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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 1014

## Text

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.

A-29

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.

—_

A-30

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

A-31

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.,

A-32

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.”

A-34

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.

A-35

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

A-36

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.

A-37

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

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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

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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

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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.

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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.

A-67

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

A-68

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

A-71

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.

A-72
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.

A-80

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).

A-81

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 writte

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0769%3A2. Public record. Not legal advice.