Doody v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNATHAN ANDREW DOODY, 

Petitioner-Appellant,

No. 06-17161

v.

CHARLES L. RYAN; MEGAN SAVAGE;  D.C. No.

CV-98-00528-EHC

ATTORNEY GENERAL OF THE STATE

OPINION

OF ARIZONA,

Respondents-Appellees.



On Remand from the United States Supreme Court

Filed May 4, 2011

Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,

Betty B. Fletcher, Harry Pregerson, Stephen Reinhardt,

Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas,

Kim McLane Wardlaw, Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson;

Concurrence by Chief Judge Kozinski;

Dissent by Judge Tallman

5771

5776 DOODY v. RYAN

COUNSEL

Victoria B. Eiger (argued) and Nathan Z. Dershowitz, Der-

showitz, Eiger & Adelson, P.C., New York, New York, for

petitioner-appellant Jonathan Doody.

Terry Goddard, Attorney General, Kent Cattani, Chief Coun-

sel, and Joseph T. Maziarz (argued), Assistant Attorney Gen-

eral, Criminal Appeals/Capital Litigation Section, Phoenix,

Arizona, for respondents-appellees Dora A. Schriro, and

Megan Savage.

OPINION

RAWLINSON, Circuit Judge:

This case emerged from a horrendous crime — the murder

of nine individuals, including six monks, inside a Buddhist

temple. The ensuing investigation ensnared Petitioner Jona-

than Doody, a seventeen-year old high school student.

Although Doody eventually confessed to participating in the

nine murders, he challenged his confession, asserting that the

Miranda1 advisements he was given were inadequate and that

his confession was involuntary. In our opinion reported at 596

F.3d 620 (9th Cir. 2010) (en banc), we agreed on both counts.

Specifically, we concluded that the advisement provided to

Doody, which consumed twelve pages of transcript and com-

pletely obfuscated the core precepts of Miranda, was inade-

quate. We also held that nearly thirteen hours of relentless

overnight questioning of a sleep-deprived teenager by a tag

team of officers overbore the will of that teen, rendering his

confession involuntary. See id. at 622-23. We concluded that

the state court rulings to the contrary were an unreasonable

1

Miranda v. Arizona, 384 U.S. 436, 444 (1966), requires that, prior to

questioning, a suspect be apprised of his constitutional rights to remain

silent and to consult an attorney.

DOODY v. RYAN 5777

determination of the facts and an unreasonable application of

governing Supreme Court precedent. See id. at 636, 653. The

United States Supreme Court granted certiorari, vacated our

judgment and remanded this case to us for further consider-

ation in light of Florida v. Powell, 130 S. Ct. 1195 (2010).

See Ryan v. Doody, 131 S.Ct. 456 (Oct. 12, 2010) (Mem.).

Having reviewed the facts and circumstances of this case in

light of Powell, we reaffirm our prior rulings.

I. BACKGROUND

“On the morning of August 10, 1991, members of the Wat

Promkunaram Buddhist Temple discovered nine bodies inside

the temple (the temple murders). The victims, including six

Buddhist monks, lay face down in a circle, each shot in the

head.” State v. Doody, 930 P.2d 440, 443 (Ariz. Ct. App.

1996). Temple living quarters were ransacked, and personal

property was missing. See id.

Approximately one month after the temple murders, Phoe-

nix detectives received an anonymous tip implicating four

men from Tucson (the Tucson Four). During interrogations,

the four suspects made inculpatory statements, resulting in

murder charges against them.2 See id.

The police identified the murder weapon as a Marlin Model

60 .22 caliber rifle (Marlin rifle). See id. Investigators

received a report from Luke Air Force Base that a military

policeman had discovered a Marlin rifle while searching a

vehicle in an unrelated incident. See id. The rifle was recov-

ered from its owner, Rolando Caratachea (Caratachea), and

identified as the temple murder weapon. See id. When con-

fronted, Caratachea denied involvement in the temple mur-

ders. He steered the investigators to Doody and another

2

All charges against the Tucson Four were subsequently dismissed. The

State has never disputed that the Tucson Four’s confessions were false.

5778 DOODY v. RYAN

minor, Alessandro Garcia (Garcia), whom he reported had

borrowed the rifle shortly before the murders. See id.

Police officers approached Doody on October 25, 1991, at

a high school football game, where Doody was participating

in a flag ceremony as a member of the high school Reserve

Officers Training Corps (ROTC). Doody voluntarily accom-

panied the police officers to the station for questioning.

Doody’s interrogation began at 9:25 p.m. and concluded at

10:00 a.m. the next day. See id. at 444. Prior to commencing

the interrogation, Detective Riley purported to advise Doody

of his constitutional rights as required by Miranda. His recita-

tion of Miranda’s basic warnings consumes twelve pages of

transcript, largely a byproduct of the detective’s continuous

usage of qualifying language. The Miranda form designed to

be used when questioning juvenile suspects contained the fol-

lowing uncomplicated advisements:

1. You have the right to remain silent. (This

means that you do not have to talk to me or answer

any questions about this offense. You can be quiet if

you wish.). . .

2. Anything you say can and will be used against

you in a court of law. (This means that anything

you tell me, I can use later against you in court

. . .). . .

3. You have the right to have an attorney present

prior to and during questioning. (This means, if

you want one, you are allowed to have a lawyer here

before and during my questions to you . . .). . .

4. If you cannot afford an attorney, you have the

right to have one appointed for you prior to ques-

tioning. (This means if you do not have the money

DOODY v. RYAN 5779

to get a lawyer, if you wish, one will be given to you

free of charge before you are questioned.). . .

Juvenile Miranda Warnings Form (October 25, 1991). What

began as the reading of a single-page Miranda form morphed

into a twelve-page exposition that negated the intended effect

of the Miranda warning.

Detective Riley began by informing Doody that the warn-

ings were merely a formality that Doody should not take out

of context:

Ah, what I’d like to do first though Jonathan since

we’re in kind of a formal setting and things like that

and because DAVE [Munley’s] a police officer and

I’m a police officer and things like that ah some-

times some of the questions that we get into are, are

a little bit sensitive and ah things like that. Ah, and

what I’d like to do is before we, we go into that is

ah, read something to you ah, and so that you under-

stand some of the protections and things that ah, that

you have. It’s not meant to scare you or anything

like that, ah, don’t, ah, don’t take it out of context,

okay.

...

Ah, I’m sure you’ve heard this thing and you’ve

heard it said on t.v. and things like that and it’s not

quite like t.v. portrays it ah, it’s a little more, little

less technical and a little less heavy if you want to

put it ah that way . . . What, what, it’s called is a

Miranda warning okay. Have you heard that before?

Doody: No.

They call it Rights on t.v., okay. What, what that is

and basically all that is Jonathan is, it’s not necessar-

5780 DOODY v. RYAN

ily something that is, like on t.v. where they portray

it when somebody’s ah guilty of doing something,

ah, we read these things to people on somewhat of

a regular basis, whether they’re responsible for doing

something or not, okay. So I don’t want you to feel

that because I’m reading this to you that we neces-

sarily [sic] that you’re responsible for anything, it’s

for your benefit, it’s for your protection and for our’s

[sic] as well, okay?

Doody Interrogation Transcript, Tape 1, pp. 2-4 (emphases

added).

Detective Riley then informed Doody that he was reading

the Miranda warnings verbatim from a form. See id. at p. 8.

However, the detective deviated significantly from the form,

while informing Doody of his right to counsel. He stated:

Okay, and the next one states that you have the right

to have an attorney present prior to and during ques-

tioning, and what that means [sic] that if you want

one, you’re allowed to have a lawyer here before and

during you know my questions to you, okay. And

then an attorney is a lawyer who will speak for you

and help you concerning the crime or any kind of

offense that ah we might think that you or somebody

else is involved in, if you were involved in it, okay.

Again, it [sic] not necessarily mean that you are

involved, but if you were, then that’s what that

would apply to okay.

Id. at p. 10.

The interrogation commenced with casual questions from

both Detective Riley and Detective Munley about Doody’s

roommates and friends, including whether any of them owned

guns. Doody volunteered that his friend Caratachea owned a

gun, but denied that he ever borrowed or shot the gun. The

DOODY v. RYAN 5781

two detectives then switched the focus of the questions to the

temple murders, asking Doody to detail his whereabouts at the

time of the murders and to describe how he became aware of

the crime. Doody responded that on the night of the murders,

he went to a movie with a friend and returned home. The two

officers followed up by asking additional questions about the

temple, Doody’s prior visits to the temple and the victims.

Approximately one hour into the interrogation, Detective

Riley paused to lecture Doody about the importance of telling

the truth. He also asked a pointed question: whether Doody or

anyone Doody knew had ever borrowed Caractachea’s rifle.

Doody denied that he had, but stated that Garcia might have

done so. At that point, Detective Riley apprised Doody that

there were some things about the gun that he knew Doody

was aware of, and he urged Doody to come clean.

Detective Riley again asked Doody about his whereabouts

when the murders occurred and whether he knew anything

about the murders other than what was reported in the news.

When Doody once more denied any knowledge of the mur-

ders, Detective Riley repeated his warning about the impor-

tance of Doody telling all, and he informed Doody that the

detectives knew Doody was lying when he denied borrowing

Caratachea’s rifle. In response, Doody reiterated that he never

borrowed the rifle, but Garcia might have.

Following Doody’s repeated negative response to the ques-

tion of borrowing Caratachea’s rifle, both detectives pro-

ceeded to lecture Doody on the importance of his telling the

truth. In the midst of the lecture, the two detectives confronted

Doody with their “knowledge” that Doody and at least one

other person borrowed the rifle. They demanded information

confirming their knowledge, telling Doody that “its [sic] so

important for you, for you to tell us. I mean you have to tell

us. You have to.” Doody Interrogation Transcript, Tape 3, p.

27 (emphasis added).

5782 DOODY v. RYAN

Almost immediately after the two detectives told Doody he

had to tell them about borrowing the rifle, Doody obliged. He

told the two detectives that he and Garcia borrowed the rifle

well before the temple murders. This admission prompted

several more sternly couched lectures on the importance of

telling the truth, and the detectives’ knowledge that Doody

was lying. The detectives also increased the pressure on

Doody by informing him that Caratachea’s rifle was the mur-

der weapon. Nevertheless, Doody maintained that he returned

the rifle to Caratachea prior to the murders. He continued to

deny knowledge of, or involvement in, the murders in the face

of repeated questions and accusations that he was withholding

information from the detectives.

In the middle of the night, Doody became virtually non-

responsive to the detectives’ questioning, even though a third

detective, Detective Sinsabaugh, who had interviewed Doody

in September, joined the tag team. From that point, the pres-

sure intensified. Detective Riley began with:

Why if you didn’t kill anybody, then what is what is

keeping you from making people understandable

[sic] believe that. ‘Cause if you didn’t kill anybody,

doing what you’re doing right now isn’t going to

convince anybody . . . They’re gonna say and this is

only speaking it out common sense fashion how peo-

ple normally perceive things, is it if you didn’t kill

anybody why is he lying, why won’t he tell what

happened, there is [sic] got to be a reason for that;

and the reason that most people would come to is

that you probably kill [sic] them and it is won’t

admit it. So we can get pass [sic] that point and deal

with the fact that he didn’t kill anybody, but this is

why your problem in coming across with what he

knew and reasons were this and this and hey! I think

there [sic] a probably pretty good reasons [sic] other-

wise you wouldn’t have such a problem Jonathan,

but help us understand that, and by understanding it

DOODY v. RYAN 5783

you’re going to help yourself out tremendously

‘cause we have to know. Com’mon!

Doody Interrogation Transcript, Tape # 8, pp. 1-2. Doody

responded, “I don’t know anything else.” Id. at p. 2.

Detective Sinsabaugh chimed in: “You know me don’t you

Jonathan? How’ya doing my friend?” Id. at p. 6. The detec-

tive instructed an unresponsive Doody:

Remember we talked about honor. I need your help

on this one. I know what’s up. I need you to help on

this one, okay? You got a duty to help us Jonathan;

I know exactly what went down, my man, and you

got a duty to help us and we can work this thing out

together and I’m coming to you straight up Jonathan.

I’m serious. These guys [the other two detectives]

are trying to give you an opportunity Jonathan for

you to help us to be on our team and that’s why

they’re spending this time with you. Just like that

night I talked to you, it’s no game now Jonathan. I

know you though Jonathan, I know . . . your family.

I know where you have been raised, and I don’t

think Jonathan Doody is a cold blooded killer. These

guys were cowards Jonathan. You got mixed up with

some dumb punks, and you gotta help us on this Jon-

athan. You gotta help us on this ‘cause it’s no game

now. I mean that you gotta help us on this. This is

not a game; I’m not playing with you Jonathan. I

know your family and everything. Please help me on

this Jonathan. We can we can talk and we’d see how

we can ever work this thing out, but you gotta be

straight up front with me. If if you lie to us Jonathan,

then we’re not gonna be able to believe the truth. If

you lie to us, I’m not gonna be able to believe

whether or not you are [sic] killer and I don’t believe

that Jonathan and that’s why I took the time to come

in and talk to you, ‘cause I care about you man. Let

5784 DOODY v. RYAN

it out, Jonathan. Now is the time let it out. Let it out,

Jonathan. Tell’s [sic] us what’s up; take some pride

in yourself we’ll, we’ll work it out Jonathan, but it’s

not gonna help leaving it in. I need to know your

part; we already know what went down Jonathan.

Help me on this one.

Id. at pp. 6-7 (emphases added).

Besides reiterating that he didn’t do anything, Doody was

non-responsive. The three detectives continued in tandem:

Detective Munley: Tell us what happened. We gotta

hear it from you. Get it all cleared up Jonathan, you

can do it. It has to come out Jonathan.

Detective Sinsabaugh: Jonathan now is the time.

Detective Munley: Go ahead Jonathan please.

You’re not afraid to take stands, just get it out, just

get it out . . .

Detective Munley: Do it Jonathan; I can help you.

Let it out Jonathan.

Detective Sinsabaugh: Trust me on this one. Jona-

than. Whose plan was it Jonathan? Tell me Jonathan,

whose plan was it? I’ll work with you on it. Go

ahead, Jonathan, go ahead. Help us on this.

Detective Riley: Jon you can do it. Whose idea was

it?

Detective Sinsabaugh: Jonathan let it out, let it out

take a deep breath let it out now. Let it out and tell

us what happened.

...

DOODY v. RYAN 5785

Now is the time, let it out. Get it out of you, it’s a

new beginning for you.

...

Jon, this is bull shit. Get it out Jonathan ‘cause then

I’m not gonna believe you when you do tell us we,

we know what’s up. Now let it out now, and we’ll

work together on it.

Detective Munley: Jonathan, who are we talking

about here? You gotta take this position now. You

better take a hold of this now.

Detective Riley: This is your time, Jon. This is your

opportunity get [sic] it out.

Detective Sinsabaugh: Jonathan, I know you’re

involved. I don’t wanna go out that door; I don’t

wanna believe other one’s, other people’s story. I

want it from you first hand. Jonathan, it’s time. I’m

serious, it’s time.

...

Take a stand. Be a man . . .

Detective Riley: You have to . . .

...

Detective Sinsabaugh: Now come clean with me

Jonathan; come clean.

...

Detective Munley: Rollie was involved, wasn’t he?

5786 DOODY v. RYAN

Detective Riley: Com’mon Jonathan, it’s not that

difficult. Either he was or he wasn’t. Was he? Was

he or wasn’t he involved? Jonathan was he?

Doody: I don’t know.

Detective Riley: Yes, you do know. Was he?

Detective Sinsabaugh: Jonathan, I’m going out this

room. I’m gonna talk to other people. I thought for

surely [sic] I could come to you; you’re not thinking

in your interest Jonathan. How we talked about the

honor; I don’t see any of that honor my man.

Detective Riley: Try, you can do it. Gotta get it, you

gotta release it Jonathan. It’s not gonna go away.

Man you gotta get it out. Just go ahead and say it.

It’s all in [sic] the tip of your tongue. Just let it out

Jon . . . [W]as Rollie involved? Jonathan it’s not that

hard. Either he was or wasn’t. Com’mon, do it. Do

it now. Either he was or he wasn’t. Was he involved?

Yes or no? Com’mon, com’mon! . . .

Detective Munley: Get it out . . .

Detective Sinsabaugh: I’m with you. I’m with you.

You gotta help me on this one. We gotta make this

right Jonathan. This’s no game Jonathan; I’m being

honest with you.

Detective Munley: He was involved, wasn’t he Jon?

Detective Sinsabaugh: It’s your side of the story.

Detective Munley: He was, wasn’t he.

Detective Sinsabaugh: Com’mon Jonathan.

DOODY v. RYAN 5787

Detective Munley: Jonathan, look at me; he was,

wasn’t he? Go ahead Jonathan.

...

Detective Sinsabaugh: You were involved Jonathan.

You were involved.

Detective Munley: We gotta know the extent of your

involvement. We gotta have your version Jon.

Detective Sinsabaugh: Man, you gotta get it out.

Detective Munley: Tell it, Jon.

Detective Riley: Jonathan can you honestly sit there

and tell myself and Dave and Rick right now that

you were not at that temple.

Detective Sinsabaugh: No, ‘cause Jonathan Doody

doesn’t lie.

Detective Munley: Jonathan, can you?

Detective Riley: Com’mon this is not that hard. You

know what we’ve talked about throughout this whole

conversation. If you’re there, we can deal with that;

but we gotta know, we gotta hear it from you. You

have to tell us. Yes or no? Were you or weren’t you?

Yes or no? Jonathan, com’mon. Yes or no? Yes or

no? Yes or no? Yes or no? It’s real simple. Were you

or weren’t you. Just tell me, yes or no. Com’mon yes

or no, it’s real simple.

...

Detective Sinsabaugh: Join the team. Let’s work this

thing out together. I’m not gonna tell you, you can’t

Jonathan. Let’s straighten this shit up.

5788 DOODY v. RYAN

...

Doody: (Murmur)

...

Detective Sinsabaugh: Jonathan do it.

Detective Riley: We have to know; you have to let

us know. If you don’t, let us know know [sic] body

else is gonna do that for you. Either you tell us you

were or weren’t, it’s really simple. I know it’s a

struggle right now, but you have to let us know that.

Whether or not you were there. Simply yes or no.

What is it, which one is it? Com’mon, take control

right now.

Detective Sinsabaugh: Answer Jonathan, answer.

Detective Munley: You can do it Jon.

...

Detective Munley: Jon, it’s not the end of the world.

It’s not the end of the world.

...

Jonathan you can do it.

Detective Riley: Please! Jonathan, com’mon. You

can deal with this; you can take control of this situa-

tion. The way to start with that is to do this now by

telling us whether or not you were there. Were you

or not there? Jonathan Please tell us now. Let us help

you . . .

Detective Munley: Get it out . . .

DOODY v. RYAN 5789

Detective Riley: Give us the opportunity.

Detective Munley: Get it out. Go ahead.

Detective Riley: Grab a hold of this opportunity. Let

us help you. Like Rick’s been telling you, trust us.

Detective Sinsabaugh: Jonathan, Jonathan, Jonathan

look at me. This is flat out bull shit man. What what

what what’d, you been brought up better than this.

What the hell does this stand for, Okay? Are you

gonna cover for bunch [sic] of cowards. I’m trying

to convince these people Jonathan that you didn’t

kill anybody. You got something in here, and you

you’re sitting here playing a game and I’m not gonna

put up with it. You’re gonna sit there and cover for

bunch [sic] of cowards. I think Jonathan, I’d come to

you straight up and I’m gonna give [sic] chance to

answer and I want you to come clear with this. Don’t

cover for these guys. They’re cowards, Jonathan.

Tell me.

Doody: I can’t.

Detective Sinsabaugh: Why? I’ll work with you,

why? Why Jonathan? Why? Talk to, I’d talk to you

the other night Jonathan; we can talk. Me and you

can talk Jonathan . . . don’t freeze up on me man.

You freeze up on me like this, I can’t talk to you.

Talk to me. Why can’t you and we’ll work it out.

Just sit down and discuss this. . . . Jonathan, take

charge man. Your [sic] soldier man, you don’t, you

you don’t you can say what’s on your mind and tell

me Jonathan. Tell me. Tell me so I can work this out

with you. Go ahead my man, tell me. Tell me, trust

me my man. Trust me. Trust me so we can work

[sic] out; I need your help Jonathan. How did you

get involved in it and talk. How did you get involved

5790 DOODY v. RYAN

in it? We’ll work it out Jonathan, we’ll work it out.

I’m worried about your family, too. We’ll work it

out. You need to help me Jonathan. Jonathan, Jona-

than don’t. You told me you can’t, now why? Jon

no, Jonathan tell me. Why? Let’s work it out

together. Jonathan look at me my man, trust me on

this. Let’s work this thing. Why? If you wanna say

it Jonathan, why? Why? I I care about you Jonathan;

you’re [sic] family wanna know why . . .

Id. at pp. 10-19.

Between 3:15 a.m. and 3:56 a.m., after making a brief com-

ment about there not being a threat to his family, Doody Inter-

rogation, Tape 9, p. 1, Doody again became silent. The

detectives continued without any response from Doody:

Detective Sinsabaugh: Jonathan, who did they

threaten [sic] let it out? I know what’s up Jonathan.

Tell me about it lets [sic] work this out. Jonathan I

need your help to prove that your [sic] not a killer

Jonathan. You went there it went to shit Jonathan it

wasn’t your idea. You just got messed [sic] with the

wrong guys, Jonathan look at me. Don’t sst [sic],

what’s the problem? Jonathan tell me. Let it out,

who, you said not me who? Who Jonathan? Jonathan

be a man about this. Tell me.

Detective Riley: Who’s [sic] ideal [sic] was it Jona-

than?

Detective Sinsabaugh: Tell him Jonathan. Tell him

Jonathan, who’s [sic] ideal [sic] it was. Let’s get this

out, there you go . . .

Detective Sinsabaugh: Ideal [sic] was it?

DOODY v. RYAN 5791

Detective Munley: Go ahead Jonathan. It’s easy,

who’s [sic] ideal [sic]? Let it out Jonathan. Go

ahead.

Detective Sinsabaugh: Jon, Jon, Jon trust me on this,

Jonathan. It’s the only way we can work it out is if

you’re up front Jonathan. Now I talked to you

tonight, the other time we talked you you you intelli-

gent [sic] help us on this talk to us.

Detective Munley: Who’s [sic] idea was it Jonathan?

Detective Sinsabaugh: Jonathan I’m gonna have to

leave the room are you gonna help me on this? Are

you gonna trust me on this? You can’t trust those

guys. You can trust me now tell me Jonathan. Jona-

than you’re wasting time, now tell me. You want to

tell us, so let’s just tell it now.

Detective Munley: Tell Jonathan.

Detective Sinsabaugh: Jonathan, Jonathan who’s

[sic] ideal [sic] was it? Jonathan you just said it,

who’s [sic] ideal [sic] was it?

Detective Munley: OK Jonathan.

Detective Sinsabaugh: You’re gonna cover for a cold

blooded killer?

Detective Munley: Jon go ahead and let it out. Go

ahead Jon.

Detective Sinsabaugh: Jon Jon Jon Jon are you

gonna cover for a cold blooded killer, now let it out.

Detective Munley: Go ahead Jon. Get it out Jon.

Were you there? Jon.

5792 DOODY v. RYAN

Detective Sinsabaugh: Jon Jon tell tell me so I know

what we’re up against. Why are you scared to tell

us? Huh, Jon Jon you got to answer me why are you

scared to tell us, answer me. No Jon why are you

scared to tell us? I’m not gonna let you do this to

yourself, why are you scared to tell us? No, Jon

you’re gonna answer me, why are you scared to tell

us? I’m concerned about ya and I’m I’m gonna stay

here until I get an answer, why are you scared to tell,

let me help you on this Jon. Jon, why are you scared

to tell us? Huh? Jon, Jon answer me. Why are you

scared to tell us, I’m not gonna let you do this. Now

you you start talking to me. Tell us Jon. Jon Jonathan

tell us.

Detective Munley: Let it go. You just said it.

Detective Sinsabaugh: Trust me on this [Jonathan].

This is the only way.

Detective Munley: Go ahead Jon. Get it out Jon, just

get it over with it has to come out. It has to come

out, go ahead. Go ahead Jon.

Detective Sinsabaugh: Jon look what you’re holding

inside you want to tell us just tell us. Jon, Jon would

you tell me? Look at me Jon, Jon don’t look away,

look at me Jon you’re a soldier tell me what’s up.

Jon no no no tell me Jon talk to me Jon. Jon no no

this guy it’s not you’re not gonna cut it that way

man, you’re gonna be a man about it. You’re gonna

talk to me Jon.

Detective Riley: Who are you afraid of Jon?

Detective Sinsabaugh: You you gonna get this out in

the open now Jon that isn’t going to buy it, you’re

you’re you’re an ROTC you’re a soldier now start

DOODY v. RYAN 5793

talking to me Jon don’t sit there like that talk to me.

Jon you remember what’s my name? What’s my

name? What’s my name Jon? What is my name?

What is my name Jon?

Detective Riley: Don’t you remember his name?

Detective Sinsabaugh: Do you remember me talking

to you at school? I called you at school, your coun-

selor and you called me? Do you remember yes or

no?

Doody: Yes.

Detective Sinsabaugh: OK, why is that so hard?

Yeah I talked to him a couple of months maybe. Jon

Jon do you want to talk or not?

Doody: I’ll pull up a chair.

Detective Munley: Just get it out.

Detective Sinsabaugh: Jon, excuse me. What’s the

deal are you gonna talk to me or not? Who am I Jon?

What’s my name? Well talk, what is my name Jon?

You can’t remember it? You remember me talking

to you?

Doody: Yes.

Detective Sinsabaugh: OK speak up OK we’re men

now. Could you remember me talking to you?

Doody: Yes.

Detective Sinsabaugh: OK speak up, Jon. OK I’m

talking you [sic] straight up like a man, do you

remember me talking to ya?

5794 DOODY v. RYAN

Doody: Yes.

Detective Sinsabaugh: OK I, you need to speak up

through [sic] when you’re talking to me. What is my

name? You you remember my name? Yes or no, do

you remember my name?

Doody: Yeah.

Detective Sinsabaugh: OK, what’s my name?

Doody: Richard Sinsabaugh.

Detective Sinsabaugh: Well why is that so hard? I’m

I’m here for ya, you got to talk, why why you act

[sic] that you don’t talk like that? Tell us these guys

are trying to help you now what’s up? Jonathan,

that’s it were [sic] talking now. Now, I know you’re

involved Jonathan now now you gonna help me on

this thing. So what’s the deal, what don’t don’t start

this stuff talk to me OK, lets [sic] talk about the

problem what problem are we having right now?

What’s the problem? You say you’re afraid of some-

thing, what are you afraid of?

Doody: I’m not afraid of anybody.

Detective Sinsabaugh: OK what’s the problem talk

to me that’s what we need to talk about what’s the

problem? You’re afraid of the family? Right?

Doody: No.

Detective Sinsabaugh: What? Talk to me that’s what

I need, so I can discuss it with ya what? Then what?

Jon tell me, what?

Doody: I’m afraid for somebody.

DOODY v. RYAN 5795

...

Detective Sinsabaugh: Oh, are you afraid Vickie find

[sic] out about you? What are you afraid of? I’m not

a mind reader Jonathan you got to tell me, tell me.

It’s not that hard, tell me Jonathan seriously, tell me.

OK? I talked to you Jonathan my God you’re an

intelligent guy, what’s the deal tell me, you’re afraid

for Vickie what what are you afraid of Vickie for?

What are you afraid of of for Vickie? Tell us so we

can get over this hurdle this Vickie. Hurdle . . .

what’s the problem? Jon Jonathan tell me what’s the

problem? Did you kill anyone there Jonathan? Look

me in the eye yes or no, did you kill anyone there?

Doody: No.

Detective Sinsabaugh: I can’t hear you Jonathan, did

you kill anyone there takes [sic] a stand.

Doody: No.

Detective Sinsabaugh: OK, why is it that [sic] so

hard to say is it because you might of, I don’t think

you killed anyone Jonathan, but I know you were

there. Jonathan I’m gonna ask you this and don’t

give me information any doubts [sic] on it, cause I

don’t think you killed anyone, did you kill anyone at

the Temple?

Doody: No.

Detective Sinsabaugh: Why is that hard to answer?

You were there though Jonathan, right? Right? Jona-

than, were you at the Temple? Jonathan, were, I’m

asking you flat out, were you involved? Jonathan

were you involved, don’t lie to me yes or no? Tell

me Jonathan, were you involved, I need to know so

5796 DOODY v. RYAN

we can get over this and work on it. Were you

involved? Tell me Jonathan. You were involved Jon-

athan, tell me. I know that but I need to know if you

killed anybody, you said you didn’t kill well how do

I know if you’re lying to me about this? Were you

involved? Jonathan were you involved? Answer me,

answer me Jonathan. Jonathan answer me. Answer

me. What what’s the problem answer me Jonathan

what what are we going through all this, we want to

work things out, what’s the difference, we all [sic]

ready know what’s up Jonathan you’re here, ya

know we took you out of ROTC, this isn’t a game

OK you need you [sic] to help us out on this. And

why you doing this, this doesn’t look like a guy who

wants to help us out, what’s the problem? Were you

involved?

Interrogation Transcript, Tape 9, pp. 1-8. Doody finally

responded, “Yes.” Id. at 8.

Over the course of several more hours of interrogation,

Doody gave the detectives the “confession” they sought.

Doody informed the detectives that Caratachea and Garcia

approached him with a plan to conduct a war game with the

goal of surrounding the temple without triggering the security

system. Doody went to the temple with Caratachea, Garcia,

and two others, George Gonzalez (Gonzalez) and his friend.

Doody explained that he had no intention of entering the tem-

ple but, once past the security sensors, he followed the others

inside. According to Doody, Caratachea, Garcia, Gonzalez,

and the other participant ransacked the temple’s living quar-

ters and gathered the victims into the main room. After one

of the monks recognized Gonzalez, Doody was ordered to go

outside and confirm that the walls were sound-proof. Doody

maintained that the shootings occurred while he was outside

and that he did not know who fired the shots. Doody, 930

P.2d at 444.

DOODY v. RYAN 5797

On the same night that Doody was interrogated, Garcia was

also questioned. Garcia identified Doody as the mastermind

of the plan to rob the temple. Garcia’s version of events was

that once they were inside the temple, Doody was determined

to leave no witnesses. According to Garcia, he attempted to

persuade Doody not to shoot the victims but was unsuccess-

ful. Instead, Doody shot each victim in the head with a rifle

Doody borrowed from Caratachea. Garcia stated that he and

Doody were the only participants in the murders.

Investigators subsequently searched Garcia’s home and dis-

covered several items taken from the temple. They also recov-

ered a shotgun that matched shells from the crime scene. The

two confessions and the evidence collected at Garcia’s home

resulted in dismissal of all charges against the Tucson Four

from whom the police had previously obtained confessions.

Doody and Garcia were subsequently charged with the mur-

ders. See id.

Prior to trial, Doody and Garcia filed motions to suppress

their confessions. Id. At the suppression hearing, Detective

Riley described Doody as “very polite, attentive, and just

overall pleasant.” Suppression Hearing Transcript, October

27, 1992, pp. 68-69. Detective Riley described using “a stan-

dard issue juvenile Miranda form issued by the office” to

inform Doody of his Miranda rights. Id. at 77-78. According

to Detective Riley, he went through the form with Doody,

who initialed the applicable areas of the form. Detective Riley

stated that Doody was “very attentive. [Doody] made eye con-

tact with [Detective Riley] as [he] spoke to [Doody] and,

again, was polite and courteous.” Id. at 81. Detective Riley

stated that Doody did not display any doubt while answering

the questions. He estimated that it took fifteen to twenty min-

utes to administer the Miranda warnings.

When asked if Doody appeared tired during the interroga-

tion, Detective Riley responded, “I’d have to say for the most

part no. [Doody] didn’t really display any real overt sign of

5798 DOODY v. RYAN

being fatigued or tired.” Id. at 89. Detective Riley testified

that he used a “[q]uiet and calm” voice when he questioned

Doody. Id. at 90.

Detective Riley confirmed that there were long periods dur-

ing the interview when Doody remained silent while Detec-

tive Riley kept asking questions. During these periods,

Doody’s “posture began to deteriorate. His attentiveness also

deteriorated. And his eye contact dropped to where he would

look at the ground for long periods of time. He would clinch

his beret in his hand.” Suppression Hearing Transcript, Octo-

ber 28, 1992, p. 35. Detective Riley agreed that certain peri-

ods could be described as an “impasse.” Id. at 37. Detective

Riley acknowledged that the transcripts reflected a four-page

speech in which he was trying to get Doody to provide addi-

tional information. After this “four-page . . . speech,” Doody

responded, “I don’t know anymore.” Id. at 43.

Following the suppression hearing, the trial court denied

both Garcia’s and Doody’s motions to suppress. Doody, 930

P.2d at 444. Garcia entered into a plea agreement, “pursuant

to which the state agreed not to pursue the death penalty and

Garcia agreed to testify against Doody.” Id. “In addition, Gar-

cia pled guilty to nine counts of first degree murder and one

count of burglary in connection with the temple murders, as

well as one count of first degree murder in an unrelated homi-

cide (the Cameron murder).” Id.

At Doody’s trial, Garcia testified consistent with his state-

ments to the investigators. See id. Doody was not allowed to

cross-examine Garcia regarding the Cameron homicide or

other unrelated and uncharged offenses Garcia committed

with Caratachea, “including a series of burglaries and conspir-

acy to commit murder and armed robbery (the Cruz

offenses).” Id.

The jury ultimately convicted Doody on all counts. How-

ever, the verdict forms revealed that the jury premised

DOODY v. RYAN 5799

Doody’s first degree murder convictions on felony murder

rather than on premeditated murder. Id.

Doody appealed his convictions to the Arizona Court of

Appeals. Id. at 445. Addressing Doody’s confession, the

Court of Appeals observed that “the troublesome length of

Doody’s questioning does not, in itself, establish that the offi-

cers overcame Doody’s will to resist confessing.” Id. at 446

(citation omitted). The Court of Appeals opined:

Other factors indicate that, despite the length of the

interrogation, Doody confessed voluntarily.

Although the entire interrogation lasted approxi-

mately thirteen hours, Doody admitted he had bor-

rowed Caratachea’s rifle at the time of the temple

murders after approximately two and one-half hours

of questioning. Doody admitted he had participated

in the temple robbery after approximately six and

one-half hours of questioning, and his description of

the events at the temple spanned nearly two hours.

During the remaining hours, the detectives reviewed

Doody’s testimony and probed for a connection to

the Tucson Four.

Id.

Additionally, the Court of Appeals concluded that

“[a]lthough Doody characterizes the tone of the interrogation

as coercive, the audio tapes reveal a courteous, almost plead-

ing style of questioning during most of the interview.” Id. The

Court of Appeals noted that “[e]ach of the officers involved

in the interrogation testified at the suppression hearing that

Doody remained alert and responsive throughout the interro-

gation and did not appear overtired or distraught. Our review

of the audio tapes confirms the officers’ testimony.” Id. The

Court of Appeals found that there was “no evidence that calls

into question the testimony that Doody remained alert and

responsive.” Id.

5800 DOODY v. RYAN

The Court of Appeals rejected Doody’s argument that the

police officers pressured him into a confession:

The officers used a variety of approaches in ques-

tioning Doody. They emphasized Doody’s experi-

ence in the high school honor guard and color guard

and appealed to his sense of honor as a soldier. At

impasses in the interview, the police captain entered

the interrogation room and likened himself to a com-

manding officer in the military, encouraging Doody

to trust and confide in him. The officers feigned

empathy with Doody’s situation and pleaded with

Doody to prove his innocence. The officers also

indicated to Doody that other suspects had impli-

cated him in the temple murders and that Doody’s

best defense would be to explain his version of the

events.

Id. at 447. The Court of Appeals held that “[t]he tactics,

though deceptive in part, were not so egregious as to over-

come Doody’s will and . . . the record contradicts Doody’s

claim on appeal that the method of interrogation induced him

to confess.” Id. at 447-48.

The Arizona Court of Appeals also determined that the

police officers properly provided Doody with the requisite

“clear and understandable” Miranda warnings. Id. at 449.

Specifically, the Court of Appeals concluded that “[t]he offi-

cers read each warning from a standard juvenile form and pro-

vided additional explanations as appropriate.” Id.

Doody challenged the Arizona Court of Appeals decision

in a federal habeas petition, which was denied. However, the

district court granted a certificate of appealability concerning

the voluntariness of Doody’s confession and the adequacy of

the Miranda warnings given Doody.

In Doody v. Schriro, 548 F.3d 847 (9th Cir. 2008), a panel

of this court reversed the district court’s denial of Doody’s

DOODY v. RYAN 5801

habeas petition. Appellee Dora Schriro filed a petition for

rehearing en banc, which we granted. Doody v. Schriro, 566

F.3d 839 (9th Cir. 2009).

II. STANDARDS OF REVIEW

“We review the federal district court’s decision to deny

[Doody’s] habeas petition de novo.” DeWeaver v. Runnels,

556 F.3d 995, 997 (9th Cir. 2009) (citation omitted).

[B]ecause [Doody] filed his habeas petition after the

effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), we must deny

the petition unless the state court’s adjudication of

[Doody’s] claims resulted in a decision that was

either (1) contrary to, or involved an unreasonable

application of, clearly established Federal law, as

determined by the Supreme Court of the United

States, or (2) based on an unreasonable determina-

tion of the facts in light of the evidence presented in

the State court proceeding.

Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir. 2009) (cita-

tion omitted).

Under AEDPA, “[t]he state court unreasonably applies

clearly established federal law if it either 1) correctly identi-

fies the governing rule but then applies it to a new set of facts

in a way that is objectively unreasonable, or 2) extends or

fails to extend a clearly established legal principle to a new

context in a way that is objectively unreasonable.” DeWeaver,

556 F.3d at 997 (citations and internal quotation marks omit-

ted). “Under applicable federal habeas law, state court find-

ings of fact are presumed correct unless rebutted by clear and

convincing evidence or unless based on an unreasonable evi-

dentiary foundation.” Gonzalez v. Pliler, 341 F.3d 897, 903

(9th Cir. 2003) (citations omitted). We review the decision of

the Arizona Court of Appeals as the last reasoned state court

5802 DOODY v. RYAN

decision on the matter. Holley v. Yarborough, 568 F.3d 1091,

1098 (9th Cir. 2009). We apply the unreasonable application

prong of AEDPA because the Arizona Court of Appeals iden-

tified the applicable governing rule for each issue.

III. DISCUSSION

A. Adequacy of the Miranda Warnings

[1] “[T]he prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interro-

gation of the defendant unless it demonstrates the use of pro-

cedural safeguards effective to secure the privilege against

self-incrimination.” Miranda, 384 U.S. at 444. “[T]o reduce

the risk of a coerced confession and to implement the Self-

Incrimination Clause, [the Supreme Court] in Miranda con-

cluded that the accused must be adequately and effectively

apprised of his rights and the exercise of those rights must be

fully honored[.]” Missouri v. Seibert, 542 U.S. 600, 608

(2004) (citations and internal quotation marks omitted). “Mi-

randa conditioned the admissibility at trial of any custodial

confession on warning a suspect of his rights: failure to give

the prescribed warnings and obtain a waiver of rights before

custodial questioning generally requires exclusion of any

statements obtained.” Id. (footnote reference omitted). “Mi-

randa addressed interrogation practices likely to disable an

individual from making a free and rational choice about

speaking, and held that a suspect must be adequately and

effectively advised of the choice the Constitution guaran-

tees[.]” Id. at 611 (citations, alterations, and internal quotation

marks omitted). “The [relevant] inquiry is simply whether the

warnings reasonably convey to a suspect his rights as required

by Miranda.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989)

(citation, alterations, and internal quotation marks omitted).

[2] In its analysis of the adequacy of the Miranda warn-

ings, the Arizona Court of Appeals concluded that “the offi-

cers advised Doody of his Miranda rights in a clear and

DOODY v. RYAN 5803

understandable manner and that Doody made a knowing and

intelligent waiver.” Doody, 930 P.2d at 449.

However, the record actually reflects that the detective’s

administering of the Miranda warnings was far from “clear

and understandable.” The Arizona Court of Appeals com-

pletely failed to consider the detective’s significant deviations

from the printed Miranda form and his repeated minimizing

of the warnings’ significance.

During his administration of the warnings, Detective Riley

emphasized that Doody should not “take them out of context,”

and implied to a juvenile, who had never heard of Miranda,

that the warnings were just formalities. This misdirection was

coupled with repeated assurances that the detectives did not

necessarily suspect Doody of any wrongdoing. Most signifi-

cantly, in informing Doody of the right to counsel, Detective

Riley deviated from the form containing the juvenile Miranda

warnings, and ad libbed that Doody had the right to counsel

if Doody was involved in a crime. Indeed, Detective Riley

instructed Doody that he had the right to counsel “if you were

involved in it . . . but if you were, then that’s what that would

apply to[.]” The implication from this improperly qualified,

unclear, and confusing warning was that Doody only had the

right to counsel if he were involved in a crime. In such a cir-

cumstance, the invocation of one’s right to counsel would be

tantamount to admitting one’s involvement in a crime. Over-

all, the fact that Detective Riley’s explanation of a one-page

Miranda warning form consumed twelve transcribed pages of

text is a testament to the confusion generated by the detec-

tive’s obfuscation. When evaluated against clearly established

Supreme Court precedent, the Miranda warnings were consti-

tutionally deficient. At a minimum, Doody was never clearly

and reasonably informed that he had the right to counsel. See

Miranda, 384 U.S. at 471-72 (“[A]n individual held for inter-

rogation must be clearly informed that he has the right to con-

sult with a lawyer and to have the lawyer with him during

interrogation under the system for protecting the privilege . . .

5804 DOODY v. RYAN

As with the warnings of the right to remain silent and that

anything stated can be used in evidence against him, this

warning is an absolute prerequisite to interrogation . . . .”)

(emphasis added).

[3] The Miranda warnings provided to Doody were defec-

tive because Detective Riley downplayed the warnings’ sig-

nificance, deviated from an accurate reading of the Miranda

waiver form, and expressly misinformed Doody regarding his

right to counsel. In view of clear, convincing and contrary

evidence, the Arizona Court of Appeals’ conclusion that the

Miranda warnings were “clear and understandable” consti-

tuted both an unreasonable determination of the facts and an

unreasonable application of clearly established federal law.

Siebert, 542 U.S. at 608.

Our colleagues in dissent chastise us for reaching these

conclusions, accusing the majority of “once more pay[ing]

mere lip service to AEDPA and then proceed[ing] as though

it does not exist.” Dissenting Opinion, p. 5860. The dissent

would prefer that we simply parrot the findings made during

the state court proceedings and call it a day. However, if we

succumb to the temptation to abdicate our responsibility on

habeas review, we might as well get ourselves a big, fat rub-

ber stamp, pucker up, and kiss The Great Writ good-bye.

As Justice Frankfurter recognized over sixty years ago:

A statement to be voluntary of course need not be

volunteered. But if it is the product of sustained pres-

sure by the police it does not issue from a free

choice. When a suspect speaks because he is over-

borne, it is immaterial whether he has been subjected

to a physical or a mental ordeal. Eventual yielding to

questioning under such circumstances is plainly the

product of the suction process of interrogation and

therefore the reverse of voluntary. We would have to

shut our minds to the plain significance of what here

DOODY v. RYAN 5805

transpired to deny that this was a calculated

endeavor to secure a confession through the pressure

of unrelenting interrogation. The very relentlessness

of such interrogation implies that it is better for the

prisoner to answer than to persist in the refusal of

disclosure which is his constitutional right . . .

Watts v. Indiana, 338 U.S. 49, 53-54 (1949).

The dissent strains mightily to salvage the Miranda warn-

ings given in this case. Yet the inquiry is a simple one:

“whether the warnings reasonably conveyed to a suspect his

rights as required by Miranda.” Duckworth, 492 U.S. at 203

(citation, alterations and internal quotation marks omitted).

The Arizona Court of Appeals went even further, holding that

the warnings “were conveyed in a clear and understandable

manner.” Doody, 930 P.2d at 449. The dissent implicitly

acknowledges the error in the Arizona Court of Appeals’

holding when it concedes that the warnings given were sus-

ceptible to multiple interpretations. See Dissenting Opinion,

pp. 5869-70. It defies reason to conclude that a matter is both

clear and ambiguous. Indeed, at oral argument, even counsel

for the State of Arizona was hard pressed to explain what the

officer’s explanation meant.3

Our colleagues in dissent cite Duckworth and California v.

Prysock, 453 U.S. 355 (1981) in support of their argument

that the Arizona Court of Appeals reasonably applied

Miranda. See Dissenting Opinion, pp. 5864-65. Yet, as the

3

The dissent counters that two of the panel members, who are also

members of the en banc panel, held that the state court “was not objec-

tively unreasonable in concluding the Miranda warnings were adequate

. . .” Dissenting Opinion, p. 5859. However, the panel opinion in no way

validated the Miranda warnings given to Doody. See Doody, 548 F.3d at

862-63 (noting that the Miranda warnings given “did little to actually

inform [Doody] of his rights.”). In any event, arguments before the en

banc court elucidated the unlawfulness of the warnings and the unreason-

ableness of the state court decision to the contrary.

5806 DOODY v. RYAN

dissent admits, “Duckworth addressed different facts from the

ones before us . . .” Id. at 5870. Duckworth did not involve

a juvenile defendant. The officers did not deviate from the

printed form with inaccurate and garbled elaborations. There

was no downplaying of the significance of the warnings. Most

importantly, there was no implication that the right to counsel

was available only if the individual being questioned had

committed a crime. See Duckworth, 492 U.S. at 198-99.

Although the dissent is not as candid in its discussion of

Prysock, that case is similarly inapposite. In Prysock, unlike

in this case, the juvenile’s parents were present. See Prysock,

453 U.S. at 356. As in Duckworth, the officer did not deviate

from the written Miranda warnings with inaccurate and gar-

bled elaborations. As in Duckworth, there was no downplay-

ing of the significance of the Miranda warnings. As in

Duckworth, there was no implication that the right to counsel

was available only if the individual being questioned had

committed a crime. See Prysock, 453 U.S. at 356-57. In sum,

the best cases that can be mustered in support of the dissent’s

argument are readily distinguishable.4

The fact remains that the transcript reveals the use of

Miranda warnings that were the very antithesis of clear. Com-

pounding the lack of clarity was Doody’s express statement

to the detective that he had never heard of Miranda warnings.

Rather than ensuring that Doody understood the warnings, the

detective plowed ahead, as reflected in the following excerpt

from the interrogation transcript:

4

The dissent halfheartedly cites Cooper v. Dupnik, 963 F.2d 1220 (9th

Cir. 1992), overruled by Chavez v. Martinez, 538 U.S. 760 (2003), as a

favorable comparative to Detective Riley’s downplaying of the Miranda

warnings. See Dissenting Opinion, p. 5872. In Cooper, the officer admit-

ted that he wanted the subject to perceive the Miranda warnings as a joke.

See Cooper, 963 F.2d at 1228. However, the facts in Cooper are not that

different. The only thing missing in this case is an admission from the

detective.

DOODY v. RYAN 5807

Riley: Any questions?

Doody: No.

Riley: Okay. Okie dokie.

Doody: Oh yeah what’s this for? (apparently refer-

ring to the Miranda form)

Riley: Ah, okay I’ll, again, I’m gonna go in and, and

explain some things to you. Ah, in the next one

states that if you cannot afford an attorney, you’d

have the right to have one appointed for you . . .

Doody Interrogation Transcript, Tape 1, p. 10.

Despite Doody’s expressed lack of knowledge concerning

the Miranda warnings and Doody’s subsequently conveyed

confusion in the question “what’s this for?”, Detective Riley

ignored Doody’s query, and moved on to the next item on his

printed list.

Detective Riley injected additional confusion into the pro-

cess by informing Doody that the Miranda warnings were for

the mutual benefit of Doody and the officers. Not once, not

twice, but three times Detective Riley represented to Doody

that the warnings were mutually beneficial. See Doody Inter-

rogation Transcript, Tape 1, p. 2. “It’s only something for, for

your benefit and for our benefit, okay,” see also id. at p. 3

“[A]ll it is, is its [sic] something that’s ah for your benefit, as

well as four our’s [sic], okay,” id. at p. 4 “it’s for your benefit,

it’s for your protection and for our’s [sic] as well okay?” This

repeated misstatement of the purpose of Miranda warnings

carries a drastically different connotation than if the detective

had given Doody a straight-forward explanation that the

warnings were given for Doody’s protection, to preserve valu-

able constitutional rights.

5808 DOODY v. RYAN

The dissent’s proposition that the warnings could be con-

strued as reinforcing that Doody was “faced with a phase of

the adversary system,” Dissenting Opinion, p. 5872, is more

wishful thinking than fact. The detective’s very words belie

such a construction. Neither was the detective’s foray a minor

“deviation” from the printed warnings. Rather, the detective’s

garbled, rambling, inaccurate, obfuscatory advisement con-

sumed twelve pages of transcript. Although no magic words

are required, Miranda warnings must “clearly inform[ ]” the

individual of his rights. Miranda, 384 U.S. at 471. The dis-

sent’s best efforts notwithstanding, the transcript speaks for

itself, revealing a patent lack of clarity. The Arizona Court of

Appeals’ ruling to the contrary unreasonably applied Miran-

da’s requirement that the warnings “clearly inform[ ].”

Miranda, 384 U.S. at 471.

We agree with our concurring colleague that the Supreme

Court’s decision in Powell does not alter the analysis or out-

come of this case. See Concurring Opinion, p. 5847. Indeed,

our dissenting colleagues also acknowledge that Powell does

not change the way this case should be analyzed. See Dissent-

ing Opinion, p. 5866.

In Powell, the Miranda warning form consisted of the fol-

lowing text:

You have the right to remain silent. If you give up

the right to remain silent, anything you say can be

used against you in court. You have the right to talk

to a lawyer before answering any of our questions.

If you cannot afford to hire a lawyer, one will be

appointed for you without cost and before any ques-

tioning. You have the right to use any of these rights

at any time you want during this interview.

130 S. Ct. at 1200 (citations omitted).

[4] The warning in Powell was read verbatim, with no

elaboration. The latter fact appears to have been important to

DOODY v. RYAN 5809

the Supreme Court’s determination that the warning was con-

sistent with the Miranda requirements. In discussing its ruling

in Prysock, the Supreme Court explained that it upheld the

Miranda warnings in that case because “nothing in the warn-

ings . . . suggested any limitation on the right to the presence

of appointed counsel different from the clearly conveyed

rights to a lawyer in general . . . Id. at 1204 (citation omitted).

[5] Quite the opposite is true about the Miranda warnings

given to Doody. In the midst of giving Doody his warnings,

Detective Riley expressly and affirmatively limited those

warnings by informing Doody that he was only entitled to

counsel if he was involved in a crime. In addition, as dis-

cussed above, Detective Riley repeatedly minimized the

importance of the Miranda warnings, deviated from an accu-

rate reading of the printed form and obfuscated the meaning

of the warnings. Because the facts of this case differ so mark-

edly from those in Powell, we continue in our view that the

Miranda warnings provided to Doody did not clearly convey

his rights to an attorney, and that the Arizona Court of

Appeals unreasonably applied Miranda in ruling to the con-

trary.

Our colleagues in dissent recite the well-established

requirement that “an accused must be ‘clearly informed’ of

his rights” prior to interrogation. Dissenting Opinion, p. 5860

(quoting Miranda, 384 U.S. at 471). Yet, in the immediately

following pages, the dissent strains to justify the Miranda

warnings given to Doody that came nowhere close to meeting

the Miranda standard mandating clarity.

Simply stating that something is so does not make it so.

Indeed, no amount of repetition can change the fact that the

downplayed, obfuscated, garbled warnings given to Doody

ran afoul of the clarity mandated by Miranda. Detective

Riley’s twelve-page “explanation” of a simple one-page form

was the very antithesis of clarity. The officers in Powell

administered the standard Miranda warnings from a form

5810 DOODY v. RYAN

with no elaboration. See Powell, 130 S.Ct. at 1200. The form

failed to explicitly inform the suspect that the right to counsel

existed during questioning as well as before questioning. See

id. at 1205. In contrast, Detective Riley went beyond adminis-

tering the standard form, consuming twelve transcribed pages

in minimizing the importance of the Miranda warnings and

affirmatively advising Doody that he had a right to counsel if

he was involved in a crime.

Our dissenting colleagues seek Supreme Court authority

that would have guided the Arizona Court of Appeals to the

conclusion that Detective Riley’s Miranda delivery imper-

missibly downplayed the significance of the warnings. See

Dissenting Opinion, pp. 5871-72. To be sure, the Arizona

Court of Appeals need only have referred to Miranda itself.

In Miranda, the Supreme Court clearly established the basic

protection that “an individual held for interrogation must be

clearly informed that he has the right to consult with a lawyer

and to have the lawyer with him during interrogation . . .”

Miranda, 384 U.S. at 471 (emphasis added). The Supreme

Court articulated the reasoning underlying the need for such

warnings:

We have concluded that without proper safeguards

the process of in-custody interrogation of persons

suspected or accused of crime contains inherently

compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak

where he would not otherwise do so freely. In order

to combat these pressures and to permit a full oppor-

tunity to exercise the privilege against self-

incrimination, the accused must be adequately and

effectively apprised of his rights and the exercise of

those rights must be fully honored.

Id. at 467 (emphases added). Given the Supreme Court’s

articulation of the vital nature of Miranda warnings, it is

inconceivable that Miranda stands for the dissent’s proffered

DOODY v. RYAN 5811

proposition that a police officer may misstate the right to

counsel and denigrate the importance of the very protections

for which Miranda provides. Logic dictates otherwise. See id.

at 476 (“The requirement of warnings and waiver of rights is

a fundamental with respect to the Fifth Amendment privilege

and not simply a preliminary ritual to existing methods of

interrogation.”).

Our colleagues in dissent accuse us of ignoring the “bind-

ing constitutional concept” of “comity.” Dissenting Opinion,

p. 5868. However, comity does not command abdication.

Rather, as Article III judges, we have a responsibility to grant

habeas relief if Supreme Court precedent has been unreason-

ably applied. See Miller-El v. Cockrell, 537 U.S. 322, 340

(2003) (“Even in the context of federal habeas, deference does

not imply abandonment or abdication of judicial review. Def-

erence does not by definition preclude relief. A federal court

can disagree with a state court’s . . . determination and, when

guided by AEDPA, conclude the decision was unreasonable.

. .”) (emphasis added).

The dissent quotes liberally from the Supreme Court’s

recent decision in Harrington v. Richter, 131 S. Ct. 770

(2011) to emphasize the high standard governing habeas

review. See, e.g., Dissenting Opinion at pp. 5868. The major-

ity does not quarrel with that standard. Indeed, this court has

frequently applied that standard to deny habeas relief. See,

e.g., McNeal v. Adams, 623 F.3d 1283, 1287-88 (9th Cir.

2010); Norris v. Morgan, 622 F.3d 1276, 1287-88 (9th Cir.

2010); McCormick v. Adams, 621 F.3d 970, 977 (9th Cir.

2010); Cheney v. Washington, 614 F.3d 987, 996-98 (9th Cir.

2010); Murdoch v. Castro, 609 F.3d 983, 995-96 (9th Cir.

2010) (en banc); Ponce v. Felker, 606 F.3d 596, 606 (9th Cir.

2010).

[6] However, when police officers interrogating a juvenile

transform Miranda’s warnings into a twelve-page rambling

commentary that is in alternating part misleading and unintel-

5812 DOODY v. RYAN

ligible, we believe that “there is no possibility fairminded

jurists could disagree,” Richter, 131 S.Ct. at 786, that the sus-

pect was not informed of his rights in clear terms, as Miran-

da’s holding requires. See Miranda, 384 U.S. at 467-68 (“[I]f

a person in custody is to be subjected to interrogation, he must

first be informed in clear and unequivocal terms that he has

the right to remain silent.”) (emphasis added); see also id. at

471 (“[W]e hold that an individual held for interrogation must

be clearly informed that he has the right to consult with a law-

yer and to have the lawyer with him during interrogation.”)

(emphasis added). Thus, whatever the applicable standard for

reviewing the state court decision, the violation of Doody’s

rights in this case is so absolutely clear as to compel that the

Writ be granted.5, 6

B. Voluntariness of Doody’s Confession7

5

We think it prudent to note that the Supreme Court expressly prefaced

its ruling in Richter with the statement that the issue it decided was

whether the standard articulated in 28 U.S.C. § 2254(d) was “adhered to

. . . in this case as it relates to ineffective-assistance claims judged by the

standard set forth in Strickland . . .” Richter, 131 S.Ct. at 780. In its analy-

sis, the Supreme Court focused on the triple deference applicable — for

habeas review, for the general rule articulated in Strickland, and for the

deference to counsel’s representation. See id. at 788. No such triple defer-

ence is applicable in a Miranda case, which addresses simply whether

officers provided four specific warnings, as is required by the Supreme

Court’s clearly established precedent. Those four warnings were indispu-

tably not given to Doody.

6

The dissent “presumes” that some of the sixteen Arizona factfinders

were fairminded. Dissenting Opinion, p. 5887-88 (emphasis added). How-

ever, if “presumed” fairmindedness were the standard, relief under

AEDPA would be nonexistent. Indeed, the Supreme Court instructed in

Richter that the standard is whether “the state court’s ruling . . . was so

lacking in justification that there was an error well understood and com-

prehended in existing law beyond any possibility of fairminded disagree-

ment.” Richter, 131 S.Ct. at 786-87. The emphasis is clearly on

application of law rather than on counting noses.

7

Our dissenting colleagues dismiss our discussion of the voluntariness

of Doody’s confession as gratuitous. See Dissenting Opinion, p. 5873. To

DOODY v. RYAN 5813

[7] In determining the voluntariness of a confession, a

court “examines whether a defendant’s will was overborne by

the circumstances surrounding the giving of a confession.”

Dickerson v. United States, 530 U.S. 428, 434 (2000) (citation

and internal quotation marks omitted). “The due process test

takes into consideration the totality of all the surrounding cir-

cumstances — both the characteristics of the accused and the

details of the interrogation.” Id. (citations and internal quota-

tion marks omitted). It is not sufficient for a court to consider

the circumstances in isolation. Instead, “all the circumstances

attendant upon the confession must be taken into account.”

Reck v. Pate, 367 U.S. 433, 440 (1961) (citations omitted).

[8] As the Supreme Court has observed, “[t]he application

of these principles involves close scrutiny of the facts of indi-

vidual cases.” Gallegos v. Colorado, 370 U.S. 49, 52 (1962)

(emphasis added). “The length of the questioning, the use of

fear to break a suspect, [and] the youth of the accused are

illustrative of the circumstances on which cases of this kind

turn.” Id. (citations omitted). An additional relevant factor is

“the failure of police to advise the defendant of his rights to

remain silent and to have counsel present during custodial

interrogation.” Withrow, 507 U.S. at 693-94 (citations omit-

ted). Thus, we ask: “Is the confession the product of an essen-

tially free and unconstrained choice by its maker? If it is, if

he has willed to confess, it may be used against him. If it is

not, if his will has been overborne and his capacity for self-

determination critically impaired, the use of his confession

offends due process.” Schneckloth v. Bustamonte, 412 U.S.

218, 225-26 (1973) (citation omitted).

the contrary, voluntariness is a separate and independent ground for rever-

sal of the Arizona Court of Appeals’ ruling, although the voluntariness

argument also provides additional support for our conclusion regarding the

inadequacy of the Miranda warnings Doody received. See Withrow v. Wil-

liams, 507 U.S. 680, 693-94 (1993) (discussing the interrelatedness of the

voluntariness and Miranda inquiries).

5814 DOODY v. RYAN

[9] The fact that Doody was a juvenile is of critical impor-

tance in determining the voluntariness of his confession. The

Supreme Court “has emphasized that admissions and confes-

sions of juveniles require special caution.” In re Gault, 387

U.S. 1, 45 (1967). In Haley v. Ohio, 332 U.S. 596, 599-600

(1948), the Supreme Court observed:

What transpired would make us pause for careful

inquiry if a mature man were involved. And when,

as here, a mere child-an easy victim of the law-is

before us, special care in scrutinizing the record

must be used. Age 15 is a tender and difficult age for

a boy of any race. He cannot be judged by the more

exacting standards of maturity. That which would

leave a man cold and unimpressed can overawe and

overwhelm a lad in his early teens. This is the period

of great instability which the crisis of adolescence

produces. A 15-year-old lad, questioned through the

dead of night by relays of police, is a ready victim

of the inquisition. Mature men possibly might stand

the ordeal from midnight to 5 a.m. But we cannot

believe that a lad of tender years is a match for the

police in such a contest.

Although Haley involved a fifteen-year old juvenile, the

principles underlying the Supreme Court’s observation apply

equally to Doody’s circumstances given the intensity of his

interrogation and his isolation during twelve-plus sleep-

deprived hours of continuous questioning. See Gilbert v. Mer-

chant, 488 F.3d 780, 791 (7th Cir. 2007) (“[A]s the Supreme

Court explained in Gallegos v. Colorado, a teenager may not

on his own be able to fully appreciate what is at stake when

the police seek to question him[.]”).

[10] The audiotapes of Doody’s interrogation are disposi-

tive in this case, as we are not consigned to an evaluation of

a cold record, or limited to reliance on the detectives’ testi-

mony. We can readily discern from the audiotapes an extraor-

DOODY v. RYAN 5815

dinarily lengthy interrogation of a sleep-deprived and

unresponsive juvenile under relentless questioning for nearly

thirteen hours by a tag team of detectives, without the pres-

ence of an attorney, and without the protections of proper

Miranda warnings. The intensive and lengthy questioning was

compounded by Doody’s lack of prior involvement in the

criminal justice system, his lack of familiarity with the con-

cept of Miranda warnings, and the staging of his questioning

in a straight-back chair, without even a table to lean on. None

of these considerations were even mentioned by the Arizona

Court of Appeals.

The dissent denigrates the majority for, in its view, “attem-

pt[ing] to paint Doody as a tender youth, lacking intellect or

sophistication, younger than his chronological age of

seventeen-and one-half years.” Dissenting Opinion, p. 5874.

However, it is not the majority that has set the standard for

considering the juvenile status of a subject. The Supreme

Court has consistently reminded us that “admissions and con-

fessions of juveniles require special caution.” In re Gault, 387

U.S. at 45; see also Haley, 332 U.S. at 599-600; Gallegos,

370 U.S. at 53 (noting that a teenager may not be fully appre-

ciative of the high stakes involved when “questioned through

the dead of night by relays of police”). More importantly, the

facts, as supported by the record in this case, reveal that

Doody was indeed an unsophisticated teenager.

As recently as 2005, the Supreme Court reminded us of the

special concern with which we should approach issues involv-

ing “juveniles under 18.” The Supreme Court declared that

“as any parent knows and as the scientific and sociological

studies . . . tend to confirm, a lack of maturity and an underde-

veloped sense of responsibility are found in youth more often

than in adults and are more understandable among the young.

These qualities often result in impetuous and ill-considered

actions and decisions.” Roper v. Simmons, 543 U.S. 551, 569

(2005) (citations, alteration, and internal quotation marks

omitted). “In recognition of the comparative immaturity and

5816 DOODY v. RYAN

irresponsibility of juveniles, almost every State prohibits

those under 18 years of age from voting, serving on juries, or

marrying without parental consent.” Id. (citation omitted).

Apparently, the State of Arizona holds a similar view of the

inability of juveniles to fully appreciate the magnitude of vari-

ous and sundry life experiences. See Porter v. Triad of Ariz.,

52 P.3d 799, 802 (Ariz. Ct. App. 2002) (“[I]n Arizona, a

minor is never allowed to bring an action in his own name but

must always sue through a representative whatever the cause

of action.”) (citation omitted); First Nat’l Bank of Ariz. v.

Taylor, 426 P.2d 663, 666 (Ariz. Ct. App. 1967) (“[M]inor

beneficiaries cannot consent to the termination of a trust for

their benefit.”) (citations omitted); A.R.S. § 4-101 (18) (estab-

lishing the “legal drinking age” as “twenty-one years of age

or older”); A.R.S. § 28-3320 (A)(5) (providing for suspension

of driver’s license of individual “under eighteen years of age”

for possessing or purchasing materials “used for graffiti”);

A.R.S. § 5-504 (B)(5) (prohibiting individuals under eighteen

years of age from selling lottery tickets); A.R.S. § 5-515.02

(prohibiting individuals under twenty-one years of age from

purchasing lottery tickets); A.R.S. § 5-601.02 (w)(1) (prohib-

iting persons under twenty-one years of age from gambling);

A.R.S. § 8-101 (4) (defining “child” as “any person under

eighteen years of age”); A.R.S. § 9-500.26 (regulating entry

from Arizona into Mexico “by any resident . . . who is under

eighteen years of age”); A.R.S. § 13-3111 (prohibiting minors

under eighteen years of age from possessing firearms); A.R.S.

§ 13-3403 (A)(2) (prohibiting sale or transfer of “a vapor-

release substance containing a toxic substance to a person

under eighteen years of age.”); A.R.S. § 13-3403.01 (A) (pro-

hibiting the sale or delivery of a container containing nitrous

oxide “to a person under eighteen years of age”); A.R.S. § 13-

3513 (prohibiting sale or distribution in vending machines of

materials harmful to individuals under the age of eighteen);

A.R.S. § 13-3721 (A)(1) (prohibiting tattooing or body pierc-

ing “of a person who is under eighteen years of age without

the physical presence of the parent or legal guardian . . .”);

DOODY v. RYAN 5817

A.R.S. § 15-805 (B)(1) (requiring presence of parent or per-

son having custody when a citation for not attending school

“is issued to a child under eighteen years of age”); A.R.S.

§ 17-362 (A) (prohibiting any person “under eighteen years of

age” from serving as a licensed guide); A.R.S. § 23-231 (pro-

hibiting persons under the age of eighteen from being

employed in certain occupations unless a variance is

obtained); A.R.S. § 25-102 (A) (providing that “[p]ersons

under eighteen years of age shall not marry without the con-

sent of the parent or guardian having custody of such per-

son”); A.R.S. § 28-1555 (A) (“A court shall not dispose of a

moving traffic violation charge arising from the issuance of a

traffic citation to a juvenile under eighteen years of age unless

a parent or guardian of the juvenile appears in court with the

juvenile at the time of the disposition of the charge.”); A.R.S.

§ 32-558 (requiring private schools to enter into a contract

with students, and providing that “[a] contract between a

school and a student shall bear the signature of a school offi-

cial and the student or parent or guardian if the student is

under eighteen years of age”); A.R.S. 36-798.01 (limiting

access of persons under eighteen to tobacco products); A.R.S.

§ 44-1602 (H) (“A dealer shall not purchase any precious item

from any person under eighteen years of age unless the person

is accompanied by a parent or guardian who must submit

identification . . .”); A.R.S. § 11-251(40) (permitting board of

supervisors to impose curfew on minors); A.R.S. § 28-3151,

Op. Atty. Gen. No. 67-25-L (providing that a chauffeur’s

license cannot be issued to a person under eighteen years of

age); A.R.S. § 36-333.03 (A) (requiring parent or legal guard-

ian of a person under eighteen years of age to petition court

to establish minor’s date of birth, place of birth, and parent-

age); A.R.S. § 36-673 (D) (“A minor child [under eighteen

years of age] shall not be immunized without the informed

consent of the parent, guardian or person in loco parentis of

the child . . .”).

In sum, under the law, and as a matter of fact and common

knowledge, Doody’s participation in ROTC, his not-yet-

5818 DOODY v. RYAN

completed high school studies, his work as a grocery store

bagger, his ability to speak English as a second language and

his lack of mental disability in no way lessen the Supreme

Court’s instruction regarding the special caution with which

we review a confession extracted from a teenager.

The dissent makes the same mistake the Arizona Court of

Appeals made — ticking off the list of circumstances rather

than actually considering them in their totality. Lest the dis-

sent remain “confounded” by this unremarkable conclusion,

Dissenting Opinion, p. 5886, we liken the Court of Appeals’

superficial approach to the listing of a number of mental con-

ditions without explaining how and the extent to which those

conditions affect an individual’s ability to reason. See, e.g.,

Earp v. Ornoski, 431 F.3d 1158, 1178 (9th Cir. 2005), as

amended (noting the expert’s conclusion of the nature of the

mental impairment and how that impairment affected the indi-

vidual). The Court of Appeals’ approach is also similar to the

state court analysis we criticized in Barker v. Fleming, 423

F.3d 1085 (9th Cir. 2005), where we noted the “crucial”

requirement from the Supreme Court of a cumulative assess-

ment when determining the materiality of Brady evidence. Id.

at 1094. We observed that “the Washington Supreme Court

did not conduct [a cumulative] analysis. Instead, the court

separately analyzed the . . . evidence . . . on a piece-meal basis

and then ended its analysis.” Id. Likewise, the Arizona Court

of Appeals listed the circumstances of Doody’s interrogation

separately “on a piece-meal basis and then ended its analysis.”

Id.

Most disturbing is the dissent’s reliance on the Arizona

Court of Appeals’ justification that “[t]he detectives allowed

Doody to take bathroom breaks and offered him food and

drinks throughout the interrogation.” Dissenting Opinion, p.

5875. Never mind that the first break was over nine hours into

the interrogation, after Doody’s will was overborne. That fact

was not discussed at all by the Arizona Court of Appeals. The

court also completely ignored the fact that Doody was not a

DOODY v. RYAN 5819

native of this country, other than to note that his English was

“lightly accented.” See Doody, 940 P.2d at 445. The court

never even mentioned the number of officers involved in the

interrogation, the tag team approach used, or the false confes-

sions that the same police task force had extracted previously

from the Tuscon suspects.8 Doody’s statements were simply

not voluntary given the totality of the circumstances. For the

most part, Doody was virtually non-responsive despite being

peppered with a barrage of questions, exhortations, and com-

mands. This pattern recurred throughout the interrogation.

The Arizona Court of Appeals’ ruling was also premised on

an unreasonable determination of several pivotal facts. For

example, the Arizona Court of Appeals held that “[e]ach of

the officers involved in the interrogation testified at the sup-

pression hearing that Doody remained alert and responsive

throughout the interrogation and did not appear overtired or

distraught. Our review of the audio tapes confirms the offi-

cers’ testimony.” Id. at 446. The court of appeals also deter-

mined that “[t]he record, both at the time of the suppression

hearing and after trial, includes no evidence that calls into

question the testimony that Doody remained alert and respon-

sive.” Id. (emphasis added). However, review of the audi-

otapes reveals a completely different scenario. During the

relentless questioning by the detectives, Doody was anything

but “responsive.” In fact, the detectives utilized relentless

interrogation tactics precisely because Doody remained unre-

sponsive and did not provide the answers they sought. At

8

The dissent concedes that “the state court did not describe the physical

surroundings” of the interrogation. Dissenting Opinion, p. 5877 n.7. In an

effort to fill this void, the dissent describes the physical surroundings as

“what had been the office of a Maricopa County attorney, roughly ten feet

by eighteen feet in size, well-lit, with carpeted floors and padded chairs

. . .” Id. The dissent completely fails to mention that the chair where

Doody was seated had a straight, immobile back. There was no table or

desk on which Doody could lean or rest his head. For almost thirteen

hours, Doody was required to sit completely upright while being interro-

gated by a tag team of officers.

5820 DOODY v. RYAN

approximately 3:00 a.m., the three officers bombarded Doody

with questions in the face of almost complete silence from

Doody. They asked him five times who devised the plan to go

to the temple. Doody did not answer. They inquired fourteen

times whether Caratachea came up with the idea. Doody

responded only once — that he did not know. They asked

twenty-five times whether Doody was present at the temple.

Doody was silent. During this sequence, lasting approxi-

mately twenty minutes, Doody answered one out of forty-five

questions. That is a far cry from responsive. Indeed, at one

point Doody was admonished to “stop freezing up.”

The next series of questions addressed whether Doody’s

failure to respond was due to threats from someone. As an ini-

tial matter, we note that this line of questioning completely

undermines the detectives’ testimony and the Court of

Appeals’ conclusion that Doody was responsive. If Doody

were indeed responsive, there would be no need to question

him regarding why he was not responding. Doody responded

to a few of these questions, but again fell silent when the

detectives inquired seven times about whose idea it was to go

to the temple. Doody remained silent for eight minutes in the

face of thirty questions in a row. Doody only broke his silence

when Detective Sinsabaugh asked him nine times whether he

remembered the detective’s name. Doody’s answers to these

questions from Detective Sinsabaugh were barely audible.

The suppression hearing testimony confirms that Doody

was not “alert and responsive.” Although Detective Riley tes-

tified that Doody was alert, this was not the full extent of his

suppression hearing testimony. Detective Riley confirmed

that there were extended periods during the interrogation

when Doody remained unresponsive, when Doody’s posture

“deteriorated,” and when Doody looked down at the ground

for long periods of time. Detective Riley also acknowledged

that there were several pages of transcript reflecting that

Doody did not respond to his continuous questioning.

DOODY v. RYAN 5821

[11] In view of the fact that we are considering the ques-

tioning of a sleep-deprived juvenile subjected to nearly thir-

teen hours of uninterrupted interrogation, the degree of

Doody’s responsiveness is a pivotal concern. The audiotapes

reveal that the Arizona Court of Appeals’ factual determina-

tion that there was no evidence indicating Doody’s non-

responsiveness was “rebutted by clear and convincing evi-

dence.” Gonzalez, 341 F.3d at 903 (citations omitted); see

also Wiggins v. Smith, 539 U.S. 510, 528 (2003) (“This partial

reliance on an erroneous factual finding further highlights the

unreasonableness of the state court’s decision.”). Indeed, the

Arizona Court of Appeals acknowledged that “Doody did not

speak for long periods during the interrogation.” Doody, 930

P.2d at 447. This acknowledgment directly contravenes the

conclusion that Doody was responsive.

The dissent concedes, as it must, that “Doody did not speak

for long periods during the interrogation.” Dissenting Opin-

ion, p. 5883 (quoting Doody, 930 P.2d at 447) (emphasis

added). Yet, in a heroic effort to rehabilitate the unreasonable

factual finding that Doody was nevertheless alert and respon-

sive, the dissent relies on “visual clues” to contradict the tale

of the silent audiotapes. Id. The dissent’s leap in logic com-

pletely fails to account for the officers’ continuous badgering

of Doody for his failure to respond. If he were in fact

responding, why would the detectives repeatedly question him

regarding his lack of response and urge him to reply? More

importantly, the dissent completely ignores Detective Riley’s

testimony describing the “visual clues” of how Doody’s “pos-

ture began to deteriorate. His attentiveness also deteriorated.

And his eye contact dropped to where he would look at the

ground for long periods of time . . .” Even assuming that there

was equivocal evidence of responsiveness, the Arizona Court

of Appeals’ finding that no evidence supported Doody’s claim

was unreasonable.

The Arizona Court of Appeals also concluded that “the

audio tapes reveal a courteous, almost pleading style of ques-

5822 DOODY v. RYAN

tioning during most of the interview.” Doody, 930 P.2d at

446. To the contrary, the audiotapes demonstrate that the

detectives’ relentless and uninterrupted interrogation of an

unresponsive juvenile was far from “courteous.” Instead, the

detectives continuously demanded, over and over without a

response from Doody, answers to their questions. The detec-

tives’ unyielding demands for answers clearly rebut the Ari-

zona Court of Appeals’ determination regarding the

interrogation’s tone and convince us that Doody’s confession

was not “the product of an essentially free and unconstrained

choice.” See Schneckloth, 412 U.S. at 225-26. Although the

detectives sometimes couched their questions in “pleading”

language, their tones were far from pleasant, varying from

“pleading” to scolding to sarcastic to demeaning to demand-

ing. Regardless of tone, over twelve hours of insistent ques-

tioning of a juvenile by tag teams of two, three and four

detectives became menacing and coercive rather than “courte-

ous.” Tellingly, some of the detectives’ statements, particu-

larly those immediately preceding the confession, informed

Doody that he had to answer their questions. Any doubt

regarding the unreasonableness of the state court’s factual

determination is easily resolved by listening to the audiotapes.

Indeed, at times the tones of the detectives are downright

chilling.

Let us not forget that this same task force questioned four

adult men and, undoubtedly using the same tactics, procured

what the State concedes were false confessions from all four.

That the will of four adult men was overborne to the extent

that they confessed to murders they did not commit further

persuades us that the will of this young teen was similarly

overborne. And that is the real elephant in the room, an ele-

phant that both the Arizona Court of Appeals and the dissent

studiously ignore — the undisputed evidence in the record

that this same task force, undoubtedly using the same “courte-

ous, almost pleading style of questioning” extracted false con-

fessions from four adults for the same crime with which

DOODY v. RYAN 5823

Doody was charged. Is there any doubt that the wills of those

individuals were overborne?9

[12] The existence of the false confessions, careful analy-

sis of the interrogation tapes and due consideration of the

totality of the circumstances foreclose an intellectually honest

conclusion that the finding of voluntariness was reasonable.

The portions of the interrogation tapes quoted above may

appear lengthy. However, they are literally just snippets of the

entire interrogation, which consumed seventeen tapes.10 These

quotes are excerpts from only two of the tapes, and they are

included as a sketch of the actual interrogation. They reveal

a picture that bears no resemblance to the avuncular scene

painted by the Arizona Court of Appeals. The Arizona Court

of Appeals unreasonably minimized the length of Doody’s

interrogation, an important factor in the voluntariness analy-

sis. See Gallegos, 370 U.S. at 52. The Arizona Court of

Appeals determined that Doody confessed voluntarily

because, “[a]lthough the entire interrogation lasted approxi-

mately thirteen hours, Doody admitted he had borrowed Car-

atachea’s rifle at the time of the temple murders after

approximately two and one-half hours of questioning.”

Doody, 930 P.2d at 446. Not so. While admitting that he and

Garcia borrowed the rifle, Doody identified the time frame as

“close to the end of June,” more than a month before the mur-

ders. Doody Interrogation Transcript, Tape #3, p. 30. There-

fore, contrary to the finding of the Arizona Court of Appeals,

Doody decidedly did not admit to involvement in the temple

murders after two and one-half hours of questioning. Indeed,

as reflected in the audiotapes, Doody’s admission to any

9

Although our dissenting colleagues attempt to minimize the import of

the false confessions, see Dissenting Opinion, p. 5885-86 n.11, they can-

not deny their existence.

10

Contrary to the dissent’s implication, see Dissenting Opinion, p. 5887,

members of the Arizona courts were not the only judges who “listened to

the tapes in toto.”

5824 DOODY v. RYAN

involvement occurred only after six-plus hours of intense

interrogation by the detectives. The conclusion that Doody’s

admission occurred after two and one-half hours of question-

ing finds no support in the record.

Our colleagues in dissent reason that, “although the inter-

view lasted nearly thirteen hours, Doody made an inculpatory

statement after about two and one-half hours by admitting to

borrowing the murder weapon . . .” Dissenting Opinion, pp.

5874. The dissent later clarifies that the Arizona Court of

Appeals’ finding that “Doody admitted he had borrowed Car-

atachea’s rifle at the time of the temple murders” was a rea-

sonable factual finding. Dissenting Opinion, p. 5886 (citing

Doody, 930 P.2d at 446) (emphasis added). In fact, Doody

admitted to borrowing the rifle more than thirty days before

the murder. A finding that Doody admitted possessing the

murder weapon at the time of the crime is patently unreason-

able when the admission actually addressed a time period sub-

stantially in advance of the date of the crime. The dissent

resorts to name-calling, accusing the majority of being “disin-

genuous” and “re-writ[ing] the state court’s findings in order

to declare them patently unreasonable.” Dissenting Opinion,

p. 5886 (internal quotation marks omitted). However, there is

no need to re-write the state court’s finding on this point. No

amount of sugarcoating can obscure the fact that the state

court unreasonably found that Doody admitted possessing the

murder weapon at the time of the murders when he made no

such admission.

There is also no record support for the Court of Appeals’

trivializing of the hours of interrogation after Doody’s admis-

sion that he was involved in the events at the temple. The

audiotapes reveal that the detectives continued to use the

same interrogation techniques after Doody’s one-word admis-

sion. The detectives continued to pressure Doody for details

DOODY v. RYAN 5825

concerning the events at the temple. By the end of the interro-

gation, Doody was sobbing almost hysterically.11

[13] The prosecution used the details of his confession

against Doody during trial to corroborate the testimonies of

the prosecution’s key witnesses. The hours of interrogation

subsequent to Doody’s confession to being present at the tem-

ple, therefore, were of critical importance to the case against

Doody. The Arizona Court of Appeals’ contrary determina-

tion was objectively unreasonable. See Taylor v. Maddox, 366

F.3d 992, 1008 (9th Cir. 2004) (“[F]ailure to take into account

and reconcile key parts of the record casts doubt on the pro-

cess by which the finding was reached, and hence on the cor-

rectness of the finding.”) (citation omitted).

[14] Finally, the Arizona Court of Appeals’ voluntariness

ruling unreasonably applied clearly established federal law

because it analyzed the individual circumstances of the inter-

rogation without weighing the totality of the circumstances.

As discussed above, the Arizona Court of Appeals failed to

consider “whether [Doody’s] will was overborne by the cir-

cumstances surrounding the giving of a confession.” Dicker-

son, 530 U.S. at 434 (citation and internal quotation marks

omitted). “The determination depends upon a weighing of the

circumstances of pressure against the power of resistance of

the person confessing.” Id. (citation, alteration, and internal

quotation marks omitted) (emphasis added).

[15] Rather than weighing all the circumstances, the Ari-

zona Court of Appeals dismissed each relevant fact seriatim

without considering whether Doody’s juvenile will was over-

borne by the relentless questioning of a tag team of detectives

over the course of an interrogation that lasted, virtually with-

out interruption and despite Doody’s non-responsiveness,

11

This tale of the tape completely refutes the dissent’s characterization

of Doody as “almost chatty in the last several hours of the interrogation.”

Dissenting Opinion, p. 5883 n.10.

5826 DOODY v. RYAN

from approximately 9:30 p.m. until 10:00 a.m. As noted

above, the Arizona Court of Appeals failed to consider in

totality circumstances including Doody’s youth, his lack of

prior involvement with the criminal justice system, his lack of

familiarity with Miranda warnings, his non-native status, the

length of the interrogation with Doody seated in a straight-

back chair for over nine hours without a break, the lack of

adequate Miranda warnings, the tag team tactics used by the

detectives, the number of interrogators, Doody’s persistent

non-responsiveness, and the previous false confessions. We

recognize that the Arizona Court of Appeals determined that

the Miranda warnings were “clear and understandable,”

Doody, 930 P.2d at 449, thereby explaining its failure to

weigh that particular aspect of the interrogation. However, no

apparent justification can be discerned for the failure to actu-

ally weigh, rather than simply list, the other factors that have

been delineated for consideration by the United States

Supreme Court. This failure of the Arizona Court of Appeals

was an unreasonable application of established authority

requiring consideration of the total circumstances surrounding

the interrogation, and it renders the conclusion of voluntari-

ness infirm. See Reck, 367 U.S. at 440-42 (addressing the

“combination of circumstances”); see also Gallegos, 370 U.S.

at 52 (condemning interrogators “serving in relays”).

In determining the voluntariness of a confession, “[t]he due

process test takes into consideration the totality of all the sur-

rounding circumstances-both the characteristics of the

accused and the details of the interrogation. . . . The determi-

nation depends upon a weighing of the circumstances of pres-

sure against the power of resistance of the person confessing.”

Dickerson, 530 U.S. at 434 (citations, alterations, and internal

quotation marks omitted) (emphasis added). The required

weighing of the circumstances was not performed by the state

court.

The dissent’s argument notwithstanding, the jury’s volun-

tariness determination is not dispositive. In Jackson v. Denno,

378 U.S. 368, 390 (1964), the Supreme Court explained:

DOODY v. RYAN 5827

Expanded concepts of fairness in obtaining confes-

sions have been accompanied by a correspondingly

greater complexity in determining whether an

accused’s will has been overborne-facts are fre-

quently disputed, questions of credibility are often

crucial, and inferences to be drawn from established

facts are often determinative. The overall determina-

tion of the voluntariness of a confession has thus

become an exceedingly sensitive task, one that

requires facing the issue squarely, in illuminating

isolation and unbeclouded by other issues and the

effect of extraneous but prejudicial evidence.

Id. at 390 (citations omitted). Applying Jackson, the Arizona

Court of Appeals has emphasized the importance of the trial

court’s duty to exclude involuntary confessions, irrespective

of the jury’s finding. See State v. Strayhand, 911 P.2d 577,

589 n.3 (Ariz. Ct. App. 1995) (“The dissent says that even if

the confessions should not have been admitted, no fundamen-

tal error occurred because the jury found that they were vol-

untary. The proper procedure for weighing voluntariness is set

out in [Jackson]. The threshold voluntariness inquiry is for the

court and the defendant can reargue the matter to the jury.

Considering Jackson . . . it is clear that when it appears at any

stage of the proceedings that a confession is involuntary, it is

the trial judge’s duty to exclude it from evidence.”) (emphasis

added).

Our dissenting colleagues implicitly condemn Doody for

not testifying at the voluntariness hearing. See Dissenting

Opinion, p. 5857. However, as the Arizona state courts have

held, Doody’s failure to testify does not preclude relief. See

Strayhand, 911 P.2d at 589 n.3 (“The fact that the Defendant

did not testify at the voluntariness hearing does not mean that

he is not entitled to relief now.”).

Relying on Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005),

and United States v. Doe, 155 F.3d 1070 (9th Cir. 1998) (en

5828 DOODY v. RYAN

banc), the dissent also maintains that “[w]e have repeatedly

held a suspect’s minor age and the absence of a parent do not

make a confession presumptively involuntary.” Dissenting

Opinion, p. 5878. Besides the fact that the majority opinion

never applies any presumption of involuntariness, the cited

cases are readily distinguishable. In Juan H., the defendant

was properly informed of his Miranda rights, and never made

any incriminating statements. See Juan H., 408 F.3d at 1272-

73. Accordingly, no credible claim of involuntariness could

be made. See id.

Doe is similarly inapposite. In that case, we noted that

“there [was] no indication that the questioning was oppressive

in any way.” Doe, 155 F.3d at 1075. Such was not the case

with Doody. Indeed, the dissent concedes that the police “en-

gag[ed] in a variety of psychologically coercive interrogating

tactics.” Dissenting Opinion, p. 5880.

The amalgamated citations to Clark v. Murphy, 331 F.3d

1062 (9th Cir. 2003), Jenner v. Smith, 982 F.2d 329 (8th Cir.

1993), United States v. Lehman, 468 F.2d 93 (7th Cir. 1972),

and United States v. Haswood, 350 F.3d 1024 (9th Cir. 2003),

see Dissenting Opinion, p. 5878, are no more persuasive, as

none of these cases involved a juvenile, or lengthy middle-of-

the-night questioning. See Clark, 331 F.3d at 1072 (question-

ing of an adult for five hours); Jenner, 982 F.2d at 333-34

(questioning of an adult for seven hours); Haswood, 350 F.3d

at 1027-28 (questioning of an adult for an undetermined

amount of time that was inferred to be “all day”).

It is unclear why the dissent cites to Lehman. In that case,

a dentist was questioned in his office, and the Seventh Circuit

observed:

Although Lehman maintains that he felt confined

and watched in his own small private office and that

his will was eventually overcome by the agents’

method of questioning, he found time during this

DOODY v. RYAN 5829

period of alleged virtual confinement to discuss his

academic achievements and to recommend to one of

the agents what should be done for the treatment of

emphysema. Lehman was in his own suite and not in

custody and could have cut off the interview at any

time. He was found to be a man of intelligence, edu-

cation and maturity. He was apprised of his ques-

tioners’ mission with regard to a determination of the

correctness of his tax returns, and he was not com-

pletely unschooled in the implications of a tax inves-

tigation. We further note that on at least two

occasions the agents asked Lehman if he wanted to

leave for his golf date.

Lehman, 468 F.2d at 101 (emphasis added). The facts of that

case in no way resemble the circumstances of Doody’s inter-

rogation.

The dissent also relies on cases where the Supreme Court

has addressed more extreme facts involving adults. See Dis-

senting Opinion, pp. 5882-83; see also, Greenwald v. Wiscon-

sin, 390 U.S. 519, 520-21 (1968) (interrogation of a defendant

suffering from high blood pressure and deprived of sleep,

food, and medication); Darwin v. Connecticut, 391 U.S. 346,

349 (1968) (forty-eight hour interrogation of a defendant who

had been denied his right to counsel); Beecher v. Alabama,

389 U.S. 35, 38 (1967) (interrogation of a wounded defendant

at gunpoint over five days); Clewis v. Texas, 386 U.S. 707,

709-10 (1967) (nine-day interrogation with inadequate food

and sleep); Davis v. North Carolina, 384 U.S. 737, 746-47

(1966) (questioning over a sixteen-day period with inadequate

food); and Reck v. Pate, 367 U.S. 433, 435 (1961) (mentally

retarded 19-year old who became ill during the interrogation).

However, the Supreme Court has never suggested, let alone

held, that the interrogation of a juvenile must meet some stan-

dard of extremity to render a confession involuntary. Rather,

the Supreme Court has directed that we proceed with the

utmost caution when considering the confession of a juvenile,

5830 DOODY v. RYAN

being ever mindful of the “tender age” of the individual

involved. In re Gault, 387 U.S. at 45.

The dissent seeks to minimize the impact of the Supreme

Court’s holding in Haley, describing this seminal case as

“readily distinguishable.” Dissenting Opinion, p. 5879.

In Haley, the Supreme Court set forth the following back-

ground:

Beginning shortly after midnight this 15-year old lad

was questioned by the police for about five hours.

Five or six of the police questioned him in relays of

one or two each. During this time no friend or coun-

sel of the boy was present. Around 5 a.m.-after being

shown alleged confessions of Lowder and Parks-the

boy confessed . . .

332 U.S. at 598. Despite the absence of extreme facts, the

Supreme Court concluded:

The age of petitioner, the hours when he was grilled,

the duration of his quizzing, the fact that he had no

friend or counsel to advise him, the callous attitude

of the police towards his rights combine to convince

us that this was a confession wrung from a child by

means which the law should not sanction . . .

Id. at 600-01 (emphasis added).

The dissent does not even mention the operative facts

regarding the actual interrogation in Haley:

What transpired would make us pause for careful

inquiry if a mature man were involved. And when,

as here, a mere child -an easy victim of the law-is

before us, special care in scrutinizing the record

must be used. Age 15 is a tender and difficult age for

DOODY v. RYAN 5831

a boy of any race. He cannot be judged by the more

exacting standards of maturity. That which would

leave a man cold and unimpressed can overawe and

overwhelm a lad in his early teens. This is the period

of great instability which the crisis of adolescence

produces. A 15-year old lad, questioned through the

dead of night by relays of police, is a ready victim

of the inquisition. Mature men possibly might stand

the ordeal from midnight to 5 a.m. But we cannot

believe that a lad of tender years is a match for the

police in such a contest. He needs counsel and sup-

port if he is not to become the victim first of fear,

then of panic. He needs someone on whom to lean

lest the overpowering presence of the law, as he

knows it, may not crush him. No friend stood at the

side of this 15-year old boy as the police, working in

relays, questioned him hour after hour, from mid-

night until dawn. No lawyer stood guard to make

sure that the police went so far and no farther, to see

to it that they stopped short of the point where he

became the victim of coercion. No counsel or friend

was called during the critical hours of questioning. A

photographer was admitted once this lad broke and

confessed. But not even a gesture towards getting a

lawyer for him was ever made.

Haley, 332 U.S. at 599-600. The dissent skips over these facts

in favor of several facts in Haley that occurred after the inter-

rogation. See Dissenting Opinion, p. 5879. However, in the

paragraph immediately following the Supreme Court’s

description of the actual interrogation, the Supreme Court

observed:

This disregard of the standards of decency is

underlined by the fact that he was kept incommuni-

cado for over three days during which the lawyer

retained to represent him twice tried to see him and

twice was refused admission. A photographer was

5832 DOODY v. RYAN

admitted at once; but his closest friend-his mother-

was not allowed to see him for over five days after

his arrest. It is said that these events are not germane

to the present problem because they happened after

the confession was made. But they show such a cal-

lous attitude of the police towards the safeguards

which respect for ordinary standards of human rela-

tionships compels that we take with a grain of salt

their present apologia that the five-hour grilling of

this boy was conducted in a fair and dispassionate

manner. When the police are so unmindful of these

basic standards of conduct in their public dealings,

their secret treatment of a 15-year old boy behind

closed doors in the dead of night becomes darkly

suspicious.

Haley, 332 U.S. at 600 (emphasis added). In the next para-

graph, the Supreme Court applied the relevant totality of the

circumstances standard:

The age of petitioner, the hours when he was

grilled, the duration of his quizzing, the fact that he

had no friend or counsel to advise him, the callous

attitude of the police towards his rights combine to

convince us that this was a confession wrung from

a child by means which the law should not sanction.

Neither man nor child can be allowed to stand con-

demned by methods which flout constitutional

requirements of due process of law.

Id. at 600-01 (emphasis added). Haley, therefore, is not “read-

ily distinguishable.” Dissenting Opinion, p. 5879. Indeed, the

facts of Haley are much more analogous to the circumstances

faced by Doody than are the cases cited by the dissent in sup-

port of its argument.

The dissent also cites to United States ex rel. Hayward v.

Johnson, 508 F.2d 322 (3d Cir. 1975), Rogers v. Quarterman,

DOODY v. RYAN 5833

555 F.3d 483 (5th Cir. 2009), Jackson v. McKee, 525 F.3d

430 (6th Cir. 2008), and Hardaway v. Young, 302 F.3d 757

(7th Cir. 2002), for the proposition that other circuits have

also readily distinguished Haley. See Dissenting Opinion, p.

5880 n.9. A close examination of these cases reflects why

they distinguished Haley, and in no way support the Arizona

Court of Appeals’ ruling.

In Hayward, the seventeen-year old defendant “was ques-

tioned on three separate occasions . . . each time in a small

interrogation room at the police station and each time after

receiving the full Miranda warnings. . . . [H]e went voluntar-

ily and with his mother’s permission each time he was ques-

tioned.” 508 F.2d at 324. The Third Circuit observed:

[W]e are troubled by the police conduct here, involv-

ing a late night questioning, without any apparent

justification, of a seventeen-year old youth. We also

acknowledge that the Supreme Court’s decision in

[Haley], on which appellant relies, is in some

respects similar to the case before us. In that case,

the Supreme Court held involuntary the confession

of a fifteen-year old boy who was taken from his

home at night and questioned steadily from 12:00

midnight to 5:00 a.m.

Id. at 326.

However, the Third Circuit relied on the fact that the appel-

lant never challenged the adequacy of the Miranda warnings

to distinguish Hayward from Haley. See id. at 327. The Third

Circuit also noted that:

the period of questioning was shorter and the man-

ner of questioning seems less coercive. Unlike the

youth in [Haley], who gave his confession only after

five hours of continuous incommunicado question-

ing by five or six policemen in relays of one or two

5834 DOODY v. RYAN

each, appellant here began to give his confession

early on the third occasion he was questioned, and

the questioning was conducted predominantly by one

person, Detective Kelly.

Furthermore, the confession was obtained only on

the third occasion he was questioned. By October 3,

the circumstances of his questioning and the setting

at the police station must have appeared less novel

and intimidating; after two previous questionings he

had been sent home, where he had the opportunity,

unpressured by the police, to consider his situation;

he was fully informed that the police were investigat-

ing his possible role in the death of William Smith;

and he was surely aware that the police had twice

released him without obtaining a confession. There-

fore, since he had been subjected to unfamiliar sur-

roundings on two prior occasions and yet had

withstood lengthy questionings without confessing,

we find it difficult to conclude that he was not acting

voluntarily on October 3, when he began giving his

oral incriminatory statement shortly after arriving

and completed giving it within an hour and fifteen

minutes of questioning. Finally, unlike the Supreme

Court in Haley, we, find no evidence of a callous dis-

regard of appellant’s rights by the police after he

gave his confession which might cast suspicion on

their conduct throughout the questioning.

Id. at 327 (citation and footnote references omitted) (empha-

ses added). Contrary to the dissent’s assertion, the Third Cir-

cuit did not distinguish Haley simply because the “suspect

was informed of his right to remain silent.” Dissenting Opin-

ion, p. 5880 n.9 (internal quotation marks omitted).

In Rogers, 555 F.3d at 485, after being informed of his

rights by a magistrate, the defendant

DOODY v. RYAN 5835

was then taken to an interview room and left alone

for a short amount of time. He was offered a soda.

He was then interrogated by the officers for three to

five minutes. During this time, Rogers claimed he

was innocent. Anderson became frustrated and told

Rogers to stop lying because his prints had been

found at the crime scene. Rogers began to tear up, so

he was asked if he would like to speak with a partic-

ular officer about the offense. Rogers chose Douglas,

so Miller and Anderson left the room. After 30-35

minutes, Douglas exited the interview room and

stated that Rogers had confessed.

Id. at 485 (emphasis added). In distinguishing Haley, the Fifth

Circuit opined:

Rogers was not continuously or lengthily interro-

gated . . . Most significantly, he was not subjected to

physical abuse, mental coercion, trickery, or deceit

. . . The officers were truthful when they represented

to Rogers that his fingerprints had been found at the

scene, and there is no evidence that the officers

somehow induced Rogers’s confession. Moreover,

Rogers was afforded the full, extensive protections of

section 51.09 of the Texas Family Code.12

Id. at 495 (emphases added). The safeguards present in Rog-

ers were not available in Haley or to Doody.

12

Texas Family Code § 51.06 provided:

Unless a contrary intent clearly appears elsewhere in this title,

any right granted to a child by this title or by the constitution or

laws of this state or the United States may be waived in proceed-

ings under this title if: (1) the waiver is made by the child and the

attorney for the child; (2) the child and the attorney waiving the

right are informed of and understand the right and the possible

consequences of waiving it; (3) the waiver is voluntary; and (4)

the waiver is made in writing or in court proceedings that are

recorded.

5836 DOODY v. RYAN

In Jackson, the seventeen-year old defendant was interro-

gated on several occasions. The Sixth Circuit distinguished

Haley :

Jackson, by contrast [to Haley], was older (17 years

old); he was questioned intermittently, not continu-

ously; he was told repeatedly of his rights to counsel

and to remain silent; and no evidence shows that the

officers took a callous attitude toward his rights . . .

Jackson, 525 F.3d at 435 (citations omitted) (emphasis

added). Because the defendant “was questioned intermittently,

not continuously,” “told repeatedly of his rights to counsel

and to remain silent,” and “[t]he officers’ questioning . . .

never exceeded two and a half hours at a time,” it is not sur-

prising that the Sixth Circuit did not fault the state court for

“declining to extend [Haley]” to the facts. Id. at 434-35. Con-

trary to the dissent’s characterization, the Sixth Circuit, there-

fore, did not distinguish Haley only on the basis that the

“suspect, by contrast, was older (17 years old).” Dissenting

Opinion, p. 5880 n.9.

Finally, in Hardaway, the Seventh Circuit noted:

Hardaway’s case is less egregious [than Haley’s], in

that there were no efforts to keep his parents away

or to confront him with false testimony, and he was

held for less than one day rather than three.13 There

were also lengthy breaks in the interrogations,

13

Although the dissent relies on this statement that the defendant “was

held for less than one day rather than three,” to distinguish Haley from

Doody, Dissenting Opinion, p. 5880 n.9, it is important to remember that

the holding of Haley for three days occurred after his interrogation. See

Haley, 332 U.S. at 600. It is unclear why the dissent implies that three

days in custody is somehow a temporal benchmark for whether a confes-

sion is involuntary, particularly as the Supreme Court emphasized that

Haley was “questioned through the dead of night by relays of police . . .

from midnight to 5 a.m.” Id. at 599.

DOODY v. RYAN 5837

rather than the five grueling hours that Haley was

forced to endure.

Hardaway, 302 F.3d at 763 (citations, alteration, and internal

quotation marks omitted). Contrary to the dissent, the Seventh

Circuit did not simply distinguish Haley because “the suspect

was held for less than one day rather than three.” Dissenting

Opinion, p. 5880 n.9 (internal quotation marks omitted).

Simply put, the dissent’s attempt to distinguish Haley by

relying on inapposite cases from other circuits fails miserably.

The deference AEDPA requires we give to factual findings

and legal conclusions from state courts does not and cannot

equate to abdication of our judicial responsibilities. See Tay-

lor, 366 F.3d at 1008 (“In passing section 2254(d)(2), Con-

gress has reminded us that we may no more uphold such a

factual determination than we may set aside reasonable state-

court fact-finding. When we determine that state-court fact-

finding is unreasonable, therefore, we have an obligation to

set those findings aside and, if necessary, make new find-

ings.”). We recognize and acknowledge that police officers

are entitled to use, and do use, a variety of techniques to inter-

rogate suspects. However, when those techniques overbear

the will of the suspect in contravention of his constitutional

rights, any confession obtained through the overbearance

must be suppressed. See DeWeaver, 556 F.3d at 1002-03 (“A

confession must be suppressed, even absent a Miranda viola-

tion, when the totality of the circumstances demonstrates that

the confession was involuntary.”) (citation omitted).

With the utmost respect to our concurring colleague, we do

not view our opinion as an exercise in “yarn-spinning.” See

Concurring Opinion, p. 5843. Rather, we address the Arizona

Court of Appeals’ unreasonable determinations, including that

there was “no evidence that calls into question the testimony

that Doody remained alert and responsive.” Doody, 530 P.2d

at 446 (emphasis added). To uphold this determination, we

5838 DOODY v. RYAN

would have to conclude that Doody’s claims were made from

whole cloth. The record in this case forecloses such a determi-

nation, and highlights the unreasonableness of the state

court’s finding that no such evidence existed.

C. Harmless Error

[16] A coerced confession is generally not admissible evi-

dence. See id. However, in this case, Doody’s statements con-

fessing his involvement were admitted into evidence and

considered by the jury. On habeas review, once we determine,

as we discussed above, that the state court’s voluntariness

determination was an unreasonable application of Supreme

Court precedent, we turn to the consideration of whether the

error was harmless. “Because the court of appeal[s] found the

confession admissible, it did not conduct harmless-error anal-

ysis. We must therefore review the evidence at trial to deter-

mine whether the confession likely had a substantial and

injurious impact on the verdict; if not, its admission was

harmless.” Taylor, 366 F.3d at 1016 (citations omitted).

“[T]he question is whether the erroneously admitted evidence

had a substantial and injurious effect or influence in determin-

ing the jury’s verdict.” Ghent v. Woodford, 279 F.3d 1121,

1127 (9th Cir. 2002), as amended (citations and internal quo-

tation marks omitted).

At trial, Doody argued that there was no physical evidence

linking him to the temple murders; the investigation was mis-

managed; the prosecutor charged three individuals, part of the

Tucson Four, who had confessed to the events at the temple;

the testimony of the prosecution’s key witness, Garcia, was

not truthful, because he had a reason to lie given his plea

agreement; and Garcia, Caratachea, and Gonzales committed

the temple murders and Doody was either not involved in the

temple murders at all, or was present only as a bystander.

To counter Doody’s arguments, the prosecution introduced

the audiotapes of Doody’s statements. The prosecution’s reli-

DOODY v. RYAN 5839

ance on the statements is evidenced by its closing arguments,

which were replete with references to the audiotapes.14 For

example, the prosecution argued:

He admits, and this is tape three, page twenty-eight,

and at tape nine, page thirteen, Jonathan Doody

admits, ‘Me and Alex borrowed Rollie’s gun.’ Cor-

roboration now for Rollie Caratachea’s statement to

us, and also corroboration for Alex Garcia’s state-

ments that they, in fact, did borrow that gun from

Rollie. He then admits experimenting with the

silencer, tape four. But later he says, tape eleven,

that it was for use in the temple. The use of the

silencer in the temple, very important. It shows pre-

meditation to commit the murders, support for Alex

Garcia’s statements. . . . He admits involvement in

the temple, tape nine, page eight. He admits that he

was involved in the temple crimes. The very next

thing he does is he admits that this was with Alex

Garcia.

Trial Transcript, July 8, 1993, pp. 36-37.

In rebuttal, the prosecution also referred to Doody’s state-

ments to support a felony murder conviction. The prosecution

stated:

Let’s do it again. Go inside and let’s see what we can

get. Tape eleven, pages seventeen to eighteen; tape

thirteen, page thirty seven. Those are Jonathan

14

The dissent simultaneously scolds us for reciting the audiotapes at

length and for “leav[ing] key sentences, exchanges, and pages of transcript

unaccounted for.” Dissenting Opinion, p. 5887. Yet, the dissent does not

give one concrete example of omitted information from the audiotapes that

would redeem this interrogation. Because the audiotapes highlight the

unreasonableness of the state court’s findings, it is completely understand-

able that the dissenters would prefer that these audiotapes not see the light

of day.

5840 DOODY v. RYAN

Doody’s comments. This isn’t the State. . . . Mr.

Doody is on trial. This is what he said. He told us

this. He went back in that temple to see what he

could get. . . . They went in there with force, and

that’s armed robbery, and that’s a conviction of fel-

ony murder. Pure and simple.

Id. at 155-56.

The prosecution commented that the case was “easy

because of what Jonathan Doody tells us. Alex Garcia corrob-

orates it, gives us a lot of detail. The evidence, gives a lot of

corroboration, a lot more detail. But you don’t have to go

beyond Jonathan Doody’s statement . . .” Id. at 156 (emphasis

added). Despite the dissent’s effort to catalog other evidence

against Doody, the record reflects that Doody’s statements

were the linchpin of the prosecution’s case.

[17] As evidenced by the prosecution’s arguments,

Doody’s statements were integral to the prosecution’s case,

particularly as “the defendant’s own confession is probably

the most probative and damaging evidence that can be admit-

ted against him.” Arizona v. Fulminante, 499 U.S. 279, 296

(1991) (citations omitted). We cannot conclude that the

admission of Doody’s confession was harmless error because

Doody’s statements likely “had a substantial and injurious

effect or influence in determining the jury’s verdict.” Ghent,

279 F.3d at 1127.

IV. CONCLUSION

[18] We hold that the Arizona Court of Appeals’ decision

constituted an unreasonable determination of the facts and an

unreasonable application of the governing law to the particu-

lar facts of this case. The Arizona Court of Appeals unreason-

ably concluded that the Miranda warnings were clear and

understandable, despite the detective’s erroneous warnings

regarding Doody’s right to counsel and the use of qualifying

DOODY v. RYAN 5841

language to downplay the warnings’ significance. Thus, we

hold that under the standard of review set forth in AEDPA,

Doody is entitled to a writ of habeas corpus on the ground that

the Miranda warnings the police gave him were inadequate

and his confession was therefore inadmissible.15

Additionally, the Arizona Court of Appeals’ ruling that

Doody’s confession was voluntary was an unreasonable deter-

mination of the facts in light of the audiotapes that reflect the

relentless, nearly thirteen-hour interrogation of a sleep-

deprived juvenile by a tag team of detectives. The Arizona

Court of Appeals also unreasonably applied clearly estab-

lished federal law when it failed to consider the totality of the

circumstances to determine if Doody’s will was overborne by

the interrogation. Accordingly, we hold that under the stan-

dard of review set forth in AEDPA, Doody is entitled to a writ

of habeas corpus on the ground that his confession of his

involvement in the temple murders was involuntary, and

therefore inadmissible.

Accordingly, we REVERSE and REMAND this case to

the district court to grant Doody’s habeas petition unless the

State of Arizona elects to retry Doody within a reasonable

time.

15

Our dissenting colleagues’ early reference to the recent Supreme

Court decision of McDaniel v. Brown, 130 S.Ct. 665 (2010), see Dissent-

ing Opinion, p.5852, is puzzling. Brown involved this court’s application

of Jackson v. Virginia, 443 U.S. 307 (1979) in resolving a sufficiency-of-

evidence challenge. See Brown, 130 S.Ct. at 667 (“We granted certiorari

to consider whether [the District Court and Court of Appeals] misapplied

Jackson.”). The discussion of § 2254(d)(1) was made in the context of our

described failure to “review the evidence in the light most favorable to the

prosecution” as required by Jackson. Id. at 673 (citation and internal quo-

tation marks omitted). In contrast, this case concerns review of the ade-

quacy of a Miranda warning and the voluntariness of a confession, neither

of which is governed by the Jackson directive to view all evidence in the

light most favorable to the prosecution.

5842 DOODY v. RYAN

KOZINSKI, Chief Judge, concurring in the result:

Not for the first or last time, we’re asked to consider what

it means for an opinion of a state court to be “unreasonable”

under 28 U.S.C. § 2254(d). I write separately because I

believe that deference is neither a blindfold nor a bandana.

The state court may well have been wrong to find Doody’s

confession voluntary. Doody, a teenager, was isolated from

his friends and family and interrogated for over twelve hours.

Working in shifts, police kept Doody awake overnight. They

employed many of the psychological techniques that troubled

the Supreme Court in Miranda v. Arizona:

To be alone with the subject is essential to prevent

distraction and to deprive him of any outside sup-

port. . . . He merely confirms the preconceived story

the police seek to have him describe. Patience and

persistence, at times relentless questioning, are

employed. To obtain a confession, the interrogator

must “patiently maneuver himself or his quarry into

a position from which the desired objective may be

attained.” When normal procedures fail to produce

the needed result, the police may resort to deceptive

stratagems such as giving false legal advice. It is

important to keep the subject off balance . . . . The

police then persuade, trick, or cajole him out of exer-

cising his constitutional rights.

384 U.S. 436, 455 (1966). The police pled with Doody, over

and over, to “tell me,” “trust me” and “[t]alk to me so I under-

stand.” They ordered him: “You have to tell us.” They warned

him: “There are statements, I’d say damaging statements

toward you and its gonna, and its gonna pile up Jon, it’s

gonna be so deep.” They said they knew “you’ve got some

tremendous answers up in that, that head of yours” because

they “could just tell it in your eyes,” and they lied to him: “I

probably won’t ask you a question, that I don’t already know

DOODY v. RYAN 5843

the answer.” They promised him, falsely, that his words were

“between us,” and that “[w]hat you tell us right now, is gonna

stay right here.” Doody was silent for long periods of ques-

tioning, and he ended the interrogation in tears.

But that’s not the only way to read the record. As the state

court noted, Doody was nearly eighteen, maintained good

grades and “participated in his high school honor guard.”

State v. Doody, 930 P.2d 440, 445 (Ariz. Ct. App. 1996). The

officers employed a “courteous, almost pleading style of

questioning” and “testified at the suppression hearing that

Doody remained alert and responsive throughout the interro-

gation.” Id. at 446. The officers also “offered Doody food and

drinks and accommodated his requests to use the restroom.”

Id. During his long periods of silence, Doody may have been

thinking up a story that would fit the evidence against him but

also keep him out of trouble. Indeed, when Doody confessed,

he gave a relatively exculpatory account in which he was out-

side the temple at the time of the killing. He started crying,

he said, because the police “came out and ma[d]e it sound like

[they] didn’t believe” that version of events. That’s the state-

ment of a person who had staked his future on a half-truth, as

opposed to someone whose will was overborne.

I doubt anyone but Doody will ever know with certainty

whether his confession was voluntary, and perhaps not even

he. After all, “Difficulties of proof and subtleties of interroga-

tion . . . [make] it impossible in most cases for the judiciary

to decide with confidence whether [a] defendant . . . voluntar-

ily confessed.” New York v. Quarles, 467 U.S. 649, 683

(1984) (Marshall, J., dissenting). The majority spins a good

yarn, but the state court also told a good story. Even federal

judges can’t read Doody’s mind or travel back in time. And,

as the Supreme Court has told us, “The more general the rule,

the more leeway courts have in reaching outcomes.” Yarbor-

ough v. Alvarado, 541 U.S. 652, 664 (2004). This is precisely

the kind of debatable application of a “general standard”

where finality and respect for the independent judgment of the

5844 DOODY v. RYAN

state courts counsels the highest deference on federal habeas

review. See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420

(2009); see also Harrington v. Richter, 131 S. Ct. 770, 786

(2011). I would therefore let stand the state court’s finding

that the confession was voluntary.

But, unlike voluntariness, “a warning is a clearcut fact.”

Miranda, 384 U.S. at 469. Voluntariness asks courts to specu-

late about intangibles, but Miranda seeks “ascertainable

assurance that the accused was aware” of his rights. Id. at 472

(emphasis added). It therefore provides a “clear, easily admin-

istered device for ensuring that criminal suspects understand

their constitutional rights,” Quarles, 467 U.S. at 683 (Mar-

shall, J., dissenting), and experience has proved that its bright

line rule is manageable “for law enforcement officers to con-

form to, and for courts to apply in a consistent manner,” Dick-

erson v. United States, 530 U.S. 428, 444 (2000).

Accordingly, when a state court asks whether a suspect was

adequately warned, “[a]pplications of the rule may be plainly

correct or incorrect.” Yarborough, 541 U.S. at 664. We need

not defer to plainly incorrect applications.

From tapes of the interrogation, we know exactly what the

police said when informing Doody of his right to an attorney:

[Y]ou have the right to have an attorney present

prior to and during questioning, and what that means

that if you want one, you’re allowed to have a law-

yer here before and during you know my questions

to you, okay. And then an attorney is a lawyer who

will speak for you and help you concerning the

crime or any kind of offense that ah we think that

you or somebody else is involved in, if you were

involved in it, okay. Again, it not necessarily mean

that you are involved, but if you were, then that’s

what that would apply to okay. (emphasis added)

We can listen as the officer recites the familiar words: “[Y]ou

have the right to have an attorney.” And we can listen as he

DOODY v. RYAN 5845

provides a generic and inoffensive definition of “attorney”:

“[A] lawyer who will speak for you and help you.” And,

finally, we can observe in slow motion as the officer’s

Miranda warnings fly off the rails: “[I]f you were involved in

it, okay. Again, it not necessarily mean that you are involved,

but if you were, then that’s what that would apply to okay.”

Those words are undisputed facts.

Faced with those facts, the Arizona Court of Appeals found

that Doody’s rights were read to him “in a clear and under-

standable manner” and that the “officers read each warning

from a standard juvenile form and provided additional expla-

nations as appropriate.” Doody, 930 P.2d at 449. The dissent

tells us that the state court’s characterization of the officer’s

words was not unreasonable because the officer made Doody

aware that he was “faced with a phase of the adversary sys-

tem.” Dissent at 5872 (quoting Miranda, 384 U.S. at 469). I

don’t see anything so benign lurking in the officer’s words.

Here they are again:

[A]n attorney is a lawyer who will speak for you and

help you concerning the crime or any kind of offense

that ah we think that you or somebody else is

involved in, if you were involved in it, okay. Again,

it not necessarily mean that you are involved, but if

you were, then that’s what that would apply to okay.

The officer did say something about the adversary system:

That a lawyer will help you “if you were involved” in crimi-

nal activity, and that the right to an attorney only applies to

you if “you were involved.” This, of course, is not true: The

innocent, no less than the guilty, are entitled to a lawyer. Or,

in Officer Riley’s peculiar argot: “Whether you were involved

or not, then that’s what that would apply to okay.”

The dissent admits that the officer’s words “could be con-

strued” to say you only get a lawyer if you’re guilty. Dissent

at 5870. This pretty much gives up the ship, as warnings that

5846 DOODY v. RYAN

“could” be construed in such a manner can’t possibly be

“clear,” “understandable” or “appropriate.” It is established

beyond doubt that “an individual held for interrogation must

be clearly informed that he has the right to consult with a law-

yer,” Miranda, 384 U.S. at 471 (emphasis added), and that

warnings must “apprise the accused of his right to have an

attorney present,” Duckworth v. Eagan, 492 U.S. 195, 205

(1989). The whole point of Miranda is to provide “assurance

that the accused was aware” of his rights. 384 U.S. at 472.

There’s no such assurance when a warning “could” be inter-

preted to say the polar opposite of what Miranda requires.

The warning given in this case was far worse than no warn-

ing at all. At least an un-warned suspect may know his rights

without being told about them; many non-lawyers watch Cops

and Law and Order. But a non-lawyer who knows about the

right to counsel, and who might even be willing to invoke it

without a warning, may well hesitate to ask for a lawyer after

being told that the right would only apply “if you were

involved.” After all, a request for a lawyer would be an

admission that “you were involved,” as only suspects who

knowingly fall into that category would have a right to ask for

one. Upholding such a warning would contravene the very

core of the rule established by Miranda: When the Court pre-

scribed words that would make suspects aware of their rights,

it certainly did not intend to approve warnings that would

throw those rights into doubt and make invocation of the right

to counsel even less likely than it is already.

Here’s a simple test of the warning’s adequacy: Suppose

everything the officer said had been printed on a standardized

waiver produced by the state, without all the “colloquial fill-

er” the dissent thinks we should ignore. Dissent at 5869. Since

this was Arizona, the birthplace of Miranda, maybe police felt

they were entitled to improve on the Supreme Court’s work;

call it Miranda 2.0:

You have the right to an attorney present prior to and

during questioning. An attorney is a lawyer who will

DOODY v. RYAN 5847

speak for you and help you concerning the crime, if

you were involved in it. It doesn’t necessarily mean

you are involved, but if you were, then that right

would apply to you. Do you understand this right?

Yes______ No______

Now suppose Doody had initialed such a form. Would we

uphold the warning just because it contained the magic words,

“You have the right to an attorney”?

Although the officer spoke the words instead of printing

them on paper, this is a distinction without a difference. As

the state court acknowledged, the officer’s statements were

made at the same time that Doody read his written warnings

and were offered as “explanations” of the rights Doody

agreed to waive. Doody, 930 P.2d at 449. If Miranda 2.0

doesn’t pass muster, neither does the warning in this case.

The Supreme Court’s recent decision in Florida v. Powell,

130 S. Ct. 1195 (2010), doesn’t change this analysis, as the

opinion reaffirms the standard for determining Miranda com-

pliance that its prior cases had established. Id. at 1204 (citing

Duckworth, 492 U.S. at 204-05; California v. Prysock, 453

U.S. 355, 360-61 (1981) (per curiam)). Nor do the facts in

Powell have any significant bearing on this case. Tampa

police read Powell the following statement to serve as his

Miranda warnings:

You have the right to remain silent. If you give up

the right to remain silent, anything you say can be

used against you in court. You have the right to talk

to a lawyer before answering any of our questions.

If you cannot afford to hire a lawyer, one will be

appointed for you without cost and before any ques-

tioning. You have the right to use any of these rights

at any time you want during this interview.

Powell, 130 S. Ct. at 1200. The Florida Supreme Court found

this statement misleading because it suggested that Powell

5848 DOODY v. RYAN

only had a right to consult with an attorney before, and not

throughout, his interrogation. The Supreme Court reversed

because “[n]othing in the words used indicated that counsel’s

presence would be restricted after the questioning com-

menced.” Id. at 1205. The Court found that the final warning,

“You have the right to use any of these rights at any time you

want during this interview,” cured whatever misleading effect

the other statements had. Although the warnings were “not the

clearest possible formulation of Miranda’s right-to-counsel

advisement,” the Court upheld them as “sufficiently compre-

hensive and comprehensible when given a commonsense

reading.” Id.

Not so here. The Miranda warnings Doody was given were

affirmatively misleading. Doody wouldn’t have had to “imag-

ine” a “counterintuitive” or “unlikely” scenario to think coun-

sel was only available to individuals actually involved in a

crime. Id. And, unlike Powell, no other part of the officer’s

warnings corrected the error. The officer’s statement simply

didn’t communicate Miranda’s “essential message,” as Pow-

ell requires. Id. at 1206.

Powell isn’t an AEDPA case and doesn’t provide any guid-

ance on how much deference we owe to state courts. Even

under AEDPA, however, it’s not possible to bend the record

far enough to sustain the state court’s opinion, if habeas cor-

pus is to “stand[ ] as a safeguard against imprisonment of

those held in violation of the law.” Richter, 130 S. Ct. at 780.

The dissent is correct that the Supreme Court has repeatedly

overturned this court for insufficient deference. Dissent at

5852-53. But the Court has also said that AEDPA’s “standard

is demanding but not insatiable” and that “ ‘deference does

not by definition preclude relief.’ ” Miller-El v. Dretke, 545

U.S. 231, 240 (2005) (alteration omitted) (quoting Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003)). In Anderson v. Ter-

hune, we found that AEDPA did not require us to manufac-

ture uncertainty and ambiguity as to whether a suspect

invoked his right to silence when he said, “I plead the Fifth.”

DOODY v. RYAN 5849

516 F.3d 781, 787 (9th Cir. 2008) (en banc); see also Hart v.

Attorney Gen. of Fla., 323 F.3d 884, 894 (11th Cir. 2003).

Comity doesn’t mean being comatose. We can’t ignore the

fact that the state court in this case held up the officer’s lan-

guage as a model application of Miranda even though his

words were misleading at best and flat wrong at worst—not

just “less-than-accurate,” as the dissent concludes. Dissent at

5869.

We defer when state courts reasonably adjudicate claims of

federal right, even if we think they’re wrong. Richter, 131 S.

Ct. at 786. But where, as here, a state court doesn’t act reason-

ably, deference comes to an end. After all, we retain “author-

ity to issue the writ in cases where there is no possibility

fairminded jurists could disagree that the state court’s deci-

sion conflicts with” Supreme Court precedent. Id. Yes, the

standard is a “difficult” one to meet, id., but difficult doesn’t

mean impossible. When police take a butcher knife to

Miranda, a decision so “embedded in routine police practice

to the point where the warnings have become part of our

national culture,” a federal court can’t sit idly by. Dickerson,

530 U.S. at 443.

The dissent offers a number of other arguments for denying

relief, even if the warnings weren’t “clear,” “understandable”

or “appropriate.” See Dissent at 5868-73. For example, the

dissent points to evidence the state court considered that

“Doody exhibited no signs of doubt or confusion.” Dissent at

5871 (internal quotation marks omitted). Maybe Doody

wasn’t listening to what the officer said, or maybe he didn’t

believe it. But that’s entirely irrelevant. Miranda establishes

an objective test. We can’t uphold defective warnings because

they might have been inadvertently successful, just as we

can’t disregard a properly administered warning because a

particular suspect might have misunderstood.

Nor did anything in the Supreme Court’s opinion in Duck-

worth cast doubt on the relevant legal principles. See Dissent

5850 DOODY v. RYAN

at 5865-66, 5869-71. In that case, police told a suspect that

they had “no way of giving you a lawyer, but one will be

appointed for you, if you wish, if and when you go to court”

and that “[y]ou also have the right to stop answering at any

time until you’ve talked to a lawyer.” Duckworth, 492 U.S. at

198 (emphasis omitted). The Court of Appeals thought this

wrongly implied that the right to counsel did not apply before

a suspect went to court, but the Supreme Court held that the

Court of Appeals had “misapprehended the effect” of the lan-

guage. Id. at 203. The Court emphasized that the warning was

entirely true and “accurately described the procedure for the

appointment of counsel in Indiana,” according to which invo-

cation of the right to counsel would require police to cease

questioning altogether unless the suspect paid for his own

lawyer. Id. at 204. Nothing in the Court’s opinion suggested

that officers are permitted to make untrue statements that con-

tradict the warnings required by Miranda. To the contrary, the

Court reaffirmed that warnings must adequately “apprise the

accused of his right to have an attorney present.” Id. at 205.

Finally, the dissent would deny relief because “Doody was

simultaneously looking at a written form that clearly laid out

the warnings,” and the Supreme Court has not “indicated what

effect simultaneously acknowledged written warnings might

have when the oral warnings are unclear.” Dissent at 5870,

5871. It would be unreasonable to think that the written warn-

ings remedied the harm. They said:

You have the right to have an attorney present prior

to and during questioning. (This means, if you want

one, you are allowed to have a lawyer here before

and during my questions to you. An attorney is a

lawyer who will speak for you and help you con-

cerning the crime which we think you have done.)

There’s nothing wrong with the written warnings, taken in

isolation, but Doody read the warnings at the same time the

officer offered his “explanation” of the scope of the right to

DOODY v. RYAN 5851

counsel. The written warnings don’t say that the right to coun-

sel applies to the innocent as well as the guilty, and they don’t

contradict the officer’s statement that the right would apply

only if Doody was “involved.” Assessing the Miranda warn-

ings “in their totality” and “[i]n context,” a reasonable suspect

would assume that the oral warnings clarified the written

ones. Powell, 130 S. Ct. at 1204, 1205; Dissent at 5871. The

written warnings cannot provide the “assurance” that Doody

was aware of his rights that Miranda requires.

For over forty years, it has been clearly established that

statements made during custodial interrogation cannot be

admitted into evidence unless the defendant was adequately

warned of his rights and the consequences of waiver. See

Miranda, 384 U.S. at 479. The warnings required by Miranda

are brief and very simple; most people—and certainly all

police—know them by heart. It’s not too much to ask that

police recite them as prescribed by the Supreme Court, and

not augment them in a way that will obscure their meaning

and undermine their effect.

Thanks to Miranda’s simple rule, this is a simple case.

We’ll never know whether Doody’s statements were volun-

tary, but it’s plain to see that he wasn’t properly read his

rights. We must grant his petition on that ground alone.

TALLMAN, Circuit Judge, with whom Judges RYMER and

KLEINFELD join, dissenting:

The Supreme Court has repeatedly told us to adhere to the

highly deferential standard of review of state court judgments

that the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254(d), requires in federal habeas

cases. But my colleagues continue to treat this case as if it

were on direct appeal to be reviewed de novo. The majority

will not yield to the shot across our bow fired by the Supreme

5852 DOODY v. RYAN

Court when it granted Arizona’s petition for certiorari and

vacated and remanded our original en banc decision for

reconsideration in light of Florida v. Powell, 130 S. Ct. 1195

(2010)—a case that reaffirms the Court’s precedent under

which the Arizona Court of Appeals’ decision upholding

Doody’s confession reasonably fits. See Ryan v. Doody, 131

S. Ct. 456 (Oct. 12, 2010) (Mem.). Subsequently, the Court

fired a torpedo amidships in Harrington v. Richter, 131 S. Ct.

770 (2011). But the majority steams defiantly ahead, far from

the rest of the fleet. I respectfully dissent.

Virtually ignored by my colleagues in the majority is the

fact that Arizona conducted a ten-day evidentiary hearing and

a thirty-four day trial. Four judges and twelve jurors thor-

oughly reviewed all of the circumstances surrounding

Doody’s interrogation. All concluded that his confession was

voluntary. AEDPA obligates us to affirm this conclusion

unless it was objectively unreasonable. 28 U.S.C. § 2254(d).

The majority nonetheless parses the record and re-weighs the

evidence to reach what is effectively a de novo determination

—and then strikes down the Arizona court’s decision when it

arrives at a different result.

The Supreme Court recently chastised us again for doing

this. Richter, 131 S. Ct. at 785 (“The [Ninth Circuit] Court of

Appeals’ lengthy opinion . . . discloses an improper under-

standing of § 2254(d)’s unreasonableness standard. . . . A

state court must be granted a deference and latitude that are

not in operation [on direct review].”); see also McDaniel v.

Brown, 130 S. Ct. 665, 673 (2010) (“[T]he [Ninth Circuit]

Court of Appeals’ discussion of the . . . evidence departed

from the deferential review that . . . § 2254(d)(1) demand-

[s].”); Knowles v. Mirzayance, 129 S. Ct. 1411, 1419-20

(2009) (“The [Ninth Circuit] Court of Appeals reached [the

wrong] result based, in large measure, on its application of an

improper standard of review. . . . The question is not whether

a federal court believes the state court’s determination . . . was

incorrect but whether that determination was unreasonable—

DOODY v. RYAN 5853

a substantially higher threshold.”) (internal quotation marks

omitted); Waddington v. Sarausad, 129 S. Ct. 823, 833 (2009)

(“The reasoning of the [Ninth Circuit] Court of Appeals . . .

failed to review the state courts’ resolution of this question

through the deferential lens of AEDPA[.]”); Uttecht v. Brown,

551 U.S. 1, 10 (2007) (“The requirements of [AEDPA], of

course, provide additional, and binding, directions to accord

deference. . . . By not according the required deference, the

[Ninth Circuit] Court of Appeals failed to respect the limited

role of federal habeas relief in this area prescribed by Con-

gress and by our cases.”); Schriro v. Landrigan, 550 U.S. 465,

475-80 (2007); Carey v. Musladin, 549 U.S. 70, 76-77 (2006);

Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“An ‘unrea-

sonable application of federal law is different from an incor-

rect application of federal law.’ The Ninth Circuit did not

observe this distinction, but ultimately substituted its own

judgment for that of the state court, in contravention of 28

U.S.C. § 2254(d).”) (citation omitted).

But we are unrepentant. I recognize that some of my col-

leagues would have decided this case differently than the Ari-

zona state courts did. But “[i]t bears repeating that even a

strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.”1 Richter, 131 S. Ct. at 786.

1

The majority is mistaken when it suggests that Richter’s forceful

admonitions regarding AEDPA deference apply only in the context of Str-

ickland claims. See Maj. Opinion at 5812 n.5. The fact that Richter

acknowledged both that the petitioner’s case raised a challenge to a state

court’s application of the Strickland standard, 131 S. Ct. at 780, and that

the Strickland standard is itself a deferential one, id. at 788, is unremark-

able and in no way suggests that AEDPA somehow operates differently

depending on the nature of the underlying habeas claim. Furthermore, in

Richter, the Court explicitly indicated that it took issue with the Ninth Cir-

cuit’s misapplication of the AEDPA standard generally. See id. at 785

(noting that the Ninth Circuit’s opinion under review “discloses an

improper understanding of § 2254(d)’s unreasonableness standard and of

its operation in the context of a Strickland claim”) (emphasis added).

Indeed, the AEDPA reversals I cite on pages 5852-53 are not confined to

5854 DOODY v. RYAN

The Arizona court’s factual determinations were not unrea-

sonable, nor did its legal conclusions contravene controlling

Supreme Court precedent. We should affirm the dismissal of

Doody’s habeas petition.

I

A

In August 1991, Phoenix, Arizona, was rocked by nine bru-

tal murders at a Buddhist temple. State v. Doody, 930 P.2d

440, 443 (Ariz. Ct. App. 1996). The crime scene was pure

carnage. “The victims, including six Buddhist monks, lay face

down in a circle, each shot execution-style in the head. Sev-

eral of the victims had sustained additional, non-fatal shotgun

wounds. Living quarters inside the temple had been ran-

sacked, and items of personal property, including money,

cameras, and stereo equipment, were missing.” Id. A massive

investigation followed.

Prosecutors initially charged four men from Tucson, Ari-

zona, with the murders. Id. Then, during a routine traffic stop

on Luke Air Force Base near Phoenix, police found the .22

caliber rifle used to shoot the victims. Id. The owner of the

rifle, Rolando Caratachea, denied any involvement in the

murders, but said that his roommate, Jonathan Doody, and a

friend, Alessandro Garcia, “had borrowed the rifle shortly

before the murders.” Id. at 444.

At that time, Doody was seventeen-and-one-half years old.

He was born in Thailand but moved to the United States as

Strickland claims or to any other particular type of claim. The relevance

to the case we now review of Richter’s repeated elucidations of the high

level of deference we must accord under AEDPA is in no way diminished

simply because Richter involved a different type of underlying claim.

When the Supreme Court condemns our “judicial disregard” for AEDPA,

Richter, 131 S. Ct. at 780, it is time to pay heed.

DOODY v. RYAN 5855

a child with his American stepfather, who was in the Air

Force, and his Thai mother. His mother and brother were

members of the temple where the murders occurred, and his

brother had been a novice monk there. Doody visited the tem-

ple when his brother was there. Doody spoke fluent but

lightly accented English. He was a junior in high school,

“maintained a B grade average,” was commander of the junior

Reserve Officers’ Training Corps Honor Guard and Color

Guard, and worked at the Luke Air Force Base commissary.

Id. at 445-46. Emancipated from his parents, who had moved

to Colorado, Doody lived in an apartment in Arizona with

Caratachea and another friend.

Based on the scope of the crime—which required control-

ling nine victims while ransacking the temple and then

methodically executing them—the police deduced that several

people were involved. Maricopa County Sheriff’s detectives

located Doody, dressed in his ROTC uniform, at a high school

football game on a Friday night. Id. at 443-44. Detective

Riley, who had spoken with Doody earlier in the investiga-

tion, explained there were now some additional questions

about Caratachea’s rifle and asked if Doody was willing to

come to the Sheriff’s office. Doody assented and climbed into

the detective’s car.

When they arrived, Doody was placed in what had been the

office of a deputy Maricopa County attorney rather than an

interrogation room. An officer started a tape recorder.

Although Doody was not yet a suspect, Detective Riley none-

theless advised him of his Miranda rights. Riley read each

warning from the standard juvenile Miranda form, which he

gave Doody to follow along. The written text that Doody

simultaneously read and initialed appears in the attached

Appendix. The Miranda form’s very last admonition, sepa-

rated from the numbered warnings, states, “If you want to

answer questions now without a lawyer present, you will still

have the right to stop answering at any time. You also have

the right to stop answering at any time until you talk to a law-

5856 DOODY v. RYAN

yer.” Doody indicated, by initialing the document, that he

understood this right, too. At no time did he stop the question-

ing or ask for a lawyer.

In addition to the printed text, Riley offered some explana-

tion of each right. He paused after each one while Doody indi-

cated he understood the printed right and initialed it on the

form. Riley also told Doody several times that if he had any

questions, he should feel free to ask. Doody declined to have

a parent or attorney present and clearly expressed that he was

willing to talk with the officers.

Detective Riley began the interrogation around 9:25 p.m.

by questioning Doody about his roommate’s rifle. “Doody

initially denied any knowledge of the events at the temple but,

after two and one-half hours, made inculpatory statements

and, after approximately four more hours of questioning,

admitted to being at the temple on the night of the murders.”

Id. at 444. Based on these incriminating admissions, the offi-

cers continued their questioning and Doody slowly became

more forthcoming.

The interrogation ultimately lasted nearly thirteen hours.

Over the course of the interrogation, Doody admitted he

helped plan the assault on the temple with others, including

Garcia. He recounted, “We borrowed the rifle . . . to see if we

[could] make a silencer . . . .” Tape 11, p. 25. He answered

“Yes” to the question “Were you going to use the silencer in

the temple?” Id. He said they “drove past the place twice.” Id.

at p. 3. It was “just going to be a joke and it just went down-

hill. We entered the temple, one through each door. Every-

thing was done in clockwork . . . .” Tape 10, p. 8. “We . . .

searched the place for any security.” Id. at p. 12. “They were

laying down . . . face down.” Id. at p. 14. “And then I guess,

I don’t know, somebody panicked or something, and started

firing and then constant .22 fire.” Tape 15, p. 13. “We ran out.

Got into a car. We just took off.” Tape 10, p. 14.

DOODY v. RYAN 5857

Doody claimed they originally intended only to conduct a

“war game” to see if they could surround the building without

setting off the security system, but his co-conspirators then

ransacked the living quarters and gathered the victims. Doody

maintained that someone else suggested they eliminate the

witnesses after one of the monks recognized an accomplice,

and that Doody was sent outside the building to determine

whether anyone could hear shots from inside when the nine

killings occurred. Garcia, who was being separately ques-

tioned the same night, said it was Doody who insisted they

“leave no witnesses,” and Doody who pulled the trigger.

B

Based on their interlocking confessions and evidence which

corroborated those confessions, Doody and Garcia were

charged with robbery and murder. Early in pretrial proceed-

ings, Doody moved to suppress his confession.2 The trial

court conducted an exhaustive evidentiary hearing, lasting ten

days, to determine whether Doody’s confession was volun-

tary. The officers who questioned Doody all testified, and the

court heard all thirteen hours of audio tape from the interroga-

tion. Doody did not take the stand to contradict the officers.

The written Miranda warnings Doody read and acknowledged

were admitted into evidence. The court considered all of the

relevant circumstances, credited the testimony of the detec-

tives as to Doody’s demeanor, and concluded from the totality

of the evidence presented that Doody confessed voluntarily,

after knowingly and intelligently waiving his constitutional

rights. Doody, 930 P.2d at 445.

Doody proceeded to trial, which las

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