Jurek v. Estelle, No. 78-1374

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEWIN, COLEMAN and GOLDBERG; GOLDBERG; COLEMAN
• Citation: 593 F.2d 672
• Parties: Jerry Lane JUREK, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections, Respondent-Appellee.
• Docket Number: No. 78-1374
• Decision Date: 23 April 1979

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593 F.2d 672 Jerry Lane JUREK, Petitioner-Appellant,
v.
W. J. ESTELLE, Jr., Director, Texas Dept. of Corrections,
Respondent-Appellee. No. 78-1374. United States Court of Appeals,
Fifth Circuit. April 23, 1979.

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

John L. Hill, Atty. Gen., Anita Ashton, R. Kristin Weaver, David M. Kendall, Jr., Gilbert Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

On February 2, 1974, in Cuero, Texas, Jerry Lane Jurek was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. 522 S.W.2d 934 (Tex.Cr.App.1975). The Supreme Court of the United States also affirmed, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Jurek's execution was set for January 19, 1977. On January 17, 1977, Jurek's execution was stayed and he petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Texas. After a hearing, that court ruled against him. We reverse. We hold that Texas must give Jurek a new trial.

I.

Jurek gave two written confessions to the police; they were admitted into evidence at his trial and were instrumental in convicting him and in causing him to be sentenced to death. ¹ Jurek's trial counsel unsuccessfully moved to suppress these confessions, and in his habeas petition Jurek again argues that they should not have been used against him at his trial. We agree. We believe that the confessions were extracted from Jurek under circumstances which render them involuntary.

On August 16, 1973, a ten-year-old Cuero girl named Wendy Adams disappeared. At one o'clock in the morning of August 17, two police officers investigating her disappearance arrested Jurek at his parents' home in Cuero. One of the officers was Wendy Adams's father. Jurek was questioned for a time, then taken from his home. He was wearing neither a shirt nor shoes. He was not logged into the Cuero jail until 2:30 a. m. ²

For at least the next ten hours, Jurek was questioned by a series of police officers and prosecutors. There were some respites, during which Jurek apparently was allowed to sleep. The officers and prosecutors testified that they warned Jurek of his rights at least twice. In the afternoon of August 17, Jurek was taken to Austin, Texas, 120 miles

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away, for a polygraph examination. At this time, the district court found, he was confronted with evidence that he was lying; he then made a verbal statement revealing that he was involved in Wendy Adams's death. This statement was not used at Jurek's trial, but it convinced the police and prosecutors that Wendy Adams was dead and led them to her body. ³

At 10:15 p. m. on August 17, Jurek was returned to Cuero and twenty-one hours after his arrest brought before a magistrate for the first time. The magistrate advised him of his rights. This magistrate testified that Jurek said "he could not afford a lawyer and the Court would have to appoint him one," Trial Transcript at 88, but no attorney was appointed. Jurek was returned to jail and interrogated further by several officers.

At about 1:15 a. m. on August 18, Jurek gave the first of the two written confessions that were eventually used against him. Only law enforcement officers were present when the statement was taken, but two other people witnessed Jurek's signature and one of them testified that Jurek had been apprised of his rights and that the statement was voluntary. The county attorney testified that before signing the statement Jurek said that he did not want a lawyer. In this statement Jurek admitted that he had killed Wendy Adams and had thrown her body into a river.

After he made this confession, Jurek was transferred to the jail at Victoria, Texas, twenty miles from Cuero. The police testified that they transferred Jurek because they were concerned for his safety. Twelve hours later, however, they brought him back to Cuero; as the prosecutors subsequently testified, they were not satisfied with his first confession, and they interrogated him again. About five hours after his return to Cuero, at 7:30 p. m. on August 18, Jurek signed a second written confession. In this statement he admitted that he had made sexual advances toward the victim. It seems likely that Jurek would not have been sentenced to death if he had not made this second statement. ⁴ Jurek signed this confession forty-two hours after he was first arrested. During that time he had seen neither his parents nor an attorney.

Jurek was twenty-two years old when these events occurred. There was medical testimony that he has a verbal IQ of 66 and that he is unable to recite the alphabet, to give change for a dollar, or to say how many weeks there are in a year or what month comes before November. He may suffer from brain damage.

Jurek argues that his remark to the magistrate constituted a request for an attorney; since none was appointed, he says, the two written statements he subsequently gave are inadmissible under Miranda v. Arizona, 387 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Alternatively, Jurek argues that even if his Miranda rights were not violated, his confessions cannot be used against him because they were involuntarily given. The federal district court ruled against Jurek on both points. It acknowledged, however, that the events that led up

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to the confessions "arouse the conscience of the observer." We would go one step further. We believe that, under all the circumstances, Jurek's confessions were involuntary. We therefore need not decide whether his Miranda rights were violated as well.

Previous cases deciding whether confessions are voluntary "yield no talismanic definition of 'voluntariness,' mechanically applicable to the host of situations where the question has arisen." Schneckloth v. Bustamonte,412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). " Voluntariness," in the constitutional sense, is so difficult to define because almost anything the police do is likely to influence the accused to some degree; even a mildly phrased question, asked after proper warnings, places some pressure on the defendant to give an answer. It is clear that not all such answers are constitutionally involuntary. But it is also clear that at some point the pressure can become too insistent; we then say that the responses elicited are "involuntary" and cannot be used by the prosecution. In its efforts to define how much pressure is too much, however, the Supreme Court has only concatenated metaphors. To be voluntary a confession must be " the product of an essentially free and unconstrained choice." Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The decision to confess must be "freely self-determined," Rogers v. Richmond,365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), "the product of a rational intellect and a free will," Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The defendant's "will to resist," Rogers v. Richmond, 365 U.S. at 544, 81 S.Ct. 735, must not be overborne; nor can his "capacity for self-determination (be) critically impaired," Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. 1860. By themselves these phrases are not altogether helpful, but they do alert us to the two basic reasons that involuntary confessions cannot be used. First, they are unreliable, so admitting them into evidence denies the defendant due process of law. See, e. g. Michigan v. Tucker, 417 U.S. 433, 448-49, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936). Second, even using an accurate involuntary confession against a defendant violates the fifth amendment's mandate that "No person . . . shall be compelled in any criminal case to be a witness against himself."

Accordingly, when we examine the constellation of psychological and physical pressures brought to bear on a defendant like Jurek, we must ask whether they were the sorts of pressures likely to cause him to confess falsely; but the Supreme Court has made it unmistakably clear that we cannot stop there. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). We must go on to consider whether these sorts of pressures offend against the principles underlying the self-incrimination clause. One of these principles is that it is unhealthy for the government habitually to rely on the accused as its principal source of evidence, both because

The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force . . . . If there is a right to an answer, there soon seems to be a right to the expected answer, that is, to a confession of guilt.

Escobedo v. Illinois, 378 U.S. 478, 489, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964), Quoting 8 Wigmore, Evidence (3d ed. 1940) 309, and because, more intangibly, law enforcement authorities must not, in their attitudes and actions, treat criminal defendants as their prey or as a source of evidence to be exploited. See generally Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). Relatedly, the self-incrimination clause reflects our belief that requiring a person to participate in his own condemnation, and denying him even the right to remain defiantly silent, robs him of a dignity that even an accused criminal must be allowed to preserve.

With these policies in mind, then, we must review the circumstances surrounding

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Jurek's confessions. "The . . . voluntariness of a confession turns on the effect of the totality of the circumstances on the defendant's will." United States...