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

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[Supreme Cos

FILED

JAN 8 196)

NO. 80-763

MICHAEL RODAK, JR., CLERK

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

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITIONER'S REPLY TO BRIEF

IN OPPOSITION

MARK WHITE W. BARTON BOLING

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant ANITA ASHTON

Assistant Attorney General

_ RICHARD E. GRAY, III :

Executive Assistant P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Respondent

TABLE OF CONTENTS

Page

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ARGUMENT IN FURTHER SUPPORT OF

SREMRIIE TTI TREES WHTIEIE EL ccacecucccccncceseucscnececsoccennescosce l

SE ETITEIT - Secihissveniicnsistsiiitnnsinninsinipensichiingnionnmastsnncnenanannnts 6

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TABLE OF AUTHORITIES

Cases Page

Louis v. Blackburn, 530 F.2d 1105 (5th Cir. 1980) ........sseeeseeees 3

Milton v. Wainwright, 407 U.S. 371 (1972) ......:cscseeereereeererens 6

Miranda Vv. Arizona, 384 U.S. 436 (1965) .......cccceseesereeeeesereees 4

Procunier v. Atchley, 400 U.S. 423 (1971) ........csccssesereesereeeeees 1,2

Constitutions, Statutes, and Rules

U.S. Const. amend. V. .........cssssssssssssscssscssseescseeseessssssssessesoscoessensens 4

U.S. Const. amend. VI ........cscssscsssscsssvsssserssesssesesenssssssessssesersenseenss 4

U.S. Const. amend. XIV .........scssccssssesscereeereesrsesssssseesssesseasseesenees 4

QB U.S.C. §2254(d) ......scscssorssssssssvsseceresrensssssssessessesessrsessneenseees 1,2,3

17.1(a), Rules of the Supreme Court .........ccsssseserserseeeeeeeeeesennees 5

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

NOW COMES W. J. Estelle, Jr., Director, Texas

Department of Corrections, by and through his attorney

of record, the Attorney General of Texas, and files this

Reply to Respondent’s Brief in Opposition.

ARGUMENT IN FURTHER SUPPORT

OF GRANTING THE WRIT

I.

The first question presented in the petition for

certiorari is “whether the threshold requirements of 28

U.S.C. §2254(d) must be met before voluntariness of

confessions may be considered.” Respondent asserts in

the brief in opposition that Petitioner has never before

raised this argument. In Respondent-Appellee’s

Suggestion For Rehearing En Banc at 15-16, filed in the

Court below, this argument was raised by Petitioner

Estelle. In part, that argument said

Petitioner [Jurek] presented no new evidence

that was not presented to the state courts. There

is no reason to infer that the state courts did not

apply the correct criteria in finding Jurek’s

confession voluntary on the facts in evidence.

Procunier v. Atchley, 400 U.S. 423 (1971).

That brief went on to quote from Procunier v. Atchley,

400 U.S. at 452, that “unless the result of the habeas

corpus proceeding turns on disputed issues of historical

fact, a rehearing on the issues of involuntariness of a

defendant’s incriminating statement would be an

exercise in futility. . .”

This argument was presented in greater detail in the

Supplemental Brief for Respondent-Appellee

Rehearing En Banc at 16-19, which stated in part:

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Respondent does contend, however, that the

fact findings of the state court and the federal

district court are correct and are supported by

the record and that the proper constitutional

standard was applied to these fact findings.

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

Petitioner would have this Court overturn valid

fact findings on the basis of inuendo and

eloquent argument rather than on evidence.

The burden of proof does not shift to the

Respondent to prove the ccnfession voluntary

absent prima facie proof of involuntariness. 28

U.S.C. §2254(d).

These issues were raised in the court below. As

pointed out in the brief in that court, Jurek’s application

for writ of habeas corpus did not plead any facts

previously undeveloped in the state courts which would

entitle him to relief. The evidence presented at the

evidentiary hearing by Jurek’s attorneys was merely

cumulative of the evidence produced at state hearings.

Nothing was presented to refute the fact findings of the

state courts. The only evidence presented by Jurek at the

federal evidentiary hearing was further testimony of

psychological testing. The results of those tests were

virtually identical to the results of the psychological

testing presented at Jurek’s state trial. Jurek did not

take the stand, nor has he ever taken the stand, to testify

that his confessions were in any way involuntary. No

new evidence showing coercion was_ presented.

Although the court below gave emphasis to the fact that

Jurek’s family never visited him, not one member of

Jurek’s family has ever testified that they wanted to

visit Jurek or that they were kept from visiting Jurek by

law enforcement officials.

Jurek did not establish the existence of any of the cir-

cumstances set forth in 28 U.S.C. §2254(d\(1-8). Fur-

ther, Jurek did not meet the burden upon him to estab-

lish by convincing evidence that the factual deter-

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mination by the state court was erroneous. Therefore,

certiorari should be granted to consider the applicabil-

ity of 28 U.S.C. §2254(d) in the context of this case.

IT.

The second question presented for review in the

petition for writ of certiorari is, “What is the proper

standard for review on habeas corpus of voluntariness of

confession? Should the ‘independent review’ or the

‘clearly erroneous’ standard be applied to the findings of

the state courts and federal courts?” As is reflected by

the five opinions written by the en banc court, the judges

themselves were unable to agree on the proper standard

for review. Admittedly, the eleven judges who found

both confessions to be voluntary and admissible

ultimately applied the independent review doctrine in

that they found the confessions voluntary even when the

broader standard was applied. 623 F.2d at 962.

However, the fact of disagreement as to the standard

ameng the twenty-four judges of the Court of Appeals

points dramatically to the need for this Court to grant

certiorari and clearly set forth the standard to be

applied by the lower federal courts in the context of a

habeas corpus case attacking the validity of a state

conviction. Contrary to the allegations in the brief in

opposition, a real disagreement does exist as to the

proper standard of review. As recently as November 19,

1980, a panel of the Court of Appeals for the Fifth

Circuit held that the clearly erroneous standard was the

proper standard for review in a habeas corpus action.

Louis v. Blackburn, 5380 F.2d 1105 (5th Cir. 1980).

Therefore, certiorari is proper as to the second question

presented.

ITI.

The third question presented is as follows: “Does the

Sixth Amendment require appointment of counsel

during interrogation when the defendant repeatedly

disavows a desire for counsel?” The opinion of Judge

Sil

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Garza, which served as the majority opinion (although

joined only by three other judges), found that “the

authorities should have ignored the waiver of

immediate assistance and acted on Jurek’s latent

expression of ‘need’ for counsel. . .” (623 F.2d 929, 941; A-

24emphasis added). That opinion further stated:

When Jurek’s limited intelligence is factored

into our consideration, it becomes evident that

he could not have understood the gravity of his

act in the absence of legal counsel. No court-

appointed attorney worth his salt would have

allowed Jurek to sign the second confession.

(623 F.2d 929, 941; A-24)(emphasis added).

That opinion initially found that Miranda v. Arizona,

384 U.S. 436 (1965) had been complied with. (623 F.2d

929 at 939; A-19). But then the court went on to conclude

that Jurek’s second confession was involuntary because

he did not have counsel. (623 F.2d 929, 941; A-24). Since

this “latent” need for counsel was found to be the

determinative factor for the involuntariness of the

second confession, this issue of right to counsel is

properly before this Court. The opinion of Judge Garza

indicates that counsel must be appointed to advise a

defendant in a capital murder trial whether or not he

waives his right to counsel before signing any

confession. Certiorari should be granted in this case to

determine whether or not such a defendant is entitled to

appointment of counsel in spite of his expressed desire

not to have counsel.

IV.

The fourth question presented is the following: “Were

the constitutional standards of the Fifth, Sixth and

Fourteenth Amendments correctly applied to the

undisputed facts in this case?” Respondent Estelle

strongly believes that the opinion of Judge Brown,

joined by ten other judges of the Fifth Circuit, was

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correct in its application of the law to the undisputed

facts in this case. However, because of the nature of the

opinions in this case, in which the court cannot agree

which confessions are voluntary and which are

involuntary, the State is left in a peculiarly unfair

position for any retrial. Absent a clarification of the

voluntariness of the confessions at issue in this case, the

State is faced with endless litigation in this case. If

Jurek is retried and his first written confession, which

was found to be voluntary by a majority, is admitted at

his trial, there is the distinct possibility that the

voluntariness of that confession will be relitigated not

only through the state courts but again through the

entire court system. The uncertainty and conflict

created by this series of opinions is such as to call for the

exercise of this Court’s power of supervision. Rule

17.1(a), Rules of the Supreme Court. Certiorari should

therefore be granted to clarify the issue of voluntariness

of the confessions in this case.

V.

The final question presented for review is, “If a

voluntary confession supports the jury verdict beyond a

reasonable doubt, is the admission of an additional

involuntary confession harmless error?” The Court of

Appeals held Jurek’s first written confession to be

voluntary and admissible. In that confession he

admitted taking Wendy Adams from the swimming

pool and choking her and throwing her body in the river.

This confession, when coupled with the evidence that

Wendy Adams had been seen screaming for help in the

back of Jurek’s pick-up and the other evidence at trial

provided overwhelming evidence of Jurek’s guilt for the

crime of capital murder committed in the court of

kidnapping, even excluding the second written

confession. The second count of the indictment as to

attempted rape was supported only by tke second

confession, which was held to be inadmissible. However,

since Petitioner could and did receive a death sentence

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for the crime of capital murder during the course of

committing kidnapping, the evidence, excluding the

second confession, was more than sufficient to support

the verdict. A review of the record leaves no reasonable

doubt that the jury would have reached the same verdict

without the second written confession. The kidnapping

and murder of a helpless 10-year-old child is generally

considered by society as one of the most heinous crimes

which can be committed. Under the standard set forth

in Milton v. Wainwright, 407 U.S. 371 (1972), the

admission of the second confession, if admission of such

confession was indeed error, should be held harmless

beyond a reasonable doubt.

CONCLUSION

Therefore, for the reasons set forth in Petition for

Certiorari and the arguments set forth in this reply to

the Brief in Opposition, certiorari should be granted to

consider all of the points raised in the Petition for Writ

of Certiorari.

Respectfully submitted,

MARK WHITE W. BARTON BOLING

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant

RICHARD E. GRAY III

Executive Assistant

ANITA ASHTON

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Respondent