohio Code, § 2929.04, entitled “Criteria for Imposing Death,” repeats this requirement, which is followed by a list of nine “aggravating circumstances” that allow the imposition of the death penalty:
(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment or count in the indictment ... and proved beyond a reasonable doubt. (Emphasis added.)
Under subsection (B) of § 2929.03, if the defendant is to be tried for a capital offense in Ohio, the jury
verdict shall separately state ... whether the offender is guilty or not guilty of each specification [of an aggravating circumstance]. The jury shall be instructed on its duties in this regard. The instruction to the jury shall include an instruction that a specification shall be proved beyond a reasonable doubt in order to support a guilty verdict on the specification.... (Emphasis added.)
No instruction was given, and the jury did not return a verdict finding any aggrava[417]*417ting circumstance. In the present case, the aggravating circumstance not found by the jury but later supplied by Ohio judges is found in § 2929.04(A)(7): “The offense [of murder] was committed while the offender was committing ... robbery ... and ... was the principal offender in the commission of the aggravated murder. ...” (Emphasis added.)
These death penalty provisions of the Ohio Code were adopted in 1981 in direct response to a series of cases in the Supreme Court of the United States interpreting the Eighth Amendment. As more fully discussed below, these cases require states to narrow or restrict the class of murderers who are subject to capital punishment. A state may do so by adopting by statute a set of “aggravating circumstances,” as Ohio has done. Chief Justice Rehnquist’s opinion in Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), concisely summarizes the requirements of the Eighth Amendment in this respect:
To pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. Zant, supra, 462 U.S. at 878, 103 S.Ct. 2733 (“[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty”). (Citations omitted.)
Excusing the trial judge’s failure to comply with the statutory provisions referred to above, the state courts, on their own initiative, after the jury trial and verdict, found the petitioner Esparza guilty of the aggravating circumstance that made him eligible for the death penalty, ie., being the “principal offender” in committing an aggravated murder while committing a robbery. The jury itself was never informed of the aggravating circumstances required, nor did it find that such a circumstance existed. The primary question is whether the State violated the Eighth Amendment, as well as state law, when it failed to either charge Esparza in the indictment with the aggravated circumstance for which the death penalty was imposed or instruct the jury on the aggravating circumstance and have the jury reach a verdict on the existence of the aggravating circumstance. We conclude that the District Court was correct in issuing the writ on this basis.
I. Facts
The case was tried on the theory that Esparza was the only participant in the crime. The State’s proof showed that on the evening of February 12, 1983, a masked man entered the Island Variety Carryout in Toledo, Ohio, and approached the two store employees, Melanie Ger-shultz and James Barailloux. Pointing a small black handgun at them, he ordered Gershultz to open the cash register. While she was doing this, Barailloux fled the store through a rear door, entering the attached home of the store’s owner. While he was alerting the owner of the robbery, he heard a shot. He returned to the store and found Gershultz lying on the floor, shot once in the neck, and the cash regis[418]*418ter open and missing approximately $110. Gershultz died shortly thereafter.
At trial a year later, both Esparza’s sister and a fellow inmate testified that he confessed to the killing; and the sole witness to the robbery, James Barailloux, testified that the masked robber was short and husky, as was Esparza, and that he was wearing a dark blue jacket similar to the jacket Esparza’s sister said Esparza wore that night. The jury returned a verdict of guilty on both counts late in the day on Thursday, May 10, 1984. A mitigation hearing was held on Tuesday, May 15, during which Esparza put on four witnesses who testified briefly in his behalf. He also gave to the jury his juvenile court file and a presentencing report prepared by the state, both of which contained information unfavorable to Esparza. The next day, the jury sentenced Esparza to death, and the trial court accepted the sentence.
After Esparza’s trial, his appeals and his state post-conviction proceedings, a substantial volume of exculpatory evidence was revealed that was not turned over by prosecutors at trial. This evidence tended to prove that Joe Jasso was a participant in the crime and that Esparza did not act alone.
No information concerning Jasso was provided to the defense before trial. In information discovered as a result of a discovery request enforced by the district court below, Esparza learned that two individuals, Charles Hall and Stephen Billings, both separately reported to the Toledo Police Department that they had seen a Caucasian male and a Hispanic male in the Island Variety Carryout the night of the homicide. Hall and Billings both reported that the Caucasian man was driving a Monte Carlo. Hall reported that he saw the Monte Carlo circle the Island Variety Carryout twelve times. Information implicating Jasso was also discovered as a result of district court-ordered release of tips collected by Crimestoppers, a privately funded program that works in conjunction with local law enforcement to gather information regarding unsolved crimes. Two days after the homicide, an unidentified caller stated that he had overheard Joe Jasso talking about the murder. The caller hung up before any additional information was obtained.
Prior to trial, the government eyewitness, Island Variety Carryout store clerk James Barailloux, provided a series of inconsistent descriptions of the assailant to the Toledo police department. Just days after the robbery and homicide occurred, Barailloux provided two slightly different descriptions of the assailant, both generally describing a white male in his mid-thirties, around 6’ tall and weighing around 180 pounds. He did not mention a ski mask. Esparza was 19 years old at the time of the incident, 5'8" tall, Hispanic, and heavy-set in body type. Two months after the robbery, Barailloux described the perpetrator as either Caucasian or Hispanic and “husky.” He provided no description of the assailant’s clothing during that interview. Barailloux’s description continued to change over time, and at trial he described the perpetrator as a large heavy-set man with a large neck wearing a green ski mask with gold stripes and a “puffy” blue jacket. None of the inconsistent descriptions were disclosed to the defense counsel before trial.
On direct appeal from the verdict of death, the Ohio Supreme Court found no reversible error in the trial, with two of the seven justices dissenting. State v. Esparza, 39 Ohio St.3d 8, 529 N.E.2d 192 (1988). In state post-conviction proceedings, the Ohio Court of Appeals, in general, conclusory language, found no Eighth Amendment error in either the failure of the trial judge to require that the aggrava[419]*419ting circumstance be charged in the indictment or the failure to require that the aggravating circumstance be found by the jury beyond a reasonable doubt after being instructed on its duties in this regard. State v. Esparza, No. L-84-225, 1994 WL 395114 (Ohio App. 6th Dist. July 27,1994).1 The Ohio Supreme Court dismissed the appeal without opinion. State v. Esparza, 70 Ohio St.3d 1473, 640 N.E.2d 845 (1994).
The District Court disagreed. It concluded that the procedure followed by the State in sentencing Esparza to death violated the line of Supreme Court cases following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), establishing new Eighth Amendment standards for the states to follow in death cases. The Court based its ruling on the failure of the Ohio courts to follow their own statutory rules designed to render Ohio’s death penalty scheme constitutional under these Eighth Amendment cases:
Here, the trial judge, led down this path by the defective indictment, charged the jury as to one offense — aggravated murder — but sentenced Esparza as if he had been convicted of an entirely separate offense-capital murder.... As the Supreme Court said in Sullivan v. Louisiana, 508 U.S. 275, [279], 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), “to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the finding to support that verdict might be — would violate the jury trial guarantee.”
This post-hoc determination by an appellate court of what the jury would have done if the capital specifications question had been presented to it is particularly troubling in light of the capital scheme at issue here. As discussed later in this opinion, the Ohio Supreme Court, this Court, and the Sixth Circuit have all relied upon the existence of the capital specifications set forth in Ohio Rev.Code § 2929.04(A)(7) to conclude that the Ohio capital scheme has sufficiently narrowed the class of persons subject to the death penalty to render that scheme constitutional under Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
Thus, the Ohio Supreme Court has emphasized that a defendant may not be subject to the death penalty for a mere violation of Ohio Rev.Code § 2903.01(B); before the death penalty can be imposed, the state “must additionally prove that the offender was the principal offender in the commission of the aggravated murder or, if the offender was not the principal offender, that the aggravated murder was committed with prior calculation and design.” State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985) (emphasis added). See also State v. Barnes, 25 Ohio St.3d 203, 495 N.E.2d 922, 925 [420]*420(1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 701 (1987) (“the trial court had to find that [the defendant] committed -murder while committing or attempting to commit [a specified felony] and, further, that [the defendant] was the principal offender or that the murder was premeditated”). And, federal courts, as this one does here, have relied upon this interpretation of Ohio’s capital scheme, by the highest court in the state, as support .for the conclusion that Ohio’s capital scheme does narrow the class of persons to whom the death penalty can be applied, and does not use the precise same factors both to convict for aggravated murder and to subject one so convicted to the death penalty. See, e.g., Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.2000).
Where the existence of the specifications under Ohio . Rev.Code § 2929.04(A)(7) and of the state’s obligation to prove those specifications as additional factors, are critical to the constitutionality of the capital scheme, a failure to charge those factors or submit them to the jury surely must be structural. Because the state failed to indict Esparza for the offense of capital murder, and failed to instruct the jury to find all elements of the offense of capital murder, and because that error is not susceptible to a review for harmless error, Esparza is correct that imposition of the death penalty upon him would be unconstitutional.
Esparza v. Anderson, No. 3:96-CV-7434, at 77-80 (N.D.Ohio Oct. 13, 2000) (footnotes omitted).
The question before us is whether this analysis of the Eighth Amendment requirements in capital cases is erroneous.
II. Analysis
Justice Scalia concisely pointed out in his dissenting opinion in Almendarez-Torres v. United States, 523 U.S. 224, 257 n. 2, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a fundamental principle of modern death penalty jurisprudence:
Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense.... The person who is charged with actions that expose him to thé death penalty has an absolute entitlement to jury trial on all the elements of the charge.
(Emphasis added.) Although stated in dissent, it seems clear that a majority, and perhaps all, of the members of the Supreme Court agree with Justice Scalia on this point.' The author of the Court’s opinion in Almendarez-Torres, Justice Breyer, expressed the same view in his concurring opinion in Ring v. Arizona, — U.S. -, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), when he observed “that jury sentencing in capital cases is mandated by the Eighth Amendment.” Id. at 2446. In Ring, a majority of the members of the Court reached the same conclusion on the basis of the jury trial guarantee in the Sixth Amendment.
The same essential point was made by Chief Justice Rehnquist in the portion of his opinion for the Court in Lowenfield, quoted above. Fundamental principles from both the Due Process Clause and the Eighth Amendment, as the District Court held in its opinion quoted above, apply to the facts of this case because the jury never found the statutorily required aggravating circumstance, which, in Justice Sca-lia’s words supplies the “factor which makes [the] crime a capital offense.” This error is unquestionably a violation of the Eighth Amendment.
Justice Scalia’s point is reinforced by the language of the Court’s earlier per curiam opinion in Presnell v. Georgia, 439 U.S. 14, [421]*42116, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978), a capital case, similar to the instant case in which the Georgia Supreme Court supplied the aggravator element of the capital offense, on which the jury was silent:
In Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), petitioners were convicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:
“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.... “To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Id. at 201-202, 68 S.Ct. 514.”
These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phrase of any criminal trial. Cf. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
We also agree with the district judge that the error cannot be overcome by employing “harmless error.” None of the seminal Supreme Court Eighth Amendment cases requiring the narrowing of the class of defendants eligible for the death penalty permits the offender to be executed because the error was deemed harmless. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Woodson v. North Carolina, 428 U.S. 280, 302, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (automatic or mandatory death penalty does not comply with “the holding in Fur-man ... that the vesting of standardless sentencing power in the jury violated the Eighth ... Amendment”); Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (“The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court”). The death penalty for all such offenders has been set aside, not reviewed for harmless error. And in the Presnell v. Georgia ease, supra, the Supreme Court did not send the case back for harmless error review.
A state may not adopt a valid statute and then decline to carry it out. To allow a state to construct a constitutionally valid death penalty statute that establishes a fact to be proved to the jury beyond a reasonable doubt but permits judges to ignore the statute in order to impose the death penalty is the same as dispensing with the reasonable doubt requirement deemed not subject to harmless error analysis in Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal....”). It is not the same as dispensing with the minor element of “materiality” in a federal white collar tax case found subject to harmless error analysis in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). There is no suggestion in the Chief Justice’s opinion in Neder that harmless error would protect a directed verdict for the State on a crucial finding under the Eighth Amendment in a capital case. In Neder, [422]*422Justice Stevens specifically points out in his concurring opinion that such harmless error would not apply to capital cases where “there is a special danger that elected judges may listen to the voice of voters rather than witnesses.” 527 U.S. at 28, 119 S.Ct. 1827.
We find no federal appellate case that allows the judge, in violation of a state statute creating aggravating factors to be found by a jury beyond a reasonable doubt, to direct a verdict on the crucial aggravating factor that permits the death sentence. Harmless-error review in such cases should apply only when the jury has actually performed its function under the Eighth Amendment. The jury in this case never made a judgment at all on the only possible aggravating circumstance — a constitutionally indispensable requirement without which the death penalty cannot be imposed. The State’s argument that the error here can be excused as harmless would lead to the conclusion that any, or all, elements required by a state’s capital sentencing system may be supplied by judges rather than the jury. Neither the Eighth Amendment nor Ohio’s own statutes adopted in order to comply with it permit such a gross deviation from the principle of jury sentencing according to expressly stated, clear statutory standards.
In this case, even if harmless error analysis were appropriate, we are faced with the problem that suppressed evidence discovered for the first time in the District Court in this proceeding raises a question about whether Esparza acted alone. There is new evidence by two witnesses, suppressed by the prosecution at trial, that there were possibly two participants in the crime, Joe Jasso and Esparza. The basis on which Ohio judges directed a verdict on the “principal offender” aggravator — that there was only one participant in the crime — appears now to be called into question. Thus the basis for the State’s harmless error argument in the State courts has been undermined by the new evidence.
III. Other Issues
Because we grant the writ as to his sentence of death on Eighth Amendment grounds, we need not reach the alternate grounds on which Esparza asks us to vacate the death sentence: that he was denied effective assistance of counsel at sentencing, that his rights were violated when he was denied a continuance to prepare for the sentencing phase, and that his rights were violated through cumulative error in the sentencing phase.
Esparza also advances three grounds on which he asks us to grant a general writ invalidating his convictions for aggravated murder and aggravated robbery. He claims that (1) he was denied effective assistance of counsel at trial; (2) that his rights were violated when the state did not provide him with all available relevant, material, and exculpatory evidence; and (3) that his rights were violated when the trial judge refused to recuse himself after conducting a witness certification hearing concerning threats allegedly made against a potential witness by Esparza’s brother. We address these in turn.
A. Ineffective Assistance of Counsel
Esparza first claims that he was denied effective assistance of counsel at trial. Though he advances this as two separate grounds, arguing that ineffective assistance occurred both when his counsel failed to read the faulty indictment and when he did not conduct a thorough pretrial investigation or object to alleged prosecutorial misconduct, the claims are of a piece. To evaluate such claims, we apply the two-part test laid out in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We [423]*423may only reverse a state court ruling if it is contrary to or involves an unreasonable application of federal law. See 28 U.S.C. § 2254(d).
Esparza’s claim that his counsel was ineffective when he failed to read the indictment is based on a fair point: any competent counsel should read an indictment. To succeed under Strickland, however, Esparza must also show he was prejudiced by the failure to object to the indictment. Had his counsel objected, there is little doubt that the prosecution would have amended the indictment to include the required language. It may have been counsel’s strategy to leave the error in place. Thus, the decision of the Ohio courts to deny relief on this basis is reasonable, and so affirmed.
Esparza also claims ineffective assistance occurred when his counsel did not object to closing statements by the' prosecution. In the questionable statements, the prosecution stated that the victim was shot while reaching for an alarm, and that “scientific evidence” showed the shooting was not accidental, although no evidence in the record supports these claims. Although these statements are somewhat misleading, they do not warrant issuance of the writ. Counsel is free to argue reasonable inferences from the evidence, so long as evidence on the record is not misstated. See United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Esparza also claims that the prosecutor played upon the jury’s passions and prejudices in asking for a conviction. Esparza’s trial counsel could well have concluded that the prosecution’s comments were not objectionable. Even assuming arguendo that they were objectionable, and that the trial counsel should have objected, Esparza does not prove the comments prejudiced him. In rejecting this claim, the Ohio court concluded that Es-parza “failed to establish that the outcome of his trial would have been different had his trial counsel not committed the alleged errors.” Esparza, 1994 WL 395114, at *10. This is a reasonable conclusion to be drawn after applying Strickland.
Esparza’s claim that his counsel was ineffective when he failed to conduct a proper pretrial investigation fails for similar reasons. Although his counsel relied chiefly on the investigation of a private investigator, and neglected to interview some witnesses listed as potential government witnesses, Esparza is unable to explain how interviewing these individuals, or conducting a more thorough investigation, would have produced a different result at trial. His sister’s testimony would still have been presented against him, likely leading to another conviction. Thus, the Ohio courts acted reasonably in concluding that the alleged errors did not prejudice Espar-za’s defense. On his claim of ineffective assistance of counsel at trial, relief is not warranted.
B. Brady Claim
Esparza also asks this court to issue the general writ based on the fact that the State withheld material exculpatory evidence from him at trial. As discussed above, the suppressed evidence tended to (1) impeach a witness’s description of the individual who robbed Island Variety and shot Melanie Gershultz, (2) show that more than one individual committed the crime, and (3) show that police also had other suspects in the crime before charging Esparza with the killing. Taken together, the evidence throws into doubt whether Esparza was the “principal offender” in this crime and thus merits a death sentence under Ohio law.
The question here, however, is whether the evidence also throws into [424]*424doubt Esparza’s conviction for aggravated robbery and aggravated murder. Under Brady v. Maryland, a state must disclose all material exculpatory evidence to a defendant before trial. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To assert a successful Brady claim, a petitioner must show that (1) evidence favorable to the petitioner (2) was suppressed by the government and (3) therefore the defendant was prejudiced. See Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). A defendant is prejudiced whén “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Our task here is to determine whether, when the defendant was deprived of the suppressed evidence, he still received a “fair trial, understood as a trial resulting in a verdict worthy of confidence.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).
After considering the evidence, we conclude that Esparza’s trial was not fatally flawed at the guilt phase of the case, although obviously the suppressed evidence should have been produced. The suppressed evidence tended to show that (1) one witness’s statement that the robber/shooter in the store resembled Esparza may have been wrong, and (2) that another individual may have been involved in the crime. Even after this, however, there remains other significant evidence against Esparza, in particular the testimony of two individuals to whom Esparza admitted shooting Melanie Gershultz. We note in particular that none of the suppressed evidence tends to show that Es-parza was uninvolved in the robbery and shooting; it merely shows that he may not have been the principal offender and may not have acted alone. Thus, his request for a general writ based on a Brady error is denied.
C. Certification Hearing
Finally, Esparza claims his rights were violated when the trial judge failed to recuse himself after conducting a pretrial witness-certification hearing pursuant to Ohio R.Crim. P. 12(B)(1), (C), under which the court may allow the state to withhold personal information about a prosecution witness when the prosecuting attorney “certifies to the court that to do so may subject the witness or others to physical or substantial economic harm or coercion.” Id. The witness in question here was Catherine Stegg, Gregory Esparza’s girlfriend and mother of his child, who feared that Esparza’s brothers would harm her if they knew her whereabouts. In support of its certification request, the state provided information about Esparza’s violent past. After the hearing, the judge granted the motion, allowing the state to exclude Stegg’s personal information from discovery provided to Esparza.
The Ohio Supreme Court has held that it is error for a judge to preside at such a hearing and then preside at the subsequent trial, as the prejudicial information often revealed at such hearings could tend to prejudice a judge against a defendant. See State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272, 274 (1988), overruled on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). In such instances, however, harmless error analysis is appropriate. Id. at 277. Evaluating this claim on review, the Ohio Court of Appeals concluded that the error was harmless, noting in particular that the evidence that the judge heard at the hearing, “i.e., appellant’s history of violent behavior, was also admitted at the penalty phase of the trial below.” State v. Esparza, No. [425]*425L-84-225, 1995 WL 302302, at *3 (Ohio App. 6th Dist. May 19,1995). Rather than contending that the error was harmful, Esparza claims that such errors are “structural” and demand reversal in every instance. We disagree. The nature of the criminal justice system often requires judges to consider evidence and then dismiss it from their minds. See, e.g., Withrow v. Larkin, 421 U.S. 35, 39, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Thus, harmless error analysis is called for here, and we find the Ohio court’s conclusion that the error did Esparza no harm is a reasonable application of federal law.
Accordingly, the judgment of the District Court is affirmed.