*1 finally that the contends Maremont by awarding plain
district court erred costs. Maremont filed a
tiffs excessive in the district court to reduce the
motion The district court ruled
costs awarded. untimely. agree. motion was 54(d) party provides
Fed.R.Civ.P. that a may
against whom costs are taxed obtain by serving
district court review of the costs clerk days
a motion within five after the argues
taxes the costs. Maremont costs, limit in
clerk never taxed so the time 54(d) begin
Rule did not to run. court’s
Maremont received the district awarding September
judgment costs judgment, signed by the dis-
1984. That clerk,
trict court was the taxation of costs. judgment exactly informed Maremont pay. in costs it had to Mare-
how much
mont did not serve its motion to reduce September
costs until outside 54(d)’s Therefore, five-day time limit.
Rule untimely, and the
the motion was
court did not have to consider Maremont’s
challenge to the costs taxed. above, expressed
For the reasons we af- judgment
firm the district court’s
respects. party Each shall bear its own appeal.
costs on
Affirmed. SOTELO, Rudy
Raul
Petitioner-Appellant, Linley
INDIANA E. STATE PRISON
Pearson, Attorney of the State General Indiana, Respondents-Appellees.
No. 87-2191. Appeals,
United States Court of
Seventh Circuit.
Argued 1988. Jan. 29, 1988.
Decided June
KANNE, Judge. Circuit by a Rudy Raul Sotelo was convicted jury in Indiana of the first young girl, and degree murder of a was imprisonment. ap- life He sentenced to peals the district court’s denial of writ contending that his con- corpus, of habeas involuntary fession and that he was was denied effective assistance of counsel dur- ing trial. affirm the the state court We district court on the issue of the voluntari- confession. do not ness of Sotelo’s regarding jurisdiction appeal have over his of counsel issue. the effective assistance The conduct which now forms the basis assistance of Sotelo’s claim of ineffective presented for review counsel was court. the Indiana state
I. BACKGROUND
27,1973,
twelve-year
old
September
On
part
girl
found murdered in an isolated
was
cemetery
County,
Indiana.
of a
Lake
girl
and her
body
of the
was unclad
day
she
head had been crushed. On
murdered,
in the
she had been seen
Sotelo,
eighteen-
Rudy
company of Raul
worker.
year old steel
later,
Sep-
days
in the afternoon
Two
officers of
investigating
tember
Depart-
County, Indiana Sheriff’s
the Lake
con-
at his home
ment interviewed Sotelo
any
denied
cerning the murder. Sotelo
left
knowledge
matter. The officers
of the
indicated
ten minutes but
after about
a written
back to obtain
they would be
evening
officers
Later that
statement.
agreed
home.
returned to Sotelo’s
Lake
officers to the
accompany the
Department.
County Sheriff’s
Depart-
arriving at the Sheriff’s
After
hallway/wait-
ment,
in a locked
Sotelo sat
sus-
another
ing
two hours while
room for
Sotelo, accom-
questioned. Then
pect was
Thiros,
Thiros,
&
Mark A.
Cohen
Nick J.
mother,
the offi-
went with
panied by Merrillville, Ind.,
Thiros,
petitioner-ap-
for
There he was
detective bureau.
cers to the
pellant.
signed
warnings and
given the Miranda
Gen., In-
Arthur,
Atty.
Deputy
David A.
his mother
rights. With
waiver of
written
Ind.,
respondents-appellees.
dianapolis,
inter-
questioned
was then
present, Sotelo
pre-
typed
statement
mittently.
signed point and Sotelo
at one
CUDAHY,
pared
EASTERBROOK
Before
having any-
he denied
in which
statement
KANNE,
Judges.
Circuit
thing to
girl.
do
the death of the
the murder. One of the detectives was
Thereafter,
again
Sotelo was
verbally ad-
then called into the examination room. So-
rights
vised of his
and the
con-
telo declined to have the Miranda warn-
disputing
tinued—with the officers now
So-
ings
again,
read
repeated
he
his con-
story.
telo’s
deny
any
continued to
fession to the officer. Sotelo was returned
girl.
involvement
the death
to the detective
again
bureau
where
officers
told Sotelo that
did not be-
signed
a waiver of his
*3
as well as a
lieve him
contradictory
because of
state- written
indicating
confession
that he had
ments from other witnesses. One of the
repeatedly
young girl
run over the
with his
suggested
officers
lie
that a
detector test
automobile after she refused to have sex
requested
could be taken and Sotelo
that with
him. The
interrogation was
one be
to him. The questioning then
tape recorded and the polygraph examina-
ended approximately two hours after it be-
tion and questioning were
recorded.
video
gan
placed
custody
Sotelo was
pend-
Sotelo’s written
was
confession
intro-
ing
probable
a
cause hearing.
duced at trial. He was
convicted
sen-
Late the next morning, September 30,
tenced to
imprisonment.
life
His direct
1973, arrangements were made for Sotelo appeal
Supreme
to the Indiana
Court was
to take
polygraph
a
examination in the
unsuccessful1
appeal
as was his
from deni-
office
private
of a
polygraph
post-conviction
examiner.
al of
relief.2
years
Thirteen
The
transported
officers
Sotelo
poly-
later,
to the
Sotelo raised two claims in federal
graph
again
examiner’s office
gave
district
petition
court in his
for a writ of
him the
Miranda
warnings.
Sotelo was
habeas corpus under 28
2254.
U.S.C. §
also advised that he did not have to
First,
submit
argued
Sotelo
that his confession
to polygraph
a
examination. Sotelo never-
and,
was not voluntary3
second, that he
agreed
go
theless
to
forward with the test. was denied effective
of counsel
assistance
polygraph
examination
adminis- because his attorney declined to delete ref-
tered to Sotelo while the officers watched
erences in his written confession to the lie
in another room on closed circuit television.
detector test. Both
rejected
claims were
by the district court. We now address each
When the
testing
initial
had been com-
claim in turn.
pleted by
operator,
another
reviewing
polygraph examiner was of
opinion
that
II. CONFESSION
Sotelo
being
was not
truthful. Sotelo was
questioned
then
by the examiner.
It was
In his
petition,
alleged
§
point
at this
that Sotelo first confessed to
he was improperly coerced
giving
into
State,
298,
1.In Sotelo v.
264 Ind.
342 N.E.2d
making
coaxed into
his admissions. A read-
(1976), (Sotelo’s
appeal)
direct
ing
however,
the court ad-
interrogation,
of that
does not
confession,
dressed the
issue
Sotelo's
the suf-
necessarily give rise to conclusions of coer-
ficiency of
regarding
sanity,
the evidence
his
cion.
and the
allegedly gruesome
admission of certain
presented
...
[T]he trial court was
with am-
photographs.
unsuccessfully
Sotelo also
chal-
ple
upon
evidence
which it could conclude
lenged the
warning.
form of his Miranda
So-
that the
confession was
We can
telo's
regard
conviction was affirmed and with
therefore
no
find
error in the admission of
to the claim that
involuntary,
his confession was
Appellant’s
confession into evidence.
Supreme
the Indiana
Court found that:
the crime. Q Now there is a lot difference be- tween that and During between somebody Sotelo’s interrogation initial who is stopping and thinking, you September 29, know an officer indi- mean, what I you can cated do this that a lie and do detector test was available you see what I mean? corroborate his denial of involvement A Yes. murder. Sotelo immediately requested that the test be Septem- administered. On If this was done accidentally you ber after confirming that Sotelo didn’t it, still mean to do you should tell me to take wished the polygraph examination, really didn’t this, mean to do arrangements were made for such a test. it was just done accidentally, do Two officers took Sotelo from jail see mean, what I Raul? the polygraph examiner’s office. Prior to *5 A Yes. taking the polygraph examination, Sotelo Q This is what is important, if she lead again was Miranda by one you on, if she you lead height to the of the officers. He was told also passion, know, you you that couldn’t test was a tool used to aid in yourself. control If she you tested investigations and advised that did not such degree that you really couldn’t have to submit examination. Sotelo help it and this thing accidental, do continued to indicate his desire take the you see what I you mean and lose test. One polygraph licensed examiner ad- control of yourself you your lost test, ministered the and another licensed good sense, you do know what I mean? examiner reviewed test results. A Yes. Based on his review of the polygraph record, the examiner, second Magiera, Mr. Q She knew she teasing was you, determined that Sotelo was being not truth- didn’t she? ful. In accordance accepted with practice Right. A field, in the the polygraph examiner then Q And she knew she was leading Sotelo, confronted stating: “I looked over you up point to a almost, no return your [polygraph records and examination] didn’t she? they you show that are being truthful Right. A on Thereafter, this test.” the polygraph Q You yourself, couldn’t help could examiner empathic assumed approach in you, you couldn’t help yourself, you his initial line of questioning. The follow- really didn’t this, mean to do you? did
ing is example: A No. Examination of Mr. Magi- Sotelo Mr. Q Was it accidental or how hap- did it era [the examiner]: pen, did she take off her clothes or did Q ... We’re talking girl about you tear them off? ill, physically that could force No, A she took them off. things man to do and I know from (Record, II, pp. 416-419). Vol. experience all the time that sometimes girls
these actually lead man on to response After the last began Sotelo relat- where he is almost out mind, of his ing do the facts which constituted his confes- later, got I following A I scared. couldn’t control A time sion. short place bushes, first I exchange through admit- wheel. went they took girl his car: striking the with ted can check it and find out out there’s marks by Magi- got Mr. around the bushes. I Sotelo Mr. Examination continuing: scared and I went back to era Nini’s too, they’ll I tell was all shaken Q you’re being completely And truthful up. I my don’t want wife to find out. now? Q your telling is it me Right. Now what A truth now? Q happened? Then what A Yes. want got A Then I so I didn’t scared my 433-434). wife to find out. at {Id. Q Yes. apparent It is from the record that outside, know, she
A And she examiner did not use factual putting her clothes was outside misstatements to obtain Sotelo’s confes pressed got just I real scared and suppression sion. As he testified gas and hit her. hearing, Magiera poly Mr. examined the Q Hit her? graph opinion records and formed an A Yes. being poly truthful. The Sotelo was Q she at? Where was graph up examiner then followed his evalu cemetery confronting at the where She was ation Sotelo. The methods (inaudible).
go by Magiera in employed the initial minutes obviously used to of the Q she in front of the car or back Was put at ease and create an atmo of the car? relating sphere conducive for facts con A In front of the car. cerning relationship the mur Sotelo’s standing right in front of the Just girl. why later asked he de dered car? truth, cided to Sotelo answered: tell A Yes. me, bothering this incident was “Because 421-422). pp. {Id. *6 ran the lie detector talked and the man who thereafter, Shortly the called De- examiner significant like a father.” It is to me nice Longfellow into the room the tective exchange “fatherly” between the that this questioned regarding further officer Sotelo only during examiner and Sotelo occurred typical portion of that the confession. minutes after the first three to four questioning is as follows: empathy by the examiner met. The used by Detective Examination of Mr. Sotelo nor did it create such a neither unfair was Longfellow: psychological pressure that it degree of car], it Q her with it hit [the involuntary. confession rendered Sotelo’s her down or what? knocked Placing in a relaxed and com a defendant I ready A I knocked her down but empathetic of by mood the use fortable (3) four three or went over her about does for three or four minutes conversation (4) times. manipu psychological not rise to a level of Q like that? Backing up and forward Fenton, 796 F.2d at lation. Miller v. See off, figured A I I got scared I took Further, as stated the Miller case 607. going me they would find of tracks remand, Supreme Court has indi on “the got scared. into the bushes. I sympathetic attitude on the cated that a her, That was over after backed interrogator is not in itself part of an couple times you backed her a over involuntary. enough to render a confession couple times? and went forward a States, 425 See, e.g., Beckwith United 341, 343, 348, A I back and then went and forward off, like (1976), (interrogator back and the road went took 48 L.Ed.2d turns. resulting sympathetic attitude but adopted voluntary).” Even where a was Q Right. confession interrogator’s friendly independent involved could not an have made review misrepresentation of Supreme of facts the regarding the record that claim of a has held that error in coerced hypothecates Court there was no confession. Sotelo that independent of the admission review of the record defendant’s confession. by 731, 737-40, the Cupp, Frazier district court would have disclosed the 1420, 1424-25, by police “offensive” methods used the L.Ed.2d 684 officers to Appellant’s “extract confes- average intelli was a man sion.” improper po- the Because claim gence. deprived of He had not been food lice questioning was the focus So- sleep. respond or It is obvious that Sotelo argument telo’s in the district no approach ed to the exam the findings were made the judge iner, very shortly his confession came that issue. questioning. the began after examiner the failure of the district apparent Yet it is that the examiner’s “fa opinion to court’s every address factual therly” manner did not confuse Sotelo. aspect of resulting the circumstances is no There indication that was lulled Sotelo’s confession does not indicate that stranger friend, into a belief that the awas the district court failed the to consider to- continuing than po rather a technician the tality of the in determining circumstances interrogation. ques lice The roles that voluntary. confession was respondent tioner were clear. So- find no basis to believe that the district telo had been advised of his constitutional court failed to follow the dictates rights prior examination, to the informed Fenton, Court in Miller Supreme cited in test was an aid to opinion. its When the district indi- investigation, their and told he was cated that it made obligation under no to take the test. The record, may presume we its atmosphere confusing—Sotelo was not review included a consideration of the total- custody in police being questioned by an ity surrounding circumstances So- agent of about the murder for telo’s confession. Despite which had been arrested. So- willingness examination, telo’s to take the practical It is neither necessary nor acknowledged he later that he believed require judge a district to issue a memo “the machine would find out specifically randum and order which com [the truth] any way.” empathy employed by every aspect the ments on of the circumstances during examiner the four or surrounding five minute confession demonstrate period did not overbear Sotelo’s free will. that the confession It is sum, In Sotelo’s fifth amendment sufficient for the district court to address violated examin the coercive issues raised a defendant— *7 questioning. court, er’s As in the long district so as the judge has made an independent our examination of the independent record of review the record which in given convinces us that Sotelo’s confession itself of totality constitutes review the of to the voluntary examiner was the independent circumstances. An and thus does not invalidate the written of the record the of case subsumes a re confession totality made later and admitted into view of the of the circumstances surrounding evidence trial. a confession. regard- now turn to the independent second issue A federal court’s examina-
ing Sotelo’s confession—characterized on tion and review of the record enables it to appeal oversight by findings court, an the district court evaluate the of state the and failure the only specific of district court to review in the context of the coercion totality defendant, the of the circumstances surround- claimed but also allow- ing Having ing that confession. received an it consider all the circumstances re- lating unfavorable decision on the to a defendant’s confession. See issue coer- Arizona, court, cion raised in Mincey the district Sotelo now 437 U.S. 2408, 2415-18, on appeal judge
claims
the district
companions had contradicted automatically a confes out does not invalidate initially claimed to have been telo had viewed in the only five sion. This conduct must be sight companions surrounding initially totality of the circumstances At the time Sotelo minutes. police officers did confession. United States ex rel. interrogated, Sotelo’s say. Director, companions would 578 F.2d know what Sotelo’s Hall v. Cir.1978); Elstad, final minutes of the Oregon in the few see 1285, 1297, interrogation, had L.Ed.2d after Sotelo statement, ques- officers unsupported fact his written The use of an length Sotelo, him several times about police interrogation tioned when in the the murder victim of time he had been with circumstances light of all the viewed companions. presence case, including surrounding out of the bal this example ques- of that following is an interrogation, pres ance of the tioning: during interro mother ence of Sotelo’s conduct of the gation, subsequent of Mr. Sotelo Detective
Examination examiner, not create an at Longfellow: did ultimately mosphere in which Sotelo was tell trying I’m Okay, but what involuntary confes making into coerced as to the you question I asked is that sion. gone with length of time Carrie? con- the matter of Sotelo’s To summarize *8 Right. fession, independent examination of the our your signed state- you And said record, encompassed a which state court gone about five ment that were circumstances, totality of the review of the
minutes. that Sotelo’s constitutional indicates minutes. not violat- A Five were the fifth amendment under the conduct of ed either at the most. Q Five or ten minutes accepted. readily graph which Sotelo point exam one of the officers It was at this 7. poly- opportunity a to take offered Sotelo the 1252
examiner or interroga- that of the make a sixth amendment claim in state tors. The confession was respect it was with to insanity his
defense,
respect
not with
to the lie detector
Therefore,
test.
courts
III.
have not
EFFECTIVE ASSISTANCE
had an opportunity to address the merits of
OF COUNSEL
the lie
allegation,
detector
which made its
Sotelo also claims that he
denied
debut before the district court.
effective assistance of counsel.
sub-
evidence,
mitted in
attorney
his
refused the
Because the ineffective assistance
state’s offer to delete
lie
references to the
argument
counsel
relating to the refer
detector test contained in his
con-
written
ence to the lie detector test was never
Specifically,
fession.
attorney
Sotelo’s trial
raised in
courts,
the state
neither the dis
refused the state’s offer to omit the follow-
trict court nor this court is able to reach
ing statements:
the merits of the issue. If petitioner
fails
Q What
made
tell
decide to
to raise an issue in state
proceedings,
truth,
happened?
as what
to
he cannot raise it for the first
time
A Because this
bothering
incident was
federal
corpus petition.
habeas
Washing
me, and the man
ran
who
the lie detec-
Lane,
ton
443,
(7th
840 F.2d
445
Cir.
father,
tor talked me nice like a
1988). It is axiomatic
claims raised
just
told him the truth.
I knew the
in a
petition
federal habeas
must first have
machine
find out anyway.
would
presented
been
courts, i.e.,
to the state
(Record,
V, p. 1396,
42,
Vol.
State’s Ex.
state courts must
prior,
have
had
fair
3).
p.
opportunity to address them. 28 U.S.C.
2254(b);
Harless,
Anderson v.
459 U.S.
by allowing
submits that
jury
4,
276,
103
(1982).
74
hear
S.Ct.
L.Ed.2d 3
references to
Is
the lie detector test in
sues that could have been
confession,
raised on
direct
attorney’s conduct
appeal,
not,
but
generally
are
amounted to
con
negligence
“sheer
sidered
purposes
waived for
prejudicial.”
also
of the Indiana
post-conviction remedy.9 Williams v.
reasoning
Sotelo’s
attorney
trial
Duckworth,
1439, (7th
724
Cir.1983)
F.2d
allowing
reference to the
denied,
cert.
841, 105
143,
469 U.S.
S.Ct.
exam to be admitted in evidence was never
(1984);
State,
L.Ed.2d
See Greer v.
explored in any subsequent hearing.8 The
622,
842,
(1975).
Ind.
321 N.E.2d
State of
correctly
Indiana
states
“there has been no probing of the thirteen-
specific
Waiver
state court of a
year
decision,
old
and therefore one can
prevents
issue
corpus
federal habeas
relief
only speculate as to the motives
coun-
based on that same
showing
issue
absent
sel.”
Nix,
prejudice.
cause and
Cartee
296,
court ruled on
the mer
Cir.1986);
United States
its of Sotelo’s sixth amendment
Spurlark
ex rel.
v. Wolff, 699 F.2d
claim that
354,
he was denied
effective assistance
of coun 361
has
failed to
sel. Although
quarrel
we have no
show
and has
explained why
“cause”
Judge Sharp’s analysis, it was beyond the
he did not raise this argument
in state
district court’s authority
court;
therefore,
address the
this
waives
claim in
merits of Sotelo’s ineffective
Murray
Carrier,
assistance
federal
court.
counsel
478, 106
contention because it
2639,
was never
91 L.Ed.2d
raised in state
Cartee,
397;
court.
While Sotelo did
1253 1986). Williams, today engages in is Our court de novo in Sotelo, petitioner like review, a mat- appellate join to consider Hawkins I “asking a federal present to the to opinion. approach, chose never that he the court’s This how ter inAs Williams: ever, state court.” reflects neither the considerations by-pass” “deliberate Perhaps motivating underlying this was a Miller nor those Noia, court, 372 Fay see v. of the state trial responsibilities division of between 822, 9 L.Ed.2d S.Ct. 837] appellate [83 courts. the federal fo- (1963), hopes that in the question Miller was whether hospitable to more might be rum finding state court’s of voluntariness is a seri- was not claim; petitioner perhaps question purposes of fact for of 28 U.S.C. perform- by his counsel’s ously troubled 2254(d), requires which federal courts to § casting for ance, merely about and was presume findings correct on “factual” to be he drafted his issue when an additional review. If were a collateral voluntariness case, would In either it petition. habeas 2254(d), “fact” under there would be es- § to for a federal court inappropriate be sentially no federal review contentions become involved. suspects coerced to confess. Williams, F.2d at 1442. Supreme history Court examined the coerced-confession law and the back- IV. CONCLUSION 2254(d) deciding that ground of before § of the Based on our Congress had enacting the statute when court’s hold- record, Affirm the district we power inquiry into con- not terminated a ing that Sotelo’s confession long courts exercised. fessions that federal the basis now forms The conduct which is a character- Because “voluntariness” of ineffective assistance of Sotelo’s claim fact, and rather than an historical ization raised before the state was not of counsel to detect and root out courts seek because dis- court, improperly before the was thus may willing practices that states be subject is not and therefore trict tolerate, appropriate it was deem is Dismissed. our review and designation was one of law. That question of a constitu- to federal review essential EASTERBROOK, Judge, Circuit 112-18, 106 474 U.S. at question. tional concurring. 450-54. S.Ct. 104, 110, Fenton, v. Miller (1985), holds inquiry L.Ed.2d 405 sounds that an A conclusion issue of ‘voluntariness’ purposes that “the ultimate fact rather than law requir legal question is a ques- 2254(d) imply confession] that it is a [of does not ing independent federal determination.” purpose, includ- every other tion of fact for its as therefore makes own district court sys- the federal ing appellate review within sessment, court’s respecting the state while tem. subsidiary facts. Barrera findings about “ques- an issue a (T]he to label decision Cir. F.2d Young, 794 fact,” law,” or a “question tion of including 1986). appellate Several courts— of law and fact” question “mixed Hawkins, 823 one, States this United a matter of allocation as much sometimes (7th Cir.1987) 1020, 1022-23 F.2d — have fact/law analysis.... it is of [T]he empha Miller with an passage read this de- has turned on a at times distinction “fed than on the “legal” rather sis on that, of sound as a matter termination even eral”, leading to conclude that them judicial ac- justice, one administration the cir has reviewed judge after a district than another to positioned tor is better confession, surrounding the cumstances question. the issue decide appellate review. de novo there must be 451-52. Vol- 474 U.S. at Wauneka, 842 See, e.g., States v. United in the question of “law” is not a Cir.1988); untariness n. 2 Mil F.2d 1087 & question whether (3d sense that the Fenton, same Cir. ler *10 warnings required Miranda by are the the question only is the significance legal Constitution is. treated Miller voluntari- of particular a and nonrecurring set of question as ness a purposes “law” for (id. historical facts” 606). at Fact-bound 2254(d)in order to ensure disputes should be resolved specialist a federal of a Nothing constitutional issue. the the application of is, rules to facts—that reasoning implies Miller the judge. there district There is little to ought to plenary gain, be appellate lose, and much review of in holding a rerun the same issue—that the before ultimate another decision set of judges. Appellate ought judges to be by three are less well judges, circuit appreciate situated to significance facts, with the appreciation district court’s taken even documentary facts; for chaff. a sensible allocation does not squan der energy put into a case allocating functions among federal requiring while duplication judges, we ask first whether appellate that diminishes the time appellate judges possess courts advantage requires have for strictly legal questions. The allo or justifies having (here, their the last only) cation of aspect functions is an of the divi Disputes word. about characterization— labor, sion of Scandia Corp. Down v. Eu the effect language contract; in a roquilt, Inc., 1423, F.2d 1428-29 existence of negligence, ratification, or dis Cir.1985), which great has benefits within crimination—are questions treated as judicial system just as it is commonly fact for purposes of clearly-erroneous practiced within law firms. “The duplica rule in 52(a). Fed.R.Civ.P. E.g., Icicle Sea tion of judge’s the trial efforts in the court foods, Inc. v. Worthington, 709, 475 U.S. of appeals very would likely contribute 1527, (1986) (the L.Ed.2d 739 only negligibly to the accuracy of fact de definition of a statutory “seaman”); Pull termination at huge cost in diversion of Swint, man-Standard v. 273, 102 judicial addition, resources. In parties 1781, S.Ct. (1982) (the L.Ed.2d 66 identi to a case on appeal have already been fication discrimination). racial This is forced to concentrate their energies and not because things such are “facts” in the resources on persuading judge the trial lay sense. No one can identify racial dis that their account of the is the facts correct crimination or a “seaman” without mar- one; requiring them persuade three shalling facts, drawing inferences, and ap judges more appellate level is requir plying some law. The ultimate issue is a ing too much.” Anderson v. Bessemer conclusion at the end of a chain including City, 564, 105 historical inferences, facts and culminating 1512, 84 L.Ed.2d 518 requiring And in a shaped characterization by a rule of appellate three judges to root about in the law. Courts nonetheless treat such issues record up and come with their as “facts” because there is purpose little in characterizations and inferences —to mea having resolved, them independently, by sure pattern against their own sensibili triers two of the federal judiciary. ties—asks of them well, what they do least diverting while time from
To treat functions at question as one of “law” for core of their duties. purposes 52(a) of Rule is to say that the appellate court disregard must the district just We said the other day that “[t]he judge’s work and start anew. This is desir- question whether a rule of law has been able when the court must frame the rules question violated—a requires applying govern the resolution of future dis- the rule to the facts—is normally treated putes. The “main responsibility ap- question [of fact, ... not because it is a pellate is to maintain the tribunal] uniform- question (it isn’t) of fact but as a way of ity and law”, coherence of the Mucha v. expressing a decision to leave the answer King, 605-06 to the trial judge jury make, or subject But this responsibility is engaged “not if only to appellate limited review.” Dav- DeRobertis, 844 F.2d enport *11 BEARDSLY, Appellant, L. Lee Cir.1988) (emphasis original). 1311-12 vol a confession was Determining whether v. and drawing inferences for
untary calls WESTERN CHICAGO & NORTH “totality- The affixing a characterization. CO., et TRANSPORTATION applies to test” that of-the-circumstances al., Appellees. legal is not a under Miller inquiries such AMIOT, Appellant, E. Francis and prudential for a euphemism rule but v. judge must decide conclusion. moral & NORTH WESTERN CHICAGO extracting the for techniques “whether CO., et TRANSPORTATION suspect, are statements, applied to this al., Appellees. presumes system that with a compatible will that a conviction and assures innocence al., REECE, Appellants, et E. John means[, as inquisitorial secured be v. will was the defendant’s whether well as] WESTERN & NORTH CHICAGO Miller, 474 U.S. at overborne.” in fact CO., et TRANSPORTATION (emphasis original). 106 S.Ct. at al., Appellees. be resolved should Questions of this sort CHAMBERS, al., Appellants, et L. Jack courts, Miller rather than by federal system holds; federal within by trial rather primarily resolved be should WESTERN AND NORTH CHICAGO courts, review appellate COMPANY, appellate et
than TRANSPORTATION al., Appellees. clear error. only for finding in Miller Overton; of the cases SWIFT; None Roger D. Oscar L. Luth; Urton; review Mark R. appellate plenary Robert W. requirement W.R. Terry Dickey; B. Pomery; Anderson; G. David or Pullman-Standard cites Thomas, Appel- Clyde R. and Turvold fed- between discusses difference none lants, issue; none of an appellate and eral allocation appropriate discusses appellate trial between functions WESTERN AND NORTH CHICAGO COMPANY; the conclusion leaps from Each Unit-
judges. TRANSPORTATION Union, unincor- Transportation an for issue “law” ed voluntariness is organization; porated labor 2254(d) to the conclusion purpose of Engineers, Locomotive Brotherhood purpose “law” for issue of it is an organization, unincorporated labor new is 52(a). Hawkins too of Fed.R.Civ.P. Appellees. revise, but court to panel of this reex- beyond that its conclusion Knox; trust KING; Steven L. James Harold L. Etherton; Newton; George R. amination. Arthur Keith; Williams; F. Larry John L. Rush, Appellants, Joseph A. WESTERN AND NORTH
CHICAGO COMPANY TRANSPORTATION Union, an Transportation The United Ap organization, unincorporated labor pellees. Bailey; NEWTON; R. Robert
Vane Duncan; Moore; L. Wayne Robert A. Kidd, Johnson; L. Donald E. Harold Rude; Kidd, Jr.; A.Max Sr.; B .J. H.L.