Frank M. Miller, Jr. v. Peter J. Fenton, Superintendent, Rahway State Prison, Irwin I. Kimmelman, Attorney General, State of New Jersey

range point-blank victim was shot barroom, eyewitness- inside a with several standing only away. Two of

es a few feet and Elaine Dix- eyewitnesses, Gaudet

on, both of whom had known Mealer murder, testi- prior

several months

fied that it was Mealer who fired the shot. Smith, Lloyd had eyewitness,

A third who prior night in Mealer

never seen

question, gave description of the killer appearance, Mealer’s

that matched plaid suit Mealer wore

identified the red addition, night. testified Villareal pistol him the after

that Mealer handed barroom,

they asking dis- left the him to

pose it, and the recovered from eight matching

Mealer’s room bullets

bullet that killed Davis. Defendant offered trial,

no and the cross-examina- evidence government’s

tion of the witnesses failed any

to discredit their account in material

respect.

Affirmed. MILLER, Jr.,

Frank Appellant, M. FENTON, Superintendent,

Peter J. Rah- Prison, way Kimmelman, State Irwin I.

Attorney General, Jersey, State of New

Appellees.

No. 83-5530.

United Appeals, States Court of

Third Circuit.

Argued Jan. 1984. Aug.

Decided 1984.

Rehearing Rehearing In Banc Sept.

Denied Kimmelman, Atty.

Irwin I. Gen. Arlene Gen., (Argued), Deputy Atty. Di- R. Weiss Justice, Trenton, N.J., vision Criminal appellees. BECKER, Before and GIBBONS Circuit ATKINS, Judges, Judge.* and District THE OPINION OF COURT BECKER, Judge. Circuit corpus This brought by is habeas case Miller, Jr., Frank M. who was convicted in Jersey New state court of the murder of Margolin. corpus Deborah In his habeas petition, alleges Miller that his confession involuntary, to the murder was because the questioning detective’s mode of cre- psychological pressure ated induced against him to confess his will. The New Jersey Supreme held that the record supported trial court’s conclusion that “voluntary,” Miller’s confession was controlling thus admissible under carefully precedents. We have reviewed the record and conclude that the factual findings supported of the state court are by the record. We therefore conclude that findings must pre- we accord these sumption provided of correctness for in 28 § 2254(d). Cuyler, U.S.C. See Patterson v. (3d Cir.1984). 729 F.2d 925 Given find- ings presumption, say and the cannot we interroga- a matter law that the mode questioned tion used the detective who involuntary, Miller rendered the confession accordingly judg- we will affirm the denying ment of the district court Miller’s application corpus. for the writ habeas I. FACTS AND PROCEDURAL HISTORY August a.m., On at about 11:30 Margolin sunbathing while Deborah Defender, Rodriquez, porch of her home in rural Joseph H. Public East Amwell Klein, Township, stranger approached Wyk (Argued), Paul M. in an Claudia Van Defenders, East Or- automobile and informed her that he Deputy Asst. Public had N.J., appellant. seen a heifer loose at bottom of the ange, * Atkins, sitting by designation. Clyde United States Dis- Honorable C. Florida, Judge for the District of trict Southern questioning, which help right to terminate

driveway. stranger offered to Boyce gave him.1 Margolin Ms. de- her retrieve the cow. proceeded help, and then

clined the offer of tape recording of police made a Thе state re- automobile to alone her brother’s Boyce spoke a soft Miller’s statement.2 trieve the heifer. Her brother found sympathetic friendly —voice. —even later; half an hour automobile about guy,” presented himself as a “nice He thus ignition. keys had been left friendly suspect and interested response to solving problems. his Margolin failed to return When Ms. Boyce’s questions, Miller first described his afternoon, family commenced late her morning August activities on eventually searching her. Her father for pointed discrepan- Boyce then out various creek, dead, her face down in a with found story passed he cies in Miller’s about how Jersey cut. The New her throat and breast occurred, during which the murder the time A then called. number State Police were similarity description between troopers and detectives arrived on given the car the victim’s brothers and P.M., a de- at 7:30 and took scene about car, incriminating and other evi- Miller’s stranger car and the from scription of the point, Miller dence. At that weakened: brothers, him the victim’s who had seen Now, your what would conclu- BOYCE: Miller, nearby up. who lived and was drive circumstances, if sion be under those troopers, had been convicted known you someone told that? in 1969 of carnal abuse and arrested uh, probably, MILLER: I’d have the rape. statutory 1973 for One of the offi- got. you same conclusion cers, Scott, Miller Trooper recalled that is BOYCE: Which what? one drove a car that matched the described guy that, MILLER: That I’m the that did car by the victim’s brothers —an old white this. with the trunk tied shut and two dents BOYCE: That did what? Boyce the side. Detective of the State MILLER: Committed this crime. descriptions Police confirmed the of the car description also concluded that the and this, Boyce gears. Boyce After shifted stranger given by the victim’s brothers opinion, stated that in his Miller wasn’t general physical matched Miller’s charac- “criminal,” and that he didn’t have a “crim- teristics. Rather, Boyce inal mind.” asserted that “problem,” Miller had a for which he need- place located Miller his help, punishment. Boyce then ed not led Trenton, employment, P.F.D. Plastics help, Miller to talk about his nеed for evening 10:50 P.M. on the of the about psychiatric treatment he received as a con- murder, questioned and him there. Miller conviction, parole prior dition of his from accompany the to agreed to officers statutory rape his recent and arrest. questioning, further police barracks for table, background With this out on the searched, and, being his turned without Boyce began appealing to Miller’s con- spend- penknife over to the officers. After science: seventy-five minutes in the bar- about Scott, Trooper during Frank, to, Okay, promise kitchen B. listen If I racks with know, questioned, you psychi- Miller do all can he not was I with the interrogation everything, get room Detec- and atrist and we taken into and read his Miranda rights. help you, get proper Boyce proper and tive signed the Miranda card, specif- help you, you talk to me will about Miller of his it? ically Boyce for a clarification asked record); hence, warnings position we are in a adequacy Miranda to describe 1. The appeal. Boyce’s on not contested Miller's mood waiver are Detective and their during relationship interrogation. tape, and have read listened to that

2. We have (both part transcript are as well you something proper help. I talk to about This job, M. can’t is our Frank. job. I’m not .. This is our is what I This want to do. Frank, alright, Alright, B. listen honest. know, going By sending I M.

I know what’s inside me back there. down you, help you, you Frank. I want to now, B. Wait a second don’t talk about know, right us now. I know between going thing back down there. First Frank, going you. on inside what [sic] we have to do let it all come out. you’ve got to come forward and tell me fight worse, Don’t it because it’s you help yourself. want to Frank, hurting it’s worse. It’s me be- got You’ve to talk to me about it. This cause I feel it. I wanting feel it only way is the we’ll be able to work it out, hurting me, come but it’s Frank. mean, know, listen, you out. I I want brother, my You’re I mean we’re help you, you my because are this, brothers. All men on all men on mind, you responsible. are not You brothers, the face of this earth are Frank, Frank, responsible, Frank, you got but completely Frank, what’s the matter? honest me. with M. I feel bad. be, I’m trying you M. tо but don’t want Frank, me, God, B. to listen honest to to believe me. I’m, Frank, (inaudible). telling you, I’m Frank, you, B. I want to believe but I know, going you, I it’s to bother you truth, Frank, want to tell me the Frank, going you. it’s to bother It’s you and talking know what I’m about

there, going go away, it’s not to it’s and I you’re talking know what about. right you, there. It’s front of got You’ve to tell me the truth. I can’t right wrong? Frank. Am I help you without the truth. M. Yeah. I’m telling you Sure, M. the truth. that’s her blood in the car because began, step by step, Miller then to make when I way seen the she was cut I damaging concerning partic- admissions his her, help wanted to and then when she first, ipation in the At murder. he insisted got fell over I scared to even in- be that, although he was with the victim when something this, volved in being like killed, stranger she was some unknown had parole and ... actually committed the they crime while this, Frank, B. I realize may it have searching were for the heifer. in- Miller been an accident. Isn’t possible, he get help, sisted that had tried to but possible? Frank? that, Isn’t dead, when he realized the victim was panicked dropped body Sure, he had and possible. off. M. it’s Boyce out, allowed this much to come but Well, trying B. this is what I’m bring to Miller, challenged saying “[y]ou then killed out, that, may Frank. It something be girl, you.” again this didn’t Miller denied you you did that can’t be held crime, committed having after which is, help accountable for. This I can Boyce changed gears again, telling Miller— you, help you I can you once tell me soft, again pleading tones —that he could the truth. You I’m talking know what only helped be if he “told the truth” —ad- help you, about. I want to Frank. I following exchange mitted the crime. The you. like You’ve been honest with me. place. then took You’ve been sincere and I’ve been the Honest, got way you.

B. Frank? It’s to come same with Now this is relationship have, out. You can’t leave it in. It’s hard kind of we but I that, is, you, help you I realize hard it you how can’t unless tell me the is, that, complete I you. how difficult it realize but truth. I’ll listen to I understand, you’ve got help yourself any- to before Frank. You have to be- that, body help you. can I else And we’re lieve understand. I understand going you get you to see to it that how feel. I understand how much you

it must hurt inside. I know how The state trial court suppress refused to confеssion,3 you feel I it too. Miller was convicted because feel Because a four-day three-judge panel after trial.4 A day may some I in the same situa- be Appellate Division of the New Jer- Frank, you’ve got help tion but to sey Superior unanimously, Court reversed yourself. exactly hap- Tell me what stating deplore techniques “we and tac- pened, truth, Frank, please. tell me the tics which extracted this confession and trying you M. I’m to tell the truth. which, judgment, in our denied defendant help you. B. Let me It could have been process due opinion, of law.” The court’s You, you’ve got an accident. to tell principally composed which is quotes truth, me the Frank. You know what interrogation from the transcript, charac- talking I’m help about. I can’t without Boyce’s interrogation terizes method of as you the truth. I Now know and know “psychological pressure,” a short that’s, that’s, counts, that’s all that conclusion invoked the “the fair winds of Frank. You know and I know that’s process” due guilty “blow on the counts, what that’s what all it’s about. well as the innocent.”5 We can’t hide it from each other be- Jersey Court, New in a 4-3 know, you’ve got cause we both but decision, Appellate reversed the Division willing help yourself. know, You and reinstated the conviction. State v. Mil- you’re I don’t think a criminal. You ler, 76 N.J. 388 A.2d 218 problem this have like we talked about appropriate court stated the legal standard: before, right? Every case particular must turn on its Yeah, you, you now, M. say determining this facts. but the issue of volun- tariness, and thing goes suspect’s whether a everything court and will has overborne, been a court you should assess ... totality the surrounding of all the cir- No, me, Frank, B. please listen to listen cumstances. It should consider the char-. to me. hap- The issue now is what acteristics of suspect the and the details pened. The issue now is truth. Truth interrogation. of the Some of the rele- is the got issue now. You’ve to believe suspect’s vant factors age, include the this, prevails end, and the truth in the intelligence, education and advice as to Frank. You have to believe that and rights, detention, length constitutional I’m saying sincere when I’m it to you. questioning repeatеd whether the was got You’ve your- to be truthful with prolonged and in nature and whether self. n physical punishment or mental exhaus- began Miller then disgressing, talking tion was involved. Schneckloth v. Bus- about how he was “framed” a detective tamonte, 218, 226, prior connection with his conviction and (1973). A put prison, and going how “this is to kill suspect’s previous encounters with the n lawhas been mentioned as an additional my Boyce father.” continued to redirect murder, Miller toward the Puchalski, finally and the relevant factor. State v. confession came out. The N.J. interroga- entire A.2d 370 fifty-eight tion lasted about minutes. 76 N.J. at 388 A.2d at 223. The court explicit promises There no threats or were proceeded then subsidiary to make findings made, Miller, physical and no coercion. factors, on the relevant applying and the throughout question- who was coherent the “totality of the standard, circumstances” ing, passed out at the end. held that the “friendly use of the cop” confession, declining suppress quotes 3. In to paragraph 5. The in this are taken from trial court relied on the absence of an induce- unpublished opinion the sion, appellate of the divi- ment. Miller, State v. (N.J.App. No. A-1275-73 27, 1975). October imprisonment. 4. Miller was sentenced to life involuntary Mil- Boyce did not overbear sion constitutional sense. approach by that, on the court held primarily The court relied The district based on its ler’s will. evidence, not review of following interrogation independent facts: was includ- confession, long, Boyce tape misled Miller’s excessively at no time will thinking anything by Boyce’s question- he but an not “overborne” into was Miller officer, adopted ing. magistrate’s and Miller un- The court interrogating significance probable denying out- recommendation the writ of habe- derstood corpus granting a certificate confessing killing to the of Debo- come of This Id. probable appeal cause.6 followed. Margolin. 388 A.2d at rah interrogation held 224. The court that “the II. SCOPE OF REVIEW proper did not in this case exceed § 2254(d), of der 28 U.S.C. and that Under a state court bounds finding “presump- have properly confession could factual entitled to a fendant’s of correctness” in a by the trial court tion federal habeas determined been proceeding beyond corpus eight a unless one of enu- reasonable doubt.” established exceptions apply.7 merated The first seven Id. exceptions, go procedural which to the ade- habeas petitioned for a writ of Miller quacy proceedings, the state are not in the United District Court corpus States eighth excep- to this case. applicable The Jersey. peti- The for the District New below, tion, applies we address magistrate, who was referred tion adequate- where a factual conclusion is writ be denied. recommended by the ly supported record as a whole. agreed, con- rejecting court Miller’s district psychological pressure controlling application that the cre- case on tention is Pat- eighth exception confes- questioning made the this context ated ip) full, probable required applicant certificate of cause is that the did not receive a 6. A fair, appeal adequate from a decision of the district court hearing in the State court denying corpus. a writ of 28 U.S.C. habeas proceeding; or 2253. § applicant that the denied was otherwise process proceed- due of law in the court State (d) reads as follows: Subsection ing; (d) any proceeding Feder- instituted in a part or unless that of the record application court of habeas al corpus for writ proceeding State court in which the determi- by person custody pursuant made, perti- of such factual nation issue was court, judgment a State a determination sufficiency nent to a determination of the hearing a after the merits of a factual support to factual determi- the evidence such issue, by competent made State court of nation, produced provided is for herein- jurisdiction proceeding ap- in a to which the after, and the Federal court on a considera- plicant for the writ and State or an officer the part of a whole tion of such the record as agent by parties, were or thereof evidenced concludes that such factual determination is finding, opinion, reli- written written or other by fairly supported indicia, the record: adequate shall be able written evidentiary correct, hearing proceed- And in an applicant presumed to be the unless court, ing appear, proof or it or in the Federal when due shall establish shall otherwise made, respondent shall admit— such factual determination has been (1) dispute the merits factual of the unless the existence of one or more of the hearing; in not resolved the State court were respectively para- circumstances set forth (2) employed factfinding procedure that the (1) inclusive, (7) graphs numbered to is adequate by State court was not to afford by applicant, appears, shown otherwise or hearing; a full and fair by respondent, admitted is unless the (3) ade- that the material facts were not pursuant provisions concludes court hearing; developed quately court the State (8) paragraph numbered that the record in the (4) jurisdiction that the State court lacked whole, proceeding, State court as a considered person subject matter or over the of the applicant . fairly support does not such factual determi- proceeding; in the State court nation, upon appli- the burden shall rest applicant indigent and that the was an by convincing cant to establish evidence that court, deprivation of his constitu- State the tional by the the factual determination State court repre- right, appoint failed to counsel was erroneous. proceeding; the State him in court sent (3d correctness, finding may even where 729 F.2d Cir. Cuyler, terson v. 1984). holding dispositive is that as a matter of law principal be Patterson’s 2254(d), of concerning court defendant’s claim. Section a decision of a state course, im- exceptions, waiver of Miranda the most of a contains “presumption of rights portant presumption entitled to the is that the which court, Judge Writing findings apply for the correctness.” does not unless the factual Supreme analyzed four recent fairly supported by Sloviter are the record. See § great emphasizing Thus, def 2254(d). decisions Court as we read Patter- U.S.C. findings factual due to state court erence son and the recent Court cases corpus proceedings. Rushen See habeas interprets, it is limited to which our review — U.S.-, 453, 78 Spain, determining ap- whether the state court (1983) (biased jury nature of L.Ed.2d 267 test, proper legal plied and whether the fact; finding presump deliberations is by factual conclusions reached the state applies); v. Ful Maggio tion of correctness supported court are on the record as a ford, 462 U.S. 76 whole;9 prior to the extent that our hold- (1983)(presumption applies to L.Ed.2d 794 ings gave plenary us review over state trial); competence to stand Marshall v. mind, findings they court as to state 843, 74 Lonberger, 459 U.S. longer no valid. (1983)(presumption applies to L.Ed.2d 646 complains bitterly The dissent that our guilty plea); voluntariness of a Sumner v. is, course, opinion, informed Mata, 1303, 71 Patterson, reads recent decisions of the applies to (presumption effectively overruling, Court as pre-trial photo state of mind of witness silento, fifty years sub of caselaw of that identification). graphic the basis of On holding that the whether a cases, that, Judge these Sloviter concluded defendant’s state of mind renders his con- contrary prior holdings,8 to our “mixed law, involuntary fession is a questions of law and fact” such as whether plenary over which have in a we review voluntary subject a confession is or not are corpus may habeas case. The dissent presumption con of correctness point. binding correct on this Patterson is § 2254(d). tained in 28 U.S.C. however, precedent, apply and we must it Neither distinguishable, Patterson nor recent unless we find it which we Supreme Court decisions hold that we have do not.10 We note that read- Patterson’s plenary power questions lost our to review of the trend of the recent Instead, of federal has law. Court decisions has since been reinforced — Yount, mandated that we treat state-court factual the Court in Patton -, -, findings dealing with a defendant’s state of 2892 n. such, (1984).11 events, apply presumption mind as оf L.Ed.2d 847 At all we Johnson, case, Hayward problems 8. See United States ex. rel. denced and the of ascer- cert, denied, (3d Cir.), taining likely 508 F.2d the defendant's state of mind are (1975); Unit- to be identical whether the "voluntariness” chal- Ziegele, ed ex rel. Rush v. 474 F.2d lenge States is to the Miranda waiver or confes- (3d 1973). 1358-59 Cir. sion itself. It is doubtless for this reason that panel encompassed the Patterson confessions above, exceptions the of 9. As noted first seven holding. within its 2254(d), go procedural adequacy the which to § arguing To the extent that the dissent is proceedings, at issue in this of the state are not decided, incorrectly arguing Patterson was it is case. us, may only an issue that is not before but that points "distinctions” by 10. The dissent to several by be decided this Court in banc or the waivers, of Miranda between the voluntariness Op- Court. See Third Circuit Internal Patterson, subject and the volun- erating VIII(c). the matter Procedures Ch. confessions, they but are distinctions tariness of argues Although supports significant a The dissent a difference. Patton its without exculpatory, any position, relying waiver itself is not fact that the Miranda Court in be, likely subsequent is evi- Patton a number confession is listed of factors which favor one, really steps are over which we correctly decid- two was that Patterson believe plenary review.13 have applicable to principles are that its ed and cases.12 voluntary confession long In the series of cases cited dissent, Court confronted con- is not concept of voluntariness The varying under fessions made circumstanc- easy description. In itself to that lends one presented generally These cases undis- es. is volun determining a confession whether facts, including puted unrecorded interro- determina must make three tary, a court officers, by police gation of the defendant First, the court must find sub tions. questioning during long periods of which conclu the ultimate sidiary facts on which sleep, denied the defendant was access to sur circumstances sion must based—the counsel, any sup- form of outside other confession. Sec rounding defendant’s disputes included port, and often over ond, draw an inference as to cоurt must physical force whether was used. The surrounding circum effect that those consistently Court was dubious that a con- pro the defendant’s mental had on given stances under these fession circumstances Third, must determine the court “voluntary”; yet cesses. considered could be state processes mental which led judges juries finding, were on the whether basis facts, that the to confess were such of these that confessions were volun- defendant legal “voluntary” tary. precise the con A definition of volun- within confession tariness, however, remained As a elusive. stitutional standard. See Culombe Con result, engaged indepen- the Court necticut, dent, case-by-case review the state (1961). The dissent concerning conclusions voluntari- courts’ that, reviewing find dispute a does ness, subsidiary on the of the facts as basis voluntariness, must defer as to we court, by the state and substituted found findings subsidiary of the the state court’s its conclusion for that of the state courts. facts, of the such as the circumstances the defendant’s mental ca questioning and perhaps highlights The case which best they supported by long as pacities, as approach to is the Court’s one problem dispute There is also no the evidence. stressed the dissent: Culombe Con- basis, review, plenary on a we are free to necticut, legal applied Culombe, to the “state of standard In by the state court. three-stage analy- mind” inference drawn utilized the same here, disputed question this case is wheth The we do but did not treat state sis as concerning as to the defendant’s state findings er the inference defendant’s court separate binding. of mind should be treated as a of mind as The court did state conclusion, not, however, holding must also its on an uncon- factual which we base defer, inextricably review of the state-of-mind find- or whether it is so strained ing. passage clear from a from up legal standard that the This is with the bound the issue involved 12. The extended discussion that follows is re- to the trial court on deference us, juror question before spective case: bias. a in that to the dissent. Patterson was unani- 2254(d); however, section is not the wisdom of decision and there was no occasion for mous instead, is, question of defend- whether the a it such comment. mind at the time of his confession ant’s state of fact, question law question or a “mixed is a question degree 13. of deference to be Patton, required also and fact.” given by a federal court to state-court determi- individual’s application standard to an subsidiary nations of facts in habeas case is mind, held that the the Court state of issue, rather, this case. The not at issue in is juror's was a “state of mind" purposes is a “fact” for of review. The what fact, was entitled to the state court on which by the dissent distinction raised between direct- inquiry present is A similar deference. appeal corpus and habeas cases is cases there- case, 2254(d) voluntary and section confession case, fore irrelevant to this since the issue of similarly applicable the inference drawn “legal” determinations are which which are concerning state the defendant’s court the state of mind. the same in both contexts. “factual” is in in extend that concern to habeas opinion Culombe Patterson Justice Frankfurter’s con- segments corpus review of state court criminal immediately follows the which — Yount, victions. also Patton v. by dissent: See quoted -, 2885, course, accorded weight, is to be of Great (1984). gener- found this trend Patterson by the which are drawn to the inferences questions ally applicable to constitutional case, it is In a dubious state courts. a de- that turn on a determination about regard to federal- appropriate with due mind, fendant’s state of and held that such relations, de- that the state court’s state questions ultimate of determinations were control. But where termination should fact, questions rather than of law. We happenings, external on the uncontested Supreme read the recent decisions of the by in state law coercive forces set motion Court, Patterson, interpreted by as as unmistakably are enforcement officials stage holding that the second of the Cu- forces, action; under all in where these inquiry concerning lombe the infer- stress, pow- prevailing statеs of are —that ence as to the defendant’s state mind— confession; enough to draw forth a erful longer “legal” should no be considered a where, fact, does come the confession Culombe, “hybrid” question as it was the defendant to by forth and is claimed rather a of “ultimate fact” in but him; have extorted from and where been Swint, the sense of Pullman-Standard v. he has acted as a man would act who is 456 U.S. 72 L.Ed.2d 66 extracting pro- subjected to such an (1982). appears is all that cess—where this judgment the record—a State’s limiting This increased concern with voluntary cannot confession was stand. scope change review of em reflects a

367 U.S. at 81 S.Ct. at 1880-1881. phasis part Supreme on the of the Court. Fairly speaking, the “inference” concern- Supreme Before the Court’s decision in Mi mind, ing the defendant’s state of there- Arizona, randa v. fore, purely “legal” considered a was never the Court had rather, question; hybrid it was viewed as inquiry way used the “voluntariness” question, on which the state court’s conclu- outrageous interrogation practices to check sion was entitled to some deference.14 by agencies. law enforcement Since Mi randa, however, inquiries years,

In recent has played important have a far less role segregat- shown concern for considerable supervision police practices. court Be “legal” pur- “factual” and issues for Miranda, poses appellate frequently fore the courts were review. See Pullman- Swint, 287-88, presented by extracted Standard with confessions 1781, 1789-90, degree.” 72 L.Ed.2d 66 means of the “third Since Miran (1982) (“ultimate” fact, da, however, findings voluntary confession cases involved, dispositive issues turn more are often on factors such as the “clearly intelligence to deference under the individual entitled defendant’s understanding proceedings. erroneous” standard of Fed.R.Civ.P. 52(a)).15 cases, The eases relied on this court these latter state court determiná dissent, pointed exception, out in footnote 6 of the 15. The Court has made at least one As policy grounds, appellate Court con- on statements in some of to the limitation on cases that the Court would not be bound review inherent in the Pullman-Standard fession rule. —Union, findings dispositive Corp. of the federal See factual Bose v. Consumers -, any (1984). If of the earli- 80 L.Ed.2d issues are "overstatements." Judge dependent exception such reconsidera- that a er cases were Gibbons believes similar conclusions, 2254(d) implicit § those cases have tions of factual Court's 2254(d); voluntary treatment § See 28 U.S.C. confession cases. been overruled. Sain, typescript disagree. See at 17. We We believe Townsend (1963). "policies” cited Pullman-Standard dissent can be L.Ed.2d Swint, Cf. ordinary dealt with within the framework scope of review. frequently way of mind will be in tion of state dard” such as to make applica- its given if deference feder dispositive, the tion mechanistic. Under such circumstanc- corpus proceedings. in habeas es, al courts federal courts in habeas corpus cases Court,clearly this The understood underlying must either review conclusions cases, decisions. These there in its recent about the defendant’s state of mind le- as fore, policy to involve a appear decision gal questions, or fact-finding allow the scope to limit the federal the Court of leeway in applying legal courts some stan- supervision interrogation process, of the as specific facts of dards to the Our cases. police long complied the have with the as reading of the recent deci- rules of prophylactic Miranda.16 in sions relied Patterson is that the require to Notwithstanding hyperbole, the Court has chosen strict dissent’s adher- today present scope us ence limited the case before does not of over review gross facts, type the of abuses of fundamental it giving even where would result in many that characterized fairness leeway state trial courts some in applying cases the which came before the constitutional standard. years in the before decision its Our decision does not leave the fed instead, Miranda; typical voluntary it is of power eral courts devoid of to redress state post-Miranda cases in confession era. court which decisions violate fundamental interrogation There no secret was rights. constitutional standard indeed, case; the entire encounter was is a applied question. to be federal State tape-recorded. questioning not was apply courts the federal must constitution long time, pressed period for a and Mil- courts, interpreted by as it is the federal right ler was aware his to terminate it they may not draw to a inferences as upon request. He was not food or denied sup defendant’s state of mind that are not necessities, nor physically other was he objective where, ported by facts. But as say, or threatened. We abused cannot here, objective support facts a factual assert, the dissent we doubt would inference that defendant’s “state that no confession made under the circum- mind” was such that the was confession presented stances this case ever be could voluntary the meaning within of the Consti Instead, “voluntary.” we to are asked tution, it is the role of the federal judge particular effect of a of cir- set second-guess courts to the inference drawn particular cumstances on a defendant. by the courts. state inquiry type This is one seems to peculiarly us to within proper realm of fact.

of the trier III. THE VOLUNTARINESS OF THE CONFESSION recognize that, We in circumstances The constitutional test for where the ultimate is one voluntari fact mind, determination, involving state of it ness may be difficult involves on the totali circumstances, ty pinpoint “factual” conclusion con whether the mind, “legal product and to state stan- state of fession was a of the defendant’s addition, taking the Court’s Miranda decision in Miranda care of the worst abuses of authority, to increase the of consti- police becoming also served awareness the Court was in- rights part on the tutional of local offi- creasingly explosion concerned with the judges, thereby reducing state court cers and courts, particularly workload the federal outrageous ‍​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​​‌‌‌‌‌​‌​​‌‌‌​‌​​​‌​​‌‌​​​​‌‍need for cases and the number federal review. courts, appellate proper and with the allocation оf functions between the state and federal misrepresents position our when it The dissent E.g., Taylor, courts. Parratt says compliance we hold that Miranda af- L.Ed.2d Given these scope of over a review in a habeas case fects the developments, sought the Court has limit determination about a defendant’s state-court standards, defining federal role to constitutional Our Miranda should state of mind.' reference that we dictated defer to state courts in explain understood rather be as an effort to applying standards applica- those where these law. We add to this historical shift com- tions are reasonable. that, assertion time as at the same ment will, product free it legally or whether was not render the in- confession does interrogation, which resulted in over- voluntary it unless undermined “volun- bearing of the defendant’s will. Sckneck- tariness” of the confession under the totali- Bustamonte, loth v. Frazier v. ty of the circumstances. See (1973). 36 L.Ed.2d 854 In most in- Cupp, 731, 739, stances, controlling question is the de- 1424, 22 L.Ed.2d 684 Since the col- fendant’s state of mind —a of fact. loquy about the time of the victim’s death case, Jersey In this New all, did not seem to affect Miller at it subsidiary stated a Court17 number of fac- cannot be said to have undermined the vol- tual conclusions: that was a man of Miller Obviously, untariness of the confession. intelligence experience reasonable who had the fact interrogation “sympa- that the was workings with and understood the of the thetic” rather than confrontational does not justice system; criminal that Miller’s dis- render it Similarly, coercive. to the extent during tress product the interview was a Boyce that confronted Miller with the enor- done, his realization of he what had not of crime, mity attempting of his appeal to to pressure by Boyce; coercive that Miller conscience, his questioning objec- is not was believing Boyce not deceived into tionable, though Boyce even referred to the anything police other than a officer “problem” incident as a rather than a investigating a serious crime for which Mil- crime. and, prime suspect; ler was the that Miller that, confessed, was well aware if he he principal Miller’s contention is through jus- would be handled the criminal Boyce’s repeated assertions that Miller system. concluded, tice The court then mind,” did not have “a criminal and that he findings, the basis of these that Miller’s help, needed punishment, rather than will, product confession was the of his free deception amounted to psychological psychological rather than coercion. 76 N.J. coercion which undermined the voluntari § 2254(d), 388 A.2d at 224. Under ness of the confession. It is axiomatic that these presumed conclusions are to be cor- physical coercion need rect, not be to render the accept long we must them as they involuntary; any confession fairly supported coercion by the ás a record they whole. We find that denies the are. defendant the freedom to remain may silent Garrity See v. New enough. be part most relevant of the Jersey, 493, 496, 616, 618, record in tape this case is the of Miller’s (1967). Psychological 17 L.Ed.2d 562 coer confession, interrogation and and we must if, enough cion is totality under the analyze therefore tape the confession circumstances, overbearing it results in the determine supports whether it the conclu the defendant’s will. All practices sion of Jersey Supreme the New Court. that encourage confess, defendants to how No objection Boyce’s is made to confront ever, psychological do not amount to coer discrepancies Miller with explana his cion. Our role is to review the nature of tion of he where was at the time of the involved, questioning accepting as true murder, or with the statements of the vic findings those of the state court that in describing tim’s brothers ap car that mind, volve the defendant’s state of proached morning their home de and its termine whether During questioning, Boyce driver. the tactics used did Detec telling Boyce lie in Miller that the victim had tive died this ease were unconstitution beforehand, only ally minutes this lie few but coercive. (1976); Zant,

17. The fact that the facts found in this case are L-.Ed.2d 154 940, Hance v. 696 F.2d cert, opinion Jersey (11th Cir.), denied, taken from the preme the New Su -U.S.-, .of Court, rather from a statement of than (1983); United court, findings by the trial presumption of correctness. See does not vitiate the Franzen, (7th States ex Cir.1981). rel. Heral 667 F.2d 633 Time, Inc. v. Firestone, .424 case, potential prob Miller showed a con The most substantial Boyce’s tinuing recognition depth confession is that of the trou lem with the arguably implied that Miller questioning consequences in and ble that he was “help,” punishment, if he receive not telling Boyce Although Boyce would the truth. promises by The use of confessed.18 help, stated that he felt Miller needed interrogating officer can sufficient to imprisonment, only part this was of his invalidate a confession. See Robinson v. approach. spoke He also to Miller about Smith, (W.D.N.Y. F.Supp. purge the need to tell the his truth 1978), general, and cases cited therein. In conscience,20 continually and intermixed his however, promises by interrogators will not “problem” statements about Miller’s with they invalidate a confession unless are suf appeals his to conscience. The state court ficient to the defendant’s will”— “overbear questioning found that this did not over general standard voluntariness. See will, Miller’s bear thus did not render States, Fernandez-Delgado v. United involuntary. the confession As we have Cir.1966) (where (9th F.2d 34 defendant above, noted we conclude that the state any investiga assistance to was told court’s determination as to the effect on brought to the attention of tors would supported Miller’s state of mind was on the prosecutors, was not rendered confession record as a whole. result); as a United States v. inadmissible cert, Ferrara, (2d Cir.), denied, F.2d 16 IV. CONCLUSION question on the Under caselaw (1967) (where interrogator told defendant voluntariness, inquiry before us is cooperated government, that if he with the product whether the confession bail, was “a he would be released on a reduced essentially free and involuntary); unconstrained confession was not rendered Judging by choice its maker.” Glasgow, 451 F.2d 557 United States standard, Cir.1971) curiam) (where light of our (9th (per interrog scope restricted review, prose he would we have concluded that Miller’s ator told defendant inform cooperаted, voluntary confession was cutor if defendant the confes hence admis- judgment necessarily sion was not rendered involunt sible.21 The of the district court ary).19 will be affirmed. Boyce explicitly promised any- right you, never 18. to do it’s there. It’s in front of Frank. right wrong? thing psychia- other than "do all I can with the Am I context, everything M: Yeah. trist and ...” this state- discussion, apparently ment refers to a mo- question ple- on 21. Even if our review this earlier, proper psychiatric of the lack ments nary, we would reach the same result. We essentially agree with the conclusions of the parole prior under treatment Miller’s for a crime. Jersey Supreme concerning New the ef- Boyce’s questioning supra fect of of Miller. See Appellant relies the venerable case of typescript agree Boyce’s at 9-10. We also States, v. United Bram could, questioning technique under different 42 L.Ed. 568 in which circumstances, deception. create risks of involuntary the court stated that a confession is from, questioning coming example, same by any implied promise, if “obtained direct or psychiatrist employed by but not slight.” As the Second Circuit has stat- however ed, detective, clearly might identified as well cre- language applied has never been with ”[t]hat ate a situation in which the confession would urged upon by appel- wooden literalness us Denno, voluntary. Leyra not be See Ferrara, States v. 377 F.2d lant.” United (2d Cir.1967). (1954) (confes- 98 L.Ed. 948 psychiatrist, following days sion made to a three prior questioning by police, psychia- where instance, page typescript, 12 of the

20. For police interrogator, trist was not identified as a Boyce said: voluntary). Similarly, Boyce’s ques- was not tioning if Frank, me, God, I’m, I’m listen to honest induced B: telling you, had fact Miller to confess in know, Frank, (inaudible). psychological it’s I the belief that he would receive Frank, you, going "help” punishment, going to both- to bother it’s rather than the confession there, "voluntary.” going go away, you. would not be It’s it’s not er App. Boyce 7. Later

GIBBONS, Judge, dissenting. wearing.” were Circuit Miller, being were identified as told “[Y]ou case, grim tragic made so This is she talking there to her minutes before woman, abrasive, young by the death of a In fact App. at 9. was ... [murdered].” debilitating psychological ploys used to ex- The wit- Boyce had no such identification. murder, tract a confession of her ness, Margolin, Daniel testified: more than this court’s refusal to follow pay very I didn’t much attention to precedents holding fifty Supreme Court person [driving the I as- because car] question that the whether a confession is neighbor- sumed it was someone involuntarily given is a mixed really I hood and all noticed about the fact, law and over which our review of the average, individual was he looked about ultimate of voluntariness is factory he looked like a worker and that holding places majority’s error of law. The loose-fitting clothing he had on. eight us in conflict with Federal Circuits. disconcerting Tr. decision is all the more at 169-70. No identification of Miller Our law, because, Nevertheless, as a matter of the confession was ever introduced at trial. defendant, Miller, Boyce’s misrepresentation Frank was invol- unaware of dur- untarily By reclassifying interrogation, responded, the is- Miller obtained. deferring say, I’m you my sue as one of “fact” and identified and car’s “[L]ike findings App. “factual” of the state courts— identified.” at 8. findings pur- neither nor those courts made Boyce represented also that blood stains

ported majority to make—the has abdicated victim, Margolin, of Deborah were judicial responsibility its to make an inde- doorstep. found on Miller’s “We went to pendent determination of the voluntariness your night house last found and blood crowning irony of a confession. And as a Boyce stoop,” stains on the front dissem- decision, majority to this court’s a of the App. bled. at 6. In fact the state intro- Jersey judges eleven New who reviewed duced no such evidence at trial and does confession, this and to whom we are defer- appeal any not contend on that such blood ring, voluntary concluded not that it was existed. involuntary; but it was and all eleven interrogation stop Nor did the with these judges they drawing asserted that a were Miller fabrications. had been detained emphatically I conclusion. dissent. Flemington State Police Barracks kitch- interrogation. en for two hours before his I. pretrial In proceedings Miller testified that The confession at issue here was the detention, during this Officer Scott “told product implied promises, trickery, cajol- girl me that a had been cut but that she ery, dissembling, exaggeration. Be- lucky going was she was still alive and was complete transcript tape cause re- identify guy be able to that done it.” cording interrogation are in the false; Tr. at 109. Scott’s assertion was record, none of historical facts concern- although Margolin both officers knew that dispute. Miller’s confession are in earlier, they had died five hours deliberate- majority’s abridged account of Detective ly impression given left the that she had Boyce’s questioning conveys neither the de- description identify and could her assailant. employed intensity nor the ceipt the Alluding Margolin to Scott’s remark that interrogation. hospital,” App. “was in the at Miller interrogation Early interrogator Margolin Detective asked his whether Miller Boyce App. Boyce led Miller to believe that had was still alive. at 8. quickly ad-libbed, just at the scene of the crime. died been identified “She a few minutes physical description,” Boyce ago. just got I have a ... that’s what that “[W]e [tele- phone] asserted, you call you App. that “fits and the clothes was about.”1 9. fact recording interrogation rang tape telephone shortly reveals 1. The that a before Miller In fact leaving during interrogation. earlier Miller’s hours no Margolin had died prevented assailant. the officers description of her unconscious state any signed confession. De- obtaining from were These followed prevarications Boyce tective testified: intensive, relentless thirty-eight minutes of Q. gather I statement was Boyce plainly and questioning during [a] taken, right? will. never is that simply the defendant’s overbore incessantly with Boyce badgered Miller ItA. was not. help if Miller would confess. promises of that, Q. Why Officer? was Boyce urged 41 occasions On no less than Momentarily A. after terminating problem, he had a that he that Miller admit particular Mr. Miller interview went problem, his and that help needed to solvе I it a into as can best define state of help Boyce provide that if Miller would shock.. passim. “If App. at 6-17 would confess. that, Q. you mean What do sir? know, to, do all I promise you I can with sitting A. He on a chair —... everything, get psychiatrist and we you you, will talk to proper help sitting chair, ... Mr. Miller had on a been Boyce. whispered App. at me about it?” had slid off of the on to the chair floor it going you get to see to that 12. face, maintaining “[W]e’re stare on his blank job, proper help. This is our Frank. staring straight ahead and we were un- do,” is what I want job. This is our This get any type response able verbal App. at 15. On Boyce at least intoned. from him time. at that Boyce urged Miller other occasions Q. he As I understand it was then responsible for his ac- would not be held removed to the Hunterton Medical Cen- fault, your tions. it’s their “[I]t’s ter, right? is that fault,” Boyce. App. you said “[I]f Yes, squad A. first aid was con- act, actually they’re did the ones commit an immediately. tacted blame, my eyes, you that are to ... not Tr. at 84-85. Id. may an as individual.” have been “[I]t accident,” Boyce may unanimous, an entreated. strongly opinion, “It be In a worded that, that something you you that did can’t Jersey Appellate the New Division con- App. be held for.” at The accountable adjurations demned as these “relentless sobbing thirty tape Miller reveals minutes State Svengalian efforts.” successful distraught, weak, interrogation, into the Miller, v. 218, 76 388 A.2d N.J. and unstable. (1978) P.J.A.D., (Conford, dissenting).2 232 held that Without dissent the court Miller any As if doubt there could be about the not tremendous long psy- “could resist the examination, intensity debilitating of this Id. “The chological pressure.” tape tran- Boyce’s interrogation at the conclusion entirety script must read in its for its Miller lapsed into unconsciousness. savored,” full aroma that to be court ob- fact majority glosses over the that Miller Id. 413, served. 388 A.2d at 229. at Mil- passed the floor at end of the out on confession, held, the court though this were ler’s ultimate questioning as the ordi- “capitulation superior nary in control of his will was a response of one mind.” 145, Margolin Boyce finding at a had died. Tr. not inconsistent with the asked whether story quickly in- Margolin a caller fabricated fact that Scоtt remarked to Miller that Margolin had died moments hospital interrogation formed him that was when the be- Innis, 291, earlier. gan. See 446 U.S. Rhode Island v. 299-303, pretrial testimony Scott he asserted that 100 64 S.Ct. L.Ed.2d 297 any aspect of the (1980). did not "discuss murder Margolin” in kitch- Miss Deborah Barracks light contemporary opinion of Miller’s Appellate repro- en. Tr. at 58. In 2. The Division is tape to Scott’s remark that Mar- allusion on the part Judge duced in substantial Conford's testimony golin hospital," this was dissent, "was in the opinion to which the citations in this only trial court found not credible. The refer. interrogated” during period. Miller "was not 1470 422, committed,

Id. capitula- at 234. And 388 A.2d the crime he cause us to principles. was. was tion it Miller tricked inten- abandon basic constitutional sive, interrogation hypnotic 58-minute into 76 N.J. at A.2d at 234. 388 With- superior incriminating ques- himself applying principles, out these constitutional unstable, played tioner who on Miller’s them, referring indeed without the ma- childlike mind. today jority characterizes the voluntariness of Miller’s question confession as a II. finding “fact.” “factual” of the New events, reviewing

After these the New Court, Jersey Supreme majority con- Jersey Appellate Division held: made, finding cludes —a that court never for New Jersey Court held overbearing

An which broadside results deciding it was law —is in a confession virtue intense support without the record. Conse- bending compulsion mind psychological reasons, quently, majority we must de- deserves no better fate at our hands than fer to the state “finding” courts’ that Mil- rubber hose. Cham- legendary does ler’s confession voluntary. Florida, v. bers 309 227 S.Ct. [60 472, long 84 L.Ed. have We disposition 716] This squarely conflict cherished a determination that the fair precedent. with fifty Over process upon winds of due shall blow Supreme Court decisions have held that the guilty as well innocent. We will of a confession is a mixed gratitude good police not here let our question of law and fact over which our work ferreted out one who is most review of the ultimate of voluntar- murderer, probably Indeed, plenary.3 our abhorrence iness is no issue has Pate, 433, 1541, 3. The Court has reversed convictions Reck v. 367 U.S. 81 S.Ct. 6 predicated involuntary (1961); Connecticut, confessions held aаs L.Ed.2d 948 Culombe v. of law 568, 1860, matter on 31 occasions. Brown v. Missis 367 U.S. 81 S.Ct. 6 L.Ed.2d 1037 278, 461, sippi, 297 U.S. 56 S.Ct. 80 L.Ed. (1961); Colorado, 49, 682 Gallegos v. 370 U.S. 82 (1936); Florida, 227, v. Chambers 309 U.S. 60 1209, (1962); Lynumn S.Ct. 8 L.Ed.2d 325 472, (1940); Canty S.Ct. 84 L.Ed. 716 v. Ala Illinois, 528, 917, 372 U.S. L.Ed.2d 922 bama, 629, 612, 309 U.S. 84 L.Ed. 988 (1963); 503, Haynes Washington, curiam) (per (summary reversal on au 1336, (1963); Davis v. thority Chambers); Texas, White v. 310 U.S. Carolina, North (1940) (on 84 L.Ed. 1342 (1966); Garrity Jersey, L.Ed.2d 895 v. New petition rehearing summary reversal); after (1967); Texas, Lomax Texas, Clewis v. curiam) (per (summary L.Ed. 1511 rever (1967); Alabama, L.Ed.2d 423 v. Beecher 389 ); authority sal on of Chambers and White Ver 35, 189, (1967) (per U.S. 88 S.Ct. 19 L.Ed.2d 35 Alabama, 547, 1092, non v. 313 U.S. 61 S.Ct. 85 curiam); Wisconsin, 519, Greenwald v. 390 U.S. (1941) curiam) (same); (per 1513 L.Ed. Ward v. 1152, (1968) curiam); (per 88 S.Ct. 20 77 L.Ed.2d Texas, 1139, 547, 316 U.S. 62 S.Ct. 86 L.Ed. 1663 Connecticut, 346, Darwin v. 391 U.S. 88 S.Ct. (1942); Tennessee, ‍​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​​‌‌‌‌‌​‌​​‌‌‌​‌​​​‌​​‌‌​​​​‌‍143, v. U.S. 322 64 Ashcraft 1488, (1968) curiam); (per 20 L.Ed.2d 630 Min- 921, (1944); S.Ct. 88 L.Ed. 1192 Malinski v. New Arizona, 385, 2408, cey v. 437 U.S. 98 S.Ct. 57 York, 401, 781, 324 U.S. 65 S.Ct. 89 L.Ed. 1029 (1978). Ohio, 596, (1945); 302, Haley v. 332 U.S. 68 S.Ct. predicat- The Court has sustained convictions Indiana, (1948); 92 L.Ed. 224 Watts v. 338 U.S. voluntary ed on confessions a held as matter of 49, 1347, (1949); S.Ct. L.Ed. 69 93 1801 Turner California, law on 14 occasions. Lisenba v. 314 62, 1352, Pennsylvania, v. 338 U.S. S.Ct. 69 93 219, 280, (1941); U.S. 62 S.Ct. 86 L.Ed. 166 (1949); Carolina, 18 L.Ed. Harris v. South 338 Oklahoma, 596, 1208, Lyons v. U.S. S.Ct. 68, 1354, 322 64 (1949); U.S. 69 S.Ct. 93 L.Ed. 1815 Nebraska, (1944); Gallegos 88 L.Ed. 1481 881, v. 342 Pennsylvania, v. 71 Johnson 340 U.S. S.Ct. 55, 141, (1951); 72 191, U.S. S.Ct. L.Ed. curiam) 96 86 (per Stroble (summary 95 L.Ed. 640 181, 599, California, v. 343 authority Turner); U.S. 72 S.Ct. 96 Leyra L.Ed. of v. reversal Den (1952); Allen, 443, no, 716, 556, 872 Brown v. 344 U.S. 74 73 347 U.S. S.Ct. 98 L.Ed. 948 397, Alabama, 191, (1953); (1954); S.Ct. 97 L.Ed. 469 Fikes v. 352 77 S.Ct. Stein v. New U.S. York, 156, 1077, 281, (1957); Arkansas, Payne 346 U.S. S.Ct. L.Ed.2d v. 73 L.Ed. 1 246 97 1522 560, 844, (1953); Arizona, 390, (1958); 2 975 Thomas v. 356 U.S. 78 S.Ct. L.Ed.2d 356 U.S. 78 885, 315, 1202, York, (1958); Spano v. 360 79 S.Ct. S.Ct. 2 863 New U.S. L.Ed.2d Ashdown v. Alabama, Utah, 426, (1959); 1354, v. U.S. 3 L.Ed.2d 1265 Blackburn 357 78 S.Ct. 2 L.Ed.2d 1443 199, 274, (1960); (1958); California, 433, 4 242 361 U.S. 80 S.Ct. L.Ed.2d Crooker v. 357 78

1471 1984). Supreme Creating eight the attention of a conflict with Fed- consumed infra, completely century, see Patterson in this no Circuits, more Court eral note 20 question investigated has more single been reasoned that the voluntariness of a con- vigorously, thoroughly nor dissected more In fession is an issue of historical fact.4 so standards for the voluntariness of than the reasoning, the Patterson court concluded a confession. The most recent of these Supreme fifty that no less than deci- Court decisions, barely a decided month after silentio, sub overruled sions have been Jersey Supreme Court's decision New coup muet said to be the work of three case, this reiterated what has become rote Supreme of recent decisions Court.5 jurisprudence: a confession the Court’s opinions None of the recent examined in “ ‘ voluntary only product if it is “the Patterson addresses the voluntariness of a ’ ” will,” a rational intellect and a free The Patterson court men- confession. determination, making this we are not “[i]n fifty none tioned confession cases [s]upreme bound [state] [c]ourt’s reasoned wеre overruled sub silen- it holding that the statements were volun- tio; pur- nor did it discuss the motive and Instead, duty tary. is under a Court pose Supreme Court’s classifica- behind independent make an evaluation of a confession tion Arizona, Mincey v. 385, record.” 437 U.S. Indeed, mixed of law and fact. 398, 57 L.Ed.2d 290 Patterson only itself addresses the volun- (1978). tariness of a Miranda waiver. petition No authority majority’s for the decision in Patterson was filed. rehearing ignore years prece- 48 I majority’s roughshod dissent from the holding dent that the ultimate issue of vol- century treatment of almost half a of Su- untariness of a confession is a preme precedent. panel opinion history law is of this court Cuyler, v. Patterson (3d voluntary-confession 729 F.2d 925 Cir. doctrine makes it 1287, (1958); son); 538, 541-44, Georgia, S.Ct. 2 L.Ed.2d 1448 Cicenia v. Sims v. 87 504, 1297, 639, 641-43, (1967) (same; Lagay, 357 U.S. S.Ct. 17 L.Ed.2d 593 Holman, (1958); v. Boulden 394 U.S. trial court’s conclusion of voluntariness “must (1969); appear S.Ct. 22 L.Ed.2d 433 v. from record with unmistakable clari- Frazier 477, 482-89, ty”); Lego Cupp, Twomey, 394 U.S. L.Ed.2d 404 U.S. (1969); (1972) (volun- Atchley, Procunier v. 30 L.Ed.2d 618 (1971); hearing 27 L.Ed.2d 524 Hutto v. tariness Jackson v. Denno need be Ross, evidence). only by preponderance L.Ed.2d established curiam). (per Language might addition, in Patterson be read to hold Court has addressed that voluntariness of a confession is mixed procedural pertaining several de- issues to the fact, question of law and and that such mixed termination of voluntariness. In these instanc- questions subject presumption of cor- es the Court reaffirmed that the ultimate issue 2254(d) (1982). rectness of 28 U.S.C.§ 729 F.2d of a is one of law of voluntariness confession conclusion, however, at 932. This is contradict- proceedings. and remanded for further See Lee 743-46, ed Court’s recent decision in Mississippi, — -, Washington, (1948) (defendant’s Strickland 92 L.Ed. 330 denial Thus, I estop that confession was made does not asser- read Patterson to hold that the involuntary); Rogers voluntariness of tion that it was v. Rich- 534, 540-49, 735, a confession is an mond, itself issue of historical fact. U.S. 81 365 S.Ct. 739- 44, (1961) (impermissible rely 5 L.Ed.2d 760 to — —, reliability Spain, 453, of confession as evidence of volun- v. on tariness); 5. Rushen U.S. 104 S.Ct. Sain, 456, (1983) (per curiam) (jury 307- 78 Townsend L.Ed.2d 267 — 745, 754-55, (1963) fact); Maggio Fulford, L.Ed.2d 770 a 83 S.Ct. 9 bias -, 2261, 2262-64, (circumstances evidentiary hearing U.S. 103 S.Ct. under which curiam) corpus proceedings); (per (competence be held in habeas 794 must to stand Denno, 368, 376-91, fact); Lonberger, U.S. 84 S.Ct. triаl a Jackson v. 378 Marshall v. 1774, 1780-89, (1964) (trial 843, 849, court 12 L.Ed.2d 908 (1983) (ultimate question voluntari- make initial determination of must voluntariness of law). guilty plea jury); Mag- to Boles v. Steven- ness before submission issue Rushen and 175-76, son, gio per summary were curiam reversals decided (same curiam) briefing argument. (per as Jack- without had at 464. Two others who issue of the ultimate abundantly clear “ whippings ‘were intro- question participated is a in of a confession ” Moreover, it,’ ob- I the Court III duced and admitted Part of law. See infra. “ served; intro- majority’s single deference to a ‘not a witness was dissent from ” Jersey Court no New denied it.’ Id. at finding of “fact” that who duced authority defer- no for in the made. There is at 464-65. Thus no conflict has S.Ct. the court finding of “fact” when testimony a trial in Brown. ence to presented (cid:127) “finding” expressly has a rendering Supreme such The Court held that on the basis finding making a factual admitted, held that it is not facts “It would be difficult drawing legal conclusion. See Part but revolting to conceive of methods more respect pay little We IV justice the sense of than those taken infra. ignoring holdings and by their state courts procure petition- confessions these findings. Finally, I rewriting their, factual ers, and the use of the confessions thus suggestion that majority’s from the dissent obtained as a basis for conviction and sen- Supreme Court decisions have three recent process.” a clear denial of due tence was most one of the overruled sub silentio at 465. Id. at Supreme doc- firmly grounded of Court Supreme next occasion to On Court’s decisions, holding that trines. of these One claim, in- a coerced-confession address voluntariness of a the ultimate issue of as terrogators were neither as brazen nor law, question of undermines guilty plea is a Brown, as those in for none admit- foolish of the re- majority’s position. Neither of the defendants. ted to mistreatment in- maining pertains to custodial decisions Florida, 227, 60 Chambers proceed- terrogation conducted in closed 84 L.Ed. 716 the Florida ings. import The and force of the volun- Supreme had twice reversed the con- doctrine, contrast, tary-confession in is to defendants, directing of four that a victions independent afford federal review over jury proceedings decide coram nobis III D proceedings. closed See Part “ these ‘in whether their confessions were fact today majority’s The raises ” decision infra. deeply freely voluntarily made.’ Id. at 227- disturbing concerning re- questions jury 28 n. at 473 n. 2. After a spect regarding stare decisis voluntary, found the twice confessions appropriate role of the inferior federal highest court affirmed. The evi- Florida’s courts in our hierarchical structure. Supreme dence of voluntariness before the transcripts of these Court consisted III. proceedings. testimony “The coram nobis Issue of of a Ultimate Voluntariness conflict,” proceedings] is in noted these [in Question of Law Confession is a Black, peti- all four Justice “as whether continually threatened and Direct-Appeal tioners were A. The Doctrine physically they finally, until mistreated Court held 1936 that a lives, hopeless desperation and fear of their by means of a confes- conviction obtained ____” agreed to confess Id. at pro- extracted violence violates due sion at 474. Mississippi, Brown v. cess of law. L.Ed. Before Court the State of interrogators urged jury’s finding in Brown Florida “ finding their torture. ‘This brazenly voluntariness was of “fact.” admitted “finding,” argued, put on the stand the state This Florida resolved deputy was ” rebuttal, any dispute testimony whippings,’ admitted the to voluntar- “finally iness and determined Hughes. Asked how noted Chief Justice [that issue] passed upon jury.” was because severely the defendants Id. at one “ ‘ testified, deputy “Not too 60 S.Ct. at 473. The whipped, the rejected negro; not as much as I would this claim. must much for a determine “[W]e ’ ” held, independently,” left to me.” Id. at the Court “whether done if it were have

1473 obtained, were so calls for the petitioners’ confessions view State courts utmost upon by scruple. of the facts which that But “issue of fact” is a coat review 229, Id. at necessarily turns.” 60 many issue colors. It does not cover a conclu- (footnote omitted). 5. Ct. at 473 Because happen- sion drawn from uncontroverted disput- of the historical facts were certain ings, incorporates when that conclusion ed, held, the Court it would decidе the judg- standards of conduct or criteria for of the confessions as a mat- ment which themselves are decisive of undisputed law ter of basis rights. constitutional Such standards Id. historical facts. 60 criteria, against measured the re- 477-78. quirements drawn from constitutional provisions, proper applications, and their v. Chambers Florida thereby became are adjudica- issues this Court’s progenitor Court’s di- tion____ Especially in arising cases un- rect-appeal voluntary-confession doctrine in der the Due Process impor- Clause is it provides cases. That doctrine re- distinguish tant between issues of fact viewing claims of coerced confession raised are here foreclosed and issues appeal Court, on direct to the which, though cast in the form of deter- voluntariness of the confession is to be fact, very minations are the issues to decided as a matter of law on the basis of sits____ review which this Court undisputed the admitted or historical facts applied of record. The Court direct-ap- ... all the cases that come [I]n have peal doctrine without fail in seventeen vol- here...during the last decade from the untary confession cases decided after the courts of the various States in which it Chambers decision in 1940 and before the was claimed that the admission of coerced voluntary-confession first claim to reach confessions vitiated convictions for mur- corpus, habeas [citing der cases], fourteen there has Allen, Brown v. 443, 397, 344 U.S. 73 S.Ct. complete agreement been any con- (1953), 97 L.Ed. 469 in 1953.6 The Court’s in testimony flict actually to what led cases, v.Watts trilogy 1949 of confession to a contested confession is not this Indiana, 49, 1347, 338 U.S. 69 S.Ct. 93 Court’s concern. Such conflict comes (1949); Pennsylva- Turner v. L.Ed. 1801 authoritatively here resolved nia, 62, 1352, 338 U.S. 69 S.Ct. adjudication. 93 L.Ed. only State’s Therefore (1949); Carolina, Harris v. South 1810 those elements the events and circum- 68, 1354, 338 U.S. 69 S.Ct. 93 L.Ed. 1815 stances in confession was in- clearly: state the doctrine unquestioned volved that convictions, happened State’s version of On review here of State all what are rel- evant usually those matters which are termed constitutional issue here. applied, But has been issues fact are for conclusive determi- if force Court does by the State courts and are not not leave to local determi- nation nation whether or not the confession open for reconsideration this Court. voluntary. of this restriction in Observance our re- There is torture of mind 612, 629, Alabama, Ohio, 596, 302, Canty Haley 60 S.Ct. v. U.S. v. 309 332 U.S. 68 S.Ct. 92 curiam); (per (1948); 84 L.Ed. 988 White v. Tex- Mississippi, L.Ed. 224 Lee v. U.S. 332 as, 530, 1032, 742, 300, 310 U.S. 60 S.Ct. 84 L.Ed. 1342 (1948); 68 S.Ct. 92 L.Ed. 330 Watts v. 544, Texas, (1940); Lomax v. 313 U.S. 61 S.Ct. Indiana, 49, 1347, 338 U.S. 69 S.Ct. 93 L.Ed. 956, curiam); (per 1511 85 L.Ed. Vernon (1949); Pennsylvania, 1801 Turner v. U.S. 338 Alabama, 547, 1092, 313 U.S. 61 S.Ct. 85 L.Ed. 62, 1352, (1949); 69 S.Ct. 93 L.Ed. 1810 Harris v. curiam); (1941) (per California, Lisenba v. 1513 68, Carolina, 1354, South 338 U.S. 69 S.Ct. 219, 280, (1941); ‍​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​​‌‌‌‌‌​‌​​‌‌‌​‌​​​‌​​‌‌​​​​‌‍314 U.S. 62 S.Ct. L.Ed. (1949); Pennsylvania, L.Ed. 1815 Johnson v. 547, 1139, Texas, 316 U.S. Ward 881, 191, (1950) (per 95 L.Ed. 640 Tennessee, (1942); L.Ed. Ashcraft curiam); Nebraska, Gallegos v. (1944); 88 L.Ed. 1192 (1951); 96 L.Ed. 86 Stroble v. Califor- Oklahoma, Lyons v. nia, 96 L.Ed. 872 York, (1944); Malinski v. New 88 L.Ed. 1481 (1945); 89 L.Ed. 1029 1474 and es- disputed is as much to their conclusions body; the will as as well hap- actually And there issues of what by fear as force. sential

affected Court, duty compels this Court should point pened____ where Its comes judges itself, of what we ignorant however, on the facts not be to decide know as men. undisputed, the constitutional that denies validity judgment 50-52, of Indiana, 69 338 U.S. at Watts rights. Frankfurter, J.) claimed constitutional (opinionof at 1348-49 S.Ct. added) (footnote and citations (emphasis (opinion of 72 S.Ct. at 145 342 U.S. at omitted). Reed, J.). Indeed, direct-appeal doctrine became to charac- Supreme Court’s decision jurispru- in Court firmly so rooted of ultimate issue of voluntariness terize the oft-repeated of dence that reiteration law did not turn on a confession as one of second nature to became standard theory “vol- epistemological of whether Thus, one side the putting after “to Court. concerned the defendant’s untariness” Ohio, Haley controverted evidence” and whether such “state of “state of mind” 302-03, 597-98, questions of “fact.” To mind” issues are (1948), noting that both L.Ed. 224 and 92 holdings a far contrary, the Court’s had jury “found” trial court and state interrogations at deeper motivation. voluntarily the defendant’s confession They generally place in secret. issue took made, 68 the Su- id. at inherently settings, coercive occurred preme held: involving single frequently defendant trial ruling But the of the court long periods of shackled or detained voluntary finding jury on the by re- or confronted time and surrounded do fore- character of the confession not police more officers. At lays of five or independent examination which close the account was matched trial the defendant’s here____ duty to make If the it is our officers, many against testimony undisputed suggests that force evidence obviously incredulous to the some of it exact the confes- or coercion was used to construed the Supreme Court. The Court sion, judgment permit we will question as one stand____ ultimate of voluntariness conviction to settings inter- of law because the J.). Douglas, Similarly, in (opinion Id. rogations inherently coer- were secret Nebraska, 342 Gallegos v. cive, grave the Court had doubts because (1951), held: 96 L.Ed. 86 the Court transpired during these secret about what As this has been entrusted with proceedings, and because federal review power interpret apply our Consti- proceedings these would be frustrated on right protection of an tution appeal direct if the were one of process to federal due in state accused explanation fact. Hence Court’s trials, proper performance criminal Haynes Washington, both examine, in duty requires us to us, undisputed facts as cases before such York, and Stein v. New of a state court’s denial form basis 1077, 1091, L.Ed. contrary A rule would right____ coerced-confession ultimate deny to the Federal Government —both cases—that “this Court cannot allow itself authority to redress a violation of consti- completely to be bound state court de- courts also are rights. As state

tutional any issue deci- termination of essential to applying constitutional charged with right, sion of a claim of federal else federal process, recognition of due standards appraise law could be frustrated distorted fact superior opportunity to of their finding.”7 testimony, give we deference conflicting Dowd, juror preconceived set aside tence of view of Irvin v. See also (compe- guilt defendant's a mixed of law and L.Ed.2d question opinions ported in cases that the ultimate Supreme Court’s White The 530, 1032, Texas, 84 310 U.S. 60 S.Ct. a v. the voluntariness of confession is one of Texas, (1940), 1342 and 316 L.Ed. Ward appeal Supreme law. On direсt 1139, 547, 62 86 L.Ed. 1663 U.S. Court this determination was to be exemplars point. State undisputed made on the basis of the histori- they in conceded that officers both cases cal facts. The Court characterized the ulti- “night trips defendant on to had taken the police mate issue as one of law the because woods,” road,” White, “out off of the interrogations at issue were conducted in 533, 1033, “by 310 at 60 S.Ct. at U.S. secret, settings, coercive and because fed- towns,” Ward, night day strange and proceedings over these eral review would 555, They 1143. 316 U.S. at 62 S.Ct. at appeal on be defeated direct were the ulti- however, contested, happened what on mate issue one of fact. strange “night trips.” The defend- these “beaten, they ants contended that were Corpus B. Habeas Review burned,” Ward, 316 U.S. at

whipped and Supreme In 1953 Court examined the 551, 1141, and 62 S.Ct. at “handcuffed” first coerced-confession claim to reach the White, 532, “whipped,” 310 U.S. at 60 S.Ct. corpus. Allen, in Court habeas Brown v. 1033, subject physical and otherwise 443, 397, 97 L.Ed. officers, 469 interrogating in con- abuse. The (1953).8 In trast, what now standard fare to any mistreatment, avowing denied corpus, students of habeas instead that the defendants felt a new Court held peace night journeys scope after these in sense of Brown Allen of review willingly and confessed. The officer’s tes- corpus of the federal courts in habeas ex- timony in v. Texas is illustrative: Supreme Ward ceeds that of the Court on direct “ get him just ‘We talked to that state- appeal. direct-appeal While the doctrine Yes, sir, just talked him ment. we sweet Supreme limits the Court’s review to the ” of it.’ 316 U.S. at 62 S.Ct. at out record, undisputed facts of the 1867 Habe- The dis- 1142. Texas courts resolved the Corpus power every Act9 in creates the in puted testimony favor of the officers and readjudicate case to issues of historical fact purported to “find” the confessions volun- decided the state courts. 344 U.S. at tary. prevent gross miscarriag- In order to 457-64, Reed, (opinion at 407-11 justice, es of Court held while J.). Moreover, held, Court certain findings of state historical fact were bind- circumstances the federal courts were ob- appeal, direсt on ultimate issue of anew, liged questions to consider factual voluntariness is one of law. particular when the state courts failed to give “fair summary, 1953the consideration to issues and evidence,” expressly eighteen held in re- had at least the offered id. at 73 S.Ct. at fact); Lonberger, Marshall v. 103 of fact or law. In the case of volun- (1983) (voluntari- confessions, tary 74 those considerations were that law). secret, guilty plea interrogations ness of a were conducted in inherently atmospheres, raising grave coercive course, point Court overstated its Of questions transpired during about what these circumstances, Haynes and Stein. In some proceedings. Court feared time finding dispositive an ultimate issue state again right federal would claims be right E.g., claim of federal is treated as a fact. — defeated were the -, issue classified as one of'fact. Spain, Rushen v. curiam) (jury (per 267 78 L.Ed.2d Allen Brown v. involved three consolidated Ill, bias); Maggio Fulford, petitions challenging jury habeas methods of 2261, 2262-64, (1983) (per cu- equal protection grounds. pe- selection on trial); riam) (competence to stand Pullman- cf. challenged titioner in Brown itself also 273, 287-88, ad- Swint, Standard v. allegedly mission of coerced confession. 344 (1982) (feder- U.S. at 73 S.Ct. at 416-17. discriminatory finding of intent al district court fact). analyzed issue must treated as Each eye policies § of Feb. ch. Stat. 9. Act independently with an to classification as 385-86. relevant considerations should, in the accept facts as found Reed, J.), “a and when vital (opinion of [they] ascertain- need not.” process hearing. But found flaw be [state] by the state courts. at 760. ing” the facts U.S. at (opinion of 73 S.Ct. at the Townsend stan- Congress codified the Brown However, Frankfurter, J.). 1966 amend- change little dards with held, of mixed law conclusions Corpus Act. Habeas ments to the corpus binding in habeas are never fact § (1982); op., see 2254(d)(l)-(8) Maj. U.S.C. proceedings: at 1461 n. 7. The 1966 amendments re- histori- the ascertainment Where the exception applicable when tained dispose of the claim not cal facts does fairly “is not factual determination state legal interpretation of the for but calls by the recоrd.” 28 U.S.C. supported facts, the Dis- of such ... significance § (1982). falling 2254(d)(8) In cases not judg- Judge must exercise his own trict added, exceptions, Congress within these their of facts and on this blend ment fact “shall be findings of historical state Thus, ques- mixed legal so-called values. correct.” 28 U.S.C. presumed to be application of constitutional tions or the § (1982). 2254(d) as found leave the principles to the facts federal adjudication with the duty of v. the 1966 Neither Townsend Sain nor judge. Act, Corpus to the Habeas amendments 507, (opinion Frank- at 446 Id. at 73 S.Ct. however, doc- Court’s altered furter, J.). review Court’s sitting in habe- that the federal courts trine in Brown —a claim coerced-eonfession plenary review proceedings exercise as plena- fact —was question of law and mixed ques- in mixed legal ultimate issue over the 474-76, 73 at 416-17 ry. 344 U.S. and fact. The Townsend tions of law Reed, J.). (opinion of Court held: and “vital flaw” The “fair consideration” mean to refer By “issues of fact” we of Brown v. Allen soon proved standards basic, primary, termed or to what are In an bedevilling courts.10 to the district “in the sense of a historical facts: facts guidance on the afford additional effort to the credi- recital of external events and the district courts were question whether narrators____” Brown v. bility of their obliged relitigate issues of historical 397, Allen, 443, 506 344 U.S. [73 Townsend v. fact, Court 446, [(1953)] (opinion of 97 L.Ed. 469] Sain, 293, 745, L.Ed.2d 83 S.Ct. 9 372 U.S. Frankfurter). Mr. So-called Justice (1963), refined the rules of Brown v. 770 law, questions mixed of fact amorphous “fair con- Allen. In lieu of legal require application of a stan- and “vital flaw” standards sideration” determinations, dard to the historical-fact Brown, arguably six the Court substituted in this sense. are not facts In the event that a clearer standards.11 6,n. n. 6. 372 U.S. at 309 83 S.Ct. 755 required mandatory hearing is not under May held, recently As as of 1984 the Court reaf- standards, Townsend Court these that, ordinarily the ultimate issue “may, and firmed courts the district 293, Sain, dispute & n. factual were not re- U.S. 310 merits of the 372 See Townsend v. 8, 745, 8, (2) hearing; & n. 9L.Ed.2d 770 755-56 solved in the state the state factu- 83 S.Ct. opin- (1963) ("It apparent that the fairly supported by has become al determination is not Allen, provide supra, whole; do not (3) Brown v. fact-finding ions in proce- as a record hearing problem aspects of the for all answers employed by the state court not dure courts, which have federal the lower (4) hearing; adequate to afford a full fair divergent, widely in fact irrecon- often reached allegation newly there is a substantial dis- cilable, results"). evidence; (5) the facts were covered material developed adequately at the state-court 313, 83 S.Ct. at 757: U.S. at 11. See 372 hearing; any appears it reason grant an court must that a federal We hold evidentiary of fact did not afford the habeas the state trier hearing applicant un- to a habeas hearing. applicant a full and fair fact following circumstances: If der the

1477 attention, sub- and fact is not Court’s Court evinced mount- question of law mixed of correctness of presumption po- over the ject concern circumstances of v. Wash- 2254(d). Strickland interrogations section lice conducted closed-door — U.S.-, 2052, 2070, 104 S.Ct. ington, 1966, year Between sessions. 1953 and v. (1984); see Marshall L.Ed.2d 674 Arizona, 80 v. 436, Miranda 384 U.S. 843, Lonberger, 459 U.S. 103 S.Ct. 16 L.Ed.2d 694 the Su- Mata, (1983); Sumner v. 74 L.Ed.2d preme addressed no less than nine- 102 S.Ct. During teen claims. coerced-confession (1982)(per curiam); Cuyler L.Ed.2d 480 period Court reaffirmed that a Sullivan, 335, 342, v. may by psychologi- confession be extracted Brewer 1708, 1714, (1980); 64 L.Ed.2d ploys surely physical as cal abuse. Williams, 387, 403-04, Alabama, 199, 206, Blackburn (I960);12 L.Ed.2d Denno, see Jackson v. 389- did the recede hold- Nor from its 1774, 1787-88, 12 ings that the voluntariness a confession York, (1964); Spano New a mixed of law fact. is such below, I thirty note in over As decisions (1959) (as “the used to methods extract Brown v. opinions in filed between the sophisticated, confessions more [become] Mata, v. Allen Sumner and the duty our to enforce federal constitutional emphatically Court reaffirmed that volun- protections only does not It cease. be- tary-confession determinations are mixed comes more difficult of because the more questions of law and fact. made.”). judgments delicate to be In all Thus, evolving the re- cases, held, standards for the such the Court the stan- of corpus view historical facts habeas dard for voluntariness is whether the con- proceedings voluntary- had no effect on the product fession is “the a rationаl of intel- Blackburn, doctrine, confession doctrine. That the free lect and a will.” 361 U.S. question ultimate the 208, of voluntariness of a S.Ct. at In the 80 280. case of law, applied equal- confession is an of coercion, issue psychological Court’s assess- appeals direct ly corpus. and habeas ment of voluntariness included considera- intensity potential tion of the and for de- Claims C. Coerced-Confession from ceipt any psychological pressure of em- Brown v. Allen Mincey v. Arizona 13in ployed addition to the defendant’s sus- increasing ceptibility pressure, of coerced-confes- to such as As numbers measured pressed education,15 by maturity,14 claims sion the individual’s children); loss The tors threaten defendant with of 12. Court in Blackburn v. Alabama held: York, 315, 321-24, Florida, Spano v. New 360 U.S. 79 [60 Since Chambers v. 309 U.S. 227 1202, 1206-08, 472, (1940) ], (po- S.Ct. 3 L.Ed.2d 1265 84 L.Ed. this 716] [ S.Ct. officer, a recognized lice ant, “childhood that coercion can be mental as friend” defend- has falsely physical, job jeopardy stated was in well blood of un- only confessed); Denno, Leyra hallmark is not the of an uncon- less defendant v. accused 347 559-61, 716, 556, 718-19, inquisition. A number cases stitutional of 74 S.Ct. 98 L.Ed. demonstrated, (use if were have needed, demonstration psychiatrist). 948 efficiency of the that the rack and matched, given proper can thumbscrew subject, by be 14. See Gallegos Colorado, 49, 54, v. 370 U.S. 82 "per- sophisticated more modes of 1209, 1212, (1962); Payne S.Ct. 8 L.Ed.2d 325 v. interrogation prolonged A an suasion.” 560, Arkansas, 567, 844, 849, 356 U.S. 78 S.Ct. 2 rights ignorant of his who accused who is Ohio, (1958); 596, Haley L.Ed.2d 975 v. 332 U.S. support the moral has been cut off from 92 L.Ed. 224 infrequently is not and relatives friends technique of terror. effective 206, (footnote omit- at 279 U.S. at 361 Texas, 15. See Clewis v. 707, 712, 386 U.S. ted). (1967); S.Ct. 18 L.Ed.2d 423 Davis v. Illinois, 534, Carolina, 528, 1761, Lynumn 13. See North 384 U.S. 1764, (1963) (investiga- (1966); L.Ed.2d Harris v. South intelligence,16 rights. men- experience,17 physical eral constitutional For the upon condition.18 tal state involuntariness question never process the due turns can cases the each of these affirmatively than established other the ultimate determi- reaffirmed that inference; is, circumstantially is a mixed nation of voluntariness —that competent and it the trier of cannot be of law and fact. Justice Frankfurter’s en- preclude simply by fact to our review cyclopedicopinion in Culombe v. Connecti- cut, declining to draw inferences which example, clearly compel. distin- historical facts underlying guished between historical Id. at facts and the ultimate determination of vol- Reaffirmations the rule that the ulti- untariness: question of mate one of voluntariness is whether, in inquiry particular appear every law during case decided case, voluntarily or in- confession period. Pate, Reck E.g., involves, least, voluntarily at the made (1961): 6 L.Ed.2d 948 First, three-phased process. there is the whether there has been a finding business of the crude historical violation of the Due facts, external, Process Clause “phenomenological” the Fourteenth Amendment the intro- surrounding occurrences and events Second, concept involuntary confession. because the duction of an confession is is one “voluntariness” ‍​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​​‌‌‌‌‌​‌​​‌‌‌​‌​​​‌​​‌‌​​​​‌‍which concerns responsibility one which it is ultimate state, imaginative a mental there of this Court to determine. recreation, inferential, largely of inter- 1543; Id. at 81 S.Ct. at see also nal, Third, “psychological” fact. there is Haynes Washington, application psychological to this fact (1963): judgment of standards for informed foreclosed, Our is in way conclusion no larger conceptions the legal ordinarily contends, by as the State the fact which, characterized of as rules law but judge the state jury may trial or the have also, from, comprehend both induction reached a different result on this issue. of, anticipation factual circumstanc- It es. is well settled that of duty the con- adjudication resting stitutional upon this 603, (opinion 367 U.S. at 81 at 1879 S.Ct. requires question that the whether Frankfurter, J.). The first of these deter- the Due Process Clause of Four- minations, held, the the Court is one of histori- teenth However, Amendment has fact. been violated cal Id. the Court reiterat- ed, phases the admission second and third into evidence of a con- are conclu- coerced 604-05, subject of law. sions Id. at 81 fession be the of an independent S.Ct. at 1880-81. Justice amply ...; Frankfurter made determination here “we cannot es- classifying clear the reason for these deter- cape responsibility the making our minations as conclusions: own record,” examination of Spano the scope No York, 315, more restricted v. review New 360 U.S. 316 S.Ct. [79 adequately protect 1202, would suffice 1203, fed- L.Ed.2d 3 1265] [ ]. Carolina, 70, 68, 1354, 1355, York, 156, 185-86, 1077, 338 U.S. 69 S.Ct. 93 New 346 U.S. 73 S.Ct. (1949). 1093-94, L.Ed. 1815 (1953); 97 L.Ed. 1522 Lisenba v. Cali- 219, fornia, 280, 314 U.S. 62 S.Ct. 288- Connecticut, 568, See 16. Culombe v. 367 U.S. 89, (1941). 86 L.Ed. 166 620, 1888, 1860, (1961); 6 L.Ed.2d 1037 433, 441, 1541, Pate, v. 367 81 Reck S.Ct. Sain, 18. 293, 307-09, See Townsend v. 372 U.S. 1546, Alabama, (1961); 6 v. L.Ed.2d 948 Fikes 745, 754-55, (truth 9 L.Ed.2d 770 191, 193, 281, 282, 352 1 L.Ed.2d serum); Texas, Clewis 386 U.S. 87 (1957). 246 1338, 1341, (1967). S.Ct. 18 L.Ed.2d 423 Arizona, See Thomas v. 356 (1958); L.Ed.2d Stein v. (cid:127) (emphasis (1960)], 83 S.Ct. at his Id. convictioncannot stand. In [ determination, original). making this critical we Supreme are not bound the Arizona concern for Supreme Court’s the holding Court’s the statements police interrogation conduct of secret Instead, voluntary. were this Court is acuity reached a new level of with the duty independent under a to make an incorporation privilege the Court’s evaluation the record. against self-incrimination as an element of process applicable due Id. at (emphasis states S.Ct. at 2416 add- ed). through majority the fourteenth amendment. Mal now reasons that Min- 1, 6-11, Arizona, cey v. and each loy Hogan, direct-ap- 378 U.S. of its peal predecessors, now That overruled. concern, turn, led to the Court’s well- important It is to understand the reason known decisions Massiah v. United for this conclusion and significance States, 12 its ramifications. the majority As properly (1964), L.Ed.2d 246 Escobedo Illi notes, there is no distinction between the nois, definition of purposes “fact” for of direct (1964) pressing the sixth appeal and corpus. Maj. habeas op., — right amendment to counsel into service to 1463 n. 12. Had the voluntariness of Min- protect privilege against self-incrimina cey’s confession question been an ultimate adversary judicial tion after the onset of fact, Court would have proceedings, and before their onset only asked whether the Arizona courts had circumstances defined in Escobedo 1 9 —and applied proper legal standard —wheth- Arizona, Miranda v. er, totality under the circumstances, requiring the defendant’s will was overborne—in warnings recitation of after the onset of finding this fact. In Mincey there was no interrogation privi custodial to enforce the dispute Arizona courts had indeed lege against self-incrimination. applied proper legal standard. If the question of voluntariness were one of ulti- The advent of these enforcing decisions fact, therefore, mate newly incorporated privilege against simply- affirmed, would have noting that self-incrimination, however, did change proper legal standard applied. had been Court’s solicitude scrutiny Instead, holding that the ultimate of confessions exacted coercion. law, of voluntariness is one of the Court again 1978 the Court affirmed that reversed, concluding as a matter of law ultimate of the voluntariness of a that the involuntarily confession was made. confession is one of Mincey law. v. Arizo- reasons, majority Thus the with commend- na, 385, 2408, 437 U.S. 98 S.Ct. 57 L.Ed.2d candor, able that Mincey is overruled. (1978): 290 Similarly, majority the concludes that the If, therefore, Mincey’sstatements to De “ direct-appeal decisions, entire line of and t product ective Hust were not ‘the of a ” the direct-appeal doctrine itself in confes- will,’ rational and a free intellect Town cases, sion have been reversed sub silentio. Sain, 293, send v. 372 U.S. 307 S.Ct. [83 [(1963)], 9 quot L.Ed.2d The ramifications of holding 770] this are of Alabama, Blackburn v. highest 361 the U.S. order. In majority’s view, the 199, 274,280, 4 208 L.Ed.2d Supreme the Court itself is [80 barred on 242] direct 490-91, requested 19. See 378 U.S. at has opportunity 84 S.Ct. at and been denied 1765: hold, therefore, where, here, lawyer, police to consult with his We that and the the have investigation longer general inquiry effectively a is no not warned him of his absolute begun silent, into an unsolved crime but has right to focus constitutional to remain the ac- particular suspect, suspect on a has been cused has been denied "the Assistance of custody, police carry taken into out Counsel” in violation of the Sixth Amendment interrogations process a that itself lends statements, incriminating eliciting suspect 1480 the defendant had received Mi- independent proceeding, deter- making an

appeal from indeed, randa warnings; of a confes- he had also vol- mination of the function, majority’s in the again and That a confession with the advice sion. unteered only in view, federal courts Hutto, open is presence 429 U.S. of counsel. сourt corpus, only when a state habeas 29, giving Despite 97 at 203. fairly sup- is not “finding” of voluntariness Miranda warnings presence and the Thus, all record as a whole. ported counsel, the Court characterized the volun- scrutiny over confes- independent federal ultimate tariness of the confession as an appeal to the Su- direct sions —both on did particular, of law. In the Court issue corpus preme and in habeas Court —would 2254(d) apply section to the issue n precisely gravely impaired. It is presence The of counsel voluntariness. has Supreme Court this reason that of Miranda warnings were sim- giving question of vol- that the ultimate reiterated in ply factors for consideration the determi- question of fact and untariness is a mixed v. See Davis of voluntariness. -hation judgment precisely this law. And it is Carolina, 384 U.S. 737, 740-41, North 86 today majority Supreme Court that (1966). 16 L.Ed.2d 895 maintains has been overruled. Miranda worked theory that a doc- up- majority’s conclusion upheaval Supreme jurispru- trinal Court jurisprudence was heaval in Court may grist dence have been for an advo- the work of Miranda is erroneous. Per- not, cate’s brief Hutto Mincey. It haps simple point it is out that too however, theory open to us as inferior Mincey Arizona v. decided Court by Supreme federal court bound 1978, years after the deci- twelve Court’s precedent. And it seems at least relevant all, Mincey, in Miranda. In after sion eight rejected Federal Circuits have warnings given;20 Miranda were not it Miranda theory altered the Su- on Mi- rely sophism would be a indeed to voluntary-confession preme Court’s doc- randa as a foundation for doctrinal change addressing trine. Each of these courts when Miranda itself is violated. But there Ross, post-Miranda events has held that the ulti- v. is no such distinction Hutto 429 28, 202, mate voluntariness of U.S. 97 S.Ct. 50 L.Ed.2d 194 Hutto, curiam).21 is a (per confession one of law.22 corpus a habeas Mincey any sugges- 20. Arizona conceded the voluntariness is one of law without officials in Mi- that, afforded, sought warnings randa violation and to use the defend- tion had Miranda been analyzed solely impeachment, a ant’s confession use issue would have been as one of 222, York, permitted Harris v. New fact. 643, Mincey, 1 28 L.Ed.2d See Castaneda-Castaneda, S.Ct. at v. 98 2416-17. United States 729 1360, (11th Cir.1984); F.2d 1362-63 Williams v. 1387, (5th Maggio, post-Miranda 727 F.2d 11-12 21. All other cases de- 1390 & nn. confession Cir.1984); Duckworth, involved events Holleman v. F.2d cided cert, - 391, -, (7th Cir.), denied, antedating Lego the Miranda decision. v. 116, (1983); Twomey, 404 U.S. 30 L.Ed.2d United Robinson, (1972); (D.C.Cir. Atchley, Procunier States v. 698 F.2d 1983); (1971); Tingle, United States 658 F.2d Frazier (9th Cir.1981); Estelle, Cupp, 1333-36 Jurek v. F.2d cert, Holman, (5th (1969); 1980) (in banc), Boulden v. 934-36 Cir. de 1001, 1138, (1969); nied, 1709, 22 L.Ed.2d Darwin v. 450 U.S. 101 S.Ct. 433 S.Ct. 68 L.Ed.2d 346, 1488, (1981); 1158, Connecticut, Maryland, 20 203 Miller v. 391 U.S. 88 S.Ct. 577 F.2d curiam); (4th Cir.1978); Brown, (per v. Greenwald 1159 United States v. 557 L.Ed.2d 630 519, 1152, 541, Wisconsin, (6th Cir.1977). 20 U.S. 88 S.Ct. F.2d 549-54 The First Cir 390 curiam); (per recently v. Ala- cuit has 77 Beecher also held that the determina L.Ed.2d bama, 189, 35, subject S.Ct. L.Ed.2d 35 tion of voluntariness is not 389 U.S. 88 19 to section Texas, curiam); 2254(d), (1967) (per Clewis v. 386 U.S. but has not addressed the issue for 1338, 707, (1967); Hall, arising events 18 L.Ed.2d 423 Davis after Miranda. Johnson v. 87 S.Ct. 737, 1761, 577, Carolina, (1st Cir.1979). Nothing U.S. 86 S.Ct. 16 605 F.2d 581-83 v. North 384 decision, however, (1966). suggests the First In each of these cases Circuit’s L.Ed.2d 895 analysis change question post- that the ultimate of that court’s would for Court affirmed

1481 Court decisions overruled sub silen- holding preme sends the majority’s Finally, the Supreme tio century almost half a of Court enforcement officers. signal to law wrong voluntary These precedent on confessions. a Miranda waiver and message Its —obtain purport. cases had no such “sophisticated modes of employ only then ” Blackburn, 206, ‘persuasion,’ 361 U.S. at decisions, Marshall v. The first of these 80 at 279—renders the court’s reli- 422, 843, Lonberger, 459 U.S. 103 S.Ct. 74 of Miranda sophis- prophylaxis ance on the L.Ed.2d 646 examined voluntari- tical and offensive. guilty. plea ness of a of The held: Court summarize, recently as 1978 the To entirely agree what it had held

Supreme Court confirmed We with Court of Appeals gov- A for the that fifty prior occasions. confes- Sixth Court on some erning plea as to whether a of voluntary product if it is the of a standard sion is guilty voluntary purposes is of The ulti- will and a rational intellect. free question federal Constitution is a of fed- of a question of the voluntariness mate eral law.....and not a of fact one of law. While the histori- confession is subject requirements of 28 U.S.C. surrounding making cal circumstances § 2254(d). questions But the of histori- subject are to the strictures of a confession dogged cal fact which have this case 2254(d), the conclusion of volun- of section inception from its the Illinois presence The or absence of tariness is not. —what respect respon- with records show Miranda warnings simply one factor for is guilty plea, dent’s what 1972 other infer- totality the circum- under the of evaluation regarding ences those historical facts the stances. Appeals of Court the Sixth Circuit draw, properly ques- could and related Opinions D. Recent Court obviously questions tions —are of “fact” considerations,” “Very weighty § 2254(d). governed provisions held, principle “underlie the that Court has 849. Marshall obviously un- past lightly courts should not overrule deci- any suggestion dermines the Court Lines, Moragne v. Marine States sions.” from its view had receded that the ultimate Inc., 398 U.S. question of the voluntariness of a confes- 26 L.Ed.2d 339 sure, sion is one of law. To be the Court practice does not make it a to overrule regarding noted that “inferences those his- long standing doctrines of without a rea- governed by torical facts” section judgment. See explanation soned of its 2254(d). guilty But the of a Richardson, Ins. Foremost Co. 457 held, plea, expressly not such 668, 672-77, 2654, 2657-60, 73 an inference. (1982); United v. Reli- States L.Ed.2d 300 Co., 401-11, Moreover, able policies 421 95 that moved the Transfer 1708, 1710-16, (1975); Supreme L.Ed.2d 251 Court to characterize the volun- Markets, Boys Inc. v. Retail Clerks Un- tariness of a confession as ultimate is- ion, plea sue law are absent in the case (1970); Moragne, 1586-94, guilty. Court has never reasoned superficially 90 S.Ct. at 1789-90. “voluntariness” of a practice notwithstanding, concerns a This settled confession “state of mind” and majority today that three recent all issues of “state of mind” holds Su- could be presumed

Miranda events. See also United States v. Bien sues of fact to have been found in venue, (1st Cir.1980) (issue F.2d with conformance conclusion when basis cert, post-Miranda, analyzed denied, specified), as one of law for non for state decision not interrogation). custodial (1978); Castleberry Alford, Smith,. (2d 666 F.2d Alexander v. 582 F.2d Cf. cert, (10th Cir.1982) (issue denied, may pure ques- (issue fact), Cir.) law, fact, (1978); pure question Lyle Wyrick, tion of mixed fact). (8th Cir.1977) (subsidiary law and is- 565 F.2d Missouri, Drope v. 174-75 & priori as either “fact” or “le- classified a n. legal characteriza- 905-06 & Our n. gal conclusion.” entry a The Court de- of deeper truths. Like tions hаve L.Ed.2d however, of a confession com- guilty plea, scribes the voluntariness the defendant’s open confessions are adjudicated a issue because in petence to stand trial is interrogation generally police of Pate product hearing, competence court after and inher- proceedings in closed conducted Robinson, settings. The truth is diffi- ently coercive (1966). The 15 L.Ed.2d 815 proceedings; penetrate these cult proceed- trial court witnesses all of these shielding claims of prevent the of order to credibility findings; ings renders coun- right appeal direct to the Su- federal right is generally present unless that sel is Court, retained a measure preme the Court waived; stenographic pre- and a record is independent inferences power to draw of purpose appellate review. pared for the But no historical facts of record. from the requiring of inde- policies a measure during the present are such circumstances scrutiny pendent federal over confessions pleas guilty plea. These allocution of during police interrogation obtained secret open prescribed court under con- entered apply with far less force to the determina- ditions with the of counsel and with benefit competence of a witness to tion of the stenographic a full record of the allocution. stand trial made after a Pate hearing. Nothing inher- could be further from the parte holds that the effect of ex Rushen ently setting coercive of secret inter- impartiality of a communications on rogation. independent Thus the need juror subject is a of fact to section federal review of the voluntariness 2254(d). This unremarkable conclusion guilty pleas is less acute than that wholly voluntary-con- consistent with during police confessions obtained interro- parte ex Although such fession doctrine. Supreme gation. yet And Court place communications take outside of do Marshall reaffirmed that the voluntariness court, presence they of the trial do open guilty plea of even a entered in cоurt inherently setting occur coercive is a mixed of law and fact. If and, police interrogation importantly, more Lonberger speaks Marshall at all to implicate danger do not of self-incrimi- confessions, voluntary it counsels more in- nation the defendant. The need for strongly than ever that the voluntariness dependent scrutiny impact federal of a confession is an ultimate issue of law. parte ex jury communication on the is far remaining two cases on which the appropriate more attenuated than that — Spain, relies— Rushen v. majority the confession of a defendant offered at -, 78 L.Ed.2d 267 Rush- drawing trial. In this conclusion curiam), Maggio Fulford, (per en nowhere even alluded vol- untary-confession doctrine. curiam) (per do not affect the —also Marshall, short, suggestion voluntary-confession doctrine. Both of Maggio, and Rushen overruled the volun- per summary cases are curiam rever these tary-confession doctrine sub silentio is sim- briefing argument; sals decided without ply ludicrous. That doctrine retains the least, extraordinary, say it would be vitality enjoyed it fifty has for almost per if the intended two years. may prerogative It of a summary dispositions to overrule a curiam majority Court “to over- century half Court doctrine. silentio, rule, sub century prece- they of course do not. Neither case But dents,” put James v. as Justice Roberts it. of a confes addresses the Co., Dravo Contracting Maggio arguably that a de holds sion. (1937) (Rob- L.Ed. competence to stand trial is an fendant’s erts, J., not, 2254(d), however, subject dissenting). to section It is of fact issue holding notwithstanding contrary power of within the of this court. We under- judiciary as a 22 “public supra. mine the faith Patterson makes no effort to impersonal judg- and reasoned source of reconcile its conclusion aspect with this ments,” Moragne, 398 U.S. Supreme holding Court’s in Edwards. 1789, by abandoning longstand- such a majority suggests that Patterson’s ing judicial practice patently on so baseless reading of the “trend” of Supreme recent ground. holding The court’s raises the Court decisions has by been reinforced respecting gravest questions adherence to —Yount, -, Court in Patton principle of stare decisis and concern- (1984). appropriate role of an inferior fed- Quite contrary, Patton directs the deeming weighty eral tribunal so a Su- opposite conclusion. In Patton the Court preme by Court doctrine so overthrown held that the single juror bias of a is an meager a force. — ——, issue fact. atU.S. 104 S.Ct. at Cuyler To the extent that Patterson v. Supreme 2890-2893. The Court arrived at Marshall, Maggio, reasoned only that conclusion assessing after voluntary-confession Rushen overruled the categorization relevant reasons for doctrine, incorrectly. it reasoned Patter- question issue as a of fact or law. The however, holding, merely ’s son is that the Court held: voluntariness of Miranda waiver is an good There are reasons such, apply issue to of fact.23 not con- As it would statutory presumption trol our decision here even if the of correctness to had been silent on the trial the issue of volun- court’s resolution of ques- these tary waivers, First, confessions. Miranda tions. the determination has been course, generally obtained closed only made after an often extended voir proceedings. similarity But there the to proceeding designed dire specifically to confessions ends. A Miranda waiver is identify veniremen. It is fair biased rather, inculpatory; agreement not it anis assume that the method we have relied questioning to accede to permis- until the on since the beginning usually ... identi- Arizona, is withdrawn. Edwards sion Second, fies bias. the determination is 477, 484-85, 451 U.S. 1884- essentially one credibility, and there- (1981). 68 L.Ed.2d policies largely fore one of demeanor. As we requiring independent federal review of occasions, have said on numerous during police confessions exacted interro- trial court’s resolution questions of such gation apply equal do not with force to a entitled, appeal, “spe- even on direct permission begin mere questioning. respect paid cial deference.” ... The matter, practical And as a Miranda waiv- findings such in a proceeding habeas cer- generally by ers are signed evinced writ- tainly should be no less. ings. When a Miranda waiver is effected — at-, 104 S.Ct. at 2892. writing such a but a defendant’s policies unilateral These police, statement to the do not and Edwards never have validity holds that the applied of the waiver to an is a assessment of the voluntari- question mixed of law and fact. See note ness a confession. The task at hand is Zerbst, holding By Even this appears to be infirm. Johnson v. holding, places so Patterson this Circuit in con- L.Ed. 1461 Court also held —the Arizona, flict with Edwards v. 484-87, as a matter of law that on the historical facts presented, defendant’s statement "did not Edwards, appeal a direct to the Su- amount to a valid waiver.” U.S. at Court, Thus, preme validity does not treat the 101 S.Ct. at of a 1885-86. Edwards treats the validity Although ultimate Miranda waiver as a of fact. of a Miranda waiver as a conclusion of applied law. Arizona Court in Edwards assessing an erroneous standard for volun- Unfortunately, Patterson does not cite or dis- applied tariness —the court the fourth amend- tinguish petition Edwards. Because no for re- Bustamonte, ment standard of Schneckloth v. filed, hearing panel opin- Patterson was consistency ion’s with Edwards has not been rather than the standard of addressed this Circuit. is an a confession that the voluntariness of individual’s assessment not an law. Rather, ultimate issue of issue is mind. present state proceeding, whether, past closed during a IV. This is overborne. will was an individual’s majority’s def- from the demeanor; Finally, I dissent it is not of not a determination the New “fact” that finding of his erence to a that defendant testifies the case that the purported made nor Jersey courts neither overborne, testify that officers the will was voluntary-confes- the Applying overborne, to make. the trial and was not his will doctrine, treated their those courts demeanor, sion court, finds assessing who their as one of law. of voluntariness conclusion The determination of telling truth. is under section premise for deference The drawing of in- requires the voluntariness 2254(d) finding is a state of fact there- and circumstanc- past events ferences from wanting. altogether fore events, of and Those circumstances es. “external, course, ‘pheno- are “facts”—the trial court made a number The state sur- and events menological’ occurrences example, fact. For findings of historical confession,” Frank- rounding as Justice “at that Miller had been the court observed Culombe, put it. furter almost two hours barracks about the inference whether at 1879. But during started questioning this before is an will was overborne the defendant’s testimony I time find from the The fact-finder is independent conclusion. Tr. interrogated this situation.” not about giving of the confes- present during the not 145; supra. note 1 The court treat- see is not heard. The defendant’s voice contrast, sion. voluntariness, in ed the issue of not seen. interrogators’ methods are “I think the interview as one of law. that reconstruct seeks instead to The fact-finder Boyce Detective meets the conducted develop- after the defendant’s mental state law,” the trial court requirements of our reviewing court is as ing a record. The Tr. at 146. “I don’t consider that held. drawing inference from the capable of that Boyce help made Detective the offers of Patton’s facts as is the trial court. cold they the will were such that ... overcame bias, holding concerning juror measured make this of the defendant which would dire, searching voir conse- court after a involuntary.” The court’s re- confession on whether quently sheds no illumination Puchalski, 45 liance on N.J. State the voluntariness of a confession obtained 100-01, 211 A.2d during interrogation inference of fact is an Bustamonte, 412 Schneckloth admonition to attend or law. And Patton’s 2041, 2045-48, 36 L.Ed.2d purposes by classification of served (1973), clearly the trial indicate an issue “fact” or “law” detracts from as regarded this determination as a le- court position. majority’s gal conclusion. characterizes a confession’s volun- Similarly, in reversal of its unanimous law as an ultimate tariness court, Jersey Appellate the trial the New po- federal review over custodial because conclu- Division held that the trial court’s if the interrogation lice would be frustrated Jersey one of sion was law. Under New pure question of fact. ultimate issue were law, findings of the trial courts are suffer, Thus, writing binding appeal they a clean on unless if were on even we concerning example, from a “manifest lack of inherent- slate, holding Mi- Patterson’s finding, compel ly support evidence to the same credible waivers would randa overlooking Signifi- obvious or under evalu- voluntary confessions. holding for an] [or ation of crucial evidence.” State v. John- policies circumstances cantly different son, A.2d 42 N.J. But of course we pertain to these issues. standard, Appel- Applying A half writing a clean slate. are not late Division sustained trial court’s century unwaivering findings judge fact. compels the conclusion of historical already precedent “[T]he held, findings “a found,” provides “in ade- determination after a the court hearing issue, by credible evidence on the merits of a factual supported quately Johnson, (State competent juris- N.J. made court of whole record State (1964)), that Miranda presumed shall be be correct” A.2d 809 diction ... timely in a man- warnings given exceptions were one of set forth in unless 413, 388 at 228. The 76 N.J. at A.2d ner.” section is established. 28 U.S.C. not, however, § apply did Appellate 2254(d) (1982). Division Because none appellate the State v. standard Johnson purported to state courts even treat to the trial court’s conclusion of review ultimate one Rather, reciting after voluntariness. fact, deferring there no basis law, Appel- the court’s conclusion of trial any such factual conclusion under section clearly per- that Division held “We are late 2254(d). Id. this of error in determination.”

suaded fashion, V. Jersey In like New treated the trial court’s conclusion as Court write,” “Nothing we that as Justice Ste- quarrel,” of have law. “We no one put it, “no vens has matter how well rea- held, court forcefully expressed, bring soned or can ____” expressed by the legal principles with tragedy the victim of this back. Appellate disagree, Division. We Williams, Brewer v. though, with evaluation of the tech- its 1232,1247, (1977) (Ste- niques by used the officer and tactics vens, J., concurring). tragic But the cir- defendant, questioned as well who [the] cumstances of the crime before us cannot its conclusion that defendant’s confes- respect our prin- diminish for constitutional invоluntary in the constitutional sion ciple. A conviction obtained a confes- sense. coercion, psycho- sion exacted whether logical physical, process. violates due N.J. at A.2d at 223. dis- Miller’s product confession was the of sent, majori- a discussion with which the by deceipt, trickery, will issue, overborne explic- ty did take was even more promises only if help of he would confess. scope review,” appellate “As to the of it. did, overwrought physical he in an Confess observed, dissenting opinion “since requiring state medical A attention. con- is of constitutional issue dimension is psychological fession extracted fact-law, these reviewing of mixed one court ploys from a of defendant unstable mental a sweeping conducts surveillance ‍​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​​‌‌‌‌‌​‌​​‌‌‌​‌​​​‌​​‌‌​​​​‌‍of the disposition maturity and childlike after an practically of de equivalent grilling squared intense cannot be with due novo redetermination.” 76 N.J. process. omitted). (footnote A.2d at 228 In the case “contested issues as to subordinate Rather responsibility than meet our witnesses,” involving credibility facts examine the voluntariness of Miller’s con- added, court bemay “deference accord- however, independently, majori- fession fact-findings any by the ed thereon trial ty this characterizes determination as a 1,n. Id. at 412 judge.” 388 A.2d 228 n. purports of “fact” and to defer to “findings” on findings, state this issue — Thus, course, Jersey judges made, all New eleven who that were never for the New Jersey faithfully reviewed this confession held that the de- courts adhered the Su- preme holding termination of the voluntariness Miller’s Court’s consistent disregard is one of law. voluntariness of a an issue of confession Yet confession conclusions, majority legal majority’s to- law. The is squarely of these decision day holding recharacterizes their as one of inconsistent with almost half century 2254(d) require precedent. Section does not Court “fact.” We have no ignore power we cavalierly conclusions treat so the reasoned fifty Supreme courts in this fashion. That section decisions of some state certainly have no warrant precedents; we they have been over- supposing that summary per silentio by two sub

ruled dispositions

curiam

addressing other issues. join judgment. I dissent.

I cannot GRUBB, Plaintiff-Appellee, H.

Charles

Cross-Appellant, HOSPITAL,

W.A. FOOTE MEMORIAL

INC., Michigan corporation, Defend-

ant-Appellant, Cross-Appellee.

Nos. 82-1888. Appeals,

United States Court of

Sixth Circuit.

Argued Jan. 1984. Aug.

Decided

Case Details

Case Name: Frank M. Miller, Jr. v. Peter J. Fenton, Superintendent, Rahway State Prison, Irwin I. Kimmelman, Attorney General, State of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 28, 1984

Citation: 741 F.2d 1456

Docket Number: 83-5530

Court Abbreviation: 3rd Cir.