Max Alexander Soffar v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division

DENNIS, Circuit Judges.* GARZA, M. EMILIO Judge: Circuit Petitioner Max (“Sof- Alexander Soffar far”), a Texas prisoner state convicted of capital murder, seeks a certificate of prob (“CPC”) able cause to appeal the district court’s dismissal of his application for a writ habeas corpus filed pursuant to 28 § U.S.C. 2254. A panel court, of this con struing petition Soffar’s request for a certificate of (“COA”) appealability under the Antiterrorism and Effective Death Penalty Act of (“AEDPA”), Pub.L. 104-132, 110 Stat. granted him a on COA three of his claims. See Johnson, (5th 237 F.3d Cir.2000), reh’g en banc granted, (5th 253 F.3d 227 Cir. 2001). panel The resolved one merits, claims on the concluding he had made substantial showing of the denial of his Fifth Amendment rights. panel granted Soffar habeas relief on issue, this holding that Soffar had invoked his right to counsel during his interroga tion, and that the interrogating officer’s James Howard Schropp (argued), Fried, misleading statements appointed about Frank, Harris, Shriver Jacobson, & Wash- counsel invalidated any waiver of Soffar’s ington, DC, for Petitioner-Appellant. rights. granted We rehearing banc, en Bunn, Gena Blount (ar- thereby Asst. Atty. vacating panel Gen. opinion. See Austin, gued), TX, for Fifth Cir. R. Respondent-Appel- 41.3. We reinstate the rul lee. ings panel of the concerning grant or

denial of COA as to all issues by raised Soffar.1 In opinion, this only we address * Judge Benavides concurs in judgment tire panel 1. The granted Soffar a COA on two opinion except for (1) Part Judges VII. other claims: whether the use of evidence Wiener and relating Stewart concur in the to an judgment extraneous during offense only. Judge penalty phase Clement did not participate tainted violation of Soffar's decision. Sixth rights; (2) Amendment whether Soffar was denied the effective assis- and told room interrogation out Amendment Fifth of Soffar’s merits with “hit a brick wall” he had Clawson claim. alone the room entered Clawson Soffar.2 Soffar. speak with

I Clawson, dia following According al- bowling at a employees young Four interview second during his occurred logue during a head shot each ley were whether asked Soffar. A in Houston burglary late-night an attor obtain police or should talk later, stopped weeks few “if he was responded ney; Clawson learning him after arrested speeding, tell the crime he should in the involved the ride On was stolen. vehicle it; he should otherwise he was detective station, spontaneously Soffar police the how he asked then lawyer.” a Soffar get “he wasn’t that arresting officer the told him asked lawyer, and Clawson aget could motorcycle little some jail for to going that knowing lawyer, a afford he could if involved he was that theft,” hinted and asked laughed, and Soffar not. could he At in Houston. killings alley bowling the attor court-appointed get a he could how (“Claw- station, Clawson Officer police Clawson could one. get and when he ney, interrogate help to son”) summoned Harris not know he did that responded worked previously had Soffar Soffar. it that guessed and County procedures, considered and for Clawson informant an long as day or as little as one take as could began ques- he a Before be friend. him to had that Houston knew Clawson month. kill- alley bowling about Soffar tioning a sus that rule —which states 72-hour Miranda his third him gave ings, Clawson within or released charged be pect must had received day. Soffar warning of not Soffar tell did period —but at the his arrival prior can, to warnings two a trash spat into then it. Soffar about offi- arresting station, my one from on me I’m telling you’re “so said judge. magistrate from After- another silent.3 cer and remained Clawson own.” days, three Sof- wards, course of over Clawson, Soffar to talking briefly After con statements written three signed far Schultz Gil by Detective was questioned The confessions the murders. fessing to of set another Soffar (“Schultz”), gave who conviction, because his crucial his beginning before warnings Miranda linking Sof- evidence physical nowas there later testified Schultz interrogation. crime. far the crime details certain him told Soffar conversation, panel on Based know. would perpetrator only the On habeas relief. granted later, came Schultz minutes thirty About are also denials and these presented, claims failed counsel trial his when of counsel tance dur- reinstated. evidence present certain develop and do consider guilt phase. We ing the Because claims. dis- subject of some these of either is the merits This statement 2. these claims discuss did not opinion hearing, Schultz panel habeas At the state pute. panel for detail, Soffar, them to remand we with wall” "hitting a brick ever denied Soffar, 237 F.3d on merits. consideration freely with him spoke that Soffar testified grant of our fact that ("By virtue of the at 446 the interview. throughout Fifth Amend- respect with relief discussion challenge render ment hearing, testi- Clawson habeas the state At unneces- issues of these additional the merits you "yes, replied, affirmatively fied justifi- not belabor need sary, we likewise are.” issues.”). on those a COA granting cations other on all a COA panel denied Soffar (1) banc, rehearing rights, subsequent en we must decide: these his statements knowingly voluntarily whether are admissible. order for a criminal (2) waived his Miranda rights; Miranda validly whether waive silent; (1) rights, invoked his to remain two right necessary: elements are (3) right relinquishment whether Soffar invoked his of the right must be “vol (4) counsel; product untary whether Clawson’s mis- the sense that it was the (2) leading choice”; availability statements about the of a free and deliberate prior counsel invalidated Soffar’s waiver of the waiver must made “full aware rights. being ness of the right abandoned” and the so. Moran Bur

consequences doing bine, II 412, 421, (1986). L.Ed.2d 410 case, pre-AEDPA In this we re legal view the district court’s Miranda Despite receiving multiple conclusions novo, de findings warnings, and the state court’s Soffar continued to talk to the Johnson, fact for clear error. Crane police, waiving to remain silent (5th Cir.1999). 178 F.3d We must and his attorney present. presumption First, accord a of correctness to all shortly Raymond after Officer Wil- they findings of fact if are supported by loughby arrested Soffar and read him his 2254(d) (1994) See § Miranda card, the record. 28 rights U.S.C. from a Soffar waived Scott, 1996); Armstead v. (repealed 37 his Miranda rights by spontaneously vol- (5th Cir.1994). F.3d 206 We unteering review incriminating statements about questions mixed of law and fact de alley novo. his involvement the bowling mur- Crane, Next, 178 F.3d at 312. The ultimate receiving Miranda ders. after warnings voluntariness statements elicited during first from a magistrate and then a confession is such See from Clawson at the question. a mixed police station, Soffar Johnson, Barnes v. (5th 160 F.3d stated that he rights understood his and Duckworth, Lord v. Cir.1998); again by F.3d waived them voluntarily telling (7th Cir.1994). 1221-22 Whether a a potential accomplice, about suspect invoked his counsel is Latt Finally, also Bloomfield. Schultz before a mixed question of law and fact. See began interrogation Soffar, he read Jara, United States de la F.2d Miranda Soffar his for rights the fourth (9th Cir.1992). However, time, we must and also warned that he Soffar could apply substantial deference to the findings penalty face the death if convicted. None- by theless, of fact made the state court in the Soffar his rights waived and de- Armstead, course deciding such claims. scribed the crime at bowling scene 206; Duckworth, 37 F.3d at 29 F.3d at alley police. 1222 (discussing presumption of correct It clear is that Soffar made these state- subsidiary ness afforded to questions in ments with full knowledge the conse-

forming the state legal court’s conclu above, quences. during As described sions). course of his interrogation, he was warned he might face death penalty if

Ill convicted, was Miranda at four given least Mi multiple Soffar received warnings, including one set administered randa warnings informing him of by magistrate, and waived his Miranda rights during the Moran, rights course his arrest at least three times. See and interrogation. (“Once If validly 422-23, waived 475 U.S. 106 S.Ct. 1135 (5th McCotter, F.2d 1237-38 suspect] ... at Cir. [the determined that it is 1986) suspect given was (ruling that who could mute knew he stand all times warnings two Miranda not entitled to that was aware of lawyer, and he request a later). Therefore, another one three hours intention to use his statements the state’s knowingly we conclude conviction, the com- analysis is secure a voluntarily rights, any waived his as a matter of the waiver is valid plete and following such waiver ad statements law.”). missible. addition, no indicat is evidence there fully waivers were not ing that Soffar’s IV instigated himself voluntary. Soffar argues that invoked his he alley murders bowling about the discussion point silent at during remain some crime. unrelated following his arrest To support the interview with Schultz. by or coerced He was not threatened claim, he relies on Schultz’s statement continuously infor volunteered police, he “hit Clawson that had a brick wall” his interro during mation the crime about Kelly Lynaugh, Soffar. See 421-22, Id. at 106 S.Ct. gation. (5th Cir.1988) 1126, 1130 (holding F.2d sus voluntary absence (holding statement right to remain silent de pect invoked talk). physical pressure, or psychological clining given, Once are warnings spontane manner, any it who noting that was if “indicates conversation). during prior questioning, It is ously initiated first silent, the that he to remain inter wishes free that one who is told is “self-evident v. Ari rogation must cease.” Miranda in a curi questions answer to refuse to 436, 473-74, zona, complain that an posture to later ous (1966). If had in 694 16 L.Ed.2d v. compelled.” Colorado swers subsequent his state right, voked this 564, 576, 107 851, 93 479 U.S. Spring, inadmissible unless the ments would be (1987) suspect (holding that L.Ed.2d 954 right his to police “scrupulously honored” con every “know and understand need not Michigan Mosley, v. questioning. off cut waiver”). of a sequence 104, 321, 96, 46 L.Ed.2d his suspect has waived Once (1975) of (holding admissibility state 313 to police are free to continue rights, custody has person after ments obtained requirement case-by-case him. There is no question decided to remain silent police re depending reminded of on whether suspect continually inquiry that a do not suspect’s request). We spected rights a valid waiv following his Miranda us, on the record before agree, based Anthony, 474 F.2d United States v. er. his silent. right invoked remain (5th Cir.1973); 770, States v. 774 United (S.D.N.Y. 210, 214 Taylor, F.Supp. 461 alone, statement, standing does Schultz’s 1978); Weekley, v. see also States United support that Soffar had not an inference Cir.1997) (6th 747, (holding 751 At the F.3d to remain silent.4 right invoked his outset, simply prior conduct and required is not on Soffar’s “re-warning based interroga- he elapsed”); the fact that continued time has Evans because applicant’s right to remain rejected We court invocation 4. note that the state habeas Findings Fact State Habeas argument such a silent.” See statement of ¶78, We findings Law its of and Conclusions constitute an invocation. In fact, question whether a appli- previously found the state court found that "the right to to be silence or in invoked cant’s refusal talk certain officers state made court. presence was factual determination of certain officers not tion with Clawson after Schultz left the waived right, this was not invocation room, it does not appear that he wanted to because it was evident he misunderstood stop See, talking. Barnes, e.g., 160 F.3d at question talk); and continued to Burk 224 (finding no invocation right to si- et v. Angelone, (4th 208 F.3d lence when in light Cir.2000) suspect’s viewed (holding statements such as “I prior statements fact that suspect ini- just don’t think I say should anything,” discussion); tiated Johnson, West v. 92 are assertions); not clear United States v. (5th Cir.1996) F.3d (holding Ramirez, de- (2d Cir.1996) 79 F.3d tective’s testimony (“Ramirez’s that suspect said he silence in the wake of two want it,” “didn’t to tell us anything about questions, while others, answering did not was not an invocation of suspect’s right constitute even an equivocal invocation of silent, to remain but rather a silent.”). denial his right to remain crime). involvement light of these facts and the relevant Moreover, law, courts have adopted case we fairly conclude that Soffar did not strict standards when evaluating right claims invoke his silent, to remain invocation of therefore, silence.5 A third-party state were free to continue ment expressing frustration questioning over the sus him.

pect’s unwillingness to talk not does meet V Barnes, standard. See 160 F.3d at

224-25 (holding that when an Soffar argues that he invoked swered “no” to question of whether right to counsel during his conversation Johnson, West v. (5th 92 F.3d 160 F.3d at 225. We note that other circuits Cir.1996) ("The fairly record supports the un- that have addressed this including the issue— derlying Sixth, factual Seventh, determination of the Eighth, Texas and Eleventh—have courts that West did invoke his held applies Davis rule equally to the silence.”). Thus, we must defer such find- to remain silent. See United States v. ing. Smith, Loyd See Banks, 899 F.2d (7th Cir.1996) F.3d (5th Cir.1990) (discussing requirement of fed- (holding that response got "I don’t noth- grant eral courts to presumption of ing correct- say” ambiguous in the context of ness explicit to state court’s implicit find- suspect’s other comments because it could be fact). ings of The ultimate admissibility of the angry construed as an response), rev’d on statements, however, legal is a conclusion grounds, States, we other Mills v. United 519 U.S. West, must review 990, de novo. 478, 92 F.3d at 1402- 117 (1996); S.Ct. 136 L.Ed.2d 373 ("[Tjhere 3 is independent Johnson, federal determina- 947, United States v. 56 F.3d 955 whether, tion question of the (8th ultimate 1995) under (determining Cir. whether sus- totality circumstances, of the pect’s the chal- statements unequivocal “indicate an lenged confession was obtained in a manner to right decision invoke the to remain silent” compatible requirements with the of added)); the Con- (emphasis Singletary, Medina v. 59 stitution.”). 1095, (11th F.3d Cir.1995) ("Law 1100 en- required forcement officers are not to termi- 5. We decline to address nate interrogation an whether the Davis unless the invocation of applied standard should right to invocations to of remain silent unambiguous.” is the right to Davis))-, remain silent. (citing v. Hurst, Davis United see also United v. States States, 751, discussed opinion, in Part V (6th Cir.2000) this 228 F.3d 759-60 (citing Supreme Court held that a suspect implicitly must un Davis in holding that a equivocally right assert to request counsel. must right "his assert to remain silent suffi- 452, 459, 512 2350, U.S. ciently 129 clearly”); Ramirez, United States v. 79 (1994). L.Ed.2d 362 We 298, have previously (2d held Cir.1996) F.3d 305 (assuming, ar- that application of such a rule to tire guendo, invoca that applies Davis to invocations of tion of silence is contrary not silent, to clear Su right to remain but holding not that preme Barnes, Court law under does). AEDPA. See definitely it

595 462, 2350 114 Davis, S.Ct. U.S. 512 subsequent Clawson, that lawyer” was not a talk to I should (“Maybe inadmissible.6 therefore statements invocation). States, a clear v. United In Davis officers law enforcement held how about Second, suspect’s question a when questioning to cease required are not constitute not attorney does an obtain to equivo ambiguous or an suspect makes a right. of his assertion unambiguous an 452, 114 512 counsel. for request cal Cruz, 98 22 F.3d v. States See United (1994). An L.Ed.2d 5.Ct. Cir.1994) suspect’s a (5th (holding reason “that can unambiguous statement “working man” a he was statement of a expression an to be construed ably be was attorney” not an “couldn’t afford who attorney” an is the assistance desire Duckworth, 29 see also request); a clear standard. stringent under required (the statement, “I can’t 1220-21 F.3d at estab Davis S.Ct. 2350. Id. at anyway I can but is there lawyer a afford rule, which “a under bright-line a lished request). not a clear was get one?” an assertion such is either statement Id. is not.” or it counsel right to long how into Third, suspect’s inquiry a Clawson not attorney get Officer an take to statements it would Soffar’s he asked follows: States v. as United categorized See invocation. can be clear Cir.1990) how attorney; (10th an get should Lux, whether 905 F.2d it would one; long how it would get long he could how about (finding question appointed. attorney an to have take and whether lawyer, aget take every one rejected each have interim, Courts jail during inwait too procedural, as questions these Doe, v. States United request); a clear not invocation clear to constitute equivocal Cir.1999) (9th (holding 1162, 1166 F.3d First, courts counsel. anot lawyer” was Iwill see a “what asking statements ambiguous rejected request). clear an to obtain not on whether for advice “speak with not suspect need aWhile Posada- States United attorney. See don,” he Oxford the discrimination Cir.1998) (5th Rios, F.3d de clearly articulate must nevertheless suspect’s statement that a (holding Davis, attorney present. have an sire then, lawyer get “might have she United request); a clear was not huh?” of an to the level not rise did (5th questions 1124, 1130 F.2d Cherry, States of his invocation unambiguous Cir.1984) an attor get I not (“Why should Davis.7 under counsel see also request); a clear ney?” was findings First, contrary to factual it is totality of applying a opinion, panel 6. The court, Clawson found that which the state analysis, concluded circumstances procedural. as questions requested interpreted counsel. Soffar's unambiguously had Sof many among is one far, at 457. statement particular F.3d 237 This hearing, and he re- at by Clawson made a emphasis on place undue decline 7. We consider he did not peatedly testified testimony state at portion of Clawson's request for counsel. a questions to be he be- stated that hearing where habeas objec- Second, an inquiry under Davis is Soffar, attorney. See an Soffar wanted lieved one, of Soffar's perception and Clawson's tive on this has relied at 431-32. F.3d 237 459, Davis, at 512 is irrelevant. intent that a rea- argument support his statement Senkowski, 76 v. 2350; see also Diaz ques- interpret Soffar's officer sonable Cir.1996) (holding suspect’s 61, (2d 64 F.3d request counsel. unambiguous as an tions factor, because offi- controlling is not a intent argument. by this persuaded not We are suspect subjects potential interroga- of of VI tion); Tapp, United States F.2d validly rights, waived his Cir.1987) (5th 177, (holding waiver subsequently did invoke his voluntary failed though even officers remain silent or his to counsel. target investiga- tell defendant he was of then, only remaining question, The- Perkins, tion). Illinois v. 496 U.S. Cf. misleading statements whether Clawson’s 297, 110 S.Ct. 110 L.Ed.2d 243 multiple invalidated the waivers Soffar had (1990) (upholding use of undercover prior to the interview. We given conclude in agents jails incriminating to elicit state- they do not. ments). language on from the Soffar relies Su- v. We Miranda

preme rejected, Court’s decision a previously case Arizona argue facts, misleading involving very argument similar an statement, trickery or deceit an inter- misleading of retroactive waiver based on Texas, rogating suspect’s officer See De Rosa invalidates La statements. waiver. See 384 U.S. at Rosa, (5th Cir.1984). De La F.2d (“Any evidence that the accused suspect subsequently was arrested and tricked, threatened, cajoled or waiv- into a by an questioned officer he knew. Several will, course, er of show that the defendant sets Miranda warnings given be- voluntarily privilege.”).8 did not waive interview, fore the but the inter- during disagree interpretation. We with his Sub- the officer him view told that “it [would] interpreting Miranda’s sequent cases lan- time” a lawyer take some before could be or guage trickery only show that deceit is Id. at 302. We held the sus- appointed. prohibited deprives to the extent it valid, pect’s stating: waiver was still knowledge “of essential to his accept position We cannot ability to understand the nature ignore would have us the repeated full rights and consequences of abandon- warnings only accurate to focus on Moran, ing them.” appointing attorney remark that case, S.Ct. 1135. In this Soffar was well would take some time. The cumulative rights aware because he had been repeated effect of the incantations of Miranda given numerous warnings Miranda explanations simpler rights multiple prior had waived his times language was such that De La Rosa was to his interview with Clawson. Further- fully informed of his constitutional more, courts have found waivers to be rights. voluntary even cases where officers Id. 302. Spring, See employed deceitful tactics. 479 U.S. at (holding S.Ct. 851 The Fourth Circuit has also held that voluntary despite waiver failure misleading to inform do statements not invalidate a guided by speculation attorney cers cannot be change does not the fact that Soffar intent). suspect’s get ultimately knew he could one. Clawson's irrelevant, knowledge “72 hour” rule is arguable It is whether Clawson’s statements period as this relates to the misleading rose level even to tire deceit- being charged. can be held without See ful. Clawson's statement about Sof- whether Davis, ("The at S.Ct. 2350 speak attorney clearly far should to an was primary protection suspects to afforded custo- advice, knowledge and did not affect Soffar’s interrogation warnings dial is the Miranda attorney of the fact an was that available to themselves.”). Similarly, him. Clawson’s about statement length get of time it take would an invocation, holding ultimately biguous a Angelone,9 v. In Mueller waiver. prior to coun- invoke not suspect did rights that his Miranda waived sel). that Likewise, Cherry subse noted dicta during the officer asked I need as a you think be used “cannot clarifying questions “Do interrogation, quent (4th 557, 573 F.3d incriminating state- any here?” attorney eliciting an means responded by Cir.1999). officer (holding The at Cherry, 733 F.2d ments.” from side to slightly his head “shaking counsel request for equivocal an that when in a hands side, his arms moving must be made, interrogation scope is manner,’ ‘You’re stating, .‘shrug-like clarification). And in Wain- limited ” at 573-74. The us.’ Id talking to just held that an officer’s wright, court that argument suspect’s rejected court limited to clarification was not question waiver, prior invalidated exchange this but not- impermissible, therefore and was from the record clear is stating that “[i]t permissi- inquiry that “the limited only ed expe extensive with his suspect], that [the legal request equivocal an after ble matters, both understood in such rience argu- an the form of may take not counsel of their consequences rights interrogators and ment between expression officer’s] [The abandonment. be in having would whether counsel about advisability [the on the opinion of his Wainwright, interests.” suspect’s best could counsel consulting with suspect’s] at 772. F.2d Id at understanding.” change that not 575. VII Fifth that opinion concluded panel

The the Nash forth in as set precedent, Circuit Moreover, if Nash even that cases, conclusion compels the line of facts of to the applicable line of cases invali- can questions clarifying deceptive from case, be barred would this Soffar, prior See suspect’s waiver. a date non-retroactivity by the relying on them pri- disagree. We at 237 F.3d 458. Lane, 489 Teague v. set principle forth cases, ques-. all that these holding of mary L.Ed.2d 109 S.Ct. invocation ambiguous following tioning Supreme (1989). Teague, In clarifying questions, limited should will not be rule law a new held Court’s overruled was review cases collateral applied on Estelle, 597 v. Nash in Davis. See holding announcement prior final became Cir.1979) (en banc); Thomp- (5th F.2d 513 1060. Id. rule. the new (5th Cir. F.2d 768 Wainwright, 601 v. son “new,” rule is whether determining In Cherry, 733 F.2d 1979); States United itas landscape legal “survey the we must Cir.1984). dicta, opinion (5th our whether and determine existed then could officer that an in Nash stated defendant’s considering the court state sub- as a of clarification guise “utilize the became his conviction at the time claim intimidation,” but coercion or terfuge for by existing compelled felt final clarify- involve did not itself the case rule he conclude precedent suspect. to mislead used statements ing Constitution.” by the required seeks clarify- Nash, (holding that at 517 597 F.2d (5th 295, Texas, 169 F.3d Fisher an am- after permissible are ing questions not serve "did conduct the officer’s states stan- deferential applies AEDPA's 9. Mueller involuntary, un- waiver However, Mueller's to render does not the court review. dard of Mueller, 181 unintelligent." knowing, or was a close opinion that suggest in its clearly F.3d it adjudicate, as question to difficult Cir.1999) (citations omitted) (emphasis VIII added). Based on reasons, the foregoing we AF- FIRM the district court’s denial of Soffar’s In order qualify existing, as a Fifth Amendment claims raised his ha- rule must be dictated by Supreme Court petition. beas We also REINSTATE the precedent, not circuit precedent. court panel’s rulings granting or denying a COA See, e.g., Fretwell, Lockhart v. 506 U.S. as to each by claim raised Soffar. We 364, 375-76, 113 838, 122 S.Ct. L.Ed.2d 180 REMAND panel for consideration (1993) (Thomas, J., concurring) (discussing on the merits outstanding issues for' fact that “neither federal which a COA supremacy granted. nor has been See foot- note 1. principle other of federal law requires a state interpretation court’s of federal law DeMOSS, Circuit Judge, with whom give (lower) way to a federal court’s inter DENNIS, PARKER and Judges, Circuit pretation”); Johnson, Burdine v. 262 F.3d join, dissenting: 336, (5th (en Cir.2001) banc) (describ Because I disagree with ing the en relevant banc inquiry Teague under as majority’s interpretation of the case law “whether a state court 1987 would have applicable case, in this and because I dis- felt compelled by Supreme prece Court agree with the en banc majority’s applica- dent”); Glock v. Singletary, 65 F.3d tion such law to the facts which are not (11th Cir.1995) (holding that federal disputed case, in this and because the en courts of appeals “do not partic ‘dictate’ a banc completely fails to address courts”). ular rule to see, state e.g., But ground for relief asserted by Soffar in this Taylor, Williams v. 380-82, case, I respectfully dissent and write to (2000) 146 L.Ed.2d 389 express my reasons for such dissent. (Stevens, Justices) J. for four (discussing how AEDPA Teague, yet codifies extends I. Misinterpretation Lawof the principle of Teague by limiting source I have two serious disagreements with of doctrine on which courts may rely in legal analysis and reasoning of the en addressing applications habeas Supreme banc majority. all, First of the en banc precedent); Court Hill, Bell v. F.3d majority states as a matter of established (9th Cir.1999) (holding law that “in order to qualify existing, a state courts can be compelled to follow rule must be by dictated Supreme Court federal circuit case law if “foreordained” precedent, not Circuit precedent.” Court by Supreme precedent). Court Because Majority op. p. 592. In support of this Nash, the rules in Cherry and Waiwwright legal principle, the en banc majority cites prohibiting deceptive clarifying questions Fretwell, Lockhart v. have never been dictated the Supreme 122 L.Ed.2d (1993), and, Court, we do not court, believe a state specifically, the concurring opinion of Jus- the time final, Soffar’s conviction became tice Thomas in note, that case. I however, felt compelled to follow the no other Justice on holdings of these cases. Soffar has failed joined in Justice Thomas’ concurring prior show his waivers were invalidated and, opinion; while Justice Thomas’ solilo- by Clawson’s statements; misleading thus, on quy the “supremacy clause of the U.S. his valid waivers were still effect and his Constitution” accurate, is academically subsequent statements were admissible. issue that he discusses absolutely had no

599 Texas, in Russell v. State the banc decision making of the decision of applicability (Tex.Crim.App.1987). 573 Further- 727 S.W.2d in Fretwell. opinion majority Russell, Appeals opinion Court Criminal concurring the more, Thomas’ Justice the Fifth and discussed expressly for which reviewed to the issue speak at all not does Wainwright it, only in Nash and holdings i.e. that majority cites Circuit’s en banc the (and rule, it following not Circuit which recognized the precedent Court Supreme applied by in determin- several be used had been acknowledged can precedent) apply- in precedent” appeals Texas: “existing of the courts what is ing Lane, Teague v. ing the desires are related an accused’s When (1989), anti- 103 L.Ed.2d manner, interrogating the equivocal majority Even the rule. retroactivity required to automatical- officers are not not v. Fretwell does in Lockhart opinion Instead, they the interview. ly cease banc the en for which the issue address questioning; allowed to continue are contrary, the To the it. majority cites however, specifi- be questions must points out: Fretwell opinion in majority the accused’s discovering at cally aimed therefore, vali- principle, new rule “The Further, interrogating true desire. interpretations faith good reasonable dates guise use the may not of clarifi- officer by state made precedents existing coerce or intimidate order to cation in they are shown to though even courts a statement. making into the accused Fretwell, 506 contrary to later decisions.” elicit may it be used to Nor further Butler 372-73, (citing 113 S.Ct. 838 at question. about the event information 407, 414, 110 S.Ct. McKellar, 494 U.S. v. added.) (Emphasis (1990)). Note 108 L.Ed.2d Later, in Russell, at this S.W.2d 577. precedents” quali- “existing term Court of Criminal opinion, the Texas same obviously majority as the en banc fied Appeals stated: “of Su- phrase it were wishes never vo- appellant case In the instant preme Court.” present. to have counsel calized desire brings from Fretwell quotation And opinions as to the merely sought He I have with major dispute up the second present. having counsel necessity analysis. To- majority’s legal en banc comments appellant’s fact that Given banc opinion, the en the end its wards necessity of clearly aimed “Because rules majority states: interroga- during having present counsel prohibiting Nash, Wainwright Cherry, and of the tion, him the benefit give will we have never deceptive questions clarifying Thus, inquired of appellant when doubt. Court, we by the dictated been they officers whether interrogating the time court at not believe state do have counsel necessary to thought it final would conviction became Soffar’s duty under officers were present, the holding of to follow the compelled felt they if clarify appellant’s desires ma- Obviously, the en banc cases.”1 these interrogation. continue wanted to thorough very not conduct a jority did omitted). (citations Conse- Id. landscape” at the “survey legal view, need to there is no my quently, in final in October conviction became (as majority seems the en banc speculate clearly missed The en banc 1989. do) Texas about whether en want Appeals’ of Criminal Texas Court 1979); (5th States Estelle, (5th Cir. United F.2d 768 Cir. 597 F.2d See Nash 1984). (5th Cherry, banc); F.2d 1124 Cir. 1979) (en Wainwright, Thompson v. Court of Criminal Appeals “would have felt II. Application Law to Facts compelled holdings to follow the of these I turn my now to disagreements with Rather, cases.” the Texas courts did the en banc majority’s application of the adopt holdings fact the in Nash and Wain- to law the facts involved here in Soffar. wright. can think of no way open better Finally, en majority the banc asserts the discussion than quote pertinent'sen- two proposition Nash, holdings of majority opinion, tences from the as fol- Wainwright, Cherry that “all ques lows: tioning following ambiguous invocation Afterwards, over the course of three counsel [should] limited clarifying questions” days, by signed was overruled Soffar three written state- Court’s decision in Davis v. confessing ments to the murders. States, United were crucial to his convic- confessions (1994).2 129 L.Ed.2d 362 The Su tion, because there physical was no evi- preme Court in Davis clearly recognized linking dence to the crime. that in granting certiorari in that case it Majority op. added.) at 592 (emphasis doing was so in order to decide “how law These two encapsulate sentences the cir- enforcement respond officers should when cumstances that take this case out of the suspect makes a reference to counsel ordinary run of the mill situation involving insufficiently clear to invoke the a suspect’s put confession and it in the prohibition Edwards on question further category special, of unique, peculiar, and ing”; and it recognized that the Court had unusual. Some brief elaboration is appro- twice previously noted varying ap priate. proaches of the lower courts and that the granting certiorari in order to Note, all, first of that Soffar was held in address the issue on the agree merits. I police custody for three days without bene the en banc that from and fit of access to signed counsel. He three after the date of the opinion, Davis i.e. different written statements. There are 24, 1994, June opinion the Davis would be substantial inconsistencies between those deemed to have portions overruled the three statements. The statements were Nash, Wainwright, Cherry which typewritten by the interrogating officers required clarifying questions presence Soffar, outside of the and were

when suspect makes an ambiguous based on the interrogator’s recollection of reference to the lawyer. need for a But dialogue that occurred between Soffar Davis really speak does not ques (cid:127) interrogator. and the No tape video or tion of happens what if the interrogating tape audio recording any was made of officer get does into a dialogue with the (as interrogations; these was, and there occurred here in Soffar) nor therefore, no verbatim typewritten whether the interrogating tran officer can uti script lize that dialogue persuade, trick, interrogations preserved in cajole case, into waiving his Mi the records of this required under (as rights randa happened Soffar). here in Texas law.3 non-capital Davis is a case heard 3. See Tex.Code Crim. Proc. Ann. art. 38.22 Supreme Court appeal on direct from the (1977); Texas, see also 638 S.W.2d Alfaro Court Military Appeals years some five (Tex.Crim.App.1982). after Soffar’s conviction became final. the rob- relating to kind statements, implicated conduct these alley. The bowling as a at the bery/murders Latt Bloomfield buddy” “running rob- basis to that there was no with Soffar determination co-participant alley. bowling at the obviously incidents undermines bery/murder hold Bloomfield statements, to these According statements. of Soffar’s truthfulness alley in bowling went Bloomfield that makes it aspect of this case Another gun Bloomfield’s and used car Bloomfield’s different, relationship is the unique and on these Based robbery/murders. Clawson and Officer Bruce between Soffar. Police arrested statements, Houston the County Depart- Sheriffs of the Galveston police in a placed him and Latt Bloomfield arrest, Clawson Prior to Soffar’s ment. Garner, the Greg viewing by up for line an undercov- deploying Soffar as had been shootings. the victim of surviving sole developing for leads and drug informant er as be- identify Bloomfield not did Garner in drug Gal- about activities information alley. In a bowling at the present ing relationship provided County. This veston fashion, placed Soffar police the similar get for to opportunities Clawson numerous and Gar- viewing by Garner up line for strengths and know weakness- to being at the identify as Soffar ner did not es, and emotional mental limitations his alley. bowling him manipulate to make-up, and to how apartment the searched police The devel- Clawson wanted the information get car, did and his but lived Bloomfield where record the It is oped. uncontradicted to used weapon of the find a caliber not the summoned to that Clawson was bowling alley. at the shootings commit the when City Courthouse Soffar League any gun. fact, not find police the did the motorcycle theft because arrested any find other did not police And the knew of relation- City Police the League document, which could be object, cash or Clawson, between Soffar ship bowling al- from the coming identified help in to expected Clawson be of they police was in while Soffar Similarly, ley. police. open up to the getting Soffar to counsel, police custody, without any duty, home and official living quarters at did not his Clawson searched bowling with the came from the involvement nothing responsibility, found task murders, printed both Sof- police finger bowling alley alley. of the investigation Bloomfield, did not prints their but not Gal County far and in Harris occurred which finger prints retrieved any match of the shows record also County. The veston at the murder scene police from the as to with Soffar negotiated that Clawson alley. bowling interro be the police officer which murders. bowling alley about gator investigation, of this As a result (his not Officer Palmire did want to they no basis had police determined Friendswood) to be the old nemesis from the rob- in connection with hold Bloomfield likewise, not did interrogator, and him from they bery/murders, released Attorney Wilson District Assistant want never been custody. Bloomfield has get Sof- Clawson did interrogator.4 any criminal be any time with charged officers, factually court is habeas the state banc opinion, the en 4 of its In footnote correct; con- whether such refusals but as to finding by state habeas cites right to remain an invocation two stituted silent, to these judge refusal to talk that Soffar's determination court's the state appli- habeas "was invocation officers law, not bind which does a conclusion of As to remain silent." [Soffar's] cant's Furthermore, con- Court on review. two this to these refusal talk the fact of Soffar's far agree to submit interrogation by tape recorder or tape audio recorder. Detective Schultz. The line is that Clawson testified at bottom the habeas hearing relationship produced this that in beginning what Clawson in the remained one-way friendship. described as room for about 15 during minutes which friend, considered Clawson to be but Schultz was interrogating Soffar as to Clawson did not consider physical premises Soffar to be his at the bowling alley. friend. difficulty From the that Soffar had de- scribing premises, Clawson concluded mind, background I With turn to really that Soffar didn’t know much about consideration the facts law relating facts, and Clawson interroga- left the critical appeal: three issues in this room, tion but remained at the League A. Did Soffar exercise constitution- City Police Office. About 30 minutes la- silent; so, al right to remain if ter, came out Schultz of the interrogation what are consequences thereof? (Schultz) room and told Clawson that he B. Did Soffar exercise constitution- had hit a brick wall and that Clawson right al get to assistance from coun- go needed to back into the get room and sel, so, and if what the are conse- talking again. quences thereof? Did

C. Soffar make a knowing and in- Discussion formed waiver of his Miranda the Among important safeguards estab rights as a result of his dialogue lished Miranda by “right is the to cut off with Clawson? Arizona, Miranda v. questioning,” 474, 436, 1602, U.S. 86 S.Ct. 16 L.Ed.2d A. Right to Remain Silent (1966), which serves as an essential earlier, As indicated arranged Clawson check on “the pressures coercive of the for Detective Schultz to interrogate Soffar custodial setting” by enabling the about Soffar’s knowledge of the bowling to “control the time at which questioning alley occurs, murders. This interrogation began subject discussed, the the du Soffar, Schultz, in Clawson ration Michigan v. interrogation.” interrogation room. There is some testi- Mosley, 103-04, 423 U.S. 96 S.Ct. mony by Schultz that he thought legal (1975). 46 L.Ed.2d 313 This right is a stenographer was also in taking the room “critical safeguard” of the Fifth Amend but, interrogation; notes if such a ment privilege, Mosley, 423 U.S. at person there, were State was unable to S.Ct. and requires police immedi any stenographic locate any ately This error resuming dialogue. into room, vio- immediately he

leaving the but v. right questioning); United States to off hit a brick cut that he had Bruce Clawson told 462, (9th 1986) Poole, 77, ¶ 8); Cir. wall,” 794 F.2d 465-67 Findings, Claw- p. State (defendant's "nothing had ("... statement and testimony a detective came son's right to cut off talk invoked his refusing to about” to talk and asked Max was told me Wainwright, 770 F.2d questioning); Martin v. get again,” to talk could Max to see if I me Cir.1985) (defendant's 918, (11th ¶ 19), 922-24 his uncontroverted Aff. and Clawson Soffar; we wait tomorrow” "can’t until and statement with Mr. of his session account interview, right questioning), mod to cut off invoked his Clawson's end result of relevant, Schultz, 781 F.2d 185 respects not interrogation by to- resumption of ified 96, Smith, (1986); v. F.2d 101— 751 Anderson candid assessment gether with Clawson's 1984) (defendant’s (2d to all, to talk refusal ("All getting 05 to Cir. I was used result question right ¶ 16). to off police his cut invoked Aff. Clawson Max to talk.” 214, Percy, 220 F.2d ing); v. 738 Robinson 1984) (defendant’s (7th that he statement 718, Cir. Smith, Accord, 894 F.2d Charles v. police invoked to talk with the did not want 1990) (defendant’s (5th to refusal Cir. 725-26 v. questioning); Watson right to cut off his right to cut off police his to invoked talk 591, State, (Tex.Crim.App. S.W.2d 597 762 Hernandez, v. questioning); United States (defendant's 1988) to an refusal silence and 1362, (5th Cir.1978)(defen- 1368-69 F.2d interrogation during invoked questions swer questions his to invoked refusal answer dant’s v. questioning); Faulder right to cut off his v. questioning); Nelson Ful right off to cut State, (Tex.Crim.App. S.W.2d (3d Cir.1990) comer, 928, 932-34 911 F.2d 1979) (en banc) (defendant’s request that he (defendant’s police to talk to invoked refusal straight in his get time to matters be allowed United States right questioning); cut off his to questions his answering invoked (9th mind Wallace, before Cir. 848 F.2d State, questioning); Hearne right off to cut 1988) (defendant’s to re silence and refusal 1976) (Tex.Crim.App. 706-07 right S.W.2d police questioning invoked his spond to interrogat Florida, (defendant’s to talk refusal to Christopher v. questioning); cut off ques right to cut off (11th Cir.1987)(defen- ing invoked officer F.2d 840-41 tioning). police invoked refusal to talk dant’s compounded by the fact that Clawson involves an evaluation dialogue person get was the sent in to Soffar to occurred between and Clawson Soffar af resume talking prior knowledge, ex- ter Clawson went back into the interroga —his perience, and contact with him gave Soffar get tion room to talking again, an advantageous position from which to requested by Detective Schultz. The rec York, work on Spano Soffar. v. New 360 ord is clear that person there was no other L.Ed.2d 1265 in interrogation except room (1959). ability Given the interrogators Clawson; again there was no vid needle, tease, taunt, repeat again tape recording tape eo or audio recording again, remaining silent the thrust of made of this conversation. Clawson testi such testing requires genuine exercise of fied that dialogue with Soffar lasted power. will speak Actions louder than about 35 or 40 It very minutes. trou words, and silence is “forbearance from bling interrogation to me that the of Soffar speech,” the result speaking. of not To did not include form of live real time create some of magic password sort recording of the conversations. See Tex. do, seems to want (1977). Code Crim. Peoc. Ann. art. 3822 require password spoken to be in or- Technology was obviously available to silent, der to exercise to remain recordings make of these interrogations result, will tragically, in the dilution of this because the investigators au made most fundamental right, constitutional i.e. tape dio recordings of each of the four require the government Garner, interviews surviving vic prove guilt beyond a reasonable doubt tim, and then those recordings tran without relying upon any words from the scribed in question verbatim and answer mouth of the accused.

form and were in prosecutors’ files.7 Right B. to Counsel Obviously, if a recording in some form had been made of the dialogue between Claw- The second critical issue in this appeal is Soffar, son and our appellate whether tasks on re exercised his constitutional right to assistance from view would have during greatly simplified.8 counsel been his dialogue and, so, left, therefore, with Clawson if the con- We are to evaluate both the sequences thereof. necessarily This issue factual and legal the content of this dia- noted, already 7. As a statute of the State of techniques other developed which have been Texas that was in full force and effect the and interrogations dissiminated to make such interrogations of Soffar's would have possible. as effective as Given the low cost seemed to recording make the of oral interro- widespread and availability taping of video gation suspect police custody of a in standard equipment, significant improvement a in the operating procedure. See Tex.Code Crim Proc. application and enforcement of Miranda (1977). Why procedure art. 38.22 Ann achieved, rights could my opinion, by be in a was followed in the case of Garner and not in (1) statute or court requiring rule that all the case of many puzzling Soffar is one the of interrogations capital of a suspect murder enigmas in this case. taped must be video in elapsed real time with (2) tape; time shown on the tape that such 8. The evil that prac- Miranda addresses is the preserved must period be a years for of ten police tice interrogation of of a in (3) interrogation; after the custody room, if such separate which occurs in a interrogation windows, was preferably pres- conducted without the by police without several officers, time, ence of suspect, counsel for the periods tape over extended such purpose put pressure of which is would be made viewing by to available for on the such isolation, fear, by to talk fatigue, immediately counsel upon in- employment his timidation, cross-examination, vigorous appointment. you afford to Can Clawson answered: testimony Clawson on logue based own? lawyer your a on habeas hire at the state developed as it spo- The words hearing. corpus Commentary: by described parties as by each ken contrary directly This answer is intimations dispute, are Clawson of Miranda. Clawson contrary spirit not- language opinion to lan- specific enough have mon- that Soffar didn’t Because knew withstanding. impor- gave critical when he lawyer on such hire own ey takes guage used view, indi- separate and, gave tance, my now to a Clawson I turn this answer each of put but to and evaluation to inform Soffar this answer not vidual discussion between position dependency and answers questions in a for an undercover informant and Clawson: had been as Therefore, is answer Clawson’s Clawson. 1: Question No. non-responsive question to the totally attorney get I “Should Soffar asked: view, a reasonable by my asked Soffar. ?” detective or talk police officer by reasonable answer a in- “If [you were] answered: Clawson would have been: crime, tell the you should volved in it; otherwise [you were] detective lawyer by hiring one get You can lawyer.” aget [you] should pay agreeing choice and your own Commentary: expenses yourself. lawyer’s fees and money pay itself, enough you If don’t in Miranda nor nothing

There is sign an lawyer, you can any your for own which draws progeny, of its that; court says and the affidavit which and innocent guilty between distinction help you lawyer appoint will then being entitled far as suspects as ap- expenses of this only require- and the fees and Miranda protections. paid contemplated by by for pointed lawyer will protections ment suspect be “in Miranda is that state. in this clearly was custody,” which Question No. 3. question answer to case. Clawson’s I get can court- “When Soffar asked: inaccurate, inappropriate, completely lawyer?” appointed under Mi- obligations

inconsistent with that a suggest reasonable randa. I lit- “It could take as answered: Clawson police officer a reasonable answer as a month.” day long or as tle as a would be: Commentary: a have right to You a constitutional during this help you lawyer present portion month” long as a The “as are you guilty interrogation whether just flat wrong is answer Clawson’s hand, you may the other On innocent. an- gave this it. Clawson knew Clawson you if lawyer a police without talk to the expe- prior knew from his swer because I you up choice is choose. The so that Soffar could with rience if you; choice for but tomorrow, can’t make anything past think about clearly lawyer, you a need to you want by discourage intended Clawson may as- Miranda, police otherwise say so as Under long estimate. this time lawyer. want a you don’t sume get may it take to time length of and irrele- 2: immaterial Question appointed No. is counsel by view, answer my In a reasonable vant. lawyer? get How do I Soffar asked: reasonable officer would have information relevant and material to Sof- been: making far’s an intelligent and informed decision as to his desire for counsel. All of most,

A day or two at you but upon the cases which the en majority banc worry shouldn’t about long how it takes support relies to its conclusion that each of during you because have a the questions by asked Soffar did not con- constitutional to remain silent and stitute a sufficiently clear request for an this interrogation your will cease until attorney, were cases where there was one lawyer appointed you’ve had a random unconnected by comment the sus- private. chance to talk with him in pect subject on the of counsel and not a Question No. 4. specific series of questions relating get- you saying asked: “So are that I ting help of counsel as we have here in have to my deal with this on own?” view, In my there is a world of Soffar. “yes” Clawson answered point one difference between one ambiguous com- the state habeas hearing transcript and “I specific ment and a request for informa- did not answer at all” at part another tion; and when you have to deal with a the state transcript. habeas specific questions, series of the difference Commentary: becomes even more critical. Neither of Clawson’s prop- answers are Second, in each of the upon cases relied er under Miranda. “yes” The answer is by clear, majority there was irrefuta- just plain wrong totally inconsistent ble, and conclusive connecting evidence with purpose the whole of the Miranda confessing suspect to the crime under in- requirements. If Clawson did not answer vestigation. circumstances, such it is question all, this Soffar would be left to understandable that a reviewing court make decision based on an incorrect would be reluctant to invalidate a convic- assumption subject and on a as to which he simply tion because of some random com- fully is not informed. I suggest by ment made during his in- a reasonable officer would make the fol- custody interrogation. It is inherent that lowing reasonable answer to ques- Denno, the Jackson v. tion: (1964), L.Ed.2d 908 review No, you don’t have to deal with it on compliance for Miranda require- your earlier, own. I you As told you ments occurs after the circumstances of have a constitutional get a law- interrogation itself and frequently af- yer help you if you that’s what want. ter the has already inculpa- made would like to dispose of tory statements without presence claim Soffar under the rubric that Here, counsel. the assertion as to non- ambiguous mere by a suspect comments compliance with Miranda was not serious- just mention an attorney will not be ly raised at the Jackson v. Denno hearing deemed sufficient to request constitute a only and was brought to light as the result help from an attorney. I think the of discovering new developed information majority errs in applying that rubric to during the state corpus habeas hearing. this case for three reasons. point, At that the fact that there was “no

First, pure from a language gram- physical evidence linking Soffar to the mar standpoint, (as there is nothing “ambigu- crime” majority the characterizes the ous” at all about questions. situation) They self-evident, and Soffar’s clear, are each unequivocable requests for conviction and death penalty hang by the Davis, 512 U.S. Court. See court inter- reviewing the of how thread Supreme of the 2350. The decision dialogue. the prets Clawson/Soffar any in has eliminated Dickerson Court majority’s the Third, with disagree I meaning to this distinction. Davis, did that, under conclusion of sufficiently clear invocation a Furthermore, strength not make the evaluating in earlier, I As stated Davis, to counsel. point I of applicability fall out- presented here the facts believe in the factu- the substantial differences out However, assuming scope. Davis’ side which the issue of al circumstances under I an accurate believe applicable is Davis the to counsel took invocation made now has to be of Davis reading in- circumstances in Davis from the place Supreme Court of the the lenses through following in is here The a volved Soffar. States, 530 in Dickerson United decision majority opinion from in quote direct the L.Ed.2d 405 Davis: appeal (2000). was on case While Soffar’s inter- and a half into the About an hour Court, handed Supreme the Court in our view, “Maybe I petitioner said [Davis] held It in Dickerson. its decision down talk to a lawyer.” should a constitutional announced “that Miranda uncontradicted testimo- According the supersede leg- may not Congress rule that interviewing agents, ny of one the the of stare that for reasons islatively” and proceeded as follows: interview then Mi- decisis, to overrule the declined Court that we very it clear [We made] Dickerson, U.S. at itself. randa that if rights, to violate his he not here majority banc The en 120 S.Ct. 2326. stop we will lawyer, a then wants recognize does not even opinion here him, that we questioning kind of of Dickerson. existence matter un- pursue going weren’t in Dicker- Supreme that the Court Note he have it whether less we clarified that stating in past tense son used just making lawyer or is asking for a rule a constitutional announced Miranda and he lawyer about a said comment applying present tense and used the “no, lawyer” for a asking I’m not for as the reason decisis rule of stare “no, on and said I he continued then I suggest, declining to overrule Miranda. a short After lawyer.” want a don’t therefore, interpretation petitioner agents break reminded is that from be drawn Dickerson should to coun- silent and rights to remain was in the in Miranda the rule announced then continued sel. interview always today, and has is now beginning, “I petitioner said hour until another rule. the interval constitutional been in say any- I lawyer I want a before think applicabili- strengths and evaluating point, questioning At thing else.” we should rec- Soffar, here ty of Davis ceased. opinion Davis is ognize Davis, 114 S.Ct. 2350 opinions the Mohicans” those “last of omitted). Davis (citations on in the Later Supreme Court majority which opinion, the states: as not rights the Miranda characterized makes an course, when a Of Amendment’s by the Fifth being “required statement, it will equivocal ambiguous in- coerced confessions” on prohibition for the practice good police often be prog- and its Miranda stead characterized clarify whether interviewing officers prophylac- product being eny attorney. wants an actually or not power making rule tic 608 procedure

That was the by followed protection the cial of the knowing and intelli- agents NIS standard.”). case gent [Darns]. waiver 461, 114 at Id. S.Ct. 2350. The reasonable officer test for a calls The en banc opinion reads the conclusion of part law on the of the review- language very strictly Davis and literal- ing court as to whether the Soffar/Clawson as ly requiring a suspect being interroga- dialogue constituted a sufficient invocation by police ted to expressly explicitly rights during counsel the “I say want a lawyer” in validly order to interrogation. mind, my own I doubt his right assert present, have counsel that Officer Clawson could as a qualify regardless dialogue interchange police reasonable officer because he was might comments that actually oc- charged with the mission getting view, In my curred. proper the test as talking Schultz; resume to Officer articulated by the Court in Davis is the Clawson knew that “yes” Soffar would say following: if he ever asked Soffar a ques- clarifying Although a speak need not with tion as to whether or not he wanted an don, discrimination ... of Oxford attorney. So Clawson never followed the (Souter, concurring J. in judgment), he track suggested good police practice must articulate the desire to have coun- Supreme Davis; but, so, Court in even present sel sufficiently clearly that a he admitted in his state testimony habeas police reasonable officer in the circum- that he understood Soffar’s questions to stances would understand statement indicate that lawyer. Soffar wanted a request to be a attorney. for an Supreme Court decision Dicker- 459, (citation at Id. S.Ct. 2350 omit- son did not establish a “new rule” and ted). objective This test what a reason- fully thus applicable to this case. Signifi- police able officer “would understand un- cantly, it confirmed the continuing vitality der the circumstances” would seem far Miranda, that, and thus made clear appropriate more in protecting what Dick- prescription because its is a constitutional clearly erson now holds is a constitutional requirement, protections Miranda’s can- right. Additionally, diluted, not be much less negated. Dick- past broad, “given has a rather than erson reiterated that Miranda was narrow intend- interpretation” to requests for ed to curb counsel, precisely oppressive the kind of Jackson, see Michigan 475 U.S. 625, 633, interrogation overbearing S.Ct. tactics 89 L.Ed.2d 631 produced (1986); Barrett, statements issue Connecticut v. here. As 479 U.S. 523, 529, Chief Rehnquist Justice declared for S.Ct. L.Ed.2d 920 (1987); Court: “After discussing and has ‘compelling instructed that courts “in- pressures’ dulge every inherent custodial in- presumption,” reasonable Zerbst, terrogation, 458, 464, Johnson v. the Miranda court concluded that, (1938); order pressures ‘[i]n L.Ed. 1461 to combat these permit has not and to opportunity waived his full to counsel to exercise Miranda, see, under e.g., self-incrimination, Oregon privilege against v. Brad- shaw, 1039, U.S. accused must be adequately effectively (1983) (Powell, 77 L.Ed.2d 405 appraised J. concur- of his rights and the exercise of ” (“We ring) are unanimous in agreeing rights those Jully must honored.’ Dickerson, [.Miranda ] prime to counsel is a S.Ct. 2326 example of those rights requiring spe- (emphasis added).

609 Knowing and Waiver upon C. heavily relies majority banc The en Informed that finding Claw- court’s habeas the state imposes more decision The Miranda “invoked had not that believed Soffar warnings son that be requirement a mere than attorney as determinative interroga- an of an beginning the right” provided his at However, a intended to se- warnings were tion. The presented. issue legal the the made clear was (even cure what the Court honestly if officer’s “belief’ police “assure a continuous requirement to basic held) legal issue— a relevant regarding his suspect] to exercise” [to opportunity constitutional his invoked Soffar whether interrogation. an any point during rights at disposi- cannot be simply right counsel— 444, (emphasis at 86 S.Ct. 1602 U.S. 384 § 2254 28 U.S.C. Under that issue. tive of substance, added). form over elevating By in- “have courts an federal (pre-AEDPA), sight majority has lost the en banc law say what the obligation dependent warn- the Miranda underlying purpose 384, 362, 529 U.S. is,” Taylor, v. Williams only dispel, at police must not ings. The (2000) 1495, 146 L.Ed.2d 120 S.Ct. outset, atmosphere that is the coercive' the Court) the O’Connor (opinion of Justice surroundings of custodial inherent in the 305, 277, West, 505 U.S. Wright v. (quoting that they must ensure interrogation; also (1992)). 2482, L.Ed.2d 112 S.Ct. 445-58, 86 at it not return. 384 U.S. does interrogating Thus, opinion of legal 1602. S.Ct. novo-federal subject to de police officer that Offi The en believes banc state that of a court. just like review court could dubious statements cer Clawson’s that, acknowledgment Clawson’s his Soffar’s waiver nullified did understand question, had al rights, because Miranda an him that he wanted telling was by the time Officer them ready waived fact, historical the definitive attorney is interrogation his fateful Clawson started in- that Soffar did conclusively shows “misleading answers” provided Because right to Claw- voke his counsel. coun about questions attorney, wanted that Soffar son knew re specifically sel.9 interrogat- prohibited from to assure analysis: “Our aim is jected this Mi- present. him until counsel ing to choose be the individual’s 473-74, randa, 86 S.Ct. 384 U.S. at speech remains tween silence unfet Arizona, (1966); 451 U.S. Edwards pro interrogation throughout tered (1981); 68 L.Ed.2d 378 101 S.Ct. Miranda, 384 U.S. cess." Roberson, added). point Arizona The Court (emphasis (1988). Be- warning, 100 L.Ed.2d delivered S.Ct. a one-time ed out that “scrupulously honor” will conduct “by those who they failed to at the outset cause itself suffice signed cannot interrogation, right, this statements end_” emphasize To Id.10 suppressed. should obtaining a written "concession trouble” coer- made under 9. The fact that confessions any rights. case, often, waiver voluntariness” are as in this cive circumstances 503, 513, 83 Washington, 373 Haynes v. rights by explicit "waivers” of accompanied (1963). 1336, L.Ed.2d 513 promises” "no threats or statements that signify end of a court’s were made cannot Thus, observation majority's ... if en banc dictates inquiry. "Common sense rights at was "read Miranda that Soffar compelling successful in authorities were times,” dispositive. What is not incriminating least guilt,” confession of totally four ' it count- "little, police did when what the any, matters is would have if same authorities added, point, no, 323, the Court “there is no room 360 U.S. at 79 S.Ct. 1202. The for the contention that privilege is held that Spano’s Court “will was over waived if the individual answers some aroused,” borne” by “sympathy falsely questions gives or some information on his that, accordingly, subsequent his state prior invoking” own rights. his 384 involuntary. ment was Id. As the Court " 475-76, U.S. at 86 Finally, S.Ct. 1602. out, pointed has it has held that “affirma here, relevance direct the Court stated misrepresentations tive by police [are] “any that evidence the accused was sufficient to suspect’s invalidate a waiver threatened, tricked, cajoled or into a waiv- of the Fifth Amendment privilege,” Colo will, course, er show that the defendant 564, 576, Spring, 8, rado v. 479 U.S. n. 107 voluntarily did not waive” his constitution- 851, (1987), S.Ct. 93 L.Ed.2d 954 and has 476, rights. al Id. at 86 S.Ct. 1602. precluded given statements when a “waiv proscription threats, This absolute threats, er” was obtained trickery after trickery, and deceit connection with employed.11 deceit were waivers of constitutional rights, any Supreme high has set a stan- “throughout time interrogation pro- proof dard of for the waiver of constitu- by cess” was no concept means a new tional rights, pursuant to which courts introduced in Miranda. Prior to Mi- “ should ‘indulge every pre- reasonable randa, Court had made clear sumption against waiver’ of fundamental that the use of such tactics would result rights.” constitutional Zerbst, Johnson v. any the invalidation of purported waiver of 458, 464, 1019, 304 U.S. 58 S.Ct. 82 L.Ed. rights constitutional finding and a any (1938). 1461 “The courts presume must given statement had been coerced. For that a defendant did not rights; waive his example, in Spano police a officer who the prosecution’s burden great” to dem- defendant believed awas friend overcame a onstrate valid waiver. North Carolina v. his desire not to talk police by to the lying Butler, 369, 373, 441 him, 1755, U.S. S.Ct. telling job him that “his was in (1979). L.Ed.2d 286 jeopardy” because of “Doubts suspect’s must be re- unwill- talk, ingness to and that solved in favor of protecting “the loss of his constitu- job would be disastrous to tional Michigan Jackson, his three chil- claim.” v. dren, his wife and 625, 633, child.” Spa- 1404, unborn 106 S.Ct. 89 L.Ed.2d 538, inquired 542, 735, ed—when Soffar as to the content of (1961) 81 S.Ct. 5 L.Ed.2d 760 rights. (police by overcame refusal to talk threaten- ing "to take his wife and foster children into Thus, Illinois, 91, in Smith v. 469 U.S. for, custody,” despite probable lack of cause 8, 490, and n. 105 S.Ct. 83 L.Ed.2d 488 take, action; or intention to such the Court (1984), the Court found that a officer's rejected argument the state's that "artifice or ("You statement either have to talk to me this deception” getting a permitted waiver is if lawyer time being present without and if likely it is not to affect the "reliability” aof you agree do lawyer talk with me without confession); Illinois, Lynumn 528, v. 372 U.S. being present you stop you can 917, (1963) 83 S.Ct. (police 9 L.Ed.2d 922 to”) want "overreaching” constituted by telling overcame refusal to suspect talk "badgering,” approved and it the Illinois Su- that, "cooperate,” she did not if her children preme Court dissent's statement the offi- her); Denno, Leyra would be taken from cer’s "seriously statement was misleading” 347 U.S. "imparted” 98 L.Ed. suspect because it to the that "he (1954) (psychiatrist also, knowledge interrogator.” hypno- had to talk to See sis, Edwards, introduced 451 U.S. at 101 S.Ct. 1880 as "doctor" who (suspect sinus, provide painful advised that "he had” to talk to relief from over- Richmond, police); Rogers v. confession). came refusal to talk and obtained test indicating process that the due by (1986). fact that The mere totality of the “the takes into consideration all no evidence at police is spoke circumstances —both surrounding intelligently waived knowingly and and the de- of the accused characteristics Tague self-incrimination. right against id.; interrogation,” tails of the 470-71, Louisiana, 444 U.S. de- process the due test is specifying that (1980). To the L.Ed.2d 622 the circum- weighing “a of by termined interrogation contin- contrary, where “the power of against the pressure of stances attorney of an presence without ues person confessing.” of resistance taken, heavy a burden is a statement 156, 185, York, 73 v. 346 U.S. Stein New to demonstrate government rests on (1953). 1077, The L.Ed. 1522 97 S.Ct. knowingly and intelli- the defendant that process test viability of this due continued self- against privilege waived gently again was affirmed involuntariness right to retained and his incrimination Dickerson, in where Supreme Court Miranda, at 384 U.S. counsel.” appointed stated: the Court 475, 1602. 86 S.Ct. pro- this due never abandoned We have Voluntariness Due Process III. continue jurisprudence, and thus cess that obtained exclude confessions my disagree register I want to Finally, involuntarily. majority because the en banc with ment 434, Further- fail to address 120 S.Ct. completely and 530 U.S. 2326. at they ignore more, Dickerson, Supreme in Court I believe theory upon which another corpus right to habeas stated: has established Supreme Court’s theory That is warn

relief. The that Miranda requirement course, process voluntari dis does not long-established ings given “due be inquiry but This is summarized pense test. test voluntariness ness” McCarty, v. Fen 468 Miller in Berkemer v. decision as we Supreme Court said 3138, 104, 109-10, L.Ed.2d 317 106 S.Ct. 88 S.Ct. 82 ton, 104 474 U.S. “[cjases can (1985),12 (1984), in which a defendant wherein the Court L.Ed.2d that a argument self- make a colorable stated: ‘compelled’ incriminating statement was consistently analysis has The Court’s fact enforcement despite the law that tactics by the view animated been to the dictates authorities adhered must inculpatory statements eliciting 20, 104 n. Id. are rare.” at Miranda constitutional broad fall within the 3138. S.Ct. by the Fourteenth imposed boundaries Dickerson, of fundamental guarantee 120 S.Ct. at 2336. Amendment’s fairness. my suggest I respect, all due With majority that decisions, in the en banc colleagues over 30 different In rare cases” is one of “those inquiry this into case refined test Court was self-incriminating will was statement a defendant’s which “whether examines law fact that despite the compelled sur- by the circumstances overborne” attempted to ad- confession, authorities enforcement giving of rounding the Miranda; but Bustamonte, here to the dictates 412 U.S. Schneckloth has time that (1973); first our L.Ed.2d 854 in 1989. legal came final was “on Obviously this decision be- landscape” at the time Soffar's conviction upon been called to address one of these We are mindful of Justice Frankfurter’s Estelle, “rare” cases. Jurek v. 623 F.2d admonition that the conviction is “basic (5th Cir.1980),13 Judge Reynaldo order, legal to our that men are not to Garza, writing for the en majority, banc exploited for the information neces held after a full of all of the review sary to condemn them before the law circumstances, facts and the second of two that, words, prisoner [and] Hawkin’s written signed confessions Jurek is not to be made the deluded instru the result of “factors suggesting an ines ment his own conviction.” Culombe capable conclusion that the confession was Connecticut, [568,] involuntary.” Id. at 942. In footnote [1860,] 1867[, L.Ed.2d majority opinion, Judge Garza stated: (1961)]. We are also mindful of the precise holding opinion, of this necessities and difficulties of effective analysis based on an of the cumulative enforcement, law in which the confession impact factors, of these no is more or may be an essential and fair device for (1) less than the following: Where protection the of public. the We have (2) mentally accused, deficient who was found that in their efforts to functionally isolated from secure such all but his in- (3) terrogators who protection by was not assisted insuring that Jurek was (4) counsel and who had executed a val- condemned, the law enforcement author murder, id confession essentially solv- high ities ran far too a risk making ing the crime under investigation was him the deluded instrument of his own (5) subject the continuing purposeful execution. suggestive interrogation directed 623 F.2d at 942. (6) toward an amendment of his earlier confession to include information so I am disappointed that en the ma- banc minimally suggested as to amount to a jority here in was either unable Soffar prosecutorial “hunch,” the in- renewed unwilling see the obvious similarities (7) terrogation producing a confession between and Jurek. Both Jurek Soffar (8) which is facially suspect and which were, arrest, at the time of in precise achieves the result sought by twenties; early their neither in remained (9) prosecutors, in enhancing a man- past school the seventh grade and both unknown ner poten- accused difficulty had holding any job. kind of The death, penalty tial to that of a consider- record in is overflowing with testi- ation which would any person cause mony that Soffar was “mentally made aware of it deficient” pause carefully just like consider the Jurek. The truthfulness of record is addi- uncontested tional suggested, information the risk of that Soffar was “functionally isolated from great involuntariness is so that the con- all but interrogators” for almost three fession cannot admitted in be consisten- days longer period of time than Jurek —a cy process due guarantees and the was. The record explicit that Soffar did privilege against self-incrimination. not have the assistance of until counsel 623 F.2d at 941 n. 7. after signed he his third statement. The

In concluding his en third majority opin- banc statement presented was the one Jurek, ion in Judge Garza stated: jury trial, at Soffar’s like Jurek’s see- opinion 13. The in Jurek August was on legal landscape” issued "on the at the time Soffar's 10, 1980, just days three after Soffar was conviction became final in 1989. charged case; in this obviously and would present Soffar before promptly state- detectives two Like Jurek’s statement. ond purpose ap judge for magistrate statements ments, different three charges different. new formal prising him of these grammatically factually Jurek, Soffar, determining in there purpose for the Finally, the sus- or not present whether controversy about for counsel.14 But instead need for assis- effectively asked custody judge for magistrate pect ing Soffar before Jurek, however, there of counsel. charge, tance on the arraignment murder record that in the evidence was clear in continued their interrogating detectives of Ju- inquiry further made interrogators and, evening, later that same terrogation expressly wishes and clarify his rek to statement. Sof- signed third Even of counsel. assistance declined respecting first two statements far’s lack of of Jurek’s so, circumstance role was limited indicated that his offense a factor consid- counsel was assistance get-away car. being the driver on the volun- judgment making ered in in a far more third statement was confessions. of his tariness purported “events” criminating version of himself implicated with Ju- in which Soffar similarities to these In addition shootings. circum- special rek, are certain actual there Soffar, which that occurred stances circumstances, I come all of these Given vol- process in a “due must be considered Judge the same conclusion easily to First, in between analysis. untariness” Jurek; in Reynaldo Garza reached and statement of his first signing of the protection efforts secure their statement, was taken of his second con- Soffar was by ensuring that public viewing by line-up arranged to a ran demned, officers the law enforcement witness, Garner Greg surviving Garner. making him the deluded a risk of high too perpetrator as the identify Soffar failed to of his own execution. instrument Obviously, Soffar robbery/murders. of the any counsel benefit of have the did not CONCLUSION the rec- line-up and present at this being this case as well as record in I know the the detectives indicate that not ord does it ever addressed Judge who has any other line-up conducting this advised on this Judges than most better and Second, identify him. failed to had Garner panel opinion, see I wrote the Court. statement signed his second after -Soffar over- comprehensive provide F.3d statement, the third signed he but before because I history this case view of (i) occurred: significant events two other of those is one convinced Latt released interrogating detectives which cases peculiar unique special, “they did custody because from Bloomfield totality of a consideration demands or to either hold evidence enough not have just to reach circumstances order (ii) Bloomfield”; arresting charge nights agonizing laid awake I have result. capital murder felony filed detectives contradictions, am- enigmas, over alleging that charges against in this record. are inherent which biguities one of the intentionally caused death in the en banc However, my colleagues committing while the course victims big eyes majority have shut their robbery. armed attempting to commit themselves persuaded picture charges, formal filing of these Upon the in this justice is sufficient piecemeal process would mandate due surely 14. See art. 14.06. Proc. Ann. Tex.Code Crim. is, course, That

case. privilege their but Equinox the Matter of: Oil I am I glad will standing their Company, Inc., Debtor. shoes, if and when Soffar is executed sole-

ly because of the third signed statement he Hughes Baker Operations, Inc., Oilfield in this case. doing Tools; business as Baker Oil

Computalog USA, Appellants, Official Unsecured Creditor’s Commit- tee; Daniel, Liquidating Jon Trustee (Successor Energy Corpora- to Alma Equinox tion Company, Inc.), Oil EQUINOX In the Matter of: OIL Appellees. COMPANY, INC., Debtor. No. 01-30747. Unsecured Creditors Disbursement Committee, through Representa- United States Court Appeals, its tive Richard J. Johnston and Jonathan Fifth Circuit. Daniel, E. Liquidating Trustee for Aug.

Equinox Company, Inc., Appellee, Oil Pipeline Antill Company, Construction

Inc.; Control, Inc.; Burner Fire IWC

Services, Inc., wholly owned subsid

iary of Boots & Coots International Control, Inc.;

Well USA, Chevron

Inc.; Hansen, doing Chris business

and Chris’ Service; Exxon Marine

Epic Divers, Inc.; International, Filco

Inc.; Rental, Inc.; Gravel Pack Gulf

Marine, Inc.; Energy Hot Services,

Inc., formerly known Houma as Oil

Treaters, Inc.; Newman Crane Ser-

vice, Inc.; Engineering New Tech

Well-Quip Company; Service

Parker Drilling USA, LLC, Offshore

formerly Bay known Mallard Drill-

ing LLC; Phillip Services/Louisiana

Inc.; Professional Divers of New Or-

leans; Quality Service, Wireline Inc.;

Western Oil Supply Fields Company,

doing business Rent; as Rain Te-

tra Technologies, Inc.; Venture

Transport, Inc.; Well-Quip Sup-

ply Corporation; US, LP, Weatherford

Appellants. notes tran- to interrogating cease if he thereof, scriptions as a result manner, any no such any at “indicates ... person testified at the state habeas hear- during questioning, that he to re wishes ing serving Likewise, to that capacity. Miranda, main silent.” 384 U.S. at 473- it is clear that the interrogation by Schultz (emphasis added); 86 S.Ct. 1602 Mos of Soffar was not video ley, by any recorded 100-102, 423 U.S. at 321.5 Moreover, elusion is irrelevant and immaterial remain silent. Soffar’s claim in critical determination of Soffar exer- right whether case he invoked his to remain right cised his to during depend remain silent his silent not arguably does on "am- interrogation by statement, biguous” Detective Schultz. but on the and cir- facts set cumstances forth in the state find- habeas 5. The ings ("Detective decision in Davis by does and conceded the state any way not address right this Miranda to Schultz came out of the interview room and sending in Clawson rights by person lated Soffar’s after the taken “[A]ny statement right. of his other than to override Soffar’s exercise cannot be privilege his invokes so, or other honor police subtle In failed to compulsion, doing product ques silent, off rendering to cut right to remain right Soffar’s Without wise. in-custody interroga setting subsequently all statements tioning, the inadmissible overcome to the individual operates on tion obtained. ” Miranda, at 384 U.S. choice.... free my dismay and to argues, The State Here, to “refusing by verge on the majority seems to be Schultz, Soffar invoked to Detective talk” concept person must adopting, the remain silent. right to constitutional his Mi- something special to “invoke” do 101-02, 96 S.Ct. 321 Mosley, This so- randa to remain silent. right (defendant’s that he did indication my ability understand. phistry beyond to right invoked questions want to answer to an do world must individual What questioning).6 cut off to to remain right constitutional exercise his to silence right invoked Once Soffar fact, remaining actually, in beyond silent talk, under by refusing silent? “scrupulously obligation absolute view, failed my Detective Schultz and to remain silent honor” re- honor” “scrupulously Mos- questioning. cease all immediately and violated Miranda send- Here, main silent 104, 96 S.Ct. 321. ley, person try to talk Soffar in another by ing interrogation did break off Schultz

Case Details

Case Name: Max Alexander Soffar v. Janie Cockrell, Director, Texas Department of Criminal Justice, Institutional Division

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 29, 2002

Citation: 300 F.3d 588

Docket Number: 98-20385

Court Abbreviation: 5th Cir.