*2 ROGERS, Circuit Judge.
Habeas corpus relief was properly de- nied in this case because William Garner validly waived his rights, not- withstanding expert testimony. in —based part on a test years administered six la- ter —to the effect that Garner mentally could not have sufficiently understood the scope of what protects.
burglarized Garner and set fire to an apartment in Cincinnati, Ohio, killing five
ARGUED: Kelly Schneider, L. Ohio children who he knew were sleeping inside. Public Office, Defender’s Columbus, Ohio, After he was arrested and advised of his for Benjamin Appellant. Mizer, C. Office rights, agreed to speak of the Attorney General, Ohio Columbus, officers and on tape confessed Ohio, for Appellee. ON BRIEF: Kelly L. to setting the fire. The confession was Schneider, Ohio Public Office, Defender’s admitted at trial and Garner was eventual- Columbus, Ohio, Kyle Timken, E. Law Of- ly on, convicted a jury among other fice, Columbus, Ohio, for Appellant. Ben- charges, five counts aggravated murder, jamin Mizer, C. Marshall, William P. Jona- and sentenced to death. The Ohio state than Fulkerson, R. Wille, Charles L. Office courts affirmed Garner’s convictions and Attorney Ohio General, Columbus, sentence on direct and review, collateral Ohio, Appellee. and Garner filed this § 28 U.S.C. action in federal court, district raising BOGGS, Before: Chief Judge; twenty-three grounds for relief. The dis- MARTIN, BATCHELDER, trict court denied Garner’s petition habeas DAUGHTREY, MOORE, COLE, CLAY, on all twenty-three grounds, and Garner GILMAN, GIBBONS, ROGERS, now raises grounds four on appeal, three SUTTON, McKEAGUE, GRIFFIN, of which relate to the Miranda waiver. Judges.* Circuit Because the record shows that Garner knowingly and intelligently waived his Mi- ROGERS, J., opinion delivered the before he confessed to his court, BOGGS, which C.J., crimes, and because Garner’s other claims BATCHELDER, GILMAN, GIBBONS, merit, lack Garner is not entitled to habeas SUTTON, McKEAGUE, GRIFFIN, relief. JJ., joined. DAUGHTREY, (pp. J. 271- 73), I. delivered a separate opinion concurring only. COLE, result (p. J. On January 25, 1992, Addie F. Mack 273), separate delivered a opinion visited a local hospital emergency room in concurring in part and dissenting in part. Cincinnati, Ohio for treatment. While in MOORE, (pp. 273-84), J. delivered a the hospital area, waiting Mack called her separate opinion, dissenting in which son to update status, on her and acci- CLAY, JJ., MARTIN and joined. dentally left her purse unattended * Judge part Cook took no the consideration or decision of this case. payment television set Mack’s accepted took Defendant telephone.
pay the cab fare. driv- keys, Mack’s removed purse and the address Using license, wallet. fire, er’s investigation of During the license, Garner driver’s on Mack’s listed on informa- Tolliver based located apartment a taxicab Mack’s directed had ob- *3 who by two officers provided tion ar- the taxicab When Knob Court. into a taxi- loading items a person served asked Garner apartment, at the rived shortly before apartment near Mack’s cab Tolliver, while to wait driver, J. Thomas told the Tolliver reported. the fire was Tol- provided inside. Garner went Garner at the up Garner picked he officers that for as collateral wallet room, with Mack’s liver to 1969 drove emergency hospital fare. the cab payment Court, while Gar- waited outside and Knob brought and apartment entered ner purse, in Mack’s found keys Using stat- taxicab. Tolliver to the items several noticed apartment and entered Garner to the thereafter, that, he drove Garner ed two and in one bedroom sleeping girls four Burnet then to 3250 store and convenience bedroom. in a second boys sleeping to Tolliver presented police After Avenue. years to thirteen from ten ranged children from surveil- generated photographs still girls woke point, At one one age. store, at the convenience taken lance video of water. glass Garner up and asked Gar- based on Garner Tolliver identified water, and the her provided with Garner also identified clothing. Tolliver ner’s time a short television girl watched that included arrays photo in two Garner car- sleep. Garner to going back before recov- officers and photograph, Garner’s to apartment from items ried several set. television Tolliver Mack’s from ered VCR, taxicab, television including provided information box” and a “boom Based on set, telephone, portable warrant Tolliver, a search to the obtained the items brought As he radio. res- Burnet Avenue Tolliver
taxicab,
to
and searched
explained
Garner
items
several
his
Officers recovered
items because
idence.
removing the
he was
descriptions given
fight.
during
that matched
him out”
“threw
girlfriend
VCR,
ra-
“boom box”
Tolliver, including a
Gar-
property,
removing the stolen
After
also
Officers
dio,
telephone.
portable
and
and set
apartment
to the
ner returned
keys
copies
Mack’s
recovered
upstairs
bedrooms
fires, two
three
Dur-
certificates.
birth
children’s
Mack’s
Al-
living room.
in the
on a couch
one
Garner
search,
arrested
officers
fires smoldered
upstairs
two
though the
him of his
and advised
out,
fire
the couch
eventually went
head-
to
transported
Garner
destroyed the contents
completely
again
he was
advised
quarters, where
apartment
entire
and filled the
living room
with a
presented
rights
his Miranda
child
Mack’s oldest
heavy smoke.
with
to
agreed waive
Garner
waiver form.
able
and was
during the fire
awoke
taped
provided
other
The five
through a window.
escape
events described
recounting the
statement
Upon
inhalation.
of smoke
died
children
above.
instructed
apartment, Garner
leaving the
statement,
admitted
Garner
taped
store,
In the
him to a convenience
to take
Tolliver
a taxi-
taking
purse and
finding Mack’s
pair
snacks.
purchased
where
the intent
apartment
to Mack’s
Bur-
cab
home at 3250
drove to Garner’s
then
that he
stated
things.” Garner
her
carry
“take
helped Garner
Tolliver
net Avenue.
apart-
in the
sleeping
children
noticed the
home
into Garner’s
items
the stolen
ment and
ner,
carrying
admitted
a number of
C-960995,
No.
(Ohio
were old enough escape. *4 petition for a writ of habeas corpus February 3, 1992,
On Garner was indict federal court, district raising twenty-three ed and charged with five counts of aggra grounds for relief. The district court ulti murder, vated each with three death pen mately denied all of Garner’s claims and alty specifications, one count of aggravated dismissed petition. court district burglary, two counts of aggravated arson, granted Garner a of appealabili certificate theft, one count of and one count of ty receiv (1) on three related claims: that Garner ing stolen property. pleaded Garner no did not knowingly and intelligently waive contest to the theft receipt-of-stolen- Miranda his before speaking property counts, and the (2) trial court found police; that Garner’s state trial counsel him guilty on those 1, counts. On October were ineffective for failing to investigate 1992, jury convicted Garner on the argue his claims; (3) remaining counts specifications. Fol the state trial court by erred lowing a sentencing hearing, the rec jury providing Garner with experts to assist ommended imposition of the death sen with his Miranda claim. After Garner tence. The state trial accepted court filed notice of appeal, this court issued jury’s recommendation and sentenced Gar him a certificate of appealability on a ner to death on the aggravated murder fourth claim: that the process by which counts and to consecutive impris terms of petit jury venire was selected discrimi onment on all other counts. nated against African-Americans. On direct court, review in state Garner II. twenty-three
raised
assignments of error.
The Ohio
Appeals
Court of
and Ohio Su
A. [1] The record indicates that Garner
preme Court both affirmed Garner’s con
The record indicates that Garner
sentence,
victions and
Garner,
v.
State
No.
knowingly and intelligently waived his Mi
C-920864,
(Ohio
1994 WL
Ct.App.
466508
randa rights, and Garner is therefore not
Aug.31, 1994);
Garner,
State v.
74 Ohio
entitled to habeas relief on his 49,
St.3d
656
(1995),
N.E.2d 623
and the
claim. Notwithstanding Garner’s failure
United States Supreme Court denied cer
to exhaust this claim in the
courts,
state
28
tiorari,
Ohio,
Garner v.
1147,
517 U.S.
116
§
U.S.C. 2254 permits us
deny
appli
his
S.Ct.
WL 21, 1997) *3 July Cir. cates that they did not—the ques- officers (holding that waiver was and in- tioning Garner had way no to discern the telligent where defendant “understood ev- misunderstanding in Garner’s mind. This else that erything going throughout on is of primary significance given the origi- day” up made story “clever nal purpose underlying the Miranda deci- framed”). he was Accordingly, sion, all evi- which was to “reduce the likelihood dence in the record of Garner’s conduct suspects would fall victim to con- during, to, up leading the interroga- stitutionally impermissible practices po- tion indicates that Garner had the capacity lice interrogation.” New York Quarles, to waive his knowingly 649, 656, 467 U.S. 2626, 104 S.Ct.
and intelligently. (1984). L.Ed.2d 550 As the Seventh Cir- cuit explained in a thoughtful opinion:
It follows from
that,
the above
at The relevant constitutional principles
time of the interrogation, police officers
are aimed not at protecting people
from
no indication that
“age,
expe-
themselves but at curbing
rience,
prac-
abusive
education, background, and intelli-
tices
public officers....
gence”
[T]he knowl-
may
prevented
have
him from un-
edge of
is vital.
they
If
derstanding the
Miranda warnings. See
(there
no reason
was none in
C.,
[Colorado
Fare v. Michael
U.S.
Connelly,
v.]
see
[157,
479 U.S.
161-62,
S.Ct.
263 however, in the record of Gar- Burbine, evidence 106 475 U.S. Moran education, back- (1986), age, experience, ner’s which L.Ed.2d S.Ct. does not mandate intelligence inquiry- ground, that the explained that, from his even viewed conclusion voluntariness dimensions: two had not un- Garner could perspective, S.Ct. internal U.S. comprehension. At the the warnings. Court derstand Supreme did the point At no waiver, was nineteen to be time of the dimensions is the two
say that one of he had undisputed It po- age. of years perspective from the examined education, poor upbringing, from a troubled is to be examined the other while lice him in the “bor- IQ placed inquiry. that his of 76 scientific of later perspective Testimony intelligence.” range of from derline Instead, are be evaluated both hearing indicated surrounding during mitigation “totality the circumstances Fare, physical and sexual endured Id. that Garner (quoting interrogation.” 2560). family members. hands of his underly- abuse at the S.Ct. U.S. left siblings often Miranda Garner and were purpose of
ing police-regulatory themselves, and Garner be exam- alone to fend circumstances that these compels inwell school. perform from the did not totality, primarily ined, in thefi Because police. perspective Smalldon, psychol- a clinical Jeffrey mis- reason to believe no pre- affidavit concluded an ogy expert, it is warnings, and because understood phase of Garner’s penalty pared for other- were the officers undisputed intelligence, that Garner’s “borderline trial giving careful reasonable wise (i.e., impairment, organic) brain functional confession, obtaining the socially depraved background, abusive and invalidating Garner’s is no basis there raise seri- history impulsivity long waiver. he could or as to whether questions ous sign- consequences did understand B. ” Rights.’ Dr. Smalldon ing the ‘Waiver fo course, primary while our Of however, his assess- acknowledged, interrogating on what must remain cus and that from limitations ment suffered Gar about have concluded could officers *7 provide would assessment focused “[m]ore warnings, ability to understand ner's conclusive, infor- better, even perhaps evidence later-developed may consider we this issue.” mation on ability to mental actual a defendant’s of report, Dr. Schmidt- competency In her time of the warnings at the understand similarly noted that Garner because, goessling turns if it This is interrogation. impul- hyperactivity and history of long a a inquiry that defendant by subsequent
out in the border- “functioning sivity, and was actually not understand could his mind in so, upon Even intelligence. of may range” be line of fact the finder warnings, Garner, Schmidtgoessling observing case in a close inclined determine more to be “appeared that Garner remarked known that should have police intelligence” “appeared Here, average near understand. could not defendant impossible Thus it would given at 750. 148 F.3d product of coercion. suggesting that holding today our as intelligible to read warnings an him his Miranda knowing give could form; impul- “a deaf defendant fault that he is it is not their only given different, when he is intelligent waiver only by a perhaps if It is sive. shade, (Dissent at warning.” question mumbled him if the 274). rights. not understand his that he does to be able to understand all questions and ed that IQ Garner’s test scores placed him presented material suggesting that in the “borderline range of intellectual receptive language his is intact.” Dr. functioning,” and that psychological re- Schmidtgoessling concluded that ports, history, social and school records specifics “familiar with the of the alle- indicated had “intellectual gations against him” and give “was able to problems during the developmental peri- coherent, realistic account of his behavior od” and “difficulties in academic and relevant allegations although his adaptive functioning.” Dr. Everington’s account differed in a couple major report re- also assessed Garner’s abilities to spects ... from the statement made to comprehend the during police.” Schmidtgoessling wrote that Gar- his interrogation, heavily and relied on her ner understood roles of the various test, administration of the so-called Grisso personnel, court was able to identify his discussed more extensively below. name, attorneys by and defined his attor- The assessments of Drs. Small- neys’ job speak up you, “to argue don, Schmidtgoessling, and Everington in you, you.” defend dicate that Garner suffered from diminish Additionally, Dr. Schmidtgoessling ad- ed mental capacity, a troubled upbringing, ministered various psychological tests poor and a education at the time that he assessing competency to stand confessed to his crimes. These assess
trial. Garner received an average score on ments do
demonstrate, however,
memory test,
a
and low
average
score on Garner was incapable of knowingly and
a test that measured his
prob-
nonverbal
intelligently waiving his
lem-solving abilities. Garner scored with-
well-established,
It is
in this circuit and
in normal limits on a screening test for
others, that
capacity
mental
one many
functions,
perceptual motor
in the superior
factors to be considered in
totality
(90th
range
percentile) on
simple
Trail
circumstances
analysis
regarding
Test,
(be-
Making
and well
average
below
whether a Miranda waiver was knowing
low the
percentile)
10th
on a more complex
Thus,
and intelligent.
diminished mental
Trail Making Test. Dr. Schmidtgoessling
capacity
prevent
alone does not
a defen
testified that the Trail Making Test is “a dant
validly
from
waiving
her Mi
special kind of test that’s very
strong
randa rights.
Clark,
See
During federal habeas proceedings, the 555-56; Rice, F.3d at 750; 148 F.3d at granted district court Garner’s motion DeTella, to Henderson v. 942, 97 F.3d 948-49 expand the (7th record to include an affidavit Cir.1996); Corell Thompson, v. 63 and report submitted Dr. 1279, (4th Caroline Ev- F.3d Cir.1995); 1288 Starr v. erington.2 Like Drs. Lockhart, Smalldon and (8th 1280, 23 F.3d Cir. Schmidtgoessling, Dr. Everington 1994); conclud- Peterson, Derrick v. 924 F.2d 2. Because the district concluded court that the state opportunity either to cross-exam- Everington’s Dr. did assessments not warrant ine Everington or to expert introduce further evidentiary hearings, give it did not evidence to counter her conclusions. cases, have concluded courts In some v. Lopes, Toste Cir.1991); (9th ca- limited intellectual v. (2d Cir.1988); a defendant’s Dunkins that 782, 783
F.2d (11th determination to the Cir. contributed pacity F.2d 399-400 Thigpen, Frequent- viewed not effective. must be a waiver was 1988). Rather, that that factor however, some factors, including evidence cases feature those also ly, other alongside during, and that the de- conduct indication observable the defendant’s understanding to, interrogation. incapable was leading up fendant example, in warnings. For Miranda is instructive in other circuits law Case v. Garibay, 143 F.3d States United v. Smith example, in For in this regard. (9th Cir.1998), suf- the defendant 537-38 Mullin, that held Tenth Circuit primarily IQ, also from low but fered was Miranda waiver defendant’s possess thus did not and spoke Spanish (1) facts that despite intelligent and the Mi- English skills understand from borderline suffered the defendant of a without the assistance (2) psy- retardation, a clinical mental Additionally, an officer. Spanish-speaking concluded, the de- based on chologist had defendant was questioned scores, de- officer that the test Grisso fendant’s the de- questions when rephrase his validly waived forced not could fendant appear to understand.” Tenth “did not F.3d at 932-34. fendant rights. Cooper Griffin, 455 F.2d the clinical Id. at 539. In significant it
Circuit found (5th Cir.1972), defen- the Fifth Cir- that the testified 1144-46 also psychologist knowingly the role of neither understand held that defendant dant “would cuit criminal his of a concept waived intelligently officers and ad- test was young the Grisso were charge,” and both defendants rights where interrogation. years sixteen, after who were ministered boys, aged fifteen on a also The court relied Id. at 933. severely mentally retarded. conduct defendant’s showing the
videotape conduct, case, In the instant and noted interrogation during the time of appearance speech, experience previous had had the defendant was his waiver indicated that interrogation Id. system. justice the criminal with notwithstanding intelligent, knowing and Turner, In United States 934. Like the capacity. mental diminished the defendant’s held that Eighth Circuit Turner, Garner Mullin defendants intelli- knowing and was waiver carefully read his was IQ was though the defendant’s even gent that he under- to officers clearly stated borderline, pos- was and he low-average to exe- agreed to those stood at the time intoxicated PCP sibly form, coopera- was a written cute be- “bizarre” and exhibited interrogation clearly interrogation, during the tive illness signs of mental possible havior and apart- Mack’s incident explained at 555- 157 F.3d interrogation. after the in conduct engaged also ment. that because court determined “more that was arrested being prior during the cooperative the defendant attempting person consistent information, interrogation, gave accurate who did person than a caught being avoid in a and, police, “acted stopped by when Turner, doing.” he was what know at- person awith consistent manner more *9 story invented a Garner F.3d at 555. a 157 than being caught avoid tempting to girlfriend his fight with having a about he was know what did not person who why was he taxicab driver explain to the Id. effective. waiver was doing,” the apart- Mack’s items from removing the ment, and Garner admitted to in his affidavit that Garner’s borderline purpose lighting his in the couch on fire intellectual functioning “raise[s] serious was to that he left fingerprints ensure no doubts” about ability to under- Finally, behind. at no time did Garner stand the warnings, Miranda Dr. Small- outwardly exhibit any observable indica- don acknowledged that a “[m]ore focused tions that did not understand the warn- assessment” Thus, was necessary. neither ings or the circumstances surrounding his Dr. Smalldon’s nor Dr. Schmidtgoessling’s interrogation. minor, Garner was not a assessment provides conclusive evidence did not have trouble understanding En- that Garner did not appre- understand and and, glish, although IQhis level indicates ciate his rights, Miranda and Dr. Schmidt- functioning he was in the borderline goessling’s assessment offers some evi- range intelligence, of he was not so men- dence that suggests that Garner indeed tally retarded that officers had reason to had the capacity to validly rights. waive his believe that he could not understand his Finally, Dr. Everington’s assessment regard to Garner’s understanding Smalldon, assessments Drs. during the police interrogation re- —which Schmidtgoessling, and Everington, more- lies on her administration of the so-called over, do not establish that Garner was Grisso test to Garner six years after his incapable of effectively waiving his rights confession—adds little to demonstrate that notwithstanding this outward evidence. confession and intelli- instance, For Dr. Schmidtgoessling stated gent. The Grisso test purports “pro- that, in her report despite Garner’s bor- vide an person’s index capacity for score, IQ derline Garner was “familiar understanding the warnings Miranda with the specifics allegations against the time of the evaluation.” Thomas Gris- him” and “was coherent, able to give a so, Instruments Assessing Under- realistic account of his behavior relevant to standing Appreciation & allegations although his account dif- Rights 7 The Grisso test consists fered in couple major respects ... subtests, of four styled “instruments,” and from the statement made to police.” Dr. named as follows: Comprehension of Mi- Schmidtgoessling also noted that Garner randa Rights (CMR); Comprehension of was able to understand the roles of the Miranda Rights-Recognition (CMR-R); personnel, various court identify his attor- Comprehension of Miranda Vocabulary neys name, accurately define (CMV); and Function of Rights Interro- duties of attorneys. Mullin, Cf. (FRI). gation Dr. Everington adminis- F.3d at (finding it significant that de- tered the Grisso test over six fendant “would po- understand role of years after Garner was interrogated by lice concept officers and the of a criminal police. charge”). Although performed well below average on complex results of (CMR) the first Trail subtest Test, Making he performed provide superior support little for concluding that range on simple Trail Making Test, could not adequately understand received average an score on a memory warnings. The first subtest test, a average low score on a test measur- “assesses the examinee’s understanding of problem nonverbal solving abilities, measured and a score within normal limits on a examinee’s paraphrased description of the screening for perceptual test motor func- warnings.” Id. at 5. The examinee is pre- tions. while And Dr. Smalldon concluded sented with each of four sentences *10 12 out of a score of received the Garner to tell invited warning and is a than of higher 64% placing points, in says your sentence] [the “what examiner at tbl.3. Dr. adults. Id. sample of 260 for Responses at 17. Id. words.” own CMR-R that Garner’s Everington noted are scored sentences of the four each “did not have that Garner indicated a score get can total the examinee so that or meaning of the recognizing in the difficulty the optimally paraphrasing points of 8 in a true-false warning presented when por- Scoring Criteria sentences. four noted, subtest, it should be This format.” several exam- lists protocol test tion of the objective- the four that is only one of each is the receive that would responses of ples 11. instance, Id. at ly graded. For scores. the three possible of is to the examinee given sentence
the first the third least well on Garner did While amake statement “You do not have (CMV), that subtest evalu- much of subtest at 19. Id. silent.” to remain right have the understanding of words ated Garner’s para- responding 2-point of a example One actually used than those more difficult if everything them can tell is phrase “You him. third warnings given anything.” want, say not One just you ability to the examinee’s subtest “assesses “I is would response 1-point example of in the version appear six words that define example One say nothing.” say best it’s warnings on which the Miranda of you if “It means response is 0-point aof at Those Id. 5. test based.” is] [Grisso at 23-25. you up” Id. they lock talk don’t consult, interrogation, attorney, are words subtest, received On the CMR entitled, at right. Id. 36-44. appoint, Dr. points. possible of score of out to “tell examin- [the is asked The examinee had difficul- that Garner Everington noted word way what your own er] satisfactory definition “a ty providing subtest, in the As first Id. 35. means.” of warn- four statements two of for 2, 1, or so a score of response gets each of is, on two half-credit got That ing.” perfect score possible is a that there subtest, least, This questions. the four instance, consult. first word is For support for provide appear does not criteria, an exam- scoring According to the adequate- Garner could conclusion is response (2-point) of a full-credit ple warnings.3 ly understand half- example of a An help to decide.” “To “To confi- talk response (1-point) credit the second on perfect score got 0-credit re- of a example An dentially.” the ex- (CMR-R), “assesses which subtest Id. at 39. something.” plan “To sponse is understanding of the Miranda aminee’s that Garner reported Everington the examinee’s measured warnings as vocabulary the six defining difficulty five various inter- identify whether ability consult, enti- attorney, appoint, are examiner by the provided pretations words— 7of tled, a score received warning from as or different the same —and Thus, it points. possible out of “After Id. at 5. each presented.” that was half-credit received that Garner appears statement, asks the examiner warning words. those five for each other state- to three to listen examinee part worst on this was the performance simply ments, .... examinee [and][t]he five words But three alter- test. after each ‘different’ says ‘same’ or (consult, at- credit half subtest, he received which this Id. On native statement.” 20% not in bottom but the bottom 30% provides tables clini- manual 3. The Grisso subtest. sample on the CMR adult total examinee’s interpretation of an scores. cal Grisso, supra, at 84 tbl.2. roughly in have been would Garner’s scores *11 entitled) tomey, and were present in the language used in warning that the version of the rights Garner, read to poor Garner’s per police read Garner. to Police used the formance on the CMV hardly subtest can simpler “lawyer” term in lieu of the term be relied upon as evidence that Garner did “attorney,” simpler phrase “talk to” in not appreciate understand or the Miranda “consult,” lieu of the term simpler warnings.6 right words “have the to” in lieu of “enti- (FRI) The fourth subtest does little tled.”4 These differences significant. are more to show that Garner could not under- Indeed, if responded Garner had “lawyer” stand the warnings. That sub- (the actually word used Garner’s warn- test “assesses the grasp examinee’s of the ing) when asked on the Grisso test to tell significance of the Miranda rights in the “attorney” means,
what the word he would context of interrogation” by using “four a full received two points for that picture stimuli, which accompanied are word. Id. at 40. And if he had responded vignettes.” brief Id. at “Each picture 6. right “Has a to it” (essentially the words vignette are [sic] followed a set of used in warning) when asked on (15 all) questions standardized that as- the Grisso test what the word “entitled” sess the examinee’s grasp of the signifi- means, he would have received a full two cance of’ to silence, counsel and points for that word. Id. at 43. Even the and the nature of interrogation. Id. Five Grisso recognizes manual itself questions relate to the nature of [w]hen local versions warnings of the are police interrogation, five relate to the func- very different from those used in the tion and significance counsel, of legal measures, possible it is that the exami- five relate to the function and significance might nee receive a score on the instru- right to Responses silence. again suggests ments that poorer or better 2, 1, are scored so the total understanding than the examinee would possible is score 30. Garner scored 24 have manifested for the version of the points, (10) including perfect score on the warnings officers actually “nature of interrogation” portion and a provided to the examinee. (10) perfect score on “right to counsel” Id. at 7.5 language Because the used in portion. He received 4 out of 10 points on CMV subtest significantly differed from “right to portion.7 silence” The sub- noted, 4. As the court district this difference in while "[t]o offer them money job” to do the language question calls also into validity 1-point Grisso, supra, answer. at 42. of Gamer’s example, CMR score. For Gar- scoring right, "[y]ou definitions of are entitled depended ner’s CMR ability score on his to it” points, receives your while "[fit’s phrase following warning in his own point. decision” receives 1 Id. 44. words: “You are entitled to consult with an attorney interrogation before course, and to have an 6. Of question of how Garner com- attorney present at the time interroga- pares rest of the population in under- Grisso, supra, tion.” at 20. standing The actual warn- particular difficultly-phrased set of ing read phrased simpler Garner was bearing has no on the terms: “You have the lawyer question talk to a of whether he understood the consti- for advice you any before we questions ask tutionally adequate warnings actually given to you and have during questioning.” him. Furthermore, the difference between a half- 7. Garner’s total FRI score was below the credit response and a full-credit always is not mean (26.31) for both adult offenders crisp. respect appoint, With get (25.52). ”[t]o Grisso, non-offenders supra, at 94 person job” answer, to do the 2-point is a tbl. 12. His scores on the interroga- “nature of *12 com- hardly are conclusions These of silent.” nature questionable legally and jective problems apparent the subtest, light in pelling and for this criteria grading the from Garner’s drawing this conclusion did with that Garner portion the particularly test. Other the Grisso on performance its useful- question on, bring into poorly testi- qualms about had similar an examinee courts have determining whether in ness instance, test. For warnings. relying on the mony the Miranda understand could has in a of Connecticut suspect Supreme a room the Court drawing of a Shown officers, is court did not abuse examinee that a lower concluded two police with re- Greg excluding If de- Grisso in test asked, this sentence. its discretion “Finish did, he what for admission its standard about sults under to tell cides Griffin, says_” Greg that evidence. State things scientific expert then 2- a full-credit example 650-52 869 A.2d at 48. One 273 Conn. Id. him against in of no case is “Can turn “we know stated
point answer The court a example of half- concerning One test testimony Grisso later court.” which get him into is “Will ob- answer evidence over 1-point into credit has been admitted a 0-credit example and One from Florida detention.” and noted cases jection,” Id. policemen.” tell the regarding “He will testimony is answer in which New York between minor difference was protocol at 60-61. test or similar the Grisso nota- answers is 1-point 2-point hearing preliminary a following excluded ble.8 The Grisso admissibility. Id. at 650. on “measure to purport does not test itself scores on relating After waiver of Miranda validity of the test, concluded Everington Grisso Mi- to waive ‘legal competence’ rights, or test re- Garner’s Grisso report her 8, and, Grisso, at supra, rights,” see randa later, years six that even “indicate sults more on one or poor consequently, score complete under- may not have a facto, not, lead ipso the test does parts of In warning.” ] standing of [the lacks that the examinee to a conclusion after the affidavit, years prepared two her intelligently knowingly and to capacity the inter- years after eight test and Grisso (“[Tjhere no is id. rights, see waive those stronger used Everington rogation, Dr. (or understanding degree of particular “Mr. Garner’s concluding that language, instruments) associated these score he on indicates on this test performance legal from understanding ‘adequate’ with Mi- comprehension full does not have Mullin, F.3d see also perspective.”); right to remain or his wrong, will was what he did talk portions about were "right to counsel” tion” (9.60 at 49. Id. Accord- to talk about it?” adult offenders he have mean for above the 9.07), Criteria, (9.61 at 9.25) 2-point id. an- Scoring and non-offenders tbl.9, 10, "right "Yes, on the while his score “No,” if 1-point 91-92 is answer swer is the mean portion was below to silence” possible says to.” Three lawyer it’s best 6.84, (7.48 respectively), id. group each know,” “Yes,” don’t “I are: 0-point answers 93 tbl.ll. and, judge "Only if the tells remarkably, situa- the conceivable at 66. Given to.” Id. involving question Another required would be which defendant tions in troubling. more this subtest even counsel in talk, granted immu- been as if such drawing of a court- is shown The examinee judge court it is the given that in nity, and officers, par- judge, police hearing room law, judge "Only if the that determines ents, lawyer, and the defen- the defendant’s answer, yet would it not a bad to” is tells him Grisso, question is: supra, at 45. dant. Scoring Crite- according to the get points no anything about "Greg tell the did court, ria. were told if he Here what he did. (rejecting claim waiv- are generally positively correlated with er of defendant who suffered from age. border- Mullin, See id. at 83 tbl.l. Cf. line mental retardation unknowing F.3d at (noting that “the ‘Grisso test’ unintelligent despite low test Dr. Hopewell Grisso administered took place scores). years after interrogation [defendant’s] the deterioration of his in jail condition addition, the Grisso test purports *13 results”).9 could have affected the provide an capacity index for to under- warnings only stand the “at the time of the It is thus not surprising that Dr. Ever- evaluation,” not at time that the the warn- ington’s initial assessment in 1998 conclud- Grisso, ings given. 7; were supra, at only see ed that Garner “may not have a (“Current also id. at 71 comprehension, complete understanding of [the Miranda ] present time, even if is valid for it may warning” and that Garner’s deficits in in- or may not representative of the indi- tellectual functioning “could have hindered comprehension vidual’s at some retrospec- (em- his understanding of process” [the] time.”). case, tive In this added). Dr. Everington phasis Like the conclusions of administered the test in over six Drs. Schmidtgoessling Smalldon, these years after read the warnings to conclusions do provide not sufficient evi- Garner. Leaving aside obvious incen- dence that Garner’s waiver was not know- tive for a defendant already who has been and intelligent.
sentenced to death to feign misunder- C. test,
standing on such a there is simply no way of telling whether Garner’s sum, Grisso test Garner’s conduct during, and scores an are accurate indicator of to, leading up the interrogation indicated ability to understand the warnings when understood and appreciated his police administered the warnings in 1992. executing before the waiv- regardless This is so the fact stud- er. Because nothing in the record demon- ies have indicated that Grisso test otherwise, scores strates Garner’s Miranda claim Everington's Dr. case, administration of the test In this there is no evidence in the yet raises another respect concern with record that Everington any received Garner’s test scores. While the Grisso test training test, to administer much less manual exceptionally "mentions high esti- training intensive necessary to ensure mates reliability,” of interrater reliability reliability of Garner’s scores on the was requiring achieved partici- raters subjectively-scored And, three parts. pate (16 hrs.) in training "intensive Jordan, to 32 Rogers, and Harrison have ob- practice served, additional Rog- sessions.” Richard "[t]he likelihood practi- of a forensic ers, Mandy Harrison, J. Kimberly Jordan & S. achieving sophisticated tioner this level of A Critical Review Competency-to- Published training is exceedingly Rogers, remote.” Measures, 28 Law Harrison, & Hum. Behav. supra, Jordan & Confess 707, Tellingly, at 712. (2004). reliability A analysis was perfect received a score on the required for three of subtest, the four Grisso subtests CMR-R only "totally objective” (CMR, CMV, FRI) scoring because the part of the test. Grisso Because Dr. Ever- parts requires those the rater interpret ington’s administration of the Grisso test and, response examinee’s based on brings criteria question into reliability of Gar- manual, set scoring out in the CMR, CMV, scores, determine ner’s argu- FRI an response whether the warranted or 0 can easily ment be made that Garner's points. Grisso, 10-12, supra, See 17-66. CMR-R score accurately represents most subjective of the aspect Because parts of these ability comprehend Gamer's appreci- test, an examinee's score vary Grisso, could ate the warnings. See su- rater, from requiring rater to thus pra, intensive at 11 (noting that "requires the CMR-R training to establish reliability. interrater judgment scorers”). part no on the DAUGHTREY, MARTHA CRAIG would habeas relief. We require not does only. of wheth- regardless concurring in result this conclusion reach novo, under a de the issue we reviewed er dispositive I to be the perceive What standard, or under AEDPA deferential disap issue in this case has somehow It standard.10 AEDPA” “modified from the discussion at the current peared for us to deter- necessary therefore litigation: procedural de stage of applies of these standards mine which fault of the Miranda issue resulted Leval, Judging N. Pierre this See case. petitioner’s present failure to from Dic- Dicta About Constitution: Under the court. this issue state When case ta, L.Rev. 81 N.Y.U. panel, it appeal original
heard on III. split resulted decision. *14 remaining [procedural war- default] claims chose to “deem this
None of Garner’s Garner’s relief. Because rants habeas forfeited” based on the state’s argument merit, claim lacks substantive it in the district failure to raise court. that state courts’ determination
the (6th Ohio Mitchell, 394, 401 v. 502 F.3d not ineffective for counsel were Garner’s Cir.2007). Cain, Citing Trest v. 522 U.S. that claim investigate or raise failing to 87, 89, 118 S.Ct. L.Ed.2d to, contrary or an unreasonable not
was (1997) normally a (“procedural default is of, Supreme precedent. Court application to raise obligated that the State is defense claim Op. at 49-50. See Dist. Ct. if it is not to lose the preserv[e] by not trial court erred state the thereafter”), sup to assert defense the to assist with experts him with providing forfeiture, impose for the decision port similarly merit. claim lacks his Miranda took account of majority nevertheless to mental with access provided Garner was only default procedural fact Moreover, the experts during trial. health on for the first time may recognized be have experts would not of other assistance Mitchell, 431 F.3d appeal, White waiver was to show that his been sufficient (6th Cir.2005), may be raised but also Fi- atOp. Dist. Ct. 58-62. unintelligent. See reviewing sponte. court sua by the process claim that the nally, Garner’s States, 205 F.3d Elzy United unconstitu- petit jury venire selecting (6th Cir.2000). panel decid African- against tionally discriminated two the defense on recognize not to ed and, defaulted procedurally was Americans first, the district court because grounds: event, merit the rea- any is without in in resources “expended considerable had district court. Dist. Ct. sons stated claim,” Gar deciding Garner’s Op. at 27-34. 401, and, second,
ner, because 502 F.3d IV. But, penalty.” Id. the death “Garner faces only if justified could be the latter basis reasons, we foregoing affirm For the in the district expended the resources the district court. judgment of would AEDPA review argued modified court the raise in state did not 10. analysis light that the apply of the fact here in he now raises Miranda claim that substantive claim "bears substantive he did of Garner's petition, federal habeas but in his analysis of the similarity” ineffec some argue on collateral state court review adjudicated state claim failing to tive-assistance ineffective for counsel were his trial See, Bagley, F.3d e.g., Filiaggi v. Apart court. inquire into the Miranda issue. 851, 854 Cir.2006). issue, (6th procedural it could default from the actually produced court had an adequate interrogation, many years rather than af- record on to base a judg- which reasoned terward. ment alleged about the Miranda violation In addition to insufficiency fact, in this ease. the record is insuffi- resulting record procedural from the de- cient to make a reasoned judgment pre- courts, fault in the state the decision to cisely procedural because was a there de- ignore that unjustified default is aas mat- fault of that in this issue case. Indeed, ter of law. legal analysis was Because the Miranda issue was not cogently laid out by Judge Rogers in his
raised litigated court, in state only dissent from the majority opinion in Gar- record we regard peti- to the ner, in which he contended that “even if tioner’s waiver comes from suppres- we have the discretion disregard hearing sion in state court. See id. 410 procedural default because of the state’s testimony nn. 7-8. of the interrogat- argue procedural failure to default in the ing officers question was limited to the court, district it is inconsistent with the proper whether Miranda warnings principles AEDPA to exercise that dis- and, given had been only superficial cretion the context of this case.” Id. at extent, petitioner whether ap- In support contention, of this peared to understand what being legally articulated three rock-solid reasons. communicated the officers before he First, noted, *15 he procedural the default was was asked to sign a waiver of clear. See Second, id. at 424. the absence We know from the record that ap- of a ruling state court on the issue was due peared “perfectly normal” “very and co- to “lack of opportunity pass on the herent” to the officers who interrogated merits, of, not the instance, [and] result him. We do know from the record that a state court’s application erroneous prior court, to trial in state Garner under- some procedural hurdle or the ineffective went psychiatrist assessment a and a appointed assistance counsel by the clinical neuropsychologist in to de- order state courts.” Id. Because there was no termine his competency to stand trial. issue, state court review of the he argued, assessment, Based on their a mental- majority’s the exercise of discretion in the health expert appointed by the trial state petitioner’s favor flew in the face of both court to assist with Garner’s defense sub- “comity principles.” federalism Id. mitted a report questioning whether (quoting Perruquet Briley, 390 F.3d would have capable been of understanding (7th Cir.2004)). Third, sig- most the language in used the waiver or the nificantly, Judge Rogers paradox noted the consequences of signing it. See id. inherent in application the of a de novo But, because the issue of the petitioner’s standard of review in this case: competency to make a valid waiver was never directly were [I]f or we to reach indirectly the merits of [peti- addressed in the courts, state prosecution the claim, tioner’s] constitutional pre- was we neces- vented from countering sarily the would novo, have to implication do so de that the waiver was is example, flawed—for there no state-court decision we can by securing additional testimony look to for an from the evaluation of this claim. interrogating officers concerning This would be inconsistent with high events preceding petitioner’s confes- level of deference to state-court deci- sion, or securing an additional exami- Congress sions that mandated it when nation that would have in- passed addressed his the Antiterrorism and Effective tellectual functioning near the time of his Penalty Death Act of 1996. It would MOORE, Circuit NELSON KAREN [petitioner], a windfall also amount Judge. of a claim review plenary win would who [state] to the presented that he never has re- Supreme Court dissenting. who petitioners courts, habeas whereas waiver of valid peatedly pronounced claims to state their present properly knowing must be “a only to the ex- are courts first entitled or abandonment intelligent relinquishment by [28 mandated narrow tremely review Edwards privilege.” known of a 2254(d). section U.S.C.] Arizona, 477, 482, 101 S.Ct. U.S. at 518 F.3d Perruquet, 390 (quoting
Id.
(1981). The en banc
68 L.Ed.2d
omitted)).
(citations
entirely new
creates an
majority opinion
reasons, I conclude that
these
For
to establish
that allows defendants
rule
Mi-
default of the
procedural
petitioner’s
intelligent
waiver
knowing
of a
lack
re-
prevent us from
randa issue should
they
at the
hear
only they
if
do so
moment
banc, and I would
question
en
viewing
majori-
rights. Under
their Miranda
judg-
court’s
affirm the district
therefore
formulation,
focus is on
primary
ty’s
those
than
ment,
other
but for reasons
and whether
officers
the conduct
majority.
banc
by the en
expressed
time
to know at the
officers had reason
defendant
interrogation
COLE,
Judge,
Circuit
ability
the Mi-
to understand
lacked the
dissenting
part
concurring
impos-
it
warning. While would
ma-
in the outcome of the
I concur
part.
could
that a deaf defendant
sible to believe
be-
separately
but write
jority’s opinion
waiver when
intelligent
give knowing
disagree
I
cause
only a
given
mumbled
he is
determining whether
“primary focus”
majority’s approach would
warning,
intelligent
Demanding
a conclusion.
compel such
*16
As
officers.
interrogating
the
conduct of
or physical
whose mental
more of those
dissent,
Moore’s
Judge
in Part I of
stated
surely
only less would
do
faculties can
lack
if
not
the defendant’s
waiver is
valid
that defen-
requiring
of
purpose
the
defeat
capaci-
mental
or
maturity, intelligence,
of
they
waiver when
the
dants understand
the
comprehending
him from
ty prevented
ma-
I
the
it. Because
believe
undertake
case
him. This is the
warnings issued
contrary
Supreme
is
jority’s approach
officer would
if a reasonable
even
totality of
and
the
precedent
Court
comprehended
the defendant
believed
that Gar-
demonstrates
the circumstances
Rice
reliance on
The
warnings.
majority’s
was not
rights
waiver of his
ner’s
Cir.1998)
(7th
is
275
relinquishment or abandon-
intelligent
‘upon
particular
the
case
in each
pends
Ed-
right
privilege,”
that
a known
or
surrounding
ment of
and circumstances
facts
1880,
wards,
482,
out
experi-
at
101 S.Ct.
background,
451 U.S.
case,
including the
” Ed-
jurispru-
the accused.’
ence,
Supreme
conduct of
the
Court’s
482,
wards,
Indeed,
(quoting suspect Johnson even a who (1938)). 1019, 464, L.Ed. 1461 82 58 S.Ct. rights being read somehow his Miranda “totality of the examine the A court must knowing intelligent a waiv- give could a whether to determine circumstances” er, no reason to long police so as the knowing and intelli- waiver was suspect’s hear. suspect that the did not believe suspect’s inquiries into including gent, conduct, police support To its focus on education, background, “age, experience, heavily Rice v. upon relies has whether he intelligence, and into (7th Cir.1998), cert. F.3d 747 Cooper, 148 capacity to understand 2052, denied, 1160, 144 S.Ct. 526 U.S. him, his Fifth Amend- the nature of given Rice, the Seventh L.Ed.2d consequences of waiv- and the rights, ment that, there was no held because Circuit C., 442 U.S. at Michael rights.” those abuse, sixteen-year-old a made a police does 725, “The Constitution 99 S.Ct. of his Mi intelligent knowing suspect know that a criminal require testimony of two rights despite the every possible conse- and understand mentally that he had been psychologists Fifth Amend- a of waiver quence at to make a valid waiver. Id. incompetent require “that but privilege,” ment does The Seventh Circuit read Su 749-51. not to may choose suspect know[ ] Colorado v. Con Court’s decision in preme officers, to talk talk to law enforcement 515, 93 nelly, 479 U.S. 107 S.Ct. present, or to discontin- only counsel (1986), proposition L.Ed.2d Spring, 479 U.S. talking any at time.” ue waiver of his Miranda defendant’s Burrbine, 851; see also at 107 S.Ct. unknowing or unintelli rights cannot (“[T]he 106 S.Ct. 475 U.S. activity police is unless there coercive gent made with a full waiver must been reason to believe police had some nature of of both the awareness mak incapable of the defendant was consequences being abandoned and ing a rational waiver. it.”). to abandon the decision although Supreme Court But majority’s approach conflicts with activity Connelly held “that coercive pronounce- repeated Supreme Court’s finding necessary predicate is whether proper inquiry that the ments ” ‘voluntary,’ it did not is not a confession capability had the actually the defendant activity is a suggest that coercive waiver, intelligent to make a conclusion that necessary to a predicate Edwards, see, e.g., U.S. *18 knowing not rights was of Miranda waiver C., 725, 1880; 442 at 99 Michael U.S. S.Ct. 515; 167, Id. at 107 S.Ct. intelligent. or Zerbst, 464, 2560; U.S. at 58 S.Ct. 304 Turner, 157 F.3d also United States v. see 1019, to police without reference any
S.Ct. (8th Cir.1998); 552, United States 555 does, suggest, To as conduct. (D.C.Cir. Bradshaw, 295, F.2d 299 935 a waiver de- validity that the of Miranda 1991) (“We holding ... as Connelly read police— pends only on the conduct necessary is a only police that coercion police knew or should or what to a determination require- prerequisite at the time—is to read the known bearing involuntary and not knowing “a that a valid waiver ment waiver 276 question preclude
on the whether the waiv not separate police from interrogating knowing intelligent.”); suspect er was Miller later under different circum- (11th Cir.) 1530, Dugger, 838 F.2d 1539 stances—for example, following evaluation (“We Connelly do read the decision as professional, not mental-health following treatment, an intent to eliminate demonstrating presence this or in the lawyer, of a see, B.M.B., e.g., 417, distinction between voluntariness In re 264 Kan. waivers.”), denied, (1998) 1302, knowing cert. P.2d U.S. 1309-13 police the—if 100 L.Ed.2d greater 108 S.Ct. 933 desire assurances that the sus- (1988). Indeed, Connelly pect’s Court noted statement will be deemed admissible expert that an witness “testified that at Con- trial.
nelly’s
significantly
impair
illness did
II. RELEVANT FACTS
Thus,
cognitive
respondent
abilities.
rights
understood the
he had when [the
Having determined that
proper
fo
police]
him that
advised
he need not
cus should be on Garner’s “age, experi
161-62,
speak.” Connelly,
Put completely fails physical abuse at the hands of his mother account for the clear directive of the and more than boyfriends, one of her Supreme suf Court’s Miranda jurisprudence fered sexual abuse at the hands of an proper inquiry older whether brother, was left with his maturity, siblings pro defendant had the intelligence, vide clothing himself, food and capacity and mental make a and was repeatedly intelligent I kicked out of recognize waiver. his home. Gar Supreme ner’s mother testified requirement Court’s that a that Garner and his twin knowingly waiver be made brother attended years the first few occasion, intelligently may, on of school put po- together class, in the same but lice in position they the difficult having were separated thereafter be suspect’s assess a understanding and intel- cause Garner’s brother had been doing capacities lectual interroga- the time of Thereafter, Garner’s work for him. Gar difficulty tion. This wholly is not unique, ner “didn’t very do well” in school. 3 J.A. however, difficulties, as courts face similar (Mitigation Hr’g at 52 10/13/92 (Patricia for example, Test.)). when assessing a defendant’s Garner told the competency understanding during a police that he could complet read and had plea colloquy when defendant waives ed the grade, twelfth but his mother testi the right *19 to Suspicions counsel. that a fied that the grade completed last that he suspect’s initial Miranda waiver was not grade, was the seventh and both his moth made knowingly intelligently also do er and school records indicated that Gar 3260 Burnet Avenue and arrested Garner. always poor, that he was grades were ner’s Harry Frisby, (“Frisby”), of once, fre Officer G. Jr. that he was at least held back school, Department he the Cincinnati Police advised and that absent from quently of his rights, and Garner variety of correctional or Garner in a placed was rights.2 that he understood his Offi- According to said schools. treatment-focused Frisby about mother, at one en cer asked Garner several had least Garner Frisby items that Officer believed had juvenile system. court with the counter stolen, offense, had a been but Garner said that the items Garner year his. was then taken to the Intelligence Adult were Wechsler full-scale station. IQ placing score of Scales-Revised range of intellectual func
in the borderline station, Frisby At the Officer learning of a dis tioning, signs as well as (“Feldhaus”) David Feldhaus inter- Officer disorder, and or deficit ability, attention rogated Garner. Officer Feldhaus advised impairment.1 ganic brain of his rights again, read a Garner, waiver-of-rights interro- form to and Gar- of Garner’s The circumstances 26, ner, January Frisby, and Officer Feldhaus On Officer gation are also relevant. pro- at the form.3 The two officers signed a search warrant police executed though you that? Yes. You Everington's report, not admit- A: Yes. Do understand 1. Dr. lawyer purpose, right talk to a advice for this have ted the district court you any questions we relatively consis- before ask have that Gamer confirmed IQ you during questioning. You un- well as him with tent scores between 76 and 81 as you cannot language abilities. 1 derstand that? Yes. If afford significant deficits in 2-3). lawyer appointed you (Everington Report at one will be before J.A. at 376-77 you any questioning if wish. Understand Frisby as follows:
2. Officer
testified
you
ques-
that? Yes. If
decide to answer
lawyer present you
without a
will
tions now
said,
Gamer,
Mr.
let me advise
A: Before I
stop answering
any
right
at
still have the
you
your rights and I had a booklet
right
stop
have the
an-
time. You also
of it. You
had his
in it—on
front
you
swering
any
at
until
talk to a
silent,
time
any-
right
have the
to remain
reply
lawyer. You understand that? The
against you
thing you say can be used
yes.
was
right
to a
have the
to talk
court. You
that we have a waiver of
I then said below
you any
lawyer
we
for advice before
ask
him,
you.
rights. And I told
I’ll read this for
during
questions
you
him with
and have
Q:
you read the whole
Pardon me. Did
ques-
questioning.
you decide to answer
If
paragraph?
lawyer
you
present,
tions now without
said,
on
I have read this statement
A: I
stop answering
any
right
still have the
my rights are. I
I understand what
right to talk to a
time. You also have the
answer
going to make a statement and
am
you
lawyer
any questioning
wish.
before
if
lawyer
questions.
want a
at this
I do not
I
him if he understood those
And
asked
what I am
I
and know
time.
understand
yes.
rights and he said
been
doing.
promises or threats have
No
Test.).
Hr’g
(Frisby
Suppression
at 68
pressure
and no
or coercion of
made to me
Feldhaus testified as follows:
3. Officer
again
I
any
[sic]
used
me..
kind
been
Q:
know,
see,
that. He said
him if he understood
Carry
through
you
asked
us
said,
any questions
you have
you
re-
he did.
I
exactly what
said as best
can
said,
rights?
replied,
I
your
He
no.
about
member.
well,
you
questions under-
if there’s no
A: Each line?
it,
Q:
sign your
you
name and
stand
I need
Yeah.
signed his
it
At that time he
the time
is.
to remain silent. He
A: You have
said,
my
say
what time is it? I held
Anything you
name. He
that.
said
understood
it, signed
he looked
wrist watch out and
against you in court.
can be used
Q:
time.
reply
Did he
to that?
*20
interrogate Garner. Officer Fel-
background,
long history
ceeded to
of impulsivi-
appeared “per-
ty
questions
dhaus testified
raise serious
as to whether he
“very
fectly normal” and
coherent” and
could or did understand the consequences
”
questioned
that Garner answered when
signing
Rights.’
the ‘Waiver of
3 J.A.
¶
(Smalldon
10).
under the
that he was not
influence of
at 921
Aff. at
Dr. Small-
at 944
drugs
(Suppres-
or alcohol. 3 J.A.
don further concluded that “[t]he same
(Feldhaus Test.)).
above,
sion
at 204
Officer
Hr’g
findings
assessment
alluded
Frisby
initially
that Garner
de-
my
testified
well as
own clinical impressions, also
any involvement with the crimes and
questions
nied
raise serious
about whether he
he,
Frisby,
repeatedly
Officer
told
ability
had the
to understand
appreci-
thought
lying.
Garner was
Garner that
ate the implications
language
of the
used
minutes,
forty
approximately
After
the two in
Rights’
the ‘Waiver of
form that he
(Smalldon
began tape recording
interroga-
officer
signed.” 3 J.A. at 921
Aff. at
¶
tion,
11).
to stealing
and Garner confessed
opined
Dr. Smalldon
that “[m]ore
items from 3250 Burnet Avenue and set-
better,
focused
provide
assessment would
ting a
conclusive,
fire.
perhaps
even
information
(Smalldon
on this issue.” 3 J.A. at 922
I
turn to considering
now
“whether
¶ 13).4
Aff. at
capacity
[Garner] ha[d]
understand
Dr. Everington provided this more fo-
him,
warnings given
the nature of his
cused
regarding
assessment
un-
rights,
Fifth Amendment
and the conse-
derstanding of his waiver of Miranda
quences waiving
rights.”
those
Michael
rights.
Everington
Dr.
administered the
C.,
legal counsel (cid:127) Right protections to Silence: relat- CMR, As with the the CMR-R re- right silence, ed to the and the quires that each warning presented role of confessions to the warning examinee. After each statement, the examiner asks the exami- stimuli, FRI picture uses four statements, nee to listen to three other accompanied by which are brief vi- some of which are the same as the warn- gnettes (e.g., story a suspect about ing and some of which are not the same. arrested, accompanied by who has been simply says The examinee “same” or picture a young sitting man at a officers). “different” after each alternative state- table with two Each ment. picture vignette are followed (15 all) questions set of standardized point Id. Answers are scored one for each that assess the examinee’s grasp response, producing correct a total CMR- significance of the three matters noted R score between zero and twelve. Id. previously. instrument, Comprehension The third points Id. at 6. Answers are scored two for (CMV), Vocabulary “assesses the “adequate” responses, point “ques- one for ability examinee’s to define six words responses, points tionable” and zero for appear in the version of the Miranda warn- “inadequate” responses, producing a total ings on which the Miranda instruments are FRI thirty score between zero and as well word, based. The examiner reads each zero and subscale scores between ten sentence, uses it in a and then asks the in- regarding recognition of the nature of examinee to define the word.” Id. An- terrogation, significance right of the points swers are scored two for “adequate” counsel, significance and the responses, point “questionable” one re- silence. Id. sponses, points “inadequate” and zero responses, producing Everington a total score the Grisso CMV administered old, years between zero and twelve. Id. at 5-6. test in 1998when Garner was 26 in- years “indicate[d] six after Garner’s results does not approximately [Garner] of Miranda warn- comprehension received CMR have full terrogation. *22 six, “was below that of ings right of which or his to remain silent.” 1 J.A. score ¶ 17). subjects adult as well as at Aff. at mentally typical (Everington 373 IQ range.” in 1 J.A. at persons below 9). at (Everington Report Garner’s
378
III. ANALYSIS
mean
of
below the
score
slightly
score was
juvenile delinquents
IQ
Garner’s low scores and other
thirteen-year-old
Given
disabilities,
slightly above the mental
I now turn to consider
average intelligence but
twelve-year-old juvenile
carefully
knowingly
de-
whether Garner
mean score
waived his Miranda
See
average intelligence.5
intelligently
and
linquents
notes,
GRISSO,
supra,
along
at
tbl.5. On the CMR-
As the
with
87
courts,
R,
rejected
a perfect
received
score of other
we have
calls to
twelve,
categorical
IQ
that he did not have
establish a
rule that a low
“indicating
meaning of
in
difficulty
recognizing
significant
in
other
limitations
intellec
presented
functioning
dispositive
a true-false
tual
are
and make
warning when
(Everington Report
suspect
format.” 1 J.A. at 378
with such characteristics cate
9).
CMV,
difficulty gorically
give
at
On the
Garner had
unable to
a valid waiver of
words: vocabulary
rights. Maj. Op.
five of the six
at
defining
264-65.
consult,
entitled,
However,
attorney, appoint,
and
we also have not established a
seven,
right.
categorical
express
Garner received
score
rule that an
mentally typical peers
person
IQ
from a
which was “below
with
low
or other
id.,
IQ range,”
persons
significant
and
in his
and
limitations similar to Garner’s
twelve-year-old
always
mean score of
intelligent.
below the
More
over,
juvenile delinquents
average
intelli-
other courts have concluded that
GRISSO, supra, at
see
gence,
suspects
88 tbl.6.
with similar limitations in intel
Finally,
received a FRI
functioning
knowingly
score of
lectual
did not
waive their twenty-four, “below that of adult
intelligently
offenders
(Ever-
See,
e.g.,
particular
and non offenders.” 1 J.A. at 378
Unit
circumstances.
9).
Garibay,
ed States v.
Everington
534,
at
fur-
ington Report
143 F.3d
538-39
(9th Cir.1998)
(concluding
ther noted that “all
items
that a suspect
[Garner]
IQ
in one
placed
[on
FRI]
missed
were
with an
score that
him in
are[a]—
the function of the
to silence'—indi-
range
functioning
borderline
of intellectual
cating
knowingly
that he still does
have a full did not
intelligently
[not]
waive
rights); Cooper Griffin,
even after six his v.
understanding
right,
of this
(5th Cir.1972)
Id. years.”
1142,
right-to-silence
FRI
455 F.2d
1144-46
(concluding
subscale score of four was below the mean
teenage suspects
two
with
(7.48),
IQs
scores of adult offenders
adult no-
between 61 and
knowingly
67 did not
(6.84),
juvenile
delinquents
intelligently
noffenders
waive their Miranda
(5.52).
Aikens,
GRISSO,
supra, See
United
v.
States
rights);
93 tbl.ll.
(D.D.C.1998)
28,
Dr. Everington
F.Supp.2d
concluded that
the test
(concluding
CMR, CMR-R,
5. Grisso notes that
and CMV
id. at 68. FRI and FRI subscale results form
compared
“may
scores
to norms for delin-
by age
earlier studies are not delineated
quent youths and adult offenders of various
IQ score,
provide
but still
“norms for delin-
ages
intelligence,”
provided
and levels of
quent youths and adult offenders of various
reporting
a series of tables
results from earli-
ages.” Id. at 6.
GRISSO,
5-6;
supra,
er studies.
see also
(1996);
IQ
394,
an
of 71 did not
Dunkins v.
suspect
Thigpen,
with
854 F.2d
(11th
intelligently
Cir.1988),
denied,
waive his Mi
knowingly
398-400
cert.
Caldwell,
611 So.2d
rights);
1329,
State
U.S.
S.Ct.
the trial court’s pect produce evidence, did specific expert IQ knowingly of 71 did not and intelli an typically at least one expert, usually the rights), her Miranda cert. gently waive state’s but sometimes even suspect’s, denied, 510 U.S. 114 S.Ct. 126 countered the assertion that the suspect Bernasco, (1993); People L.Ed.2d 234 knowingly did not and intelligently waive *23 349, 155, 562 N.E.2d 138 Ill.2d 150 Ill.Dec. See, rights. his or her Miranda e.g., Clark (1990) 958, (affirming 963-66 the trial Mitchell, (6th 270, v. 425 F.3d 275 Cir. ruling 17-year-old suspect that a court’s 2005); 95-3904,1996 Taylor Rogers, v. No. IQ knowingly and with an 80 did not (6th 1996) 515349, Sept.10, WL at *3 Cir. intelligently rights), waive his Miranda Walls, (unpublished opinion); Young v. 311 denied, 932, 2052, 500 111 S.Ct. cert. U.S. (7th 846, Cir.2002); F.3d 849 People v. (1991), 114 oth abrogated L.Ed.2d 458 on Jenkins, 1160, 122 Cal.App.4th 19 Cal. (In G.O.), grounds by People er re G.O. 386, Rptr.3d 395 But see Smith v. 37, 269, 245 Ill.Dec. 727 N.E.2d 191 Ill.2d Mullin, (10th 919, 379 F.3d 932-34 Cir. (Ill.2000). 1003, 1010 2004). provides specific Precedent also more hand, contrast, In the case at in Dr. in
guidance inquiry for our this case. Everington expert offered her unrebutted in a that Those cases which court decided opinion that Garner “does not have full suspect knowing with mental disabilities comprehension warnings of Miranda ly intelligently and waived his or her Mi his to remain silent.” J.A. at 373 generally exhibit one rights randa or both ¶ 17). (Everington Although Aff. at important of two characteristics not found state did not counter that evidence with cases, in this case. a number of expert contrary, major- evidence to the suspect produced expert evidence of men ity concludes that because of the limita- disabilities, produce any tal but did not test, Everington’s tions of the Grisso Dr. expert evidence that those disabilities affidavit report provide and “do not suffi- incapable knowingly made him or her that cient evidence Garner’s waiver was intelligently waiving rights Maj. not intelligent.” Op. give or that he or did not she valid First, majority that *24 Third, higher appoint right. to the Grisso test test scores Garner’s Grisso GRISSO, supra, warnings regarding right at to remain 1998 than in 1992. See tbl. 6. silent were identical in all relevant re- 83 tbl. 87 tbl. spects given by Frisby to those Officers Second, much majority makes Feldhaus, and Garner’s Grisso test subtest of the Grisso fact that the CMV signifi- results indicated that Garner had to Garner contained dif- test administered understanding cant difficulties language than the Miranda warn- ferent remain silent.7 Maj. at ings given Op. to Garner. 268. Specifically, majority in addition a number of also contends that Gar- slight language, differences in the Grisso ner’s results on the CMR and FRI sub- used, example, provide support test for the word tests little for Dr. Ever- “lawyer” “attorney” ington’s instead of and “inter- conclusion that Garner did not GRisso, rogation” “questioning.” adequately comprehend the Miranda instead However, First, many warnings. Maj. Op. of Dr. Ever- at supra, at 20. 266-69. by majority unaffected
ington’s conclusions are dismisses the results of the CMR First, despite differ- gave these differences. subtest because Garner unsatisfacto- “[nevertheless, ry only language, responses ques- ences in two of the four performance contrast, Dr. comparison Everington, by examinee’s tions. credit- results, in the manual noting to the norms offered will ed the CMR that Garner’s provide put mentally typi- an indication of the examinee’s score “below that of understanding subjects cal capacities persons relative adult as below well study IQ range.” in the research (Evering- other examinees his J.A. at 378 9). developed. instruments were ton Report majority’s rejection which the at regard- of Dr. comparative interpretations Everington’s Thus reliance on the CMR performance second-guessing the examinee’s relative to results amounts to 70-71, and, majority ing, supra, notes two limita- 7. The also other see at as the Grisso, test, although determined, tions of these limitations Grisso district court there is no indica- First, long. need not concern us an individu- tion that Garner’s Grisso test results are in may feign misunderstanding al or otherwise Second, any way inauthentic. the Grisso test responses. Maj. attempt give inaccurate validity does not measure the ultimate aof However, Op. at 270. the Grisso test includes That, Maj. Op. Miranda waiver. at 269-70. by internal which to determine mechanisms course, question for the is court. subject feigning whether a misunderstand- psychology questions an in forensic opinion expert presented' and material to him personally suggesting who administered the tests to receptive language is subtest, respect to the FRI intact.” Schmidtgoessling Garner. With Report at added). majority with the (emphasis takes issue subtest’s portion this of her methodology, calling “subjective it and le- Dr. report, Schmidtgoessling was describ- questionable.” Maj. gally Op. ing only observations, at 268-69. her initial observa- Citing authority critique, no for this tions later determined by to be inaccurate majority cursory own analy- substitutes its results from her own tests as well as expert opinion holding sis for that the FRI Smalldon, tests administered Dr. probative Schroeder,
subtest can be of a defendant’s Everington, and Dr. and the of the comprehension warnings. majority errs in relying on Dr. Schmidt- As the creator of the Grisso test has ex- goessling’s observations as substantive plained, developed the FRI subtest was in conclusions. The expert evidence that panel attorneys consultation with a appearance accurately did not re- GRISSO, supra, See psychologists. flect his level of intelligence and under- Moreover, the Grisso test as a whole standing also any undermines substantial subjected peer to extensive review reliance on the testimony officers’ during development its and has been appeared wide- to understand the ly accepted psychol- al., the field of forensic warnings. Morgan Cloud et Words Cf. id. Constitution, See Without Meaning: The
ogy.
74-76.8
Con-
fessions, and Mentally Retarded Suspects,
Additionally,
gives great
(2002) (dis-
U. Chi.
L.Rev.
511-14
weight to
tending
evidence
to show that
*25
cussing
difficulty
in estimating the lev-
knowingly
Garner did
and intelligently
understanding
el of
of those with mental
waive his Miranda
However,
rights.
this
disabilities).
subject
significant
evidence is
to
limita-
recognized by
majority.
tions not
Similarly,
majority
gives great
First,
majority
weight
credits statements from
police
to the fact that the
had no
Schmidtgoessling
Dr.
“ap-
reason to believe that Garner could not
understand his Miranda
peared
average
to be of near
intelligence”
rights
and that
“appeared
and
to be able to
all
police
understand
Garner told the
officers that
un
derstood his questions
presented
and material
rights. Maj.
atOp.
suggesting
receptive
that his
language
explained,
majori
is 265-66. As I have
Maj.
intact.”
Op.
(quoting ty’s
at 263-64
focus on whether the
had reason
2). However,
Schmidtgoessling Report at
to believe Garner could not make a know
Dr. Schmidtgoessling’s report
ing
intelligent
must be
and
waiver is at odds with
read in context. The relevant portion
Supreme
precedent. By
Court
focusing on
report
states:
appeared
“any
to whether Garner
outwardly
“[Garner]
exhibited
average intelligence by
observa- observable indications that he did not un
be
near
tion. His
memory appeared
Maj.
intact.
warnings,”
Op.
be
derstand the
at 265-
appeared
majority’s
He
to be able to
all
misguided analysis
understand
side
Fulero,
argues
Evering-
Everington
Compe
8. The
also
Dr.
& Solomon M.
may
experience necessary
ton
Measuring Understanding
lacked the
tence to Confess:
reliably
Suggestibility
administer the Grisso test to Gar
and
with Mental
of Defendants
fact,
Retardation,
Maj. Op.
ner in 1998.
at 270 n. 9. In
Dr.
37 Mental
212
Retardation
Everington
(1999);
scholarly
has coauthored two
arti
Solomon M.
&
Fulero Caroline Ever
published
ington, Assessing
cles—one of
Competency
which was
in 1995—
to Waive Mi
administering
Rights
that involved
the Grisso test to
with Mental Retar
Defendants
dation,
dozens of criminal defendants. See Caroline
19 Law & Hum. Behav.
533
gently
question of whether
waive their Miranda
See
steps
essential
Aikens,
actually
intelligence,
F.Supp.2d
(suppress
had the
matu
intelligent
suspect
IQ
make an
and know
a statement from a
with an
rity, etc. to
respect
to Garner’s
With
71 because he did not
ing waiver.
understand
rights
understood his
that he
right
statements
remain silent or
he was enti
waiver,
Everington
Dr.
concluded
lawyer present during ques
and
tled to have a
“cognitive
that Garner’s
report
her
tioning, despite
the fact that
officers
limitations make the likelihood of
linguistic
each
with him
warning
went over
one
in
misunderstanding
suggestibility
(af
one); Bernasco,
(describing how
warnings, although
he did under
“unusually susceptible to the
silent).
abilities are
stand
to remain
But see
authority figures”).
perceived wishes of
Mullin,
(concluding
cated that Garner could IV. CONCLUSION “right” define the and did not word under above, stand the For the reasons right to remain silent. Similar described I be- proper inquiry evidence has led other courts to conclude lieve that the in determin- suspects knowingly did not intelli whether a defendant a knowing made clear, 9. argue person To be I categori do not with Garner’s mental disabilities intelligent waiver his maturity, actual rights is the defendant’s
education, intelligence, compe- and mental tency. majority’s I believe the focus on conduct, and whether the to know that a defendant lacked the
reason intelligent to make a capacity waiver, departs from well-established Su- Furthermore, I
preme precedent. Court knowingly believe that Garner did not his be- intelligently waive interrogation. Accordingly, I fore judgment of the district would reverse and remand the case instruc- court tions that the district court issue the writ I corpus. respectfully
of habeas dissent. America, UNITED STATES of Plaintiff-Appellee, PETROFF-KLINE, Patricia Defendant-Appellant.
No. 08-3062.
Appeals,
United States Court of
Sixth Circuit.
Argued: Jan.
2009.
Decided and Filed: March
*27
cally
knowingly
intelligently
lawyer,
unable to
he had the
assistance of
social
worker,
rights, only
pre
member,
G.O.,
waive his Miranda
that the
family
cf.
ponderance of the evidence shows that Gar
(McMorrow, J.,
N.E.2d at
& n. 11
1021-22
ner did not do
in this
United
so
case.
dissenting) (stating
given
Cf.
that no confession
Macklin,
(6th Cir.)
States
900 F.2d
age
suspect
under the
15 should be
(describing
potential disempowering
ef
suspect
admitted into evidence unless the
ruling
people
fect
with mental disabili
permitted
lawyer, family
to consult with a
capacity
legal
do
waive
ties
not have the
member,
personally
or other adult
interested
denied,
rights), cert.
498 U.S.
111 S.Ct.
well-being
listing
in the child’s
states that
may