623 F.2d 929 (5th Cir. 1980), 78-1374, Jurek v. Estelle

Docket Nº:78-1374.
Citation:623 F.2d 929
Party Name:Jerry Lane JUREK, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
Case Date:August 11, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 929

623 F.2d 929 (5th Cir. 1980)

Jerry Lane JUREK, Petitioner-Appellant,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 78-1374.

United States Court of Appeals, Fifth Circuit

August 11, 1980

Page 930

Jay H. Topkis, John Charles Boger, New York City, for petitioner-appellant.

Mark L. White, Atty. Gen., Anita Ashton, R. Kristin Weaver, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT,

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HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, JR., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges. [*]

GARZA, Circuit Judge:

We have gathered en banc to consider the circumstances surrounding the arrest, interrogation, confession, and trial of Jerry Lane Jurek, convicted of murder and sentenced to death in a Texas state district court. A panel of this Court has reversed a federal district court's denial of Jurek's petition for a writ of habeas corpus. Jurek v. Estelle, 593 F.2d 672 (5th Cir. 1979). The panel majority based its decision upon conclusions that Jurek's two confessions were involuntary, and that the exclusion of certain veniremen at his trial contravened the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A new trial was held to be required.

On reconsideration en banc, we have concluded that Jurek's first confession was voluntarily given, and that it may constitutionally be admitted in a new trial. We have also concluded that the second confession was involuntarily given, and may not be used. 1 Grounding our decision on those bases, we need not and do not reach the Witherspoon issue.

THE STANDARD OF REVIEW

We are met at the outset with questions relating to the standard of review. In considering a district court's denial of habeas corpus relief sought on the ground of an admitted confession's involuntariness, must we accept the findings of the district court unless clearly erroneous? If there were no specific findings on crucial issues, what is our role? These questions arise from a collision of authorities.

On one hand, the Supreme Court has frequently stated that it is our affirmative duty "to examine the entire record and make an independent determination of the ultimate issue of voluntariness." Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976). See also Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U.S. 503, 515-16, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963); Spano v. New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 (1959); Ashcraft v. Tennessee, 322 U.S. 143, 147-48, 64 S.Ct. 921, 923, 88 L.Ed. 1192 (1944); Lisenba v. California, 314 U.S. 219, 237, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). This duty is not "foreclosed by the finding of a court, or the verdict of a jury, or both." Lisenba, 314 U.S. at 237-38, 62 S.Ct. at 290.

On the other hand, we are confronted by the well-established rule that factual questions in habeas corpus proceedings should be determined by the district court and that its factual conclusions are binding on the court of appeals unless clearly erroneous. Patterson v. United States, 487 F.2d 341 (5 Cir. 1973); Fed.R.Civ.P. 52. Accord : United States ex rel. Henne v. Fike, 563 F.2d 809, 813 (7 Cir. 1977); Bellew v. Gunn, 532 F.2d 1288, 1291 (9 Cir. 1976); Leasure v. Lockhart, 509 F.2d 23, 25 (8 Cir. 1975);

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United States ex rel. Marino v. Rundle, 464 F.2d 149 (3 Cir. 1972); Zovluck v. United States, 448 F.2d 339, 341 (2 Cir. 1971); Monnich v. Kropp, 408 F.2d 356, 357 (6 Cir. 1969); Linebarger v. Oklahoma, 404 F.2d 1092, 1094 (10 Cir. 1968); Vanater v. Boles, 377 F.2d 898, 900 (4 Cir. 1967).

The panel majority, citing the opinion of the Supreme Court in Beckwith, supra, concluded that "we may overturn the district court's conclusion on (the ultimate issue of voluntariness) even if it is not clearly erroneous." 593 F.2d 672 at 677. Plainly, that is not the law with regard to findings of fact. We will not disregard or overturn specific findings of fact made by the district court unless they are clearly erroneous. Pursuant to our duty to examine the "entire" record and make an independent appraisal of the voluntariness issue, however, we may, where the district court made no findings on matters crucial to the ultimate determination, reach into the record and rely on undisputed facts clearly supported therein. If such clarity does not appear, a remand for further findings may be in order. We note as a caveat that where some or all of the evidence was not the live testimony of witnesses, but instead consisted of transcripts, depositions, or documents reviewed by the lower court, the clearly erroneous rule will not apply with full force where "the appellate court is in as good a position as the lower court to evaluate the testimony that is crucial to the case." Caradelis v. Refineria Panama, S.A., 384 F.2d 589, 593 (5 Cir. 1967). Thus, we may draw our own inferences from such evidence. See Nash v. Estelle, 597 F.2d 513, 518 (5 Cir. 1979) (en banc). In passing on the ultimate issue of voluntariness, we may substitute our own judgment even in the absence of a conclusion that the district court's ruling was clearly erroneous. No less is required by the admonition of the Supreme Court to make an "independent" review.

The facts and procedural history of this case have been oft-recited, yet we must relate them in some detail once more, for the chronology is crucial. Counsel for Jurek have argued that there are no disputed fact issues, and that on the undisputed facts Jurek's confessions were involuntary as a matter of law. It must be noted, however, that in several important areas the findings of fact made by the district court were not comprehensive. The following recital will, where necessary, reach beyond those findings to incorporate undisputed facts which are clearly supported in the record, or portions of the state record and depositions from which we are able to draw our own inferences.

THE FACTS

The victim, ten year old Wendy Adams of Cuero, Texas, disappeared on August 16, 1973. Jurek was awakened at his parent's home at approximately one o'clock on the morning of August 17th by two police officers acting on a report that she had been seen screaming for help in Jurek's truck as it sped through Cuero. One of the officers was her father, Ronnie Adams. Jurek was questioned briefly, and was read Miranda warnings by Adams. He was taken barefoot and without a shirt to the Cuero jail, where he was logged in and placed under arrest at 2:30 a. m. The authorities discovered an outstanding arrest warrant on a "hot check" charge, by which they could hold him.

Jurek was questioned again that morning at about 9:00. At some point, he volunteered to take a polygraph examination. He was taken in the afternoon to Austin, the state capitol approximately 120 miles from Cuero. Upon being tested, he was confronted with results suggesting that he had lied. As his counsel stated on oral argument, "he turned to science for help, and science turned him down." Jurek then gave an oral confession of responsibility for Wendy Adams' death, stating that her body had been thrown into the Guadalupe River. While he apparently gave several conflicting versions of the crime, his statement led to the discovery of the girl's body on the next morning. It was the first time that

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the investigating authorities had learned she was dead. 2

Jurek was returned to Cuero and taken immediately before a magistrate, Justice of the Peace Albert B. Ley. Judge Ley read him the list of rights printed on a "Magistrate's Certificate" form. 3 Ley testified as to what occurred at this interview in the state district court, both at a suppression hearing on the confessions, and at trial. Since the federal district court had before it nothing more than the same transcript of that testimony that we now review, "our interpretation of the interview is unconstrained by the usual strictures of the clearly erroneous standard." Nash v. Estelle, 597 F.2d at 518.

At the suppression hearing, Ley testified that Jurek had stated that he understood the rights read to him. In response to a question concerning his knowledge of the Jurek family's financial standing, directed toward ascertaining the reason for the high bond he had set, Ley responded:

A Well, other than just hearsay of the financial standing of them. I couldn't be positive about the standing of them, other than he did tell me when we talked about it, that that he could not afford a lawyer and the Court would have to appoint him one. And I said, well, that's what it states in here, that if you are unable and if you sign a pauper's oath, why, then they would set we would appoint an attorney to represent you.

At trial on the merits, Ley was again questioned as to the appointment of counsel, and the following colloquy occurred:

Q All right. When you came to that part of the warning which says that he has the right to have an attorney

A That's right.

Q appointed, did you go into that with any detail?

A I went into it with him and asked him if he wanted an attorney with him before I finished reading it. And before I started reading it, I asked him, and he said he didn't just to go ahead and read it.

The federal district court found that Ley quoted Jurek as stating, "he could not afford a lawyer and the court would have to appoint one for him." It disregarded the later...

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