Jerry Lane Jurek v. W. J. Estelle, Jr., Director, Texas Dept. Of Corrections

questioned by police was a series of officers GEWIN, Before COLEMAN and GOLD- prosecutors. respites, There were some BERG, Judges. Circuit during apparently which Jurek was allowed sleep. prosecutors The officers and testi- GOLDBERG, Judge: Circuit they rights fied that warned Jurek of his Cuero, Texas, 2, 1974, February On least twice. In August the afternoon of Jerry Lane capital Austin, Texas, Jurek was convicted of Jurek was taken to 120miles leading up 1. See footnote infra. events to the confessions. The facts undisputed compellingly we recite are either supported by 2. Neither the state courts nor the federal dis- the record. findings trict made detailed about the were concerned they safety. At for his Twelve polygraph examination. away, for found, later, however, brought he was time, him the district court hours this lying; Cuero; with evidence that he subse prosecutors confronted as the back revealing verbal made a statement testified, then they were not satisfied quently Wendy involved in Adams’s he was confession, they interro with his first not used at This statement was death. again. hours after him About five gated trial, police it convinced the but Cuero, p. August m. on return to at 7:30 Wendy dead prosecutors that Adams was signed a written confes second body.3 to her and led them In this statement he admitted sion. p. August At 10:15 m. on Jurek was toward the vic had made sexual advances twenty-one hours to Cuero returned likely Jurek would tim. It seems and — brought magis- before after have been sentenced if he to death arrest — magistrate first time. The trate for the Jurek signed made this second statement.4 rights. magistrate him of his This advised forty-two after he this confession hours was not af- Jurek said “he could testified that During that time he first arrested. had and the would have lawyer ford a parents attorney. an seen neither nor 88, one,” Transcript at him Trial appoint twenty-two years was old when Jurek was attorney was Jurek appointed. but no events occurred. There was medical these jail interrogated and further returned to IQ testimony that he has a verbal of 66 and several officers. alphabet, is unable to the that he recite 18, August 1:15 a. m. on Jurek At about dollar, give change say or to how gave the first two written confes- year there in a many weeks what against eventually sions that were used He month comes before November. officers were Only him. law enforcement damage. from brain suffer taken, but present when the statement was signa- people mag two other witnessed the argues Jurek that his remark to them that Jurek ture and one of testified an attor request istrate constituted that the apprised rights had been of his says, ney; appointed, since none was the county at- voluntary. statement was The subsequently two written statements signing the torney testified before Ari under Miranda v. gave are inadmissible want a Jurek said that he did not statement 1602, 16 zona, L.Ed.2d S.Ct. admitted lawyer. In this statement Jurek argues (1966). Alternatively, Jurek and had Wendy that he had killed Adams were rights if his that even Miranda body her into a river. thrown violated, his cannot be used confessions were involuntari against they him because confession, Jurek was After he made this court The federal district ruled Victoria, Texas, ly given. jail to the at transferred points. on It acknowl against testi- both police from twenty miles Cuero. however, up that led edged, because that the events they fied that transferred Jurek place swimming pool Deposition Wiley from a Adams 3. See Cheatham Attorney her, argument, allegedly At oral Assistant but several other 45. the where he killed “During polygraph pool people left, apparently of Texas said: General examination, when at the law officers Transcript enforcement Trial and there some fact, dead, was, Wendy learned that that her They Adams evidence that Jurek and the victim knew each body river. had been thrown beforehand, see, Transcript g., other e. Trial searching river outside of Cue- started that she 1594. In his confession Jurek said ro.” request. pool voluntarily Exhib- left the at his its proved Thus it is far clear that the state at 1. from the time of Under the Texas law in force at attempted kidnapping. Since the an crime, punishable death murder was autopsy performed testified doctor who aggravating present. Tex. if an factor was the victim’s no bruises around that he found 1257(b). charged Penal Code Art. Jurek was bathing area, genital had not suit and that her aggravating having with the factor of commit- apparently tom, been the confession committing “in the ted murder course of attempted rape. only significant evidence of attempting kidnapping and forci- to commit Wendy rape upon ble took victim.” Jurek 448-49, “arouse the conscience of to the confessions go step would one fur- Mississippi,

the observer.” We U.S. Brown that, under all the cir- Second, ther. We believe (1936). 80 L.Ed. 682 even cumstances, were invol- Jurek’s confessions involuntary using an accurate confession untary. We therefore need decide violates the fifth against a defendant rights were violated as whether his Miranda person “No mandate amendment’s well. compelled . shall be criminal against case to be a witness himself.” deciding whether con Previous cases talismanic voluntary “yield fessions are no Accordingly, when we examine the con- ‘voluntariness,’ mechanically definition psychological physical stellation of situations where applicable to the host of pressures brought to bear a defendant question .the has arisen.” Schneckloth Jurek, they were we must ask whether like Bustamonte, 218, 224, pressures likely to cause him to the sorts of “Volun falsely; but the Court has confess tariness,” sense, in the constitutional is so unmistakably it clear that we cannot made anything difficult to define because almost Richmond, Rogers stop there.' police likely do is to influence the ac degree; mildly even a cused some go We must on to consider whether these phrased question, proper asked after warn pressures princi- sorts of offend ings, places pressure on some the defendant ples underlying self-incrimination give It is clear that not all answer. principles these is that it is clause. One of constitutionally such involun answers are government habitually unhealthy for the to tary. point But it is also clear that at some rely principal on the as its source of accused insistent; pressure can become too we evidence, because both say responses then are “in elicited peaceful process ques- The of simple and voluntary” prose and cannot be used to resort tioning breeds a readiness to cution. to define how much its efforts bullying physical and to force . much, however, pressure Supreme is too answer, right If there is a to an there only metaphors. Court has concatenated right expected to the soon seems to be a To be voluntary confession must be “the answer, is, guilt. to a confession product essentially free an and uncon —that Connecticut, strained choice.” v. Culombe Illinois, 478, 489, Escobedo v. 378 84 U.S. 568, 602, 1860, 1879, 367 U.S. 81 S.Ct. 6 1758, 1764, (1964), 12 L.Ed.2d 977 S.Ct. (1961). L.Ed.2d 1037 The decision to con (3d 1940) quoting Wigmore, 8 Evidence ed. self-determined,” Rog fess must “freely be 309, because, intangibly, more law en- Richmond, 534, 544, ers v. 365 U.S. 81 S.Ct. not, forcement authorities must in their at- 735, (1961), 5 product L.Ed.2d 760 “the of a actions, criminal titudes and treat defend- will,” rational intellect and a free Black prey ants as their or as a source of evidence Alabama, 199, 208, burn v. 361 80 S.Ct. U.S. generally to exploited. be Miranda v. See 274, 280, The defend Arizona, 436, 460, 1602, 384 U.S. 86 S.Ct. 16 resist,” Richmond, Rogers ant’s “will to v. (1966); Richmond, Rogers L.Ed.2d 694 v. 544, 735, 365 81 U.S. must not be 534, 541, 735, 365 81 5 U.S. L.Ed.2d overborne; ¿‘capacity nor can his for self- (1961). Relatedly, 760 the self-incrimina- critically impaired,” determination Cu [be] requiring tion our belief that clause reflects Connecticut, 602, lombe v. 367 U.S. at 81 person participate in his own condem- phrases S.Ct. 1860. By themselves these nation, right denying him even the altogether helpful, are not but do alert silent, digni- defiantly remain robs him aof. us to involuntary the two basic reasons that ty criminal must be that even accused First, they confessions cannot be used. preserve. allowed to unreliable, admitting so them into evidence mind, then, process policies denies the With these defendant due of law. See, Tucker, 433, g.e. Michigan v. 417 we must review the circumstances sur- U.S.

677 (1953), L.Ed. and has confes . held confessions. “The rounding Jurek’s partly a confession turns on involuntary voluntariness of because of sions to totality of circumstances effect of the suggestibility those who the unusual will.” United the defendant’s States Connecticut, gave them. See Culombe 1060, 1978). Ballard, (5th 586 F.2d Cir. 1860; 81 S.Ct. Fikes v. 367 U.S. Court, are, according Supreme We Alabama, 352 77 S.Ct. 281. U.S. . appellate court “duty under a Lehman, [as] States v. 468 F.2d also United and make an examine the entire record ‘to denied, Cir.), (7th cert. ultimate independent determination Thus 34 L.Ed.2d ” voluntariness,’ Beckwith v. Unit- issue of danger both there is a serious that Jurek 341, 348, States, ed 96 S.Ct. suscep want to and that his did not confess (1976), quoting Davis v. L.Ed.2d 1 police tibility to the officers’ influence made 737, 741-42, Carolina, North things him confess to he did do. (1966); see also danger heightened another cir This is Arizona, Mincey cumstance. The statements used in other apparently own words. words, court’s may we overturn district sentences, complete They are written issue even if it is not conclusion on this with even mostly grammatical, a touch clearly And when we examine erroneous. Apart improb from the legalese.5 inherent record, that Ju- we can conclude ability person that a Jurek’s limited involuntary. rek’s confessions were utter such coherent verbal skills could Jurek, with, whose begin person To like tracts, prosecutors see R. 2 at Yol. limited, likely to intelligence verbal is less a witness the confessions testified remain right be able to understand help compos given Jurek was some He also be unable to insist silent. Supreme Court ing the statements.6 right effectively be observed. said, repeatedly even in not in has cases reasons, has For these volving intelligence of low defendant repeatedly recognized that a confession suggestibility, that confessions are unusual is to be by person likely made more such a questionable they composed if are more See, 389 involuntary. g., Georgia, e. Sims v. prosecutor the or the by by the accused but 404, 523, 407, 634 88 19 L.Ed.2d U.S. S.Ct. See, York, police. g., Spano e. v. New 360 (1967); Connecticut, v. Culombe 315, 322, 1202, 3 1265 79 S.Ct. L.Ed.2d U.S. 1860, 624-25, 1037 81 6 L.Ed.2d S.Ct. Alabama, v. 361 (1959). See also Blackburn Alabama, 191, 196, 352 Fikes v. U.S. 199, 204, 207-08, 80 4 U.S. (1957). L.Ed.2d 246 Alabama, (1960); Fikes v. Perhaps significantly, psychologists more L.Ed.2d U.S. 77 S.Ct. hear corpus testified at federal habeas ing that the sort mental hand Jurek had of addition, In Jurek’s confessions were icaps particularly susceptible that him made extraordinary series of actions fruits of an suggestions to the and of others. influence actions police prosecutors; these and Supreme The has said that in decid Court of their effect significant because voluntary we both ing confession is whether a deciding whether Jurek and because . “[weigh] must . . the circumstances voluntary is we must consider power confession pressure of resistance police of the toward” confessing,” v. New “the manifest attitude person of the Stein Heard, 1077, 1093, 315 F.2d York, the defendant. Smith U.S. girls pick up Fairly typical I wish to second now herein 5. is this sentence from the some confession, giv- referring Exhibits to the first statement that at 2. correct statement.” attorney: “In that the statement en state gave 58, 61; I him I did not tell the truth about Wiley Deposition at Cheatham 6. See Wendy river and conversation I had with at the Transcript 1397. Trial trying prior to find about discussion about insist, prosecutors police The how 1963).7 arrest (5th Jurek was Cir. morning and taken in the ed at one o’clock they say— doubt what ever —and we do not without a shirt or shoes. from his home they during forty-two hours fre forty-two kept he was For at least hours rights, Jurek of his quently warned family given and not an away from his gave his first written confes that before from attorney. He was moved Cuero attorney. an But expressly refused sion Cuero, then to Austin and then back to not clear that Jurek would be able to it is again. back to Cuero See Cle Victoria and warnings unless understand the 707, 711, Texas, 87 S.Ct. wis simplest language.8 In the couched in the (1967) (compelled trav mentally handicapped defendant case of during interrogation suggest is a factor el Jurek, speak police the actions like involuntariness). these ac ing Whatever words, louder than and their actions their accomplish, their ef tions were intended to been to disorient Ju only fect could have that Jurek was enti surely suggest did not rek, heighten resistance and to weaken his tled to remain silent and to consult with an is unfortu suggestibility. And there recog attorney. Supreme Court has po nately some to believe reason nized this: They Jurek down. lice did intend break Petitioner in the continuous cus- had been They a warrant. arrested him without police eight for over hours tody of the effect cross-examined him on the basis during been fed at all and had not requires polygraph results. Texas law given time. He not been access to without person that a who is arrested “shall any point. family, friends or counsel brought unnecessary delay” be before illiterate, only grade a third He is magistrate, Arts. 14.- Tc -..Code Crim.Proc. 06, 15.16, education, police capacity carried is de- and a card whose mental “any unnecessary delay in tells them that cidedly such circumstanc- limited. Under taking magistrate an accused before a will police may fact have es the confession,” void a that a and indicates right petitioner warned of his statement be taken if “there is no significance. speak is of little available,” magistrate Exhibits 404, 407, Georgia, Sims magistrate see a Nevertheless Jurek did not 523, 525, twenty-one until hours after he was arrest- ed, police suggest and the do not that none fact, argues when he was was available earlier. The magistrate he did re- brought before the delay has this is said that sort evidence noted, quest As we have attorney. see, involuntary, g., e. that a confession had said magistrate testified that Jurek Texas, 707, 709, 87 Clewis v. lawyer and the that “he could not afford (1967); 18 L.Ed.2d 423 Fikes v. Ala- him one.” appoint Court would have to bama, n.2, 77 S.Ct. appointed None was and Jurek was taken clear; (1957), L.Ed.2d 246 and the reason is interroga- jail. After some further back to magistrate might help a the defend- break tion, county at- apparently Jurek told the psychological ant’s isolation and lift the attorney; torney that he did not want siege of the law enforcement authorities. The fed- then he made his first confession. po- the Jurek received no such relief until facts, court ruled that on these eral district lice had overcome and obtain- his resistance Arizona, rights Miranda v. Jurek’s under incriminating ed an verbal statement from 1602, 16 L.Ed.2d 694 him. 384 U.S. 86 S.Ct. police approach police helps attitudes The and motives of and motives of the First, interroga- important atmosphere for at least two reasons. us reconstruct of said, approach tion, police depends a and on we have for the where much on nuances prime criminal accused as a source of evidence the attitude the defendant. communicated principles is itself an offense supra. p. 676 clause. self-incrimination 58, 41. 8. See 2 at R. Vol. immediate, Second, evidence and more they trying resist the conclusion were a defend- not violated. (1965), were When however, counsel, Miranda re- requests ant that would send Jurek gain the evidence immediate- interrogation to cease quires the Supreme The Court has ad- to his death. “waiver” of counsel— ly; any subsequent specifically to this sort of dressed itself Jurek made to the such as the statement purposive interrogation: his first confes- county attorney before merely try- police The were not therefore significance. United legal sion —has no crime, ing or even to absolve a to solve Priest, (5th Cir. 409 F.2d States rather con- suspect. They . . . were magis- 1969). if remark to the Thus securing a state- primarily cerned counsel, request both trate constituted they which defendant on could ment from automatically of Jurek’s confessions undeviating intent of him. The convict Miranda, irrespective inadmissible under a confession from the officers to extract And Jurek’s re- the other circumstances. patent. is therefore When petitioner such a may mark well have constituted shown, this Court has such an intent light of his limited request, especially in obtained must be held that the confession and of the events of verbal abilities scrutiny examined careful with the most hours. But we do not previous twenty-one inexplica- magistrate’s whether the decide counsel, and the sub- appoint failure to

ble York, 323-24, New Spano v. interrogation, formally sequent continued 1202, 1207, Rather, we consider the violated Miranda. Texas, See Clewis v. 386 U.S. 711 — possible of Jurek’s re- careless treatment 1338, 18 L.Ed.2d Cham quest attorney for an to be further evidence 227, 232-35, 240, Florida, bers v. of his confessions. It of the involuntariness 84 L.Ed. 716 At the time inherently coercive is an indication that the statement, of the first written the officers see Miranda v. custody, nature of Jurek’s Wendy knew Adams was dead and Arizona, her;11 had killed thus believed that Jurek (1966), dispelled. never was too, statement, product signed the even after Jurek had Finally, “undeviating” efforts “to extract officers’ did not re first statement the authorities follow the confession.” When we from Cuero to Vic lent. moved him They these con instruction to scrutinize Court’s him back because brought toria but then they were the closely, we find that fessions (Trial “feeling” attorney had a district isolation prolonged, continuous result of the 1326) I “from when first Transcript at suggestible, repeated interrogation of (Deposition of found that she was dead” handicapped defendant. Cue mentally 62) in that sex was Wiley Cheatham faced with a prosecutors were police ro For this reason the volved in the offense.9 crime, of Jurek and their treatment brutal and, some again questioned officials some, humanly understanda may, to seem arrest, forty hours after his obtained the Constitution, ble. But violated statement; said, second as we have without grave consequences. way a serious escaped this statement Jurek well have surrounding the all the circumstances When they questioned the death sentence. When issue is together the confessions are viewed his second con Jurek in an effort to elicit Jurek’s con very close. We hold fession, trying to were not the authorities The Texas trial involuntary. fessions were Adams, already they for Wendy find them to be allowed should not have court they try were not even body;10 found her him, is entitled to a and he used her, Jurek had ing to killed for find out who new trial. to that. It is difficult already confessed Wiley Deposition attorney at 69. Apparently 10. Cheatham had no evi- the district 9. “feeling.” Deposition support dence to Wiley supra. Cheatham at 62. 11. See footnote 3 Q you you feel that could serve as II. [D]o juror? impartial a fair and claiming that his confes- In addition to A involuntary, asserts Yes. sions were Illinois, 510, 88 Witherspoon v. then, Q You do. And now right. All (1968), requires if the you, place, could in the first Wither- to overturn his death sentence. us justified it, find a you facts could “cannot be spoon held that a death sentence guilty case of a given defendant in a imposed or carried out if capital offense? excluding chosen recommended it was A Yeah. they simply because veniremen for cause certain about Q right. you And are All objections pen- the death general voiced that? religious or alty expressed or conscientious Id. at scruples against its infliction.” Yes, A sir. A exclude at 1777. state Q you answer . [C]ould jurors who make it “un- prospective those morning questions those I this read mistakably clear . . . would which, [questions . if answer- against” pen- the death automatically vote jury, require affirmatively by ed regard any evidence that alty “without be sentenced to defendant trial,” or whose might developed at the death], you answer them ac- could penalty would “attitude toward death cording and the facts facts making impartial prevent them from alone, your in accordance with guilt.” Id. at decision as to the defendant’s thoughts? (emphasis 522 n. A Yes. concedes that original). practically Texas potential juror one was excluded at least examination, this ex- At the end of the jury that convicted and for cause from the change place: took her solely sentenced Jurek because of con- Gentlemen, there THE are COURT: capital scruples against punish- scientious any questions to her? claims, however, that Jurek ment. Texas We would [STATE’S ATTORNEY]: Witherspoon apparent cannot raise this vio- cause, challenge Your Honor. corpus pro- lation in these federal habeas right. THE COURT: All You are ex- not raise it at the ceedings because he did cused, you, young lady. trial. and thank juror, please. Next In her voir dire examination the trial Schroeder, judge, prospective Mrs. Robert Trial 604-06. Jurek’s trial Transcript juror, “any was asked if she had conscien- nothing. objected He neither counsel said assessing death scruples tious about explicitly to Mrs. exclusion nor Schroeder’s “any scruples or penalty proper in a case” agreed to it. against” answered capital punishment. She Excluding Mrs. Schroeder I in it.” The “Yeah. don’t believe Witherspoon violation. cause was a clear her, deliberating you also asked “While scruples against capi She had conscientious innocence, guilt on the case and the punishment, quite clearly af tal but she your would be affected in deliberations impartially decide firmed that she could way [by you the fact that would later have she could vote in guilt or innocence and that to sentence the defend- to decide whether penalty if she imposing the death favor of “yes”. ant to said Then she She death]?” thought her to.12 Ordi- required was asked: the facts testimony prospective ly arguable Compare Wither- considered his exclusion State, Also, juror (Tex. spoon held Tezeno v. 484 S.W.2d 374 violation. infra, jurors prospective Cr.App.1972), quoted in footnote 15 who the exclusion of several State, (Tex.Cr.App. said that “no facts or circumstances whatever” in Harris v. 457 S.W.2d 903 Texas, 1970), Witherspoon, impose Harris v. would cause him to a death sentence. violated Appeals apparent- The Texas Court of Criminal

681 it was not claim barred because raised at Witherspoon then, would constrain narily, judge, for slight Texas district court. But trial. The federal to the district us reverse reasons,14 thought ly different also that in acquiescing Mrs. Schroe argues by that preserved. Witherspoon not been trial had from the Jurek’s claim der’s exclusion that Witherspoon agree. We do not We think Jurek’s whatever counsel forfeited Witherspoon precluded is not making argument, this claim claim had. In Wainwright Sykes v. and can be in raised a series of Court Texas relies on Wainwright v. proceeding. this federal habeas culminating in decisions13 2497, Sykes, 72, L.Ed.2d 97 S.Ct. 53 place, Sykes may be In the irrele first (1977). 594 Sykes vant involved a Jurek’s claim. specific a rule of Sykes petitioned for defendant who violated prisoner In Florida claiming procedure required contem that state- Florida that corpus, federal habeas admitting allegedly Miranda inadequate poraneous objection to after ments obtained evidence; illegal into under admitted at his trial. confessions warnings had been law, violating for not, however, objected penalty when Florida that He at trial In admitted, gener under rule is that claim is forfeited. were statements Sykes al, object contem- with the extent which a failure to deals Florida law such objection. such a a defendant The Su- state forfeiture bars poraneously forfeits from federal procedural bar in habeas preme asserting held that this the claim Court 97 corpus proceedings. must the defendant from rais- 2502- prevent also may not ing proceedings habeas 03. Jurek’s trial counsel have vio his claim in federal any procedural for his lated rules at all. His unless show both “cause” Texas he could “prejudice” resulting object failure to Mrs. dis object failure Schroeder’s argues may any missal forfeited from Texas in effect not have claims failure. Witherspoon even under Sykes, Texas law.15 under them, many (1971) (mem.), though you, even Thank sir. “Q least, (District attorney:) challenge far less certain than Mrs. Schroeder We’ll for cause. (Defense attorney:) objection, could vote the death about whether No Your Honor. excused, penalty. right. at 908. See 457 S.W.2d “THE All You’re COURT: Mr. Juror.” Williams, 501, g., 13. E. v. 425 96 Estelle U.S. appeal, 484 the defend- S.W.2d at 382-83. On 1691, (1976); 126 v. Davis argued Witherspoon; ant raised state States, 1577, 36 United any Witherspoon had been waived. violation Appeals explicitly The Texas Court of Criminal Witherspoon ruled violation had not 14. infra. See footnote 18 objection apparently been waived. “Waiver tried, not, itself, improper Texas at the time Jurek was will lenge.” vitiate an chal- object judge’s failure to to a trial defendant’s at 383 Id. n.2. juror potential excuse a for cause trial, point decision to apparently law on this Since Jurek’s Texas preclude State, did not defendant from has become less clear. In Boulware v. claiming later that the decision With- (Tex.Cr.App.1976), violated 542 S.W.2d 677 rt. denied ce State, erspoon. Tezeno v. 484 S.W.2d 374 U.S. 97 S.Ct. L.Ed.2d (Tex.Cr.App. 1972), testimony involved this (1977), Appeals the Texas of Criminal potential juror: rule, appeared Tezeno id. at both to endorse the “ * * * object you a failure to to a have to hold that Do conscientious objection, challenge scruples against id. at as a for cause forfeits the assessment of death murder, punishment 683. The be that Boulware the crime of in a reason for the explicitly case, implicitly or proper defendant’s counsel sir? challenge joined Yes, sir, prosecution’s cause. “A I do. State, it, answer, then, by your Hughes see 562 S.W.2d But I take “Q State, (Tex.Cr.App. 1978); S.W.2d whatev- Hovila there are no facts or circumstances State, er, Shippy (Tex.Cr.App.1978); justify you, personally, in ren- that would denied, (Tex.Cr.App.) dering cert. 556 S.W.2d a death verdict in a murder case? 54 L.Ed.2d 294 “A 1 don’t believe I could. State, just absolutely op- right. 543 S.W.2d White v. All You’re “Q denied, (Tex.Cr.App.1976) posed penalty, rt. to that conscientious ce Tez grounds? But law when Jurek Yes, eno seems to have been the “A sir. brought by attorney a different forfeiture violated a Texas Even if Jurek —Jurek’s pro Wainwright Sykes his failure to trial counsel knew that rule, however, so against capital jurors scruples Jurek has shown tect we believe that apply, does Never thus his Wither- would be attacked.16 punishment “prejudice”; “cause” theless, although protested that he knew starting he spoon claim is not barred. Witherspoon, he had diffi “preju- and understood into “cause” and point inquiry of an See holding. Sykes coherently stating its culty left undefined dice” —terms testimony at Indeed his Deposition for the defend- at 60. actual reason Court —is the hearing suggests rights at habeas his federal ant’s failure to assert thought Witherspoon required jurors all is obvious. this case that reason trial. strongly punishment to opposed capital either was to appointed trial counsel Witherspoon decision (then excluded,17 contradictory almost be ignorant Notably, of the case. holding misunderstood the actual years old) completely five court, although it ruled object Mrs. fail to to federal district it. Not did he issue,18 Witherspoon jury; when Jurek on from the exclusion Schroeder’s find that his trial counsel jurors expressed misgivings expressly did potential other Witherspoon. We think it clear press he did not understood capital punishment about if Wither- now asks that that counsel did not. attempt for clarification or to see was denied the effective spoon protected them. He did not mention we hold that he counsel at trial. We decline to Witherspoon during the voir dire and seems assistance of so, that Jurek has estab single question in a do but we do hold phrased not to have raise the for his failure to designed advantage By to take of it. lished “cause” way proceeding— Witherspoon at trial. the federal habeas claim the time of evidentiary tiary principle tried, inference or is en- cannot be said to was have forfeited Jurek’s so his trial counsel rights. Witherspoon tirely different from a forfeiture rule and has Patterson, nothing Sykes. v. Alabama ex rel. Wainwright NAACP If to do with 457-58, 78 S.Ct. Witherspoon Jurek’s counsel did not forfeit the Turner, parte Ex 542 S.W.2d law, under Texas claim Texas cannot contend (Tex.Cr. App. 1976). Sykes requires Wainwright that claim to that in Tezeno the Texas We should note habeas court. be barred from federal deny failure to court did not object spective juror’s testimony said, that counsel’s Deposition 16. See at 34-35. pro- significance. has some Since the equivocal, it object 2 at 134-35. See also Trial 17. See R. Vol. defense was that counsel’s failure Transcript interpreted at 683-84. evidence that the trial court juror testimony correctly when it ruled that the challenged could be for cause: trial 18. The district held that Jurek’s object] defendant’s failure to is . [The acquiescence in Mrs. Schroeder’s ex- counsel’s clusion was in effect a Apparently a factor to be considered in cases such as the challenge. peremptory bar, meaning where the exact of a one thought trial was that Jurek’s venireman’s answer cannot be ascertained with total did not on the counsel want Mrs. Schroeder accuracy from the words of his challenge peremptory if and could save a present judge being answer alone. The trial and challenge simply acquiesced improper in the observe, having opportunity difficulties for cause. There are at least two ruling of trial not be dis- court should First, law that with this conclusion. the Texas showing turbed in the absence of a of clear tried, evidently prevailed see when Jurek was abuse of discretion. supra, permitted who footnote 15 a defendant evidentiary prin- 484 S.W.2d at 383 n. 2. This challenge silently acquiesced in erroneous ciple unimportant a federal is of course not later, for cause to raise the error whatever court, habeas court’s which defer to a state must Second, acquiescence. do reason for his we many findings circumstances. of fact in what trial not know counsel’s tactics would Similarly, 2254(d). in Estelle v. See 28 U.S.C. § Wither- have been if under he had known that Williams, properly spoon Mrs. Schroeder could not appar- (1976), L.Ed.2d 126 ently not, course, in- object for cause. We do excused failure to viewed defense counsel’s attorney may suggest wearing prison that a defense while on tend to trial as evidence that the client’s clothes jurors challenges against peremptory been client had not use 512-13; so, compelled challenge protects Witherspoon the Court to do see id. from a whom problem as one in- did not seem to treat the cause. volving a state rule. But an eviden- forfeiture hospitable to his federal Wain claim. variety for a We reach this conclusion wright Sykes and its antecedents v. it First, make our earlier decisions inter reasons. deciding clear in whether that violation Wainwright Sykes v. hold that at preting forfeits procedural of a rule a federal state “cause,” can torney misfeasance constitute two right, we must consider factors— States, 876, see v. United 571 Sincox F.2d legitimate a whether the state has interest Estelle, v. 1978); Jiminez (5th 879-80 Cir. breached,20 enforcing in the rule that was 1977);19 Jurek’s (5th F.2d Cir. at 557 506 created and whether state has a forum significant torney’s ignorance of a apparent sufficiently receptive is to federal is form of right a serious constitutional Texas’s interest in requiring claims.21 an Indeed, Sykes empha itself misfeasance. objection improper challenges immediate to attorney sizes the role of the defense And in general, undeniably is substantial.22 see 97 at strategist, trial tactician and S.Ct. plainly, enforcing such a rule will un not 14, says purpose of 2508 at that one n. But duly rights. federal our cases burden requirement is to ensure that the “cause” simply make it clear we cannot con by choices made counsel considered tactical abstract; general, in the sider the rule Id. binding. final at 2508. Jurek’s are it in the operates particu we must see how abdication, through igno attorney’s trial Moreover, lar before us.23 we must case rance, right of his client’s constitutional is in the view the rule context other state of a tactical antithesis considered See, g., e. laws, rules, Wain practices. to Allowing keep choice. that abdication us 2507-08; wright Sykes, v. Fran 97 S.Ct. considering from constitutional Henderson, 536, cis v. 425 96 U.S. S.Ct. require “cause” expand claim would 1708, 1710-11, (1976). 149 48 L.Ed.2d Sykes apparently ment what in beyond cases, espe- In defense criminal counsel — tended. cially appointed part counsel —is a crucial Second, Jurek has shown “cause” be principle This seems es- this context. well particular indicated, example, cause he shown that in this has We have tablished. case, insufficiently denying a continuance to defendant procedures Texas cases, illegal course, evidence. most an trial need not alert 19. Of the misfeasance amount judge expected to a right of the defendant’s constitutional be to make an incorrect denial can counsel; ruling challenge to if it would be an inde- did it even on a for cause when pendently grant attorney object sufficient reason to relief and opposing chal- does not other would make it immaterial whether consti- lenge. always, judge have Almost the trial will tutional claims had been forfeited. See also all information needs to rule on the he States, Sincox United (5th F.2d 879 n.3 v. 571 rely bring challenge; need on counsel to 1978). Cir. Relatedly, facts to his attention. there is less danger prospective evidence about See, Wainwright Sykes, g., 20. 97 e. v. S.Ct. juror’s will stale the time the dismissal be 2507-08; Henderson, Francis v. proceedings. issue is raised federal habeas 1708, 1710-11, (1976). 2508-09, Wainwright Sykes, See v. 97 S.Ct. at See, analogous example, 21. context 2507. of sions, Court review of state court deci- Comm’n, State Lawrence v. Tax breach we have excused a defendant’s Thus 52 S.Ct. 76 L.Ed. presumably acceptable requiring of a rule con Wechsler, Davis v. U.S. trial; claims to stitutional be raised at said we L.Ed. 143 particular in the case claim would court, obviously rejected have been the state requiring objection pre- 22. The an rule such raising gesture. so it would have been a futile attorney deliberately, tactically an vents from 651, 653-54 Estelle, (5th Cir. Rummel v. 587 F.2d withholding objection raising it if and then Estelle, (en banc). 1978) St. John v. See also objection verdict. loses the An immediate banc, (5th Cir.), adopted en F.2d also his error and enables the to correct (5th 1977) (breach contem F.2d 168 Cir. prosecutor allows the whether he to decide if, might poraneous objection rule excused challenge peremptory wants to exclude to use a case, particular had moved for in the defendant hand, juror. a failure to On the other instruction); limiting Henry Mississippi, 379 v. object immediately challenge improper to an 13 L.Ed.2d 408 failure, likely injure less like the state than Sykes’s, object allegedly to the admission Third, explicit purposes we think the two attorney be un inexperienced with an Sykes the same though, Wainwright even under constitutional of the doctrine of circumstances, permissible would be it Sykes The in this case. served to a defendant with refuse a continuance go the defendant must for stressed that See, knowledgeable counsel. experienced, explanation procedural of his ward with Uptain, 531 F.2d g., e. United States 2508; Jurek, default, 97 here as we 1281, 1286 1976) cases). (5th (citing Cir. noted, provided compelling ex have has Sarafite, Ungar also planation. Sykes Court also made a 849-50, (1964). In to focus point of its intention not on the words, deciding other in whether a state personal making pro role in a defendant’s a procedural rule or decision has violated but, said, cedural choice as we have on rights, we must take account of defendant’s 2507; decisions, counsel’s see here id. shortcomings of the coun defendant’s argument Jurek’s not on Jurek’s own relies sel; combined effect of we must assess the in his counsel’s actions participate failure to procedure state and the defense attor but on his counsel’s failure to make an ney’s deficiencies. If we must consider this informed choice.25 whether a combined effect when we decide particular rights constitutional defendant’s we believe For these reasons violated, have been we should consider which amounts to an attorney misfeasance procedural same combined effect of state duty to make informed abdication of the rules and defense counsel deficiencies when at trial constitutes “cause” tactical choices we decide whether a defendant has received meaning Wainwright of within the his adequate an state forum for federal Sykes. claims. analysis plain this it is that Jurek did On “Prejudice” complex is a less adequate not receive an state forum Georgia, 429 97 matter. Davis v. U.S. Witherspoon By specifying claim. that ob (1976) (per cu S.Ct. jections improper challenges be to must Beto, riam), (5th and Marion v. 434 F.2d 29 immediately, pro made Texas established a 1970), denied, Cir. cert. U.S. requirement obviously cedural which cannot (1971), compel us 28 L.Ed.2d attorney be met unaware of Wither- excluding juror even in to hold that one spoon. just Then Texas licensed such an Witherspoon prejudicial. violation of is Da attorney appointed represent him to and vis and Marion make it clear that a Wither- case, then, particular Jurek. this Texas spoon apparently violation is not the sort of effectively impossible made it for Jurek to harmless error Witherspoon assert his claim. We can dis Wainwright prejudicial found not be in to strong legitimate cern no state interest Sykes, enough doing justify Texas’s so.24 Since (1977), compare id. 97 L.Ed.2d 594 Jurek has shown that the Texas trial court (White, J., concurring) with id. at 2512 insufficiently hospitable to his federal (Brennan, J., claim, dissenting). and id. open we must the federal habeas violation, Witherspoon Nor a which un forum to him. principal rights rant of one of the of constitutional operating 24. Texas does have an interest in a in such a case. the defendant system licensing appointing large of and num- attorneys making judg- bers of without difficult ments about the abilities of each of them. Tex- that Jurek has been sen- 25. We must also note obviously expected as cannot be to cull out death; vindicating in tenced to his interest every attorney might scarcely who make an occasional right can be overstated. Under federal mistake, example. attorney’s Thus an tacti- a court must search as these circumstances ordinarily cal error would not constitute assiduously to find an excuse for a as it can excusing procedural default, prepared “cause” a default. But we procedural and must be doing have no reason to it will be exces- believe that so will claim whenever consider a federal sively costly appointing, integrity for Texas to avoid seriously undermine cases, attorney igno- capital procedures. lead counsel in state’s verdict, be validity While one must extra careful of jury’s of con- dermines rights involving stitutional in case such a prejudicial of the sort error held atrocious, crime, depraved, unspeakable Henderson, Francis year old has mercilessly which ten child (1976) Davis v. life, agree must been robbed her I States, 411 United Appeals the Texas Court Criminal For all these rea District Court the United States that Jurek sons, Witherspoon we believe that Jurek’s justifying to make failed out case federal upheld. We need not con claim should be intervention. points sider of the other raised Jur ek.26 Because both the involuntariness Appeals The Texas Court of Criminal Witherspoon of the confessions and the vio held that evidence sustained find- lation, ings trial court should have or district made, voluntarily confessions were Id. at that Jurek not be executed and that dered opinion appended will be Its this granted judgment a new trial. The dissent. and the case of the district court is reversed proceedings

remanded for consistent with cases, corpus As all habeas the burden this opinion. petitioner was the establish denial rights, Capps, Lokos of constitutional v. 5 and REMANDED.

REVERSED 576, Cir., 1976, 528 F.2d 578. At the eviden- tiary hearing peti- in District Court the our COLEMAN, Judge, dissenting. Circuit counsel, represented by tioner was able one a prestigious of whom was from out-of- undoubtedly At the time of the murder Nevertheless, state law firm. Jurek did not case, Jerry committed in this Lane Jurek gave take the stand. He no evi- witness age. was late years spending 22 of After a any dence as to coercion or involuntariness. beer, drinking repeated he made afternoon impairment a such If has mental of a year Wendy engage efforts to 10 old Adams not, not, degree that he could or did under- City in Park. conversation the Cuero of rights stand or the nature his confes- his They through sped were next seen as Jurek sions, District Court was not allowed to the in pickup, town in his the child the back witness stand. observe it from the Why nobody gave screaming help. and crime in the bud is nipped specifically chase this found that The District Court Wendy’s beyond explanation. body was re- there was no evidence that Jurek’s incarcer- Guadalupe jail two from the lack days covered later ation in the Victoria resulted in of State, 934, river, family; see Jurek v. 522 S.W.2d communication with his it further 1975). no that (Tex.Cr.App., 937 found that there was evidence Ju- clear, Arlington Heights capi particular, Court made see 429 In Jurek claims that Texas’s 270, 555, rely pattern punishment U.S. at 97 a tal statute is unconstitutional can on practice applied it is in an arbi or because administered or of discrimination arbitrariness fashion, trary capricious way identify intentionally and in a that and need not discrimi or natory poor against the and or a actor in the defend discriminates act malevolent Supreme particular upheld ant’s See States v. Tex males. The Texas’s case. United capital punishment Agency, face 913-14 & nn. statute on its at an as Educ. 579 F.2d addition, Texas, stage (5th 1978). litigation, v. as our citation earlier in this Jurek 5-7 Cir. Partida, of v. Castenada indicated, Spinkel (1976), course, (1977), ruling, but that of does not dispro preclude challenging constitutionality Wainwright, if a the of link v. 578 F.2d at arbitrary applied. Hop portionate impact results from con the statute as Wo Yick kins, relatively unstructured sentenc 30 L.Ed. 220 stitutional but noted, ing procedures permit Spinkellink of a the exercise As we have see that discretion, presume Wainwright, (1978), good will dis this deal of we 578 F.2d 614-16 place criminatory burden on the challenge the arbi intent and sort of must show intentional explain its deci conformed under the standards state it has trariness or discrimination how accepta Village Arlington Heights Metropolitan some of sions about sentences death Court, ble, Corp., Hous. Dev. neutral criterion. See Term, showing, (1977), a as the Harv.L.Rev. L.Ed.2d but such got jail. rek’s confessions resulted from or were until I see too many taking barefoot, by delay in strolling tainted before unshirted adults around findings clearly are not this magistrate. today These think that is a factor of significance. erroneous. constitutional on be at- I make no extended comment the significance No constitutional can dis- dismissal, majority cussion of the about to the fact Jurek was arrested tributed that objection, of warrant, prospective juror. without without a after he had been seen in speeding through pickup carrying town Jurek is to awarded a new trial Since screaming girl, crying ten out for year old ground confessions were help, had not seen. since which she been involuntary (it as a matter of law cannot be probable These thundered circumstances findings done on the factual heretofore cause been felony to believe that appropriate courts) in the and made a new it. committed and that Jurek committed It is to be selected if there is another noted, too, at the must be time trial, Witherspoon of the discussion is- thought arrest the officers child had unnecessary disposition sue is kidnapped and was been still alive. Therefore, regard I appeal. that discussion They trying to learn where could she record, however, as dicta. For the I will be found. This was prompted effort what say agree that I do not that Jurek is enti- trip Austin the polygraph test. point. to relief particularly tled on this I they unexpectedly What found out parte disagree conducting an ex bar had been child thrown river understanding examination of counsel’s thus murdered. practice the law. If we to start finding the absence of a of ineffective as- The majority opinion recognizes testi- counsel, up opening sistance we are new mony prior to his confession Jurek was unjustified avenues of federal habeas frequently rights advised of his and refused corpus litigation. attorney. This is said to make no differ- not helpless ence because “it clear I am deaf to the is not that Jurek of the cries being forcibly child drowned in the Guada- would able warnings be to understand the lupe. require- unless I am simplest were couched in the not insensitive to the must language”. applicable knowingly This the ment confessions turns bur- head; given. understandably and The record proof den of its squarely up on it was of anything reasonably devoid that would to show Jurek was not able to understand, suggest that Jurek is the mur- understood, innocent of and not the In my opinion, der. the record shows that shows, warnings. The record without dis- he confessed because he knew he was pute, probation that a officer who wit- I guilty. rejecting see no warrant for the confession, nessed the first testified that testimony per- uncontradicted of those who fully Jurek was of rights; aware his sonally knew the circumstances under he, officer, the probation explained those the which were made. confessions rights language; him in lay Jurek and assured giving him that he was the confes- Therefore, with all deference to the views sion of own free will. my contrary, of the I Brethren to must respectfully, emphatically, but dissent. Jurek;

We have never seen we have not seen any or heard the of witnesses. The APPENDIX majority disagrees the findings with all judges jurors the and who have done so and (Opinion of the Texas Court it its own follows notions of what the evi- Criminal Appeals) opin- dence should have In my established. Lastly, appellant claims his confessions ion, “independent findings” unjust- such argues were He record involuntary. the ified. “voluntarily, knowingly fails show he done, As I the would have District Court intelligently” and waived his constitutional significance attributed no rights. Appellant fact cites his limited mental (and shirt) length was barefoot without capacity and the and conduct interrogations

cells between and was of- beverages at various to the confessions fered times interrogation which led food day period. the confessions There is during indicate this two evi- which factors enough was alert to make involuntary. dence that he corrections in the confessions before minor arrested at m. on Appellant was 1:15 a. signing them. August six hours after approximately police At disappearance. the child’s head- separate hearing The court conducted a arresting the two officers read quarters, suppress the motion to two written warnings, ques- appellant his Miranda testify Appellant did ei- confessions. approximately him 45 minutes. tioned hearing sup- ther on the motion to at knowledge concerning He denied the merits. The press or at the trial on m., At 2:30 a. child’s whereabouts. was finding court entered an order cell, bed, placed jail which contained a voluntarily given. Fur- confessions were left until the morning, and was alone next thermore, question the court submitted the county attorney, when the who also read the confessions to of the voluntariness of appellant warnings, questioned his Miranda charge. jury in its approximately him He con- minutes. undisputed Absent evidence which would knowledge deny any about the tinued render the confession as a inadmissible mat- Two or child’s whereabouts. three other law, ter will reverse the the Court briefly during spoke officers with him findings jury of the trial as to morning. the voluntariness of the confession. Lisen- appel- officers took day, in the two Later California, ba v. During test. polygraph lant to Austin for 166; State, v. Jacks 167 Tex.Cr.R. L.Ed. murdering examination, he admitted 731; State, 317 S.W.2d Scanlin body later recovered on Her was girl. 357; McHenry 305 S.W.2d Tex.Cr.R. by appel- supplied of information basis State, 163 Tex.Cr.R. 293 S.W.2d 773. back arrived lant this time. officers supports finding amply The record appellant approximately Cuero appel- adversely'to court and the taken be- immediately 9:30 m. He a. State, lant. Compare Kendrick v. Tex.Cr. Ley, ap- who read Magistrate fore Albert 877; App., State, Grayson 481 S.W.2d magistrate’s certif- pellant rights from a later, Tex.Cr.App., af- four hours S.W.2d Approximately icate. by the district attor- being questioned

ter gave attorney, appellant

ney county and the stated The confession

his first confession. because she made the child he killed family. He about derogatory comments CHAPMAN, B. Charles County Jail Victoria was taken Petitioner-Appellant, to Cuero a. He was returned about 1:15 m. confession p. gave m. his second at 2:00 again speaking evening after 7:30 Director, ESTELLE, Jr., Texas W. J. attorney county and the district with the Corrections, Department of In the confes- others. attorney and several Respondent-Appellee. told the that he sion he stated 78-1609. No. statement and in his earlier complete truth refused girl killed the because she that he Appeals, United States advances. sexual Fifth Circuit. April was appellant reflects that The record his constitutional repeatedly warned Granted Rehearing En Banc evidence There no Miranda. rights under 5, 1979. June deprived of appellant in the record that 597 F.2d 590. in com- was not sleep, that he food or gave when he faculties of his plete control in his left alone He was the confessions.

Case Details

Case Name: Jerry Lane Jurek v. W. J. Estelle, Jr., Director, Texas Dept. Of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 23, 1979

Citation: 593 F.2d 672

Docket Number: 78-1374

Court Abbreviation: 5th Cir.