Petition — W. J. Estelle, Jr., Director, Texas Department of Corrections v. Jerry Lane Jurek

+ - Supreme Court, U.S, “7

R0-763. FILED

NO. 80- NOV 10 1960

Meret RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

Lf

JERRY LANE JUREK,

Respondent

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR CERTIORARI

AND APPENDIX (Part I)

MARK WHITE W. BARTON BOLING

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant ANITA ASHTON

Assistant Attorney General

RICHARD E. GRAY, III

Executive Assistant P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

II.

ITT.

IV.

ok.

QUESTIONS PRESENTED

Whether the threshold requirements of 28 U.S.C.

§2254(d) must be met before voluntariness of

confessions may be considered.

What is the proper standard for review on habeas

corpus of voluntariness of confessions? Should the

the “independent review” or the “clearly

erroneous’ standard be applied to the findings of

the state courts and federal court?

Does the Sixth Amendment require appointment

of counsel during interrogation when the defend-

ant repeatedly disavows a desire for counsel?

Were the constitutional standards of the Fifth,

Sixth and Fourteenth Amendments correctly

applied to the undisputed facts in this case?

If a voluntary confession supports the jury verdict

beyond a reasonable doubt, is the admission of an

additional involuntary confession harmless

error?

ry

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TABLE OF CONTENTS

Page

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aT ida chen puiabiceaneinbegcnsnaeotesteneesooanionessntcones 2

STATUTORY PROVISIONS INVOLVED ....... eee eeseeeteeees 2

eS te 4

REASONS FOR GRANTING THE WRIT ..... eee eeeeeteeeeees 7

I. THE OPINIONS BELOW FAIL TO AGREE ON

THE PROPER STANDARD TO BE APPLIED IN

FEDERAL HABEAS CORPUS FOR A DETER-

MINATION OF VOLUNTARINESS OF A

EE ascitic sadansebentnnneinbentinsesssanstnadeenbanshsnsoncsssesosees 7

Il. EVEN APPLYING THE INDEPENDENT

REVIEW STANDARD THE MAJORITY OF THE

COURT OF APPEALS ERRONEOUSLY

DETERMINED THAT THE SECONDCONFESSION

ITE: * sasastetsnesinebovsotooniessnsschnistessecesseusoesiese 8

III. IF THE SECOND WRITTEN CONFESSION

WAS INVOLUNTARY, THE ERROR IS

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a cnsnctnnibopansndsesnnbenniensoseneindniis 13

APPENDIX A

(Opinion of the Court of Appeals) .............ceeeeeeseeeeeeees A-1

APPENDIX B

(Opinion on Petition for Rehearing and Petition for

i culoninsnason B-1

APPENDIX C

(Vacated Panel Opinion of Court of Appeals) .............. C-1

APPENDIX D

(Order and Memorandum Opinion of the

a snatnannntenutonetioaivets D-1

“5E*

TABLE OF AUTHORITIES

Cases Page

Faretta v. California, 422 U.S. 806 (1975) ccc cceecceeeceeeeees 9

Jackson v. Virginia, 443 U.S. 307 (1979) ........cceesecceeseseeeee 10

Jurek v. Estelle, mem., 480 U.S. 951 (1977) ......cceceeeesseeeees 5

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) ........... eee 6

Jurek v. State, 522 S.W.2d 934 (Tex.Crim.App. 1975) .... 5,7

Jurek v. Texas, 423 U.S. 1082 (1976) cert. granted .......... 5,7

Surette v. Texas, 428 U.S. B62 (197G) ...cceccccrsscrsccccsccescccsescescess 5

Jurek v. Texas, mem., 429 U.S. 1082 (1976) .......eeeeeesseseeees 5

Procunier v. Atchley, 400 U.S. 446 (1971) ....cccecsccsccssrseeeees 8

Constitutional and Statutory Provisions

United States Constitution, art. Vi ou... ceescsssesessssseeeeees 2

United States Constitution, art. VI ou... sseeceeereecennes 2

United States Constitution, art. XIV ou... ecssssssereeees 2

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NO. 80-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

¥,

JERRY LANE JUREK,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

The Petitioner respectfully prays that a writ of

certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Fifth Circuit

entered in this proceeding on August 11, 1980.

OPINION BELOW

The opinion of the Court of Appeals is reported at 623

F.2d 929 (5th Cir. 1980) and appears as Appendix A.

The vacated panel opinion appears as Appendix C. The

unreported, memorandum opinion of the United States

District Court for the Southern District of Texas

appears as Appendix D.

-2-

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on August 11, 1980. This petition for

certiorari was entered on August 11, 1980. This petition

for certiorari was filed with 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, art. V., in pertinent part:

“nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of

life, liberty, or property, without due process of

law;...”

United States Constitution, art. V1, in pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed. .

.and to have Assistance of Counsel for defense.”

United States Constitution, art. XIV, §1, in pertinent

part:

“No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law, nor deny to any

person within its jurisdiction the equal

protection of the law.”

28 U.S.C. §2254(d), in pertinent part:

“In any proceeding instituted in a Federal

court by an application for a writ of habeas

corpus by a person in custody pursuant to the

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judgment of a State court, a determination

after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction

in a proceeding to which the applicant for the

writ and the State or an officer or agent thereof

were parties, evidenced by a written finding,

written opinion, or other reliable and adequate

written indicia, shall be presumed to be

correct, unless the applicant shall establish or it

shall otherwise appear, or the respondent shall

admit --

(1) That the merits of the factual dispute

were not resolved in the State court

hearing;

(2) that the fact-finding procedure

employed by the State court was not

adequate te afford a full and fair hearing;

(3) That the material facts were not

adequately developed at the State court

hearing;

(4) that the State court lacked

jurisdiction of the subject matter or over

the person of the applicant in the State

court proceeding;

(5) that the applicant was an indigent and

the State court, in deprivation of his

constitutional right, failed to appoint

counsel to represent him in the State court

proceeding;

(6) that the applicant did not receive a

full, fair, and adequate hearing in the State

court proceeding; or

(7) that the applicant was otherwise

denied due process of law in the state court

proceeding;

y*

aS

(8) or unless that part of the record of the

State court proceeding in which the

determination of such factual issue was

made, pertinent to a determination of the

sufficiency of the evidence to support such

factual determination, is produced as

provided for hereinafter, and the federal

court on a consideration of such part of the

record as whole concludes that such factual

determination is not fairly supported by

the record:

And in an evidentiary hearing in the

proceeding in the federa! court, when due proof

of such factual determination has been made,

unless the existence of one or more of the

circumstances respectfully set forth in

paragraphs numbered (1) to (7), inclusive, is

shown by the applicant, otherwise appears, or

is admitted by the respondent, or unless the

court concludes pursuant to the provisions of

paragraph numbered (8) that the record in the

State court proceeding, considered as a whole,

does not fairly support such factual

determination, the burden shall rest upon the

applicant to establish by convincing evidence

that the factual determination by the State

court was erroneous.

STATEMENT OF THE CASE

Respondent was indicted by the grand jury in DeWitt

County, Texas, for the capital murder of Wendy Adams,

alleged to have occured on or about the 17th day of

August, 1973. The jury returned a verdict of guilty of

capital murder on February 1, 1974. On February 2,

1974, the jury returned unanimous affirmative answers

to the special issues on punishment. Judgment of the

sentence of death was delivered on February 27, 1974.

Respondent gave notice of appeal to the Texas Court of

Criminal Appeals. That court affirmed the appeal on

-5-

April 16, 1975. Motion for Leave to File Motion for

Rehearing was denied on May 7, 1975. Jurek v. State,

522 S.W.2d 934 (Tex.Crim.App. 1975).

Respondent filed a petition for writ of certiorari to the

Supreme Court of the United States contesting the

constitutionality of the Texas Capital Punishment

Statute and the voluntariness of his confessions.

Certiorari was granted only as to the constitutionality of

the statutes. Jurek v. Texas, 423 U.S. 1082 (1976), cert.

granted. On July 2, 1976, this Court affirmed the

Respondent’s conviction. Jurek v. Texas, 428 U.S. 262

(1976). On October 19, 1976, this Court denied rehearing

and vacated its prior order staying issuance of the

mandate. Jurek v. Texas, 429 U.S. 1082 (1976).

On October 19, 1976, Respondent was formally

sentenced by the state trial court to death. A petition for

writ of habeas corpus and application for stay of

execution were submitted to the trial court on January

10, 1977. On January 11, 1977, an identical application

was submitted to the Texas Court of Criminal Appeals.

The habeas corpus relief vas denied on January 11,

1977. On January 12, 1977, Respondent filed an

application for stay of execution in the Supreme Court of

the United States. On January 13, 1977, Respondent

filed an application for a stay of execution and an

application for writ of habeas corpus pursuant to 28

U.S.C. §2254 in the United States District Court for the

Southern District of Texas, Victoria Division. On

January 17, 1977, this Court granted a stay of execution

pending timely filing of a petition for writ of certiorari.

On March 28, 1977, this Court denied certiorari but

continued the stay of execution until April 4, 1977. Jurek

v. Estelle, 480 U.S. 951 (1977). The United States

District Court then granted a stay of execution for

Respondent on March 30, 1977. On April 11, 1977,

Respondent filed an amendment petition for writ of

habeas corpus. An evidentiary hearing was conducted

on August 1, 1977. At that hearing, Respondent called

four witnesses to testify. They were Lawrence S.

-6-

Schoenfeld, Russell L. Adams, Lawrence Taylor, who

who performed a psychological evaluation of Jurek, and

Emmett T. Summer, a lawyer who assisted in the trial

defense. Petitioner called the trial defense

lawyer George Middaugh. On January 24, 1978, the

district court entered an order and memorandum

opinion denying the writ of habeas corpus and finding

Petitioner’s confessions to have been voluntary. That

order is attached as Appendix C.

Respondent received a stay of execution from the

United States Court of Appeals for the Fifth Circuit

pending appeal. Rehearing en banc was granted by the

United States Court of Appeals on June 5, 1979,

vacating the panel decision which was handed down on

April 23, 1979. The en banc decision which is reported as

Jurek v. Estelle, 623 F.2d 929 (5th Cir. 1980) and is

attached as Appendix A reversed the judgment of the

district court and remanded the cause with directions to

grant the writ of habeas corpus instructing that

Respondent Jurek be tried without use of the second

written confession.

The majority opinion of the en banc court was written

by Judge Garza and was joined by three other judges.

That opinion found that Respondent Jurek’s first

written confession was voluntary and admissible but

that his second written confession was involuntary and

therefore inadmissible. Judge Godbold concurred

specially and filed an opinion joined by one other circuit

judge finding both written confessions involuntary and

inadmissible but the oral confession voluntary and

admissible. Judge Frank M. Johnson, Jr., concurred

specially and filed an opinion joined by six judges in

which he found all confessions, written and oral,

involuntary and inadmissible. Judge Brown concurred

in part and dissented in part and filed an opinion in

which ten other judges joined finding all confessions

voluntary and admissible. Judge Reavley dissented and

filed an opinion in which seven judges joined contesting

the majority opinion’s analysis of the facts as previously

-7-

found. Therefore, since fifteen judges agreed that the

first written confession was voluntary and admissible,

that holding stood for the majority of the court.

Seventeen judges believed that the oral confessions were

voluntary and admissible. Thirteen judges believed that

the second confession was involuntary and therefore

inadmissible. None of the judges reached the issue of

harmless error if the first confession was voluntary and

the second confession was involuntary. It is from these

opinions that this petition for certiorari is taken.

REASONS FOR GRANTING THE WRIT

a

THE OPINIONS BELOW FAIL TO AGREE

ON THE PROPER STANDARD TO BE

APPLIED IN FEDERAL HABEAS

CORPUS FOR A DETERMINATION OF

VOLUNTARINESS OF A CONFESSION.

The issue of voluntariness of the confession in this

cause was litigated in state court and the confessions

were found to be voluntary. On direct appeal to the

Texas Court of Criminal Appeals, this issue was once

again considered and the confessions were found to be

voluntary. Jurek v. State, 522 S.W.2d 934

(Tex.Crim.App. 1975). The petition for certiorari on this

issue was denied. Jurek v. Texas, 423 U.S. 1082 (1976).

The federal district court gave Respondent the

opportunity to present evidence as to the voluntariness

of his confessions although he had not raised an

exeption to the rules provided in 28 U.S.C. §2254(d).

That court found the confessions to be voluntary.

One segment of the United States Court of Appeals for

the Fifth Circuit found that the proper standard to be

applied was a standard of independent review,

notwithstanding the prior findings. (Opinions of Judge

Garza and Judge Frank M. Johnson, Jr.). Another

segment of the court was unable to take a firm stand

-8-

concerning the proper standard of review. (See, Opinion

by Judge Brown, Appendix A-58-71).

Although the circuit judges differ in their analysis as

to whether the “clearly erroneous” standard should

apply or the “independent review” standard should

apply, none of the judges addressed the application of 28

U.S.C. §2254(d) as to whether the determination should

be made. Under the standard set forth in Procunier v.

Atchley, 490 U.S. 446 (1971), there should be athreshk.!d

determination whether the Respondent would be

entitled to relief if his allegations were to be believed.

This standard was never applied. In viewing the

threshold determination it is significant that Jerry Lane

Jurek has never taken the stand or asserted personally

that his confession was in any way involuntary.

Certiorari should be granted in this cause to consider

and clarify the proper standard for review of

voluntariness of a confession in the context of 28 U.S.C.

§2254.

II.

EVEN APPLYING THE INDEPENDENT

REVIEW STANDARD THE MAJORITY OF

THE COURT OF APPEALS ERRONEOUS-

LY DETERMINED THAT THE SECOND

CONFESSION WAS INVOLUNTARY.

The State, while not conceding that Respondent

alleged or proved sufficient new facts to require

reversal, believes that the confessions were voluntary.

The second confession was found to be involuntary

principly because of the pre-confession conduct of the

police and prosecuting attorneys and Respondent

Jurek’s limited mental capacity. In the opinion

concurring in part and dissenting in part, Judge Brown

thoroughly discussed all of the facts elicited in evidence

both at the state trial and the federal habeas corpus

proceedings. After this lengthy analysis eleven judges

found that all of the confessions were voluntary.

-9-

Petitioner agrees with the undisputed facts set forth in

the opinion of Judge Brown.

The opinion by Judge Garza indicated tliat the second

confession was involuntary since Jurek did not have an

attorney for the second confession. That opinion

indicates that an attorney should be appointed in spite of

a defendant’s assertion that he does not want an

attorney. The record reflects that Jurek was thoroughly

warned and advised of the right to have an attorney

and was repeatedly asked if he wanted an attorney.

Further, one of the witnesses to the confession waa an

attorney and additionally warned Jurek of his rights.

The Constitution does not require that an attorney be

appointed for a defendant who does not desire counsel.

See, Faretta v. California, 422 U.S. 806 (1975).

The opinion by Judge Johnson re-evaluated the case

and concluded that “each [confession] was the result of

frequent interrogation, carried on by a number of

questioners, often at odd hours and in secluded places,

that continued in the face of Jurek’s evident

unwillingness to admit guilt. The authorities

responsible displayed an intentional disregard of state

law. At the time the confessions were obtained, Jurek

was apparently weak from lack of food and sleep,

isolated from family, friends, and legal counsel, and in

legitimate apprehension of imminent physical harm.”

There are no facts in the record to support these

allegations nor has any evidence been presented by

Jurek nor by his attorneys when given the opportunity

at the federal district court hearing to prove these

conclusions by this segment of the court.

The evidence in the record shows that Jurek stated he

was not in any way coerced into making the confessions.

(Appendix A-108-112). One of the witnesses to the con-

fessions stated “I don’t think there was any doubt in the

boy’s mind that evening but what he knew what he was

signing and the consequences of signing.” (Tr., Vol. IV,

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1415). Although Jurek had been in custody the evidence

is undisputed that at the time of the second confession he

was fresh and alert. (Tr. Vol. VI, 1331, 1836-37). There is

no evidence anywhere in the record of physical violence,

coercion, or threats to Jurek.

Certiorari should be granted in that a majority of

judges on the Court of Appeals incorrectly applied the

standards of the Fifth and Sixth Amendments to the

United States Constitution in finding the second written

confession involuntary.

ITT.

IF THE SECOND WRITTEN CONFESSION

WAS INVOLUNTARY, THE ERROR IS

HARMLESS.

A majority of the court below found the first written

confession to be voluntary. In that confession Jurek

confessed to the murder and confessed to the attempted

kidnapping of Wendy Adams. This evidence was

sufficient to support the jury’s findings of capital

murder during the course of attempting to commit

kidnapping. Therefore, the error, if any, in the

admission of the second written confession in which

Jurek also admitted attempted rape is rendered

harmless since the evidence, including the first written

confession, was sufficient to support the jury’s findings.

See, Jackson v. Virginia, 443 U.S. 307 (1979).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant Attorney General

at.

RICHARD E. GRAY, III

Executive Assistant

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

ANITA ASHTON

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

A-1

Jerry Lane JUREK,

Petitioner-Appellant,

Vv.

W. J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 78-1374.

United States Court of Appeals,

Fifth Circuit.

Aug. 11, 1980.

Petitioner, who was convicted of capital murder and

sentenced to death in state court, petitioned for writ of

habeas corpus. The United States District Court for the

Southern District of Texas, Owen D. Cox, J., denied the

petition, and appeal was taken. The United States Court

of Appeals for the Fifth Circuit, Goldberg, Circuit

Judge, 593 F.2d 672, reversed and remanded. On

rehearing en banc, the Court of Appeals, Garza, Circuit

Judge, held that defendant’s first confession was

voluntarily given and was properly admitted at trial,

but defendant’s second confession was involuntarily

given and its use at trial was improper.

Reversed and remanded with directions.

Godbold, Circuit Judge, concurred specially and filed

opinion in which Alvin B. Rubin, Circuit Judge,

concurred.

Frank M. Johnson, Jr., Circuit Judge, concurred

specially and filed opinion in which Kravitch, Hatchett,

Anderson, Randall, Tate and Thomas A. Clark, Circuit

Judges, joined.

Brown, Circuit Judge, concurred in part and

dissented in part and filed opinion in which Coleman,

Chief Judge, and Ainsworth, Charles Clark, Gee,

A-2

Tjoflat, Hill, Fay, Vance, Henderson and Reavley,

Circuit Judges, joined.

Reavley, Circuit Judge, dissented and filed opinion in

which Coleman, Chief Judge, and Brown, Tjoflat,

Ainsworth, Charles Clark, Gee and Fay, Circuit Judges,

joined.

Appeal from the United States District Court for the

Southern District of Texas.

Before COLEMAN, Chief Judge, BROWN,

AINSWORTH, GODBOLD, CHARLES CLARK,

RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN,

VANCE, KRAVITCH, FRANK M. JOHNSON, JR.,

GARZA, HENDERSON, REAVLEY, POLITZ,

HATCHETT, ANDERSON, RANDALL, TATE,

SAM D. JOHNSON, and THOMAS A. CLARK, Circuit

Judges.*

GARZA, Circuit Judge:

We have gathered en banc to consider the

circumstances surrounding the arrest, interrogation,

confession, and trial of Jerry Lane Jurek, convicted of

murder and sentenced to death in a Texas state district

court. A panel of this Court has reversed a federal

district court’s denial of Jurek’s petition for a writ of

habeas corpus. Jurek v. Estelle, 593 F.2d 672 (5th Cir.

1979). The panel majority based its decision upon

conclusions that Jurek’s two confessions were

*Judge Goldberg, was a member of the en banc court under 28

U.S.C. § 46(c) and participated in the oral argument of the case en

banc. Since that time he has taken senior status and therefore does

not participate in the consideration or decision of this case. Judge

Jerre S. Williams did not participate in the oral argument and the

conference on this case and, therefore, does not participate in this

decision.

A-3

involuntary, and that the exclusion of certain veniremen

at his trial contravened the rule of Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 766

(1968). A new trial was held to be required.

On reconsideration en banc, we have concluded that

Jurek’s first confession was voluntarily given, and that

it may constitutionally be admitted in a new trial. We

have also concluded that the second confession was

involuntarily given, and may not be used.! Grounding

our decision on those bases, we need not and do not reach

the Witherspoon issue.

THE STANDARD OF REVIEW

Weare met at the outset with questions relating to the

standard of review. In considering a district court’s

denial of habeas corpus relief sought on the ground of an

admitted confession’s involuntariness, must we accept

the findings of the district court unless clearly

erroneous? If there were no specific findings on crucial

issues, what is our role? These questions arise from a

collision of authorities.

On one hand, the Supreme Court has frequently

stated that it is our affirmative duty “to examine the

entire record and make an independent determination

1A majority of the judges on this en banc court have determined

that the first confession was voluntary; a majority have determined

that the second confession was involuntary, mandating the reversal

of the district court, the granting of habeas corpus, and the

inadmissibility of the second confession in any subsequent retrial of

Jurek. This opinion speaks for the majority of the court on each

issue. Judges BROWN and REAVLEY have filed separate

opinions, joined by those listed therein, in which they dissent in part

on the ground that the second confession should also be held

voluntary and admissible; they would accordingly affirm the

district court. Judges GODBOLD and FRANK M. JOHNSON, JR.

have also filed separate opinions, joined by those listed, in which

they dissent in part on the ground that the first confession should be

involuntary and inadmissible.

A-4

of the ultimate issue of voluntariness.” Beckwith v.

United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48

L.Ed.2d 1 (1976 ). See also Davis v. North Carolina, 384

U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895

(1966); Haynes v. Washington, 373 U.S. 503, 515-16, 83

S.Ct. 1836, 1344, 10 L.Ed.2d 513 (1963); Spano v. New

York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d

1265 (1959); Ashcraft v. Tennessee, 322 U.S. 143, 147-48,

64 S.Ct. 921, 923, 88 L.Ed. 1192 (1944); Lisenba v.

California, 314 U.S. 219, 237, 62 S.Ct. 280, 290, 86 L.Ed.

166 (1941). This duty is not “foreclosed by the finding of

a court, or the verdict of a jury, or both.” Lisenba, 314

U.S. at 237-38, 62 S.Ct. at 290.

On the other hand, we are confronted by the well-

established rule that factual questions in habeas corpus

proceedings should be determined by the district court

and that its factual conclusions are binding on the court

of appeals unless clearly erroneous. Patterson v. United

States, 487 F.2d 341 (5 Cir. 1973); Fed.R.Civ.P. 52,

Accord: United States ex rel. Henne v. Fike, 563 F.2d 809,

813 (7 Cir. 1977); Belle v. Gunn, 532 F.2d 1288, 1291 (9

Cir. 1976); Leasure v. Lockhart, 509 F.2d 23, 25 (8 Cir.

1975); United States ex rel. Marino v. Rundle, 464 F.2d

149 (3 Cir. 1972); Zovluck v. United States, 488 F.2d 339,

341 (2 Cir. 1971); Monnich v. Kropp, 408 F.2d 356, 357 (6

Cir. 1969); Linebarger v. Oklahoma, 404 F.2d 1092, 1094

(10 Cir. 1968); Vanater v. Boles, 377 F.2d 898, 900 (4 Cir.

1967).

The panel majority, citing the opinion of the Supreme

Court in Beckwith, supra, concluded that “we may

overturn the district court’s conclusion on [the ultimate

issue of voluntariness] even if it is not clearly erroneous.”

593 F.2d 672 at 677. Plainly, that is not the law with

regard to findings of fact. We will not disregard or

overturn specific findings of fact made by the district

court unless they are clearly erroneous. Pursuant to our

duty to examine the “entire” record and make an

independent appraisal of the voluntariness issue,

however, we may, where the district court made no

A-5

findings on matters crucial to the ultimate

determination, reach into the record and rely on

undisputed facts clearly supported therein. If such

clarity does not appear, a remand for further findings

may be in order. We note as a caveat that where someor

all of the evidence was not the live testimony of

witnesses, but instead consisted of transcripts,

depositions, or documents reviewed by the lower court,

the clearly erroneous rule will not apply with full force

where “the appellate court is in as good a position as the

lower court to evaluate the testimony that is crucial to

the case.” Caradelis v. Refineria Panama, S.A., 384

F.2d 589, 593 (5 Cir. 1967). Thus, we may draw our own

inferences from such evidence. See Nash v. Estelle, 597

F.2d 513, 518 (5 Cir. 1979)(en banc). In passing on the

ultimate issue of voluntariness, we may substitute our

own judgment even in the absence of a conclusion that

the district court’s ruling was clearly erroneous. No less

is required by the admonition of the Supreme Court to

make an “independent” review.

The facts and procedural history of this case have

been oft-recited, yet we must relate them in some detail

once more, for the chronology is crucial. Counsel for

Jurek have argued that there are no disputed fact issues,

and that on the undisputed facts Jurek’s confessions

were involuntary as a matter of law. It must be noted,

however, that in several important areas the findings of

fact made by the district court were not comprehensive.

The following recital will, where necessary, reach

beyond those findings to incorporate undisputed facts

which are clearly supported in the record, or portions of

the state record and depositions from which we are able

to draw our own inferences.

THE FACTS

The victim, ten year old Wendy Adams of Cuero,

Texas, disappeared on August 16, 1973. Jurek was

awakened at his parent’s home at approximately one

o’clock on the morning of August 17th by two police

A-6

officers acting on a report that she had been seen

screaming for help in Jurek’s truck as it sped through

Cuero. One of the officers was her father, Ronnie

Adams. Jurek was questioned briefly, and was read

Miranda warnings by Adams. He was taken barefoot

and without a shirt to the Cuero jail, where he was

logged in and placed under arrest at 2:30 a.m. The

authorities discovered an outstanding arrest warrant on

a “hot check” charge, by which they could hold him.

Jurek was questioned again that morning at about

9:00. At some point, he volunteered to take a polygraph

examination. He was taken in the afternoon to Austin,

the state capitol approximately 120 miles from Cuero.

Upon being tested, he was confronted with results that

he had lied. As his counsel stated on oral argument, “he

turned to science for help, and science turned him

down.” Jurek then gave an oral confession of

responsibility for Wendy Adams’ death, stating that her

body had been thrown into the Guadalupe River. While

he apparently gave several conflicting versions of the

crime, his statement led to the discovery of the girl’s

body on the next morning. It was the first time that the

investigating authorities had learned she was dead.?

Jurek was returned to Cuero and taken immediately

before a magistrate, Justice of the Peace Albert B. Ley.

Judge Ley read him the list of rights printed on a

“Magistrate’s Certificate” form.’ Ley testified as to what

2We have no record of precisely what Jurek said at the

examination. His counsel does not dispute that an oral confession

was made.

3Those warnings follow:

1.) He was entitled to the services of a lawyer of his own

choice to represent and advise him before making any

statements or answering any questions by any saan officer or

attorney representing the State.

A-7

occurred at this interview in the state district court,

both at a suppression hearing on the confessions, and at

trial. Since the federal district court had before it

nothing more than the same transcript of that testimony

that we now review, “our interpretation of the interview

is unconstrained by the usual strictures of the clearly

erroneous standard.” Nash v. Estelle, 597 F.2d at 518.

At the suppression hearing, Ley testified that Jurek

had stated that he understood the rights read to him. In

response to a question concerning his knowledge of the

Jurek family’s financial standing, directed toward

ascertaining the reason for the high bond he had set, Ley

responded:

A Well, other than just hearsay of the financial

standing of them. I couldn’t be positive about

the standing of them, other than he did tell me

when we talked about it, that—that he could not

afford a lawyer and the Court would have to

appoint him one. And I said, well, that’s what it

states in here, that if you are unable and if you

sign a pauper’s oath, why, then they would set—

we would appoint an attorney to represent you.

At trial on the merits, Ley was again questioned as to

the appointment of counsel, and the following colloquy

2.) If he could not afford to hire a lawyer, he could ask for

and receive the services of a lawyer appointed to represent and

advise him before making any statements or answering any

questions by any peace officer or attorney representing the

State, without any cost or charge to him.

3). He had the right to remain silent, not to answer any

questions or make any statements at all, nor incriminate

himself in any manner.

4.) Anything he said could and would be used against him in

a court or courts of law for the offense or offenses of which he

might be accused.

5.) He could refuse to answer any questions at any time, and

he could stop answering questions at any time.

A-8

occurred:

Q_ All right. When you came to that part of the

warning which says that he has the right to

have an attorney—

A That’s right.

Q —appointed, did you go into that with any

detail?

A_ I went into it with him and asked him if he

wanted an attorney with him before I finished

reading it. And before I started reading it, I

asked him, and he said he didn’t just to go ahead

and read it.

The federal district court found that Ley quoted Jurek

as stating, “he could not afford a lawyer and the court

would have to appoint one for him.” It disregarded the

later testimony we have quoted, which is important toa

full understanding of the “need for counsel” statement

made by Jurek.

The principals involved in the interrogation of Jurek

following his appearance before Judge Ley were De

Witt County Attorney Robert Post, and District

Attorney Wiley Cheatham, who later prosecuted the

case at trial. Post testified at Jurek’s trial as to the events

surrounding the confessions, and Cheatham was

deposed before the instant habeas corpus proceeding.

As with the Ley testimony in the state court we may

examine the entirety of their testimony, the district

court below having considered only the bare

transcripts.

After Jurek signed the Magistrate’s Certificate, he

and Cheatham made one trip toa place where Jurek said

the body might be found. It was not discovered.

Cheatham testified by deposition at the federal habeas

corpus proceeding that as arrangements were being

made to transfer Jurek to Victoria, Texas, for the night,

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the accused asked to speak with him, and the process of

obtaining a written confession began.‘ Post and

Cheatham were present when Jurek gave the first

written confession. Cheatham typed it himself, as it was

given.® At 1:15 a.m., Jurek signed the confession. Two

persons witnessed his signture, and one of them testified

that he was warned of his rights again, and that the

statement was voluntary. The district court noted

County Attorney Post’s testimony at the state

4Under the provision of the Texas Code of Criminal Procedure

governing the admissibility of confessions in effect at that time, it

was obviously preferable for the prosecution to attempt the

introduction of a written confession as opposed to an oral one. An

oral confession was relevantly admissible under

Tex.Code.Crim.Proc. Art. 38.22(1) if under subsection (a) it was

“shown to be the voluntary statement of [an] accused taken in the

presence of an examining court in accordance with law,” or, under

subsection (e), it included “a statement of facts [and] circumstances

that are found to be true, which conduce to establish [the guilt of

the accused], such as the finding of secreted or stolen property, or

the instrument with which . . . the offense was committed.” This

version of article 38.22 was effective between August, 1967 and

August, 1977.

5District Attorney Cheatham testified with regard to the first

confession:

Q Now, when you typed the statement, did you use his exact

words? How did you—how did you arrive at that?

A As nearly as possible.

©

Did you omit anything that he said?

A The problem in typing on of these statements is—ask if

its in his words as near as I can type it. It was—you under-

stand when they give these statements, they don’t just

start at the first and smoothly go all the way. They'll go

along and back up and tell you seomthing and we've

probably let him—and again, I’m talking about, about

generals, about letting him breathe, well, talk all the way

through and then back and say, we'll say okay. Let’s

start and get it down or something like that.

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suppression hearing that Jurek had stated before

signing that he did not want an attorney.

The first confession is composed of simple,

ungrammatical prose. Jurek stated that he had asked

Wendy Adams at the Cuero swimming pool to go riding

in his truck, and that he had driven “out to Hell’s Gate

Bridge” with the girl in the back of the truck. Jurek

recounted that at the bridge she had criticized his

drinking, and Jurek’s brother’s neglect of his family. He

stated that he had become enraged, and began choking

her. When she was still, he threw her into the river.

There was nothing to support a theory that Jurek had

kidnapped the girl, or had attempted sexual relations

with her.

The lack of such aggravating factors is crucial to an

understanding of the events which followed. As the

panel opinion noted, 593 F.2d at 675 n.4, under the

relevant Texas Penal Code provision in effect at the time

of this crime, the crime of murder could be “punishable

by death only if an aggravating factor was present. See

Tex.Penal Code Art. 1257(b).” (For current version, see

Tex. Penal Code Ann. Art. 1903). Jurek was charged

with having committed murder in the course of

kidnapping and attempted rape. The first confession

did not bear these accusations out, and examination of

Wendy Adams’ body yielded no suggestion of attempted

rape or of any sexual contact.

Following his signing of the confession, Jurek was

transferred to the jail at Victoria, approximately fifty

miles away, for what we are told were security reasons.

At about 10:00 a.m. the victim’s body was found floating

in the Guadalupe River. That afternoon Jurek was

returned to Cuero for further interrogation. No court-

appointed attorney was waiting. Cheatham testified as

to his motivation for further questioning:

Q_ Iunderstand. What was the purposes of taking

the second statement?

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Well, we found out there were parts of the first

statement that we felt were incorrect, not true.

There’s no question that this young man was

reluctant as far as you recall, were concerned,

to tell you the truth about what happened?

Well, you’re going to have to be—your state-

ment is so broad I can’t answer without giving

you—or you could take several different views

of what my answer was. If you'll be more

specific.

Well, the first written statement he didn’t—in

your opinion, was—upon what you had heard

and read about the case, he didn’t tell you the

whole truth about it?

I questioned the truth, but I had to put it down

like he gave it to me. I would have questioned it.

In fact, I don’t think—I think Mr. Middaugh

has confirmed my suspicions about how bad it

was, but I don’t think he ever told us all of what

I felt that he could have said. But again, I have

to put it down, what he says, not what I think or

feel like had happened.

Yes, but as far as the taking of the first state-

ment that was in writing, was concerned, he

was reluctant to tell you the whole truth in your

opinion based upon what you knew about the

case?

Well, the way you’re putting it, you’re making

it—I can’t answer yes or no, I have to qualify—

He just didn’t tell you, in your opinion, all the

truth on this first statement?

Well, I felt like there was sexual involvement

all along, but he didn’t say that so I couldn’t

put it in there. I wouldn’t have put it in.

A-12

This testimony echoed that of Post at Jurek’s trial:

A We just felt that he knew more than what he

was telling us, as to the reasons, and what-not.

Q Was this just a feeling on your part?

A_ Yes, sir.

On Jurek’s return to Cuero, he was brought to Post’s

office. There, interrogation by Post, Cheatham, and

several others began. Cheatham testified that:

“, . neither he [Post] nor I did much

questioning. I more or less related to him that I

felt a part of his statement was not correct, that

I felt that there was sex or things like that

involved and he was pretty brief and he said,

well, I’m going to stand on my first statement

and I said well, if that’s the way you feel and I

had a hard long day and | got up and went out to

the hall.”

Post recounted at the state trial that after Cheatham

left, Jurek indicated that he wanted to talk. Cheatham

returned, and Jurek was taken to his office. The second

confession was written in longhand by Post, and typed

by Cheatham’s secretary. Post testified that he put

Jurek’s own words down, "as near as possible as I could.

The correct grammar and composition of this

confession are, however, vastly different from those of

the first. It would be impossible to conclude that the

same person gave each confession verbatim. The panel

majority quoted a sentence in the second confession: “in

the statement that I gave him I did not tell the truth

about the conversation I had with Wendy at the river

and the prior discussion about trying to find some girls

to pick up and I now herein wish to correct that

statement.” It did not, however, note the facial

distinction between the two statements. The district

court did not mention the composition of either.

A-13

In the second confession Jurek stated that he had

strangled the child after she refused to have sexual

relations with him. Post was questioned as to whether

Jurek was informed of the import of this statement:

Q_... But did you really explain to the defendant

what the effect of this statement was? Did you

at any time tell the defendant that if he signed

this second statement he was sending himself to

the electric chair?

A No, Sir. I don’t think I did.

Not having been informed of its significance, Jurek

signed what was in effect his death warrant. At the time

he did so he had been in custody forty-two hours and had

seen neither his parents, nor a lawyer.

TRIAL, APPEALS, AND HABEAS CORPUS

Counsel for Jurek was appointed by Judge Ley after

the second confession had been signed. The appointment

was confirmed by State District Judge Kelly. The

attorneys, George Middaugh and Emmett Summers

III, moved to suppress the written confessions. Their

motion was denied, and both confessions were admitted.

Jurek was convicted of murder, and was sentenced to

death in the punishment phase of his trial, under the

bifurcated Texas system.

The Texas Court of Criminal Appeals affirmed,

rejecting an argument that the confessions were

involuntary. Jurek v. State, 522 S.W.2d 934, 942-43

(Tex.Cr.App. 1975). The Supreme Court granted

certiorari, 423 U.S. 238, but only on the issue of the

validity of the Texas death penalty statute. It affirmed,

holding the state law constitutional. Jurek v. Texas, 428

U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The

action of the Court of Criminal Appeals in upholding the

admission of the confessions had been complained of in

Jurek’s petition for certiorari.

A-14

After the Supreme Court denied rehearing, the state

district court formally sentenced Jurek, and set his

execution for January 29, 1977. Petitions for habeas

corpus were denied by the state trial court and the Court

of Criminal Appeals on January 10th and 11th. On

January 12th petitioner filed an application for a stay of

execution in the Supreme Court, and on January 13th he

filed a stay application and an application for a writ of

habeas corpus in the United States District Court for the

Southern District of Texas. On January 17th, the

Supreme Court granted a stay pending the filing of a

petition for certiorari. It denied certiorari on March

28th, stating:

“Without intimating any views on the merits of

the questions presented to the United States

District Court for the Southern District of

Texas in petitioner’s pending application for a

writ of habeas corpus, [the] petition for [a] writ

of certiorari [is] denied. . .” 480 U.S. 951, 97

S.Ct. 1592, 51 L.Ed.2d 800 (1977).

The federal district court then granted a stay of

execution on March 30th and began consideration of the

habeas corpus application.

The application was based on numerous grounds, the

voluntariness of Jurek’s confessions and the

Witherspoon issue among them. The district court held

an evidentiary hearing at which three doctors and one of

Jurek’s trial attorneys testified.

The doctors’ testimony went to one important facet of

this case, the issue of Jurek’s mental capacity. The

district court found that “testimony at the evidentiary

hearing, as well as expert testimony during the trial of

Jurek, established that petitioner is an individual of

below-average intelligence, mildly retarded, with

possible organic brain damage.” In another part of the

opinion, it stated that “[J]Jurek’s intelligence is below

average, or ‘dull normal.’” While the medical testimony

A-15

was in some conflict, and the quoted conclusions may

somewhat overstate the extend of Jurek’s mental

limitations, we cannot say that these holdings were

clearly erroneous.

The district court, on the basis of its evidentiary

hearing and briefs submitted by the parties, denied the

habeas corpus application in an unpublished

memorandum opinion. A panel of this court, cited

supra, concluded that under the totality of the

circumstances both confessions were involuntary, and

that error in the state court under the Witherspoon

doctrine also mandated a new trial. Chief Judge

Coleman dissented, arguing that both confessions were

voluntary, and that the Witherspoon issue should not be

reached. A petition for rehearing en banc was granted

by a majority of the judges then on this court. Jurek v.

Estelle, 597 F.2d 590 (5 Cir. 1979).

CONSTITUTIONAL STANDARDS

The panel majority opinion provides an exhaustive

survey of the case law relating to the voluntariness of

confessions. See 593 F.2d 676-79. We do not dispute the

validity of the principles stated therein, but differ only

on their application to the facts of this case.

The panel majority noted that there is no “talismanic”

test yielding a formula for a mechanical determination

of voluntariness. Schneckloth v. Bustamonte, 412 U.S.

218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (19783). It

recited a number of expressions by the Supreme Court

of the fundamental requirements for voluntariness.®

6The panel opinion recites, 593 F.2d 672 at 676:

To be voluntary a confession must be “the product of an

essentially free and unconstrained choice.” Columbe v.

Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6

L.Ed.2d 1037 (1961). The decision to confess must be

“freely self-determined,” Rogers v. Richmond, 365 U.S.

A-16

Those statements may be synthesized to require that in

order to find Jurek’s confession voluntary, we must

conclude that he made an independent and informed

choice of his own free will, possessing the capability to

do so, his will not being overborne by the pressures and

circumstances swirling around him. The burden of

proving facts which would lead to an opposite conclusion

is on the habeas corpus applicant. Bruce v. Estelle, 536

F.2d 1051 (5 Cir. 1976).

This is, necessarily, a case-by-case endeavor. We must

weigh the totality of the circumstances and examine

their impace on Jerry Lane Jurek as to each of his

confessions, guided by those cases which have identified

factors, “red flags” which will arouse the suspicion and

close scrutiny of the reviewing court. See Fikes v.

Alabama, 281, 284, 1 L.Ed.2d 246 (1957). We must

determine whether the sum of the circumstances

compels a finding of involuntariness.

It has been repeatedly argued that the confessions are

simply the truth, and the state has frequently invoked

the brutality of the crime. We are bound by our oaths to

bar such considerations from our decision of this case.

“We are not called upon in this proceeding to pass on the

guilt or innocence of the petitioner of the atrocious crime

that was committed.” Davis v. North Carolina, 384 U.S.

737, 739, 86 S.Ct. 1761, 1763, 16 L.Ed.2d 895 (1966). The

issue of voluntariness must be addressed “with complete

disregard of whether or not petitioner in fact spoke the

truth.” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct.

735, 741, 5 L.Ed.2d 760 (1961).

534, 544, 81 S.Ct. 735, 741, 5 L.Fd.2d 760 (1961), “the

product of a rational intellect and a free will,” Blackburn

v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4

L.Ed.2d 242 (1960). The defendant’s “will to resist,”

Rogers v. Richmond, 365 U.S. at 544, 81 S.Ct. at 741, must

not be overborne; nor can his “capacity for self-

determination [be] critically impaired.” Culombe v.

Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879.

A-17

The panel relied on anumber of factors in reaching its

conclusion of involuntariness. It noted Jurek’s limited

verbal intelligence, and the problem of “suggestibility”

flowing therefrom. Secondly, it relied upon a conclusion

that Jurek’s confessions were apparently not in his own

words. Third, it took into account the “manifest

attitude” of the prosecutors toward Jurek, as reflected

by their actions. Emphasis was placed upon Jurek’s

partial lack of clothing when taken into custody, the

movements from Cuero to Austin to Cuero and to

Victoriak, and that the accused saw neither counsel nor

family for forty-two hours, covering the period in which

the confessions were given. The majority fourthly

identified the failure to appoint an attorney

immediately following Jurek’s “request” before the

magistrate. Finally, it was noted that the prosecuting

authorities did not “relent” following Jurek’s first

confession, evincing a “purposeful interrogation”

directed not toward solving the crime, but to securing a

statement on which they could convicte [or enhance the

punishment of] Jurek. On reconsideration en banc, it is

instructive to begin by examining each of these factors.

JUREK’S MENTAL LIMITATION

In considering the voluntariness of a confession, this

court must take into account a defendant’s mental

limitations, to determine whether through

susceptibility to surrounding pressures or inability to

comprehend the circumstances, the confession was nota

product of his own free will. The Supreme Court has

made clear that such an inquiry involves “a weighing of

the circumstances of pressure against the power of

resistance of the person confessing.” Stein v. New York,

346 U.S. 156, 185, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522

(1953). The concern in a case involving a defendant of

subnormal intelligence is one of suggestibility. See Sims

v. Georgia, 389 U.S. 404, 88 S.Ct. 53, 19 L.Ed.2d 634

(1967); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct.

1860, 6 L.Ed.2d 1037 (1961); Fikes v. Alabama, 352 U.S.

191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). Doubtless, if the

A-18

prosecutors pursue a specific object in the interrogation

of such an accused, and the resulting confession bears

the precise fruit of their aims, it will be doubly suspect.

In this case, the district court did not find, and the

record would not support a finding that Jurek was so

mentally deficient that his confessions must necessarily

be held involuntary, or that he could not understand the

circumstances surrounding his interrogation and

confession. Questions of suggestibility and possible

overreaching are raised, however, and must be factored

into a consideration of the totality of the circumstances.

THE COMPOSITION OF THE CONFESSIONS

We have noted that there is an obvious facial

distinction between the two confessions. The first

statement could plausibly be attributed to Jurek’s own

words. We must view incredulously, however, any

suggestion that the second confession came directly

from the accused. It is noteworthy that the second was

taken in longhand by a prosecutor and then typed.

The panel majority was doubtless correct in its

statement that prosecution-composed confessions are

highly suspect, particularly where the accused is of

below normal intelligence, citing Spano v. New York,

360 U.S. 315, 322, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265

(1959); Blackburn v. Alabama, 361 U.S. 199, 204, 207-2,

80 S.Ct. 274, 278, 280, 4 L.Ed.2d 242 (1960); Fikes v.

Alabama, 352 U.S. 191, 195, 77S.Ct. 281, 283, 1 L.Ed.2d

246 (1957). As to the first confession, we have

undisputed testimony that it was taken word for word as

closely as possible, and a document that, from the four

corners, does not contradict the testimony. With the

second confession, however, we have the same

testimony, but a document which could not have been

attributed to the author of the first, is far too

sophisticated in its grammar to be consistent with the

medical testimony concerning Jurek’s intelligence, and

contains, as the panel majority noted, “even a touch of

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legalese.” We will, accordingly, look on the second

confession with that suspicion mandated by the

Supreme Court.

JUREK’S “REQUEST” FOR COUNSEL

The panel majority placed great emphasis on Jurek’s

statement before the magistrate that he could not afford

a lawyer and that the court would have to appoint one for

him. Noting that the district court had held that Jurek’s

rights under Miranda v. Arizona, 384 U.S. 436, 86S.Ct.

1602, 16 L.Ed.2d 694 (1965), were not violated by the

failure to appoint counsel immediately, the panel

majority cited United States v. Priest, 409 F.2d 491 at

493 (5 Cir. 1969), for the proposition that “any

subsequent ‘waiver’ of counsel—such as the statement

Jurek made to the county attorney before his first

confession—has no legal significance.” 593 F.2d at 679.

However, it expressly declined to “decide whether the

magistrate’s inexplicable failure to appoint counsel, and

the subsequent continued interrogation, formally

violated Miranda;” rather, it considered the matter “to

be further evidence of the involuntariness of his

confessions.” Jd.

The district court concluded that “Jurek told the

magistrate that he could not afford counsel .. . It is not

clear that Jurek asked for counsel at that time.” and

found that “(T]he record in this case shows conclusively

that Jurek was asked if he wanted counsel, but Jurek

clearly declined the right to counsel.”

We agree that the question should be considered as

evidence of involuntariness. We believe, however, that

the district court’s findings were correct, and that they

both negate any conclusion that Miranda was violated,

and demonstrate the minimal effect of the lack of

immediate assistance on the voluntariness issue.

Priest, relied on by the panel majority, announced a

per se ruling holding any waiver of counsel ineffective

after a request for assistance was made. The rule of

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Priest was limited by this court, sitting en banc, in Nash

v. Estelle, 597 F.2d 518 (1979). There, the court

construed Priest to bar any inquiry as to waiver wherea

request for counsel in wnequivocal, and when the request

is disregarded and questioning proceeds. 597 F.2d at

517. It was further held that where a suspect has been

informed of his rights and expresses both a desire for

counsel and a wish to continue the interview without

immediate assistance, it is proper for the authorities to

make further inquiry to clarify his wishes. Jd. Priest

involved an inequivocal request for counsel, and

therefore this case is far closer to Nash. In a recent

decision involving a factual situation similar to the one

before us, the opinion of this court per Judge Roney

contains an exhaustive analysis of these cases and

reaches the same conclusion we make here. Blasingame

v. Estelle, 604 F.2d 893 (5 Cir. 1979).

Whenever a question of waiver of counsel arises, a

federal court must look to the totality of the

circumstances surrounding the alleged waiver to

determine whether, in truth and in fact, a knowing

waiver occurred. Under this analysis we cannot

consider Jurek’s statement to Judge Ley in naked

isolation. Rather, it must be read in conjunction with his

later remarks that he did not desire counsel upon being

asked if one should be secured then. This clarification

was permissible under Nash, for the import of Jurek’s

first statement was that he could not afford a lawyer and

would eventually need one. It was not an unequivocal

request.

Therefore, we are not faced with a situation where a

request for counsel was denied or ignored. Rather, the

authorities did not independently, and against Jurek’s

clearly expressed desire to proceed withcut counsel,

appoint a lawyer immediately. This, and no more, must

be considered along with the other events in passing

judgment on the voluntariness of these confessions.

A-21

PROSECUTORIAL MOTIVATION

We must be alert, as the panel majority stated, to the

“manifest attitude” of the police toward the defendant.

Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879;

Smith v. Heard, 315 F.2d 692, 694 (5 Cir. 1963). The

Supreme Court has mandated “the most careful

scrutiny” where the primary aim of prosecutors was

“securing a statement from defendant on which they

could convict [the defendant]” as opposed to solving the

crime. Spano v. New York, 360 U.S. at 323-24, 79S.Ct. at

1207. We must also bear in mind the principle that a

“presumption of regularity supports the official acts of

public officers and, in the absence of clear evidence to

the contrary, courts presume they have properly

discharged their official duties.” Nash v. Estelle, 597

F.2d at 518, quoting United States v. Chemical

Foundation, 272 U.S. 1, 14-15, 47S.Ct. 1, 6, 71 L.Ed. 131

(1926).

Before Jurek’s lie detector test, the primary concern

of the authorities appears to have been the safe recovery

of the little girl. After Jurek’s oral confession, it seems to

have shifted logically toward determining the exact

circumstances of her death, Jurek’s role in it, and to

finding the remains. There is nothing in the record to

suggest a drive toward Jurek’s confession. After having

been warned, he had already done so. He was taken

before a magistrate promptly on returning from the

polygraph examination, and soon after gave the first

written confession. The district attorney testified that

the written confession was taken after Jurek sent for

him. In avery real sense, the first written confession was

stands in place of the earlier oral one. That first oral

expression of guilt was paidly supplanted by the written

version, and the fact that counsel was not appointed at

the intervening magistrate’s hearing has little impact,

as discussed supra.

As to the second confession, however, there is ample

evidence of a prosecutorial “drive for the death penalty.”

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The dimly articulated dissatisfaction of Cheatham and

Post with the first confession, and their “feeling” that

sex was involved, led them to bring Jurek back to Cuero

for further interrogation. They already had a valid

confession from Jurek, and the little girl’s body showed

no sign of sexual contact. They suggested to Jurek that

they thought the first confession was incomplete and

that sex had been involved, and did not explain the

deadly effect of his signature on the second confession.

The panel majority mentioned these efforts in

considering the motivation of the prosecutors, and its

comments were limited to events surrounding the

second confession:

“When they questioned Jurek in an effort to

elicit his second confession, the authorities

were not trying to find Wendy Adams, for they

had already found her body; they were not even

trying to find out who killed her, for Jurek had

already confessed to that. It is difficult to resist

the conclusion that they were trying to gain the

evidence that would send Jurek to his death.”

593 F.2d at 679.

OTHER FACTORS

Of those other actions by prosecuting authorities cited

by the panel majority to support its conclusion, no single

event is sufficient to place the stamp of involuntariness

upon Jurek’s confessions. His lack of clothing at his first

interrogation must be considered in terms of the totality

of the circumstances. The transfer of Jurek to Austin

occurred at his own request, and the move to Victoria

was apparently motivated by security reasons. That he

saw neither his family nor an attorney through the

execution of the second confession is indeed significant.

However, as the first confession was given only twenty-

four hours after his arrest and less than ten hours after

his oral confession in Austin, the issue of isolation bears

more on the second confession, made over forty hours

after his arrest.

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Having examined each of the factors which have been

held by the panel to taint Jurek’s confessions, we

proceed to a consideration of their total effect on each

confession.

THE FIRST WRITTEN CONFESSION

There is little to indicate that this document was

involuntarily given. It was given after Jurek was given

repeated warnings of his rights. It was given after he

was accorded a lie detector test at his own request, at

which he gave an oral confession. He had been before a

magistrate, who again read him his rights, and

explained them. While Jurek stated that he could not

afford counsel, he also stated that he did not need one at

that time. Examining the full range of circumstances

under the totality approach, it is obvious that Jurek

knowingly waived counsel before the first confession,

particularly where he had been warned of his rights,

and was doing no more than giving a written version of

an oral confession made when no charges had been filed

against him. Further,it cannot be held that the

authorities, who had just secured an oral confession,

who had warned Jurek of his rights and were met with

firm statements that the accused did not want counsel at

that time, should have ignored the waiver and appointed

an attorney anyway. The confession appears to be in

Jurek’s words. There is little to indicate that the

prosecutors were striving for any result other than the

solution of the crime and the recovery of Wendy Adams’

remains. It cannot be held that the totality of the

circumstances reveal that this confession was not given

of Jerry Lane Jurek’s free will.

THE SECOND CONFESSION

The circumstances are vastly different with regard to

the second confession. We have mentioned that the

authorities hauled Jurek back to Cuero for renewed

interrogation which produced exactly the confession

they desired. This document contradicted the first

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confession and could not conceivably have been

composed by Jurek. There is no indication that he was

informed of the importance of the second confession.

When Jurek’s limited intelligence is factored into our

consideration, it becomes evident that he could not have

understood the gravity of his act in the absence of lega!

counsel. No court-appointed attorney worth his salt

would have allowed Jurek to sign the second confession.

Other factors intervene to bolster an inescapable

conclusion that the confession was involuntary. When

the first was given, he had been in custody less than

twenty-four hours, little of which had been spent in

actual interrogation. He had confessed orally only that

afternoon. By the time the second was signed, he had

been out of contact with the outside world for over forty

hours. The disapproval of those in control of his

environment had been expressed to him, and they had

suggested the direction in which they wished him to

travel. We give relevance to the failure of the authorities

to inform Jurek that the statement they sought

embodied a factor which entailed the sentence of death

only in that awareness of that fact would almost

certainly have prevented a man in Jurek’s situation

from wearily accepting a suggested untruth, feeling

that he had already sealed his fate via the first

confession to murder. Considering that Jurek had been

in custody and isolated for almost two days, that a valid

confession solving the crime had been obtained, that the

investigation had taken on, in a suggestive manner, the

purpose of amending that confession to secure the death

penalty, and that a defendant such as Jurek was surely

incapable of considering the effect of the amendment

without help, the authorities should have ignored the

waiver of immediate assistance and acted on Jurek’s

latent expression of “need” for counsel before the

magistrate, or, at the very least, informed him of the

significance of the information sought. Professional

prudence and respect for Jurek’s constitutional rights

demanded no less.

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CONCLUSION

In holding one confession to be valid and another

invalid un. 2r the constitution, we are in accord with the

purpose and theory of appellate review of volunt:.riness

issues. We sit to review the sum of the facts, and to

determine if, and at what point, the totality of those facts

renders a confession so suspect that to admit it into

evidence would deny the defendant due process of law,

and contravene the prohibition against compelled self-

incrimination found in the Fifth Amendment.

That point will shift from case to case, dependent upon

the presence or absence of factors suggesting coercion,

intimidation, overreaching, or the deprivation of rights

secured by the constitution, which combine to defeat the

free and independent exercise of the will of an accused.

As the panel majority noted, “. . . at some point the

pressure can become too insistent; we can then say that

the responses elicited are involuntary.” 593 F.2d at 676.

Here, there are almost no indicators pointing to

an involuntary first confession. In the case of the second,

the factors suggesting involuntariness predominate.’

It must be stressed that our holding breaks very little new

ground, if any, in terms of the law concerning voluntariness; under

the totality test, we have considered factors which have been

established as relevant to this inquiry. The absence of one or more of

them might have compelled a contrary result. The precise holding

of this opinion, based on an analysis of the cumulative impact of

these factors, is no more or less than the following: Where a (1)

mentally deficient accused, who was (2) functionally isolated from

all but his interrogators, (3) who was not assisted by counsel, (4) and

who had executed a valid confession to murder, essentially solving

the crime under investigation, was (5) the subject of continuing

purposeful and suggestive interrogation directed (6) toward an

amendment of his earlier confession to include information so

minimally suggested as to amount to a prosecutorial “hunch,” the

renewed interrogation producing (7) a confession which is facially

suspect and which (8) achieves the precise result sought by the

prosecutors, (9) enhancing, in a manner unknown to the accused,

the potential penalty to that of death, a consideration which would

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Mr. Justice Frankfurter once observed that the

problem of voluntariness involves considerations both of

“liberty” and “security.” Culombe v. Connecticut, 367

U.S. at 578, 81 S.Ct. at 1865. We are mindful of Justice

Frankfurter’s admonition that the conviction is “basic to

our legal order, that men are not to be exploited for the

information necessary to condemn them before the law,

[and] that, in Hawkin’s words, a prisoner is not to be

made the deluded instrument of his own conviction.” Jd.

at 581, 81 S.Ct. at 1867. We are also mindful of the

necessities and difficulties of effective law enforcement,

in which the confession may be an essential and fair

device for the protection of the public. We have found

that in their efforts to secure such protection by

ensuring that Jurek was condemned, the law

enforcement authorities ran far too high a risk of

making him the deluded instrument of his own

execution.

Therefore, the judgment of the District Court is

REVERSED, and the cause is REMANDED with

directions to grant the writ of habeas corpus, Jurek

being entitled to a new trial without the use of his second

confession.®

cause any person made aware of it to pause and carefully consider

the truthfulness of any additional information suggested, the risk of

involuntariness is so great that the confession cannot be admitted in

consistency with due process guarantees and the privilege against

self-incrimination.

8As was stated supra, we declined to pass on an assertion that

violations of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968) occurred during voir dire at Jurek’s trial. We

note that the Supreme Court has recently passed upon the

applicability of Witherspoon to Texas voir dire procedures, in

Adams v. Texas, ___. U.S. —__ , 100 S.Ct. 2521, 64 L.Ed.2d ___

(1980). We are confident that upon any retrial of Jurek the state

courts of Texas will act in full compliance with the teachings of

Adams.