Simpson v. Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0198p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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DONOVAN E. SIMPSON,

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Petitioner-Appellant,

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No. 08-3224

v.

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Respondent-Appellee. -

WANZA JACKSON, Warden,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 06-00127—Edmund A. Sargus, Jr., District Judge.

Argued: April 21, 2010

Decided and Filed: July 13, 2010

Before: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Brian Fletcher, WILMER CUTLER PICKERING HALE AND DORR LLP,

Washington, D.C., for Appellant. Gene D. Park, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Brian Fletcher, WILMER

CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant. Gene

D. Park, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

MARTIN, J., delivered the opinion of the court, in which SUHRHEINRICH, J.,

joined. WHITE, J. (pp. 35-39), delivered a separate opinion dissenting in part and

concurring in part.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Donovan Simpson, an Ohio

inmate, seeks habeas relief from his convictions for aggravated murder, murder, five counts

of attempted murder, aggravated arson, and five counts of felonious assault, all arising from

1

No. 08-3224 Simpson v. Jackson Page 2

a fatal arson. An Ohio jury convicted him under an aiding and abetting theory for assisting

another individual in preparing a “Molotov cocktail” and helping the individual flee after

throwing the bomb at a house, resulting in the death of a child sleeping inside. Simpson

claims that four of his statements—made on April 24, April 27, June 16, and June 20,

2000—were erroneously admitted into evidence in violation of Miranda v. Arizona, 384 U.S.

436 (1966), and its progeny, as well as in violation of the Fifth Amendment. For the reasons

set forth below, we find that the June 16th statement was properly admitted into evidence but

that the state court’s admission of the statements made on April 24th, April 27th, and June

20th was contrary to and an unreasonable application of Supreme Court precedent at the time

the conviction became final. These errors were harmless as to Simpson’s convictions for

aggravated arson and felonious assault, so we deny relief as to those convictions. However,

the errors were not harmless as to the convictions for aggravated murder, murder, and

attempted murder, so we grant Simpson a writ of habeas corpus as to those convictions.

I.

A. Factual Background

The last state court decision on the merits, see Garcia v. Andrews, 488 F.3d 370, 374

(6th Cir. 2007), is that of the Court of Appeals of Ohio on Simpson’s direct appeal. That

court set forth the facts as follows:

In the early morning hours of October 27, 1997, a fire broke out at 151

South Wheatland Avenue in Columbus, Ohio. At the time, Aleta Bell and

three of her four children, Shenequa, age five, Elijah, age three, and Myesha,

five-months old, were asleep in the house. Also sleeping in the house were

two men, Terrance Hall and Gary Williams, Myesha’s father. Hall was

awakened early that morning by a loud crash of glass. He found the house

engulfed in flames. After running out of the house, Hall was able to wake

Aleta Bell and Williams, who were sleeping with Myesha in the same room.

They were able to get out of the house. Unfortunately, they were not able

to reach the two children who were sleeping in a back bedroom. Members

of the Columbus Fire Department (“CFD”) arrived on the scene and were

able to find the two children and take them directly to Children’s Hospital.

However, as a result of the injuries sustained in the fire, Shenequa Bell died

days later. Elijah Bell survived, but suffered serious injuries.

By indictment filed August 24, 2000, appellant was charged with thirteen

counts relating to the fire at 151 South Wheatland Avenue. Appellant was

charged with two counts of aggravated murder for the death of Shenequa

No. 08-3224 Simpson v. Jackson Page 3

Bell, in violation of R.C. 2903.01. Both counts contained death penalty

specifications pursuant to R.C. 2929.04(A). Appellant was also charged

with five counts of attempted murder of the five other people in the house,

in violation of R.C. 2923.02 and 2903.02; one count of aggravated arson, in

violation of R.C. 2909.02; and five counts of felonious assault, in violation

of R.C. 2903.11. Appellant entered a not guilty plea to all of the charges

and proceeded to a jury trial.

Before his trial, appellant sought to suppress four verbal statements he made

to police officers prior to being indicted. Two of these statements, one on

April 24 and another on April 27, 2000, were made to officers while

appellant was incarcerated in the Licking Southeastern Correctional

Institution for an unrelated crime. Both of these statements were recorded.

No Miranda warnings were given to appellant before he made these

statements. The other two statements, one on June 16 and one on June 20,

2000, were made at Columbus Police Headquarters. Both of these

statements (which were essentially confessions) were videotaped. Appellant

was read his Miranda rights before these statements were made and he

signed a form indicating he understood and waived those rights. After an

evidentiary hearing, the trial court denied his motion thereby permitting the

state to introduce these statements into evidence at trial.

The following key testimony was presented during the state’s case.

....

Detective Edward Kallay, Jr., a homicide detective who was the primary

investigator in this matter for the Columbus Police Department (“CPD”),

testified that, in January 2000, he had a conversation with a man named

Adiyat Diggs. Based upon that conversation, Kallay believed that appellant

might have information about a suspect who the police thought could have

been involved in starting this fire. On April 24, 2000, Detective Kallay and

Federal Special Agent Ozbolt spoke with appellant at the Southeastern

Correctional Institution in Licking County where appellant was incarcerated.

Their conversation was recorded.

Detective Kallay testified that appellant told him that he had picked up a

man named Daryl “Pumpkin” Kelly the day before the fire and took him to

a bar to meet a woman named Leah.1 Appellant waited outside while Daryl

Kelly went into the bar. When Kelly and Leah came out, appellant heard

Leah tell Kelly to “take care of this for me.” Appellant told Detective

Kallay that he got a call from an excited Daryl Kelly the next morning who

said he needed another ride. When appellant picked Kelly up, he said that

Kelly smelled like gasoline. Daryl “Pumpkin” Kelly was a suspect even

before appellant provided this information.

1

Leah was Leah Smith, a former friend of Aleta Bell who

lived in the other half of the house at 151 South Wheatland

Avenue. Days before the fire, Leah had moved out of the

No. 08-3224 Simpson v. Jackson Page 4

house. The two had been involved in a dispute earlier in the

summer of 1997, when Aleta Bell accused Leah of forging

a driver’s license with Aleta’s personal information but with

Leah’s picture. When Aleta found the driver’s license, she

took it back. Leah later broke into Aleta’s home and stole

the driver’s license. Leah was charged with and pled guilty

to one count of burglary arising from that incident.

Three days later, on April 27, 2000, Detective Kallay and Special Agent

Ozbolt went to the Southeastern Correctional Institution to talk with

appellant again. In a recorded conversation, appellant again implicated Leah

and Kelly in the fire at 151 South Wheatland Avenue. Following this

conversation, the officers obtained appellant’s release on probation so that

he would cooperate with them in their investigation. However, appellant

failed to cooperate, leading the officers to believe that appellant had more

to do with the fire than he was admitting. Due to appellant’s failure to

cooperate with the investigation and failure to abide by the terms of his

probation, Detective Kallay arrested appellant on June 16, 2000.

After he was arrested, appellant was taken to CPD headquarters and

interrogated by Detective Kallay and Special Agent Ozbolt. The

interrogation was videotaped. It is undisputed that, prior to being

questioned, appellant was read his Miranda rights. During questioning,

appellant admitted his involvement in starting the fire. He said that he met

Leah and Kelly the day before the fire when Leah asked appellant to take

Kelly somewhere that night. Later that evening, Kelly and appellant took

two empty bottles of alcohol and filled them with gasoline. They brought

the bottles to Leah who showed them how to make a Molotov cocktail.

Appellant and Kelly then went to the area of 151 South Wheatland Avenue

and drove into an alley. After smoking some crack, Kelly got out of the car

with the two bottles and, a few seconds later, appellant heard glass break and

then saw Kelly running back towards the car without the bottles. The two

sped away to a crack house, where they paged Leah. She arrived and paid

them both with crack cocaine.

Detective Kallay further testified that, following these admissions, he made

arrangements to have appellant take a polygraph test. On June 20, 2000,

appellant was brought again to the CPD to take the test. It is undisputed that

appellant was read his Miranda rights again. However, Detective Kallay

testified that appellant was uncooperative so the test could not be performed.

Appellant’s lack of cooperation was confirmed by the testimony of Randy

Walker, who had been hired to administer the test. Nevertheless, while in

the room waiting to take the test, appellant made more admissions regarding

his involvement in the fire. Again, this interrogation was videotaped.

Appellant’s recorded statements of April 24th, April 27th and his videotaped

confessions of June 16th and June 20th were played for the jury over

appellant’s objections.

No. 08-3224 Simpson v. Jackson Page 5

The state then called Stanley Bowen, a Deputy Sheriff for Licking County.

Deputy Bowen was employed as a supervisor at the jail in which appellant

was incarcerated in April 2000. Deputy Bowen testified that he overheard

appellant ask “why didn’t they charge the bitch too. It was her idea to start

the fire.” In addition, an inmate, who was in a cell next to appellant,

testified that appellant told him all about the fire. He said that appellant told

him there were three people involved, and that they used Molotov cocktails

to firebomb the house.

....

After deliberating, the jury returned verdicts finding appellant guilty of all

five counts of attempted murder and felonious assault, guilty of one count

of aggravated arson, guilty of the lesser included offense of murder of

Shenequa Bell, and guilty of the aggravated felony-murder of Shenequa

Bell, also finding appellant guilty of the death penalty specification because

the aggravated murder was part of a course of conduct involving the

purposeful killing of, or attempt to kill, two or more persons.

State v. Simpson, No. 01AP-757, 2002 Ohio App. LEXIS 3785, at *1-12 (Ohio Ct. App. July

23, 2002).

We note the following additional undisputed material facts that do not appear in the

state court’s factual recitation. The April 24th interview was held in a conference room in

the warden’s office. Simpson was pulled from the general prison population and escorted

to the warden’s office by prison guards. (Appellee’s Br. at 16-17.) During the interview,

the officers, on the one hand, accused Simpson of being with Kelly at the time of the incident

1

but, on the other hand, told him that he was not a suspect. (A63-64, A133.) The April 27th

interview occurred while Simpson was in the prison’s infirmary. (A136-37 (“Q: Okay.

And again, how was that meeting arranged? A: They just came down there [the

infirmary].”).)

On direct appeal, the court upheld all of the convictions, but it vacated the

sentence for reasons not material to this case. At re-sentencing, the court imposed

discrete sentences for each conviction. On Count I, Murder, the court imposed a

sentence of fifteen years to life in prison. On Count II, Aggravated Murder, the court

imposed a sentence of life in prison, with thirty years before parole eligibility. On

1

Citations to the Petitioner’s Appendix will appear as “A__” in keeping with the parties’

convention in their briefs.

No. 08-3224 Simpson v. Jackson Page 6

Counts III-VII, Attempted Murder, the court imposed a sentence of eight years in prison

on each of the convictions. On Count VIII, Aggravated Arson, the court imposed a

sentence of nine years in prison. On Counts IX-XIII, Felonious Assault, the Court

imposed a sentence of eight years in prison on each conviction. The court found that

Counts I and II merged for purposes of sentencing. The court ordered that the eight-year

Felonious Assault sentences, Counts IX-XIII, would be served concurrently to each

other and would merge with the eight-year Attempted Murder sentences, Counts III-VII,

for purposes of sentencing. The court further ordered that the life-with-parole-

eligibility-after-thirty-years sentence on Count II would run consecutive to the eight-year

sentences for Counts III-VII, which would also run consecutive to each other, and

consecutive to the nine-year sentence on Count VIII. Stated more plainly, the court

sentenced Simpson to five consecutive eight-year terms (Attempted Murder), for a total

of forty years, plus a nine-year term (Aggravated Arson), plus a term of at least thirty

years (Aggravated Murder). This adds up to a total term of imprisonment of no less than

seventy-nine years, and potentially life, in prison.

B. Procedural Background

Simpson filed his original petition for writ of habeas corpus, pursuant to

28 U.S.C. § 2254, on February 24, 2006, asserting numerous grounds for habeas relief.

On April 16, 2007, the Magistrate Judge issued a Report and Recommendation finding

all of Simpson’s claims either procedurally defaulted or meritless, save the claims

regarding his two April statements and his two June statements. The Magistrate Judge

found that the admission of the April statements, if in error, was harmless. The

Magistrate Judge directed the state to supplement the record regarding the June

statements to allow for further evaluation. The district court overruled Simpson’s

objections to this Report and Recommendation on August 6, 2007. On November 2,

2007, the Magistrate Judge issued a second Report and Recommendation finding the

remaining claim regarding the June statements to be meritless. The district court

overruled Simpson’s objections to this Report and Recommendation on January 2, 2008

and, therefore, dismissed Simpson’s petition. Simpson timely appealed, and this Court

No. 08-3224 Simpson v. Jackson Page 7

granted a certificate of appealability as to the admission of Simpson’s April and June

statements.

II.

We review a district court’s decision regarding questions of law in a habeas

proceeding de novo. Avery v. Prelesnik, 548 F.3d 434, 436 (6th Cir. 2008).

Simpson’s federal habeas petition was filed subsequent to the passage of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996 and, thus, its

provisions govern this Court’s review. Under AEDPA, a federal court may not grant

habeas relief unless the state court’s adjudication of the claim either:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). Under the “contrary to” provision, a federal habeas court should

grant the writ “if the state court arrived at a conclusion ‘opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially indistinguishable facts.’” Boykin v. Webb,

541 F.3d 638, 642 (6th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 412-13

(2000)). Under the “unreasonable application” clause, a habeas court may grant the writ

if the state court identified the correct legal principle from the Supreme Court’s

decisions but unreasonably applied that principle to the petitioner’s case. Boykin, 541

F.3d at 642.

No. 08-3224 Simpson v. Jackson Page 8

III.

A. June Statements

Though the April statements occurred first, their relevance was tied to the June

statements because the State used the April statements to cast doubt on the veracity of

aspects of Simpson’s June statements, in which he sought to minimize his involvement

in the planning and carrying out of the arson. We therefore begin the analysis with the

June statements.

1. June 16th Statement

Simpson’s June 16th statement occurred after he had been arrested, ostensibly

for violating the conditions of his judicial release. As described above, in return for his

continued cooperation, Detective Kallay and Agent Ozbolt had arranged for Simpson’s

early “judicial release” from jail on an unrelated offense. When Simpson did not

promptly reestablish contact upon his release, the officers caused Simpson’s arrest to

focus his attention back on the arson investigation, even though Simpson was technically

arrested for violations of his judicial release, such as missing two drug tests. Thus,

Simpson was detained on June 16th for essentially two different reasons at the same

time—the release violations and the arson investigation. This presented a situation in

which Kallay and Ozbolt could exert significant pressure through the potential

consequences of his release violations in order to get Simpson to cooperate in the arson

investigation.

The June 16th interview began with both officers in an interview room with

Simpson,2 generally discussing Simpson’s current arrest and his failure to contact the

officers upon his release. Approximately six and one half minutes into the conversation,

one of the officers left, but the other officer remained in the room.

2

The June 16th interview was video recorded and is part of the record. The portion relevant to

the Miranda issue begins approximately at the 6:00 mark (or the 2:23 p.m. mark on the recording itself)

and lasts through the 12:08 (or 2:29 p.m.) mark.

No. 08-3224 Simpson v. Jackson Page 9

The remaining officer immediately informed Simpson that, because he was

“technically” in custody, the officer must inform him of his Miranda rights. Simpson

initially protested even being read his rights, i.e. he asked that the officer “please” not

read him his rights. The officer persisted and eventually read Simpson his Miranda

rights and gave him a copy of the rights to read. Simpson expressed that he understood

his rights. The officer then asked “are you willing to waive your rights, continue talking

with us?” Simpson responded: (1) “mmm-mmmm,” clearly in a negative way; (2) a

sideways shake of his hand and a slight shake of his head; (3) mumbling something and

then saying “nah” or “naw”; and (4) then saying “I messed up last time I did that.” The

officer then replied, “So you don’t want to talk to us? You do or you don’t want to talk

to us?” Simpson responded with more negative body language and said, “I mean, it

can’t help.”

Following four to five seconds of silence, the officer said, “Well that’s up to you,

whether you want to talk to us or not, we’re not going to twist your arm or anything like

that.” Simpson immediately responded, “what y’all wanna talk about?” and the officer

stated, “just basically what we’re talking about now.” We will refer to the colloquy up

to this point as the “first Miranda interaction.” Everything that follows will be referred

to as the “second Miranda interaction.”

Over the next one and one half minutes, Simpson questioned the officer about

the details of his current situation, having been arrested and going back to jail, where he

would be incarcerated, what his violations were, etc. Critically, the officer did not ask

Simpson any substantive questions,3 instead only responding to Simpson’s questions and

explaining that he was arrested for violating the terms of his release.

The other officer then came back into the interview room. There was an eight-to-

nine second period of silence, and the first officer then asked, “so do you want to talk

3

The officer did ask one question during this second colloquy, but it can only be characterized

as a non-substantive rhetorical question. Simpson asked, “why can’t y’all give me some simple shit,” in

relation to the deal Simpson had struck to cooperate in return for early release. The officer responded by

asking, “how can we get any more simple than that?” This “question” thus does not run afoul of

Simpson’s previous expression of a desire not to waive his rights.

No. 08-3224 Simpson v. Jackson Page 10

to us about any of this or not?” Simpson responded by mumbling something, and even

the tenor of his response is unclear. The second officer, who had not been present during

the first Miranda interaction, then said, “all right, since its a custodial interview, which

means you’re under arrest for that stuff, it’s pretty customary that we advise you of your

rights first.” Simpson responded that the first officer had already discussed the Miranda

rights. The first officer presented Simpson with a waiver of rights form and said, “just

go ahead and look that over, and if you’re willing to talk to us, just go ahead and sign

the waiver, and we can move on. Just need to make sure you understand all that.”

Simpson began reading the form and said, “I mean, this right here, it really don’t make

no difference, you know what I’m saying, sign it or not.” The second officer responded,

“that’s what we’re saying, but its a formality, and that’s what we’re required by law to

do.”

At this point in the interview, it is apparent that Simpson was still struggling with

the fact that, while he has been arrested for violations of his release conditions, the

interview is more about the arson. He indicated the waiver of rights form and said, “this

thing right here, I mean, talking about ‘may be used against me.’ For what?” The

second officer responded, “Well what would happen if you came out and said that, you

know, ‘I killed one of the people with [inaudible].’ Then, you know, if you tell us that,

and we didn’t advise you of your right, we’d lose that statement in court.” Simpson then

executed the waiver of rights form.

a. Miranda Warning

Simpson argues that the officers violated Miranda when they questioned him

after he expressed his desire to remain silent. In his brief, Simpson focuses exclusively

on the first Miranda interaction. Simpson argues that, at that point, he had clearly

invoked his desire to remain silent, so the interview should have ceased. The warden,

surprisingly, accepts the premise that this is the only relevant discussion. (See Resp. Br.

at 33 (accepting Simpson’s transcription of the relevant portion of the June 16th

interrogation).)

No. 08-3224 Simpson v. Jackson Page 11

The warden argues that, at the conclusion of the first Miranda interaction,

Simpson’s inclination remained unclear. However, at that point in time, Simpson had

said “mmm-mmmm,” “naw,” and “I messed up last time I did that.” Tellingly, the

officer responded by asking, “So you don’t want to talk to us? You do or you don’t want

to talk to us?” By virtue of the first question, it is clear that the officer understood

Simpson to be leaning towards saying that he did not want to talk. If that were not

enough, Simpson responded with additional dismissive, negative body language and

said, “I mean, it can’t help,” and then a noticeable silence elapsed. Thus, if the analysis

were to end here, the warden would likely be incorrect that Simpson’s desire to remain

silent was in doubt.

But the analysis does not end there. Simpson focuses on too narrow of a slice of

the colloquy and, instead, we must look at the entire six-minute conversation, which

includes both the first Miranda interaction and the second. Viewed in its entirety, we

conclude that the officer honored Simpson’s initial inclination to remain silent because

the officer did not ask any material questions and, instead, only responded to Simpson’s

inquiries. Once the other officer returned, they returned to the issue of Miranda, and

Simpson executed the waiver of rights form.

When viewed in this light, the officers’ actions were not inappropriate. As a

matter of first principles, Miranda is only directed at interrogation or its functional

equivalent—the police may not continue an interrogation after the interviewee has

invoked his right to remain silent. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980)

(restricting the definition of “interrogation” for Miranda purposes to express questioning

and words or actions by the police “that the police should know are reasonably likely to

elicit an incriminating response”). Here, the officers did not ask Simpson any material

questions until they revisited the issue of whether he wished to waive his Miranda rights

and discuss substantive matters, to which Simpson immediately consented.

Similarly, even Simpson concedes that, when a suspect does not clearly invoke

his right to remain silent or when the invocation is ambiguous, officers may follow up

with clarifying questions. Davis v. United States, 512 U.S. 452, 461-462 (1994); see

No. 08-3224 Simpson v. Jackson Page 12

also Berghuis v. Thompkins, 560 U.S. __, 2010 WL 2160784, at *8 (June 1, 2010)

(stating “there is no principled reason to adopt different standards for determining when

an accused has invoked the Miranda right to remain silent and the Miranda right to

counsel at issue in Davis.”). Here, Simpson initially indicated a desire to remain silent.

When the officer responded, “Well that’s up to you, whether you want to talk to us or

not, we’re not going to twist your arm or anything like that”—which was, in context, a

non-coercive statement—Simpson immediately responded by asking the officer what he

wanted to talk about. He then asked several questions of the officer until the second

officer returned. Thus, the officers were faced with an individual who had indicated that

he did not want to talk and yet continued to talk. Accordingly, it was not unreasonable

or impermissible for the officers to have circled back to the Miranda issue to clarify

whether Simpson wished to waive his rights before asking him any substantive

questions. Indeed, the Supreme Court encouraged such clarifying questions in Davis,

512 U.S. at 461, and four Justices would have required that officers seek clarification

in the face of an ambiguous invocation of Miranda rights. Id. at 476 (Souter, J.,

concurring).

Finally, it is well-established that a suspect’s voluntary, unsolicited statements

after an invocation of Miranda rights are not excluded. Edwards v. Arizona, 451 U.S.

477, 484-85 (1981). This is because, in the unsolicited statement scenario, the officers

have scrupulously honored the suspect’s invocation and have not interrogated him.

Though Simpson’s is not a case of unsolicited statements, the Edwards line of cases is

relevant for what it assumes—that it is permissible for the officers still to be in the same

room with the interviewee for at least some period of time after he invokes his right to

remain silent. The officers need not immediately leave the room; they simply may not

continue questioning or badgering the suspect. But, for Simpson to prevail, his theory

must be that the officers should have immediately, in a matter of seconds, left the room

when he said, “I mean, it can’t help.” This is not the law, so there was nothing wrong

with the officers remaining in the room for the few seconds until Simpson asked the

officers what they wanted to talk about, nor was there any prohibition on the officers

answering Simpson’s questions.

No. 08-3224 Simpson v. Jackson Page 13

In sum, there are at least three arguments to support the validity of Simpson’s

waiver of his Miranda rights. Furthermore, Simpson has not pointed to any Supreme

Court case indicating that the officers’ actions in these or similar circumstances were

improper. Accordingly, we find that the officers validly obtained the waiver of

Simpson’s Miranda rights prior to the June 16th interview.

b. Fifth Amendment Coercion

Simpson next argues that, even if the officers did not violate Miranda, his June

16th statement was coerced in violation of the Fifth Amendment’s prohibition on

compelled confessions. He does not claim that the officers utilized improper physical

tactics. Instead, he claims that they used a combination of threats and promises, which

had the cumulative effect of overbearing his will.

Whether a confession was voluntary depends upon “the totality of all the

surrounding circumstances—both the characteristics of the accused and the details of the

interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The Supreme

Court has held that the combination of threats and promises may rise to the level

sufficient to overbear an interviewee’s will, rendering any confession the product of

impermissible coercion. Lynumn v. Illinois, 372 U.S. 528, 534 (1963); see also

Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (recognizing that, in the face

of a powerful combination of threats and promises, even “[a] defendant who is

completely innocent might well confess”). However, as a plurality of the Supreme Court

noted in Missouri v. Seibert, 542 U.S. 600 (2004), “maintaining that a statement is

involuntary even though given after [Miranda] warnings and voluntary waiver of rights

requires unusual stamina, and litigation over voluntariness tends to end with the finding

of a valid waiver.” Id. at 609; see also Berkemer v. McCarty, 468 U.S. 420, 433 n.20

(1984) (“[C]ases in which a defendant can make a colorable argument that a self-

incriminating statement was ‘compelled’ despite the fact that the law enforcement

authorities adhered to the dictates of Miranda are rare.”). Accordingly, it is clear that

a defendant faces an uphill climb when, as here, he argues that a confession was

involuntary even though he properly received and waived his Miranda rights. And as

No. 08-3224 Simpson v. Jackson Page 14

an implicit derivative principle, in light of these candid statements from the Supreme

Court, the facts of a given interview must be especially egregious to lead to the

conclusion that a state court’s application of Supreme Court involuntariness case law

was unreasonable for purposes of habeas relief under AEDPA.

Although the June 16th interview came about as the result of Simpson’s arrest

for violation of his release conditions, it must be remembered that Simpson previously

had agreed to cooperate with the officers in return for his early release. Thus, Simpson

was familiar with the officers, and that he would interact with them after his release

should have come as no surprise to Simpson. Simpson points to two “threats” made by

the officers during the interview. First, the officers warned Simpson that he faced a new

felony charge for failure to comply with his release provisions and “guaranteed” that the

felony charge would be filed unless he provided information about the arson. (A396-

97.) Second, they stated, “This is your opportunity. ‘Cause if not, you’re going down

with [Kelly], and guess what? Being an accomplice carries the same penalty as the

person that threw the bottle. . . . We’ve proven to you that we don’t play games. We

don’t bluff.” (A402.) The officers also stated, “You are not the focus of our

investigation. But if we leave this room tonight with no answers, you will be. . . . You

are looking at the rest of your life, possibly the death—death row. If that’s the game you

want to play, Peanut, we’ll take you there.” (A404.)

In addition to these threats, Simpson also points to promises of leniency that he

claims contributed to the overbearing of his will. With regard to the charge for violating

his release conditions, one of the officers stated, “You want to help yourself, now’s the

time to help yourself. ‘Cause that charge ain’t been filed yet.” (A397.) With regard to

the arson, the officers stated that they “ultimately wanted to get Pumpkin [Kelly] and

Leah” and that, if he confessed to his involvement, the officers would “work with” him

and “talk to whomever.” (A402-03.) Simpson also points to the following colloquy:

Kallay: We did not accuse you of anything. We’re not gonna

accuse you of anything except being there.

Simpson: See, that’s, that’s a crime man.

No. 08-3224 Simpson v. Jackson Page 15

Kallay: It, it could be a crime if you continue doing what you’re

doing.

(A409-10.) Simpson contends that this statement implied that he would not be charged

if he admitted to being there and implicated Kelly and Leah.

In addition to those highlighted by Simpson, another aspect of the interview

bears upon Simpson’s decision to implicate himself. Simpson has several children. It

seems that, upon his release from jail, he had been living with his youngest son, and he

was with this son when he was re-arrested. He was clearly concerned about being away

from his son, and the officers played upon this. Several times, they suggested that

Simpson tell the truth so that he could get back to his son. And, more effectively, the

officers played on Simpson’s conscience, making repeated comparison between

Simpson’s children and the child killed in the fire. The video shows that this tactic was

extremely effective—one can almost see the emotional struggle going on in Simpson’s

mind.

Simpson primarily relies upon Lynumn v. Illinois, 372 U.S. 528 (1963), as clearly

established Supreme Court law holding that threats and promises may combine to render

a confession involuntary. There, the Court held that a defendant’s confession to selling

marijuana was involuntary. Id. at 534. The defendant testified that, immediately upon

entering her apartment, the officers threatened that she would never see her children

again if she did not confess but assured her that they would recommend that the

prosecutor not charge her if she cooperated. Id. at 531-32. The Court held that, under

these circumstances, it was “clear” that the confession could not be deemed voluntary;

in fact, the state conceded that the confession was coerced but argued that the error was

harmless. Id. at 534-35.

The major flaw in Simpson’s reliance upon Lynumn is that the Lynumn defendant

had not received Miranda warnings before the confession; indeed, Lynumn predates

Miranda by three years. As the more recent cases, like Berkemer and Seibert, teach, it

has become much more difficult to argue the involuntariness of a confession if Miranda

warnings have been given and the rights have been waived.

No. 08-3224 Simpson v. Jackson Page 16

Thus, we must analyze Simpson’s case under the more general involuntariness

doctrine. As we stated in Ledbetter:

In determining whether a confession has been elicited by [psychological]

means that are unconstitutional, this court looks at the totality of the

circumstances concerning “whether a defendant’s will was overborne in

a particular case.” Factors to consider in assessing the totality of the

circumstances include the age, education, and intelligence of the accused;

whether the accused has been informed of his constitutional rights; the

length of the questioning; the repeated and prolonged nature of the

questioning; and the use of physical punishment, such as the deprivation

of food or sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

35 F.3d at 1067. Applying these factors to the June 16th interrogation, none cuts

strongly in Simpson’s favor, and certainly not so strongly that a state court’s conclusion

to the contrary could be deemed objectively unreasonable. Though it is not clear from

the record what level of education Simpson has achieved, it is clear that he had extensive

experience with the criminal justice system. Thus, on June 16th, the experience of being

questioned by the police was not new or novel to him. Furthermore, Simpson had a

prior, consensual relationship with the officers. He had agreed to continue speaking with

them even before this specific interrogation. And though the officers did employ threats

and promises in their effort to obtain Simpson’s full disclosure, the video reveals that the

most effective tactic was the play on his conscience. Simply stated, under the totality

of the circumstances, Simpson has not met his burden of showing circumstances so

severe that there is a substantial risk that his will was overborne. We therefore deny

Simpson habeas relief as to the June 16th statement.

2. June 20th Statement

Though Simpson admits that he technically waived his Miranda rights during the

June 20th interrogation, he contends that the waiver was not voluntary and, thus,

ineffective. His argument is more appropriately framed as two distinct attacks on the

validity of his Miranda waiver. First, Simpson advances a pure involuntariness

argument, arguing that the officers obtained the waiver by using false promises, threats,

and misleading statements that he had “no choice” except to talk with them. We find

No. 08-3224 Simpson v. Jackson Page 17

this argument unpersuasive. Second, Simpson argues that the officers violated Miranda

by discouraging him from consulting with an attorney. This argument is significantly

more persuasive, as the facts are not materially distinguishable from the facts in Kyger

v. Carlton, 146 F.3d 374 (6th Cir. 1998), in which we found a clear violation of

Miranda.

Coming into the June 20th interview, Simpson had already given incriminating

statements on June 16th. He had confessed to being with Kelly immediately prior to the

arson while Kelly prepared the Molotov cocktail and to driving the car before and after

Kelly threw the Molotov cocktail at the house, though he disclaimed having been

involved in the planning of the attack or having any intent to kill or harm anyone.

Detective Kallay and Agent Ozbolt seem to have suspected that Simpson was more

involved than he claimed. They therefore proposed, at the end of the June 16th

interview, that Simpson take a polygraph test. They essentially told him that, if he had

been completely truthful on the 16th, he would pass the test and they would continue to

work with him and seek favorable treatment from the prosecutor. If he failed the lie

detector, they would “know” that he was more involved than he had admitted, and the

officers would recommend that the prosecutor bring the most serious possible charges

against Simpson. Thus, the officers proposed the lie detector for two purposes. The first

purpose was to test the truth of Simpson’s June 16th statement. The second purpose was

to get Simpson to confess to his “true” role in the arson by telling him that, if he lied, the

test would pick it up, so he should come clean before the test. On June 16th, Simpson

initially agreed to take the test. However, he was less than cooperative when the time

actually arrived on June 20th.

At the end of the June 16th interview, the officers were very blunt with Simpson

about how his case would proceed. The relevant dialogue was as follows:

Kallay: Tuesday morning we pick you up and bring you in for a

polygraph. You pass the polygraph then we’ll reinstate

your bond. Under the stipulation that you do what you’re

told with us. You don’t do that, we’ll charge you with

complicity to commit agg murder, right away.

Ozbolt: And that ain’t no bullshit.

No. 08-3224 Simpson v. Jackson Page 18

Kallay: That is no bullshit. You don’t have a choice at this time.

Ozbolt: Let me ask you this. Is that agreeable to you? You gonna

pass the polygraph? ‘Cause if there’s something else you

need to tell us, tell us now.

Simpson: No, that’s it.

Ozbolt: Hmmm.

Simpson: What’d you say I charged with?

Kallay: Complicity to agg murder. If you fail to do any of that,

that’s exactly what you’ll get charged with. If you want

to run, you can run, but we will find you.

....

Simpson: But agg murder, but that’s how much time, doesn’t that

carry life in jail?

Kallay: Mmmm-hmmm. Life with no parole. You’ve got a lot of

incentive. And we’re not playing with you, that is the

straight, honest to God truth. We could do that to you

right now, if we wanted to.

Simpson: What? Charge me?

Kallay: Mmm-hmmm. But what did we tell you from the

beginning?

Simpson: Alright.

Kallay: I want Leah. So does Dan [Ozbolt]. She’s the one who

caused this whole thing to happen. She’s the one who

caused this whole thing to happen. She’s the one who

needs to pay.

Simpson: Right.

Kallay: Pumpkin threw the fire . . .

Simpson: Yes.

....

Kallay: You don’t have alternatives.

Simspon: I know. I was just thinkin’, there’s nothing, it’s just

straight forward . . .

Ozbolt: Mmm-mmm. It’s straight up.

Simpson: Straight up, its just . . .

Ozbolt: Complicity to commit aggravated murder. There’s no

nice way to say it. That’s the way it is.

(A492-94.)4

4

Detective Kallay later admitted that the officers never intended to release Simpson and reinstate

the bond if he took and passed the polygraph. When asked why he would tell Simpson that if it was not

true, Kallay responded, “Because we had not had him take the polygraph test yet, and we still wanted him

to take it.” (A508-09.)

No. 08-3224 Simpson v. Jackson Page 19

At the beginning of the June 20th interview, in preparation for the polygraph

exam, Kallay had more strong words for Simpson. He stated at various times, “You

don’t cooperate on this case, you eat the whole thing. It’s called agg

murder—conspiracy to commit. . . . If you don’t cooperate then . . . there are no holds

barred, and you’re gonna lose. You’re gonna spend the rest of your life in jail. . . . If you

don’t take the test today . . . we’re gonna file the paper on you today for complicity to

commit agg murder. It’s that simple.” (A514-15, 518.)

a. Voluntariness of Miranda Waiver

Simpson claims that (1) the promise that if he took and passed the polygraph, he

would be released (which Kallay admitted was a false promise) and (2) the strong

language indicating that Simpson had to take the polygraph or else be charged with

aggravated murder, had the combined effect of overbearing his will, rendering his waiver

of rights involuntary. The government bears the “heavy burden” of proving the

voluntariness of a waiver of Miranda rights. Miranda, 384 U.S at 475. The

voluntariness question requires an “inquiry into the totality of the circumstances

surrounding the interrogation” to determine if the interviewee “in fact knowingly and

voluntarily decided to forego his rights to remain silent and to have the assistance of

counsel.” Fare v. Michael C., 442 U.S. 707, 724-25 (1979). And, as Miranda itself

stated, “any evidence that the accused was threatened, tricked, or cajoled into a waiver

will, of course, show that the defendant did not voluntarily waive his privilege.”

Miranda, 384 U.S. at 476.

Beginning with the argument regarding Kallay’s false promise of release,

Simpson points to our decision in Williams v. Withrow, 944 F.2d 284 (6th Cir. 1991),

rev’d in part on other grounds, 507 U.S. 680 (1993). In Williams, we addressed a

situation in which a police officer stated, “I’ll make you a deal. You tell us everything

that happened and you tell us the truth and I confirm it on a polygraph that you’re telling

us the truth. Yeah, you walk.” 944 F.2d at 286. The officer subsequently formalized

this into a promise of immunity if the suspect took and passed the polygraph. Id. at 287.

We held that the prisoner was entitled to habeas relief because “an evaluation of ‘the

No. 08-3224 Simpson v. Jackson Page 20

entire course of police conduct’ in this case establishes that Williams’ statements were

not voluntary. His statements were conditioned on his belief that he would be released

if he talked. The officers’ promises of leniency were intended to induce Williams’

admissions.” Id. at 289. However, Williams is distinguishable because, in that case, the

officer explicitly promised immunity in return for taking and passing the polygraph. By

contrast, here, the officers never told Simpson that he would not be charged in the arson

if he passed the polygraph. They simply said that they would re-instate his bond on the

previous, unrelated crime. Thus, Simpson was not like the suspect in Williams who

confessed because he believed that doing so could get him out of any charges.

As to Simpson’s claim that the officers’ threatening aggravated murder charges

if he did not participate in the polygraph rendered his waiver voluntary, the state court

and the district court held that these were all essentially true statements. To be sure, they

had a very strong influence on Simpson’s decision to waive his rights on June 20th—he

repeatedly indicated that he felt as if he did not have a choice (A521, 526) and even said

that he felt that he was being “railroaded” (A527). But the state court and district court

were correct that the officers were telling Simpson the truth about his predicament. In

light of his June 16th statement, the officers already had enough evidence to charge him

in the arson. In essence, the officers were merely informing Simpson of the options

before him. So Simpson was correct that he did not have much of a choice, but this was

simply an acknowledgment of reality.

Simpson cites no authority, much less clearly established Supreme Court

authority, indicating that a waiver is involuntary if made after hearing the truth, or that

officers may inform an interviewee of reality only when that reality is bright and cheery.

E.g. McCalvin v. Yukins, 444 F.3d 713, 721 (6th Cir. 2006) (“We are not prepared to

forbid police from conveying to suspects the seriousness of the crime for which they are

being investigated.”). Though the case may exist in which the ugly truth could be

presented in such an overwhelming and combative way that a suspect would lose his free

will, the circumstances of the June 20th interrogation do not strike us as that case.

No. 08-3224 Simpson v. Jackson Page 21

Accordingly, neither the false promise regarding the polygraph nor the blunt statements

regarding Simpson’s options are sufficient to warrant habeas relief.

b. Right to Counsel

Simpson next contends that the police violated Miranda by suggesting that he

needed an attorney only if he was lying. When the polygraph examiner, Officer Walker,

began discussing Simpson’s Miranda rights and indicated that Simpson had the right to

have counsel present, Simpson replied, “Oh, I can have an attorney present?” (A528.)

Walker responded, “You c-can any-anytime, you can always have an attorney present.

It is my understanding that you wanted to take the test.” (Id.) Simpson understandably

seems to have taken this to mean that, if he wanted an attorney present, he would not be

able to take the test that day. Furthermore, he had already been told that if he did not

take the polygraph that day, he would be charged with aggravated murder immediately.

But, for the reasons stated above, this is not problematic under Miranda because it was

essentially the truth. The problem arises in what happened next:

Walker: Do you follow what I’m sayin’? That’s . . . if you’re

telling me the truth, then you won’t have a problem with

the test. If you’re lying, then, uh, yeah, if I was lying, I

probably would, I’d probably get an attorney, I probably

wouldn’t take the test.

Simpson: Oh.

Walker: Yea, well, that’s me. But that’s a decision that, yeah, you

know, you have to make. This part of the form is wordy

and is-is lengthy. What this says is, that you are giving

me permission to give you the exam.

(A531-32.)

Simpson claims that we have held a materially identical exchange to violate

Miranda. In Kyger, we addressed a situation in which the following transpired:

Officer: Steve, do you understand them rights?

Kyger: Yes, sir.

Officer: Alright, having them rights in mind, would you answer

some of our questions, without an attorney present?

No. 08-3224 Simpson v. Jackson Page 22

Kyger: I’d just as soon have an attorney [‘]cause, you

know ya’ll say there’s been a shooting involved

and that’s a serious charge.

Officer: Yes it is but we’re investigating. We’re not saying you

shot anybody. We’re just investigating. Now, if you’ve

got something to hide, I can understand you not wanting

to sign that. If you ain’t got nothing to hide, you know,

you can answer our questions.

Kyger: I ain’t got nothing to hide.

Officer: Okay. But you don’t want to answer our questions

without an attorney present now?

Kyger: You know, I’ll answer a certain amount, you

know.

Officer: Okay, you know well you know you have the right to stop

at any time. That’s (inaudible) . . .

Kyger: Where do I sign at?

Officer: Just where it says “sign.”

Kyger: Okay [Kyger then signs].

146 F.3d at 376-77 (emphasis added). In light of this colloquy, we found that Kyger’s

statement was a request for counsel, such that the interrogation should have stopped

immediately. Id. at 379. Importantly, however, we went on to state that:

[Even] if Kyger’s request was equivocal, the subsequent statement by the

police (“Now, if you’ve got something to hide, I can understand you not

wanting to sign that. If you ain’t got nothing to hide, you know, you can

answer our questions.”) was an inappropriate effort at pressuring Kyger

to answer, rather than an appropriate attempt to get Kyger to clarify his

response. This would also render this questioning constitutionally infirm.

See Miranda, 384 U.S. at 454 (disapproving of just such a tactic); Davis

v. United States, 512 U.S. 452, 461 (1994) (approving the use of

clarifying questions).

Id. (citation omitted). As the Kyger Court noted, Miranda itself spoke ill of an

interrogation technique in which the interrogator tries to dissuade a suspect from

speaking with an attorney by saying “Joe, I’m only looking for the truth, and if you’re

telling the truth, that’s it. You can handle this by yourself.” 384 U.S. at 454-55.5

5

Kyger was not decided under AEDPA because the petition had been filed prior to 1996.

However, this is immaterial because the relevant proposition from Kyger is that the statement in question

was a clear violation of Supreme Court precedent. This application of Miranda was not affected by the

subsequent passage of AEDPA.

No. 08-3224 Simpson v. Jackson Page 23

The warden concedes that the statement in Kyger is similar to the statement by

Officer Walker in this case. However, the warden seeks to distinguish the cases on the

temporal basis that Kyger involved a suspect who had stated that he wanted to speak to

an attorney whereas Simpson had not yet requested counsel. We find two faults with the

warden’s attempt at distinction.

First, Kyger expressly stated that the officer’s statement was inappropriate even

if Kyger had only made an equivocal request for counsel, as opposed to a clear request

for counsel. 146 F.3d at 379. Here, though Simpson’s statement was certainly not an

unequivocal request for counsel, it was at least an equivocal expression that he was

considering speaking to counsel. Indeed, that Officer Walker responded with a

clarifying statement (“You c-can any-anytime, you can always have an attorney present.

It is my understanding that you wanted to take the test.”)—which was appropriate under

Davis, 512 U.S. at 461—shows that Officer Walker thought that Simpson might have

been requesting counsel. Thus, because Simpson’s statement was an equivocal

statement about his desire for counsel, Kyger is on all fours.

Second, and more troubling, to accept the warden’s distinction would be to

accept a rule that police may not discourage interviewees from persisting with their

request for counsel after they have already requested counsel, but may preemptively

discourage them from seeking the advice of counsel after informing them of the right to

counsel but before they actually request counsel. The warden offers no authority, and

we are aware of none, endorsing such a strange proposition. In essence, to accept the

warden’s distinction would be to approve the following alteration of the Miranda

warnings: “You have the right to an attorney, but you only need to exercise that right

if you are guilty or are lying.” This would be an unreasonable rule and an unreasonable

reading of Miranda, which expressly disapproved of such a tactic. Miranda, 384 U.S.

at 454-55.

Here, Officer Walker indicated to Simpson that he only needed a lawyer if he had

lied or intended to lie, and such a tactic is highly likely to taint an interviewee’s

decision-making calculus. The obvious takeaway from the perspective of someone in

No. 08-3224 Simpson v. Jackson Page 24

Simpson’s position is that, if he requested an attorney, he would be admitting to lying,

which would result in his immediately being charged with aggravated murder. Thus, his

only other option, as stated by Officer Walker, was to take the polygraph that day

without the assistance of counsel.

Framing the issue in this way is inherently coercive and violative of Miranda.

Furthermore, in so doing, Officer Walker crossed the line from stating the truth to

distorting the truth and, arguably, to giving legal advice. Officers run a high risk when

they move into the realm of offering advice. It is quite possible that, had Simpson

spoken with an attorney, the attorney could have arranged for a polygraph at a later date.

Officer Walker essentially advised Simpson to the contrary. As the Fifth Circuit—in a

case in which officers responded to an equivocal request for counsel by stating that “an

attorney could not relate [the suspect’s] story to the police, and [the officer] explained

that an attorney would probably advise him to say nothing”—explained:

[T]he limited inquiry permissible after an equivocal request for legal

counsel may not take the form of an argument between interrogators and

suspect about whether having counsel would be in the suspect’s best

interests or not. Nor may it incorporate a presumption by the interrogator

to tell the suspect what counsel’s advice to him would be if he were

present. Such measures are foreign to the purpose of clarification, which

is not to persuade but to discern.

....

Officer Cunningham’s explanation of the consequences of the suspect’s

talking to counsel might have been innocuous, even proper, had it been

correct. . . . But even such explanations are perilous and, if given, must

not be materially incorrect.

Here they were incorrect: it was simply not true, as Thompson was told,

that “if he told his attorney he could not tell his side of the story.” . . . .

The point is that counsel’s advice about what is best for the suspect to do

is for counsel, not the interrogator, to give. And it is for him to give after

consultation with his client and after weighing where the suspect’s best

interests lie from the point of view of the suspect, not from that of a

policeman be he ever so well intentioned. Until this occurs, it is simply

impossible to predict what counsel’s advice would be; and even if it

were, the right to advice of counsel surely is the right to advice from

counsel, not from the interrogator.

No. 08-3224 Simpson v. Jackson Page 25

Thompson v. Wainwright, 601 F.2d 768, 769, 772 (5th Cir. 1979).

Thompson’s reasoning applies with equal force here. Simpson correctly viewed

Officer Walker as having superior knowledge about his circumstances and options.

Officer Walker crossed the line separating adversary from advisor when he said that

Simpson only needed an attorney if he was lying. Not only was this not true as a matter

of legal strategy, as lawyers routinely instruct even innocent clients not to speak with the

police, but, even if it were true, it was not Officer Walker’s place to give the advice.

Thus, because Miranda itself expressly disapproved of the tactics used here, as

confirmed by Kyger,6 and because the warden’s attempt to distinguish Kyger is

unpersuasive, we find that the state court’s admission of the June 20th statement was an

unreasonable application of Supreme Court precedent.

B. April Statements

The June statements were preceded by two interrogations in April, on the 24th

and the 27th, during which time Simpson was in jail for a separate offense. Acting on

a tip that Simpson might have known something about the arson, Detective Kallay and

Agent Ozbolt arranged to meet with Simpson in jail. In his April statements, Simpson

denied any involvement at all in the arson. He claimed, however, to know that

“Pumpkin” Kelly and Leah met the day before the incident. He also claimed that Kelly

had called Simpson to request a ride around the time of the fire and that, when he picked

Kelly up, Kelly was excited and smelled like gasoline. The officers did not administer

Miranda warnings at the outset of either interview.

Simpson later moved to suppress both April statements due to the officers’

failure to give Miranda warnings. The state court overruled the motion on the basis that

Simpson was not in “custody” under Miranda during the interrogations, so no warnings

were required. At trial, the prosecutor introduced the two statements for the purpose of

6

“Although only Supreme Court case law is relevant under the AEDPA in examining what

Federal law is ‘clearly established,’ the decisions of the United States Courts of Appeals may be

informative to the extent we have already reviewed and interpreted the relevant Supreme court case law

to determine whether a legal principle or right has been clearly established by the Supreme Court.” Hill

v. Hoffbauer, 337 F.3d 706, 716 (6th Cir. 2003).

No. 08-3224 Simpson v. Jackson Page 26

showing that Simpson had not been truthful with the police in April. The prosecutor

sought to show that, because Simpson lied to the officers in April by denying

involvement completely, he similarly lied in his June statements when he admitted to

only limited involvement. In other words, the prosecutor asked the jury to credit

Simpson’s June statements up to the point that he implicated himself at all. However,

the prosecutor urged the jury not to credit the June statements insofar as Simpson

minimized his involvement in the arson, and pointed to the April statements as proof of

why the jury should so conclude. The state appellate court affirmed the trial court’s

ruling, and it further held that any error in admitting the evidence was harmless because

the April statements were not inculpatory on their face.

The state court held that, although Simpson was in prison at the time of the April

statements, he was not in custody for purposes of Miranda and, thus, no warnings were

required. In so holding, the state court cited a string of cases from various circuits,

primarily the Ninth Circuit’s decision in Cervantes v. Walker, 589 F.2d 424 (9th Cir.

1978),7 that have concluded that simply being incarcerated does not, by itself, constitute

custody for Miranda purposes. Instead, the question under these cases is whether there

has been a “change in the surroundings of the prisoner which results in an added

imposition on his freedom of movement.” Id. at 428. The state court’s reliance upon

this line of circuit cases was contrary to factually indistinguishable Supreme Court case

law, Mathis v. United States, 391 U.S. 1 (1968).

In Mathis, the Supreme Court addressed the admissibility of statements given

without Miranda warnings in a case, like this one, in which the individual was in prison

7

We noted the Cervantes reasoning with approval in dicta in United States v. Ozuna, 170 F.3d

654, 658 n.3 (6th Cir. 1999). However, Cervantes deals with a substantially different fact pattern than this

case. There, and in almost every other federal circuit court case to have applied Cervantes, the prisoner

was being questioned about something that happened in prison. E.g. Garcia v. Singletary, 13 F.3d 1487,

1490-92 (11th Cir. 1994) (prisoner not in Miranda custody when prison guard responding to a fire in

prisoner’s cell asked prisoner “why he set the fire”). Cervantes actually distinguished Mathis on this basis.

589 F.2d at 427. The only other cases to have applied Cervantes did so to find that a prisoner who initiated

contact with police was not in Miranda custody at the time of the contact. E.g. Leviston v. Black, 843 F.2d

302, 304 (8th Cir. 1988) (prisoner not in Miranda custody when prisoner called police to discuss a crime).

So, while Cervantes may be persuasive in cases involving the questioning of prisoners about events that

occurred in prison or instances of prisoners initiating contact with police, it is inapposite in cases of the

police initiating an interrogation of a prisoner about a completely different offense or something that

happened beyond the prison walls. Mathis controls in those circumstances.

No. 08-3224 Simpson v. Jackson Page 27

serving a sentence on an unrelated state crime. Id. at 2. The government contended that

the statements were admissible because “the petitioner had not been put in jail by the

officers questioning him, but was there for an entirely separate offense,” id. at 4, or, in

other words, because the petitioner was not in Miranda custody during the interviews.

The Supreme Court concluded that this argument was “too minor and shadowy to justify

a departure from the well-considered conclusions of Miranda with reference to warnings

to be given to a person held in custody.” Id. The Court went on to state that restricting

Miranda protections to those that are in custody for the case under investigation would

go “against the whole purpose of the Miranda decision” and that there was “nothing in

the Miranda opinion which calls for a curtailment of the warnings to be given persons

under interrogation by officers based on the reason why the person is in custody.” Id.

at 4-5. And to punctuate the matter with clarity, the Court stated:

In speaking of “custody” the language of the Miranda opinion is clear

and unequivocal: “To summarize, we hold that when an individual is

taken into custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the

privilege against self-incrimination is jeopardized.”

Id. at 5 (quoting Miranda, 384 U.S. at 478). Indeed, in dissent, Justice White objected

to the majority’s “cavalier” extension of the definition of Miranda custody. Id. at 7

(White, J., dissenting).

There is no relevant factual distinction between Mathis and the circumstances of

Simpson’s April statements. Quite tellingly, the state court never cited Mathis. Here,

as in Mathis, state agents unaffiliated with the prison isolated an inmate and questioned

him about an unrelated incident without first giving Miranda warnings. The Supreme

Court ruled that such action was improper and that any resulting statements must be

No. 08-3224 Simpson v. Jackson Page 28

suppressed.8 As there is no material factual distinction, the April statements were

admitted contrary to Supreme Court precedent.

C. Harmless Error Analysis

On collateral review of a state prosecution, a constitutional error will not be

deemed harmless if the court concludes that it “had substantial and injurious effect or

influence in determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007).

If the court finds itself with grave doubt as to the effect of an error, the error was not

harmless. Franklin v. Bradshaw, 545 F.3d 409, 415 (6th Cir. 2008) (citing O’Neal v.

McAninch, 513 U.S. 432, 436 (1995)).

In this case, as the Ohio Court of Appeals noted, Simpson’s statements were, by

far, the most damning evidence against him. Simpson, 2002 Ohio App. LEXIS 3785, at

*13 (“Without question, the most incriminating evidence presented against appellant at

trial were his own statements.”) There was no physical evidence or eyewitness linking

him to the arson. Aside from his statements, only two other pieces of evidence

potentially implicated Simpson: (1) a sheriff’s deputy at the local jail testified that he

overheard Simpson ask “why didn’t they charge the bitch too. It was her idea to start the

fire.”; and (2) an inmate from a cell next to Simpson testified that Simpson told him that

8

We note that the Supreme Court recently made clear that an inmate in Simpson’s situation is in

Miranda custody when he is being questioned by authorities on an unrelated crime. In Maryland v.

Shatzer, __ U.S. __, 130 S. Ct. 1213 (2010), the Court addressed the question of when, if ever, may the

police re-initiate contact with a suspect after he has invoked his right to counsel. Like Simpson, Shatzer

was in jail. Officers came to the jail and sought to question him about an unrelated offense, and he invoked

his right to counsel. The interview ceased and Shatzer was returned to the prison population. Two and

one half years later, another officer came back to the jail and sought again to question Shatzer about the

crime. This time, he waived his Miranda rights and made incriminating statements. He later sought to

suppress his statement on the basis that he had never left Miranda custody after the first interview and,

thus, police improperly re-initiated interrogation in violation of Edwards. The Supreme Court disagreed,

holding that there had been a break in Miranda custody once Shatzer had been returned to the general

prison population.

But, in the process of making this holding, the Supreme Court stated that “[n]o one questions that

Shatzer was in custody for Miranda purposes during the interviews” with officers while in jail. 130 S. Ct.

at 1224. And in holding that the period of time between the two interviews, but during which Shatzer

remained incarcerated on the unrelated offense, did not constitute Miranda custody, the Court stated, “[w]e

distinguish the duration of incarceration from the duration of what might be termed interrogative custody.

When a prisoner is removed from the general prison population and taken to a separate location for

questioning, the duration of that separation is assuredly dependent upon his interrogators” such that the

period of “interrogative custody” constitutes Miranda custody. Id. at 1225 n.8 (emphasis in original).

Though not controlling because Shatzer post-dates the state court’s decision in Simpson’s case, it is clear

that the Supreme Court would find that Simpson’s April interviews occurred while he was in Miranda

custody.

No. 08-3224 Simpson v. Jackson Page 29

there were three people involved in the fire, he was one of them, and that they used

Molotov cocktails. (A2249).

As set forth above, we have found that both April statements and the June 20th

statements were admitted in violation of Miranda and its progeny, but that the June 16th

statement was properly admitted against Simpson. In light of the strong role that the

statements played in both the State’s presentation of the case and the evidence against

Simpson, we believe it beyond question that the errors were not harmless, at least as to

some of the convictions against Simpson.

The June 20th statement was, for lack of a better description, all over the place.

Simpson never actually took the polygraph, but spoke at length with the man who would

be the polygraph examiner. At one point, he retracted his admissions of June 16th,

returning to the position he took in April that he was not involved at all. However, after

further pressure from Kallay and Ozbolt, Simpson admitted to being even more involved

than he had admitted in his June 16th statement. He admitted: (1) to hearing Leah and

Kelly discuss the arson one week before it happened (A638-39); (2) that, on the day of

the arson, he heard Leah tell Kelly that she wanted the house “blown up” (A632); and

(3) that he heard Leah tell Kelly how to make a Molotov cocktail (A642-44). Simpson’s

admissions on June 20th were, by far, the strongest evidence of not only his involvement

in the arson, but also the extent of his knowledge and involvement before, during, and

after the arson.

However, even in the June 20th statement, Simpson still maintained that he had

not been involved in the planning of the arson or in making the Molotov cocktails, and

had no intent to kill anyone. Thus, to prove that Simpson acted with the purpose of

causing the death of another, the State needed something more than Simpson’s own

admissions. Creatively, the State turned to Simpson’s April denials to prove this

element.

The state court found the April statements to be harmless for the simple reason

that they were not facially inculpatory. However, this misses the point. Again, Kyger

is instructive:

No. 08-3224 Simpson v. Jackson Page 30

The state appeals court and the district court . . . held that the error of

admitting Kyger’s November 14 statements was harmless because the

statements were exculpatory. The state continues to make this argument.

Their argument is that the admission of these statements was not only not

prejudicial to Kyger, it was helpful to him. We are unpersuaded by this

argument. We know better than to think that the prosecution admitted

evidence and emphasized it in its opening and closing statements purely

out of such a benign motive. Kyger’s statements contradicted hard

physical evidence and made him look like a liar. As the Second Circuit

has noted:

A defendant’s false exculpatory statement is admissible

at trial to show his consciousness of guilt and may be an

important part of the government’s proof. If the

statement was taken in violation of the defendant’s

constitutional rights, the fact that it was meant to

exculpate does not make it any less subject to

suppression.

Kyger, 146 F.3d at 381 n.3 (emphasis in original) (quoting United States v. Quiroz,

13 F.3d 505, 510 (2d Cir. 1993) (citations omitted));9 see also Innis, 446 U.S. at 301 n.5

(“By ‘incriminating response’ we refer to any response—whether inculpatory or

exculpatory—that the prosecution may seek to introduce at trial.”) (emphasis in

original); Miranda, 384 U.S. at 444 (“[T]he prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.”) (emphasis added). The Kyger concurrence echoed this

sentiment:

Kyger’s comments during the interrogation were in my opinion highly

inculpatory because they showed, in light of the real facts, that he was

lying. The prosecution took full advantage of these lies at trial,

repeatedly juxtaposing what Kyger told the police with what the physical

evidence actually showed.

9

The Kyger majority ultimately found harmless error because the unconstitutionally obtained false

exculpatory statement—that Kyger had not fired a gun on the night in question—was identical to a

subsequent, constitutionally obtained statement made several days later and was contradicted by a parafin

test showing that Kyger had, in fact, fired a weapon that night. Kyger, 146 F.3d at 382 & n.4.

No. 08-3224 Simpson v. Jackson Page 31

Kyger, 146 F.3d at 383-84 (Merritt, J., concurring). Accordingly, it is well-established

that the April statements were not harmless merely because they were facially

exculpatory.

The warden argues that the June statements and the other evidence are sufficient

to convict Simpson for the crimes of which he was charged—he had admitted to seeing

Kelly make the Molotov cocktails, vaguely knowing that Kelly and Leah had a problem

with Aleta Bell, driving the car when Kelly got out with the Molotov cocktails, and

driving the car away when Kelly returned. However, the warden makes this argument

under the assumption that both June statements were properly admitted, whereas we

have already concluded that the June 20th statement should have been suppressed. In

any event, Simpson contends that, regardless of the other evidence, the admission of the

April statements made him appear to the jury to be a liar, thus casting heavy doubt on

the full truth of his June statements. This was specifically harmful, Simpson claims,

with regard to the charges of aggravated murder, murder, and the five counts of

attempted murder, which the jury was instructed were specific intent crimes, meaning

that Simpson must have acted with the purpose of causing death as opposed to merely

knowing that death was a likely result. (A926-34.) Purpose was defined for the jury as

requiring proof of a “conscious objective of producing the specific result,” here “a

specific intention to purposely cause the death of another.” (A928-29.) Simpson

contends that, if the jury had not found the purpose element to have been proven, it

would have acquitted him of all the murder and attempted murder counts. We agree.

The State offered no direct evidence that it was Simpson’s purpose to kill anyone

as, even in his most revealing statement of June 20th, Simpson had specifically denied

knowing that Kelly intended to blow up the house. (A679.) Instead, the State

introduced evidence tending to establish Kelly’s purpose to kill Aleta Bell10 and asked

that the jury infer that Simpson shared this intent. Thus, whether the jury was willing

to make this inference depended, in large part, on whether the jury believed Simpson’s

10

Though not especially relevant because the trials were separate, it is interesting to note that

Kelly, who had not given any material statements to the police, was acquitted by a jury of all charges

having as an element the specific intent to cause the death of another.

No. 08-3224 Simpson v. Jackson Page 32

June statements admitting to participation but disclaiming knowledge or purpose. In

other words, the strength of the inference depended upon the jury’s appraisal of

Simpson’s credibility. As Simpson correctly notes, the jury deliberated for a long period

of time—approximately 28 hours over three days—and, a few hours before reaching a

verdict, asked whether there was difference between “purposely caused the death” and

“purposeful killing,” (A994), indicating that the jury was wrestling with the concept of

purpose.

At oral argument, counsel for the warden conceded, as the record reflects, that

the State’s only evidence in support of its theory that Simpson shared Kelly’s intent and

purpose was based on an adverse credibility finding as to Simpson. Nevertheless, the

warden contends that, even if the April statements are taken out of the picture, there was

still enough evidence to show that Simpson was a liar. The warden points to a lie that

Simpson told the officers as to Kelly’s whereabouts, but this was only marginally

relevant, if at all, as it does not concern the extent of Simpson’s involvement in the crime

and, at trial, this statement was not played to the jury because the prosecutor did not

believe it “added anything.” (A267.) Thus, the jury likely did not rely upon this lie to

make its adverse credibility determination.

The warden also points out that, in his June 20th statement, Simpson at one point

reverted back to claiming no involvement at all in the arson. But, as we have now found,

the June 20th statement was inadmissible, so the warden may not rely upon that

statement for purposes of an adverse credibility determination. Furthermore, saying that

the jury could have made an adverse credibility determination based solely on the June

statements goes against the weight of how matters progressed at trial. The June

interviews themselves, which were played to the jury, contained many statements by the

officers accusing Simpson of lying in his April statements. (A446, 484, 517, 561.)

Furthermore, the prosecutor emphasized this point in his questioning of the officers

before the jury. (A326, 328, 332 (“Were you always concerned that he might have

minimized his involvement based upon his minimization or denial of involvement in his

prior interviews?”).)

No. 08-3224 Simpson v. Jackson Page 33

In sum, although the jury perhaps could have made the requisite adverse

credibility determination notwithstanding the April interviews, it is much more likely

that the jury did not in fact do so in light of the heavy emphasis placed by the officers

and the prosecution on the April lies. We therefore hold that the admission of the April

statements was not harmless as to those convictions that required as an essential element

a specific intent to cause the death of another—aggravated murder, murder, and

attempted murder. This finding is reinforced when the error in admitting the April

statements is combined with the error in admitting the June 20th statement. When

viewed together, these statements show a person who initially denied any involvement

but who then steadily admitted to more involvement with each subsequent interview.

A juror faced with this progression of successive revelations of deeper involvement

would not have very far to extrapolate from Simpson’s June 20th admissions to the

State’s theory of purpose. Remove the April statements and the June 20th statement,

however, and this juror would have to make a rather blind leap to infer the State’s theory

of purpose based solely on the June 16th statement.

However, though we find the errors not harmless as to the specific intent crimes,

the same does not hold true for the general intent convictions of aggravated arson and

five counts of felonious assault. This is so because Simpson’s June 16th statement was

properly introduced against him. His admissions in that statement, standing alone,

would be more than adequate to allow a reasonable juror to convict on the general intent

crimes. Simpson, therefore, is not entitled to relief as to those convictions. Accordingly,

we grant in part and deny in part Simpson’s request for a writ of habeas corpus.

Simpson’s convictions of aggravated murder, murder, and attempted murder are void.

Simpson must still serve the remainder of the sentence imposed on his convictions for

aggravated arson and felonious assault.11

11

Based on our review of the amended Judgment Entry (A1016-19), it appears that Simpson’s

revised sentence will be seventeen years—eight years on each felonious assault conviction run

concurrently to each other, plus nine years on the aggravated arson conviction to run consecutively.

However, we leave it to the Ohio authorities to properly recalculate Simpson’s remaining sentence.

No. 08-3224 Simpson v. Jackson Page 34

IV.

For the reasons set forth above, we GRANT IN PART and DENY IN PART

Simpson’s petition for writ of habeas corpus and REMAND to the district court for

proceedings consistent with this opinion.

No. 08-3224 Simpson v. Jackson Page 35

___________________________________________________

DISSENTING IN PART AND CONCURRING IN PART

___________________________________________________

HELENE N. WHITE, Circuit Judge, dissenting in part, concurring in part. I

concur in the majority opinion except with regard to the June 16th statement. I would

grant habeas relief as to this statement as well.

I agree with the majority that when Simpson made the statement,

“Mmmm-mmmm. I ain’t done—nah—I messed up last time I did that,” giving two

variations of the word “no,” along with accompanying negative body language, and then

followed up with the statement that “it [couldn’t] help,” he unequivocally invoked his

Miranda rights.1 I do not agree, however, that it was permissible for the officers to later

“circle[] back to the Miranda issue.” (Opinion at 12.)

The majority bases its conclusion on three rationales: 1) Miranda rights only

apply to interrogation, and here the officers did not ask Simpson any “material

questions” until they “revisited” whether he wished to waive his Miranda rights, after

which Simpson consented; 2) an officer may follow up with “clarifying questions” after

an invocation of rights is ambiguous, see Davis v. United States, 512 U.S. 452, 461

(1994); and 3) a suspect’s voluntary, unsolicited statements after an invocation of

Miranda rights need not be excluded, see Edwards v. Arizona, 451 U.S. 477, 486 n.9

(1981). I disagree. Because Simpson’s invocation of his right to remain silent (or more

1

The relevant exchange on June 16th took place over the course of about six minutes:

Officer: You willing to waive your rights, and continue talking to us?

Simpson: Mmmm-mmmm. I ain’t done—nah—I messed up last time I did that.

(with dismissive wave of his hand and slight shake of his head)

Officer: So, you don’t want to talk to us? You do or don’t want to talk to us?

Simpson: I mean … it can’t help…

Officer: … mmm-hmm …

Simpson: you know what I mean…

(silence)

Officer: Well, it’s up to you, whatever you want to talk to us or not. We’re not

going to twist your arm or anything like that.

Simpson: What y’all want to talk about?

Officer: Just basically what we’re talking about now.

The conversation continued, and a few minutes later the Officer asked: “So, are you gonna talk to us about

any of this or not?” Simpson responded “I guess” and eventually signed a waiver form.

No. 08-3224 Simpson v. Jackson Page 36

precisely, his declination of the invitation to waive the right) was unequivocal, I find

Davis distinguishable and Smith v. Illinois, 469 U.S. 91 (1984), controlling, and

conclude that the continued questioning after Simpson’s invocation of his rights was

unconstitutional.

Although Davis holds that police may constitutionally pose clarifying questions

after an equivocal or ambiguous invocation of rights, Smith makes clear that where the

invocation is not ambiguous, clarification is unnecessary and questioning must cease.

Smith involved the following exchange:2

[Officer]: If you do want to talk to me I must advise you that

whatever you say can and will be used against you in

court. Do you understand that?

[Smith]: Yeah.

[Officer]: You have a right to consult with a lawyer and to have a

lawyer present with you when you’re being questioned.

Do you understand that?

[Smith]: Uh, yeah. I’d like to do that.

[Officer]: Okay.

[]

[Officer]: . . . If you want a lawyer and you’re unable to pay for one

a lawyer will be appointed to represent you free of cost,

do you understand that?

[Smith]: Okay.

[Officer]: Do you wish to talk to me at this time without a lawyer

being present?

[Smith]: Yeah and no, uh, I don’t know what’s what, really.

[Officer]: Well. You either have [to agree] to talk to me this time

without a lawyer being present and if you do agree to talk

with me without a lawyer being present you can stop at

any time you want to.

[Smith]: All right. I’ll talk to you then.

See 469 U.S. at 93 (emphasis in original).

2

It makes no difference that Smith concerned a request for counsel and this case involves the right

to remain silent. See Berghuis v. Thompkins, 560 U.S. ---, 130 S. Ct. 2250, 2260 (2010) (standard the same

for determining when a defendant has invoked right to remain silent and when a defendant has invoked

right to counsel at issue in Davis).

No. 08-3224 Simpson v. Jackson Page 37

The Smith majority held that the unambiguous invocation could not be rendered

ambiguous by continued questioning.

The courts below were able to construe Smith’s request for

counsel as “ambiguous” only by looking to Smith’s subsequent responses

to continued police questioning and by concluding that, “considered in

total,” Smith’s “ statements” were equivocal. 102 Ill.2d, at 373, 80

Ill.Dec., at 792, 466 N.E.2d, at 240 (emphasis added); see also 113

Ill.App.3d, at 310, 69 Ill.Dec., at 342, 447 N.E.2d, at 559. This line of

analysis is unprecedented and untenable. As Justice Simon emphasized

below, “[a] statement either is such an assertion [of the right to counsel]

or it is not.” 102 Ill.2d, at 375, 80 Ill.Dec., at 789, 466 N.E.2d, at 241.

Where nothing about the request for counsel or the circumstances leading

up to the request would render it ambiguous, all questioning must cease.

In these circumstances, an accused’s subsequent statements are relevant

only to the question whether the accused waived the right he had

invoked. Invocation and waiver are entirely distinct inquiries, and the

two must not be blurred by merging them together.

469 U.S. at 97-98 (footnote omitted) (emphasis in original). Although Smith was a

narrow ruling, its limitations correspond to the instant circumstances:

Our decision is a narrow one. We do not decide the

circumstances in which an accused’s request for counsel may be

characterized as ambiguous or equivocal as a result of events preceding

the request or of nuances inherent in the request itself, nor do we decide

the consequences of such ambiguity or equivocation. We hold only that,

under the clear logical force of settled precedent, an accused’s

postrequest responses to further interrogation may not be used to cast

retrospective doubt on the clarity of the initial request itself. Such

subsequent statements are relevant only to the distinct question of

waiver.

Id. at 99-100. It is not contended that events or nuances preceding Simpson’s initial

refusal to waive his rights rendered the refusal equivocal. Because Simpson’s refusal

was unequivocal, like Smith’s and unlike Davis’, there was no ambiguity necessitating

clarifying questions, and Simpson’s subsequent responses cannot retrospectively render

his earlier invocation equivocal.

Smith also makes clear that it is irrelevant whether further questioning seeks

“clarifying” or “material” information. The post-invocation-of-rights questions in Smith

No. 08-3224 Simpson v. Jackson Page 38

were also not “material.” In fact, the officer simply continued giving Smith his Miranda

rights. Yet, the continued questions constituted impermissible “police-initiated custodial

interrogation.” Smith, 469 U.S. at 98.

Lastly, I reject the notion that although Simpson initially invoked his rights, he

moments later validly waived that invocation. Smith was decided three years after

Edwards and did not view Smith’s subsequent responses as a waiver of his previously

invoked right. Rather, the Smith Court reaffirmed the importance of Edwards’

prohibition of continued questioning:

An accused in custody, “having expressed his desire to deal with

the police only through counsel, is not subject to further interrogation by

the authorities until counsel has been made available to him,” unless he

validly waives his earlier request for the assistance of counsel. Edwards

v. Arizona, 451 U.S., at 484-485, 101 S. Ct., at 1885. This “rigid”

prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560,

2569, 61 L. Ed. 2d 197 (1979), embodies two distinct inquiries. First,

courts must determine whether the accused actually invoked his right to

counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101

S. Ct., at 1884-1885 (whether accused “expressed his desire” for, or

“clearly asserted” his right to, the assistance of counsel); Miranda v.

Arizona, 384 U.S., at 444-445, 86 S. Ct., at 1612 (whether accused

“indicate[d] in any manner and at any stage of the process that he

wish[ed] to consult with an attorney before speaking”). Second, if the

accused invoked his right to counsel, courts may admit his responses to

further questioning only on finding that he (a) initiated further

discussions with the police, and (b) knowingly and intelligently waived

the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485,

486, n. 9, 101 S. Ct., at 1885, n. 9.

469 U.S. at 94-95 (footnote omitted). In stressing the distinction between the questions

whether the right was invoked and whether it was subsequently waived, the Court

explained:

The importance of keeping the two inquiries distinct is manifest.

Edwards set forth a “bright-line rule” that all questioning must cease

after an accused requests counsel. Solem v. Stumes, 465 U.S. 638, 646,

104 S. Ct. 1338, 1343, 79 L. Ed. 2d 579 (1984). In the absence of such

a bright-line prohibition, the authorities through “badger[ing]” or

“overreaching”–explicit or subtle, deliberate or unintentional– might

No. 08-3224 Simpson v. Jackson Page 39

otherwise wear down the accused and persuade him to incriminate

himself notwithstanding his earlier request for counsel’s assistance.

Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 2834, 77 L.

Ed. 2d 405 (1983); Fare v. Michael C., 442 U.S., at 719, 99 S. Ct., at

2568. With respect to the waiver inquiry, we accordingly have

emphasized that a valid waiver “cannot be established by showing only

that [the accused] responded to further police-initiated custodial

interrogation.” Edwards v. Arizona, 451 U.S., at 484, 101 S. Ct., at 1885.

Id. at 98-99; see also White v. Finkbeiner, 611 F.2d 186, 193 (7th Cir. 1979) (vacated

on other grounds) (“Courts have viewed a waiver which follows soon after the initial

request as suspect.”).3

Simpson’s responses to subsequent questioning did not constitute a knowing and

intelligent waiver of his previously invoked right to remain silent, and it cannot fairly

be said that he “initiated further discussions with the police” after questioning had

ceased in response to his invoking his rights.

The writ should be granted with respect to all four statements.

3

White, a pre-Edwards case that concluded that Miranda did not prohibit authorities from

initiating renewed questioning after the suspect requested an attorney, was of course vacated in light of

Edwards. However, because the state must show that a waiver was knowing, intelligent, and voluntary

in order to be valid, Maryland v. Shatzer, 130 S. Ct. 1213, 1219 (2010), the White court’s observation that

a waiver immediately following an attorney request is suspicious remains an intuitive and logical point.