Kamathene Adonia Cooper v. P. Douglas Taylor, Warden T. Travis Medlock, the Attorney General of the State of South Carolina

because, clearly argues that we should follow the erroneous and absent suc- Plaintiff claims, plaintiff is no recovery cess on one of these and allow her of her lead of Cohen longer attorneys’ affirm entitled to fees. We attorneys’ notwithstanding our decision fees rejection plaintiff’s the district court’s claims. on the substantive “simple” claim for sex discrimination. We not determine need whether Co We plaintiffs cross-appeal have no need to reach the law of this The represents hen Circuit. challenging the terms of her reinstatement at factually signed in Cohen was distin consent direct the district court to dis- Vassar. We stipulation signed in guishable from the plaintiffs miss lawsuit. stipulation The this case recites that case. paid out said amounts [are] only upon comple Fund ...

Escrow any appeals from

tion and exhaustion of Judgment

the said Order and dated June liability judgment], and the 1994 [the Attorneys’

Judgment for fees and costs to herein; plaintiff or the final as entered COOPER, Kamathene Adonia remand, retrial, determination of Petitioner-Appellant, any provision in rehearing of said Order 30, 1994, Judgment filed June or the herein; Judgment or of to be filed TAYLOR, Warden; Douglas P. T. Travis appeal Defendant has filed a therefrom. Medlock, Attorney General Appeal July on or about Notice of Carolina, Respondents- State of South Clerk, District with the United States Appellees. Court, District, York, ap New Southern No. 93-7352. pealing every part each and of said Order Judgment, dated June Appeals, United States Court Court, United Circuit Second Cir States Fourth Circuit. cuit. Defendant intends to file a Notice of Clerk, Appeal with the United States Argued July 1995. York, Court, ap Southern District of New Decided Dec. 1995. every pealing part Judg each and Granted; Rehearing En Opinion Banc awarding ment to be entered herein attor Vacated Jan. neys’ plaintiff, fees and costs Court, United States Circuit Second Cir request

cuit. Defendant intends to consol appeals

idation of its from the two said

separate judgments. reserving In thus

JA at 361. attorneys’

challenge the award of fees on

appeal, stipulation exactly in this case did stipulation

what the court found the Cohen plaintiff

before it had failed to do. Because “prevailing party,”

is not a we vacate the attorneys’

district court’s award of fees and

costs.

CONCLUSION summary, judgments we vacate the find that the

the district court because we liability findings

district court’s on the sex claim, age

discrimination discrimination Equal Pay

claim and the Act claim were

gery. convictions sustained on These appeal sought and direct and the defendant post-conviction denied relief state petitioned then for a writ of court. He habe- corpus. Upon consideration of summary judgment, the motion for State’s1 magistrate judge court found that the state admitting tape in and tran- had erred But, script in view of confession. testimony as to two brief confessions made prior to the full con- the defendant fession, magistrate judge found this error appli- that the harmless and so recommended cation for habeas relief be denied. After de review, accepted the district court novo Robin-Vergeer, Bonnie llene ARGUED: granted summary judg- recommendation and Attorney, Appellate Litigation Supervising ment in favor of the State. University Georgetown Program, Law Cen- The determinative issue before us is ter, D.C., Appellant. Don- Washington, for admitting the state court’s error in whether Zelenka, Deputy Attorney ald John Chief Because, confession was harmless. Carolina, General, Columbia, Ap- for South after careful consideration of the entire rec Goldblatt, H. pellees. BRIEF: ON Steven ord, “impossible we find it to conclude” with Counsel, Susan Ciongoli, Adam Student C. assurance,” any “fair Kotteakos v. United Counsel, Gouldin, Appellate Curtin Student States, 750, 765, 1239, 1248, 328 U.S. 66 S.Ct. University Litigation Program, Georgetown (1946),that in 90 L.Ed. 1557 the error admit D.C., Center, Washington, Appel- Law ting tape transcript of this confession lant. injurious did not have a “substantial and NIEMEYER, HAMILTON, and verdict, Before effect or influence” on the we MOTZ, Judges. Circuit cannot hold this error harmless. Id. 1253; see also O’Neal McAn with instructions Reversed and remanded —inch, U.S. -, -, 992, 995, opinion. Judge DIANA published (1995); 130 L.Ed.2d 947 Brecht v. Abraham majority wrote the GRIBBON MOTZ son, 619, -, 1710, 1722, joined. opinion, Judge in HAMILTON (1993) (adopting L.Ed.2d standard Judge dissenting a NIEMEYER wrote Kotteakos). Accordingly, in set forth we opinion. reverse and remand this ease to the district court, grant with instructions the writ of OPINION corpus. habeas MOTZ, Judge: Circuit DIANA GRIBBON I.

This case involves a state court’s decision presented during in a criminal trial a evidence admit into evidence state proceedings Rheupert lengthy defendant’s and detailed con- established that W. counsel, fession made assistance of Stewart was found murdered his house without Carolina, though City, Saturday, had twice re- Lake on De- even the defendant South death, quested a trial in which At the time of his counsel. After short cember 1984. prosecution heavily wearing his relied on the Stewart was bathrobe over slacks, pocket confession and the court observed that the shirt and and the rear den, it, “hinge[d]” pants had been out. The outcome of the case turned found, body disarray convicted the defendant of murder and for- where his cerated, Medlock, Attorney respondents T. former named as in this ac- Travis has Douglas Taylor, Carolina. ease of refer- tion P. Warden of the Lieber General of South For ence, respondents we refer to the as the State. Correctional Institution where incar- polygraph for a headquarters Columbia chair scat- pieces of a broken wooden test; agreed. autopsy re- body. The around his tered beaten with had been vealed that Stewart McKenzie, Brumbies, Vause, along with a knife in the object stabbed with blunt car, Carey, Cooper, patrol in a took chest, the cause of death and that head and arrange City Department to the Lake Police After investi- knife wound to his head. was a polygraph drop exam and to off Chief police concluded that Stewart gation, the continuing to Columbia. Brumbies before day, previous murdered sometime Carey into the except All of the went officers the crime but neither November Carey seat of remained the back station. yielded any autopsy scene nor Cooper, who was hand- patrol car with identity murderer. time, Beverage that Alcoholic cuffed. At 3,1984, manag- Monday, December On Phillip Grimsley, walked Agent, Control Thomlinson’s, City department a Lake er of Grimsley just patrol car. had learned store, cashed police that he had informed Brumbies that the authorities had from Chief account for on Stewart’s a check drawn $289 his, acquaintance” of Ka- arrested “an old early Cooper in the after- Adonia Kamathene charge, Cooper, forgery on a and mathene After further investi- of November 30. noon police car with Cooper that “was back to ar- police a warrant gation, the obtained Carey.” Upon seeing Grimsley, Coo- Officer Upon learning that Cooper forgery. rest for Carey: goes Phil. I per “There said to unemployment office at the state Cooper was Carey him.” then would like to talk with Florence, police neighboring city of in the Grimsley patrol approach to motioned him until the to detain officers went there Kamathene, Grimsley “spoke ear. with An on him. officer could be served warrant doing him and what was asked how he a Miranda rights Cooper his from read they’ve got me for going He that on. stated responded Cooper affirma- warning card and it, cashing I ain’t stealing a check and but rights. if he understood his tively when asked Grimsley Cooper to killed no man.” asked questions, Cooper if he had asked When polygraph for the ride with him to Columbia Cooper “yes, forgery?” responded, what Grimsley he did not think he test. said nothing else. said could, like to [Cooper] would he but “asked Brumbies, thereafter, Shortly Chief Officer they he stated that he left and talk before McKenzie, Thomas Car- and Officer Thomas would.” City Department, Lake Police ey, all of the permission, Cooper Brumbies’ Chief With Car- Agent Gerald Vause South and breathalyzer room of the then taken to a (SLED) Division ar- Law Enforcement olina Vause, McKenzie, by Carey, police station Carey, presence the scene. rived on Brumbies, Grimsley. sat The officers and officers, the other served Coo- Vause talk, Cooper indi- Cooper to but down with again forgery and per the warrant for with Grimsley speak to wished to cated that he rights from the Miranda card. read him his Grimsley officers left. and so the other alone Cooper if he understood was asked When rights from a Miranda card Cooper read his did not want to rights, he stated he these that he initially protesting yet again. After The officers then drove any comment. make man,” Grimsley testified had not “killed no County De- Cooper to the Florence Sheriffs (an began crying, and Cooper upset, said agent state- became where with partment, Vause Grimsley prodding, “I it.” After further did jurisdiction) re-served wide [Grimsley] that testified that “told again rights him his from a read warrant with a card, three times there had hit Mr. Stewart Miranda purportedly because officer, chair;” Mr. that “he had stabbed Stewart Carey, City Lake was concern Before Coo- in the head and chest.” jurisdiction the warrant lacked to serve had statement, Grimsley any further Cooper per made Although aware that in Florence. willing to talk to Cooper if he would be right si- asked already to remain invoked provide a state- immediately other officers and lent, asked nevertheless Vause Cooper agreed. willing go ment. if to to SLED Cooper he would be Vause, McKenzie, lawyer, appointed you to and Brumbies returned hire one will Grimsley, breathalyzer represent you any questions, room with without if you you, you If Cooper whether he understood wish. consent answer Vause asked Grimsley rights any questions lawyer pres- had read him. Coo- now without a ent, per replied, “yes.” you Vause then asked still have the to remain happened.” “briefly you tell what Ac- [him] silent at time. Do wish to answer Vause, cording go “didn’t into a any questions you? that we ask time,” lot of detail at this said whole COOPER: Yeah. gone he had to Stewart’s home to after you McKENZIE: Do understand each of fixing that he rented from discuss the house rights explained you? I these have Stewart, he had asked Stewart for a basket- I COOPER: Yeah. can’t no law- afford pick ball and when Stewart leaned over to yer. chair, him, up, he hit Stewart with stabbed you McKENZIE: Do wish to answer these knife, and the took Stewart’s checkbook questions? threw behind a warehouse near Lake both Yeah. COOPER: City. Grimsley testified that he “did not hear and, fact, “only statement[ ]” the whole you McKENZIE: Do wish to have a law- hearing thing” he remembered at this time yer present? Cooper said he hit was that Stewart “with COOPER: Yeah. similarly the chair three times.” McKenzie lawyer present? want a McKENZIE: You exactly every- that he hear testified “didn’t COOPER: Yeah. “recall[ed],” thing,” Cooper he said he but as you McKENZIE: Do towish answer these “hit with the chair” and Mr. Stewart threw questions lawyer? without a a the checkbook and knife behind warehouse Yeah. COOPER: City.2 Cooper gave

in After Lake what the Kamathene, you acknowledges to be an McKENZIE: wish to an- State “abbreviated statement,” Respondents questions your attorney swer these Brief of without present, willing attorney present? officers him if he would be to without an asked go taped upstairs and make a statement. COOPER: Yes. Cooper again acquiesced. added). (emphasis exchange, After this upstairs, explained McKenzie McKenzie, Vause,

Once that Grimsley proceed- all going tape Cooper’s to officers were question Cooper ed to about the events relat- following exchange statement. The was then ing to Stewart’s murder. Vause testified recorded: nineteen-year Cooper “very that old was ner- “very upset” giving vous” and when

McKENZIE: This is the statement of Ka- shaking confession and his voice “was Cooper. Today’s mathene date is 12-3-84. way through.” all the Under the officers’ p.m. Time is 12:03 questioning, Cooper gave continued an ex- Kamathene, right, going All I’m what to do tremely detailed account of his brutal con- going you your rights. is I am to read Do duct in which for the first he time revealed you you understand that of these —each killing his motive for the and that he had rights you right have the to remain silent. planned intended and it. right You have the to remain silent and if you confession, questions you wish to answer Do In the Cooper said that you right morning wish have the to remain gone of November he had to— Anything you say door, silent. can and will be to home and Stewart’s knocked on the you in against used a court. You have the time Stewart let him in. In re- lawyer sponse questions, to talk to a and have him to the officers’ Cooper re- present during any questioning. purpose You vealed that the of his visit was to you lawyer fixing cannot talk to Stewart about the house that have —if afford any testimony by 2. The not reflect record does ment. any portion Chief to of this state- Brumbies as precise family Cooper and the location warehouse from him: rented getting Cooper upset everyone else was where had discarded knife and “wasn’t and his house Cooper

their houses “fixed” After made the checkbook. Cooper also confessed getting confession, fixed.” Cooper guided the officers to the him that he brought a knife with warehouse; he had they subsequently, were able to against” Stewart. order “to use knife, did checkbook, recover the Cooper acknowledged questioning, Under vicinity of that warehouse. to house that this meant he went Stewart’s arranged McKenzie for the ... or robbing intention “either with the day, he to be transcribed. The next sion hurting” Stewart. recounted brought resulting transcript to newspapers, he asked for when Stewart Cooper signed At holding cell it. gave papers him and even “went Stewart time, also obtained handwrit- McKenzie bag” put in. got for them ing exemplars Cooper, which estab- from asked Cooper also stated that when then Cooper had written check lished that give him a basketball that was Stewart department at the store. cashed floor, lying on the Stewart bent down being ques- Upon the ball. further retrieve state December trial court On tioned, Cooper that he asked admitted hearing pursuant v. conducted Jackson so basketball that when Stewart Denno, get it, Cooper stooping over Stewart to determine if L.Ed.2d hit a chair. Stew- could Stewart with While be Cooper’s statements should excluded over, hit bent him three art was they involuntary or otherwise cause and then stabbed Stew- times with chair rights in violation of his constitutional taken head. art Arizona, as set forth Miranda questions, Cooper response to other 1602, 16L.Ed.2d 694 and taped confession that after admitted Arizona, Edwards v. checkbook and searched he took Stewart’s (1981). L.Ed.2d In to addition pants pocket house for and back Stewart’s witnesses, testimony, expert the officers’ house, valuables, abandoning he left the Geoffrey Morgan, Dr. Dr. McKee and Donald though even was “still breath- victim Stewart evidentiary hearing the on behalf testified then ing Cooper a little.” confessed that he Morgan of defense. Drs. McKee and the the from checkbook took some of checks the testimony at trial. also reiterated their away the and the knife and threw checkbook McKee, psychologist, forensic Dr. senior County Lake warehouse. He told the near a I.Q. “full of that had a scale testified gotten some on his officers that he had blood “in that was explained Dr. McKee this 78.” home, jeans pants, changed and so he went range functioning intellectual the borderline jeans at “washer- and then washed the the approximately the lower sixth representing night. ques- that ette” later Under further Moreover, according percentile.” to seventh had tioning, he admitted that after he McKee, Cooper tested even worse to Dr. Thomlinson’s, clothes, changed went to he vocabulary, comprehension, and rea- abstract store, and, County department Lake be- ability Dr. McKee testified soning skills. 30, a p.m. and on 12:80 1:00 November tween reasoning capacity for abstract Cooper’s department employee cashed one male store impaired by the been further would have of checks had taken from Stewart. he he was in at situation which stressful officers, agreed request of Upon Finally, Dr. McKee time of his arrest. to taped confession to take them where that, Cooper although the time opined knife and The he had thrown the checkbook. (October 1987) testing seemed understand included de- taped confession also detailed rights, “lim- Cooper’s in view of his Miranda clothing of the had scriptions Stewart situation,” intellect,” “very stressful ited wearing, layout and contents been contradictory house, affirmative answers and his touched what had Stewart’s confession, questions during taped house, checks the number of (about six), [Cooper’s] capacity doctor had “doubt about from checkbook taken Stewart’s it[;] and given opportunity to read his Miranda and waive fully understand of the cir- at the time of the considered all years earlier I have likewise rights” three Morgan, totality a Professor cir- using Dr. Donald “the of the crime. cumstances University of South Car- Psychiatry at cumstances.” Medicine, testified that he had olina School opinion that it is admissible. I am of the two occasions. Based Cooper on examined Cooper, the testi- conversations on his trial, Cooper’s timely objections at Over hearing, suppression mony at the he heard played in full for taped confession was confession, opined taped and the jury provided typed with a jury, and the “very distraught and nervous Cooper was signed copy the confession to read and Dr. interrogation. during the upset” played. taped The confession tape Cooper’s border- Morgan also concluded trial tran- pages nineteen of the consumed particu- capacity made him line intellectual recognized, the script, and as the trial court of his arrest larly susceptible to the stress day “hinge[d]” of the and a half trial outcome “capacity perform and that repeatedly confession. It was marketably [sic] judgment at that time was indeed, the prosecution; relied impaired.” prosecution referred judge the motion to trial denied The state argu- closing times in a more than fifteen entirety was as ruling in its suppress. His only twenty transcript ment that covers follows: addition, tape signed copy pages. suppress any motion to right. All Your provided to the confession were I have been to be offered which statements jury during its deliberations. The sub- during hearing and the hand- advised sequently Cooper3 present- convicted —who exemplar are denied. writing forgery ed no defense —of murder beyond a reasonable I as a fact and find acquitted robbery. him of armed prior was warned that the defendant doubt prison, plus him sentenced to life seven That he had the any questioning. years forgery. anything That he said to remain silent. Cooper appealed him in a court of law. his convictions and sen- against could be used presence right to the of an That he had the tences to the Court of South Car- one, alia, one attorney olina, if he couldn’t afford asserting, inter that the admission appointed for him. And that would confession after he had “re- given, I’m the warnings were after such quested but was not afforded counsel” violat- fully defendant understood opinion that the rights ed his under the Sixth and Fourteenth knowingly rights that he and those and affirmed the con- Amendments. The Court agreed and intelligently waived them Cooper proceeded to victions and sentences. a questions or make statement. answer the court, apply post-conviction for relief in state Now, ruling, I making this have con- which was denied. physical psy- or that there was no sidered petition then filed this first— —his He not worn chological pressure. was § pursuant to 28 2254. U.S.C. interrogation by any improper tac- down alia, claimed, inter that he “asked for an any lengthy questions. There was tics or attorney every given time he was each trickery and there was no [sic] no or deceit his Miranda rights,” the court “commit- coercion, threats or intimidation error it decided to admit ted reversible when taped made and that the statement was by illegally po- that was taken evidence day thereafter transcribed one officers,” “[c]onviction [was] lice his offi- and the submitted to defendant^] by [a] obtained use of coerced confession” testimony undisputed is that the de- cer’s right voluntarily signed having and in violation of his “to have counsel it after fendant rors, applicable result of none of which is here. See State convictions were the These 332, previously tried and He had been Cooper, second trial. v. 291 S.C. 353 S.E.2d 441 murder, robbery, Torrence, and for- convicted of armed grounds overruled on other State v. gery; Supreme Carolina re- Court of South 315, (1991). 45, 305 S.C. 406 S.E.2d 329 multiple er- because of versed these convictions The of our former. during interrogation.” consider- because resolution present On summary dispositive issue in case is thus whether motion this ation State’s taped into con- judge the admission evidence judgment, magistrate found Edwards, statement, fession, although is under is to the the record error “[a]s right to his petitioner clear that invoked nevertheless harmless.4 counsel,” was that “the confession suspect “if a re- Edwards established that petitioner’s right to made violation of during time inter- quests [an] counsel Edwards, under and that its admis- counsel” officials], [by law is not view enforcement However, the into was error. sion evidence subject lawyer to further until questioning magistrate judge concluded that suspect made or the him- has been available harmless was nonetheless because reinitiates v. self conversation.” Davis Unit- Cooper forged one of heard evidence that States, -, -, ed 114 S.Ct. checks and because Stewart’s (1994). 2350, 2354-55, 129 L.Ed.2d 362 The two oral statement was “cumulative holding mandated the Fifth Edwards confessions,” properly had been admit- right protected Amendment Miranda “to reason, magistrate For this ted. present custodial interro have counsel of habeas recommended denial relief. Edwards, 485, 101 gation.” objections pro se Cooper timely filed ‘bright-line It rule’ at 1885. “sets forth recommendations; magistrate judge’s cease an ac questioning that all must after con- objections. no After de novo filed State Illinois, requests Smith v. cused counsel.” sideration, the court district concurred 494, 91, 98, 490, 105 S.Ct. 469 U.S. that the magistrate judge’s assessment (1984) (quoting v. L.Ed.2d 488 Solem obtained, unlawfully taped statement was Stumes, 465 U.S. “[tjhere holding question no but that is (1984)) (emphasis 79 L.Ed.2d 579 Peti- was taken after Smith). “repeated has Court clearly to counsel. tioner asserted “ is a ly emphasized” ‘prophy that Edwards affirmatively when responded Petitioner rule, designed protect an lactic accused lawyer present, none- if he wanted a asked custody badgered being by police from police questioning him. police continued theless officers____’” Smith, 2,n. 469 U.S. at 95 not have admit- The statement should (quoting Oregon at 492 n. However, court also ted.” district Bradshaw, 462 U.S. “all oth- the error harmless because deemed (1983)). Accord- L.Ed.2d “the properly admitted” and er clarity importance the Ed- ingly, the no substantial influence statement alone had Nonetheless, unquestioned. rule is wards ap- noted an verdict.” Ed- in violation of the evidence admitted peal and this court issued certificate structural, trial, than rule rather wards probable cause. Fulminante, Arizona v. error. See 1246, 1263-65, 279, 306-10, 113 111 S.Ct.

II. distinction). (1991) (discussing L.Ed.2d 302 reason, error can harm- this Edwards Before us asserts both For (al- 306-07, 111 at 1263 Id. at S.Ct. confession in violation less. admission e.g., a biased though harmless that his structural of Edwards was not errors — reversal,” require con- judge “automatically in viola prior were obtained statements — harmless). The trial errors can be right Amendment to remain stitutional tion of “Fifth is a an error is harmless argument question whether We do not reach latter silent.” 13, 1995); must, (July generally Recognizing, magistrate Argument see Thomas as it 4. 466, Arn, 140, judge expressly found that admission of the U.S. S.Ct. 88 L.Ed.2d 474 106 v. Edwards, and that it confession was error under (1985); George, v. 971 F.2d 435 United States any objections to to file that or failed 1113, (4th Cir.1992) (“[a] party waives n. 7 1118 findings, magistrate judge’s recommended appellate magistrate’s review any claim that it has waived State has conceded proposed object to the deci if it fails to decision prop- taped confession was that admission of the court”). sion before district 25; Tape Respondents at of Oral See Brief er. 1462 “ influence the and fact and a habeas is ‘sure that the error did not question of law

mixed ” question jury, very slight of that is de novo. effect’ that an court’s review or had but (11th Holt, 1081, 26 F.3d 1083 Bonner v. is harmless under this standard. error — — denied, -, Cir.1994), 115 cert. U.S. O’Neal, at -, at 995 U.S. (1995); 1328, Suniga L.Ed.2d 207 131 S.Ct. Kotteakos, 764, (quoting at 66 328 U.S. S.Ct. “ (9th 664, Cir.1993); Bunnell, 667 998 F.2d v. 1248). Thus, say, fail- at ‘one cannot with Brecht, at - , 113 S.Ct. at see also 507 U.S. assurance, pondering happened after all that (reviewing novo the “record as a 1722 de stripping without the erroneous action from Kotteakos). whole” under whole, judgment that the was not sub error, stantially swayed by impossi it is applied to be in deter The standard rights were ble to conclude that substantial mining including trial Ed whether error — ” Accordingly, not affected.’ Id. we have in federal wards error —is harmless habeas not hesitated to conclude that error was not corpus established in Brecht and cases was Dixon, clarified in See Smith v. 14 harmless under the Kotteakos standard. O’Neal. (4th Cir.) (en 956, banc), See, Madden, cert. e.g., F.3d 974-75 F.3d United States v. 38 denied, 129, -, (4th Cir.1994); U.S. 130 753 United States (1994). Brecht, 72 Prior to the same Ince, (4th L.Ed.2d Cir.1994); 21 F.3d 585 United applied appeals in direct harmless error rule (4th Sanders, States v. 964 F.2d 299-300 corpus cases. Pursu- federal habeas Cir.1992); Taylor, F.2d United States v. 900 rule, ant to that which was set forth (4th Cir.1990). 779, 783 California, Chapman v. 386 U.S. 87 Perhaps recognizing that the Kotteakos 705 convic- S.Ct. 17 L.Ed.2d Brecht, is, indeed, “demanding,” standard 507 by a trial error tions tainted constitutional at -, J., (Stevens, U.S. 113 S.Ct. at 1723 prosecution if the upheld could be dem- concurring), in Brecht Chief Justice “beyond a reasonable doubt that onstrated sought to make the task easier in complained state’s the error of did not contribute to by suggesting peti the verdict obtained.” The Brecht Court habeas cases that habeas standard, although Thus, Chapman held that the proof. tioners carried the burden of applicable still to errors on direct reviewed majority, for the five-member the Chief Jus appeal, longer to be used in federal was no petitioners tice asserted were “not enti Instead, corpus habeas review. Court tled to relief on trial error habeas based adopted a new standard for constitutional they unless establish that it resulted [could] ” trial errors reviewed federal habeas cor- at -, prejudice.’ in ‘actual 507 U.S. cases, pus requiring only if an reversal added). However, (emphasis S.Ct. at 1722 “ injurious in- ‘had substantial and effect or Stevens, necessary Justice whose vote was ” determining fluence in verdict.’ up majority pointedly make the Kotteakos Brecht, at -, 113 S.Ct. at 1714 burden, disagreed assessment as Kotteakos, (quoting noting plainly that “Kotteakos stated that Smith, 1253);5 see also F.3d at 975. ‘technical,’ merely unless an error is the bur sustaining by demonstrating den of a verdict Obviously, the Brecht-Kotteakos stan the error was harmless rests on the Chapman dard is “less onerous” than the at -, prosecution.’’ 507 U.S. 113 S.Ct. at Brecht, at-, standard. (Stevens, J., concurring) (emphasis add- However, after all a since ed). approach This difference is most reviewing standard to be used a criminal there, important case Brecht, close because conviction, it is not toothless. See formulation, at -, (Stevens, under the Chief Justice’s since 507 113 at 1723 U.S. S.Ct. J., (“the petitioner the habeas has the burden of concurring) appropriate standard is while, Indeed, proof, prevail, the if ly demanding”). Supreme the state would as as asserted, judge explained, Court has it is when a Justice Stevens the burden re- standard, disregarded”), statute, 5. is derived from the harmless error The Kotteakos like Fed.R.Crim.P. “error, defect, 52(a) (any irregularity or variance § 28 U.S.C. 2111. rights not affect substantial shall be does

1463 Rather, (Stevens, J., concurring). the petitioner the prosecution, mained on the question is: prevail. would had or reason- ... effect the error what O’Neal, in the Su- decision In its recent upon ably may to have had the be taken application proper clarified the

preme Court thing is the jury’s decision. The crucial The standard. the Brecht-Kotteakos wrong impact thing done the proof a burden Court eschewed O’Neal men, own, on one’s in minds other not explaining: analysis, setting. the total the error This must take account of what not involve a before us does The case them, singled stand- to not out and meant help to control judge shifts a “burden” who alone, in to all else that ing but relation trial, at but presentation of evidence the judge others’ happened. And one must apply legal judges who rather involves own, by allow- reactions not but with (harmlessness) a record that to standard might react and not be ance for how others longer is no presentation of evidence acting regarded generally as without rea- case, we think it likely affect. such to difference, important son. This is the judge to ask conceptually clearer for is guilt easy ignore when the sense of one to I, judge, think that directly, “Do strongly comes from the record. jury’s substantially influenced the error Kotteakos, at 1247- try put at 66 S.Ct. judge U.S. than for decision?” added).6 (emphasis proof in terms of bur- 48. question same —dens to which primary factors determining “impact courts look in — -, at 995. The 115 S.Ct. U.S. at setting” in total thing wrong done ... Court, however, in a close expressly held that (1) by a the case was tried are: whether case, judge [is] “the conscientious where Collins, court, 991 F.2d Pemberton v. an likely effect of about the grave doubt — (5th denied, Cir.), cert. U.S. 1226-27 verdict,” peti jury’s the habeas error on the -, 126 L.Ed.2d S.Ct. -, at “must win.” tioner or, steps jury, whether if tried to Thus, judge’s when “in the at 994. error, mitigate the the court to taken mind, evenly balanced that the matter is so (2) Ince, 583; whether the evi 21 F.3d at equipoise himself as to the in virtual he feels Fulminante, confession, dence was a “should of the error” harmlessness 1257-58, at or other at 111 S.Ct. harmless, error, if it were not as treat case, central to the infected an issue wise (ie., it if it affected the verdict but as (3) 583; Ince, the evi whether 21 F.3d at injurious effect or had a ‘substantial prosecu heavily relied on dence was verdict’).” determining the influence at -, tion, Brecht, at 507 U.S. Kotteakos, 776, 66 328 U.S. at (quoting Id. (4) part 1722; evidence was whether the 1253). at evidence, taken as a case in which id., or whole, sufficiently “weighty,” Moreover, determining whether er give a “fair Kotteakos, was too close ques whether the case harmless under ror is evidence did the [tainted] assurance that jury correct its tion is not whether jury its verdict.” sway the substantially Kottea- guilt or innocence. judgment as to (internal Ince, quotations 1247-48; 21 F.3d at 585 kos, see 66 S.Ct. at 328 U.S. omitted). fac- of these at -, Careful consideration Brecht, also convict, Thus, there was sufficient dissenting colleague mark misses the our ‘highly probable opines view affirmance in his ... we believe when he but whether ” beyond doubt required he is "convinced judgment.’ because did not affect the error case would have convicted in this (4th Nyman, 649 F.2d United States v. confession.” Dissent Cooper without his third 1980) Traynor, Roger The Riddle (quoting J. Cir. inquiry. simply not the relevant 1472. This is Ince, Error, (1970)); accord Harmless 34-35 Court, Rather, this court has like the (collecting cases in which at 583 21 F.3d that, applying recognized the Kot- repeatedly fol "longstanding interpretation” has been test, mindful that "it does we must be teakos lowed). irrespective of the we believe that ask whether 1464 “ Certainly, profound have im- ‘impossible that it is confessions us

tors convinces ” “ ” jury, may pact ‘fair assurance’ on the so much so that we conclude’ admitting ability put confession out justifiably doubt its them the error injurious and a “substantial did not have to do some of mind even told so. While jury’s on the verdict. influence” by may effect or concern statements a defendant at -, -, O’Neal, at U.S. may aspects of the crime or be isolated Kotteakos, 764, 328 (quoting incriminating only when linked to other 1253). 1247-48, 776, 66 S.Ct. evidence, a full confession in which the motive for and defendant discloses the factor, simply note that first we As to the jury may tempt means of the crime the trier of fact was conclude that we cannot rely reaching upon that evidence alone admitting the error in disregard able to its decision. guilty find de- taped confession and was tried before a spite it this case because (internal at 1257 S.Ct. by people not jury guilt was determined and omitted). A quotations and citations full con- Pemberton, experienced in law.7 Cf. may impact” an fession have such “indelible Moreover, steps no what- F.2d at 1226-27. tempted jury that “it doubtless will be mitigate the taken to error soever were to rest its decision on that evidence alone.” Ince, 21 F.3d at 583. Of this case. Cf. J., (Kennedy, Id. at 111 S.Ct. at 1266 Ince, course, year in explained we last concurring judgment).8 “[ejvidence can have a of a confession such mitigat- devastating pervasive effect Recognizing impact the decisive of a con- ably quickly how ing steps, no matter fession, the Fulminante Court held that the taken, fair trial for the salvage cannot a admitting improper error an initial confes- 21 F.3d at 583. defendant.” though sion was not harmless even it was brings to the second factor. The full, admitted, This us properly followed only record clear that not did the error sion, 295-302, is 499 U.S. at S.Ct. at 1257- iden- infect an issue central case—the gave “more details of the crime” tity perpetrator mind of the and state of improperly than the admitted confession. in admission of the C.J., the crime —it resulted (Rehnquist, Id. at at 1266 evidence, full devastating most sort of con- Fulminante, dissenting). the state ar- Supreme fession the defendant. here, gued, as it does that the admission of why explained in a defen- Court Fulminante the inadmissible confession was harmless be- singularly persuasive (1) dant’s own confession subsequent cause it was cumulative to a damning (2) evidence: by indepen- confession and corroborated 296-97, A no other confession is like evidence. dent evidence. See id. at Indeed, specifically the defendant’s own confession is at 1257-58. The Court rejected First, probably probative damaging arguments. the most both the Court against pointed evidence that can be admitted out that the inadmissible confession cumulative, though him.... admissions of a defendant could not be even [T]he himself, detailed, come from the actor the most admissible confession was more be- knowledgeable unimpeachable source cause “the assessment of the [admissi- past easily depend- conduct. ... ble] information about confession could have presented question justices dissenting holding 7. We are not with the 8. Even those from the disregard devastating jury impact whether a would have been able to Fulminante noted the judge confession: confession if the trial had ulti- mately that its admission had been determined involuntary may Of course an have jury. present In the and so instructed a more dramatic effect a trial course of judge case the trial did not so rule nor did he particular than do other trial errors —in cases even that it instruct the should not consider may devastating to a defendant —but requested statements taken after simply reviewing means that a court will con- Instead, counsel. instructed the clude in such case that its admission was not jury not to consider statements that were "not harmless error.... C.J., voluntary expression (Rehnquist, the free and willed Id. at 111 S.Ct. at 1266 dissenting). defendant.” id. easily depended,” “could have part presence the of the confession large ed in 1258-59, 298, 298, presence at Id. at S.Ct. at [inadmissible] confession----” confession, of we are com- then the inadmissible at 1258. The Court noted the pelled jury’s to conclude that confession was cor- although the admissible to testimony prior of the ab- assessment aspects” “other respects, in some roborated likely depended on the it, breviated confessions “including defendant’s] of motive [the presence of the con- mind,” later inadmissible by only of corroborated state fession. 299, 111 Id. at the confession. admissible Furthermore, the fact that S.Ct. at 1259. Moreover, Fulminante the im- while

the “led to the admis- inadmissible confession properly the admitted confession contained prejudicial to [the sion of other evidence corroborating only properly evidence ad- why an its was additional reason defendant]” mo- mitted confession as to the defendant’s Id. at could not be harmless. admission mind, improperly and state of here the tive 111 S.Ct. at 1259-60. only admitted confession contained state evidence of defendant’s motive and Chap under Fulminante was decided physical There no nor is of mind. is evidence standard, hand, at man in the case but anything testimony as to the there suggested that Fulmi- State has not even explaining abbreviated confessions earlier differently under the nante would be decided Stewart, why Cooper to kill or even wanted Rather, O’Neal-Brecht-Kotteakos standard. murder. whether intended commit concedes Fulminante is implicitly State pressed by It not until was law was distinguish it. That controlling and seeks to during the taped officers enforcement Indeed, unavailing. sup the facts effort is that, he he was sion that admitted because finding case are porting a of harm this house, fixed upset Stewart had not compelling than in Fulminante. There more him, intending knife brought a either by was followed inadmissible confession Furthermore, Ful- hurt rob or Stewart. more de an was admissible minante, prejudicial evidence the additional complete than the inadmissible tailed and of the inadmissible confes- obtained because Fulminante, one. organized to the ties sion—evidence as Here, C.J., (Rehnquist, dissenting). at 1266 crime of the defendant’s confederate —was away far confession was inadmissible Here, tangential. the additional somewhat comprehensive confes defendant’s most prejudicial evidence obtained because briefer, sion; by preceded only it was much taped confession—the stolen inadmissible Moreover, the inad precise less statements. only of checkbook —was not direct evidence confession here was also the missible crime, arguably placed also Coo- another but Thus, improperly confession. admit Thus, case per scene. this murder jury to ting permitted into evidence compelling evidence even more contains in his own voice confess to one hear than Fulminante.9 harm brutal, malicious after another. Just as act determining Court concluded that the Ful- third factor critical actually was rendered minante of the admissible whether the verdict assessment course, tarily signed the defendant. In Correll there are cases in which the errone- Of (4th Cir. Thompson, 63 F.3d 1291-92 has been held ous admission a confession 1995), harmless, they arguably con an con- the admission of an invalid but involved invalid have fession, guilt es cryptic, because or accom- fession was held harmless innocuous or by “overwhelming” in panied complete other evidence valid con- tablished other detailed and other, fessions, testimony testimony cluding eyewitness from part of case in which there is detailed overwhelming guilt, eyewitness witnesses as to the defendant’s like two other evidence Moreover, Correll, be testimony. example, Wain- to them. For in Milton v. confessions admitted, 377-78, challenged confession was wright, 407 U.S. cause admitted; prejudicial an evidence was not other 33 L.Ed.2d admission to the case hand where view of is in marked contrast confession was held harmless in invalid eliminating led made other inadmissible confession not to the defendant three the fact prosecution helpful to the evidence One admissible other valid full confessions. helpful See to it. were made the admission other and the others confessions transcribed, stenographer, volun- before infra. 1466 ie., questions to the the extent to I think attributable desired and those are of error — sir, prosecution jury, deny the relied on the errone fact for the I and would

ously strongly sug your admitted evidence—also motion. gests judged that the error here cannot be added). Thus, court, (emphasis the trial Brecht, very thing harmless. the first which heard all of the evidence in the case by concluding noted Court that position and was in a far better than we to prosecution error was harmless was that the judge impact, absolutely its was clear that had not relied on the error: “The state’s conjunc- confession alone —not in petitioner’s post-Miranda references to si tion with the brief earlier statements —would infrequent, comprising lence were less than be determinative of the verdict.11 The pages 900-page of trial tran trial court concluded that the inadmissible Brecht, -, script----” 507 at 113 just confession was not “the center- Similarly, S.Ct. at 1722. this factor was ex case, Fulminante, piece” of the as in State’s tremely significant in Fulminante. See 499 499 U.S. at S.Ct. but that 297-98, There, U.S. at S.Ct. 1258-59. “hinge[d]” case State’s and would “stand prosecution’s reliance on the invalid con or fall” on it. opening closing fession its statement and argument recognition and the trial court’s question There is no that the trial court’s centerpiece” it was “the of the case by prosecu- assessment was borne out “compel[led]” Supreme Court to conclude closing argument. tion’s relatively That of admission the invalid confession was argument twenty transcript short pages —is 1258; not harmless. Id. at literally saturated with references to the Estelle, see also Collazo v. 424- 940 F.2d pick just confession. We three exam- (9th Cir.1991), denied, cert. First, ples. prosecution explained to the (1992).10 L.Ed.2d 776 jury that it rely implied did not need to on malice because Cooper’s ju- “out of mouth” Fulminante, As in here the trial court “real, hard, rors had heard evidence of actual that, recognized heavy because of the State’s real world malice”: taped confession, reliance on the a successful prosecution you ... depended look at the facts of believing this case and you when Cooper’s the inadmissible hear Mr. denying confession. In own voice Coo- telling you per’s verdict, that he took motion for directed that kitchen knife the trial thinking with him against court stated: he would it use Mr. Stewart to rob him or kill him. When course, ... of hinges the case and will you signs tells in his own voice and upon stand alleged fall confession. day saying statement a later after he had I previously your And have denied motion given newspapers, got me the I him to suppress that evidence. inAnd further- turn around and reach for the basketball motion, course, ance of that of there was at so his back would be to him I so could day elapsed least a making after the clobber him with the chair. tape statement on the and then the typing up see, giving and then it back to him. you There not what the law opportunity He malice, had an implied read it and re- you calls because when use sign deny fuse to it and it if deadly weapon he had so against like a knife some- Court, Unlike argument we have not be- 11. State's that "references 10. hinged trial on the confession to the conclusion today specifically that the case pointed prosecu- fore [sic] not limited to the one erroneously tion's reliance on admitted evidence [taped] concept confession ... but [to t]he determining a factor to be considered in generally" simply confessions not have, whether was harmless. We how- spoke borne out the record. The trial court ever, recognized repeated often references in confession,” alleged singular. “the in the More- prosecution's closing argument to erroneous- over, "statement,” again it referred to this ly prejudicial admitted evidence increases the singular, "tape,” “typ[ed] as made up” then See, e.g., effect of the error on the defendant. given Cooper "sign”. Only and one to "read” and Madden, 753-54; Taylor, 38 F.3d at 900 F.2d at confession—the confession—was taped, typed, signed. read and the checkbook was and are there you use to infer where a fact can body, that’s malice, being out there? you photographs But hear not him Did evil intent. when mouth, say I took six checks out? somebody’s this is he not about words five or six I took time. And are there but about way I did it. it ahead of say Well, missing? I kill he not that he going know checks Did I didn’t there, him, King I do Mr. just I decided to to Thomlinson’s? And did but as sat went verify Thomlin- plan. got I him to that he had been at it. I not formulated point point after I made sure it was done. son’s? Point after after turn around. hard, real, point. point malice. after actual real world That’s added). added). Second, prosecution (emphasis the (emphasis had, by “listening” pointed that the out sum, hard a case in it is to envision “said,” mo- Cooper had learned his to what erroneously admitted evidence was which tive for murder: heavily prosecution. relied on the more Now, require to law does not us the Moreover, repeated prosecution’s the refer- you at facts prove But can look motive. taped closing argu- to the confession in ence to he said and you and can listen what clearly impressed jury that ment on the the you is the first motive there. What see regarded this as crucial State evidence man, Cooper did thing this Kamathene obtaining a conviction. States v. See United man senseless had rendered this after he (2d Cir.1978) (erro- Ruffin, 575 F.2d death? and him towards his inevitable sent “must have been neously admitted evidence pockets. He went through his jurors’ He went of minds when in the forefront the pockets. you And will recall through light his they retired to deliberate” “the along reading upon on statement prosecutor to which the dwelt extent from looked, any- I but I find listening. during didn’t particular both his [evidence] that rooms, rebuttal”). Thus, I in other thing. And he said went opening summation and his course, And, anything. but I find that didn’t trial assessment the the state court’s through you evidence that he went “hinge[d]” taped see the on confession was ease (sic) pocket. pros- You see description Mr. of the certainly an accurate strategy. Tellingly, in his statement emphasis as corroborated evidence ecution’s did, fact, go room in that where vel considering that he the harmlessness non when admission, pull mag- side that was and to one taped stereo confession’s of the there, realizing curtain not what was did not have and district court istrate transcript the state trial the benefit added). Third, (emphasis prosecution any indication that the proceedings or other rhe- argument with numerous concluded its taped “hinge[d]” case State’s Cooper questions based on what torical sion. jury: “told” the “said” or he say in that he not the statement in deter- Did final factor be examined The “actually over gentleman bend ren- had the mining verdict whether i.e., Is this not look for a basketball? corner to was attributable dered” error — hit say that he Did not that basketball? indicates of the case—also closeness not have the a chair? Do we regarded man with as harmless. here cannot say evidence, admit- he not that he was con- only apart chair? Did from the having a without break- because ted into the house relevant and evidence made fession there Gravely you not it, tell murder connecting and Mr. to Stewart’s entry[?] sign of forcible prior was no statements abbreviated are the testimony employee’s department store you he stabbed he not tell Did check presented Stewart’s Dr. Conradi a knife? And did man with day The lat- died. payment on the Stewart wound you the man had a stab not tell independent testimony, provides while it brain? ter penetrated his head that and, places arguably, forgery a check- evidence you that he stole he not tell Did killing, does not scene of the Cooper at the the stolen we not have book? And do physi- No murder. directly Cooper to the tie officers to Did he not take the checkbook? Kotteakos, footprints, fingerprints, match cal 1247- evidence— samples, ing etc.—linked blood 48. Brecht, at -, murder. Cf. “impact thing wrong” Here the done eyewitness No saw him en S.Ct. at 1722.12 jurors day on the seems undeniable. This Correll, ter or leave house. Stewart’s Cf. “hinge[d]” a half trial “thing done witness testified to F.3d at 1291. No (the confession) wrong” inadmissible disagreements between and his vic evidence became relevant because Cooper might tim or motive have had for Thus, of it. without Brecht, at -, murder. Cf. powerful would the most Correll, 1722; 63 F.3d at 113 S.Ct. at eliminated, against Cooper have been evidence, except no for the There was against much of the him other evidence confession, Cooper planned kill had not would have been available or would have Indeed, expert Stewart. id. there was Cf. Only taped been irrelevant. in the confes- that, testimony jury might from which a infer Cooper agree police sion did to take the intelligence, im with his borderline this was place the where he discarded the checkbook Thus, taped confession, possible. without the checkbook, piece and so the a valuable of against Cooper the on the murder evidence evidence, solely corroborative was recovered Brecht, charge “weighty,” was not as in 507 taped as a result of the confession. In addi- -, at let U.S. at alone tion, taped confession made otherwise Correll, “overwhelming,” as in 63 F.3d at insignificant meaningful e.g., evidence 1291-92. bag newspapers, Cooper’s of the fact that sure, confession, taped To be without the out, pants pocket was turned inside the ar- probably there sufficient evidence to was rangement house, of in furniture the victim’s Cooper. determining convict But in whether break-in, fact that there was no the time admitting taped the error in Cooper when cashed the check—all of which harmless, question was is not whether testimony during was revealed in prose- jury judgment was correct its as to skillfully cution’s case and then used in its Kotteakos, guilt or innocence. 328 U.S. at closing argument. taped Without the at 1247-48. The “closeness” sion, all such meaningless, evidence was inquiry, repeatedly recognized, as we have confession, taped with the this evidence be- purpose determining “is not ‘for the of highly came relevant and corroborative of considered, whether, independently [the guilt. other] evidence would have sufficed con ” Ince, (quoting Moreover, vict.’ 21 F.3d at 584 Urban the admission of the con- ik, 699) added). (emphasis virtually 801 F.2d at Rath possible fession eliminated all de- er, inquiry confession, into the closeness of the evi fenses. Without the there requires dence only consideration of whether the testimony the officers’ as to Coo- sufficiently powerful confessions; other per’s evidence “is Cooper brief earlier could give relation to the tainted evidence to fair have demonstrated that their recollection assurance that the evidence vague testimony tainted did not imprecise.13 their substantially sway jury to its Similarly, verdict.” if the confession had not (internal omitted) quotations (emphasis admitted, Id. pointed could have added). Thus, the focus must be on the out lack arguable of detail and the lack of “impact thing wrong probative done value in the abbreviated state- jurors “in setting.” minds” of the the total e.g., in those two earlier statements ments — any physical tying 12. The lack Grimsley only of evidence Coo- heard all of remembered Coo- it— per to the fact crimes was another unknown to per saying he hit his victim "with the chair three magistrate judge they court and district when only times” and McKenzie remembered question considered the whether error was saying "he had killed Mr. Stewart.” Even harmless. Vause, gave who the fullest account of the second statement, go conceded that "didn’t into Only Grimsley testify very could as to the first a whole lot of detail.” brief confession. Three officers testified as to the second, Grimsley but neither nor McKenzie

1469 motive, 109 102 L.Ed.2d 535 of murderous no evidence there was also, Alabama, (1988); 849 F.2d see Owen plan, or intent. Cir.1988) (erroneous (11th admission Furthermore, con admission con- confession not cumulative other impact Cooper’s devastating fession Chapman under be- fessions or harmless i.e., defense, ability to mount his best kill “im- intent and so cause it revealed were not voluntari the other statements ”). pacted ‘upon the conduct defense’ an trial made ly The state obtained. sum, Urbanik, all three confes determination that the other initial Ince given “sufficiently were voluntarily pow- and so is not sions were evidence case as to The final decision tainted at trial. erful in relation to the evidence admissible give statements ‘fair that the tainted evidence whether assurance’ however, was, voluntarily given freely ‘substantially sway’ to its did not expert testimony Urbanik, jury. (quoting There was F.2d left to the verdict.” not, fact, 1248); Kotteakos, under did at trial effectively Ince, rights recording did A and so F.3d at 584. stand accord length confessing them. All of confessions were to murder at waive defendant voice, so, doing providing as to whether decision in his own relevant motive, rights—an plan, Miranda Cooper understood his of murderous jury “tempt” to consider important factor for the intent would in all likelihood “totality rely of the circumstances” jury upon the “to that evidence alone under Davis, 326, See, Fulminante, decision,” e.g., reaching v. 309 S.C. 499 U.S. State its test. — denied, 133, 1248, 296, cert. careful 422 144 111 S.Ct. at “without S.E.2d at 2355, U.S. -, 124 L.Ed.2d 263 in the 113 of other evidence S.Ct. consideration the (Kenne (1993). taped is But confession at 111 at case.” Id. 1266 J., judgment); most evidence the see also clearly probative dy, concurring prior Ince, taped Unlike the point. on this 21 F.3d at 585. When this full considered statements, only were related is in the context of brief which confession viewed they case, testimony temptation of the officers whom of this proceedings nearly prosecution confession allowed given, taped irresistible. were seems voice, jurors Cooper, vociferously in his on the repeatedly to hear own relied rights, confession, acknowledge primacy and re- over giving his Miranda it clear taped grim crimes in detail. The ex count the other evidence. As trial was, problem, recognized, case pressly the Edwards State’s confession absent powerful upon that it voluntary “hinge[d]” and so apparently “st[oo]d f[e]U light empha any argument prior that the state- In of this alleged eliminated confession.” Thus, confession, very similarly voluntary. not in its ments sis on Fulminante, confession, 499 “devastating,” determination nature without prior (Rehnquist, 1266 at 111 S.Ct. of the voluntariness U.S. question C.J., dissenting), cannot conclude with a far closer for sions was we assurance, pondering all that any “fair after consideration. the erroneous ac happened stripping without Thus, erroneously admitting whole, judgment from the tion severely impaired Cooper’s by the Kot substantially swayed error.” not “pre When error only possible defenses. teakos, 765, 66 at 1248. 328 U.S. an ac impairs presentation cludes or should means of defense” court cused’s sole III. to deem “particularly [the] reluctant harmless____” here, directing Harris, holding Our v. States United (2d Cir.1984) granted, corpus be disturbs Kot- of habeas (applying writ F.2d harmless) requires retrial judgment and a final state error not standard to find teakos (internal omitted); confess in which the defendant has in a case quotation and citations senseless, killing. Peak, do brutal We ed to a 856 F.2d United States accord denied, (7th Cir.1988) (same), lightly, but because such action cert. take 835-36 compels it. It is not our func recognize Constitution We that “the writ of habe- guilt pass corpus historically regarded tion “to or innocence of the as has Brecht, extraordinary remedy,” an petitioner of the atrocious crime that was 507 U.S. Carolina, -, Davis v. North 113 S.Ct. at but this is an committed.” 737, 739, 1761, 1763, 16 extraordinary example case. It is an of one L.Ed.2d instances,” O’Neal, (1966). Rather, of those “rare U.S. at duty uphold “[o]ur is to -, (Thomas, J., 115 S.Ct. at 1000 dissent- the Constitution United States.” ing), Carolina, where an error of constitutional dimen- Bumper v. North sion has a state court infected conviction with 1788, 1793, 551, 88 S.Ct. 20 L.Ed.2d 797 yet fundamental escaped unfairness and has (1968). corpus The writ habeas is the recognition by system judicial the state’s safeguard most “fundamental instrument for instances, review. such rare a federal ing against arbitrary individual freedom duty purpose court has a to intercede. Our Nelson, lawless state action.” Harris v. in intervening in help this case is not to an 286, 290-91, punishment; admitted criminal avoid it is to (1969). L.Ed.2d 281 protect the Constitution. granting While court, higher duty There is no under corpus writ of habeas will have the immedi- system, our constitutional than the careful conviction, nullifying ate effect of a state processing adjudication petitions long-term ensuring will have the effect of corpus, writs habeas for it is in such integrity judicial of the state and federal petitions person custody charges that a processes. This is what the Constitution de- error, neglect, purpose or evil has mands, why and this is we must reverse and resulted his unlawful confinement and remand this case to the district court with deprived contrary that he is of his freedom grant instructions to the writ of habeas cor- to law. pus. 292, AND Id. at REVERSED REMANDED 89 S.Ct. at 1086-87. WITH INSTRUCTIONS. Supreme recognized ap- As the Court proving grant of the writ of habeas cor- NIEMEYER, Judge, dissenting: Circuit pus a to man who had confessed to the Kamathene Cooper Adonia confessed to child, ten-year-old ruthless murder al- law separate enforcement officers on three though “pressures” on state officers occasions that he had Rheupert murdered W. “charged with the administration of the crim- City, Stewart in Lake South Carolina. After great inal ... precisely law are it is conducting separate hearing, a the state trial predictability pressures of those that makes Cooper’s court found that confessions had imperative loyalty guaran- a resolute given voluntarily and were not other- tees that the Constitution extends to us all.” constitutionally wise impaired. Based on Williams, 387, 406, Brewer v. 430 U.S. confessions, jury those Cooper, convicted 1232, 1243, (1977).14 S.Ct. 51 L.Ed.2d 424 and the court sentenced him imprison- to life Justice seventy Brandéis warned almost ment. The Court of South Carolina years ago govern- that the “existence of the judgment. affirmed the imperiled ment will be if it fails to observe scrupulously” the law and so a court cannot petition corpus, his for habeas filed “declare that in the administration of the 2254, § under 28 Cooper argues U.S.C. that justifies criminal law the end the means....” his confessions were admitted at his state States, See v. Olmstead United 277 U.S. right criminal trial in violation of his to coun- 564, 575, (1928) L.Ed. 944 sel under the Fifth and Fourteenth Amend- (Brandéis, J., dissenting). police ments. He contends that took his ” Mitchell, denigrating requirements.’ Without the costs inherent in re- Rose v. 443 U.S. defendant, trying 2993, 3001, criminal we note that (1979) '"[a] 61 L.Ed.2d 739 prisoner go ... need not free if he in fact Texas, 400, 406, (quoting Hill v. guilty, may try again by [the for ... him State] (1942)). 86 L.Ed. 1559 procedure which conforms to constitutional him they rights. Although advised of his honoring his desire too confessions without counsel, attorney. request Cooper right an not invoke or his did his remain silent that he did not wish “to make indicated petition to a Cooper’s was referred habeas comments.” judge who the entire magistrate reviewed two Cooper’s first record and concluded Cooper was thereafter taken to the Flor- voluntary and not otherwise confessions were County Department ence Sheriffs deliv- constitutionally finding infirm. While Agent Agent ered to Vause. Vause read admitted Cooper’s third confession had been rights, yet him Cooper again, his and asked right to counsel under violation of polygraph to take a he wished examination. Arizona, Edwards responded affirmatively. Cooper magistrate L.Ed.2d 378 Columbia, Carolina, way On South judge the state trial court’s errone- held that Cooper’s polygraph test was to be where harm- ous of that confession was admission conducted, stopped City in Lake the officers cumulative less the confession was because drop an the car off officer. While Cooper have and the would convicted City, Cooper in Lake saw stopped Philip solely valid Ac- on his first two confessions. Grimsley, an officer of the State Alcoholic magistrate recom- cordingly, Commission, Cooper Beverage whom peti- deny court mended that the district said, Cooper for some time. known “There corpus. of habeas tion for the writ goes Phil. I would talk to him.” like to the matter de court reviewed district magistrate judge, agreed novo Grimsley informed that he had Cooper’s concluding that first stealing “for check and cash- been arrested constitutionally infirm and sions insisted, it,” “I killed no man.” ing ain’t third confession the admission per- Grimsley then asked obtained for and Cooper’s violation to counsel Cooper’s officers mission from custodial The district court denied harmless. private. proceed- talk to Before appealed. rea- petition, For the Grimsley asked ing, the officers whether follow, district sons I would affirm the of his Cooper had been advised Miranda court’s decision. had, that he Grims- rights. When informed and, ley returned to room with I nevertheless, rights for Cooper read his a Cooper Grimsley asked if fourth time. then was murdered Rheupert Stewart found say. response, Cooper anything to In he had his home on December only that he a check in had cashed indicated pocket pants turned out rear of his account, City. According Grimsley’s Lake pieces and a broken chair were scattered following then occurred: autopsy body. about An revealed his object had been beaten with a blunt Stewart [Cooper] upset. became He nervous. in the head chest with and stabbed and eyes. into I could Tears came his tell knife. that Stewart The coroner concluded something definitely bothering there was 30, 1984, November from a stab had died on something him I asked if there was him. wound to his brain. say. Something he needed to he needed to chest, time to do it. his now was the get off body was days A after Stewart’s few found, investigation forged check an time, over he reached and At police to drawn account led on Stewart’s my tightly. hand onto it grabbed and held li- Cooper. Cooper his had written driver’s it, ifme I do what would And he asked did back the check. cense number on the get. I me? I happen to What would information, a warrant issued Based him, you him. I I said asked looked arrest. you If you, you? me to lie want do don’t arrest, you’re convicted in him Mr. Stewart and

Upon Cooper’s officers advised killed Court, chair you could in the electric rights. custody of die of his When Miranda officers, That you could receive a life sentence. Cooper was transferred to other have arrest strictly up to a and tion. South Carolina authorities be left would me, time, ed, tried, Cooper, I it. jury. he told did and convicted At this his convic highest state’s court has affirmed admission, Grimsley hearing Cooper’s Upon therefore, begin, with a tion. We must specific more so that he Cooper to be asked ability healthy respect courts’ for the state Although verify Cooper’s statement. could just constitu conduct trials and to ferret out go initially expressed reluctance “to Cooper error, appellate both at the trial and tional it,” through then continued his con- back 509, 515, Lundy, levels. See Rose v. 455 U.S. interruption. Explaining in fession without 1198, 1201-02, 71 L.Ed.2d 379 102 S.Ct. Stewart, Cooper murdered detail he had how (1982) (“[Habeas corpus jurisdiction] should Grimsley that he had hit Stewart over told existing light of the relations be exercised him in chair and stabbed the head with a system government, under our between agreed Cooper also to make head and chest. judicial tribunals of the Union and of in front of other officers. statement States, recognition of the fact that the custody Cooper officers in whose When the public good requires that those relations be room, brought traveling into the by unnecessary be not disturbed conflict Agent he understood Vause asked equally guard bound to tween courts Grimsley by him rights his as read to Officer Constitution.”) by protect rights secured he would talk to the other offi- and whether 241, 251, (quoting parte Royall, Ex Cooper responded cers. that he understood (1886)). 29 L.Ed. 868 This rights repeated his confession respect and state enables the federal Cooper stated that he had those officers. judicial systems spirit to function with a repairs home to discuss visited Stewart’s cooperation harmony but also conserves family rented from the house that their resources. scarce Cooper also indicated that he had Stewart. for a basketball. As Stewart asked Stewart principles, context of those there basketball, pick up bent over to special upon role remains conferred federal hit over the head took a chair and Stewart § courts 28 U.S.C. 2254: to ensure that times. also admitted with it three persons custody do not remain in because of throwing taking checkbook and Stewart’s violations of the United States Constitution. and the knife he had both the checkbook scope authority But the of federal courts’ City a Lake used to kill behind Stewart quite § under 2254 is limited. Unless the warehouse. defendant’s custodial status exists reason twice, confessing Cooper gave a third After constitution, of a violation of the federal fed- confession, tape-recorded which described yield judicial eral courts must to the state yet greater Stewart’s murder in detail. Dur- States, process. See Kotteakos v. United confession, ing third Coo- the course of this (1946). 90 L.Ed. 1557 lawyer per expressed a desire to have a Thus, granting before the writ of habeas time, present. Cooper agreed At same corpus petitioner custody to a whose state questions answering to continue without conviction, resulted from a criminal we must lawyer. petitioner’s determine whether trial vio- rights lated his federal constitutional II whether that violation was the cause of his corpus Cooper’s petition for habeas relief (i.e., detention whether the error was harm- presents § under 28 us with the U.S.C. ful). McAninch, Recently, in v. O’Neal trial question of whether the state court’s Supreme Court instructed that for a state decision to admit his third confession into justify trial error to issuance of the habeas evidence at his murder trial unconstitutional- writ, “grave a federal court must have doubt ly reliability undermined his convic- as to the of [the] harmlessness error.” tion. -, -, U.S. (1995). process already Cooper by

The afforded L.Ed.2d 947 This case causes me no the State of deserves men- such doubt. South Carolina death, the conclusion that beyond contrary, I convinced Stewart’s To the am inescapable. Finally, have jury in case would murdered Stewart that the doubt by importantly, Cooper least his confes- no means Cooper without third convicted because, proffered any absent evidence to rebut either I this conclusion sion. reach never defense, Cooper’s provided in his objection two earli- information he any accurately government’s er, any part have valid confessions would sions or other position volun- trial the presented at case. concerning tarily expressed police to the that rendered Nor did the circumstances “I it.” In Rheupert murder: did Stewart’s Cooper’s confession inadmissible cast third Fulminante,

Arizona v. Court on of his earli- doubt the trustworthiness unique power of confes- acknowledged accounts, By Coo- er two confessions. all sions: factually not per’s third confession was A is like no other evidence. confession threats; produced or otherwise coerced Indeed, confession is “the defendant’s own freely calmly. Cooper gave it While damaging probative most probably the prevents Cooper’s to counsel courts against can admitted evidence that considering his third confession de- from him____ aof defendant admissions [T]he termining that guilt, his confession neverthe- himself, most come from actor request of his less indicates that denial unimpeachable knowledgeable and source way the trust- for counsel in no undermined past about his conduct. of information earlier of his confessions. worthiness profound im- have Certainly, confessions may jury, so so that we pact on the much particularly impressed majority were ability put its them out justifiably doubt Cooper’s facts third confession by the so.” mind if told to do even recorded, transcription spanned its pages, it revealed more than 19 1257-58, not earlier confessions. details included (1991) (quoting Bruton 113 L.Ed.2d provided in light the information But States, 123, 139-40, United confessions, the circum- Cooper’s (1968) first two (White, J., 1620, 1630, 20 L.Ed.2d 476 confessions, surrounding those stances dissenting)). presented Cooper’s corroborating evidence My that the trial court’s errone- conclusion trial, failure rebut Cooper’s third Cooper’s admission of ous him, I cannot overwhelming against by indicia con- was harmless is buttressed ma- facts that the relied conclude reliability firming Cooper’s first two trial court’s error jority render reversible the Cooper initiated the first of confessions. admitting confession. Cooper’s third police observing a officer confessions after prior acquaintance. It had a with whom he trial court’s we aside the state Once set moreover, suggested Cooper, first who harmless, our task constitutional anyone had been killed— the officer that yield judicial state we must ends and forgery. only being held for Cooper was Cooper murder and system convicted confessions, Furthermore, in his first would, I prison. life him to sentenced the broken chair described therefore, court’s decision affirm the district hav- stab wounds without ever and Stewart’s deny petition. any prior about ing given information revealed the loca- the murder scene but also and the of Stewart’s stolen checkbook

tion kill When that infor-

knife used to Stewart. handwriting coupled

mation is confirming driv-

exemplar, back of number on the Stewart’s

er’s license

check, description independent officers, by the provided

murder scene concerning cause of autopsy evidence

Case Details

Case Name: Kamathene Adonia Cooper v. P. Douglas Taylor, Warden T. Travis Medlock, the Attorney General of the State of South Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 26, 1996

Citation: 70 F.3d 1454

Docket Number: 93-7352

Court Abbreviation: 4th Cir.