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

Supreme Court, U.S, ""

60 FILED

7683 NOV 10 1980

MICHAEL RODAK, JR. CLERK

NO. 80 -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

JERRY LANE JUREK,

Respondent

Petition for Writ of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

APPENDIX

Part II

A-27

GODBOLD, Circuit Judge, with whom ALVIN B.

RUBIN, Circuit Judge, joins, specially concurring:

With respect to the two written confessions, I join in

the result reached in the special concurring opinion by

Judge Frank M. Johnson, Jr., that both written

confessions were inadmissible. With respect to the oral

statements made by Jurek prior to the first written

confession, I am not able to join in Judge Johnson’s

conclusion that all four were inadmissible.

I also agree with the conclusion set out in Judge

Garza’s opinion that the second written confession is

inadmissible.

FRANK M. JOHNSON, Jr., Circuit Judge, with

whom KRAVITCH, HATCHETT, R. LANIER

ANDERSON, III, RANDALL, TATE and THOMAS

A. CLARK, Circuit Judges, Join, specially concurring:

I concur in the court’s judgment that Jerry Lane

Jurek is entitled to a new trial, and, more specifically, I

agree with that portion of Judge Garza’s opinion

invalidating the second of the two confessions that were

admitted against Jurek at trial. I cannot, however,

agree with that portion of Judge Garza’s opinion finding

valid the firt confession. In my opinion, the confessions

were each constitutionally defective, one, because they

were involuntary and thus their admission denied Jurek

due process of law, see Mincey v. Arizona, 437 U.S. 385,

401-02, 98 S.Ct. 2408, 2418-19, 57 L.Ed.2d 290 (1978);

two, because they were obtained in violation of Jurek’s

Sixth Amendment right to counsel, see Brewer v.

Williams, 430 U.S. 387, 397-406, 97 S.Ct. 1232, 1238-43,

51 L.Ed.2d 424 (1977); and, three, because they were

obtained in violation of Jurek’s Fifth Amendment right

not to be compelled to incriminate himself, see Miranda

v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16

L.Ed.2d 694 (1966).!

‘Like Judge Garza and Judge Brown, I express no view on the

merits of Jurek’s additional claims that the district court erred (1)

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I.

The Supreme Court has established that in cases

involving multiple confessions courts may hold some of

the confessions involuntary and others not only if sucha

distinction is justified by a sufficiently isolating “break

in the stream of events.” E. g., Darwin v. Connecticut,

in determining that his trial counsel had not been ineffective, (2) in

failing to decide whether the prosecution’s cross-examination of his

father during his sentencing proceeding concerning otherwise

undisclosed sex offenses with which Jurek has been charged but not

indicted has violated his right to due process, (3) in refusing to

permit him to present evidence on all of the factual contentions

raised in his habeas petition, e.g., his contention that the imposition

of death sentences under the Texas statute that had been applied to

him had established a pattern of arbitrariness and discrimination,

see 593 F.2d at 685 n. 26 (panel discussion of issue), and (4) in failing

to conclude that certain ‘death penalty adverse’ veniremen had

been unconstitutionally excluded from his jury in violation of

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776

(1968). The panel, whose judgment and opinion was automatically

vacated by the court’s granting of rehearing en banc, see 5th Cir. R.

17, found that Jurek’s confessions had been coerced, 593 F.2d at

674-79, and that his Witherspoon claim had merit, id. at 680-85. See

id. at 685 & n.26 (unnecessary to consider Jurek’s other alleged

points of error). At the time this case was submitted to the en banc

court, there was some question as to whether the Witherspoon

doctrine applied to Texas’ bifurcated capital trial procedure. A

case presenting the issue was then pending before the Supreme

Court. See Adams v. Texas, ___. U.S. ___ , 100 S.Ct. 519, 62

L.Ed.2d 419 (1979), granting cert. to Adams v. State, 577 S.W.2d 717

(Tex. Crim. App. 1979)(en banc). The Supreme court has since

decided that case and held, as thepanel assumed, that the

Witherspoon doctrine does apply. Adams v. Texas, i} fa

100 S.Ct. 2521, 64 L.Ed.2d ____ (1980).

The record establishes that each of the claims that is considered

here—the alleged invalidity of Jurek’s confessions under

established standards of due process, the Sixth Amendment, and

Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966)—was raised in, and rejected by, the Texas state courts and

the federal district court below.

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391 U.S. 346, 349, 88 S.Ct. 1488, 1489, 20 L.Ed.2d 630

(1968); Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189,

191, 19 L.Ed.2d 35 (1967); Clewis v. Texas, 386 U.S. 707,

710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967); Reck v.

Pate, 367 U.S. 438, 444, 81 S.Ct. 1541, 1548, 6 L.Ed.2d

948 (1961); Leyra v. Denno, 347 U.S. 556, 561, 74 S.Ct.

716, 719, 98 L.Ed. 948 (1954).2 My review of the record

indicates that no such “break” appears here. According

to the record, Jurek made in sequence at least four oral

and two written confessions.’ Judge Garza distinguishes

the second written confession, and holds it alone to have

been involuntary, on the basis of his conclusion that the

police and the prosecutors decided to ‘get tough’ with

Jurek only after they realized that his first—assertedly

2In the cases cited, the Court found no distinction as to

voluntariness to have been justified because, as the Court variously

phrased its determination, there was “no break in the stream of

events” sufficient to isolate one or more of the confessions, Darwin,

Beecher, Clewis; there were no facts in the record suggesting that

the confessions were “independent” acts, Reck; or the confessions

“Ca]ll were simply parts of one continuous process,” Leyra. Only

when a sufficiently isolating break has been established has the

Court drawn a distinction. See United States v. Bayer, 331 U.S. 532,

67 S.Ct. 1894, 1398, 91 L.Ed. 1654 (1947)(holding valid second

confession made under notably different circumstances six months

after first confession that was assumed to have violated McNabb

rule); Lyons v. Oklahoma, 322 U.S. 596, 604, 64 S.Ct. 1208, 1213, 88

L.Ed.1481 (1944)(holding valid second confession made under

notably different circumstances six months after first confession

that was assumed to have violated McNabb rule); Lyons v.

Oklahoma, 322 U.S. 596, 604, 64 S.Ct. 1208, 1213, 88 L.Ed. 1481

(1944\holding valid second confession made in new, noncoercive

environment to different questioners, a half day after first

admittedly involuntary confession, and prior to third admittedly

voluntary confession).

8According to the district attorney in charge of prosecuting

Jurek’s case, Jurek made at least three oral confessions in Austin

the day after Wendy Adams’ death, see note 7, infra, one oral

confession later in the day in Cuero, the first written confession late

that night, and the second written confession the next afternoon, see

note 8, infra.

—_

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voluntary—written confession, although sufficient to

sustain a conviction for murder, was not sufficient to

convict him of capital murder and thus send him to his

death.’ The record, however, refutes this conclusion. It

shows that at the time of the second written confession

Jurek’s questioners believed that they had more than

enough evidence to obtain a death verdict.5 What the

4Under Texas law, Jurek was subject to execution for the death of

Wendy Adams only on a finding that he intentionally murdered her

“in the course of committing or attempting to commit kidnapping,

burglary, robbery, forcible rape, or arson.” Tex.Penal Code art.

1257(b)\(2). Jurek was tried, and convicted, on the theory that he

murdered the girl inthe course of committing or attempting to

commit kidnapping and/or forcible rape. According to Judge

Garza, the prosecution had no evidence, or at least nothing from

Jurek himself, to support such a theory until Jurek signed the

second written confession. Judge Garza thus contends that the

second written confession, as distinguished from those made

earlier, was Jurek’s “death warrant.”

5The district attorney who conducted the questioning that led to

the first and second written confessions testified at a deposition

prior to the federal habeas hearing that the drive-for-the-death-

penalty theory relied on by Judge Garza “is something [Jurek’s trial

counsel] I think very capably, argued or tried to put over, but in my

opinion there was no question whether it was a capital case in the

first statement.” The validity of this opinion is established by the

record.

Under then Texas law, a girl under the age of fifteen was legally

“kidnapped” the moment she was taken from her parents’ control,

regardless of whether or not she went willingly. Tex. Penal Code

art. 1177 (“If the person kidnapped to beunder fifteen years of age,

it is not necessary that there should be want of consent nor that

there should be force in order to constitute kidnapping, and, in

such a case, consent of such a minor shall be no defense.”) Because

Wendy Adams was only ten, the first written confession alone, with

its admission that Wendy Adams had ben taken from her parents’

control and killed, would thus seem to have been sufficient to

establish that Jurek had intentionally committed murder in the

course of kidnapping and, under Texas law, could be put to death.

In fact, the third oral confession, see note 7, infra, containing the

same admission, and as admissible at Jurek’s trial because it had

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record reveals is that the police and prosecutors sought

the second written confession for the same reason that

they had sought the first: they wanted to obtain from

Jurek a signed statement of what they believed to be

“the truth.”6 The record demonstrates that each time

led to the discovery of Wendy Adams’ body, see Tex.Code

Crim.Proce. art. 38.22(1)(e) (rules governing admissibility of oral

confessions), would on the same theory also seem to have been

sufficient, as the district attorney testified, to justify a death

verdict. In addition, Jurek’s questioners had evidence prior to the

second wirtten confession that Wendy Adams had not gone with

Jurek willingly. The district attorney testified that before he had

obtained either of the two written confessions he had interviewed

several of the witnesses who later testified at trial that they had

seen Jurek’s pickup speeding through Cuero with someone who

looked like Wendy Adams in the back screaming for help.

Prior to the second written confession, Jurek’s questioners also

had evidence about as supportive of a conviction for murder in the

course of attempted forcible rape as the second written confession

itself. The district attorney testified that prior to taking the second

written confession he had questioned a fifteen year old boy named

Richard Broz. Broz testified at trial that on the afternoon of Wendy

Adams’ disappearance, he, Jurek, and a friend named Ricky

Phillips had driven to Cuero city park and that there Jurek had

suggested picking up three girls: “Ricky said that they were too

young. And Jerry said no, they were just right.” Broz testified that

Jurek had then taken him and Phillips to a pool hall, dropped them

off, and “said he was going to go back to the park and get some girls

and get some pussy.” In addition, the county attorney had already

talked to a young girl who testified at trial that she had told him

that on the afternoon of Wendy Adams’ disappearance she had been

at the city park with two friends and that Jurek had tried to pick

therm up. The second written confession added to the above

testimony only the admission that at the river Jurek had asked

Wendy Adams to have sex with him, she had said she did not want

to, and Jurek for that reason had killed her. It did not add any

admission that Jurek had killed the girl in the course of committing

or attempting to commit forcible rape.

8In addition to securing information, one of the principal

purposes of coercive questioning is, as the Supreme Court has

repeatedly indicated, getting the defendant to admit, preferably in

writing, to the police version of the facts of the crime. See, e.g.,

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they learned of some new particular relating to Wendy

Adams’ disappearance, they went to Jurek and had him

revise his ‘confession’ in order to conform to it. This was

true of the three oral confessions that Jurek made in

Austin.’ It was also true of the one oral and two written

Clewis v. Texas, 386 U.S. 707, 711-12, 87 S.Ct. 1838, 1340-40, 18

L.Ed.2d 423 (1967\interrogation “was specifically designed to

elicit a signed statement of ‘the truth’—and the police view of ‘the

truth’ was made clear to the petitioner”). The Court’s voluntariness

cases indicate that as part of this process it is not unusual for the

police to force the defendant to go through several “drafts” until he,

and the police, “get it right.” See, e.g., Haynes v. Washington, 373

U.S. 508, 511, 83 S.Ct. 1335, 1341, 10 L.Ed.2d 513 (1963); Watts v.

Indiana, 338 U.S. 49, 52-53, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801

(1949); Chambers v. Florida, 309 U.S. 227, 232, 60 S.Ct. 472, 475, 84

L.Ed. 716 (1940)prosecutor when shown defendant’s first

confession “said something like ‘tear this paper up, [this] isn’t what

I want, when you get something worth while call me’ ”).

7Jurek originally denied ever having seen Wendy Adams the day

of her disapperance. It was after he was arrested, repeatedly

questioned despite his continued denials, see note 15 infra, taken to

Austin, subjected to a polygraph examination, and told that the

results of the examination proved that he was lying, that he made

his first oral confession. He stated in response to police questioning

that he had seen Wendy Adams the day of her disappearance and

taken her riding in his truck, but that she had fallen out of the back,

he had left her at the place where she fell, which he described, and

he had not seen her since. According to the district attorney, a

search party was detached to foilow “the directions he’d given them

to find her by the side of the road and that they did not find her and

called back and they supposedly made him aware of that. . ..”

The police then obtained Jurek’s second oral confession. He stated

in response to additional questioning that the girl had fallen out of

the truck and that he had taken her to be dead. He said that he than

had loaded her into the back of the truck, getting blood on the truck

mat in the process, and had then taken her to the river and thrown

her in. An examination of Jurek’s truck for bloodstains discredited

Jurek’s story, and he was subjected to further questioning.

The police then obtained Jurek’s third oral confession. The

particulars of this confession are not set out in the record. All that

the district attorney’s testimony indicates is that Jurek admitted

A-33

confessions that Jurek later made in Cuero.’ Judge

Garza’s other arguments notwithstanding, in my

driving Wendy Adams to the river, killing her or at least rendering

her unconscious, and then throwing her body into the river. It was

this confession that assertedly focused the search for the girl’s body

on the Hell’s Gate Bridge section of the Guadalupe River and

ultimately led to the discovery of the body the next day.

After Jurek made the third confession, the first in which he

admitted having committed intentional murder, he was driven

back to Cuero.

8On his return to Cuero, the police questioned Jurek again and

obtained his fourth oral confession. According to the district

attorney, in this confession Jurek “reverted” to his earlier story that

Wendy Adams had simply fallen out of the truck and he had left her

behind. Although the statement, like Jurek’s later written ones,

was made after Jurek had been read his rights by a magistrate, cf.

Tex.Code Crim.Proc. art. 38.22 (magistrates warning must be

given before any written confession is taken), it was not

transcribed. Rather, according to the district attorney, Jurek was

reminded of his earlier confession to intentional murder and driven

to the area where he claimed Wendy Adams had fallen. The district

attorney testified that he then walked around the area with Jurek

and explained to him that he was lying. The attorney testified, for

example, that

I said where did she fall out and he pointed to a spot to us

and I, of course, it was covered up high with Johnson

grass and it was, to me, very apparent that there had not

been any disturbance much less a body that slid in there

and I explained this to him. Jerry, the grass has not been

disturbed, and the blood—he explained there would be

big blood spots and you could look over in this Johnson

grass and see where the blood spots were and he said well,

it’s bound to be right over in there so the ranger stepped

off in there and took the grass and spread it apart and

said well, I don’t see any blood and so I said, now Jerry,

you see?

According to the district attorney, Jurek’s response was to say “that

his device to throw us off on how it happened had failed and I said,

well, do you want to go back to the car then and he said yes, we

might as well go back because there is nothing here so we walked

back and got in the car and I don’t think there were three words said

all the way into town.”

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opinion the record simply does not reveal a “break in the

stream of events” from arrest through the time of the

When they arrived back in town, Jurek was questioned again and

the district attorney obtained Jurek’s first written confession. In

brief, it stated that Jurek had driven Wendy Adams to the river,

gotten angry at her for a derogatory comment she made about his

family, choked her until she was blue in the face, and then thrown

her body into the river. Many of its particulars closely matched bits

of evidence Jurek’s questioners had garnered in the course of

witness interviews conducted earlier in the day. For example, the

police had been told by several persons that Wendy Adams had left

all of her clothes in the city park bathhouse and that when she had

been seen in Jurek’s truck she had been wearing only a bathing suit.

The confession stated, “We sat on the side of the truck and talked.

Wendy was still dressed in her bathing suit that she’d had on when

we left the park.” The reports of a number of witnesses had also

allowed the police to piece together Jurek’s route out of town with

the girl. Aneleven year old girl had already told the county attorney

that she had seen Jurek’s truck speed by the city skating rink, anda

woman who worked for the county as a deputy clerk and who was

the wife of a county deputy sheriff had told the district attorney that

she had seen Jurek’s truck race by her house of Reuss Boulevard

and then almost get hit by a big truck. The confession stated, “From

the park I drove past the skating rink, turned right at the high

school and came down the hill by the cemetfe]ry and went to the

Yoakum Highway on what I think was Reuss Blvd.[.] As I came on

the Yoakum Highway, a big truck almost hit me....” A worker at

the city park “pro shop” who had agreed to look after Wendy

Adams and who was the wife of the city police chief had told police

that early in the day she had given Wendy permission to visit with

some unidentified friends of Wendy who were having a picnic at one

of the city park picnic units. The woman remembered that on her

return, just prior to her disappearance, Wendy had talked about the

visit and said (according to the woman’s testimony at trial) that “she

liked the mother and the children, but she didn’t care much about

the father because he drank.” The confession stated that the reason

Jurek had become angry at and killed Wendy was that “Wendy told

me that I shouldn’t be drinking, and that I was just like my brother

who drinks a lot; and she also told me that my nieces didn’t have a

good father because he didn’t come home to see them much.” After

Jurek signed the confession he was sent to the Victoria county jail.

The district attorney testified that he himself went home and went

to bed.

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second written confession sufficient to base a distinction

as to voluntariness.?

The second written confession was not obtained until late the next

day. In the interim, the investigation into Wendy Adams’ death

continued, The district attorney testified that he had had the feeling

all along that sex had been Jurek’s motive for the crime but that he

could not recall whether at the time of the first written confession

he had been aware of any admissible evidence so indicating. He did

recall that after the first confession had been taken he had talked

for the first time with Richard Broz and Ricky Phillips, Jurek’s

companions on the day of the girl’s disappearance, and had taken

witness statements from them. As Broz’s trial testimony indicates,

the statements established that Jurek’s sexual desires had played a

central role in the killing. Broz said that Jurek and Phillips had

talked about “getting some pussy” and that Jurek, when he had

dropped Broz and Phillips off at a pool hall, had said he was going

back to the park to “get” some. See note 5, supra. After talking with

Broz and Phillips, the district attorney recalled Jurek to Cuero. He

testified that the reason for the recall was that “we found out there

were parts of the first statement that we felt were incorrect, not

true.” After further questioning—“I more or less related to him that

I felt that a part of his statement was not correct, that I felt that

there was sex or things like that involved”—the district attorney

obtained the second written confession. Unlike the earlier

confessions, it contained references to Jurek’s, Phillips, strong

desire to “get some pussy.” The confession recanted Jurek’s

previous statement that he had killed Wendy Adams because she

had criticized him and his brother, and stated instead that she had

been killed because she had said that she did not want to have sex

with him. The district attorney testified that he could not recall

whether he had obtained the confession by confronting Jurek with

Broz’s and Phillips’ testimony.

This record establishes that what Judge Garza found to have been

true only at the time of the second written confession, viz., that

“(t]he disapproval of those in control of [Jurek’s] environment had

been expressed to him, and they had suggested the direction in

which they wished him to travel,” had in fact been the case ever

since the time of Jurek’s arrest.

‘Judge Garza’s emphasis on the difference in style of the two

written confessions seems to me unjustified. The record indicates

that the contrast is attributable not to any difference in the degree

of coercion leading to the two confessions but to the fact that the

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When the distinction relied on by Judge Garza is

discarded, adherence to well-established Supreme

Court precedent is all that is necessary to recognize that

the ‘totality of the circumstances’ in this case,

determined pursuant to this Court’s set duty to make an

independent review of the record,'® fully justifies and

confessions were “transcribed” by two different interrogators. The

first was put in writing by the district attorney; the second by the

county attorney. Judge Garza’s emphasis on the sixteen hour time

period separating the two written confessions also seems to me

unjustified. The Supreme Court has implied that even a six month

time difference may not be enought in and of itself to constitute a

sufficiently isolating break between two confessions. United States

v. Bayer, 331 U.S. 5382, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). See

note 2, supra. Finally, even assuming arguendo that Judge Garza is

correct that “there are almost no indicators pointing to an

involuntary first confession” but that “[i]n the case of the second, the

factors suggesting involuntariness predominate,” I would reject his

conclusion that that is sufficient justification for holding only the

second confession involuntary. See Haynes v. Washington, 373 U.S.

5038, 511 N. 8, 88 S.Ct. 13836, 1342 n. 8, 10 L.Ed.2d 513

1963)\(continued questioning of accused after completion of first

confession “displays and confirms an official disregard by police...

of the basic rights of the defendant” and “tends to bear out

petitioner’s version of what happened earlier”); Chambers v.

Florida, 309 U.S. 227, 240, 60 S.Ct. 472, 479, 84 L.Ed. 716

(1940)(police rejection of first confession “because it was found

wanting, demonstrates the relentless tenacity which ‘broke’

petitioners’ will and rendered them helpless to resist their accusers

further”). See also Haley v. Ohio, 332 U.S. 596, 600, 68 S.Ct. 302,

304, 92 L.Ed. 224 (1948).

It is settled that in reviewing coerced confession claims the

federal courts are “under a duty to make an independent evaluation

of the record.” Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408,

2417, 57 L.Ed.2d 290 (1978\(emphasis added). E.g., Beckwith v.

United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1

(1976); Boulden v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139, 22

L.Ed.2d 433 (1969); Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct.

1338, 1339, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384

U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16L.Ed.2d 895 (1966); Haynes

v. Washington, 373 U.S. 503, 515-16, 83 S.Ct. 1336, 1344, 10 L.Ed.2d

513 (1963\emphasis in original); Spano v. New York, 360 U.S. 315,

316, 79 S.Ct. 1202, 1208, 3 L.Ed.2d 1265 (1959); Ashcraft v.

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requires the conclusion that each of Jurek’s confessions

Tennessee, 322 U.S. 143, 147-48, 64 S.Ct. 921, 923, 88 L.Ed. 1192

(1944). It is also settled that the federal courts of appeals are not

excused from this duty when they sit to review state habeas claims

such as Jurek’s even though such claims have already been

evaluated by a state and a lower federal court. E.g., Boulden v.

Holman, 394 U.S. at 480, 89 S.Ct. at 1139; Davis v. North Carolina,

384 U.S. at 741-42, 86 S.Ct. at 1764 (“(i]t is our duty in this case. . .,

as in all of our prior cases dealing with the question whether a

confession was involuntarily given, to... make an independent

determination of the ultimate issue of voluntariness”). Although the

opinions of Judge Garza and Judge Brown each acknowledge this

duty—Judge Brown’s albeit reluctantly, cf. Mincey v. Arizona, 437

U.S. at 407-10, 98 S.Ct. at 2421-23 (dissenting views of Rehnquist,

U.)—they seem to me to misapprehend it. As the Supreme Court

has repeatedly stressed, the question for determination in a

voluntariness case is whether coercion appears from the totality of

the circumstances. E.g., Boulden v. Holman, 394 U.S. at 480, 89

S.Ct. at 1139; Clewis v. Texas, 386 U.S. at 708, 87 S.Ct. at 1339;

Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d

246 (1957). This question cannot be answered simply by

considering, as do Judge Garza and Judge Brown, whether the

elements of a prior adjudication of the issue were properly made

and weighed. E.g., Judge Garza’s opinion at slip opinion pp. 8183-

8184, pp. - (“(hJaving examined each of the factors which

have been held [by the panel majority] to taint Jurek’s confessions,

we proceed to a consideration of their total effect on each

confession”). See also 5th Cir. R. 17 (panel opinion vacated by

granting of rehearing en banc). As the Supreme Court has

consistently explained, what is required is a de novo examination of

the entire record. E.g., Mincey v. Arizona, 437 U.S. at 401, 98 S.Ct.

at 2418 (determination of whether a statement is involuntary

“requires careful evaluation of all the circumstances of the

interrogation”); Boulden v. Holman, 394 U.S. at 480, 89 S.Ct. at

1139; Clewis v. Texas, 386 U.S. at 708, 87 S.Ct. at 1339; Davis v.

North Carolina, 384 U.S. at 741-42, 86 S.Ct. at 1764; Haynes v.

Washington, 373 U.S. at 513-14, 83 S.Ct. at 1343. In Boulden, the

Court emphasized its obligation to make “an independent study of

the entire record” even though it acknowledged that the two lower

federal courts had already evaluated the coercion claim and in so

doing had applied “the proper constitutional standards.” 394 U.S.

at 480, 89 S.Ct. at 1139. See generally Brookhart v. Janis,384 U.S. 1,

4 n.4, 86 S.Ct. 1245, 1247 n.4, 16 L.Ed.2d 314 (1966)(whenever

“constitutional rights turn on the resolution of a factual dispute we

are duty bound to make an independent examination of the

evidence in the record”).

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was involuntary.!! In the four decades since Brown v.

Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682

(1936), the Supreme Court has reviewed the

voluntariness of over forty confessions introduced

against criminal defendants in state courts. E. g.,

Mincey v. Arizona, 487 U.S. 385, 98 S.Ct. 2408, 57

L.Ed.2d 290 (1978); Spano v. New York, 360 U.S. 315,

321 n.2, 79 S.Ct. 1202, 1206 n.2, 3 L.Ed.2d 1265

(1959)(citing 28 cases). In so doing, the Court has

established a number of indicia of involuntariness. See,

e. g., Schneckloth v. Bustamonte, 2041, 2045-47, 36

L.Ed.2d 854 (1973). Clearly more than enough of these

indicia are present here. As noted above, Jurek made at

least six separate confessions. Each was the result of

frequent interrogation,!? carried on by a number of

questioners,!® often at odd hours and in scheduled

‘Given that there will presumably be a new trial in this case, it is

appropriate for the court to rule on the voluntariness of all of

Jurek’s confessions, not just the two written confessions which were

admitted against him at his original trial. See, e.g., Mincey v.

Arizona, 437 U.S. 385, 396, 98 S.Ct. 2408, 2415, 57 L.Ed.2d 290

(1978); Boulden v. Holman, 394 U.S. 478, 479 n.1, 89 S.Ct. 1138, 1139

n.1, 22 L.Ed.2d 433 (1969); Culombe v. Connecticut, 367 U.S. 568,

621 n.73, 81 S.Ct. 1860, 1889 n.73, 6 L.Ed.2d 1037 (1961). All of the

circumstances of Jurek’s interrogation are presently and properly

before the court.

’2Jurek was repeatedly questioned from the time of his arrest

until the signing of the second confession forty two hours later. He

was questioned at least eight times before he made his first

confession of guilt. On at least four occasions, he was questioned for

over an hour and a half at a time. Repeated or prolonged

questioning has been a factor is almost all of the Supreme Court’s

voluntariness cases. See, e.g., Mincey v. Arizona, 437 U.S. 385, 401,

98 S.Ct. 2408, 2418, 57 L.Ed.2d 290 (1978); Darwin v. Connectticut,

391 U.S. 346, 347, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Clewis v.

Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967);

Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d

246 (1957).

'3F'rom the time of his arrest until the time he made his first

admission of guilt in Austin, Jurek was questioned by at least seven

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places,'4 that continued in the face of Jurek’s evident

persons: the two police officers who arrested him and interrogated

him at police headquarters [one of whom was the missing girl’s

father, see note 19, infra], the Cuero chief of police, a deputy sheriff,

the county attorney, and an unidentified number of polygraph

personnel from the Texas department of public safety. When Jurek

was returned to Cuero, he was questioned by the district attorney

and at least two other police officers and a Texas Ranger.

According to the county attorney, Jurek was at times surrounded

by as many as six questioners, not including witnesses. Such

questioning by, or in front of, a number of persons has been

identified by the Supreme Court as tending to have intimidating

effect on an accused. See, e.g., Blackburn v. Alabama, 361 U.S. 199,

207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960); Spano v. New York, 360

U.S. 315, 322, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959); Harris v.

South Carolina, 338 U.S. 68, 70, 69 S.Ct. 1854, 1355, 93 L.Ed. 1815

(1949); Ashcraft v. Tennessee, 322 U.S. 143, 149, 64 S.Ct. 921, 923, 88

L.Ed. 1192 (1944).

4Jurek was questioned from 1:00 a.m. to 2:00 a.m. the night of his

arrest, and again at 6:00 a.m. that morning. The second written

confession was obtained on evening; the first at 1:15 a.m. after a

night of interrogation. Such ‘off-hour’ questioning has been held to

be a coercive circumstance. See, e.g., Davis v. North Carolina, 384

U.S. 737, 747, 86 S.Ct. 1761, 1767, 16 L.Ed.2d 895 (1966). See also

Spano v. New York, 360 U.S. 315, 322, 79 S.Ct. 1202, 1207, 3

L.Ed.2d 1265 (1959)(where questioning “began in early evening,

continued into the night, and did not bear fruition until the not-too-

early morning, . . . slowly mounting fatigue does, and is calculated

to, play its part”).

To prove that Jurek had been lying when he said, contrary to an

earlier oral confession, that Wendy Adams had merely fallen out of

his truck, see note 8, supra, the district attorney took Jurek at

midnight to a field outside of Cuero where Jurek claimed the fall

had occurred and questioned him about it. Such late night

excursions to lonely and isolated places have been identified by the

Supreme Court as tending to arouse terror in an accused. Culombe

v. Connecticut, 367 U.S. 568, 622, 81 S.Ct. 1860, 1889, 6 L.Ed.2d

1037 (1961). See Ward v. Texas, 316 U.S. 547, 555, 62 S.Ct. 1139,

1143, 86 L.Ed. 1663 (1942); White v. Texas, 310 U.S. 530, 533, 60

S.Ct. 1032, 1033, 84 L.Ed. 1342 (1940). In Davis v. North Carolina,

384 U.S. 737, 86 S.Ct. 1761, 16 L.E.d.2d 895 (1966), the Court found

to have been coercive a similar “trek” designed to break down an

accused’s alibis. 384 U.S. at 749, 86 S.Ct. at 1768.

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unwillingness to admit guilt.5 The authorities

responsible displayed an intentional disregard of state

law.'6 At the time the confessions were obtained, Jurek

5Prior to his first confession of guilt, Jurek denied @n at least

eight occasions having participated in Wendy Adams’

disappearance. Thereafter, under the pressure of police

questioning, he confessed guilt only in stages, and not without

reversions to previous professions of innocence or lesser culpability.

See notes 7 & 9, supra. These facts seem to me entirely inconsistent

with any hypothesis that Jurek’s statements were “the product of

his free and rational choice,” Greenwald v. Wisconsin, 390 U.S. 519,

521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968), that Jurek was

“anxious to confess to anybody who would listen,-- Stroble v.

California, 343 U.S. 181, 191, 72 S.Ct. 599, 604, 96 L.Ed. 872 (1952),

or that he had concluded, independently of any duress by the police,

“that it was wise to make a clean breast of his guilt,” Lyons v.

Oklahoma, 322 U.S. 596, 604, 64 S.Ct. 1208, 1213, 88 L.Ed. 1481

(1944). To the contrary, the only reasonable inference is that Jurek

did not want to confess. See Mincey v. Arizona, 437 U.S. 385, 401, 98

s.Ct. 2408, 2418, 57 L.Ed.2d 290 (1978); Reck v. Pate, 367 U.S. 433,

443-44, 81 S.Ct. 1541, 1548, 6 L.Ed.2d 948 (1961).

'6Under Texas law, the police were required to bring Jurek

before a magistrate “without unnecessary delay.” Tex.Code

Crim.Proc. art. 14.06. The purpose of the requirement was to

ensure that defendants would be promptly informed of their rights,

and given an opportunity to consult counsel and to obtain bail.

Tex.Code Crim.Proc. art. 15.17. Jurek was not brought before a

magistrate until twenty one hours after his arrest. The state does

not contend that this delay was necessary. Nor does it appear that

Jurek’s questioners were unaware that the delay was unlawful.

Every Cuero police officer carried a “Miranda card” on which the

“without unnecessary delay” requirement was inscribed. Failure to

follow such a requirement has been recognized as an important

factor in determining voluntariness. See, e.g., Clewis v. Texas, 386

U.S. 707, 711, 87S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967); Culombe v.

Connecticut, 367 U.S. 568, 631-32, 81 S.Ct. 1860, 1894-95, 6 L.Ed.2d

1087 (1961); fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1

L.Ed.2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 598-600, 68 S.Ct.

302, 303-04, 92 L.Ed. 224 (1948). A reasonable inference to be

drawn from the failure here is that Jurek’s questioners deliberately

put off bringing Jvrek before a magistrate until they had obtained

from him a confession that he had deliberately killed Wendy

Adams. Cf. Turner v. Pennsylvania, 338 U.S. 62, 64, 69 S.Ct. 1352,

1358, 93 L.Ed. 1810 (1949)(“{w]ith commendable candor the

A-41

was apparently weak from lack of food and sleep,'”

district attorney admitted that a hearing was withheld until

interrogation had produced confession”); Tex.Code Crim.Proc. art.

38.22 (magistrate’s warning must be given before any written

confession is taken).

Jurek’s questioners also failed to observe state law in

transferring Jurek to a jail in a different county. See note 19, infra.

As the Supreme Court had occasion to observe almost forty years

ago in a voluntariness case, Texas law provides that if there is no

safe jail for the accused in the county in which the prosecution is

carried on, a magistrate may commit the prisoner to the nearest

safe jail in any other county. Ward v. Texas, 316 U.S. 547, 553, 62

S.Ct. 1139, 1142, 86 L.Ed. 1663 (1943). See Tex.Code Crim.Proc. art.

16.18. Here, as in Ward, there is no indication that application was

made to a magistrate prior to the transfer. Cf. Ward v. Texas, 316

U.S. at 554-55, 62 S.Ct. at 1143 (unlawful handling of transfer

motivated by desire to get confession).

Finally, although the record establishes that Jurek was arrested

on suspicion of murder, it also establishes that he was formally

booked and jailed on an outstanding “hot check” charge. It was not

until twenty one hours later, when he was finally brought before the

magistrate, that he was charged with murder with malice. Cf.

Culombe v. Connecticut, 367 U.S. at 632, n.95, 81 S.Ct. at 1895 n.95,

quoting Rex v. Dick, [1947] 2 D.L.R. 218, 225 (“abuse of process of

criminal law to use the purely formal charge of a trifling offence

upon which there is no real intention to proceed, as a cover for

putting the person charged under arrest, and obtaining from that

person incriminating statements .. ..”).

Judge Garza does not discuss the effect of this evidence on the

application to this case of the principle he invokes 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 513, 518 (5th Cir. 1979\en banc).

17 According to the police testimony, Jurek, at the time of his first

written confession, had had, at most, one meal approximately 18

hours before. He was offered breakfast the morning of his arrest

but it is unclear whether he accepted or ate it. He was offered a

restaurant meal en route from Austin to Cuero, but the officer

accompanying him testified that “[h]e said he didn’t want anything.

He refused to eat or drink.” The officer also testified that Jurek was

A-42

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

legitimate apprehension of imminent physical harm.!9

offered a soft drink in Austin, and smoked some cigarettes. See

Davis v. North Carolina, 384 U.S. 737, 746, 86 S.Ct. 1761, 1767, 16

L.Ed.2d 895 (1966)(record shows no deliberate attempt to starve

defendant, but “diet was extremely limited and may well have had

a significant effect on Davis’ physical strength and therefore his

ability to resist”). See also Greenwald v. Wisconsin, 390 U.S. 519,

521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); Sims v. Georgia, 389

U.S. 404, 407, 88 S.Ct. 528, 525, 19 L.Ed.2d 634 (1967); Clewis v.

Texas, 386 U.S. 707, 712, 87S.Ct. 1338, 1341, 18 L.Ed.2d 423 (1967);

Payne v. Arkansas, 356 U.S. 560, 567, 78 s.Ct. 844, 849, 2 L.Ed.2d

975 (1958). How much sleep or rest Jurek had after his arrest is also

unclear. The police testimony indicates only that on the night of his

arrest he was put in a cell with a bed at 2:30 a.m. and that at 6:00

a.m. he was awake. See Ashcraft v. Tennessee, 322 U.S. 148, 151, 153,

64 S.Ct. 921, 924, 925, 88 L.Ed. 1192 (1944)(lack of sleep significant

factor in finding confession involuntary, even though witnesses

testified that defendant showed no outward signs of being tired or

sleepy). See also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Greenwald v. Wisconsin,

390 U.S. at 521, 88 S.Ct. at 1154; Clewis v. Texas, 386 U.S. at 712, 87

S.Ct. at 1341.

18[n the forth two hours from the time of his arrest until the

signing of his second written confession, Jurek never saw a member

of his family or a friend (other than perhaps Richard Broz who was

also under arrest), or consulted with a lawyer. The significance of

such isolation in weakening a defendant’s resolve has been

repeatedly emphasized by the Supreme Court. See e.g., Mincey v.

Arizona, 437 U.S. 385, 401, 98 S.Ct. 408, 2418, 57 L.Ed.2d 290

(1978); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19

L.Ed.2d 634 (1967); Davis v. North Carolina, 384 U.S. 737, 745-46,

86 S.Ct. 1761, 1766-67, 16 L.Ed.2d 895 (1966); Haynes v.

Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513

(1963); Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 1546, 6

L.Ed.2d 948 (1961); Blackburn v. Alabama, 361 U.S. 199, 207, 80

S.Ct. 274, 280, 4 L.Ed.2d 242 (1960).

''Wendy Adams’ father, James R. Adams, was a Cuerocity police

officer. He was one of the two police officers who arrested Jurek the

night of Wendy’s disappearance. According to his partner’s

testimony, he personally interrogated Jurek that night for at least

half an hour. Although there is no evidence in the record

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Jurek was not the kind of accused the Supreme Court

has identified as capable of withstanding such

pressures.2? To the contrary he was young,”! poorly

establishing that Adams ever injured or threatened to injure Jurek,

there clearly was concern that he might do so. As a police officer,

Adams had access to the cour’y jail serving Cuero, and at night, as

the county sheriff testified, the jail was manned only by a

dispatcher. For this reason, Jurek, after his first night of

confinement, was transferred to another jail in a different county.

As the sheriff testified, “The father of Wendy is a city patrolman.

He has access to our jail because we handle city prisoners. Iam sure

that you have lost a loved one and it affects you. I have. Let’s say that

we put [Jurek] down there fore his own safe keeping.”

The record suggests that Jurek was fearful of what Adams might

do and terrified of the prospect of spending a second night within

his range in the county jail serving Cuero. Witnesses to Jurek’s

written confessions testified that Jurek appeared

“fidgety,” “anxious,” and “nervous.” A number of them recalled

that Jurek, although generally “close mouthed” and prone to

answer in “monosyllables,” became quite animated at the prospect

of staying in Victoria, as opposed to Cuero’s De Witt, county jail.

According to one witness, Jurek “said he wanted to stay in Victoria,

that’s the most words I heard him say.” According to another, “it

surprised me... he was very emphatic that he wanted to be

headquartered in the Victoria jail, rather than the jail here.”

The record suggests that Jurek may even have understood that he

would be transferred away from the Cuero jail, and officer Adams,

only if he confessed to exactly what the district attorney wanted.

According to the district attorney, after Jurek (just prior to his first

written confession) stuck to his story that Wendy Adams had

merely fallen out of his truck, see note 8, swpra, he ordered Jurek

sent back to the courthouse coffee room and went to make a phone

call. Although the district attorney testified that the purpose of the

call was to make arrangements to send Jurek to the Victoria jail,

there is no indication that Jurek knew this. What the record

suggests is that he believed that he was about to be returned to the

jail serving Cuero. According to the district attorney, “Before I got

the call made, some of [the police officers] came to me and said

A-44

Note 19 continued

Wiley, he wants to talk to you again .. .. [I]t got to where it was

comical because every time I went to the phone to call, somebody

would say he wants to talk to you.” Cf. note 16, supra (arrangements

for Jurek’s jail transfer made in violation of state law).

Confessions prompted by fears of personal injury have been held

to be involuntary. See e.g., Beecher v. Alabama, 389 U.S. 35, 36, 88

S.Ct. 189,. 190, 19 L.Ed.2d 35 (1967); Payne v. Arkansas, 356 U.S.

560, 567, 78 S.Ct. 844, 849, 2 L.Ed.2d 922 (1963)(accused was told

that “state financial aid for her infant children would be cut off, and

her children taken from her, if she did not ‘cooperate’ ”; subsequent

confession held involuntary).

**Jurek was not “a college graduate who had attended the first

year of law schoo.” Crooker v. California, 357 U.S. 433, 435, 438, 78

S.Ct. 1287, 1289, 2 L.Ed.2d 1448 (1958)(possibility of coercion

“negated here by petitioner’s age, intelligence, and education”. Nor

was he “a man of intelligence and business experience,” who

“answered questions freely and intelligently,” and “was at ease,

cool, and collected.” Lisenba v. California, 314 U.S. 219, 229-30,

241, 62 S.Ct. 280, 287, 292, 86 L.Ed. 166 (1941)(defendant’s self-

possession, soolness and acumen “negatives” view that confessions

were coerced). See Culombe v. Connecticut, 367 U.S. 568, 625, 81

S.Ct. 1860, 1891, 6 L.Ed.2d 1037 (1961)(defendant in Lisenba

“bragged immediately before his confession that there were not

enough men in the District Attorney’s office to make him talk”).

Although Jurek had been in trouble with the police before, there is

no indication here such as there was in Stein v. New York, 346 U.S.

at 186, 73 S.Ct. at 1093 (defendant haggled for terms with officials

to whom he confessed; confession held voluntary). In Stein, as the

Supreme Court stressed, the defendants had had considerable

criminal experience. 346 U.S. at 176 n.21, 185-86, 73 S.Ct. at 1093

(eacn defendant had served a sentence of at least 15 years in prison;

one of the defendants had been convicted of murder; they were “not

young, soft, ignorant or timid, .. . inexperienced in the ways of

crime or its detection, nor were they dumb as to their rights”). See

also Thomas v. Arizona 356 U.S. 390, 394, 401, 78 S.Ct. 885, 887,

891, 2 L.Ed.2d 863 (1958)(in view of defendant’s “extensive

criminal record,” including a five year prison sentence, two other

convictions, and several terms in the Navy brig, defendant could

not “be thought an impressionable stranger to the processes of

law”). Jurek’s experience, consisting of some arrests, and

possibly—the record does not show—some misdemeanor

convictions, was by contrast extremely limited. He had never been

indicted for, much less convicted of, a felony. See also Culombe v.

A-45

educated,22 highly suggestible,23 and borderline

Connecticut, 367 U.S. at 625 n.85, 81 S.Ct. at 1891 n.85 (value of

defendant’s considerable criminal experience as “school for

toughening resistance” must be discounted in light of subnormal

mental capacities; confession held involuntary).

21Jurek was twenty two years old, lived at home with his parents,

did not have a job, and associated with persons such as Richard

Broz who were in their early or middle teens. See generally

Townsend v. Sain, 372 U.S. 298, 308 n.4, 83 S.Ct. 745, 754 n.4, 9

L.Ed.2d 770 (1963)(youth relevant to voluntariness determination);

Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 1546, 6 L.Ed.2d 948

(1961)(same); Haley v. Ohio, 332 U.S. 596, 599-601, 68 S.Ct. 302,

303-04, 92 L.Ed. 224 (1948)(same).

22Although there is some confusion in the record, Jurek

apparently repeated the first, fourth or fifth, and sixth grades, and

dropped out of school at sixteen in the middle of the seventh. A

doctor who tested Jurek’s reading skills testified at the federal

habeas hearing that Jurek performed at a third grade level, such as

would be expected of an average eight or eight and a half year old.

The Supreme Court has repeatedly recognized such educational

deficiencies as a factor relevant in determining voluntariness. See,

e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041,

2047, 36 L.Ed.2d 854 (1973); Sims v. Georgia, 389 U.S. 404, 407, 88

S.Ct. 523, 525, 19 L.Ed.2d 634 (1967); Clewis v. Texas, 386 U.S. 707,

712, 87 S.Ct. 1338, 1341, 18 L.Ed.2d 423 (1967); Davis v. North

Carolina, 384 U.S. 737, 742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895

(1966); Harris v. South Carolina, 338 U.S. 68, 70-71, 69 S.Ct. 1354,

1356, 93 L.Ed. 1815 (1949); Ward v. Texas, 316 U.S. 547, 555, 62

S.Ct. 11389, 1142, 86 L.Ed. 1663 (1942).

23The record establishes a consensus among the witnesses to the

signing of Jurek’s two confessions and among the doctors who

testified at Jurek’s trial and at the federal habeas hearing that

Jurek never made small talk and seldom volunteered any

statement, but that he would, in the words of the state’s doctor, “be

willing to say anything just to get over the question.” This behavior

was labelled “passive dependent” or “passive and compliant.” As

one doctor explained at the federal habeas hearing:

...[A] person with the kind of deficits that [Jurek] has is

constantly coming into situations practically with

A-46

mentally retarded.*4 In such circumstances, as the

everyone else that he deals with in which they’re talking

in a language and in a way that he is not familiar with

and does not understand completely, and I think, as a

personality style, rather than stopping and questioning

every word and making sure that he understood each

word, that on a daily basis he would become very, very

confused, people couldn’t relate to him, they would think

he was dumb and stupid or something, so he sort of

adapted the life style of pretending to know things when

sometimes he did not.

As another doctor summarized, Jurek had a “tendency to say ‘Yes’

to things rather than to say ‘No.’ ” Compare, e.g., Culombe v.

Connecticut, 367 U.S. 568, 621, 625, 81 S.Ct. 1860, 1888, 1891, 6

L.Ed.2d 1037 (1961)(confession of “suggestible” defendant held

involuntary); Fikes v. Albama, 352 U.S. 191, 193, 198, 77 S.Ct. 281,

282, 285 (1957)(same; “circumstances of pressure applied against

the power of resistance of this petitioner, who cannot be deemed

other than weak of will or mind, deprived him of due process of

law”).

*The district court found, consistent with the testimony of the

doctors at Jurek’s trial and at the federal habeas hearing, that

Jurek “is an individual of below-average intelligence, mildly

retarded, with possible organic brain damage.” IQ tests established

that overall Jurek was “dull normal,” with respect to mechanical

[(“performance”] intelligency he was roughly average, and with

respect to “verbal” intelligence he was “in the bottom one percent”

or “mildly retarded.” According to the doctors who testified, Jurek

was unable, for example, to recite the alphabet, give change for a

dollar, say how many weeks there are ina year, or remember which

month comes before November. Mental deficiencies of this sort

have been recognized as “highly material” in a number of Supreme

Court cases finding confessions involuntary. Fikes v. Alabama, 352

U.S. 191, 193, 196, 77 S.Ct. 281, 282, 284, 1 L.Ed.2d 246

(1957)(defendant of “low mentality, if not mentally ill”). See, e.g.,

Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634

(1967)(“mental capacity decidedly limited”); Culombe v.

Connecticut, 367 U.S. 568, 620, 628, 81 S.Ct. 1860, 1888, 1892, 6

L.Ed.2d 1037 (1961)(‘high moron’); Reck v. Pate, 367 U.S. 433, 441,

81 S.Ct. 1541, 1546, 6 L.Ed.2d 948 (1961)(“subnormal

intelligence”); Payne v. Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844,

849, 2 L.Ed.2d 975 (1958)(“mentally dull”). See also Townsend v.

Sain, 372 U.S. 298, 308 n.4, 83 S.Ct. 745, 754 n.4, 9 L.Ed.2d 770

(1963)(relevant that defendant was ‘near mental defective’).

A-47

Supreme Court has specifically held, the fact that he

may have been advised of his constitutional rights, but

see infra, is of little significance. Sims v. Georgia, 389

U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967);

Beecher v. Alabama, 389 U.S. 35, 37 n.4, 88 S.Ct. 189, 190

n.4, 19 L.Ed.2d 35 (1967); Fikes v. Alabama, 352 U.S.

191, 193, 77 S.Ct. 281, 282, 1 L.Ed.2d 246 (1957).25 The

authorities did not literally beat Jurek’s confessions out

of him, one of the few indicia of involuntariness not here

present, but “the blood of the accused is not the only

hallmark of an unconstitutional inquisition.” Blackburn

v, Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4

L.Ed.2d 242 (1960). With due regard for the Supreme

Court’s admonition that inquiry into the issue of

voluntariness “requires more than a mere color-

matching of cases,” Reck v. Pate, 367 U.S. 433, 442, 81

S.Ct. 1541, 1547, 6 L.Ed.2d 948 (1961), a realistic

**The defendant in Sims had been in police custody for over eight

hours, had not been fed, was isolated from family, friends and

counsel, was illiterate, and had a decidedly limited mental

capacity. 389 U.S. at 407, 88 s.Ct. at 525. The Court concluded that

under such circumstances the fact that the police may have warned

petitioner of his right not to speak is of little significance.” 389 U.S.

at 407, 88 S.Ct. at 525. In Beecher and Fikes, the court also held

confessions to be involuntary even though they had allegedly been

preceded by repeated warnings to the defendants of their

constitutional rights. Beecher v. Alabama, 389 U.S. at 37 n.4, 88

s.Ct. at 190 n.4; Fikes v. Alabama, 352 U.S. at 193, 77 S.Ct. at 282.

The Court rules in Fikes that a police captain’s “testimony that he

repeatedly advised petitioner ‘that he was entitled to counsel and

his various rights’ must be viewed in the light of the facts

concerning petitioner’s mentality and experience . . ..” 352 U.S. at

193, 77 S.Ct. at 282. See also Davis v. North Carolina, 384 U.S. 737,

751, 86 S.Ct. 1761, 1769, 16 L.Ed.2d 895 (1966)(confession held

involuntary despite the fact that it contained “the standard

disclaimer that the confessions was free and voluntary”); Haynes v.

Washington, 373 U.S. 508, 512-13, 83 S.Ct. 1336, 1342, 10 L.Ed.2d

513 (1963)(“substantial doubt as to probative effect to be accorded

recitations in the challenged confession that it was not involuntarily

induced”); Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 304, 92

L.Ed. 224 (1948)(“cannot give any weight to recitals which merely

formalize constitutional requirements”).

A-48

appraisal of the circumstances of this case has

compelled me to conclude that each of Jurek’s

confessions was coerced. Due process of law requires

that statements so obtained cannot be used in any way

against a defendant at his trial. Mincey v. Arizona, 437

U.S. at 402, 98 S.Ct. at 2419. The admission of Jurek’s

two written confessions was, for this reason,

constitutional error.

II.

It also seems to me plain that Jurek’s confessions were

obtained in violcation of his Sixth Amendment right to

counsel. As the Supreme Court recently reiterated, it is

well established that under the Sixth Amendment,

“once adversary proceedings have commenced against

an individual, he has a right to legal representation

when the government interrogates him.” Brewer v.

Williams, 420 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51

L.Ed.2d 424 (1977); McLeod v. Ohio, 381 U.S. 356, 85

S.Ct. 1556, 14 L.Ed.2d 682 (1965); Massiah v. United

States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d

246 (1964).2 Here there is no doubt that Texas had

26 See generally Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877,

1882, 32 L.Ed.2d 411 (1972); United States v. Wade, 338 U.S. 218,

223-27, 87 S.Ct. 1926, 1930-32, 18 L.Ed.2d 1149 (1967); Powell v.

Alabama, 287 U.S. 45, 47, 53 S.Ct. 55, 56, 77 L.Ed.2d 158 (1932). See

also Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1764, 12

L.Ed.2d 977 (1964). As the Court stated in Wade, “the accused is

guaranteed that he need not stand alone against the State at any

stage of the prosecution, formal or informal, in court or out, where

counsel’s absence might derogate from the accused’s right to a fair

trial.” 388 U.S. at 226, 87 S.Ct. at 1932 (footnote omitted). As the

Court explained in Massiah, quoting a concurring opinion in Spano

v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265

(1959), “{aJnything less . . . might deny a defendant ‘effective

representation by counsel at the only stage where legal aid and

advice would help him.’ ” 377 U.S. at 204, 84 S.Ct. at 1202. The right

to counsel includes, of course, the right to appointed counsel. See,

e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963).

A-49

initiated adversary proceedings against Jurek at least

prior to the two written confessions.2’ Nor is there any

doubt that the confessions came in the course of

government interrogation. Jurek was thus plainly

entitled to the assistance of counsel guaranteed to him

by the Sixth and Fourteenth Amendments. What the

state contends, and what Judge Garza and Judge Brown

apparently conclude, is that Jurek waived this right.

After a review of the record, I simply cannot agree.

It is settled that, in order for a state to be able to

introduce under an assertion of waiver, statements

obtained from an accused who was entitled to but did not

have assistance of counsel, it is incumbent upon the state

to prove “an intentional relinquishment or

abandonment of a known right or privilege.” Brewer v.

Williams, 430 U.S. at 404, 97 S.Ct. at 1242: Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.

1461 (1938). As the Brewer Court emphasized, this is not

a standard of proof to be taken lightly: courts are to

27Prior to the interrogation sessions that produced the two

written confessions, Jurek had been brought before a magistrate,

formally charged with “murder with malice,” and denied bail.

There can be no question that adversary proceedings can be said to

have commenced against Jurek at least at the time of this

appearance. As the Supreme Court stated in Brewer.

There has occasionally been a difference of opinion

within the Court as to the peripheral scope of this

constitutional right [to assistance of counsel]. But its

basic contours, which are identical in state and federal

contexts, are too well established to require elaboration

here. Whatever else it may mean, the right to counsel

granted by the Sixth and Fourteenth Amendments

means at least that a person is entitled to the help of a

lawyer at or after the time that judicial proceedings have

been initiated against him—“whether by way of formal

charge, preliminary hearing, indictment, information,

or arraignment.”

430 U.S. at 398, 97 S.Ct. at 1239 (citations omitted).

A-50

“indulge in every reasonable presumption against

waiver.” 430 U.S. at 404, 97 S.Ct. at 1242. FE. g.,

Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16

L.Ed.2d 314 (1966); Glasser v. United States, 315 U.S.

60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942); Johnson v.

Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.28 It seems tome

clear that the state has not satisfied this standard here.

The record fails to show that Jurek ever understood,

much less waived, his right to counsel. When he was

taken before the magistrate, charged with “murder

28The Brewer Court reiterated that “the right to counsel does not

depend upon a request by the defendant.” 430 U.S. at 404, 97 S.Ct.

at 1242; Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8

L.Ed.2d 70 (1962). To the extent that the opinions of Judge Brown

and Judge Garza imply differently, that absent a request (“clear” or

otherwise) waiver may be presumed, that implication is simply

incorrect. As the Supreme Court stated in Carnley,

Presuming waiver from a silent record is impermissible.

The record must show, or there must be an allegation and

evidence which show, that an accused was offered

counsel but intelligently and understandingly rejected

the offer. Anything less is not waiver.

369 U.S. at 516, 82 S.Ct. at 890. See also Brewer v. Williams, 430

U.S. at 404, 97 S.Ct. at 1242 (“strict standard” or waiver not limited

to alleged waivers at trial; applies equally to alleged waiver of right

to counsel during police interrogation).

It should also be noted that there is some question whether an

accused, acting on his own without assistance or consent of counsel,

may ever waive the right to have counsel present at police

interrogations conducted after the commencement of adversary

proceedings. See Brewer v. Williams, 430 U.S. at 405-06 & n.11, 97

S.Ct. at 1243 & n.11 (citing cases). The Supreme Court raised the

issue in Brewer but, presumably in light of its holding that waiver

in that case even if legally possible had not in fact occurred, did not

decide it. 430 U.S. at 405-06, 97 s.Ct. at 1243. But see id. at 413, 97

s.Ct. at 1246 (Powell, J., concurring)(contending that the Court did

decide the issue). Cf. Faretta v. California, 422 U.S. 806, 836, 95

S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)defendant has a

constitution to conduct his own defense). Judge Garza and Judge

Brown do not address this issue.

A-51

with malice,” and read his rights, Jurek told the

magistrate that he could not afford a lawyer and that

one would have to be appointed for him.29 The

magistrate’s response was to tell him that he had aright

to appointed counsel at trial.°° The later Miranda

warnings testified to by the police notwithstanding, this

response would have been likely to mislead a person of

normal intelligence.*! It seems almost certain that it

would have misled or at least impermissibly confused a

**Jurek’s appearance before the magistrate was attended only by

Jurek and the magistrate. No transcript was made of what was

said. The magistrate testified that Jurek told him “that he could not

afford a lawyer and the Court would have to appoint him one.”

“The magistrate testified, without contradiction, that when

Jurek said that he could not afford a lawyer and that one would have

to be appointed for him, he responded: “I told him, I explained to

him, I said, ‘When you go into the court, why, the District Court, you

have to have an attorney to represent you.’ And so, I explained to

him, and which he said he understood it . . ..”

The preoccupation of Judge Garza, Judge Brown and the district

court with whether this response constituted a denial of an

unequivocal request for counsel within the meaning of Nash v,

Estelle, 597 F.2d 513, 517 (5th Cir. 1979\en banc\unequivocal

request for counsel, if disregarded, acts as absolute bar to further

questioning of uncounseled accused), see Blasingame v. Estelle, 604

F.2d 893 (5th Cir. 1979), United States v. Priest, 409 F.2d 491 (5th

Cir, 1969), misses the more important, threshold point that the

response was a singularly inadequate explanation of the scope of

Jurek’s Sixth Amendment right. See note 26, supra (defendant

against whom adversary proceedings have been initiated has right

to appointed counsel prior to any questioning). The magistrate’s

evidently limited understanding of the extent of Jurek’s right to

appointed counsel may be attributable to the fact that Jurek’s case

was the first in which the magistrate had ever been called on to

make an appointment. In eventually making the appointment, as in

the conduct of virtually all other aspects of his duty in this case, the

magistrate testified that he acted at the instance of the prosecuting

attorneys.

31Coming as it did from a judicial officer in response to what must

at least be characterized as a request for interpretative assistance,

the magistrate’s statement appeared definitive.

A-52

person as poorly educated, suggestible and mentally

deficient as Jurek.* In light of the lack of any evidence

in the record demonstrating the Jurek was finally made

to understand that he did not have to be able to pay to

obtain immediate constitutional protection, and that he

was entitled to court-appointed counsel not just at trial

but prior to any questioning, it simply cannot be said

that the state has proved that Jurek ever made the

knowing and intelligent waiver of his right to counsel

that the Sixth Amendment required.** The admission of

the two written confessions was, for this reason as well,

constitutional error.

%2See notes 22, 23 & 24, supra. As the Supreme Court established

in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938), the background of the accused is an important element in

the determination of whether there has been an intelligent waiver

of the right to counsel. See generally Culombe v. Connecticut, 367

U.S. 568, 632, 81 S.Ct. 1860, 1895, 6 L.Ed.2d 1037 (1961 (if mentally

deficient defendant had been originally charged with murder

instead of a misdemeanor “{clertainly ... no court would have failed

to warn [him] of his rights and arrange for appointment fo

counsel”).

There was medical testimony in this case, albeit disputed, that

Jurek was incapable of understanding the Miranda-type warning

printed at the top of his confession form even when that warning

was read to him aloud. The state’s doctor testified without

contradiction that it was questionable that Jurek had the ability to

understand words such as “indigent” or “counsel.”

3341] that the record establishes is that, after Jurek’s appearance

before the magistrate, his right to an attorney was recited to him on

a number of occasions and he responded that he did not want a

lawyer at that time. Because it is clearly reasonable to presume, see

supra, even more so in light of Jurek’s mental deficiencies, that the

motivation for Jurek’s response was a misimpression left by the

misleading statement of the magistrate, the record simply does not

show, as it must, that Jurek was offered counsel but intelligently

and understandingly rejected the offer. E.g., Carnley v. Cochran,

369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962\“Anything

less is not waiver.”). See North Carolina v. Butler, 441 U.S. 369, 373

n.4, 99 S.Ct. 1755 n.4, 60 L.Ed.2d 286 (1979).

A-53

ITI.

For much the same reason, it also seems to me plain

that Jurek’s confessions were obtained in violation of

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966).*4 In Miranda, the Supreme Court

established procedural safeguards for the protection of

an a-cused’s Fifth Amendment right not to be

compelled to incriminate himself. 384 U.S. at 441-42, 86

S.Ct. at 1611. See, e. g., Brewer v. Williams, 430 U.S. 387,

397, 97 S.Ct. 1282, 12388, 51 L.Ed.2d 424 (1977);

Michigan v. Tucker, 417 U.S. 433, 438, 94 S.Ct. 2357,

2360, 41 L.Ed.2d 182 (1974). Miranda requires that

prior to any custodial police questioning an accused

must be adequately informed of and waive his right to

remain silent and his right to retained or appointed

counsel. If this requirement is not fulfilled, the

prosecution is barred from using any of the accused’s

responses at trial as part of its case in chief. 384 U.S. at

444, 86 S.Ct. at 1612. See, e. g., Michigan v. Mosely, 423

U.S. 96, 99-100, 96 S.Ct. 321, 324, 46 L.Ed.2d 313 (1975);

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28

L.Ed.2d 1 (1971). The Supreme Court has repeatedly

emphasized that waiver of the Miranda rights is not to

be lightly inferred. In asserting waiver, the

prosecution’s burden is great. E. g., Tague v. Louisiana,

—_._ U.S. ____ , 100 S.Ct. 652, 62 L.Ed.2d 622 (1980);

North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct.

1755, 1757, 60 L.Ed.2d 286 (1979); Miranda v. Arizona,

384 U.S. at 475, 86 S.Ct. at 1628.35

“For a comparison of the doctrines of Miranda v. Arizona, 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Brewer v.

Williams, 430 U.S. 387, 97 S.Ct. 1282, 51 L.Ed.2d 424 (1977), see,

for example, Kamisar, Brewer v. Williams, 430 U.S. 387, 97 S.Ct.

1232, 51 L.Ed.2d 424 (1977), see, for example, Kamisar, Brewer v.

Williams, Massiah, and Miranda: What is “interrogation”? When

Does it Matter?, 67 Geo. L.J. 1 (1978).

“In Tague, the Court held that the following passage from

Miranda “clearly stated the principles that govern once the

required warnings have been given”:

A-54

As the previous discussion of Jurek’s alleged Sixth

Amendment waiver makes clear, the state has failed to

carry this burden here. The record fails to establish that

Jurek understood, much less waived, his right to

appointed counsel prior to any questioning. It indicated

only that he was made to understand that he had aright

to appointed counsel at trial. As a result, Miranda

barred the state from introducing any of Jurek’s

confessions at trial as part of its case in chief. The

admission of the two written confessions was, for this

reason as well, constitutional error.

IV.

Our judicial heritage is rich in the recognition that no

matter how severe the crime, the law controls its

investigation, its prosecution, and, as we sit here, its

review. See, e. g., Bumper v. North Carolina, 391 U.S.

543, 550 n.16, 88 S.Ct. 1788, 1792 n.16, 20 L.Ed.2d 797

If the interrogation continues without the presence of

an attorney and a statement is taken, a heavy burden

rests on the government to demonstrate that the

defendant knowing and _ intelligently waived his

privilege against self-incrimination and his right to

retained or appointed counsel. Escobedo v. Illinois, 378

U.S. 478, 490, n.14[84 S.Ct. 1758, 1765, n.14, 12 L.Ed.2d

977]. This Court has always set high standards of proof

for the waiver of constitutional rights, Johnson v. Zerbst,

304 U.S. 458 (58 S.Ct. 1019, 82 L.Ed. 1461](1938), and we

re-assert these standards as applied to in-custody

interrogation. Since the State is responsible for

establishing the isolated circumstances under which the

interrogation takes place and has the only means of

making available corroborated evidence of warnings

given during incommunicado interrogation, the burden

is rightly on its shoulders. 384 U.S. 436, 475 [86 S.Ct.

1602, 1628, 16 L.Ed.2d 694].

___ USS. at ___ , 100 S.Ct. at 653. In North Carolina, the Court

stated that “(t]he courts must presume that a defendant did not

waive his rights; the prosecution’s burden is great ....” 441 U.S. at

373, 99 S.Ct. at 1757.

A-55

(1968); Davis v. North Carolina, 384 U.S. 737, 739, 86

S.Ct. 1761, 1768, 16 L.Ed.2d 895 (1966); Spano v. New

York, 360 U.S. 315, 320-21, 79 S.Ct. 1202, 1205-06, 3

L.Ed.2d 1265 (1959); Olmstead v. United States, 277 U.S.

438, 479, 485, 48 S.Ct. 564, 572, 575, 72 L.Ed. 944

(1928)(Brandeis, J., dissenting); Boyd v. United States,

116 U.S. 616, 635, 6 S.Ct. 524, 534, 29 L.Ed. 746 (18'36).36

As the Supreme Court recently stated in an opinion

reversing the conviction of a defendant ‘clearly guilty’ of

the “senseless and brutal” murder of a ten year old girl:

The pressures on state executive and judicial

officers charged with the administration of the

criminal law are great, especially when the

crime is murder and the victim a small child.

But it is precisely the predictability of those

pressures that makes imperative a resolute

loyalty to the guarantees that the Constitution

extends to us all.

Brewer v. Williams, 430 U.S. 387, 406, 97 S.Ct. 1232,

1243, 51 L.Ed.2d 424 (1977).

Jurek may not have been entitled to a perfect trial.

See, e. g., Schneble v. Florida, 405 U.S. 427, 422, 92 S.Ct.

1056, 1059, 31 L.Ed.2d 340 (1972). But he was entitled to

a fair one. U.S.Const. Amends. V, VI & XIV.

For the reasons set out above, I concur in the court’s

%With particular relevance to this case, the Supreme Court has

repeatedly stressed that the question of whether a confession was

voluntary is to be answered without regard to whether the

confession was true or false, or the defendant guilty or innocent.

E.g., Michigan v. Tucker, 417 U.S. 433, 448 n.23, 94 S.Ct. 2357, 2366

n.23, 41 L.Ed.2d 182 (1974); Davis v. North Carolina, 384 U.S. 737,

739, 86 S.Ct. 1761, 1763, 16 L.Ed.2d 895 (1966); Jackson v. Denno,

378 U.S. 368, 376, 84S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964); Rogers

v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760

(1961). To hold otherwise, that the police have a right to coerce

confessions out of ‘guilty’ defendants, would be to return to the days

of the rack and screw.

7%

A-56

judgment that the case must be reversed and remanded

with instructions to the district court to issue the writ. I

dissent from Judge Garza’s conclusions that only one of

Jurek’s confessions was constitutionally defective.

A-57

JOHN R. BROWN, Circuit Judge, with whom

COLEMAN, Chief Judge, AANSWORTH, CHARLES

CLARK, GEE, TJOFLAT, HILL, FAY, VANCE,

HENDERSON and REAVLEY, Circuit Judges, join,

concurring in part and dissenting in part:

This case presents in dramatic terms the tensions

between promoting thorough and efficient enforcement

of the laws and ensuring that the rights of the accused

are scrupulously guarded. We have on the one hand a

murder which could hardly have been more

reprehensible; the violent, senseless slaying of a young

girl. On the other hand, we have a decision by a panel of

this Court throwin out Jurek’s two written confessions

on the grounds of voluntariness, making it very unlikely

that Jurek could again be convicted on retrial.

Recognizing the importance of this case, we decided to

review the panel decision en banc. A majority of the en

banc Court, through a series of opinions, now concludes

that the first written confession was properly admitted

into evidence but that the second one was not. Judge

Garza’s opinion, although embraced in its entirety by

only 3 other Judges, thus represents the result reached

by a majority of this Court.

We concur in Judge Garza’s opinion with respect to

the first confession but must dissent from his view with

respect to the second one. In our view, the similarities in

the circumstances surrounding the two confessions are

striking, while the differences are inconsequential.

Since our analysis of this case is shaped by the

standard of review we adopt, the proper standard of

review is the threshold issue before us. In our view,

neither the panel opinion nor Judge Garza’s opinion

gives this issue thorough enough consideration.

After discussion the standard of review issue, we

consider the circumstances common to the two

confessions, indicating our disagreement with the panel

A-58

opinion. Next, we focus on the first confession,

examining factors supporting voluntariness not

emphasized in Judge Garza’s opinion. We then focus on

the second confession and attempt to demonstrate that

most—if not all— of the distinctions between the two

confessions emphasized by Judge Garza disappear upon

close analysis. And any factual differences that remain

clearly do not support a distinction of constitutional

magnitude.!

Objective Of This Concurring/Dissenting Opinion

The aim of this concurring/dissenting opinion is to

support fully with additional reasons and considerable

factual record material the eminently correct decision

of Judge Garza holding the first confession admissible,

and, by way of dissent, to demonstrate, again by analysis

and full factual material, the incorrectness of his

determination that the second confession was

inadmissible.

I. Standard Of Review

The members of this concurring/dissenting opinion

do not take a firm stand concerning the proper standard

of review. Many Circuit Court cases suggest that the

District Court’s findings of ultimate fact reviewable

voluntary are findings of ultimate fact reviewable

under the “clearly erroneous” standard.? F.R.Civ.P.

iLike the other opinions, this opinion does not consider the claim

that the exclusion of certain veniremen at trial violated the rule of

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776

(1968).

2See Part IA of this opinion, infra, slip opinion pp. 8202-8204, pp.

A-59

52(a).3 However, the standard of review may not be quite

so confined. Under Supreme Court precedent, we may

be required to make an “independent review” of the

record.‘ In any event, as the following discussion

demonstrates, the two standards are as a practical

matter not that different. And all joining in this opinion

agree that under either the “clearly erroneous” or the

“independent review” standard, Jurek’s written

confessions were voluntary.

A. Clearly Erroneous Standard

Until the panel opinion in this case, Jurek v. Estelle,

593 F.2d 672 (5th Cir. 1979), this Circuit had

consistently held that in reviewing a Federal District

Court’s denial of habeas corpus in a state criminal case,

the “clearly erroneous” standard of F.R.Civ.P. 52(a)

applies not only as to the individual subsidiary findings

of fact but even as to the ultimate question of the

voluntariness of the confession. See, e.g., Hyde. Massey,

592 F.2d 249, 250 (5th Cir. 1979); United States ex rel.

Young v. Wainwright, 490 F.2d 96, 97 (5th Cir. 1974);

Edwards v. Beto, 446 F.2d 18, 19 (5th Cir. 1971); Mobley

v. Smith, 433 F.2d 846, 848 (5th Cir. 1971); Cook v. Beto,

425 F.2d 1066, 1067 (5th Cir. 1970), cert. denied, 400 U.S.

944, 91 S.Ct. 248, 27 L.Ed.2d 249 (1970). But cf. Davis v.

Heyd, 479 F.2d 466, 450 (5th Cir. 1973)(suggesting in

dictum that the question of voluntariness of confession is

one of law, not of fact). Similarly, most of the other

Circuits that have considered the matter have also

concluded that the “clearly erroneous” standard is the

3F.R.Civ.P. 52(a) provides:

Findings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the credibility of

the witnesses.

‘See Part IB of this opinion, infra, slip opinion pp. 8204-8209, pp.

A-60

proper one in reviewing the District Court’s finding ina

habeas case concerning the voluntariness of a

confession. See, e.g., United States ex rel. Delle Rose v.

LaValle, 468 F.2d 1288, 1290 (2d Cir. 1973), rev'd and

rem. on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35

L.Ed.2d 637, cert. denied, 414 U.S. 1014, 948S.Ct. 380, 38

L.Ed.2d 251 (1973); United States ex rel. Jefferson v.

Follette, 438 F.2d 320, 322 (2d Cir. 1971); Outing v. North

Carolina, 383 F.2d 892, 896 (4th Cir. 1967); United

States ex rel. Crump v. Sain, 295 F.2d 699, 701 (7th Cir.

1961), cert. denied, 369 U.S. 830, 82 S.Ct. 845, 7 L.Ed.2d

794 (1962); Cranor v. Gonzales, 226 F.2d 83, 94 (9th Cir.

1955), cert. denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed.

816 (1956). Cf. United States v. Johnson, 608 F.2d 725,

730 (9th Cir. 1979)(applying clearly erroneous standard

on direct appeal in a federal criminal case). But see, e.g.,

Makarewrcz v. Scafati, 488 F.2d 474, 477 (1st Cir. 1971),

cert. denied, 402 U.S. 980, 91 S.Ct. 1685, 29 L.Ed.2d 145

(1971)(an appellate Court must make an independent

determination on the ultimate issue of voluntariness);

Outing v. North Carolina, supra, 383 F.2d at 914-15

(Frank Kaufman, D. J., dissenting)(arguing that clearly

erroneous standards should not apply to determination

of “psychological facts” and their legal significance);

Collins v. Beto, 348 F.2d &_3, 832 (5th Cir.

1968)(Friendly, J., sitting by designation, concurring)

(arguing that clearly erroneous standard does not

apply to evaluation of “psychological facts”); Bell v.

Patterson, 402 F.2d 394, 396 (10th Cir. 1968), cert.

denied, 403 U.S. 955, 91 S.Ct. 2279, 29 L.Ed.2d 865

(1971)(appellate Court must make an independent

determination on the ultimate issue of voluntariness).

The many cases applying the “clearly erroneous”

standard to the ultimate question of voluntariness view

that question as simply one of fact to be determined on

the basis of subsidiary facts. There is at least some

Supreme Court authority for the proposition that

voluntariness is a question of fact. In Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854

A-61

(1973), a case involving whether consent to search was

voluntarily given, the Court stated that “voluntariness is

a question of fact to be determined from all the

circumstances.” Jd. at 248-49, 93 S.Ct. at 2059, 36

L.Ed.2d at 875 (emphasis added).5 And while we can

uncover no Supreme Court case holding that the

“clearly erroneous” rule applies in voluntariness of

confession cases (habeas or otherwise), the Supreme

Court has held that the “clearly erroneous” rule applies

in other types of habeas cases. E.g., Wade v. Mayo, 334

U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647

(1947)(determination by District Court that

inexperienced youth was incapable of self-

representation at trial is a question of fact subject to the

“clearly erroneous” rule).

Under the “clearly erroneous” rule, we may not

reverse a finding unless, after reviewing the evidence,

the Court “is left with the definite and firm conviction

that a mistake has been committed.” United States v.

United States Gypsum Co., 333 U.D. 364, 395, 68 S.Ct.

525, 542, 92 L.Ed. 746, 766 (1948). We do not weigh the

evidence de novo and may not set aside findings merely

because on the same evidence we might have reached a

different result. See Wright & Miller, Federal Practice

and Procedure § 2585, pp. 732-33 (1971), and the cases

cited therein.

Some Courts and commentators take the position that

the clearly erroneous rule should apply to all findings of

fact—not only when credibility choices are involved, but

also when the District Court’s findings are based in

inferences from documents, transcripts or undisputed

facts. See generally id. § 2587, pp. 740-48. However, this

is not the rule in the Fifth Circuit. A recent en banc

‘As the discussion below indicated, however, many other

Supreme Court cases recognize—at least implicitly—that the

determination of whether a confession is voluntary presents a

mixed question of law and fact.

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decision confirms that the clearly erroneous rule does

not apply with respect to inferences drawn from

transcripts, Nash v. Estelle, 597 F.2d 5138, 518 (5th Cir.

1979), and our rule is likewise with respect to documents

and undisputed facts. E.g., Robinson v. Vollert, 602 F.2d

87, 92 n.8 (5th Cir. 1979); Hillard v. C.I.R., 281 F.2d 279,

282 (5th Cir. 1960).®

There are sound policy reason in support of the use of

the “clearly erroneous” review standard in reviewing

the ultimate finding of voluntariness of a confession.

That determination usually depends largely on

testimonial evidence. The State Trial Court, the State

habeas Court, and the Federal District Court are, unlike

an appellate Court, in the proper position of viewing the

demeanor and judging the credibility of the witnesses.

Moreover, the “clearly erroneous” rule as it is applied in

this Circuit does not apply to inferences drawn from

documents, transcripts, or undisputed facts. Thus, the

rule is not used where it is not useful: in situations where

the reviewing Court is in the same position to review the

evidence as the Court below.

B. Independent Review Standard

A mechanical use of the “clearly erroneous” standard

in habeas cases involving the voluntariness of a

confession may be inconsistent with Supreme Court

precedent. Furthermore, there may be policy reasons

favoring a somewhat more active review standard when

6A very recent (post-Nash) case may apper to suggest that the

clearly erroneous rule does apply to inferences from documents,

transcripts, and similar evidence. Green v. Russell County, 603 F.2d

571 (5th Cir. 1979). However, Green also suggests that even though

the rule applies, it does not apply with full force:

“(TJhe burden of establishing clear error is not so heavy as in the

normal case. ...” Jd. at 573. In any event, to the extent that Green

appears to be in conflict with Nash, we believe that the rule in Nash

applies to constitutional claims by criminal defendants.

Vv

_

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fundamental constitutional rights are at stake.

The panel opinion states:

Weare, according to the Supreme Court, under

a “duty [as] an appellate court . . . ‘to examine

the entire record and make an independent

determination 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), quoting David v. North Carolina, 384

U.S. 787, 741-42, 86 S.Ct. 1761, 16 L.Ed.2d 895

(1966); see also Mincey v. Arizona, 437 U.S. 385,

98 S.Ct. 2408, 2417, 57 L.Ed.2d 290 (1978); in

other words, we may overturn the district

court’s conclusion on this issue even if it is not

clearly erroneous.

593 F.2d at 677 (emphasis added). This brief comment

does not explain the three-phase review process

articulated by the Supreme Court and described below.

Moreover, the panel never considers whether the

Supreme Court standard applies in the habeas corpus

context.’ After first arguing that the Supreme Court’s

“independent review” standard may very well apply in

habeas cases, we proceed to flesh out the precise content

of that standard.

The Supreme Court, in articulating the standard of

review governing voluntariness of confession cases, has

rarely explicitly differentiated between cases on direct

appeal from state Courts and cases reviewing Federal

Court decisions on habeas corpus. However, the

Supreme Court habeas cases strongly suggest that the

"This is particularly surprising in light of Chief Judge Coleman’s

apparent assumption in his dissent that the “clearly erroneous”

standard spplies even with respect to the ultimate question of

voluntariness. See 593 F.2d at 685-86.

A-64

same standard applies. For instance, in Davis v. North

Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895

(1966), the Court was faced with a habeas appeal from

the District Court and the United States Court of

appeals in a state criminal case. The issue was the

voluntariness of the confession. The Court applied the

same standard of review that it had consistently applied

in direct appeals from state Courts:

[The] factual allegations were resolved against

Davis by the District Court and we need not

review these specific findings here.

It is our duty in this case, however, as in all of

our prior cases dealing with the question

whether a confession was involuntarily given,

to examine the entire record and make an

independent determination of the ultimate

issue of voluntariness. [Citing authority. ]

Id. at 741-42, 86S.Ct. at 1764, 16 L.Ed.2d at 898. See also

Reck v. Pate, 367 U.S. 438, 81 S.Ct. 1541, 6 L.Ed.2d 948

(1961); Thomas v. Arizona, 356 U.S. 390, 78 S.Ct. 885, 2

L.Ed.2d 8638 (1958); Leyra v. Denno, 347 U.S. 556, 74

S.Ct. 716, 98 L.Ed. 948 (1958). Cf. Jackson v. Virginia,

443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560,

573 (1979); Townsend v. Sain, 372 U.S. 298, 316, 83 S.Ct.

745, 758, 9 L.Ed.2d 770, 787 (1963).

These cases strongly suggest that the “clearly

erroneous” test may not be the correct test in analyzing

the voluntariness of confessions, even in the habeas

corpus context. Indeed, a number of Circuit Judges have

felt bound by these Supreme Court cases when

reviewing habeas appeals from the Federal District

Court. See, e.g., Makarewicz v. Scafati, supra; Outing v.

North Carolina, supra (Frank Kaufman, D.J.,

dissenting); Collins v. Beto, supra (Friendly, J., sitting

by designation, concurring); Bell v. Patterson, supra. On

the other hand, the cases applying the “clearly

erroneous’ rule do not even try to distinguish such cases

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as Davis v. North Carolina, supra, and, indeed, do not

even hint at the possibility that the Supreme Court may

require a standard of review broader than that of

clearly erroneous. See the cases applying the clearly

erroneous rule, cited on slip opinion p. 8203, p. __—. of

this opinion. Because of the strong possibility that the

Circuit Courts are required to make an “independent

review” of the evidence in habeas appeals, we believe it

necessary to consider the “independent review” test in

some detail. .

ii

The Supreme Court has iterated and reiterated its

“independent review” test on numerous occasions. See,

e.g., Chambers v. Florida, 309 U.S. 227, 229, 60 S.Ct.

472, 473, 84 L.Ed. 716, 718, (1940); Lisenba v.

California, 314 U.S. 219, 237-40, 62 S.Ct. 280, 290-91, 86

L.Ed. 166, 180-82 (1941); Ashcraft v. Tennessee, 322 U.S.

143, 147-48, 64 S.Ct. 921, 9238, 88 L.Ed. 1192, 1196

(1944); Gallegos v. Nebraska, 342 U.S. 55, 61-63 (1951);

Blackburn v. Alabama, 361 U.S. 199, 205, 80 S.Ct. 274,

279, 4 L.Ed.2d 242, 247 91960); Haynes v. Washington,

373 U.S. 503, 516-17, 83 S.Ct. 1836, 1344-45, 10 L.Ed.2d

518, 522-23 (1963); Davis v. North Carolina, supra, 384

U.S. at 741-42, 86 S.Ct. at 1764, 16 L.Ed.2d at 898;

Mincey v. Arizona, 487 U.S. 385, 398, 98 S.Ct. 2408,

2417, 57 L.Ed.2d 290, 304 (1978). By far the Court’s most

comprehensive analysis on the subject is Mr. Justice

Frankfurter’s opinion in Culombe v. Connecticut, 367

U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).° As the

8There was no majority opinion in Culombe. Rather, there were

five separate opinions: one by Frankfurter, J. (joined by Stewart,

J.,), one by Warren, C.J., one by Douglas, J., (joined by Black, J.),

one by Brennan, J., (joined by Warren, C.J., and Black, J.), anda

dissent by Harlan, J., (joined by Clark, J., and Whittaker, J.).

Despite this confusion, however, the standard of review articulated

by Justice Frankfurter was approved by a majority of the Court,

since Justice Harlan’s dissent (for three Justices) expressed

agreement with Justice Frankfurter’s statement (for himself and

Justice Stewart) of “the factors which should guide federal

judicial review of state action in this field.” 367 U.S. at 642, 81 S.Ct.

at 1900, 6 L.Ed.2d at 1080.

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opinion makes clear, the determination of whether a

confession is voluntary involves a three-aprt analysis:

The inquiry whether, in a particular case, a

confession was voluntarily or involuntarily

made involves, at the least,a three-phased

process. First, there is the business of finding

the crude historical facts, the external,

“phenomenological” occurrences and events

surrounding the confession. Second, because

the concept of “voluntariness” is one which

concerns a mental state, there is the

imaginative recreation, largely inferential, of

internal, “psychological” fact. Third, there is

the application to this psychological fact of

standards for judgment informed by the larger

legal conceptions ordinarily characterized as

rules of law but which, also, comprehend both

induction from, and anticipation of, factual

circumstances.

Id. at 608, 81 S.Ct. at 1879, 6 L.Ed.2d at 1058.

As Justice Frankfurter makes clear, the standard of

review is not the same with respect to each stage. As to

the first stage, the historical fact finding, the clearly

erroneous rule (or the likes thereof) does indeed apply:

In a case coming here from the highest court

of a State in which review may be had, the first

of these phases is definitely determined,

normally, by that court. Determination of what

happened requires assessments of the relative

credibility of witnesses whose stories, in cases

involving claims of coercion, are frequently, if

indeed not almost invariably, contradictory.

That ascertainment belongs to the trier of facts

before whom those witnesses actually appear,

subject to whatever corrective powers a State’s

appellate processes afford.

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This means that all testimonial conflict is

settled by the judgment of the state courts.

Where they have made explicit findings of fact,

those findings conclude us and form the basis of

our review—with the one caveat, necessarily,

that we are not to be bound by findings wholly

lacking support in evidence.

Id, 81 S.Ct. at 1879, 6 L.Ed.2d at 1058. See also

Lisenoa v. California, supra, 314 U.S. at 238, 62 S.Ct. at

290, 86 L.Ed. at 181; Gallegos v. Nebraska, supra, 342

U.S. at 61, 72 S.Ct. at 145, 96 L.Ed. at 92.

Where there are no explicit findings, or in the

case of lucunae among the findings, the

rejection of a federal constitutional claim by

state criminal courts applying proper

constitutional standards resolves all conflicts in

testimony bearing on that claim against the

criminal defendant. In such instances, we

consider only the uncontested portions of the

record: the evidence of the prosecution’s

witnesses and so much of the evidence for the

defense as, fairly read in the context of the

record as a whole, remains uncontradicted.

367 U.S. at 603-04, 81 S.Ct. at 1879-80, 6 L.Ed.2d at

1058. See also Thomas v. Arizona, supra, 356 U.S. at

402-03, 78 S.Ct. at 892, 2 L.Ed.2d at 871-72: Ashcraft v.

Tennessee, supra, 322 U.S. at 152, 153, 64 S.Ct. at 925,

926, 88 L.Ed. at 1198, 1199. See generally Note,

Supreme Court Review of State Findings of FAct in

Fourteenth Amendment Cases, 14 Stan.L.Rev. 328, 339-

41 (1962)[hereafter referred to as Stanford N ote].

With respect to the second and third phases of the

examination, the reviewing Court is not constrained by

the “clearly erroneous” standard:

The second and third phases of the inquiry—

determination of how the accused reacted to the

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external facts, and of the legal significance of

how he reacted—although distinct as a matter

of abstract analysis, become in practical

operation inextricably interwoven. This is so, in

part, because the concepts by which language

expresses an otherwise unrepresentable

mental reality are themselves generalizations

importing preconceptions about the reality to

be expressed. It is so, also, because the

apprehension of mental states is almost

invariably a matter of induction, more or less

imprecise, and the margin of error which is

thus introduced into the finding of “fact” must

be accounted for in the formulation and

application of the “rule” designed to cope with

such classes of facts. The

*(367 U.S. 605]

*notice of “voluntariness” is itself an

amphibian. It purports at once to describe an

internal psychic state and to characterize that

state for legal purposes. Since the

characterization is the very issue “to review

which this Court sits,” [quoting authority], the

matter of descrition, too, is necessarily open

here.

No more restricted scope of review

would suffice adequately to protect federal

constitutional rights. For the mental state

of involuntariness upon which the due

process question turns can never be

affirmatively established other than

circumstantially—that is, by inference;

and it cannot be competent to the trier of

fact to preclude our review simply by

declining to draw inferences which the

historical facts compel.

367 U.S. at 604-05, 81 S.Ct. at 1880, 6 L.Ed.2d at 1059.

A-69

It is absolutely critical to emphasize, however—and

the panel and Judge Garza overlook this point—that

even with respect to the second and third phases of the

inquiry, the role of the reviewing Court is not entirely

unlimited. Even with respect to these phases, inferences

drawn by the lower Courts may be entitled to some

weight:

Great weight, of course,is to be accorded to

the inferences which are drawn by the state

courts. In a dubious case, it is appropriate, with

due regard to federal-state relations, that the

state court’s determination should control.

Id. at 605, 81 S.Ct. at 1880, 6 L.Ed.2d at 1059. See also

Haynes v. Washington, supra, 373 U.S. at 515, 83 S.Ct. at

1344, 10 L.Ed.2d at 522, which states: “[(T]he

determination of the trial judge or the jury... may be en-

titled to some weight even with respect to the ultimate

conclusion on the crucial issue of voluntariness.”

(Emphasis added.)

As articulated in the case law, the Fifth Circuit’s

“clearly erroneous” review standard may not be that

much different from the “independent review” standard

set forth by the Supreme Court. First, as to “historical

facts,” the Supreme Court itself indicates that a clearly

erroneous type standard should apply. Thus the phrase

“independent review of the record” does not mean that

%Mr. Justice Frankfurter’s mini-treatise in Culombe was

described by one noted authority as “the most ambitious attempt to

bring order, coherence and clarity to the ‘involuntary’ or ‘coerced’

confession field. . . .” Kamisar, A Dissent from the Miranda

Dissents: Some Comments on the “New” Fifth Amendment and the

Old “Voluntariness“ Test, 65 Mich.,L.Rev. 59, 98 (1966). Another

writer described the opinion as “the only detailed and thoughtful

discussion of [the standard of review] appearing in any coerced

confession case.” Note, Supreme Court Review of State Findings of

Fact in Fourteenth Amendment Cases, 14 Stan.L.Rev. 328, 349

n.107 (1962).

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the appellate Court should act as a fact finding body and

we strongly disagree with anything in the panel opinion

which could be read as suggesting otherwise. Moreover,

because this Circuit does not apply the clearly erroneous

rule with respect to inferences drawn from documents,

transcripts, or undisputed facts, the Supreme Court’s

requirement that an appellate Court make an

independent determination based on the undisputed

facts’ will be met even under aclearly erroneous review

standard.!!

1oWhile some Supreme Court cases suggest that the reviewing

Court must scrutinize the “entire” record, see most recently,

Mincey v. Arizona, supra, 437 U.S. at 398, 98 S.Ct. at 2417, 57

L.Ed.2d at 304 (“this Court is under a duty to make an independent

evaluation of the record”), other cases have made clear that the

independent evaluation is on the basis of the undisputed facts. See,

e.g., Culombe v. Connecticut, supra (quoting supra slip opinion p.

8207, p. __); Thomas v. Arizona, supra, 356 U.S. at 393, 78 S.Ct. at

887, 2 L.Ed.2d at 866; Malinski v. New York, 324 U.S. 401, 404, 65

S.Ct. 781, 783, 89 L.Ed. 1029, 1032 (1845); Lisenba v. California,

supra, 314 U.S. at 238, 52 S.Ct. at 290, 86 L.Ed. at 181 (although

stating that the appellate Court must make an independent

examination of the record, the Court makes clear that it must

accept factual determinations of the triers of fact regarding

disputed facts unless they are wholly without support in the

record). See also Stanford Note, supra, at 343 (pointing out that in

Ashcraft v. Tennessee, supra, and Chambers v. Florida, supra, the

“independent examination” was limited to the undisputed facts).

Ashcraft is cited by Davis v. North Carolina, supra, for the

proposition that the Court must make an independent review of the

record. 384 U.S. at 742, 86 S.Ct. at 1764, 16 L.Ed.2d at 898. And the

Court in Davis goes on to analyze the record “wholly apart from the

disputed facts.” Jd. 86 S.Ct. at 1765, 16 L.Ed.2nd at 898. Similarly,

Davis is relied on by the majority in Mincey v. Arizona, supra, 437

U.S. at 398, 98 S.Ct. at 2417, 57 L.Ed.2d at 304. There is thus no

reason to believe that in Mincey or in any other case, the Supreme

Court has abolished the rule that the focus is on the undisputed

facts.

“Of course, since the question of whether to apply the clearly

erroneous rule to inferences drawn from transcripts, documents or

undisputed facts was not completely settled by the entire Court

until Nash v. Estelle, supra, see slip opinion p. 8204, p.____ , the

Fifth Circuit cases applying the clearly erroneous rule to

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However, there are differences between the two tests.

Under the clearly erroneous standard, there is adanger

that the appellate Court may give too much deference to

the ultimate conclusions of voluntariness by the Courts

below. The various cases applying the clearly erroneous

rule give the District Court’s conclusion on the ultimate

question of voluntariness a heavy presumption of

correctness. The Supreme Court’s standard cautions

against giving strong weight to the ultimate finding of

voluntariness (as opposed to subsidiary findings) except

in close cases, where it is entirely appropriate to give

deference to the lower Courts even on the ultimate

question of voluntariness.

C.

Because all joining in this opinion believe that Jurek’s

confessions are admissible even under the Supreme

Court’s broader standard of review, we apply that

standard in our analysis below without the necessity of

determining precisely whether “clearly erroneous” or

“independent review” is to be the standard. This case is

complicated somewhat because we are faced with

findings of voluntariness by a jury, a State Trial Court, a

State Court of Appeals, and a Federal District Court.

Where the District Court made historical findings of

fact based on testimony adduced at the habeas hearing,

we are bound to accept these findings unless clearly

erroneous. Where the District Court did not make

subsidiary findings of fact, it is appropriate for us to

look to the state Courts for guidance, and to look

ourselves at the record, to discern the undisputed facts.

And it may also be appropriate in certain cases to give

weight to the inferences drawn by the various state

Courts, the jury, and the District Court even with

respect to the ultimate issue of voluntariness.

voluntariness of confession determinations may have incorrectly

applied the clearly erroneous rule to inferences drawn by the lower

Courts from transcripts, documents, or undisputed facts.

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II. Facts Surrounding The Confessions

The panel opinion [hereafter sometimes referred to as

Panel Op.] and Judge Garza’ opinion [hereafter referred

to as Judge Garza’s Op.]discuss the formulae for

determining whether a confession is voluntary. See

Judge Garza’s Op., slip opinion p. 8178 n.6, p. ____ n.6;

Panel Op., 593 F.2d at 676. In a nutshell:

If an individual’s “will was overborne’” or if his

confession was not “the product of a rational

intellect and a free will,” his confession is

inadmissible because [it is] coerced.

Townsend v. Sain, supra, 372 U.S. at 307, 83 S.Ct. at 754,

9 L.Ed.2d at 782 (quoting authority). As Judge Garza

correctly points out, in a habeas proceeding the burden

of establishing facts which demonstrate voluntarines is

on the petitioner. See, e.g., Lokos v. Capps, 528 F.2d 576,

578 & n.3 (5th Cir. 1976). Cf. LaValle v. Delle Rose, 410

U.S. 690, 695, 93 S.Ct. 1203, 1205, 35 L.Ed.2d 637, 641

(19783).

We believe that both of Jurek’s confessions are

voluntary. However, because the en banc Court holds

that the first is voluntary but the second is not, we

consider each confession separately. Since several

factors were, in the view of the panel, indicative of

involuntariness with respect to both confessions, we

first consider those factors before focusing on the

precise circumstances of each of the two confessions.

Our factual discussion is rather detailed, but since

this case depends so heavily on the precise facts, we

believe that such a detailed discussion is essential.

A. General Considerations: Circumstances

Common To Both Confessions

The panel opinion emphasized two considerations

common to both confessions which suggest

involuntariness: (1) the pre-confession conduct of the

police and prosecuting attorneys, and (2) Jurek’s limited

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mental capacity. We discuss each consideration

separately.

i. Pre-Confession Police/Prosecutor Conduct

The panel opinion suggested that the two written

confessions were suspect because they “were the fruits

of an extra-ordinary series of actions by the police and

prosecutors.” 593 F.2d at 677. Specifically, the panel

pointed out that Jurek was arrested, taken from his

home without shirt or shoes, kept from his family,

was not given an attorney for 42 hours, and “was moved

from Cuero to Austin and then back to Cuero, then to

Victoria and back to Cuero.” Jd. at 678. The panel then

cited a Supreme Court case, Clewis v. Texas, 386 U.S.

707, 87 S.Ct. 1838, 18 L.Ed.2d 423 (1967), for the

proposition that “compelled travel during interrogation

is a factor suggesting involuntariness.” 593 F.2d at 678.

The panel also pointed out that Jurek was arrested

without a warrant. Jd. Earlier in the opinion the panel

had indicated that Jurek was logged into jail at 2:30 a.m.

on August 17 and was questioned “for at least the next ten

hours [although] there were some respites, during

which Jurek apparently as allowed to sleep.” Jd at 674

(emphasis added).

The statements of the panel are in marked contrast to

the findings and inferences by the Courts below. The

Federal District Court explicitly found:

There is no evidence that Jurek’s incarceration

in the Victoria Jail was an effort or resulted

in lack of communication with his family. Nor

is there any evidence that Jurek’s confessions

were a result of or were tained [sic] by a delay in

taking Jurek before a magistrate. The

circumstances of Petitioner’s arrest after

midnight and the fact that he was barefoot until

he got to the jail do not amount to overbearing of

will.

A-74

R. 445-46. Similarly, the Texas Court of Criminal

Appeals stated:

[T]he record reflects that the authorities had

ample evidence to detain, question and arrest

appellant. On the afternoon of the homicide,

witnesses saw appellant, in his patchwork and

haphazardly painted pickup, talking with the

deceased in the Cuero City Park, where she had

gone swimming. Shortly thereafter witnesses

saw her riding in the back of this unusually

colored pickup, screaming for help, as it sped

through town. A relative soon reported her

missing, and the search for her ensued. That

evening, one of the witnesses who had seen this

particular pickup at the park, identified it as

the truck parked at appellant’s residence.

Appellant was therefore a logical person to

question about the missing child’s

whereabouts. . . .There is no showing that the

detention contributed to the making of

appellant’s two confessions. . . .

Appellant was arrested at 1:15 a.m. on

August 17, approximately six hours after the

child’s disappearance. At police headquarters,

the two arresting officers read appellant his

Miranda warnings, and questioned him for

approximately 45 minutes. He denied any

knowledge concerning the child’s whereabouts.

At 2:30 a.m., he was placed in a jail cell, which

contained a bed, and was left alone until the

next morning, when the county attorney, who

also read appellant his Miranda warnings,

questioned him for approximately 15 minutes.

He continued to deny any knowledge about the

child’s whereabouts. Twoor three other officers

spoke with him briefly during the morning.

Later in the day, two officers took appellant

to Austin for a polygraph test. During the

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examination, he admitted murdering the girl.

Her body was later recovered on the basis of

information supplied by appellant at this time.

The officers arrived back at Cuero with

appellant at approximately 9:30 a.m. [should

read p.m.]. He was immediately taken before

Magistrate Albert Ley, who read appellant

his rights from a magistrate’s certificate.

Approximately four hours later, after being

questioned by the district attorney and the

county attorney, appellant gave his first

confession. The confession stated that he killed

the child because she made derogatory

comments about his family. He was taken to the

County Jail at Victoria at about 1:15 a.m. He

was returned to Cuero at 2:00 p.m. and gave his

second confession at 7:30 that evening after

again speaking with the district attorney and

the county attorney and several others. In the

confession he stated that he had not told the

complete truth in his earlier statement and that

he killed the girl because she refused his sexual

advances.

The record reflects that appellant was

repeatedly warned of his constitutional rights

under Miranda. There is no evidence in the

record that appellant was deprived of food or

sleep, or that he was not in complete control of

his faculties when he gave the confessions. He

was left alone in his cells between

interrogations and was offered food and

beverages at various times during this two day

period. There is evidence that he was alert

enough to make minor corrections in the

confessions before signing them.

Jurek v. State, 522 S.W.2d 934, 942-43 (Tex.Cr.App.

1975)(footnote omitted).

A-76

Most of the facts discussed by the Federal District

Court and the Texas Court of Criminal Appeals are

undisputed. Moreover, we agree with the inferences

drawn by these Courts from the undisputed facts with

respect to the ultimate issue of voluntariness. Indeed,

after making our own examination of the record, we are

puzzled because of the large quantity of evidence

contradicting the factual assertions made by the panel

and the lack of any evidence in the record to support

some of the panel’s statements, despite the panel’s claim

to be relying only on undisputed facts. 593 F.2d at 674

n.2.

For example, the panel’s suggestion that Jurek was

questioned throughout the night after his arrest is not .

only unsupported by but is flatly contradicted by the

record. See, e.g., Tr., Vol. I, 111-12; Tr., Vol. VI, 1333

(testimony of County Attorney Post); Tr., Vol. VIII,

1668-69 (testimony of Cuero Police Chief Wright).!?

Jurek’s own attorney conceded in closing argument that

after being put injail, Jurek was left alone the rest of the

night. Tr., Vol. VIII, 1815. And those who saw Jurek the

next day testified that he appeared rested. See, e.g., Tr.,

Vol. VI, 1336 (testimony of County Attorney Post).

It is true that Jurek was taken to Austin for a

polygraph test and was then moved to the Victoria Jail.

However, the panel opinion is grossly misleading

because it fails to consider adequately—if at all—the

undisputed facts surrounding these events. To begin

with, it is undisputed that the polygraph test was given

at Jurek’s own request. Tr., Vol. VI, 1311 (testimony of

County Attorney Post). Jurek has at no time brought

2The trial transcript and pretrial suppression transcript are

referred to throughout this opinion at “Tr.” with the volume

number as well as page number also given. The deposition of

District Attorney Wiley Cheatham, which was taken prior to the

Federal habeas hearing, is referred to as “Cheatham Dep.” The

habeas corpus transcript is referred to as “R.”

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forth any evidence to rebut the undisputed evidence that

he requested the polygraph test. Moreover, it is

undisputed that Jurek was taken before a magistrate as

soon as he returned from Austin (about 9:30 p.m.) Tr.,

Vol. VI, 1315-16 (testimony of County Attorney Post).

And Jurek was offered meals and cigarettes before,

during, and after his trip to Austin. Tr., Vol. VI, 1339-41

(testimony of County Attorney Post).!3 We find it

incredible that Jurek can claim in this Court that the

conduct of the police was coercive when the police were

merely abiding by Jurek’s own wishes.

Regarding Jurek’s transfer to the Victoria Jail, the

undisputed evidence establishes that this move was for

Jurek’s own safety. As the record makes clear, the

victim’s father was a county patrolman in Cuero and

had access to the DeWitt County Jail in Cuero. Allof the

witnesses who testified on the matter agreed that

Jurek’s safety was the sole consideration in the decision

that he stay at the Victoria Jail, not at the county jail in

Cuero. E.g., Tr., Vol. I, 186, 141 (testimony of Sheriff

Dietze); Cheatham Dep., 35-37 (testimony of District

Attorney Cheatham). Indeed, there was evidence that

Jurek himself expressed a desire to stay at the Victoria

Jail. Tr., Volo. VI, 1824 (testimony of County Attorney

Post); Tr., Vol. VI, 1440-41 (testimony of Robert

Pickens). There is no evidence that Jurek suffered from

this good faith transfer. Indeed, Victoria is less than 30

miles from Cuero.

It is also undisputed that on numerous occasions

before the two confessions were given, Jurek was given

his Miranda warnings.“ For example, Judge Albert

'8Nor is there any evidence that the trip to Austin had any adverse

effect on Jurek. Magistrate Ley testified that at the time Jurek

appeared before him, Jurek did not look at all fatigued. Tr., Vol. VI, ~

1385. Moreover, Magistrate Ley testified that Jurek had no

difficulty carrying on a conversation with him. Tr., Vol. I, 86-87.

“The giving of warnings immediately prior to the eliciting of

each of the two confessions is discussed in parts IIB and IIC below.

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Ley, the Magistrate before whom Juerk appeared on the

evening of the 17th, testified at length that he gave

Jurek his warnings.!5

Like the District Court, we conclude that little, if any,

significance can be attached to the fact that Jurek was

not wearing shoes or a shirt at the time of arrest.!* Both

16Judge Ley told Jurek, among other things, reading from his

Magistrate’s Certificate, that:

1. [Jurek] was entitled tothe services of a lawyer of hisown

choice to represent and advise him before making any

statements or answering any questions by any peace officer or

attorney representing the State.

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 acourt 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.

Tr., Vol. I, 84. See also Tr., Vol. VI, 1379, 1389.

‘6]t fact, it is far from clear that Jurek did not have on shirt and

shoes at the time of arrest. While both of Jurek’s parents testified to

this, Tr., Vol. VIII, 1749 (testimony of Mr. Jurek), Officer Boldt,

who brought Jurek to the jail onthe early morning of arrest,

testified:

Q [By the Defense Attorney]

Now, do you remember what clothes Jerry had on when you

picked him up and brought him down to the jail?

A Hehad ona pair of maroonor purplish-looking jeans and a

pair of white shoes, white loafers, and a khaki-colored shirt.

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of Jurek’s parents (who testified that Jurek was arrested

without shirt and shoes) conceded that the police

returned to the Jureks’ residence the next day and

picked up shoes and a shirt. Tr., Vol. VIII, 1734-35

(testimony of Mrs. Jurek); Tr., Vol. VIII, 1752

(testimony of Mr. Jurek). And Deputy Sheriff McMahan

recalls that during the next day, Jurek was wearing

shoes. Tr., Vol. VII, 1641. At most, Jurek went for one

night without shoes and shirt, hardly a basis, either

alone or in conjunction with the other factors, for

declaring his confessions involuntarily.”

The facts discussed above do not in any way suggest an

attempt to “break Jurek down.” Panel Op., 593 F.2d at

678. Nor can we say that “their effect could only have

been to disorient Jurek, to weaken his resistance and

heighten his suggestibility.” Jd. There are present here

Q. Well, now, are you sure about the fact that he had the

shoes and shirt at that particular time?

A As far as I can remember, yes, sir, he did.

Tr., Vol. VIII, 1759. And neither Officer Boldt nor Deputy Sheriff

McMahan had anything to do with or appeared to know about

getting a shirt and shoes for Jurek for his trip to Austin. Tr., Vol.,

VII. 1641 (testimony of Deputy Sheriff McMahan); Tr., Vol. VIII,

1759 (testimony of Officer Boldt). Nor can we locate any testimony

by anyone (other than Mr. and Mrs. Jurek) that someone picked up

shoes and shirt for Jurek later in the day, even though it is

undisputed that Jurek did have shirt and shoes later that day. In

spite of the fact that the evidence is in dispute, however, we give

Jurek the benefit of the doubt and assume for purposes of this

opinion that on the early morning of his arrest Jurek did not have on

shirt and shoes.

"Nor does any significance attach to the fact that Jurek was

arrested without a warrant. As the Texas Court of Criminal

Appeals pointed out, see slip opinion p.8211, p. —_. supra (quoting

Jurek v. State, supra) there was clearly sufficient basis for

arresting Jurek without a warrant. Under such circumstances, we

cannot understand the panel’s apparent assumption that the

presence of a warrant would somehow have made the confessions

less coercive.

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none of the egregious facts upon which Supreme Court

holdings of involuntariness have been based.'* The

interval between arrest and the confessions was devoid

of any coercive or unfair tactics by the police and

prosecution. In the words of the Supreme Court: “No

threats were made, no promises offered, [and] no force

used . ...” Thomas v. Arizona, supra, 356 U.S. at 401, 78

S.Ct. at 891, 2 L.Ed.2d at 871. “(W]e find ample support

in this record for a finding that the officers did not

intend advantage of petitioner and that nothing they did

had the effect of overbearing [petitioner’s] will.”

Ashdown v. Utah, 357 U.S. 426, 431, 78 S.Ct. 1354, 1357,

2 L.Ed.2d 1448, 1447 (1958).

ii. Jurek’s Mental Capacity

The panel opinion, in holding both of Jurek’s written

confessions involuntary, relied heavily on Jurek’s

limited mental capacity. The evidence is undisputed

that Jurek is of somewhat low intelligence. The various

doctors who testified agreed that Jurek’s overall IQ is

about 80. See, e.g., Tr., Vol. VIII, 1709 (testimony of Dr.

Kenneth Owens); R., 82 (testimony of Dr. William

McKiney). However, the effect of Jurek’s ‘dull normal”

intelligence on his ability to give a voluntary confession

is not established by the evidence and clearly the panel’s

statement, “[T]here is a serious danger both that Jurek

did not want to confess and that his susceptibility to the

police officers’ influence made him confess to things he

did not do,” 593 F.2d at 677, is flagrant appellate fact

finding at its worst. The District Court found that the

psychiatric testimony presented to it was “inconclusive”

‘8Without undertaking to summarize here the many Supreme

Court cases involving the voluntariness of confessions, it suffices

that after examining them, we have concluded that the facts in the

Supreme Court cases holding confessions involuntary are

egregious, while the facts here are not egregious in the least. For an

excellent discussion of the Supreme Court cases up to 1966, see

generally Note, Developments in the Law: Confessions, 79

Harv.L.Rev. 938, 954-81 (1966).

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and “not convincing.” R., 434. After hearing the

testimony and reviewing the record, the District Court

concluded: “Considering Jurek’s intelligence, either

alone or in conjunction with the other, factors, does not

indicate an involuntary confession,” R., 445.

There is some support in the record for the panel’s

position, although the evidence is at best inconclusive.

Dr. Lawrence Schoenfeld, a witness at the Federal

habeas hearing, testified that Jurek might be coerced

into confessing to escape from a tension-producing

situation. But Dr. Schoenfeld emphasized that this was

not positively the case. See also Tr., Vol. VIII, 1714

(testimony of Dr. Kenneth Owens). Other medical

experts were even less conclusive. For example, Dr.

William McKinney testified that when he interviewed

Jurek, Jurek did not feel coerced into giving answers he

did not want to give:

.. .I did not feel that -- that, you know that he

was just going -- just answering the questions

just to give me an answer, irregardless. I think

this is what you [Defense Attorney] are

implying, that he would be willing to say

anything to get over the question. I felt that he

was giving me what he -- what he felt, although,

at times, his statements were contradictory.

Tr., Vol. VIII, 1682. Dr. McKinney conceded, however,

that his interviews with Jurek may not have been as

stress-producing as police-house interrogation. Tr., Vol.

VIII, 1684. Dr. McKinney also conceded that it was

“possible” that Jurek could be swayed into signing a

confession against his interests. Tr., Vol. VIII, 1700.

Moreover, although there was evidence that Jurek

was somewhat susceptible to pressure in a stress-

producing environment, the evidence also established

that Jurek was capable of understanding the contents of

the confessions. For example, Dr. Owens testified that if

the two written confessions were read to Jurek he could

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understand them. Tr., Vol. VIII, 1718. Similarly, Dr.

McKinney testified that Jurek could understand the two

confessions:

I believe that he does have adequate intellectual

capacity to read and understand [the

confessions]. . . . There would only be a few

words that I would question whether he would,

perhaps, comprehend the meaning of [them].

Tr., Vol. VIII, 1678.

The panel also stated, based on the psychological

testimony, that Jurek “is less likely to be able to

understand his right to remain silent. He may also be

unable to insist effectively that that right be observed.”

593 F.2d at 677. The evidence is again very inconclusive,

however. While Dr. Schoenfeld testified at the Federal

habeas hearing that Jurek might have difficulty

understanding the Miranda warnings, R., 37, Dr.

Russell Adams disagreed with the tenor of that

testimony:

There is one particular area that I would takea

slightly different view, although I don’t know

that it certainly is a divergent view with Dr.

Schoenfeld’s report, and that has to do with

whether or not Mr. Jurek understood the

Miranda warning. It is my contention that he

probably did understand it if it were

presented—if it were explained to him, I think

he would have ability to understand it.

R., 75. Later Dr.. Adams testified:

I felt the patient was able to understand

information presented him orally in a—no,

wait. I felt that the patient’s ability to

understand information presented him orally

and in writing was poor, but it was generally in

line with his intellectual ability and in my

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opinion he did have the ability to understand in

general terms the Miranda warning.

R., 87. Dr. Adams conceded, however, that the warnings

would have to be clearly explained to Jurek, see R., 76,

and that Jurek’s ability to understand the Miranda

warnings was not as high as that of most other people.

See R., 88-89.

To summarize, while it is undisputed that Jurek’s

intelligence was somewhat below normal, the exact

impact of this on his susceptibility to coercion is far from

undisputed. Moreover, it is anything but clear that

Jurek could not understand the confessions or Miranda

warnings. As stated above, the District Court concluded

that Jurek’s somewhat limited mental capacity did not,

either alone or in conjunction with other factors, render

his confessions involuntary. And we must remember

that the District Court, having heard testimony by three

medical experts, found that testimony unpersuasive and

did not find anything persuasive in the record, either.

Unlike this Court, the District Court had the

opportunity to judge the credibility of these medical

witnesses. In our view, because the impact of Jurek’s

limited mental capacity is so unclear, we think this is

one of those occasions when the inferences drawn by the

District Court are entitled to significant weight even

with respect to the ultimate determination of

voluntariness. See Culombe v. Connecticut, supra, 367

U.S. at 605, 81 S.Ct. at 1880, 6 L.Ed.2d at 1059; Haynes

v. Washington, supra, 373 U.S. at 515, 83 S.Ct. at 1344,

10 L.Ed.2d at 522. The District Court’s conclusion is

buttressed by the conclusions of the State Trial Court,

jur, and Appellate Court, all of which found, after

considering the testimony presented at trial regarding

Jurek’s limited mentality, that Jurek’s confessions were

voluntary. Thus, after giving appropriate weight to the

inferences drawn below, and after carefully reviewing

the record, we conclude that Jurek’s limited mental

capacity, considered alone, or in conjunction with the

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other factors discussed in this opinion, did not make

Jurek’s written confessions involuntary.!®

B. The First Confession

We concur with Judge Garza’s analysis and

confession. However, we think it useful to emphasize

some additional evidence supporting the conclusion that

the first confession was voluntary.

At the outset, it is important to emphasize that the

undisputed evidence reveals that Jurek was given

Miranda warnings immediately prior to making the

first written confession and indicated at that time that

he did not want an attorney:

Q [By the District Attorney]. .

And I will ask you whether or not you gave

the defendant his warnings?

A [County Attorney Post] Yes, I did. And, in fact,

I customarily read and, in this instance, I did,

also. I read directly from the statement form

itself.

19The panel cited three Supreme Court cases for the proposition

that “a confession made by [a person with limited intelligence] is

more likely to be involuntary.” In each of these cases, Sims v.

Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Culombe

v. Connecticut, supra; Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281,

1 L.Ed.2d 246 (1957), the defendant was in worse mental condition

than Jurek, and the other surrounding circumstances were

egregious,unlike those involved in this case. In Sims, the defendant

was illiterate and had only a third grade education. Moreover, there

was evidence that he was subjected to physical violence. In

Culombe, the defendant was a moron who had previously been in

mental institutions and was wholly illiterate. In Fikes, the

defendant was a schizophrenic and was highly suggestible and left

school in the third grade at the age of 16. Moreover, he was

interrogated frequently for five days before giving the first

confession and was interrogated at length after that before givinga

written confession.

A-85

Q The statement, itself. All right. Did you read

the complete printed warning that appears on

r State’s Exhibit No. 2—

A Yes, sir.

Q —to this defendant, prior to his making any

statement?

A Yes, sir, I did.

Q All right, sir. And, in other words, did you in-

form him that he was facing a murder charge of

little Wendy Adams?

A Yes, sir, I did.

Q Did he make any requests for counsel there at

that time?

A No, sir. In fact, he stated that he did not want

an attorney at that time.

Tr., Vol. I, 103-04 (testimony of County Attorney

Post).

In addition, we agree with the District Court that

Jurek made no clear request for an attorney earlier—

when he was given Miranda warnings by Judge Ley.”

*Admittedly, Judge Ley’s testimony is somewhat ambiguous,

but we believe that, read inits entirety, the testimony reveals that

no clear request for counsel was made. While this Court does not

consider whether Jurek’s Miranda rights were violated, we agree

with Judge Garza, Garza Op., slip opinion p. 8181, p.____, and the

panel, 593 F.2d qt 679, that a possible violation of Miranda would

be a factor suggesting that both confessions may be involuntary.

Here, however, even assuming that Jurek’s comments to J udge Ley

could somehow be interpreted as a request for counsel, no Miranda

violation occurred. In Blasingame v. Estelle, 604 F.2d 893 (5th Cir.

1979), this Court considered whether a clear request for counsel toa

magistrate at arraignment prevented subsequent station-house

interrogation. As is the case here, the defendant in Blasingame was

again informed of his rights prior to interrogation and indicated

that he did not want an attorney. The Court held that there was no

Miranda violation, reasoning:

A-86

And we fully agree with Judge Garza’s analysis of the

waiver question and the applicability of Nash v. Estelle,

supra.

. . » [Whe hold that the request for an attorney at

arraignment does not prevent subsequent station-house

interrogation where the request at arraignment is not

made in such a way as to effectively exercise the right to

preclude any subsequent interrogation.

In this case the circumstances surrounding Blasingame’s counsel

request show it to have been unrelated to the Fifth Amendment-

based right to confer with or have counsel present before answering

any questions. There is no indication that Blasingame intended to

convey the idea that he would not discuss the crime until counsel

was appointed and present. At arraignment before the magistrate

he was not subjected to any questioning beyond the offer of an

opportunity to make a statement if he so desired. The police

detective who took Blasingame to be arraigned testified at trial that

after the magistrate informed Blasingame of his right to

appointment of a lawyer if he could not afford one, Blasingame said,

“Yes, I would like an attorney. I can’t afford one.” The magistrate

then went on and read the other four rights listed in the warning.

The police detective testified, “When he was given this information.

. £he didn’t say, ‘I don’t want to talk to anybody. I want my attorney

right now present,’ or anything like that.”

Blasingame’s case is thus markedly different from [United States

v. Priest, 409 F.2d 491 (5th Cir. 1969)], and its progeny in which

requests for counsel were made at the time of custodial interrogation

and in obvious connection with a desire to consult an attorney before

answering questions. See United States v. Massey, 550 F.2d 300 (5th

Cir. 1977).

604 F.2d at 896 (emphasis added). We think that Blasingame

completely undercuts a major assumption of the panel opinion’s

analysis of the voluntariness issue, namely, that “if Jurek’s remarks

to the Magistrate constituted a request for counsel, both of Jurek’s

confessions were automatically inadmissible under Miranda,

irrespective of the other circumstances.” 593 F.2d at 679. We think

Blasingame also applies by analogy to demonstrate that the

Magistrate’s failure to appoint counsel and the subsequent

interrogation did not, alone or in conjunction with the other factors,

render Jurek’s confessions involuntary.

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As Judge Garza points out, Garza Op., slip opinion p.

8174, p. ___, the first confession was given with both

County Attorney Post and District Attorney Cheatham

present. It is undisputed that Cheatham attempted to

take down the confession in Jurek’s own words. See

Cheatham Dep., 61, quoted in Garza Op., slip opinion p.

8175, n. 4, p. ____n.._ 4.

After the confession was typed, the State took

enormous care to ensure that Jurek fully understood

exactly what he was signing. The statement was read by

and to Jurek in the presence of two witnesses selected

from the community. As County Attorney Post testified:

Q [By the District Attorney]. .

And let me ask you this: Was he given an

opportunity to read it or have it read to him?

A. Yes, sir. He was given both opportunities.

And, in fact, he declined, I believe—well, in

this instance, I believe he actually read the

statement, himself, and then it was read.

Out loud?

It was read out loud by him?

In the present of the witnesses.

Right.

Tr., Vol. I, 106. And according to Post, Jurek made

corrections and initialed changes while reading

through the confession:

> © PP ©

Q [By the District Attorney]. .

And was he asked as he went along—in other

words, was it checked every sentence or so to

see if this was correct?

A Yes, sir.

Q I believe there is one correction of the name

there at the top, is this correct or not, sir?

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A Yes, it is.

Q And who made that? Who requested that

correction to be made, if you recall?

A The defendant, himself, did.

Tr., Vol. I, 106-07 (testimony of County Attorney Post).

One of the witnesses to the signing of the first

confession was Robert Hesse, a probation office>. As his

testimony reveals, Hesse was very careful to make sure

that Jurek’s confessions was voluntary:

Q [By the District Attorney] Was he asked there

if he freely and voluntarily made that state-

ment?

A Yes, he did. And I was very cautious before

I signed it, to make sure. And I asked Jerry,

myself, in my own words, “Are you sure this is

what you want to sign, and this is your state-

ment, as you want it?”

Q Uh-huh.

A “And are you telling me that all the things you

read up here are true, and you have not been

forced; you are doing this of your own free will

and accord?”

And he assured me that he was, before I signed

that.

Q In other words, you did that in addition to what

Mr. Post—

A Yes, sir.

Q —and I had already done, each one of us, is

that correct, sir?

A Yes, sir. Because I was pretty sure it would

A-89

come to this point right here, and I wanted to

make sure before I signed it.

In other words, if I understand correctly, in

addition to all the warnings and explanations

that Mr. Post and I made in your presence, you,

yourself—

That’s correct.

—did this with the defendant, and assured

yourself that he was signing of his own accord,

is that correct?

Yes, sir.

[Hessee testimony continued]. .

After it was over with, I made sure this was

his statement and this is the way he wanted it.

And I told him, “You know you do not have to

sign this, but this is what you freely want to

do?”

Again, I made the point of making sure. “You

are not coerced or nothing’s happened, no

threats have been made; this is your statement?

And I felt sure the time that I signed it that

that was his statement.

Tr., Vol. VI, 1402-03, 1405. In addition, Hesse confirmed

that Jurek initialed typographical errors in the

confession:

Q [By the District Attorney]. .

[D]id you see the defendant place his initials on

the—

A Yes, sir.

Q —typographical errors?

A-90

A Yes, sir.

All right, sir.

©

A The errors had not been corrected when I was

there, the errors were corrected and with

Jerry's permission, he initialed each—each

correction in the statement.

Tr., Vol. VI, 1401.

For the reasons stated in Judge Garza’s opinion,

supplemented by the reasons and facts stated by us, we

conclude, after carefully examining the record, that

Jurek’s first confession was voluntary and hence, was

properly admitted into evidence.

C. The Second Confession

Judge Garza’s opinion, after holding that the first

confession was properly admitted into evidence,

declared that “(t]he circumstances are vastly different

with regard to the second confession.” Garza Op., slip

opinion p. 8176, p. ___ (er” »hasis added). We strongly

disagree with Judge Garza’s conclusion that the second

confession was involuntary.

We first examine the factor relied upon by Judge

Garza in distinguishing between the two confessions,

concluding that most of them are not supported by the

record. We then discuss other factors not alluded to by

Judge Garza or the panel which reinforce the findings

below that the second confession was voluntary.

i. Distinctions Between the Confessions

Emphasized by Judge Garza

a. Language and Grammatical Differences Between

The Two Confessions

A distinction between the two confessions strongly

emphasized by Judge Garza is based on the wording of

the confessions themselves. As the opinion states:

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The correct grammar and composition of [the

second confessionJis] ... vastly different from

that of the first. It would be impossible to

conclude that the same person gave each

confession verbatim.

Garza Op., slip opinion p. 8177, p. ___ (emphasis

added). For convenience, we reproduce both the first?!

*1The first confession reads in its entirety:

I had known Wendy Adams about a month and a half, and I think

that she is 10 years old. During the afternoon of August 16, 1973 I

picked up Richard Broz and Ricky Phillips and we rode around and

drank a carton of beer; we drove through the park and was going to

pick up Shirley Kay Range, but I didn’t see her; then I dropped

Richard and Ricky off at Laake’s pool hall and drove back up to the

park. I seen Wendy Adams at the swimming pool and asked her if

she wanted to go riding around and she said “Yea”: she crawled in

the back of the pick up truck and I drove out to Hell’s Gate Bridge.

From the park I drove past the skating rink, turned right at the

high school and came down the hill by the cemetary and went to the

Yoakum Highway on what I think was Reuss Blvd. AsI cameon the

Yoakum Highway, a big truck almost hit me; from there I drove out

past where the old drive-in picture show used to be and turned off on

a small road to the left and from there on out to Hell’s Gate Bridge; I

turned off the pavement to the right and drove down close to the

river. We sat on the side of the truck and talked. Wendy was still

dressed in her bathing suit that she’d had on when we left the park.

Wendy told me that I shouldn’t be drinking, and that I was just like

my brother who drinks a lot; and she also told me that my nieces

didn’t have a good father because he didn’t come home to see them

much. I got mad at her and jerked her off the truck and grabbed

Wendy around her throat and choked her to death; she tried to talk

to me to get me to stop but I wouldn't listen; she was crying when I

was choking her; several times while I was choking her she tried to

tell me to stop but I was mad and just wouldn’t listen to her. Finally

she collapsed and fell to the ground as I’d been choking while we

had both been standing. After she fell to the ground, I then picked

her up and throwed her into the river. After I throwed Wendy inthe

river, she went down and then I saw her come back up for amoment

and then she went back down under the water and I didn’t see her

come up again. The place where I threw Wendy into the river was

up-river from the bridge and about as far up-river from the bridge

as it is from the Court House to the jail house, also I remember that

A-92

and second confessions in their entirety.

there was a fence fairly close to where I threw her in the river.

When I started to choke her, she kicked at me to try to stop me and

she kept holloring at me to please stop, but I just kept on choking her

till she couldn’t fight back and then collapsed and fell to the ground.

Itwas kinda hard to keep on choking her when she pleaded with me

to stop, but I just kept on choking her till she fell to the ground; and

her face had turned dark blue from my choking her. After I

throwed Wendy Adams in the river I went and got in my truck and

left and come back into town and went to Laake’s and picked up

Ricky Phillips; Richard Broz had gone home, so I went by Richard’s

home with Rikky to pick up Richard; then we three rode around till

about 9:15 p.m. While I had drank several beers during the

afternoon, I was not drunk and I clearly remember what happened.

In the first part of this statement I called Richard Broz by his

wrong first name and called him Mike; but his name was Richard. I

have made this statement freely and voluntarily and nobody has

forced me, threatened me or done anything to make me give this

statement against my will.

2The second confession reads in its entirety:

On August 18, 1973, I gave Robert Post a statement concerning

the death of Wendy Adams who I choked and threw into the river.

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

conversation I had with Wendy at the river and about the prior

discussion about trying to find some girls to pick up and now I

herein wish to correct that statement.

Earlier on Thursday, August 16, 1973, when Richard and Ricky

and myself were riding around drinking beer we talked about

getting some pussy. I talked about Shirley Kay Range and how I

wanted to get with her and get some pussy. Ricky mentioned Kathy

Paruse, who is a lifeguard, and said he wanted to get with her.

When I am with the guys I talk beer and pussy.

When I took Wendy down to the river we were standing beside the

truck outside on the driver’s side. I asked her if she had ever had sex

before and she said yes. I asked her if she wanted to have sex with

me but she said no and started screaming and yelled “help” and

“please don’t kill me.” So I started choking her. I put both hands on

her throat and choked her. I reached forward and dug my thumbs

into her throat beside her adams apple. I was picking up on her and

she was kicking and scratching and trying to holler. My thumbs got

tired and I had to move them at times. I had her against the truck

holding her up. I choked her quite awhile and she fell to the ground

and I let go.

A-93

For a number of reasons, we disagree with Judge

Garza’s statement. To begin with, there is nosuggestion

by any witness or any Court below that the two

confessions may differ with respect to the amount of

input by Jurek. Every witness who discussed the

language of the confessions discussed both confessions

together.“ In addition, the panel opinion, although

I let her lay on the ground a short time and then picked her up and

carried her toward the river. I layed her on the log and crawled

under the log and then picked her up and thre her in the river.

There were two little pipes sticking out of the water when I threw

her in. She went down and then came up once a long ways down the

river and then went down again. She came up a second time ashort

ways later and was floating face up.

When I told Mr. Post in my earlier statement that Wendy and I

talked about my relatives at the river I was not telling the truth and

I want to clear this up. After I threw her in the river I drove into

town and got another six pack at Miss Kitty’s, then picked up Rikky

at Laake’s pool hall, he was standing in front. I told him all I done

was to get some beer and then we picked up Richard.

Everything else I have told Mr. Post in my prior statement is true

and correct and I do not wish to change it.

*For example, Dr. William McKinney, after carefully reading

both confessions, testified that Jurek could understand the

language in both and made no observation even remotely

suggesting any possible language differences between the two.

Q [By the District Attorney] Now, let’s get down into the—I want

to refer to those, Doctor, down into the typed portion. I hate to take

the time, but would you, in other words, quickly, but by the same

token, not so quickly that you can’t comprehend the contents, typed

contents of both of those statements, would you scan them, look at

them fairly and carefully, and then let me ask you some questions

after you have finished that, please, sir?

Just let me know when you are ready. For the record, I am showing

you [the first and second ccnfessions].

A Now, do you want me to read this statement, also?

Q Yes, sir. If you would, please, sir.

A-94

quoting language from the second confession, did not

distinguish between the two confessions. See 593 F.2d at

A All right.

Q First, referring to the top sheet, which I believe is marked in

green ink State’s Exhibit No. 1, now that you have had a chance to

read the language that that statement is couched in, what is your

idea of whether or not this is in language that would be understood

and used by this defendant, or not, sir?

A Yes. I feel that this language would be understood by him.

Q The story that—as it’s set out, as to what allegedly happened

there, is there anything in that that you would question abcut this

defendant’s ability to understand and comprehend?

A There was one, one word that, you know, I questioned whether

he had selected the word. But, otherwise, in general—

Q All right. Which would that be, if you recall?

Let me—

Was that in the other?

> O PY

It may be in the other one.

Q Let’s first talk about State’s Exhibit No. 1, and then I will get to

State’s Exhibit No. 2.

A All right.

Q Or, if you recall what the word is—

A No. I—I—I don’t. I just noticed it as I glanced through it. And I

don’t find the word specifically right here.

Q Allright. Now, let me refer to State’s Exhibit No. 2: Did you—

can you tell this jury whether or not, in your opinion, from the

examination that you made of this defendant, whether or not he

could understand and comprehend the story that’s told in that

statement?

A_ Yes. I believe that he could.

Tr., Vol. VIII, 1694-96. If the ianguage differences were as glaring

as Judge Garza suggests, why did not Dr. McKinney (or some other

witness) bring this fact out?

A-95

677 & n.5. Likewise, Jurek’s own brief to the en banc

Court did not attempt to separate the two confessions for

purposes of analyzing their language. See Jurek’s En

Banc Brief, at 33. Judge Garza’s argument concerning

language and grammar distinctions between the two

confessions comes not from any of the Courts or

witnesses below, but from his own de novo language and

composition analysis. Appellant Judges should not be in

the business of independently analyzing the grammar

and sentence structure of confessions, just as they should

not and do not make de novo analyses of fingerprints,

blood samples, voice recordings or other real evidence.

In any event, the testimony adduced at trial and the

confessions themselves simply do not support Judge

Garza’s conclusion. To begin with, we have County

Attorney Post’s undisputed evidence that he took down

the second confession as best he could from Jurek’s own

words:

Q [By the Defense Attorney] Now, Mr. Post, just

prior to the recess, I asked you if you would

deliver to me the notes which you made, which

you used to produce the statement which is

marked for identification purposes as Exhibit

No. 2....Mr. Post, in examining this, I find that

it’s, with very few exceptions, word for word

like the statement. Now, my question originally

was:

Do you have any working notes, any just

notations which you used and made at the time

you were interrogating Jerry Jurek, which you

used to compose this statement that was

signed? Now, this is a rough draft of the state-

ment.

A This is exactly what he gave me. I took it down.

I have nothing else.

Q And you will tell this Court and this jury, and

me, that this boy, sitting vight here, just

A-96

without any prompting from you, particularly,

and in this chronological order, without any

breaks, gave you this statement?

A In effect, yes. I asked him—we had—I had

asked him, as I said, Mr. Nelson [a Texas

ranger]. He then said he did no longer wish to

stand on his first statement; he wished to

it.

I said, “Jerry, tell me about it.”

And he did. And if he would pause, I presume

I’d say, “What happened then?” Or, “Next?”

“Keep going.”

Other than that, it’s exactly as what is there.

Q And you are not—are you telling the Court that

this is the language that this boy used when he

talked to you, or is this your way of putting

down your interpretation of what he said?

A As best I could, I put down exactly what he

told me.

Q In the words that he used?

A As near as possible as I could, yes, sir.

Tr., Vol. VI, 1853-54. Since Jurek was required to come

forth in the Federal habeas proceeding with facts to

rebut this undisputed testimony, and since Jurek did not

do so, this testimony by Post remains undisputed.

More importantly, a reading of the two confessions

demonstrates that Judge Garza has_ grossly

exaggerated language differences between the two

confessions. Reasonably sophisticated sentences can be

found in the first confession. E.g.,

In the first part of this statement I called

Richard Broz by his wrong first name and

A-97

called him Mike; but his name was Richard. I

have made this statement freely and

voluntarily and nobody has forced me,

threatened me or done anything to make me

give this statement against my will.

On the other hand, the second confession hardly bears

the stamp of a college English professor. E.g.,

[WJhen Richard and Rickey and myself were

riding around drinking beer we talked about

getting some pussy. I talked about Shirley Kay

Range and how I wanted to get with her and get

some pussy. ... When I am with the guys I talk

about beer and pussy.”4

In addition, a reading of the second

confession demonstrates as a matter of common

In addition, a reading of the second confession

demonstrates as a matter of common sense that the

prosecutors did not put words into Jurek’s mouth. Atone

point the second confession states: “I asked [Wendy] if

she had ever had sex before and she said yes.” Wendy’s

body was discovered on the morning of August 18, Tr.,

Vol. VII, 1648 (testimony of Raymond Tate), and an

autopsy was thereafter performed that same day. The

autopsy made clear that Wendy had never had sexual

intercourse with anyone. Tr., Vol. VIII, 1536-37

(testimony of Dr. Paul Obert). At about 7:30 p.m. on the

evening of August 18, Jurek made the second confession.

The record is unclear as to whether the results of the

autopsy were at that time available to Post. If they were,

then Post would of course have known that Wendy had

never had sexual intercourse. But even if the autopsy

was not in Post’s hands, common sense would have

**We sympathize with Judge Garza’s decision not to quote the

obscene language contained in the confessions. yet, since a major

argument in his opinion invoives language differences between the

two confessions, both confessions must be analyzed in their raw

entirety.

A-98

suggested to him that it would be extremely unlikely

that ten year old Wendy Adams would have told Jurek

that she had had sex before. In our view, the insertion of

the above-quoted statement justifies the implied

conclusion of all the Courts below, State and Federal,

that the State was putting into the second confession

whatever Jurek said regardless of its plausibility or lack

thereof and was not drafting the confession for Jurek.

Considering the testimony of Post, along with the

language of the confessions, their substance, and the

fact that not a single witness or Court below—on trial or

habeas—had ever suggested a distinction between the

two based on composition and grammar, we believe that

Judge Garza was unwarranted in making his own

independent comparative analysis of the two

confessions.

b. Purposefulness Of The Conduct Of The State

In Obtaining The Second Confession

In distinguishing between the two confessions, Judge

Garza also emphasized that while the circumstances

surrounding the first confession gave “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,” Garza Op. at slip opinion p. 8183, p.

_____ , the second confession was undertaken with “the

purpose of amending [the first] confession to secure the

death penalty.” Jd. at slip opinion p. 8184, p. __.

In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3

L.Ed.2d 1265 (1959), the Supreme Court stated:

The police were not... merely trying to solve a

crime, or even to absolve a suspect. .. . They

were rather concerned primarily with securing

a statement from the defendant on which they

could convict him. The undeviating intent of

the officers to extract a confession from

petitioner is therefore patent. When such an

intent is shown, this Court has held that the

A-99

confession must be examined with the most

careful scrutiny. ..

Id. at 324, 79 S.Ct. at 1207, 3 L.Ed.2d at 1272. Relying on

Spano, see Garza Op., slip opinion p. 8181, p. —_ ,

Judge Garza apparently reasons that the second

confession is particularly suspect because the

prosecuting attorneys were motivated solely to get the

death penalty while, when eliciting the first confession

from Jurek, they were carrying out legitimate law

enforcement aims.

While the considerations expressed in Spano may in

some circumstances be decisive,”> we believe that Judge

Garza has misapplied the reasoning of that case. To

begin with, Judge Garza’s extremely liberal

interpretation of Spano, even if we were to accept it—

which we decline to do—would seem to apply equally to

the first written confession as well as to the second. In

Austin, Jurek make an oral confession” that led to the

firding of Wendy’s body.?? Thus, Judge Garza was

*6But see Note, Developments in the Law, supra note 18, at 973:

The Court’s willingness to tolerate pressure only when it

is investigatory, not when it is a search for evidence,

overlooks the fact that the function of the police is to help

obtain convictions, not merely to secure enough evidence

to justify charging a suspect. In any event, this factor

never seems to have been controlling in any of the Court’s

decisions, but rather seems, like references to “illegal”

conduct, to shore up judgments arrived at by another

route. (Citations omitted.)

**Actually, Jurek gave a number of slightly different account of

the crime, the precise details of which are not in the record.

*““As Disurict Attorney Cheatham stated at his deposition:

Q [By the Defense Attorney] All right, with regard to

the statement which was given by Jurek in Austin after

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incorrect in stating that the first written confession was

essential for “the solution of the crime and the recovery

of Wendy Adams’ remains.” Garza Op., slip opinion p.

8183, p. ___. Moreover, District Attorney Cheatham,

who prosecuted the case, believed that the oral

confession was admissible.28 Thus, before obtaining the

the polygraph, did that lead to the—in your opinion to the

plot of the crime?

A. Well, I don’t know whether you can say that or not, it

led to finding of the little girl’s body the next day.

Cheatham Dep., 38.

28As Cheatham stated at his deposition:

Q [By the Defense Attorney] Had you not been able to

get a confession in writing? Which you were able to do?

Would it have been your position do you feel that the

statements given to the officers in Austin would be

admissible under this oral confession rule we had?

A Of course, that was always a question in my mind. I

felt that it would have been.

Q Might have been admissible even though he

subsequently got a couple of written confessions from

him?

A Well, I took that position, but I didn’t—I didn’t press

it because it didn’t become necessary, but I felt about it

this way, if he had not given written statements, I

certainlhave done everything that I could have done ina

legal manner to have that proposition of law where they

disclose the location of the truth of the crime or the

murder weapon or whatever, that that would make that

oral statement admissible.

Q So what you really—

A But it didn’t become necessary.

Q You didn’t feel like you needed to get a conviction?

A I think I could still convict a man if—I may be wrong,

but I’m not no brag, just fact, I believe I could still put it

on him if I didn’t have a statement. It may not be as clear

cut and strong.

Q But actually, what you had in your opinion as a

prosecutor, you had three statements, you had two—

A Right.

=

A-101

first confession, the prosecuting attorneys had what

they thought they needed, not only to locate the victim

but to help convict Jurek. Sure, a written confession

would be less risky from the standpoint of admissibility

and would also be more persuasive to the jury, but these

are precisely the considserations which the Court in

Spano arguably had in mind when writing the above-

quoted language.”9

We emphasize that we are not trying to argue that the

first confession was coercive under Spano, but simply

that the circumstances surrounding the two confessions

were not that different. Indeed, as we indicate below, we

believe that Judge Garza’s reading of Spano (which we

are merely applying to the first confession as well as the

second) is incorrect and is, as a practical matter,

unworkable.

Perhaps Judge Garza intends to argue that while

Spano considerations apply even with respect to the

first confession, they apply more heavily with respect to

Q —written statements and you had one which was

oral, which you also thought was admissible?

A It would have been, I’m sure, it would have been

attacked as to whether or not it would have stood up.

Well, they know, because it didn’t come up.

Q I understand, but it’s your opinion as a prosecutor

that was admissible?

A I think it probably would have been.

Cheatham Dep., 38-40. Thus, at least in the mind of the prosecutor,

“a valid confession solving the crime had been obtained,” Garza

Op., slip opinion p. 8184, p.___, before the first written confession.

**Nor could Judge Garza be reasonably arguing that the State

should at least be entitled to a written confession before Spano

considerations come into play. In Haynes v. Washington, supra, the

suspect made two oral confessions before police obtained a written

one on which the case turned. The Court observed that “the pro-

cedures [were] perhaps more unwarranted because so un-

necessary.” 373 U.S. at 519, 83 S.Ct. at 1346, 10 L.Ed.2d at 524.

s

A-102

the second, because the prosecutors were driven in

obtaining the second confession by a desire to secure the

death penalty, not merely to convict Jurek. Yet, in our

view, Judge Garza’s (and the panel’s) suspicion that the

prosecutors were motivated by death penalty

considerations at the time of the second confession is

based not on evidence in the record but on the surmise of

these Judges. Indeed, the evidence rebuts a drive on the

part of the State to ensure that the death penalty was

obtained. Nowhere does any witness testify that Jurek’s

second statement was essential to get the death penalty.

On the contrary, District Attorney Cheatham testified

that, in his view, there was clearly enough evidence for

the death penalty without the second confession because

kdinapping, like rape, is an aggravating factor under

Texas law:%

To me there was, from my view, from a legal

standpoint, and I might be wrong, but from my

view there wasn’t any question of whether he

had admitted a capital case. You had

kidnapping and you had murder and if there is

one of those elements, if they have its murder

committed in the course of either attempting or

kidnapping so under the second statement I

think you had another aspect of it but in my

opinion this was it, this was capital murder in

the first statement. In fact, it was capital

murder before I ever took it from what he told

them up in Austin.

Cheatham Dep., 65.*!

30See

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